USVI Public Records

Document text

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS/ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, PLAINTIFF, EDWARD M. FELIX, DEFENDANT. Appearances: EUGENE J. CONNOR, JR., ESQ. Department of Justice GERS Building, 2nd Floor St. Thomas, VI 00802 For Plaintiff ROBERT LEYCOCK, ESQ, 5070 Norre Gade St. Thomas, VI 00804 For Defendant CASE NO. ST-17-CR-203 MEMORANDUM OPINION WILLOCKS, Administrative Judge BEFORE THE COURT is the Defendant’s Motion to Dismiss, filed December 11, 2017. The People filed an Opposition on February 12, 2018. After oral argument heard on March 26, 2018, the Court took the matter under advisement. For the following reasons, the motion is denied. On June 30, 2017, the People charged the Defendant under Title 19, Section 604(a)(1) of the Virgin Islands Code with a single count of Possession with Intent to Distribute after the Defendant allegedly took possession ofa package containing 127.5 grams of marijuana at the St. Thomas seaplane terminal. In response, the Defendant filed this Motion to Dismiss, alleging that the application of the law to a member of the Rastafarian religion is a violation of the Religious Freedom Restoration Act (hereinafter “RFRA”). Background People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION In sum, the Defendant argues that the People’s prosecution of him for possession of marijuana with intent to distribute is a substantial burden on the free exercise of his religion, Rastafarianism. (Def.’s Mot. to Dismiss 4 12-14.) The Defendant seeks dismissal of this case because the People have not justified prosecution with a compelling governmental interest. (See id. at § 15-16.) The People counter that the Defendant cannot justify the distribution of a controlled substance as a religious practice in this case, and that the Defendant has made “no showing how the Virgin Islands statute . . . places a substantial burden” on him, “has not presented any argument or evidence” that possession with intent to distribute is a tenant of his religion, and only made “a bare assertion” that he identifies as a Rastafarian. (P1.’s Opp’n to Def’s Mot. 4-5.) The People’s argument is considered in more detail below. However, this Court finds it imperative to highlight that the Defendant is not required to make a showing that any particular conduct is recognized by Rastafarians at large or even by any other Rastafarian. See United States v. Seeger, 380 U.S. 163, 185 (stating, “[t]he validity of what [a person] believes cannot be questioned...these are inquiries foreclosed to Government’). The government and the courts may only question whether the Defendant’s belief is sincerely held. Jd. Discussion A. Whether the Religious Freedom Restoration Act applies to the Virgin Islands is unsettled. Congress enacted the RFRA in 1993. See generally 42 U.S.C. § 2000bb, et. seg. It prohibits the federal government and certain “covered entities,” including “each territory and possession of the United States,” from substantially burdening the free exercise of religion, even when the burden stems from a rule of general applicability. Jd §§ 2000bb-1—bb-2. The “[g]overnment may substantially burden a persons’ exercise of religion only if it demonstrates that application of the burden...1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” Jd. § 2000bb-1(b). The RFRA may be used as a defense in a judicial proceeding. Jd. § 2000bb-1(c). People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION The RFRA was enacted in direct response to the United States Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990). There, terminated employees were denied unemployment compensation on the basis of work-related misconduct when they were fired by a drug rehabilitation center for using peyote in a religious ceremony. Jd. at 874. The Court held that the respondents could not claim a violation of the First Amendment’s Free Exercise Clause because the law prohibiting the use of peyote was one of general applicability. See id. at 879 (stating that the Court has “consistently held that the right of free exercise 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 (or prescribes) conduct that his religion prescribes (or proscribes)’”). But after the RFRA was enacted, the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997) struck it down as applied to the States. In that case, the Supreme Court held that RFRA is an impermissible exercise of Congress’ power to enforce constitutional provisions because the law’s remedial effect—to correct infringement upon free exercise of religion—is so disproportionate to the substantive right of free exercise that the law’s purpose cannot be to simply prevent unconstitutional behavior. See id. at 532. In other words, the RFRA’s effect on state laws was too broad to be construed as a remedial measure for violations of free exercise, and instead could only be read as an attempt to redefine and expand the constitutional protection of free exercise. See id. (stating that RFRA seemed to “attempt a substantive change in constitutional protections”). Although the RFRA was decisively struck down as applied to states, U.S. territories are subject to the plenary power of Congress, Destin v. People, 64 V.I. 465, 472 (2016), and may therefore be treated differently than the States. See id. The RFRA specifically includes territories as “covered entities” prohibited from placing substantial burdens on individuals’ free exercise of religion. 42 U.S.C. § 2000b-2(1), (2). However, while Congress’ intent for the act to apply to territories would appear certain on the face of the law, the Court has found only two instances since City of Boerne People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION where the RFRA has been judicially declared to apply to a U.S. territory or possession. See Guam v. Guerrero, 290 F. 3d 1210 (9th Cir. 2002) (finding that the RFRA applies to Guam); Rasul v. Rumsfeld, 433 F. Supp. 2d 58, 65 (D.D.C. 2006) (finding that the RFRA applies to Guantanamo Bay because it is a location where “the United States exercises perhaps as much control as it possibly could short of ‘ultimate sovereignty’”). In neither case was issue of the RFRA’s scope heard by the Supreme Court,” and whether the RFRA applies to the Virgin Islands is therefore still unsettled. See, e.g., Bonelli v. Gov't of the V.I, 67 V.I. 714, n. 4 (2017) (“[T]he Supreme Court has not yet determined whether the RFRA remains operative with respect to the territorial possessions of the United States.”) (citing Cutter v. Wilkinson, 544 U.S. 709, n. 2 (wherein the Court stated that “RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. ..This Court, however, has not had an occasion to rule on the matter”) (citations omitted). Furthermore, “courts possess an obligation to avoid deciding constitutional issues needlessly.” Francis v. People, 57 V.1. 201, 216 (2012) (citing Christopher v. Harbury, 536 U.S. 403, 417 (2002)). At this time, it is unnecessary to decide whether the RFRA applies to the Virgin Islands because, despite the Defendant’s assertion otherwise, the act does not apply here. B. Under the compelling interest balancing test, Section 604(a)(1) of Title 19 of the Virgin Islands Code does not impose a substantial burden on the Defendant’s religious practice. The RFRA’s central purpose is to prevent a person’s religion from being “substantially burdened” by the government?. See 42 U.S.C. § 2000bb-1. While the act itself does not define “substantial burden,” it does specifically point to two cases, Sherbert v. Verner, 374 U.S. 398 (1963) * The Ninth Circuit’s decision in Guerrero was not appealed. See Guerrero, 290 F. 3d 1210. Rasul has a complex subsequent appellate history, but the RFRA claim against the government was ultimately dismissed because detainees at Guantanamo Bay are not “persons” protected by the statute. See Rasul v. Meyers, 563 F. 3d 527 (2009), cert. denied, 558 U.S. 1091 (2009). The Supreme Court denied certiorari. See id 3 As defined by the RFRA, “government” means a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity,” including territories. 42 U.S.C. § 2000bb- 2(1), (2). 4 People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION and Wisconsin v. Yoder, 406 U.S. 205 (1972), for instruction. See 42 U.S.C. § 2000bb (stating that one purpose of the act is “to restore the compelling interest test from Sherbert and Yoder.”). The analyses from these cases can be summed up in a two-part test. First is whether the public welfare is threatened by the conduct alleged to be burdened. In Sherbert, the Court stated that: the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for even when the action is in accord with one’s religious convictions, it is not totally free from legislative restrictions. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. Sherbert, 374 U.S. at 403 (citations, internal quotation marks, and brackets omitted). Therefore, a law regulating conduct that is substantially threatening to the public welfare cannot be a substantial burden on the free exercise of religion. In Sherbert and Yoder, the Court found the religious practices at issue did not threaten the public. See Sherbert, 374 U.S. 403 (“Plainly enough...conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation.”); Yoder, 406 U.S. 224 (“The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.”). The matter at hand is a sharp contrast from these cases. Here, the Defendant is charged with possession of a controlled substance with intent to distribute. The Virgin Islands Legislature has determined that distribution of controlled substances is a substantial threat to the public welfare. See 19 V.I.C. § 592. In fact, the Legislature has specifically stated that “the illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the people of the Virgin Islands.” Jd. People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION Accordingly, Section 604(a)(1) of Title 19 cannot impose a substantial burden on any religion, and the Defendant cannot use free exercise as a shield to prosecution because, were he to be convicted by the jury, it would be for conduct that constitutes a substantial risk to the public. Whether a substantial burden exists can also be examined from another point of view, not fully discussed by Sherbert and Yoder, but central to the present case. That is the question of whether the circumstances surrounding the Defendant’s RFRA claim is sincere. It is settled that “the ‘truth’ of a belief is not open to question, [but] there remains the significant question of whether it is ‘truly held.’” United States v. Seeger, 380 U.S. 163, 185. “It is, of course, a question of fact...”. Id. Evidence at the hearing indicated that the Defendant is a Rastafarian, and that marijuana has a central place in the Rastafarian religion. (Hr’g Tr. 27:20-29:16.). But the Defendant has not been charged with simple possession. Rather he is charged with possession with intent to distribute. Compare 19 V.LC. § 604(a) and 19 V.I.C. § 607. The Defendant might have been successful in defending against a charge of simple possession of marijuana since marijuana is important to Rastafarian religious practice.+ But there exists in the record no evidence establishing that the distribution of marijuana is a requirement of Rastafarianism.° Furthermore, the circumstances leading to the Defendant’s arrest were clearly unrelated to his religious beliefs. At the time of his arrest, the Defendant was an employee of the Superior Court of the Virgin Islands and allegedly used the Superior Court’s corporate account to have 127.5 grams of marijuana transported—without the knowledge of the Superior Court—from St. Croix to himself on St. Thomas. The Defendant received the drugs at about eleven-thirty in the morning during his shift. 4 The attorney for the People has also acknowledged that, “[i]f [Defendant] were, hypothetically, charged with simple possession...certainly the People would have a lot more on their hands to contend with...[I]f he were [sic] just sitting around his house smoking marijuana or he was even walking down the street with some marijuana, [that is] totally different.” (Hr’g Tr. 16:9-17:25.) > Compare Yoder, 406 U.S. at 235. In Yoder, the Supreme Court stated that the Amish parties had “convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others.” /d. 6 People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION At no point has the Defendant claimed that the marijuana came from a sacred space, that it was transported for a religious purpose, or that it was going to be distributed to the Rastafarian community. The facts as alleged simply do not suggest that the Defendant was engaged in behavior stemming from his religiosity. So, for the above reasons, this Court finds that prosecution under Section 604(a)(1) of Title 19 of the Virgin Islands Code for possession of a controlled substance with intent to distribute is not a substantial burden upon the Defendant’s free exercise of the Rastafarian religion. C. Under the compelling interest test, the People of the Virgin Islands have a compelling governmental interest and the enforcement of Section 604(a)(1) of Title 19 is the least restrictive means of furthering that interest. Even if the law against possession with intent to distribute could be found to cause a substantial burden on free exercise, the Defendant’s claim must still fail because the second part of the compelling interest test is to balance the government’s interest against the plaintiff's burdened practice. See Sherbert, 374 U.S. at 406; Yoder, 406 U.S. at 221. In Sherbert, having first found that the plaintiff's conduct was of a type not threatening to the public, the Supreme Court went on to apply the balancing component of the test. Sherbert, 374 U.S. at 406. The Court stated, “[i]t is basic that no showing of merely a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’” Jd. South Carolina’s articulated interest in potentially preventing unemployment fraud could not outweigh the plaintiff's First Amendment right. Jd. at 403. In Yoder, the Court applied the balancing test to compulsory education. Yoder, 406 U.S. at 221. “[W]e must searchingly examine the interests that the State seeks to promote...and the impediment to those objectives that would flow from recognizing” a religious exception. Jd. The Court determined that the Amish are entitled to an exception from the law requiring compulsory education because, even People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION though the education of citizens is a very compelling interest, there was a large amount of evidence indicating that an exception would ultimately do little to compromise the state’s objective. See id. (“Respondents’ experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.”). In the present case, however, the Virgin Islands Legislature has made known its interest in protecting the welfare and health of Virgin Islanders from controlled substances such as marijuana.® The protection of the general welfare is a “paramount interest” of the kind contemplated in Sherbert. 374 U.S. at 406. Also, allowance of an exception to the law would impede the government’s objective, especially since it would be too problematic for the government to ascertain who is a Rastafarian and whether they intend to distribute marijuana to members of their own faith or to others who would not fall under any religious exemption to the laws.’ This Court is therefore unmoved by the Defendant’s claim that prosecution violates his right to free exercise under the RFRA. Conclusion Even if the RFRA is applicable to the Virgin Islands, Section 604(a)(1) of Title 19 of the Virgin Islands Code does not impose a substantial burden upon the free exercise on the Defendant because it regulates conduct that poses a substantial threat to the public welfare. Further, there is insufficient © As to the Defendant’s argument that the People have not in fact alleged a compelling government interest in this matter, that issue is immaterial. As a result of the failure of the Defendant’s claim to pass the first prong of the compelling interest test, there is no need to address any short-comings in the People’s response to Defendant’s Motion to Dismiss. 7 In United States v. Lee, the Supreme Court found that a religious exception to payment of the Social Security tax cannot be made for the Amish because to do so be would be too complex, and that funds stemming from the Social Security Act could not be distinguished from general taxes in a “principled way.” United States v. Lee, 455 U.S. 252, 260. Likewise, in this case, the Virgin Islands government is unable to distinguish Rastafarians from any other member of society in some principled way. People v. Felix ST-17-CR-0000203 MEMORANDUM OPINION fall under any religious exemption to the laws.’ This Court is therefore unmoved by the Defendant’s claim that prosecution violates his right to free exercise under the RFRA. Conclusion Even if the RFRA is applicable to the Virgin Islands, Section 604(a)(1) of Title 19 of the Virgin Islands Code does not impose a substantial burden upon the free exercise on the Defendant because it regulates conduct that poses a substantial threat to the public welfare. Further, there is insufficient evidence in the record to support the Defendant’s claim that his religious practice is burdened as a matter of fact. Finally, though additional consideration of the Defendant’s claim is unnecessary in light of its failure to meet the first prong of the compelling interest test, the claim would fail regardless because there is a governmental interest so compelling that it justifies the burden placed upon the Defendant’s religious practice. For the reasons stated above, the Court will deny the Defendant’s Motion to Dismiss. An order consistent with this opinion follows. — DONE this_// day of September, 2018. Ad plgetib\ ATTEST: Estrella H. Ge ~ HAROLD W.L. WILLOCKS Clerk ofthe £6yit 47 4, Y J A inistrative Judge of the Superior Court Dated TIO 7 In United States v. Lee, the Supreme Court found that a religious exception to payment of the Social Security tax cannot be made for the Amish because to do so be would be too complex, and that funds stemming from the Social Security Act could not be distinguished from general taxes in a “principled way.” United States v. Lee, 455 U.S. 252, 260. Likewise, in this case, the Virgin Islands government is unable to distinguish Rastafarians from any other member of society in some principled way.