United States v. Sherryanne Christie

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10233
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00889-LEK-1

SHERRYANNE L. CHRISTIE,
FKA Sherryanne L. St. Cyr,
Defendant-Appellant.

UNITED STATES OF AMERICA, No. 14-10234
Plaintiff-Appellee,
D.C. No.
v. 1:10-cr-00384-LEK-1

ROGER CUSICK CHRISTIE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted October 16, 2015
Honolulu, Hawaii

Filed June 14, 2016
2 UNITED STATES V. CHRISTIE

Before: Diarmuid F. O’Scannlain, Richard C. Tallman,
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge O’Scannlain

SUMMARY*

Criminal Law / RFRA

The panel affirmed the convictions of two ministers of the
Hawaii Cannabis Ministry for violations of the Controlled
Substances Act (CSA) in a case in which the defendants
claim that their convictions violate their rights freely to
exercise their religion, as guaranteed by the Religious
Freedom Restoration Act of 1993 (RFRA).

The panel held that the government has a compelling
interest in mitigating the risk that cannabis from the Ministry
will be diverted to recreational users, and that the facts of this
case demonstrate that mandating the defendants’ full
compliance with the CSA would help to advance this
compelling interest to a meaningful degree. The panel held
that in light of these defendants and the facts in this record,
the government could not achieve its compelling interest in
mitigating diversion through anything less restrictive than
mandating the defendants’ full compliance with the CSA.
The panel therefore rejected the defendants’ RFRA defense.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. CHRISTIE 3

Rejecting the defendants’ contention that RFRA is
unconstitutionally vague, and thereby renders the CSA
unconstitutionally vague, the panel explained that the Fifth
Amendment has no application to RFRA, which is not a penal
statute or anything like one. The panel held that the
defendants’ appeal to the rule of lenity is equally untenable.
The panel rejected as foreclosed by precedent the defendants’
contention that the CSA’s classification of marijuana as a
Schedule I controlled substance violates the Due Process
Clause of the Fifth Amendment.

The panel held that the district court did not abuse its
discretion in issuing wiretaps in the course of investigating
the Ministry, and that the district court’s determinations in
denying the defendants a Franks hearing were not clearly
erroneous.
4 UNITED STATES V. CHRISTIE

COUNSEL

Thomas M. Otake (argued), Law Office of Thomas M. Otake,
Honolulu, Hawaii, for Defendant-Appellant Roger Cusick
Christie.

Georgia K. McMillen (argued), Law Office of Georgia K.
McMillen, Wailuku, Hawaii; Lynn E. Panagakos, Law Office
of Lynn E. Panagakos, Honolulu, Hawaii, for Defendant-
Appellant Sherryanne L. Christie.

John M. Pellettieri (argued), Attorney, Appellate Section;
Leslie R. Caldwell, Assistant Attorney General; Sung-Hee
Suh, Deputy Assistant Attorney General; United States
Department of Justice, Criminal Division; Florence T.
Nakakuni, United States Attorney; Michael K. Kawahara,
Assistant United States Attorney; United States Attorney’s
Office, Honolulu, Hawaii; for Plaintiff-Appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the federal government may
criminally prosecute two ministers of the Hawaii Cannabis
Ministry who admit to using and distributing large quantities
of cannabis, but who claim that in doing so they were merely
exercising their sincerely held religious beliefs.

I

The Reverend Roger Cusick Christie founded the Hawaii
Cannabis Ministry in the year 2000, in Hilo, a city on the
 UNITED STATES V. CHRISTIE 5

Island of Hawaii. Rev. Christie envisioned the Ministry as “a
community wherein Cannabis could be celebrated as a
sacrament.” Sherryanne Christie was received into the
Ministry in 2007, and in 2008 she was ordained a minister,
eventually joining Rev. Christie as a sort of “assistant
manager.” Sherryanne ran the Ministry by herself for several
months in 2009 while Rev. Christie recuperated from a
broken ankle. The two wed in 2012.

A

According to Rev. Christie, “[t]he consumption,
possession, cultivation and distribution of Cannabis are
essential and necessary components of the THC Ministry,”1
which distributed cannabis both to its members and to
medical marijuana users. As Rev. Christie put it, “[n]o truly
religious person would turn a blind eye to those in need.”

Rev. Christie boasted of winning the Ministry 2,000 to
3,000 converts on the Island of Hawaii, and another 62,000
worldwide. His charisma consisted, in part, of his promise
that those who joined his flock would be delivered from the

1
“THC” is presumably a (not so subtle) allusion to
tetrahydrocannabinols, which are hallucinogenic substances that are found
in cannabis and are specifically listed as Schedule I controlled substances
under the federal Controlled Substances Act (CSA), 84 Stat. 1242,
21 U.S.C. § 801 et seq., and its implementing regulations, 21 C.F.R.
§ 1308.11(d)(31). Following the parties’ lead, we use the terms
“cannabis” and “marijuana” interchangeably. Hence, references to
marijuana should be understood to signify cannabis within the meaning of
the CSA. Cf. 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts
of the plant Cannabis sativa L., whether growing or not; the seeds thereof;
the resin extracted from any part of such plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of such plant, its
seeds or resin.”).
6 UNITED STATES V. CHRISTIE

reach of federal drug laws. For instance, he was enthusiastic
about advertising the Ministry’s slogan: “We use cannabis
religiously and you can too.” Similarly, the Ministry’s
website prominently displayed an assurance that members
would know neither “arrest,” nor “prosecution,” nor
“conviction of ‘marijuana’ charges . . . starting as soon as you
sign up.”

Signing up was not difficult. There were two primary
paths to membership. Those who wished could come to
downtown Hilo and meet with Rev. Christie at the Ministry’s
physical home, called the Sanctuary. Rev. Christie would
often insist on a “donation” of fifty dollars, and while he
reserved the right to turn hopefuls away, one of the Ministry’s
former employees could not recall anyone ever being
rejected. To the contrary, Rev. Christie even boasted of
enrolling people who “come in on a cruise ship and they, you
know they are just here for a day and they need. . . you
know?” Alternatively, one could join the Ministry by
purchasing a so-called “Sanctuary Kit” for $250 through the
Ministry’s website. Sanctuary Kits included one or two blank
membership cards; information about the Ministry, and about
laws governing religious cannabis use; and various cannabis-
related items (but no cannabis itself). The Ministry’s website
made clear that there was no minimum age to join, and that
even minors could become members.

The Ministry obtained its cannabis from various sources,
including from a black market in and around Hilo, and
distributed cannabis in two primary ways.

First was during “communion” at Sunday services, which
took place every week for approximately two hours at a time.
At the start of each service Rev. Christie would ask those
 UNITED STATES V. CHRISTIE 7

present to introduce themselves and explain why they had
come, in order, he testified, to “weed out” (his pun) “any
visitors or members who seemed insincere.” There is no
evidence of how he went about doing so.

Second, during the week Rev. Christie and other Ministry
employees would distribute cannabis to members who came
in person to the Sanctuary, again in exchange for a suggested
donation price. As Rev. Christie explained, members could
choose from a broad menu of cannabis products to pick up
and to take away with them: “packets,” “live plants,”
“clones,” “seeds,” “candy,” “brownies and chocolate chip
cookies all with cannabis,” “holy anointing oil,” and
“tinctures.”2

The Ministry’s distribution protocol required those who
wished to obtain cannabis during the week to appear in
person and to present a membership card or a state-issued
medical marijuana card. Prior to the Spring of 2009,
recipients were also required to meet privately with Rev.
Christie. By April 2009, the Ministry was distributing more
than half a pound of cannabis among approximately sixty to
seventy people daily, “most everyday.”

It was around this time that the Christies instituted a more
efficient distribution method, dubbed the “express”
procedure. Its purpose was to allow individuals to receive
cannabis from the Ministry without first having to meet

2
Tinctures could be used in a variety of ways, as Rev. Christie explained
to one interested party over the phone: for example, “[y]ou carry your
purse, you can dose yourself [at] the movie theater[,] at the restaurant. . . .
You just take out the bottle and give a drop in your tongue and away you
go, nobody even looks at you.”
8 UNITED STATES V. CHRISTIE

privately with either Sherryanne or Rev. Christie. Instead,
each person would order a specific amount of cannabis from
a Ministry staff member, hand over his or her Ministry ID
card, tender the corresponding “donation” price—which
could be more or less expensive depending on the quality of
the herb—and wait while the staff member retrieved the
requested cannabis from Rev. Christie or Sherryanne. The
express procedure eventually became the “primary way” the
Ministry distributed cannabis, and it was so popular that it
often generated a line stretching out the Ministry door and
onto the sidewalk.

The Christies were proud that the Ministry achieved such
a high profile, and they aver that they operated the Ministry
in an open and non-secretive manner throughout its history.
Rev. Christie was something of a public personality, for
instance, speaking candidly about the Ministry’s activities in
various news media and even running for mayor on a ticket
pushing marijuana reform. Over the years Rev. Christie also
met several times to discuss the Ministry with various
representatives of state and federal law enforcement.

The Christies wrote down a handful of rules nominally
designed to ensure that cannabis went out only to Ministry
members or medical marijuana users. But in practice these
rules were little more than parchment barriers.

Specifically, the Ministry “did not confirm that persons
who came to the express service were who their Ministry ID
card identified them as,” and the employees administering
express “did not confirm that the person named on the
Ministry ID card was actually a member.” In addition, the
district court found that Ministry employees “never advised
people who came through the express service that there were
 UNITED STATES V. CHRISTIE 9

restrictions on what ‘members’ could do with the sacrament.
For example, they never told customers that the sacrament
was only for religious purposes or that ‘members’ could only
use the sacrament on Ministry premises or that ‘members’
were prohibited from distributing the sacrament to non-
members.”

B

In response to these concerns, the federal government
opened a criminal investigation into Rev. Christie and the
Ministry. Investigatory results included 284 marijuana plants
which law enforcement officers found in July 2009 on a farm
run by friends of the Christies, whom the Christies had
recruited to cultivate marijuana to be distributed through the
Ministry. In June 2010, a grand jury indicted Rev. Christie,
Sherryanne, and various of their associates, charging them
with a handful of crimes including numerous Controlled
Substances Act (“CSA”) violations. See 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 846, and 856(a)(1). After the
district court denied four of their pretrial motions, Rev.
Christie and Sherryanne ultimately pled guilty pursuant to
plea agreements. Rev. Christie pled guilty, as relevant here,
to one count of conspiracy to manufacture and distribute 100
or more marijuana plants, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B). For her part, Sherryanne pled
guilty to one count of conspiring to manufacture and
distribute fifty or more marijuana plants, in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C).

Rev. Christie was sentenced to sixty months in prison, to
be followed by four years of supervised release. Sherryanne
was sentenced to twenty-seven months in prison, to be
followed by three years of supervised release.
10 UNITED STATES V. CHRISTIE

The Christies timely appealed their convictions. The
district court had jurisdiction under 18 U.S.C. § 3231, and we
have jurisdiction under 28 U.S.C. § 1291.

II

The Christies first claim that their convictions violate
their rights freely to exercise their religion, as guaranteed by
the Religious Freedom Restoration Act of 1993 (RFRA),
107 Stat. 1488, 42 U.S.C. § 2000bb et seq.3

A

RFRA supplies a rule of decision in cases where a person
finds himself in the unfortunate position of needing to choose
between following his faith and following the law. “In
general,” RFRA provides, sincere religious objectors must be
given a pass to defy obligations that apply to the rest of us, if
refusing to exempt or to accommodate them would impose a
substantial burden on their sincere exercise of religion.
42 U.S.C. 2000bb-1(a).

But this rule is not absolute. “The mere fact that [a
person’s] religious practice is [substantially] burdened by a

3
The Christies do not argue that the government has violated their rights
under the First Amendment’s Free Exercise Clause, presumably
recognizing that any such theory would be doomed by the Supreme
Court’s decision in Employment Division v. Smith, which held “that the
right of free exercise [under the First Amendment] does not relieve an
individual of the obligation to comply with a ‘valid and neutral law of
general applicability on the ground that the law proscribes . . . conduct that
his religion prescribes.” 494 U.S. 872, 879 (1990) (quoting United States
v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the
judgment)).
 UNITED STATES V. CHRISTIE 11

governmental program does not mean that an exemption
accommodating his practice must be granted.” Thomas v.
Review Bd., 450 U.S. 707, 718 (1981). Even in the
circumstances just described, RFRA allows the federal
government to treat religious objectors the same as everyone
else “only if” the government meets a two-part test: the
government must demonstrate that forcing the religious
objector to comply with the law is both “in furtherance of a
compelling governmental interest,” and is “the least
restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb-1(b). If the government
cannot justify its actions under that test, courts are directed to
order “appropriate relief” against the government and in favor
of the religious objector. Id. § 2000bb-1(c).

In other words, RFRA gives each person a statutory
right not to have his sincere religious exercise
substantially burdened by the government, save for cases
expressly denominated “[e]xception[al].” Id. § 2000bb-1(b).
Moreover, RFRA is explicit that such right may be invoked
against the government as either a “claim or defense,” id.
§ 2000bb-1(c), a sword or a shield. If a person has a
sufficiently realistic fear that the government is going to
punish him for exercising his religious beliefs in defiance of
the law, he may unsheathe RFRA and file a preemptive strike
in an effort to subdue the government before it treads further.
E.g., Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 425–27, 439 (2006) (granting a
preliminary injunction under RFRA to a religious sect
threatened with prosecution for past violations of the CSA);
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785
(2014) (enjoining government from requiring full compliance
with the Affordable Care Act of claimants who felt compelled
to violate its commands for religious reasons). Alternatively,
12 UNITED STATES V. CHRISTIE

if the government strikes first—for example, by indicting a
person for engaging in activities that form a part of his
religious exercise but are prohibited by law—the person may
raise RFRA as a shield in the hopes of beating back the
government’s charge. E.g., United States v. Bauer, 84 F.3d
1549, 1559 (9th Cir. 1996) (vacating convictions so
defendants could interpose RFRA as defense to having
possessed marijuana in violation of the CSA); see also
Wisconsin v. Yoder, 406 U.S. 205, 207, 234–35 (1972)
(striking down criminal convictions and nullifying state
compulsory school-attendance law as applied to religious
objectors who invoked First Amendment defense to
prosecution). In either scenario, a religious objection may
have the effect of immunizing the objector’s past conduct
from official sanction—even though such conduct violated a
law that is otherwise valid—and of nullifying, in whole or in
part, his continuing duty to comply with a generally
applicable command.

B

For their RFRA defense to prevail, the Christies first had
to establish a prima facie case. United States v. Zimmerman,
514 F.3d 851, 853 (9th Cir. 2007) (per curiam). The Christies
were required to demonstrate that the beliefs they espouse are
actually religious in nature (rather than philosophical or
political, for example); that they sincerely hold those beliefs,
and do not simply recite them for the purpose of draping
religious garb over commercial activity or straightforward
drug trafficking; and that forcing them to obey the federal
marijuana laws would impose a substantial burden on their
ability to conduct themselves in accordance with those
sincerely held religious beliefs.
 UNITED STATES V. CHRISTIE 13

The district court assumed without deciding that the
Christies had satisfied all of those elements. A fairminded
observer might question just how plausible each of those
assumptions really is, but on this appeal we are not asked to
determine if any of them would stand up under scrutiny. Like
the district court, we will assume—without deciding, and for
purposes of this proceeding only—that the Christies have
successfully established a prima facie case under RFRA.

With that assumption, RFRA forbids the government
from requiring the Christies to comply with the CSA unless
the government can make two showings. The government
must demonstrate, first, that demanding the Christies’
unbending compliance—more concretely, forcing the
Christies to violate their religious beliefs by ceasing to use
and to distribute cannabis altogether—would actually
advance a compelling government interest to some
meaningful degree. See Hobby Lobby, 134 S. Ct. at 2779
(holding that government must demonstrate that its “marginal
interest in enforcing the [challenged law] in these cases” is
compelling (emphasis added)); Brown v. Entm’t Merchs.
Ass’n, 564 U.S. 786, 803 n.9 (2011) (“[T]he government does
not have a compelling interest in each marginal percentage
point by which its goals are advanced.”). If the government
clears that hurdle, it must then show that forcing the Christies
to comply with the CSA is the least restrictive means by
which it can achieve its compelling interest. That is, the
government must show that it would not be able to
“accommodate [the Christies’] religion more without serving
[its compelling] interest less.” United States v. Friday,
525 F.3d 938, 946 (10th Cir. 2008).

The district court concluded that the government had done
everything RFRA requires. We review the district court’s
14 UNITED STATES V. CHRISTIE

compelling-interest and least-restrictive-means conclusions
de novo, United States v. Vasquez-Ramos, 531 F.3d 987, 990
(9th Cir. 2008) (per curiam), but we review any findings of
“historical fact” underlying those conclusions for clear error,
see Ornelas v. United States, 517 U.S. 690, 699 (1996).

C

The threshold question is whether the government has a
compelling interest in prosecuting the Christies for using and
distributing cannabis. As the Supreme Court has emphasized,
“RFRA requires the Government to demonstrate that the
compelling interest test is satisfied through application of the
challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially
burdened.” O Centro, 546 U.S. at 430–31 (quoting 42 U.S.C.
§ 2000bb-1(b)). Hence, we must “look[] beyond broadly
formulated interests justifying the general applicability of
government mandates and scrutinize[] the asserted harm of
granting specific exemptions to particular religious
claimants.” Id. at 431. The compelling-interest
determination “is not to be made in the abstract,” but “in the
circumstances of this case.” Cal. Democratic Party v. Jones,
530 U.S. 567, 584 (2000).

1

The government first argues that it has a compelling
interest in mitigating the risk that cannabis from the Ministry
will be diverted to recreational users, and that the facts of this
case demonstrate that mandating the Christies’ full
compliance with the CSA would help to advance this
compelling interest to a meaningful degree. We agree.
 UNITED STATES V. CHRISTIE 15

We have little trouble concluding that the government has
a compelling interest in preventing drugs set aside for
sacramental use from being diverted to non-religious,
recreational users. A risk of “diversion,” after all, simply
means the threat that cannabis—an illegal, Schedule I
controlled substance—will wind up in the hands of people
whose use is disconnected from any sincere religious
practice. Such illegal, non-religious use, by definition, finds
no protection under RFRA. Further, the government’s
interest in reducing the incidence of illicit, recreational
cannabis use follows from its more general interest in
enforcing the CSA to “promot[e] public health and safety,” an
interest the Supreme Court recognized in O Centro. 546 U.S.
at 438. Moreover, insofar as diverted cannabis could
foreseeably fall into the hands of minors, or otherwise expose
them to the hazards associated with illegal, recreational drug
use, the government’s interest in reducing the likelihood of
diversion is contained within its “compelling interest in
protecting the physical and psychological well-being of
minors.” Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S.
115, 126 (1989).

In addition to demonstrating that it has a compelling
interest in combating the risk of diversion in general, the
government must take a second step under RFRA: it must
show that its interest in combating diversion is compelling on
the facts of this case. Cf. Entm’t Merchs., 564 U.S. at 799
(explaining that the government “must specifically identify an
actual problem in need of solving,” and must show that the
burden on the specific claimants’ religious exercise is
“actually necessary to the solution.” (quotation marks
omitted)). O Centro is instructive. There, the Supreme Court
endorsed the government’s “general interest in promoting
public health and safety by enforcing the Controlled
16 UNITED STATES V. CHRISTIE

Substances Act,” 546 U.S. at 438, although it held that under
RFRA such a general interest is not compelling unless the
government submits additional proof that the specific RFRA
claimants’ particular activities create a risk of diversion to
non-members or a risk to the health of the religious
practitioners, id. at 437.

The record in this case succeeds where the record in O
Centro fell short because, as the district court concluded, in
this case there is specific evidence that the Ministry’s
distribution methods created a realistic possibility that
cannabis intended for members of the Ministry would be
distributed instead to outsiders who were merely feigning
membership in the Ministry and adherence to its religious
tenets. Additionally, the government’s interest in this case is
all the more compelling given the Ministry’s well-publicized
willingness to extend membership in the Ministry (with all
that that entails) to minors.

For those reasons, we agree with the government that
mandating the Christies’ compliance with the CSA would
help it advance a compelling interest in preventing diversion.
If the government took no action against the Christies, its
compelling interest would be meaningfully compromised.

2

The Christies make three counterarguments, none of
which we find persuasive. First, they argue that the
magnitude of any diversion risk was insubstantial, because
(i) the Ministry’s distribution was governed by formal rules
limiting recipients to sincere members and medical marijuana
patients; and (ii) the government failed to produce any actual
evidence that the Ministry’s cannabis had been diverted to
 UNITED STATES V. CHRISTIE 17

non-adherents in the past. We reject the first point because,
as discussed above, there is more than enough evidence in the
record to support the district court’s conclusion that the
Ministry’s broad and loose distribution methods gave rise to
a realistic threat of diversion, notwithstanding whatever rules
were technically on the books. We reject the second point as
well because we see no reason the government should be
required to demonstrate past incidents of diversion in order to
establish a compelling interest in combating a realistic risk
that diversion will occur in the future. Indeed, in O Centro,
“the absence of any diversion problem in the past” was not
enough to defeat the government’s effort to establish a
compelling interest in preventing diversion going forward.
See O Centro, 546 U.S. at 426. Furthermore, unlike in O
Centro, here the record establishes the existence of a black
market for cannabis in and around Hilo, as well as the
opportunity for diversion from the Ministry created by lax
enforcement of its distribution protocols. These
circumstances remove any doubt that the Ministry’s cannabis
was “vulnerable to diversion.” O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d
1236, 1262 (D. N.M. 2002).

Second, the Christies criticize the district court’s
determination that weaknesses in the Ministry’s distribution
procedures created a clear potential for diversion. The
Christies contend that the analysis and factual findings
underlying the district court’s conclusion are flawed, for a
variety of reasons. Even if some of these arguments are
debatable, they are simply too weak to survive under our
deferential “clearly erroneous” standard of review. “To be
clearly erroneous, ‘a finding must be more than possibly or
even probably wrong; the error must be pellucid to any
objective observer.’” United States v. Quaintance, 608 F.3d
18 UNITED STATES V. CHRISTIE

717, 721 (10th Cir. 2010) (quoting Watson v. United States,
485 F.3d 1100, 1108 (10th Cir. 2007)). None of the
conclusions the Christies attack is clearly erroneous.

Third, the Christies contend that the government simply
has no compelling interest in preventing the diversion of
cannabis, period. They offer three main reasons: current
medical and scientific evidence proves that the CSA’s
classification of marijuana as a Schedule I controlled
substance lacks a rational basis; the CSA grants an exemption
for the Native American Church’s use of peyote, and other
groups have been granted exemptions to use hoasca—and
taken together, the argument goes, these precedents discredit
the government’s asserted interest in preventing diversion of
the Ministry’s cannabis; and the Department of Justice has, of
late, instituted policy exceptions to its enforcement of the
CSA’s marijuana provisions.4 We reject these arguments.

4
The Christies cite an August 29, 2013 memo from then-Deputy
Attorney General James M. Cole to “all United States Attorneys.” The
memo, entitled “Guidance Regarding Marijuana Enforcement,” updates
federal prosecutors on DOJ’s strategy for enforcing the CSA “in light of
state ballot initiatives that legalize under state law the possession of small
amounts of marijuana and provide for the regulation of marijuana
production, processing, and sale.” Indeed, at least two states in this
Circuit—Washington beginning in 2012, and Oregon in 2015—have
authorized the possession and retail sale of marijuana (subject to state fees
and taxes) under conditions which seem to cast state law at cross-purposes
with federal criminal enforcement. See Wash. Rev. Code Ann.
§§ 69.50.4013(3), 69.50.382, 69.50.385, 69.50.535 (West); see generally
State v. Rose, 365 P.3d 756 (Wash. Ct. App. 2015); Or. Rev. Stat. Ann.
§§ 475.864, 475B.110, 475B.345 (West); see generally State v. Mays, Jr.,
346 P.3d 535 (Or. Ct. App. 2015).

Despite liberalization under certain state laws, the memo affirms
DOJ’s “commit[ment] to enforc[ing] the CSA consistent with” Congress’s
judgment “that marijuana is a dangerous drug and that the illegal
 UNITED STATES V. CHRISTIE 19

a

In the first place, the Christies have not come close to
showing that the CSA’s classification of marijuana as a
Schedule I controlled substance lacks a rational basis and
therefore violates the Fifth Amendment. We discuss this
contention of theirs in greater depth later in this opinion. See
Part IV, infra.

b

Nor are the Christies aided by exemptions that different
groups have won for the sacramental use of peyote and
hoasca. The Christies are right that RFRA does not allow the
government to refuse an accommodation to a group which is
materially indistinguishable from one already exempted, but
the government has not violated that principle in this case.

distribution and sale of marijuana is a serious crime that provides a
significant source of revenue to large-scale criminal enterprises, gangs,
and cartels.” Nevertheless, the memo clarifies that DOJ intends to
“focus[] its efforts on certain enforcement priorities that are particularly
important to the federal government.” The listed priorities include
“[p]reventing the diversion of marijuana from states where it is legal under
state law in some form to other states” and “[p]reventing the distribution
of marijuana to minors,” especially “when marijuana or marijuana-infused
products are marketed in a manner to appeal to minors; or when marijuana
is being diverted, directly or indirectly, and purposefully or otherwise, to
minors.”

The memo stresses that it “is not intended to, does not, and may not
be relied upon to create any rights, substantive or procedural, enforceable
at law by any party in any matter civil or criminal,” and that “nothing
herein precludes investigation or prosecution, even in the absence of any
one of the factors listed above, in particular circumstances where
investigation and prosecution otherwise serves an important federal
interest.”
20 UNITED STATES V. CHRISTIE

Indeed, the peyote and hoasca precedents say very little about
whether the government has a compelling interest in
preventing diversion of the Ministry’s cannabis. As courts
have repeatedly emphasized, cannabis differs critically from
peyote and hoasca precisely because there is a thriving
market for diverted cannabis, whereas there is no comparable
demand for recreational peyote and hoasca. See, e.g., O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,
389 F.3d 973, 1020 (10th Cir. 2004) (en banc) (McConnell,
J., concurring); Olsen v. Drug Enf’t Admin., 878 F.2d 1458,
1463–64 (D.C. Cir. 1989); Church of the Holy Light of the
Queen v. Mukasey, 615 F. Supp. 2d 1210, 1220–21 (D. Or.
2009), vacated on other grounds sub nom. Church of the Holy
Light of the Queen v. Holder, 443 Fed. App’x 302 (9th Cir.
2011); United States v. Lepp, 2008 WL 3843283, at *11
(N.D. Cal. Aug. 14, 2008).

The record here shows that such a market exists in and
around Hilo. And again, diversion concerns are more
pressing here than in other cases due to the Ministry’s well-
documented lack of diligence in overseeing its distribution
methods. In short, it follows from the “focused inquiry”
demanded by RFRA, O Centro, 546 U.S. at 432, that even if
the government lacks a compelling interest in preventing
diversion of one particular drug from one particular religious
group, the government may still have a compelling interest in
preventing diversion of a different drug from a different
religious group. That is exactly the case here.

c

Finally, recent shifts in DOJ enforcement priorities do not
deprive the government of a compelling interest in preventing
diversion of the Ministry’s cannabis. We are of course
 UNITED STATES V. CHRISTIE 21

mindful of the Supreme Court’s admonition that “a law
cannot be regarded as protecting an interest of the highest
order when it leaves appreciable damage to that supposedly
vital interest unprohibited.” O Centro, 546 U.S. at 433
(quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, 547 (1993)) (alteration omitted).

Nevertheless, the recently promulgated DOJ memos
touted by the Christies do not establish that the government’s
enforcement efforts have been so completely abandoned, or
are so thoroughly honeycombed with exemptions, for us to
conclude that the government has forfeited any claim to a
compelling interest in preventing mass diversion of cannabis.
By their own terms, the memos are “intended solely as a
guide to the exercise of investigative and prosecutorial
discretion,” and “do[] not alter in any way the Department’s
authority to enforce federal law, including federal laws
relating to marijuana, regardless of state law.” Like proposed
administrative rules, DOJ memos ought not be given great
weight because they do not announce “final decision[s],” and
the DOJ “may well revise its analysis” in light of new
information or changed circumstances. United States v.
Antoine, 318 F.3d 919, 921 (9th Cir. 2003). Indeed, the DOJ
may alter its approach based simply on the election of a new
administration with different priorities and a different
philosophy. Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983)
(Rehnquist, J., concurring in part and dissenting in part).
Hence, while perhaps relevant, DOJ policies do not carry the
weight the Christies ascribe to them. It is not for us to decide
whether prosecuting the Christies represents the best exercise
of prosecutorial discretion, or the wisest allocation of the
Executive’s finite resources.
22 UNITED STATES V. CHRISTIE

In sum, we conclude that the government has a
compelling interest in preventing diversion of the Ministry’s
cannabis, and that enforcing the CSA against the Christies
would meaningfully advance that interest.

3

Separate and apart from its interest in preventing
diversion of the Ministry’s cannabis, the government urges
that it has a compelling interest in “preserving [its] ability to
administer” the CSA. Specifically, the government argues
that granting the Christies an exception would compromise its
ability to enforce the CSA because it would spawn a
multitude of RFRA claims, likely for “the distribution of
other drugs in high demand, perhaps cocaine or heroin.” The
government also asserts that the CSA, like the tax code, is a
closed regulatory system that could not function if it were
subject to religious carve-outs.

We are unpersuaded by these arguments, for each of them
was squarely rejected by the Supreme Court in O Centro.
The government may well be right that granting an exception
to the Christies would invite a flood of RFRA claims, perhaps
for distribution of cocaine and heroin. But that objection is
insufficient, for it is nothing more than a “slippery-slope
concern[] that could be invoked in response to any RFRA
claim.” O Centro, 546 U.S. at 435–36. Furthermore, O
Centro specifically held that the CSA is not like the tax code
or other “closed regulatory system[s] that admit[] of no
exceptions under RFRA.” Id. at 434. Like it or not, when
religious objectors raise RFRA as a defense to prosecution
under the CSA, RFRA requires courts to “strike sensible
balances” on a case-by-case basis, in light of “the particular
practice at issue.” Id. at 439.
 UNITED STATES V. CHRISTIE 23

D

While we agree with the government that forcing the
Christies to obey the CSA’s no-cannabis-distribution mandate
would advance a compelling interest in mitigating a realistic
threat of diversion, we must still ask whether the government
has chosen the least restrictive means necessary to achieve
that interest.

As its name implies, the “least restrictive means” test
calls for a comparative analysis. In one corner we have the
government’s preferred means: a mandate that the Christies
comply with the CSA to the letter, enforceable with criminal
penalties. Our job is to lay such preferred means side by side
with other potential options. Could the government achieve
its compelling interest to the same degree while exempting
the Christies from complying in full with the CSA? That is
the question RFRA requires us to confront. And the
government must demonstrate, based on the facts before us,
that the answer is “no.”

At a minimum, the government must address those
alternatives of which it has become aware during the course
of this litigation. United States v. Wilgus, 638 F.3d 1274,
1289 (10th Cir. 2011) (“[T]he government’s burden is two-
fold: it must support its choice of regulation, and it must
refute the alternative schemes offered by the challenger, but
it must do both through the evidence presented in the
record.”); see also Zubik v. Burwell, 136 S. Ct. 1557, 1560
(2016) (vacating and remanding cases to lower courts for
fresh RFRA analysis “[i]n light of the positions asserted by
the parties in their supplemental briefs”). The government
must show that each proposed alternative either is not “le[ss]
restrictive” within the meaning of RFRA, see 42 U.S.C.
24 UNITED STATES V. CHRISTIE

§ 2000bb-1(b)(2), or is not plausibly capable of allowing the
government to achieve all of its compelling interests.

In this case, the Christies have put forth four purportedly
less restrictive alternatives.

1

The Christies first emphasize that “[n]umerous statutory,
judicially-crafted, and policy exceptions exist to the CSA,”
again citing the Native American Church and its exemption
for peyote use. The Christies take this to prove that the
government need not mandate their unbending compliance
with the CSA in order to achieve its compelling interest in
preventing diversion.

We have already explained why this argument fails. The
Christies cannot simply point to other groups who have won
accommodations for the sacramental use of peyote and
hoasca and say “we’ll have what they’re having,” because the
government has shown material differences between those
particular groups and their sacramental practices, on the one
hand, and the Christies and their religious exercise, on the
other.

2

The Christies next assert that a less restrictive alternative
would have been for the government to bring these
prosecutions under a less punitive provision of the CSA,
ideally a provision that would not have triggered statutory
mandatory minimum penalties. The Christies cite nothing for
the proposition that a (potentially) less punitive charging
decision qualifies as a “less restrictive” alternative.
 UNITED STATES V. CHRISTIE 25

We find such lack of authority unsurprising, for at least
two reasons. First, when the government exposed the
Christies to the threat of a mandatory minimum, it did not
restrict their religion to a greater degree than if the
government had forgone such charges, for either prosecution
would trigger an outright ban on their ability to use and to
distribute cannabis. Such alternative prosecutions are equally
restrictive of religion, even if they might not be equally
punitive. Cf. Hobby Lobby, 134 S. Ct. at 2782 n.40
(explaining that to qualify as a less restrictive means, a
proposed alternative must “accommodate[] the religious
beliefs asserted in these cases”). Second, given the broad
array of charges prosecutors can choose to bring or not to
bring in any given case, recognizing the Christies’ theory
would plunge courts far too deep into the business of
reviewing the most basic exercises of prosecutorial
discretion.

3

The Christies next contend that the government should
have given them “notice” of its “compelling interest prior to
the imposition of criminal penalties.” We understand the
Christies to mean that RFRA blocks the government from
prosecuting them now because it failed to alert them to its
ongoing investigation before it indicted them. That view is
wrong.

The CSA itself gave the Christies all the notice to which
they were entitled; no authority we have encountered suggests
that RFRA obligates the government to tip off parties who are
about to be indicted and might raise a RFRA defense. Such
outreach might be good practice—at least in those cases
where the government is aware of the possibly religious
26 UNITED STATES V. CHRISTIE

nature of the offensive conduct—but we cannot say that
RFRA compels it. Nor does RFRA suggest that the
government is somehow estopped from prosecuting a
particular defendant who engages in religiously motivated but
otherwise unlawful conduct, simply because the government
has failed to prosecute such person for some period of time
previously (whether through inadvertence, temporary
enforcement discretion, or simply because it was awaiting the
fruits of a pending investigation).

4

Finally, the Christies suggest meeting the government
somewhere in the middle. Rather than complying with the
CSA’s total prohibition on using and distributing cannabis,
the Christies propose that they would shut down the express
distribution method, if they were permitted to continue using
and distributing cannabis in the allegedly more circumscribed
manner they had employed previously. Such compromise,
they insist, represents a plausible means by which the
government could achieve its compelling interests.

The government has convinced us otherwise, and
therefore we decline to grant the Christies’ requested relief.
Indeed, the Supreme Court vindicated free exercise claims in
cases like Yoder, O Centro, and Hobby Lobby only because
it was convinced that, on the facts before it, the government
could very likely achieve all of its compelling interests
without insisting that the religious objectors comply with the
relevant laws in full. That determination is necessarily fact-
specific and context-dependent. But RFRA requires nothing
less. As O Centro emphasized, “‘[c]ontext matters’” when
applying RFRA, for the standard it employs—strict
scrutiny—“does take ‘relevant differences’ into account—
 UNITED STATES V. CHRISTIE 27

indeed, that is its fundamental purpose.” O Centro, 546 U.S.
at 431–32 (quoting Grutter v. Bollinger, 539 U.S. 306, 327
(2003), and Adarand Constructors, Inc. v. Peña, 515 U.S.
200, 228 (1995)).

Here, given the facts of this case, it is simply not plausible
to suppose that the government could achieve its compelling
interest in preventing diversion if it were to accommodate the
Christies in the way they have proposed. As we detailed
earlier, the government has brought forth substantial evidence
that the Christies distributed cannabis for years in a loose and
barely discriminate manner, even before the advent of
express. The problem is not simply that the Christies hardly
regulated who could join the Ministry, or even that they
actively marketed their church as a safe haven from the
federal drug laws. More troubling is that even the barebones
membership requirement was not enforced as a meaningful
check on who could receive the Ministry’s cannabis.
Cannabis distributed through the Ministry seemed available
to anyone to use anywhere; the Christies simply gave
cannabis to those who showed up, took their money, and sent
them on their way. In view of these circumstances, and given
the Christies’ steadfast belief in a divine command to spread
cannabis far and wide—to “liberat[e] cannabis” and to
“cultivate . . . and distribute herb all over the world,” as Rev.
Christie described his vocation—we are incredulous that the
Christies would undertake the sort of extensive reforms
needed to mitigate the enormous potential for diversion the
government has documented.

The Ministry’s precepts and longstanding patterns of
practice give us the same concerns then-Judge Ginsburg
voiced in 1989 when she was confronted with a similar free
exercise claim put forth by the Ethiopian Zion Coptic Church,
28 UNITED STATES V. CHRISTIE

a group which, like the Ministry, faced prosecution under the
CSA for having used and distributed cannabis in accordance
with their religious beliefs. See Olsen, 878 F.2d at 1459.
Like the Christies, members of the Church sought an
accommodation premised on a “proposal for restrictive use.”
Id. at 1462. The D.C. Circuit rejected their proposed less
restrictive alternative. It concluded that the Church’s
“proposal for confined use would not be self-enforcing,”
given that “the tenets” of the Church endorsed broad and
continual cannabis use, and because the record demonstrated
that the Church had previously enforced only “‘minimal’”
checks on “‘distribution of cannabis to nonbelievers.’” Id.
(quoting Town v. State ex rel. Reno, 377 So. 2d 648, 649 (Fla.
1979)). Although Olsen was a pre-RFRA case, we find its
reasoning instructive as applied to the Christies. Given the
record here, we are left with the conclusion that requiring the
Christies to comply with the CSA’s no-cannabis-distribution
mandate is the least restrictive means by which the
government can achieve its compelling interest in preventing
diversion, and we therefore refuse to order dismissal of the
Christies’ indictments on RFRA grounds.

RFRA sets a demanding test: it obligates the government
to satisfy the compelling-interest and least-restrictive-means
tests with respect to “the person” whose religious exercise is
substantially burdened in a specific case. 42 U.S.C.
§ 2000bb-1(b). This focused inquiry requires that we not
ease the government’s burden by rubberstamping vague or
generalized arguments about means and ends; but, just as
much, it means that we may not blind ourselves to who “the
person” seeking a religious exemption actually is in a given
case. And in this case, in light of these defendants and the
facts in this record, we are convinced that the government
could not achieve its compelling interest in mitigating
 UNITED STATES V. CHRISTIE 29

diversion through anything less than mandating the Christies’
full compliance with the Controlled Substances Act.

The Christies’ statutory free exercise rights have not been
violated. We reject their RFRA defense.

E

Finally, before moving on from RFRA, we must address
an additional argument put forth by Sherryanne Christie, who
maintains that she should be exempted from prosecution,
even if her husband is not, because he was the founder and
leader of the Ministry, while she was a mere underling who
joined in reliance on his word that RFRA would shield them
from prosecution.

We reject this claim. There is no justification for treating
Sherryanne differently from her husband. Sherryanne was a
leader in the Ministry—even if she was her husband’s
subordinate—and her zeal for distributing cannabis was no
less ardent than her husband’s.

Moreover, even if we were sympathetic to Sherryanne’s
self-serving portrait of her role in the Ministry, we would
reject her theory because it misunderstands the nature of a
RFRA claim. Sherryanne’s argument amounts to a promise
that if spared prosecution, she will refrain from using and
distributing cannabis altogether. Sherryanne, in other words,
is not really asking for a religious accommodation at all. Cf.
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.
2028, 2032 n.2 (2015) (“[T]o ‘accommodate’ . . . means
nothing more than allowing the plaintiff to engage in her
religious practice despite the . . . normal rules to the contrary
. . . .”). Hence, Sherryanne’s proposed alternative is no less
30 UNITED STATES V. CHRISTIE

restrictive than what the government seeks here: full
compliance with the CSA.

RFRA empowers courts to grant exceptions to generally
applicable laws so that otherwise-unlawful conduct may be
permitted to continue. RFRA does not, however, contemplate
that courts will direct the Executive to dismiss a prosecution
whenever a defendant volunteers to abandon all of the
religious conduct he or she had pursued in the past. If
Sherryanne has undergone a conversion in response to being
indicted, that is something the prosecution might like to have
known, but it will not entitle her to the saving grace of a
RFRA defense.

III

The Christies next contend that their indictments must be
thrown out on the theory that RFRA is unconstitutionally
vague, and thereby renders the CSA unconstitutionally vague.
We review this argument de novo. United States v. Woodley,
9 F.3d 774, 778 (9th Cir. 1993).

The Christies contend that RFRA plunges courts so deep
into a morass of free-form balancing that the statute is
unconstitutionally vague. And the remedy, they go on, is to
dismiss their indictments. Notably, the Christies do not
allege that the CSA is in any sense vague, or that they lacked
notice that their cannabis activities fell within its terms. Nor
could they. Instead, their basic argument is that RFRA
amends the CSA; RFRA’s balancing tests are hopelessly
open-ended; therefore, they could not predict in advance
whether RFRA would immunize their otherwise-criminal
conduct. RFRA’s intersection with the CSA, they conclude,
violates the Fifth Amendment’s prohibition on vague criminal
 UNITED STATES V. CHRISTIE 31

laws. For the same reasons, the Christies also seek refuge
under the rule of lenity.

We are not persuaded. Indeed, the Fifth Amendment
simply has no application here. RFRA cannot be
unconstitutionally vague because it is not a penal statute or
anything like one.5 It does not define the elements of an
offense, fix any mandatory penalty, or threaten people with
punishment if they violate its terms. Rather, it supplies
religious objectors like the Christies with an affirmative
defense to criminal prosecution. 42 U.S.C. § 2000bb-1(c).
The Christies cite no authority for the proposition that the
Fifth Amendment can be used to invalidate a prosecution
under a clear criminal law, simply because that law is subject
to an affirmative defense that is “vague.” (That is, vague in
the sense the Christies claim RFRA is vague—that a person
may have a hard time predicting in advance whether the
defense will immunize him or her from liability.) And for
good reason: one could level the same charge against many
affirmative defenses, including self defense, necessity, or
defense of another (to say nothing of duress, entrapment, and
insanity). Because such affirmative defenses are widely

5
Justice Thomas, in his history of the void-for-vagueness doctrine, cites
one case in which the Supreme Court voided a vague statute that he
classifies as non-penal. Johnson v. United States, 135 S. Ct. 2551, 2566
n.1 (2015) (Thomas, J., concurring in the judgment) (citing Keyishian v.
Bd. of Regents, 385 U.S. 589 (1967)). But, significantly, the statute in
Keyishian required termination of public employment for “treasonable or
seditious” utterances or acts. 385 U.S. at 597. Hence, even if it was
technically not penal, it was closely analogous. Moreover, it raised due
process concerns just like an ordinary penal law, because, as the Supreme
Court has held elsewhere, public employment can qualify as a
constitutionally protected property interest. Perry v. Sindermann,
408 U.S. 593, 601–03 (1972).
32 UNITED STATES V. CHRISTIE

applicable under federal and state law, the Christies’ theory
has the potential to render many sections of the criminal code
void for vagueness. That is good evidence that their theory
is unsound.6

The Christies’ appeal to the rule of lenity is equally
untenable. Once again they cite no authority for the position
that lenity applies to “ambiguous” affirmative defenses rather
than to ambiguous laws that define elements or mandate
punishment. Moreover, any defendant invoking RFRA could
make the same lenity argument the Christies press here;
hence, like their vagueness argument, their lenity argument
risks invalidating every prosecution where a defendant seeks
protection under RFRA. For good reason, that cannot be
right.

IV

The Christies next contend that their indictments should
be dismissed on the theory that the CSA’s classification of

6
Even if the Christies were correct that the void-for-vagueness doctrine
applies and that RFRA is unconstitutionally vague, they never explain
why the proper remedy would be to dismiss their indictments, instead of
striking down RFRA and tossing their defenses along with it. And even
if the Fifth Amendment did require us to enjoin the present prosecutions,
the implication would be that every federal prosecution is at risk of being
enjoined, because—as the Christies emphasize—RFRA amends the entire
United States Code. 42 U.S.C. § 2000bb-3(a). A theory that renders
every federal criminal law potentially void for vagueness cannot be right.
Further, if RFRA’s test makes the CSA unconstitutionally vague, then the
CSA must have been unconstitutionally vague when it was subject to an
identical free exercise defense under the balancing tests set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Yoder, 406 U.S. 205 in the
days prior to Smith, 494 U.S. 872. See 42 U.S.C. § 2000bb. That clearly
cannot be right.
 UNITED STATES V. CHRISTIE 33

marijuana as a Schedule I controlled substance violates the
Due Process Clause of the Fifth Amendment. We review this
question de novo. Bateson v. Geisse, 857 F.2d 1300, 1303
(9th Cir. 1988).

The Christies do not claim that the CSA’s classification
of marijuana infringes any of their fundamental rights.
Instead, they maintain that such classification “is arbitrary
and lacking in any rational justification and therefore
constitutionally invalid.”

This argument is foreclosed by our precedents. In 1978
we rejected a challenge identical to the one the Christies raise
today. United States v. Miroyan, 577 F.2d 489, 495 (9th Cir.
1978), partially overruled on other grounds as recognized by
United States v. Pineda-Moreno, 688 F.3d 1087, 1090–91
(9th Cir. 2012). And while it may be true that marijuana’s
legal status continues to evolve, as does its standing in the
medical and scientific communities, those developments do
not come close to demonstrating that changes since 1978
have left Miroyan’s “central holding obsolete.” Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).
Thus, Miroyan controls our decision, and requires that we
reject the Christies’ due process argument.

V

Finally, the Christies contend that the district court should
have suppressed certain wiretap evidence the federal
government obtained in the course of investigating them and
the Ministry, and that it should have ordered an evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
34 UNITED STATES V. CHRISTIE

A

Wiretap authorizations are governed by the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510–2522.
The government must show that every wiretap it seeks is
necessary. Specifically, § 2518(1)(c) requires each wiretap
application to include “a full and complete statement as to
whether or not other investigative procedures have been tried
and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous.” If the affidavit
complies with § 2518(1)(c), a judge may approve the wiretap
if he “determines on the basis of the facts submitted by the
applicant that . . . normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous.” 18 U.S.C.
§ 2518(3)(c).

We review de novo whether an application for a wiretap
contains a full and complete statement of the facts required to
show necessity under § 2518(1)(c). United States v. Rivera,
527 F.3d 891, 898 (9th Cir. 2008). If we conclude that it
does, we then review the issuing court’s decision to grant the
wiretap for abuse of discretion. Id.

B

The government began investigating the Ministry as early
as August 2007. In April 2009 it obtained authorization to
tap two of Rev. Christie’s phone numbers (TT1 and TT2),
and in June 2009 it obtained an extension of those wiretaps
and an authorization to tap Rev. Christie’s cell phone (TT3).

The government, through DEA Agent Clement Sze,
submitted a 90-page affidavit for TT1 and TT2, and a 135-
 UNITED STATES V. CHRISTIE 35

page affidavit for TT3. We conclude that both affidavits
demonstrated the requisite necessity.

1

First, the affidavits recounted the traditional investigative
methods the government pursued before it applied for the
wiretaps. Between August 2007 and February 2009, the
government utilized one confidential informant, who
provided information about the Ministry, made a series of
drug purchases from Rev. Christie, and engaged him in
several recorded conversations. In 2008, the informant
introduced Rev. Christie to an undercover DEA agent, who
likewise carried out recorded conversations. Before applying
for the wiretaps, the government also installed a pole camera
outside the Ministry’s front entrance, and conducted
additional physical surveillance of the Ministry’s building
and those entering and exiting it. Further, in May 2008 the
government began to use a pen register for two of Rev.
Christie’s phone numbers. The TT3 affidavit also disclosed
that the TT1 and TT2 wiretaps had led the government to
identify six of the Christies’ cannabis suppliers.

2

Second, the affidavits explained why the above non-
wiretap methods had failed to lay bare the full extent of the
Christies’ suspected drug trafficking operation.

With respect to physical surveillance, the affidavits noted
that such surveillance is hard to perform in Hilo because it is
a “very close-knit community,” making it difficult for police
officers to conceal their identities. Moreover, the affidavits
stated that Rev. Christie and his associates appeared to be
36 UNITED STATES V. CHRISTIE

conscious of surveillance, and appeared to have engaged in
“counter-surveillance” on several occasions. Furthermore,
the affidavits claimed that physical surveillance was of
limited use because the government could not determine
which of the people entering and exiting the Ministry were
cannabis suppliers as opposed to ordinary Ministry members.
Finally, the pole camera was not able to video the Ministry’s
side entrance and could not capture audio. The TT3
application explained that during the time the TT1 and TT2
wiretaps were in operation, physical surveillance continued
to be ineffective, partly due to changed circumstances like
Rev. Christie’s ankle injury that left him homebound for a
period of time.

With respect to confidential informants and undercover
agents, the affidavits stated that both techniques were of
limited utility because Rev. Christie was reluctant to discuss
his supply methods with Ministry members. The affidavits
also predicted that if the informant tried to purchase large
quantities of cannabis in an effort to draw out the suppliers,
he would likely arouse Rev. Christie’s suspicions. The
affidavits concluded that recruiting additional informants
would be difficult given that Hilo is a tight-knit community,
and cited one example of a person who was arrested and
claimed to work for Rev. Christie but refused to cooperate.
Similarly, the undercover agent’s role ended after Rev.
Christie realized that he was not a sincere Ministry member
but was actually a DEA agent.

Finally, pen registers could not bring the investigation
home because they could not disclose the content of
communications and, in most cases, failed to convey
information about the parties to such communications.
 UNITED STATES V. CHRISTIE 37

3

Third, the affidavits ran through a list of traditional
methods that had not been tried and explained why each was
unlikely to succeed.

Vehicle trackers were said to be inadequate because most
suppliers brought their cannabis to the Ministry, so tracking
Rev. Christie’s vehicle would not be effective. Moreover, as
noted, the government’s physical surveillance could not
distinguish between suppliers and ordinary Ministry
members, except for one time when the government
identified a supplier carrying a marijuana plant into the
Ministry, but he came and left too quickly for the government
to put a tracker on his vehicle. Likewise, the TT3 application
explained why vehicle trackers could not be applied to those
suppliers who had been identified by the TT1 and TT2
wiretaps and prior physical surveillance, because their
vehicles were parked in front of the Ministry only briefly and
within view of multiple businesses. Finally, the affidavits
noted that Hilo is comprised mostly of large rural areas, and
for that reason vehicle trackers likely would not be able to
pinpoint where marijuana was being grown even if they could
be affixed to the vehicles of known suppliers.

The affidavits then explained that issuing grand jury
subpoenas would be ineffective because people would likely
invoke their Fifth Amendment privilege not to testify and
could alert Rev. Christie to the investigation.

The affidavits likewise dismissed subpoenaing business
and bank records because, it said, doing so could expose the
investigation. The affidavits also stated (erroneously) that the
38 UNITED STATES V. CHRISTIE

Ministry did not use banks because it operated on a “cash and
carry” basis.

Finally, the affidavits explained that search warrants
would not be effective because they probably would not
identify Rev. Christie’s sources, and also because executing
search warrants would blow the lid off the investigation.

C

We conclude that each affidavit contains a full and
complete statement of the facts in compliance with
§ 2518(1)(c). We have emphasized in the past that courts
reviewing necessity are to “employ a ‘common sense
approach’ to evaluate the reasonableness of the government’s
good faith efforts to use traditional investigative tactics or its
decision to forego such tactics based on the unlikelihood of
their success.” United States v. Gonzalez, Inc., 412 F.3d
1102, 1112 (9th Cir. 2005) (quoting United States v.
Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001)). That being
said, wiretap applications must contain more than “boilerplate
conclusions that merely describe inherent limitations of
normal investigative procedures.” Blackmon, 273 F.3d at
1210. But minor deficiencies in detail will not doom an
affidavit. Our reasoning in Rivera makes clear that we
evaluate “the level of detail in the affidavit as a whole,”
rather than piecemeal. 527 F.3d at 899 (emphasis added); see
also id. at 899–901.

Here, the affidavits’ discussions of physical surveillance,
vehicle trackers, pen registers, confidential informants, and
undercover agents do more than enough to demonstrate the
wiretaps’ necessity. While those sections admittedly contain
some boilerplate, each one also gives several case-specific
 UNITED STATES V. CHRISTIE 39

reasons why continued use of the technique in question would
likely be ineffective without a wiretap. Moreover, given that
the government investigated the Ministry for nearly two years
before applying for the wiretaps, we cannot say that the
government sought “to use the wiretap as the initial step” in
its investigation. Id. at 902. The affidavits suffice to pass
legal muster under the flexible, common-sense standard
outlined above.

D

As in Rivera, in this case the government “could probably
have relied on [non-wiretap] techniques alone to successfully
prosecute a few individuals.” Id. But the government’s
legitimate interest extended beyond prosecuting a few
individuals; it encompassed exposing the entire suspected
conspiracy. Id. And, like the defendants in Rivera, the
Christies “may well be correct” that the government “did not
use traditional techniques as much as it could have.” Id. at
903. Perhaps the government could have tried harder to
recruit another confidential informant, for instance. But we
have “repeatedly held that ‘law enforcement officials need
not exhaust every conceivable alternative before obtaining a
wiretap.’” Id. (quoting United States v. Canales Gomez,
358 F.3d 1221, 1225–26 (9th Cir. 2004)). In the end, we are
satisfied that the issuing court did not abuse its discretion in
authorizing the wiretaps.

E

Finally, the Christies contend that defects in the Sze
Affidavits should have at least won them an evidentiary
hearing pursuant to Franks, 438 U.S. 154.
40 UNITED STATES V. CHRISTIE

To obtain a Franks hearing, a defendant must make “a
substantial preliminary showing that a false statement was
deliberately or recklessly included in an affidavit submitted
in support of a wiretap order, and the false statement was
material to the district court’s finding of necessity.” United
States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004). False
statements are material “if the wiretap application purged of
the false statements would not support findings of probable
cause and necessity.” Id. We review de novo the district
court’s denial of a Franks hearing, but we review for clear
error the district court’s underlying finding that the
government did not intentionally or recklessly make false
statements. United States v. Meek, 366 F.3d 705, 716 (9th
Cir. 2004).

The Christies are not entitled to a Franks hearing. The
district court found one false statement in the Sze Affidavits,
namely, the statement that the Ministry operated on a “cash
and carry basis.” But the court concluded, rightly, that this
error was not material. The district court found that the
government had not made any other false statements, let
alone knowingly or recklessly so. Nothing in the Christies’
briefing before us shows that the district court’s
determinations were clearly erroneous.

VI

For the foregoing reasons, the judgment of the district
court is

AFFIRMED.