Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 1 of 22 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, Plaintiff, 10 11 v. 12 Natalie Renee Hoffman, et al., 13 No. CR-19-00693-001-TUC-RM ORDER Defendants. 14 15 I. INTRODUCTION 16 Defendants Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila 17 Orozco-McCormick (collectively “Defendants”) appeal from convictions for violations of 18 the regulations governing the Cabeza Prieta National Wildlife Refuge (“the CPNWR” or 19 “the Refuge”). The violations were committed in the course of leaving supplies of food and 20 water in an area of desert wilderness where people frequently die of dehydration and 21 exposure. Defendants, who are volunteers with a charitable organization affiliated with the 22 Unitarian Universalist Church, admit the factual allegations made by the Government. 23 They entered the Refuge without a permit, drove on a restricted-access road, and left food 24 and water for those in need to find. Defendants argue that those actions, taken with the 25 avowed goal of mitigating death and suffering, were sincere exercises of religion and that 26 their prosecution is barred by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb 27 et seq. (“RFRA” or “the Act”). The Court finds that Defendants demonstrated that their 28 prosecution for this conduct substantially burdens their exercise of sincerely held religious Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 2 of 22 1 beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the 2 least restrictive means of furthering any compelling governmental interest. 3 II. FACTUAL BACKGROUND 4 On August 13, 2017, Defendants entered the CPNWR, drove down a restricted- 5 access road, and left bottles of water and cans of food at several pre-selected locations 6 along foot trails used by people entering the United States unlawfully. Fish and Wildlife 7 (“FWS”) Officer Michael West encountered Defendants, who admitted that they did not 8 have a permit to be on the CPNWR. (Reporter’s Transcript of Day 1 of Trial (“RT1”), Doc. 9 170 at 46:20-25, 48:15-18, D. Ariz. Case No. 4:17-mj-00339-BPV.) Officer West directed 10 Defendants to exit the Refuge, which they did. (Id. at 51:23-25.) No citations or notices of 11 violation were issued at that time. (Id. at 82:15-18.) 12 Defendants are volunteers with “No More Deaths/No Más Muertes,” a “faith-based 13 organization” and “ministry of the Unitarian Universalist Church of Tucson.” (RT1 at 14 201:18-19.) A founding volunteer of that organization testified that No More Deaths is a 15 “humanitarian aid organization” that was founded in 1999 “to provide food and water and 16 medical care in the desert.” (Id. at 199:18-20.) At that time, increased immigration 17 enforcement in Texas and California began to “funnel the migration pattern right through 18 the Tucson sector of the border,” leading to large numbers of unauthorized migrants dying 19 while attempting to cross the remote desert wilderness of southern Arizona on foot. (Id. at 20 199:20-25.) According to the Pima County Medical Examiner, 2,816 sets of 21 “undocumented border crosser remains” were recovered in Arizona between the years 2000 22 and 2017.1 (Trial Exhibit (“Tr. Ex.”) 226 at 30). No More Deaths began tracking those 23 deaths and leaving jugs of water in areas where human remains had been recovered. (Id. at 24 200:2-10.) 25 The CPNWR, which is in southwestern Arizona, shares a 56-mile border with 26 Sonora, Mexico. (RT1 at 123:12-13.) Visitors are required to obtain permits and sign a 27 1 28 This figure reflects only the number of recovered sets of human remains. Testimony introduced at trial suggested that remains are recovered for as few as one in ten migrants who die in this unpopulated area. (RT1 at 167:3-21; RT2 at 79:16-21.) -2- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 3 of 22 1 hold harmless agreement to enter the Refuge. (Id. at 28:17-19.) The hold harmless 2 agreement describes the Refuge as “one of the most extreme environments in North 3 America,” and warns that the area “contains no sources of safe drinking water.” (Tr. Ex. 4 2.) The CPNWR contains numerous trails used by migrants, and, according to the Pima 5 County Medical Examiner, 32 sets of human remains were recovered from the CPNWR in 6 2017 alone. (Tr. Ex. 133.) Those deaths are despite the presence of “rescue beacons” 7 installed and operated by the United States Border Patrol. (RT1 at 39:15-23.) The month 8 before Defendants entered the CPNWR without a permit, the permit application was 9 amended to specifically prohibit the leaving of “water bottles, water containers, food, food 10 items, food containers, blankets, clothing, footwear, [and] medical supplies” on the 11 CPNWR. (RT1 at 74:1-17; Tr. Ex. 2 ¶13.) 12 III. PROCEDURAL BACKGROUND 13 On December 6, 2017, Defendants were charged by criminal information with 14 entering the CPNWR without a permit in violation of 50 C.F.R. § 26.22(b) and abandoning 15 property in violation of 50 C.F.R. § 27.93. (Doc. 1.)2 Defendant Hoffman was also charged 16 with driving in a wilderness area in violation of 50 C.F.R. § 35.5. (Id.) 17 Defendants filed motions to dismiss based on international law (Doc 72), the 18 Administrative Procedures Act (Doc. 70), entrapment by estoppel (Doc. 70), selective 19 enforcement (Doc. 83), and RFRA (Doc 84). Magistrate Judge Bruce G. MacDonald set 20 these motions for a hearing (Doc. 79), but then vacated the hearing and indicated that 21 rulings on the pending motions would issue without argument (Doc. 122). He then recused 22 himself and reassigned the case. (Doc. 132.) His replacement, Magistrate Judge Bernardo 23 P. Velasco, denied all pending motions to dismiss and motions to compel disclosure, but 24 granted Defendants leave to present their RFRA and entrapment by estoppel arguments as 25 defenses at trial. (Doc. 136.) 26 27 28 2 Unless otherwise noted, docket citations refer to the CM/ECF docket of the underlying proceeding, Case No. 4:17-mj-00339-BPV in the United States District Court for the District of Arizona. All record citations refer to the page numbers generated by the Court’s electronic filing system. -3- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 4 of 22 1 After a three-day bench trial, Defendants were convicted of all counts. (Docs. 158- 2 161.) The three-page verdict did not analyze Defendants’ RFRA defense. (Doc. 166.) 3 Defendants were ordered to pay fines and sentenced to terms of probation, during which 4 they are banned from entering the CPNWR. (Docs. 183, 184, 185, 186.) 5 Defendants now appeal their judgments of conviction (Docs. 183-186) and “all prior 6 orders encompassed in those judgments” to the United States District Court for the District 7 of Arizona. (Doc. 189.) Because the Court reverses the Defendants’ convictions based on 8 their RFRA defense, the Court does not address the prior orders encompassed in 9 Defendants’ judgments of conviction, nor the other affirmative defenses raised by 10 Defendants. 11 IV. STANDARD OF REVIEW 12 The parties disagree as to the appropriate standard of review. Defendants argue that 13 the denial of RFRA relief is reviewed de novo. (Defendants’ Opening Brief (“Def. Op. 14 Br.”), Doc. 8 at 14, D. Ariz. Case No. 4:19-cr-00693-RM; Defendants’ Reply Brief (“Def. 15 Rep. Br.”), Doc. 20 at 9, D. Ariz. Case No. 4:19-cr-00693-RM.) Defendants recognize that 16 factual findings are reviewed on appeal for clear error, but they argue that clear-error 17 review is inapplicable here because the magistrate judge’s verdict did not make specific 18 factual findings regarding Defendants’ RFRA defense.3 (Def. Rep. Br. at 9 (citing United 19 States v. Prieto-Villa, 910 F.2d 601, 605 (9th Cir. 1990).) The Government similarly 20 recognizes that, following a bench trial resulting in a criminal conviction, conclusions of 21 law are reviewed de novo and findings of fact are reviewed for clear error. (Government’s 22 Response Brief (“Gov. Br.”), Doc. 16 at 7, D. Ariz. Case No. 4:19-cr-00693-RM.) 23 However, the Government argues that this Court should apply the highly deferential 24 Magistrate Judge Velasco’s verdict did not make factual findings or conclusions of law regarding Defendants’ RFRA defense. The verdict instead characterized Defendant’s RFRA defense as “a modified Antigone defense.” (Doc. 166.) An Amicus Brief filed in this matter by professors of religious liberty explains that Antigone is a Greek tragedy written by Sophocles that explores “a tension between the King’s law – a formal edict that prohibited the burial of Antigone’s brother Polynices – and the unwritten law of the Gods that mandated a proper burial so as to fulfill a duty to honor and mourn the dead.” (Amicus Brief of Professors of Religious Liberty, Doc. 10 at 6, D. Ariz. Case No. 4:19-cr-00693RM.) 3 25 26 27 28 -4- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 5 of 22 1 sufficiency-of-evidence standard and ask if, “‘viewing the evidence in the light most 2 favorable to the prosecution, any rational trier of fact could have found the essential 3 elements of the crime beyond a reasonable doubt.’” (Id. (quoting Jackson v. Virginia, 443 4 U.S. 307, 319 (1979).) 4 5 A person convicted before a magistrate judge has the right to appeal to the United 6 States District Court. 18 U.S.C. § 3402. “The scope of the appeal is the same as in an appeal 7 to the court of appeals from a judgment entered by a district judge.” Fed. R. Crim. P. 8 58(g)(2)(D). An appellate court reviews a trial court’s “conclusions of law following a 9 bench trial de novo and its findings of fact for clear error.” Navajo Nation v. U.S. Forest 10 Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (en banc) (citing Lentini v. California Ctr. for 11 the Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004)). The Ninth Circuit has indicated 12 that “[w]hether application of a federal law violates RFRA is a question of statutory 13 construction for the court” that is reviewed de novo, United States v. Vasquez-Ramos, 531 14 F.3d 987, 990 (9th Cir. 2008), although “any findings of ‘historical fact’ underlying” the 15 trial court’s conclusions are reviewed for clear error, Christie, 825 F.3d at 1056. 16 V. DISCUSSION 17 RFRA provides “very broad protection for religious liberty” by exempting religious 18 believers from laws that substantially burden the exercise of their religious beliefs. Burwell 19 v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). The Government must provide such 20 an exemption unless the application of the law to the believer is the “least restrictive 21 means” of furthering a “compelling government interest.” 42 U.S.C. § 2000bb-1(b). A 22 RFRA claim may be brought as an affirmative defense to criminal charges. United States 23 v. Christie, 825 F.3d 1048, 1065 (9th Cir. 2016). 24 25 26 27 28 4 The Court is not convinced that the sufficiency-of-evidence standard proposed by the Government is applicable here, as Defendants do not challenge whether the Government established the elements of the regulatory violations for which they were convicted but, instead, challenge Magistrate Judge Velasco’s rejection of their RFRA defense. To succeed on their RFRA defense, Defendants bore the initial burden of demonstrating that their prosecution substantially burdened their sincere religious exercise. As Defendants bore that burden, the Court cannot evaluate the “sufficiency” of the Government’s evidence. -5- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 6 of 22 1 The Act was passed after the Supreme Court held—reversing prior case law—that 2 the Free Exercise Clause of the First Amendment “does not relieve an individual of the 3 obligation to comply with a valid and neutral law of general applicability.” See 4 Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (internal quotation marks omitted). 5 Congress enacted RFRA in response, seeking to “restore” religious exemptions from 6 nondiscriminatory “rule[s] of general applicability.” § 2000bb-1(a). RFRA therefore 7 reflected Congress’ judgment that “laws [that are] ‘neutral’ toward religion may burden 8 religious exercise as surely as laws intended to interfere with religious exercise.” § 9 2000bb(a)(2). 10 To succeed on a RFRA defense, a claimant must first make two showings: (1) 11 governmental action burdens a sincere “exercise of religion” and (2) the burden is 12 “substantial.” Navajo Nation, 535 F.3d at 1068. A RFRA claim that does not establish these 13 two elements fails. Id. If a claimant does demonstrate a substantial burden on her sincere 14 exercise of religious belief, a court must find a RFRA violation unless the Government 15 demonstrates that “application of the burden to the person” both (1) “furthers a compelling 16 governmental interest” and (2) “is the least restrictive means of furthering that compelling 17 government interest.” § 2000bb-1(b). 18 A. Sincere “Exercise of Religion” under RFRA 19 To prevail on their RFRA defense, Defendants must first demonstrate that they are 20 being prosecuted for actions that constitute a sincere “exercise of religion.” 42 U.S.C. § 21 2000bb. Although Defendants do not claim to be members of mainstream or traditional 22 congregations, they do argue that their volunteer activities with No More Deaths are 23 exercises of sincerely held religious and spiritual beliefs. 24 The Supreme Court has long recognized that “a determination of what is a 25 ‘religious’ belief or practice” is “a most delicate question[.]” Wisconsin v. Yoder, 406 U.S. 26 205, 215 (1972). The Court’s analysis cannot “turn upon a judicial perception of the 27 particular belief or practice in question.” Thomas v. Review Bd. of Indiana Employment 28 Sec. Div., 450 U.S. 707, 714 (1981). Beliefs do not need to be “acceptable, logical, -6- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 7 of 22 1 consistent, or comprehensible to others” to constitute religious beliefs. Id. “[R]eligious 2 experiences which are as real as life to some may be incomprehensible to others.” United 3 States v. Ballard, 322 U.S. 78, 86-87 (1944). 4 In determining whether a set of beliefs should be protected as “religious,” the Ninth 5 Circuit has analyzed “whether the beliefs professed … are sincerely held and whether they 6 are, in [a claimant’s] own scheme of things, religious.” United States v. Ward, 989 F.2d 7 1015, 1018 (9th Cir. 1992) (quoting United States v. Seeger, 380 U.S. 163, 174 (1965)). 8 “‘Religious’ beliefs, then, are those that stem from a person’s ‘moral, ethical, or religious 9 beliefs about what is right and wrong’ and are ‘held with the strength of traditional religious 10 convictions.’” Ward, 989 F.2d at 1018 (quoting Welsh v. United States, 398 U.S. 333, 340 11 (1970)). 12 In Ward, a criminal defendant refused to testify in his defense because he objected 13 on purportedly religious grounds to swearing to tell the “truth.” 989 F.2d at 1017. As the 14 court explained, the claimant in that case believed that “honesty is superior to truth” and 15 requested an alternative oath that replaced the word “truth” with “fully integrated honesty.” 16 Id. The contours of this set of beliefs were not entirely clear, and the court “[did] not 17 attempt to explain” the basis of the claimant’s views. Id. The Ninth Circuit nonetheless 18 reversed his conviction, explaining that although the claimant did “not describe his beliefs 19 in terms ordinarily used in discussion of theology or cosmology . . . he clearly attempt[ed] 20 to express a moral or ethical sense of right and wrong.” Id. at 1018. 21 The Ninth Circuit’s approach has been called “a generous functional5 (and even 22 idiosyncratic)” approach to determining religiosity. Grove v. Mead Sch. Dist. No. 354, 753 23 F.2d 1528, 1537 (9th Cir. 1985) (Canby, J., concurring). This standard draws heavily from 24 United States v. Seeger, in which the Supreme Court considered claims brought by 25 individuals who requested draft exemptions based on spiritual, ethical, and philosophical 26 It is a “functional” approach because instead of relying on a general definition of religion, it looks to whether a set of beliefs serves the same function as traditional religion in an individual’s life. See Ward, 989 F.2d at 1018. 5 27 28 -7- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 8 of 22 1 objections to war. 380 U.S. at 164. The Seeger Court analyzed whether the claimants’ 2 beliefs “occup[ied] the same place in the life of the objector as an orthodox belief in God 3 holds in the life of one clearly qualified for the exception[.]” Id. Applying this test, the 4 Court found conscientious-objector status warranted for, among others, a claimant with a 5 “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in 6 a purely ethical creed . . . without belief in God, except in the remotest sense.” Id. at 166 7 (internal quotation marks omitted). 8 The Government urges this Court to instead apply a multifactor analysis to 9 determine whether Defendants’ beliefs are “religious.” (Gov. Br. 8-9.) The Ninth Circuit, 10 however, has not adopted this approach to determine what beliefs are worthy of protection 11 under the Free Exercise Clause or RFRA. The Government cites to a case declining to 12 adopt this approach, United States v. Lepp, No. CR 04-00317 MHP, 2008 WL 3843283, at 13 *4 (N.D. Cal. Aug. 14, 2008), aff’d, 446 F. App’x 44 (9th Cir. 2011). The Court in Lepp 14 noted the five factors laid out in United States v. Meyers, 95 F.3d 1475, 1475 (10th Cir. 15 1996), but ultimately “declin[ed] any invitation to define religion” and instead cited to the 16 dissent in Meyers for the proposition that “[t]he ability to define religion is the power to 17 deny freedom of religion.” Lepp, 2008 WL 3843283, at *4 (citing Meyers, 95 F.3d at 1489) 18 (Brorby, J., dissenting)). 19 The Court finds that the proper standard to apply here is whether the beliefs 20 professed are sincerely held and whether they are, in Defendants’ own scheme of things, 21 religious. See Ward, 989 F.2d at 1018. Defendants here are volunteers with an organization, 22 No More Deaths, which is a “ministry” of the Unitarian Universalist Church of Tucson and 23 a faith-based organization that was founded by religious leaders. (RT1 at 201:11-21.) The 24 body camera footage of the FWS Officer who encountered the Defendants on the CPNWR 25 shows that the Defendants immediately identified themselves as “from the Church in 26 Tucson.” (Tr. Ex. 40 at 1:36-1:42.) The truck Defendants were driving was registered to 27 the Unitarian Universalist Church. (RT1 at 82:3-4.) 28 Reverend John Fife, a retired Presbyterian minister and “founding volunteer” of No -8- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 9 of 22 1 More Deaths, testified that “the life of faith is not simply a matter of belief or creed,” but 2 is fundamentally “a matter of what you do in relationship to those who are in most need.” 3 (RT1 at 203:2-8.) He explained that this belief flows, in part, from the New Testament 4 parable that describes Jesus’ teaching at the Last Judgment that, “I was hungry, I was 5 thirsty, I was naked, I was in prison, I was an alien, and as you do it to least of these, my 6 brothers and sisters, you do it to me.” (Id. at 202:19-25—203:1.) Volunteers therefore 7 exercise their “faith out there in the desert through No More Deaths” by providing 8 “humanitarian aid directly where most of the death [is] occurring in the desert.” (Id. at 9 201:21-25—202:3.) The “faith basis” of No More Deaths and “the spirituality and the 10 spiritual principles that have founded [that] organization and formed that community” is 11 made “very clear” in No More Deaths’ volunteer training. (Id. at 204:12-19.) 12 Defendant Holcomb testified that she was familiar with Reverend Fife’s beliefs and 13 largely subscribed to those beliefs. (Reporter’s Transcript of Day 2 of Trial (“RT2”), Doc. 14 171 at 149:1-7, D. Ariz. Case No. 4:17-mj-00339-BPV.) Holcomb testified that although 15 sometimes speaking about those beliefs in a different way, she “share[d] the belief that 16 there is . . . for me, I will say, like a deep spiritual need and a calling to do work based on 17 what I believe in the world.” (Id. at 149:3-7.) She felt “this really spiritual . . . tie to 18 [immigrants crossing the border]” that provoked a “kind of intense feeling” when providing 19 humanitarian aid, “especially when you have found things that people who are migrating 20 have left . . . You can feel their presence . . .” (Id. at 172:11-17.) She described the ritualistic 21 taking of moments of silence in the course of No More Deaths’ humanitarian aid work, and 22 a “personal altar” that she had constructed at her home, which included “a ring of water 23 bottle[s] that I picked up in the desert.” (Id. at 173:3-9, 20-22.) 24 Defendant Huse explained that she “grew up going to church” and that she 25 internalized from that experience values of “love, compassion, and the sanctity of human 26 life.” (Reporter’s Transcript of Day 3 of Trial (“RT3”), Doc. 172 at 96:11-13, 97:1-5, D. 27 Ariz. Case No. 4:17-mj-00339-BPV.) She “agree[d] with a lot of John Fife’s beliefs” and 28 had attended services at various Unitarian Universalist churches in multiple states. (Id. at -9- Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 10 of 22 1 97:4-8.) Defendant Huse began to volunteer with No More Deaths because of her belief in 2 the “sanctity of human life.” (Id. at 96:7-13.) She “felt compelled to be there” and “do [her] 3 part as a fellow human being.” (Id. at 97:12-14.) When volunteering with No More Deaths, 4 she observed a spiritual practice of taking moments of silence “to be present in the moment 5 and think of those who are suffering and just put some love out for them . . .” (Id. at 95:18- 6 20.) 7 Defendant Orozco-McCormick, whose father was Catholic, was raised with a belief 8 “in the sanctity of life and of death.” (Id. at 14:11-14.) She considered No More Deaths’ 9 humanitarian aid activities to be “sacred,” because volunteers hike in areas where other 10 humans are facing the possibility of death. (Id. at 19:6-8.) “[I]t’s very different to be 11 standing on that same ground [where people were dying], and it’s to be revered. It’s to be 12 respected.” (Id. at 19:17-20.) Defendant Orozco-McCormick felt compelled to volunteer 13 because of her belief that “everybody [is] connected” and that “water is life.” (Id. at 15:14- 14 16.) She also described “a sort” of prayer where volunteers would observe “moments of 15 silence for people that have crossed or are currently crossing the desert.” (Id. at 16:12-16.) 16 Finally, Defendant Natalie Hoffman testified that she believes that “all life is 17 sacred” because “all life is connected to the earth.” (Id. at 53:20-25.) Although she didn’t 18 “consider [herself] a part of any specific congregation” or of “traditional organized 19 religion,” she nonetheless had “a spiritual calling to help other people” and mostly agreed 20 with the views as articulated by Reverend Fife. (Id. 55:10-17.) She “felt a spiritual 21 connection” to the humanitarian aid activities because “life is sacred, including human 22 life.” (Id. at 54:17-25.) She testified to the ritualistic use of moments of silence and 23 explained that she had a practice of draping Rosary Beads over water bottles while 24 volunteering. (Id. at 55:20-23, 60:11-14.) 25 The depth, importance, and centrality of these beliefs caused Defendants to 26 restructure their lives to engage in this volunteer work. Hoffman testified that she moved 27 from Virginia to Tucson, Arizona, to volunteer with No More Deaths (RT3 at 54:3-19); 28 Orozco-McCormick at one point did the same although she no longer lives in Tucson (RT3 - 10 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 11 of 22 1 at 15:4-7); and Holcomb and Huse have made time to repeatedly travel to Arizona to 2 volunteer (RT2 at 147-48; RT3 at 84). 3 Importantly, the fact that Defendants do not profess belief in any particular 4 established religion does not bar their RFRA claim. See Frazee v. Illinois Dept. of 5 Employment Sec., 489 U.S. 829, 834 (1989) (“[W]e reject the notion that to claim the 6 protection of the Free Exercise Clause, one must be responding to the commands of a 7 particular religious organization.”); Love v. Reed, 216 F.3d 682, 688–89 (8th Cir. 2000) 8 (“To suggest that Love’s belief-system falls short of being a religion would be to call into 9 question the religious standing of all those who infuse Judaism, Christianity, or other 10 ‘traditional’ religions with personal interpretation and introspection.”); Dettmer v. Landon, 11 799 F.2d 929, 932 (4th Cir. 1986) (finding that Wicca could be a “religion” despite being 12 a “conglomeration” of “various aspects of the occult, such as faith healing, self-hypnosis, 13 tarot card reading, and spell casting”). 14 Nor is the Government’s argument that Defendants failed to establish their 15 religiosity because they “described their beliefs in the broadest terms” persuasive. (Gov. 16 Br. at 9.) Defendants do not claim to be practiced theologians, and they need not be in order 17 to claim a religious exemption. As the Supreme Court has admonished, this Court may not 18 “undertake to dissect religious beliefs” merely because those “beliefs are not articulated 19 with the clarity and precision that a more sophisticated person might employ.” Thomas, 20 450 U.S. at 715. 21 Defendants’ religiosity is also apparent from their choice to associate themselves 22 with the Unitarian Universalist Church and to adopt elements of Christian faith. In 23 Callahan v. Woods, the Ninth Circuit found nontraditional beliefs to be “clearly” religious 24 where they were “closely tied to a theistic belief.” 658 F.2d 679, 685 (9th Cir. 1981). In 25 that case, the claimant sought an exemption from a requirement that he obtain a social 26 security number for his daughter, as he believed personal identification numbers were the 27 “mark of the beast” and tools of the Antichrist. Id. at 682. Because of their relationship 28 with Christianity, the Ninth Circuit found these beliefs religious rather than philosophical. - 11 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 12 of 22 1 Id at 681. 2 Here, as in Callahan¸ Defendants hold views which, although perhaps idiosyncratic, 3 are “closely tied” to traditional Christian beliefs. Id at 685. Defendants Holcomb and 4 Hoffman testified that they substantially adhered to the views of the Presbyterian minister 5 John Fife. (RT2 at 149:1-2; RT3 at 55:10-13.) Defendant Orozco-McCormick traced her 6 beliefs in large part to her father’s Catholicism. (RT3 at 12:14-18.) Defendant Huse traced 7 her views to her experiences going to church while growing up. (RT3 at 97:2-5.) Moreover, 8 Defendants chose to associate themselves with an organization considered a “ministry” of 9 the Unitarian Universalist Church, and they identified themselves affirmatively as “from 10 the Church” upon encountering the FWS Officer who observed them leaving food and 11 water on the CPNWR. (Tr. Ex. 40 at 1:36-1:42.) Defendants also chose to use distinctly 12 Christian symbolism, including the drawing of crucifixes on bottles of water (RT3 at 13 20:16); the distribution of rosary beads (id. at 60:11-14); the writing of “vaya con Dios,” 14 (“go with God,”) on bottles of water (RT2 at 171:17-22); and the construction of altars (id. 15 at 173:15-22), all of which show that Defendants’ beliefs are “closely tied” to traditional 16 Christian beliefs. Callahan, 658 F.2d at 685. 17 The Court concludes that Defendants’ beliefs, as described, are religious. The Court 18 must now consider if Defendants’ sincerely hold those beliefs. An individual’s claim that 19 her belief “is an essential part of a religious faith” is entitled to “great weight” in the 20 “intensely personal area” of religious liberty. Seeger, 380 U.S. at 184. The Court’s inquiry 21 into sincerity is therefore “limited to asking whether the claimant is (in essence) seeking to 22 perpetrate a fraud on the court[.]” Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014). 23 The Government’s sole argument as to insincerity is that Defendants have merely 24 “recited” religious beliefs “for the purpose of draping religious garb over their political 25 activity.” (Gov’t Br. at 10.) However, the Government’s bright-line distinction between 26 “political” and “religious” motivations fails as a matter of law. It is well established that 27 sincere religious beliefs are no less deserving of protection merely because they may 28 overlap with political or other secular beliefs. See, e.g., Hobby Lobby, 573 U.S. at 688-736 - 12 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 13 of 22 1 (finding RFRA violation in context of politically controversial contraception mandate). 2 The Ninth Circuit has explained that religious beliefs are deserving of protection even when 3 they overlap with secular beliefs: 4 7 [The] coincidence of religious and secular claims in no way extinguishes the weight appropriately accorded the religious one. In Yoder, the Supreme Court warned that a belief that is based on ‘purely secular considerations’ merits no protection under the free exercise clause. It did not limit the scope of the First Amendment to ‘purely religious’ claims; the area of overlap is presumably protected. 8 Callahan, 658 F.2d at 684 (internal citation omitted). The same is true here. While the 9 Government points to evidence that could imply that some Defendants may have secular, 10 philosophical, or political beliefs that overlap with their spiritual commitments, the 11 Government points to no evidence that Defendants are informed by “purely secular 12 considerations.” Id. To the extent that Defendants do hold complementary religious and 13 secular motivations and beliefs, the “area of overlap is presumably protected.” Id. 5 6 14 The record lacks the type of evidence that has caused other courts to doubt a 15 claimant’s sincerity. For example, the Ninth Circuit expressed skepticism as to a RFRA 16 claimant’s sincerity in the case of the “Hawaii Cannabis Ministry,” a profit-making 17 enterprise whose website “prominently displayed an assurance that members” would 18 escape “conviction of marijuana charges . . . as soon as you sign up.” See Christie, 824 at 19 1051. The Ninth Circuit similarly expressed “reservations” about the sincerity of a RFRA 20 claimant who failed to explain why his purported religious beliefs prohibited the drawing 21 of blood for a legally mandated DNA test and yet permitted his tattoos and intravenous 22 drug usage. United States v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007). Another court 23 expressed skepticism where a criminal defendant allegedly told co-conspirators that he 24 would take sole responsibility for a drug-trafficking conspiracy “so that [he] could ‘try out’ 25 his religious freedom defense.” Meyers, 95 F.3d at 1479. Unlike in those cases, there is no 26 reason here to suspect that Defendants are “seeking to perpetrate a fraud on the court[.]” 27 Yellowbear, 741 F.3d at 54. 28 Additionally, the nature of Defendants’ conduct itself suggests sincerity. - 13 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 14 of 22 1 Defendants were convicted for activities that included hiking food and water into a rugged, 2 unforgiving wilderness during Southern Arizona’s extreme August heat. The temperature 3 at the time of the Defendants’ conduct was over 100 degrees Fahrenheit.6 As one Defendant 4 testified, providing aid in this environment was “incredibly straining on the body” because 5 “at that temperature . . . you’re dehydrated just by being there” and so “your brain is kind 6 of fuzzy” and it is “hard to think clearly.” (RT2 192:11-20.) As another described the heat: 7 “I mean, it’s exhausting. It’s heavy. Like, it feels like . . . a blanket. There’s nowhere to . . 8 . hide from the sun.” (RT3 at 17:9-11). As another put it: “[H]iking around in 110 degrees 9 is not what I want to be doing with my time, but I do it because I feel the need to and 10 obligated to be there and do my part.” (RT1 at 96:17-21.) 11 Defendants’ willingness to endure hardship for their beliefs is analogous to the 12 defendant’s actions in Ward, 989 F.2d at 1019. In that case, the Ninth Circuit found that a 13 religious liberty claimant who declined to testify in his own defense because he purportedly 14 had a religious objection to taking an oath of honesty was sincere in his religious beliefs. 15 Id. The Court explained that the claimant’s choice not to testify in his defense, 16 notwithstanding his professed innocence, suggested “the sincerity of true religious 17 conviction.” Id. As in Ward, Defendants’ willingness to suffer for their beliefs likewise 18 suggests such sincerity. 19 The Government has not identified any evidence in the record that would support a 20 conclusion that Defendants are “patently devoid of religious sincerity[.]” Callahan, 658 21 F.2d at 683 (internal quotation marks omitted). The Court concludes that Defendants’ 22 beliefs are sincerely held.7 23 .... 24 6 25 26 27 28 There was a dispute at trial whether the temperature at the time was 102 degrees or 110 degrees. (Compare Tr. Ex. 9 with Tr. Ex. 14.) 7 Consideration of sincerity, which is a question of fact, should include consideration of Defendants’ “credibility and demeanor” while testifying. United States. v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007). Magistrate Judge Velasco heard testimony from each Defendant as to her beliefs and did not express any reservations about Defendants’ sincerity. Because the Court concludes that, on this record, it would find clear error even if Judge Velasco had made an adverse credibility finding and found Defendants insincere, the Court need not remand for additional factual findings. - 14 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 15 of 22 1 B. Substantial Burden 2 To claim an exemption under RFRA, Defendants must demonstrate that 3 enforcement of the CPNWR regulations “substantially burden[s]” the exercise of their 4 religious beliefs. Navajo Nation, 535 F.3d at 1068. A substantial burden exists “when 5 individuals are forced to choose between following the tenets of their religion and receiving 6 a governmental benefit” or when a believer is “coerced to act contrary to their religious 7 beliefs by the threat of civil or criminal sanctions.” Id. at 1070. The substantial burden 8 inquiry must not stray into a judgment as to whether a claimant’s beliefs are reasonable. 9 See e.g., Hobby Lobby, 573 U.S. at 724 (explaining that “whether the religious belief 10 asserted in a RFRA case is reasonable” is a “very different question that the federal courts 11 have no business addressing”); Smith, 494 U.S. at 887 (“Repeatedly and in many different 12 contexts, we have warned that courts must not presume to determine . . . the plausibility of 13 a religious claim”). 14 Here, enforcement of these regulations against Defendants threatens to “coerce” 15 them, via “criminal sanctions,” into abandoning conduct that is an exercise of religion. 16 Navajo Nation, 535 F.3d at 1070. The prosecution of Defendants prevents them “from 17 participating in an activity motivated by sincerely held religious beliefs.” Yellowbear, 741 18 F.3d at 55. The prosecution of Defendants therefore substantially burdens their religious 19 exercise by placing upon them “considerable pressure to abandon the religious exercise at 20 issue.” Id. 21 The Government argues that Defendants cannot demonstrate a substantial burden 22 on their religious exercise because “their only evidence as to substantial burden is that they 23 were required, like all other members of the general public, to comply with the regulations 24 governing the CPNWR.” (Gov. Br. at 11.) Those regulations are for “all members of the 25 public, not just the defendants.” (Id.) This argument ignores the central purpose of RFRA, 26 which is to prevent the Government from substantially burdening “a person’s exercise of 27 religion even if the burden results from a rule of general applicability[.]” § 2000bb-1(a). 28 RFRA exists precisely to provide, where appropriate, exemptions from “rules that apply to - 15 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 16 of 22 1 all members of the public.” 2 The Government next argues that “the government may take actions on its own land 3 that will virtually destroy an individual’s ability to practice their own religion.” (Gov. Br. 4 at 11 (internal quotation and citation omitted).) In support of this proposition, the 5 Government cites to Navajo Nation. 535 F.3d at 1072. However, the Navajo Nation court 6 performed a thorough substantial burden analysis on the claims in that case, determining 7 that a negative effect on the claimants’ “subjective, emotional religious experiences” was 8 insufficient to demonstrate a substantial burden in the absence of evidence that claimants 9 would lose a governmental benefit or face criminal or civil sanctions for practicing their 10 religious beliefs. Id. at 1070. Here, in contrast, Defendants face criminal sanctions for 11 exercising their religious beliefs, and so Navajo Nation is inapposite. Id. 12 The Government also argues that Defendants have not established that their 13 religious beliefs “required” them “to enter the CPNWR without the proper permits, drive 14 on a restricted administrative road, or abandon personal property in violation of the 15 regulations governing CPNWR.” (Gov. Br. at 11.) Defendants, the Government argues, 16 had “other locations available for them to place their cache of supplies,” outside of the 17 CPNWR. (Id.) Since Defendants did not “need” to enter the CPNWR, the Government 18 argues, enforcement of the regulations could not cause a “substantial burden.” (Id.) 19 However, Defendants, do not need to show that their beliefs “required” them to 20 conduct their religiously motivated activities on the CPNWR in order to succeed on their 21 RFRA claim. (Id.) As amended, RFRA protects “any exercise of religion, whether or not 22 compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A) (emphasis 23 added). “[A] burden can be ‘substantial’ even if it does not compel or order the claimant to 24 betray a sincerely held belief[.]” Yellowbear, 741 F.3d at 55. Accordingly, Defendants need 25 not establish that their beliefs “required” them to enter the CPNWR. Rather, Defendants 26 must only show that enforcement of the regulations against them causes them 27 “considerable pressure” to abandon any exercise of religion. Id. 28 Nonetheless, Defendants did show that their conduct was required by their spiritual - 16 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 17 of 22 1 beliefs. Defendants claim that their religious and spiritual commitments led them to 2 volunteer with No More Deaths, the goal of which is to “try and save as many lives as 3 [possible]” by providing humanitarian aid “where most of the death [is] occurring in the 4 desert.” (RT1 at 201:21-23.) The evidence introduced at trial showed that 32 sets of human 5 remains were recovered from the CPNWR during 2017 alone. (Tr. Ex. 133.) Defendants 6 are charged with conduct that took place in August, when the chance of death was highest 7 due to the extremely high temperatures. (Id. at 180:9-24.) Given Defendants’ professed 8 beliefs, the concentration of human remains on the CPNWR, and the risk of death in that 9 area, it follows that providing aid on the CPNWR was necessary for Defendants to 10 meaningfully exercise their beliefs. 11 Finally, the Government argues that Defendants’ admitted failure to obtain a permit 12 bars them from bringing a RFRA challenge. (Doc. 97 at 11.) However, it is undisputed that 13 the amended permit application explicitly prohibited leaving food and water on the 14 CPNWR. (RT1 at 74:1-17.) The regulation that Defendants are charged with violating, 50 15 C.F.R. 26.22(b), requires a CPNWR entrant to (1) obtain a permit and (2) follow the 16 permit’s terms and conditions. Defendants could not have exercised their religious beliefs 17 by leaving food and water on the CPNWR without violating the permitting regulation— 18 either by not obtaining a permit or alternatively by not adhering to the permit’s terms and 19 conditions. Because obtaining permits would not have allowed Defendants to lawfully 20 conduct the activities for which they are being prosecuted, Defendants were not required 21 to apply for permits to claim a RFRA exemption. See United States v. Adeyemo, 624 F. 22 Supp. 2d 1081, 1085 (N.D. Cal. 2008) (“[W]here it would have been futile to apply for a 23 permit, that person need not apply for a permit to bring a RFRA challenge.”); see also 24 United States v. Hardman, 297 F.3d 1116, 1121 (10th Cir. 2002). 25 The Court concludes that the prosecution of Defendants for these actions 26 substantially burdens their religious exercise. As Defendants successfully carried this 27 burden, it fell to the Government to demonstrate that prosecution of Defendants was the 28 least restrictive means of achieving a compelling governmental interest. - 17 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 18 of 22 1 C. Compelling Interest 2 Requiring the Government to “demonstrate a compelling interest and show that it 3 has adopted the least restrictive means of achieving that interest is the most demanding test 4 known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The 5 “compelling interest” inquiry requires courts to look past “broadly formulated interests,” 6 and to instead “scrutiniz[e] the asserted harm of granting specific exemptions to particular 7 religious claimants.” Gonzales v. O Centro Espirta Beneficente Uniao do Vegetal, 546 8 U.S. 418, 431 (2006). 9 The Government argues on appeal that the burden on Defendants’ religious exercise 10 is justified by a “compelling interest” in furthering “the national decision to maintain [the 11 CPNWR] in its pristine nature.” (Gov. Br. at 12.) The Government, however, has not 12 established that providing an exemption to Defendants would frustrate that interest. The 13 evidence at trial established that the CPNWR is a former active military bombing range 14 that has unexploded munitions strewn about. (RT1 at 86:17-23). The Refuge is currently 15 both a corridor for unlawful entry into the United States (RT1 at 19:3-4), which produces 16 significant amounts of garbage (RT3 at 59:20-22), and also a site of significant law 17 enforcement activity, which takes its own environmental toll (RT1 at 134:25—135:1-3). 18 In other words, as Magistrate Judge Velasco found, the CPNWR is “littered with 19 unexploded military ordinance, the detritus of illegal entry into the United States, and the 20 on-road and off-road vehicular traffic of the U.S. Border Patrol efforts to apprehend illegal 21 entrants/undocumented immigrants.” (Doc. 166 at 1.) Given this context, the Government 22 cannot claim a compelling interest in “maintain[ing]” the CPNWR as “pristine.” 23 The Court agrees the Government has a compelling interest in maintaining the 24 environmental conditions on its public lands. But in the RFRA context, the compelling 25 interest inquiry requires the Government to demonstrate a compelling interest in “the 26 application of the challenged law to the person—the particular claimant whose sincere 27 exercise of religion is being substantially burdened.” See Hobby Lobby, 573 U.S. at 726 28 (internal quotation marks and citations omitted). Particularly given the conditions on the - 18 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 19 of 22 1 CPNWR, the Government has failed to articulate any “marginal” compelling interest, 2 beyond its general interests, in enforcing the CPNWR regulations against these “particular” 3 Defendants. Id at 727. 4 Moreover, the record shows that Defendants’ conduct does not have significant 5 negative effects on the environmental conditions of the CPNWR. Any environmental 6 damage caused by the “abandoning” of food and water is mitigated by Defendants’ practice 7 of bringing garbage bags and picking up as much trash as possible. (RT2 at 171:1-8; RT3 8 at 21:12-17, 60:1-2.) As one Defendant explained: “[O]ur packs are empty by the time we 9 get there, and we replace that with the garbage that’s around the area, and it’s not always 10 necessarily our garbage either.” (RT3 at 88:21-24.) Defendants’ testimony on this point is 11 supported by FWS Officer West’s body camera footage, which shows at least one 12 Defendant removing empty, crushed water bottles from her backpack upon returning to the 13 truck. (Tr. Ex. 40 at 0:54-1:25.) 14 Nor has the Government shown that Defendant Hoffman’s driving on a pre-existing 15 “administrative” road in order to reach a remote area of the Refuge has a significant 16 negative impact on the CPNWR. (RT1 at 135:3-6.) It is not alleged that Defendants ever 17 went off-road in a vehicle. In contrast, Border Patrol and other law enforcement officers 18 go off-road into the wilderness on the CPNWR with some regularity. (RT1 at 131:3-7.) 19 Members of the public are also regularly granted permission to drive on restricted-access 20 roads for research or other purposes. (RT1 at 127:1-3.) Given these exemptions, the 21 Government cannot claim a compelling interest in uniform prevention of access to these 22 roads. See Gonzalez, 546 U.S. at 432-33 (finding that exemptions in Controlled Substances 23 Act undercut an asserted compelling interest in uniform application of that law). 24 No more persuasive is the Government’s argument that “permitting an exemption 25 for these four defendants” would “quickly lead” to a flood of religious objections. (Doc. 26 79 at 15.) The Supreme Court has squarely rejected such “slippery slope” concerns, noting 27 that such concerns “could be invoked in response to any RFRA claim for an exception to 28 a generally applicable law.” Gonzales, 546 U.S. at 435–36. The slippery-slope argument - 19 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 20 of 22 1 fails in the RFRA context, where a “case-by-case” application of the statutory test is 2 required to determine whether, in a particular instance, a law of general applicability must 3 give way to an individual’s free exercise of their religion. Id. 4 The Government has also asserted a compelling governmental interest in “enforcing 5 the border and controlling immigration.” (RT3 at 168; Doc. 94 at 13.) Although Defendants 6 were not charged with any immigration-related offense, the Government nonetheless 7 claims that Defendants’ actions “furthered and encouraged illegal smuggling activity in the 8 CPNWR.” (Doc. 94 at 13.) The Government seems to rely on a deterrence theory, 9 reasoning that preventing clean water and food from being placed on the Refuge would 10 increase the risk of death or extreme illness for those seeking to cross unlawfully, which in 11 turn would discourage or deter people from attempting to enter without authorization. In 12 other words, the Government claims a compelling interest in preventing Defendants from 13 interfering with a border enforcement strategy of deterrence by death. This gruesome logic 14 is profoundly disturbing. It is also speculative and unsupported by evidence. As discussed 15 above, 32 sets of human remains were recovered from the Refuge in 2017 alone, and the 16 Government produced no evidence that these fatalities had any effect in deterring unlawful 17 entry. Nor has the Government produced evidence that increasing the death toll would have 18 such an effect. 19 The Court concludes that the Government failed to demonstrate that it furthered any 20 compelling interest by prosecuting Defendants. 21 D. 22 23 Least Restrictive Means Even if the Government had established a compelling interest, it did not show that it cannot further that interest while accommodating Defendants’ religious beliefs. 24 “The least-restrictive-means standard is exceptionally demanding.” Hobby Lobby, 25 573 U.S. at 728. The Government “must demonstrate that ‘no alternative forms of 26 regulation’ would” suffice to accomplish the Government’s compelling interest. McAllen 27 Grace Brethren Church v. Salazar, 764 F.3d 465, 480 (5th Cir. 2014) (quoting Sherbert v. 28 Verner, 374 U.S. 398, 407 (1963)). This “focused inquiry” means that the Court may “not - 20 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 21 of 22 1 ease the government’s burden by rubberstamping vague or generalized arguments about 2 means and ends.” Christie, 825 F.3d at 1063. 3 Defendants have suggested alternative means of maintaining the environmental 4 integrity of the CPNWR while also allowing a religious exemption. (Def. Br. at 15-17.) 5 For example, the Government “could allow these defendants to leave water and food at 6 certain designated points on the refuge, so long as they maintained their practice of 7 removing all trash they encountered on their hikes, including and especially used water 8 bottles and food cans formerly left by No More Deaths volunteers.” (Id. at 16.) The 9 Government does not explain why such an arrangement would not allow it to achieve its 10 interest in protecting the environmental integrity of the CPNWR. The Government states 11 that Defendants’ “suggested alternatives do not address [harm to the CPNWR] in the 12 slightest” (Gov. Br. at 12), but it fails to provide evidence or explanation of why this is so. 13 The Court concludes that the Government failed to demonstrate that the prosecution 14 of Defendants is the least restrictive means of achieving a compelling governmental 15 interest. 16 VI. Conclusion 17 Defendants met their burden of establishing that their activities were exercises of 18 their sincere religious beliefs, and the Government failed to demonstrate that application 19 of the regulations against Defendants is the least restrictive means of accomplishing a 20 compelling interest. Accordingly, the Court finds that application of the regulations against 21 Defendants violates RFRA, and the Court will reverse Defendants’ convictions. 22 Accordingly, 23 .... 24 .... 25 .... 26 .... 27 .... 28 .... - 21 - Case 4:19-cr-00693-DTF Document 22 Filed 02/03/20 Page 22 of 22 1 IT IS ORDERED that Defendants’ convictions are reversed. The Clerk of Court 2 shall randomly reassign this case to a magistrate judge for entry of a judgment of acquittal 3 and vacatur of Defendants’ sentences. Any fines or fees paid by Defendants shall be 4 returned to them, and Defendants’ probation shall be terminated. 5 Dated this 31st day of January, 2020. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 -