USA v. Branden Barne

Filing

OPINION filed : AFFIRMED, decision not for publication. Alan E. Norris, Circuit Judge; Julia Smith Gibbons, AUTHORING Circuit Judge and John M. Rogers, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0075n.06
Case No. 16-1188
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
BRANDEN BARNES,
Defendant-Appellant

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FILED
Jan 26, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

BEFORE: NORRIS, GIBBONS, and ROGERS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendant Branden Barnes was charged
with manufacturing more than fifty marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C) (Count I). He was also charged with maintaining a drug-involved premises, in
violation of 21 U.S.C. §§ 856(1) and 856(b) (Count II). Barnes moved to dismiss the indictment,
arguing that he had the right to manufacture marijuana under the First Amendment and the
Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq, due to his
membership in the Oklevueha Native American Church, which he joined in 2014. The district
court denied Barnes’s motion, and he entered a conditional plea on Count I, preserving his right

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to appeal his RFRA arguments. Count II was dismissed. He was sentenced to 18 months’
imprisonment.
Barnes appeals the denial of his motion to dismiss the indictment, as well as the district
court’s rejection of his motion to present a RFRA defense at trial. He also appeals his sentence,
arguing that marijuana should be rescheduled from a Schedule I to a Schedule III drug and that
he should be resentenced accordingly.

For the reasons that follow, we affirm Barnes’s

conviction and sentence.
I.
Branden Barnes, 33, has a long relationship with marijuana use, beginning as far back as
age 14. He is an advocate of medical marijuana use and has frequently used marijuana for
medical, as well as recreational, purposes. Barnes is currently a member of the Oklevueha
Native American Church (“ONAC”). Barnes is not Native American but cites as his epiphany an
encounter with the ONAC when he was visiting a friend in the hospital in December 2013.
Barnes recounts that his friend was inexplicably cured after ONAC members performed a
healing ritual on her. Barnes then researched the ONAC on the internet, and in April 2014, he
reached out to become a member of the Church of Anyana-Kai, a Toledo, Ohio-based branch of
the national ONAC.
Becoming a member of the ONAC was quite simple: Barnes smoked marijuana, paid
$25 to get his membership card for the Toledo church, and made a $200 donation to the national
church in order to possess “sacraments.” This April 2014 encounter was the first interaction he
had with any member of the Church of Anyana-Kai since the hospital visit. Barnes walked away
with a card certifying that he was an “Authorized Participant Member of the Oklevueha Native
American Church of Anyana-Kai” and authorized to have “in his possession . . . Native

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American sacrament.” The process to join the church and convince it of his sincerity took
15 minutes.
Barnes was impressed with ONAC’s concept of “Grandmother Earth and Grandfather
Sky and their descendants,” but admitted that this philosophy was never mentioned on the
website for the Church of Anyana-Kai. Because he did not have a driver’s license due to
substance abuse issues, he was unable to visit the Toledo church often. In fact, he made only
two visits to the Church of Anyana-Kai between April and November 2014.
Instead, within two months of receiving his general membership card, Barnes and two
other members of the “Mother Church” decided to start a local church in Michigan, where there
were no existing ONAC branches. This process involved a $7,000 donation to the “Mother
Church” to cover “legal expenses . . . [and] outreach programs” and in exchange Barnes received
a special blessing and a starter kit. Barnes testified that this was the beginning of a “three and a
half year process of becoming a naturopathic doctor . . . so that [he could] . . . conduct the
ceremonies.” He was not certified to be a medicine man of the ONAC at any time. Barnes
testified that he did not establish a physical place of worship for the local Michigan branch
because “[w]ith [ONAC] spirituality, the place of worship is all of Mother Earth . . . . [O]ur
church [is] everywhere we go.”
The ONAC’s national website states that: “If you desire to be blessed by having access to
Native American Ceremonies and Medicines (such as Peyote, San Pedro, Ayahuasca and
Cannabis) without legal interference, you will want to consider joining Oklevueha NAC and
connecting with our medicine people.” Another page of the ONAC website states:

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WHY BEING A MEMBER OF OKLEVUEHA NATIVE AMERICAN
CHURCH WILL BENEFIT YOU
An “Oklevueha Native American Church Membership Card” serves to
protect the sacred use and transportation of ONAC sacraments, which the
federal government and a majority of state governments still declare are
illegal under any other situation.
An Oklevueha Native American Church Membership Card is documented
evidence that ONAC Membership Card holder has a proven sincerity
standard (level) that qualifies he or she for all exceptions to the controlled
substance laws of the United States, providing they are not in violation of
any aspect of Oklevueha Native American Church – Code of Ethics.
Barnes described several ceremonies of the ONAC, most of which do not use marijuana.
Likewise, nowhere is marijuana listed as a “sacrament” of the Church of Anyana-Kai. Barnes
gained familiarity with the ONAC ceremonies through his three in-person visits to the Church of
Anyana-Kai and Anyana-Kai’s website. Many of the ceremonies described on the website track
medical procedures, such as the “Ceremonial Colonic,” described as “[s]imilar to a liquid
enema.” Other ceremonies include the “Great Breath Ceremony,” which involves breathing
techniques, the “Blanket Ceremony,” which is similar to a marriage ceremony; and the “Peyote
Ceremony,” about which Barnes admittedly knew little.

The only ceremony to include

marijuana is the “Pipe Ceremony,” which is a ceremony that Barnes participated so that he could
join the Church of Anyana-Kai. But ONAC does not include marijuana as a “sacrament” on its
website; instead, it expressly states that “[p]eyote is the only Great Spirit gifted plant that
Oklevueha Native American Church utilizes for its Sacrament and/or Eucharist Ceremony.”
Much of Barnes’s religion was left up to his own personal belief system. After joining,
Barnes decided that, as part of his faith, he would perform charitable acts by growing marijuana
in large quantities to donate to the Toledo church. Yet, Barnes testified that his religion did not
require that he grow and donate marijuana. This was his personal choice, and he could have

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made a charitable donation that did not involve marijuana. Barnes testified that there was no
special ceremony involved in planting, growing, and harvesting marijuana, but that he “[said] a
prayer every time [he planted it].” He did not attempt to have either property on which he grew
marijuana legally recognized as church property.
Barnes began the process of growing sizable quantities of marijuana in his home around
June 2014. On November 6, 2014, the Lansing, Michigan Fire Department (“LFD”) responded
to a gas leak and electrical fire at 712 Johnson Avenue. At the scene, LFD discovered more than
two pounds of processed marijuana and 321 marijuana plants within the house. There was little
to no personal property in the house, and the windows were blacked out to assist grow lamps.
Barnes admitted that he was growing the marijuana in his house in order to donate it to the
ONAC. Barnes insisted that, because he had an ONAC membership card, he was able to grow as
many plants as he wanted, without any restrictions.
Troopers also were dispatched on April 28, 2015, to another of Barnes’s homes at
20770 21½ Mile Road in Marshall, Michigan. There, law enforcement officers found butane
hash oil, 71 marijuana plants, 30.3 grams of loose marijuana, and 140.8 grams of processed
marijuana. Again, Barnes told law enforcement that he was growing marijuana in his home
under a religious exemption from the ONAC.
Barnes was charged in a two-count indictment on April 16, 2015. Count I charged
Barnes with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) by manufacturing more than fifty
marijuana plants. Count II charged him with maintaining a drug-involved premises, in violation
of 21 U.S.C. §§ 856(a)(1) and 856(b). Barnes moved to dismiss the indictment, arguing that,
under the Religious Freedom Restoration Act of 1993 (“RFRA”), he had the right to manufacture
these marijuana plants as part of his First Amendment right to free exercise of religion.

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The district court held a hearing on Barnes’s motion to dismiss, at which Barnes was the
sole witness. At the conclusion of the hearing, the court denied Barnes’s motion because he
failed to establish his RFRA claim. In its ruling, the district court noted that Barnes’s testimony
acknowledged that growing large quantities of marijuana was not required by his religion, nor
was it central to the faith. It further found that little evidence supported a conclusion that
Barnes’s ability to practice his religion under the RFRA is burdened, let alone substantially
burdened. The court emphasized the government’s interest in the regulation of marijuana, and
that—while “changing attitudes about marijuana use in this country . . . are really all over the
map right now”—there was not significant evidence to undermine this government interest.
On October 20, 2015, Barnes pled guilty to Count I of the indictment, but preserved the
right to appeal the denial of his motion to dismiss the indictment. Count II was dismissed.
Barnes was sentenced on January 28, 2016, to 18 months’ imprisonment. Barnes now appeals
his conviction and sentence.
II.
We review the district court’s denial of a motion to dismiss the indictment de novo.
United States v. Johnson, 765 F.3d 644, 646 (6th Cir. 2014) (noting that this court engages in
clear error review for findings of fact, but reviews conclusions of law de novo); United States v.
Ali, 557 F.3d 715, 720 (6th Cir. 2009). “Whether a defendant has established a prima facie case
[establishing a valid defense] is a question of law” we also review de novo. United States v.
Johnson, 416 F.3d 464, 468 (6th Cir. 2005).
A.
Barnes’s first claim is based on the Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA explicitly stated that it was re-establishing the

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Wisconsin v. Yoder framework for analyzing religious exemptions. Analysis of a RFRA claim
under the Yoder “compelling interest” test seeks to prevent defendants from being “brand[ed] . . .
as criminal for following their religious beliefs.” See Wisconsin v. Yoder, 406 U.S. 205, 237
(1972) (Stewart, J., concurring) (overruled in Emp’t Div. v. Smith, 494 U.S. 872 (1990)). See
42 U.S.C. § 2000bb et seq.

Barnes argues that the Controlled Substances Act (“CSA”)

substantially burdens his ability to practice his religion as a member of the ONAC. In order to
prevail under RFRA, a defendant must demonstrate that the “governmental action . . .
(1) substantially burden[s], (2) a religious belief rather than a philosophy or way of life, (3)
which belief is sincerely held.” Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d
402, 410 (6th Cir. 2010) (internal quotation omitted). Once a defendant makes a successful
showing under RFRA, the burden shifts to the government to demonstrate that the substantial
burden on a defendant’s exercise of religion (1) furthers a compelling governmental interest, and
(2) is the least restrictive means of doing so. See 42 U.S.C. § 2000bb–1(b)(1)–(2). Should the
government be unable to meet this burden, the defendant is entitled to a religious exemption
under RFRA. Id. Based on the evidence put forth, Barnes has not successfully made out a
RFRA defense and therefore is not entitled to a religious exemption for manufacturing
marijuana.
First, and most critical to disposing of his RFRA claim, Barnes did not make an adequate
showing that the CSA substantially burdened his practice of religion. Barnes admitted that
growing marijuana and donating it to the church is not required by his religion. Marijuana is
described as a medicine within the Church of Anyana-Kai, not as a “sacrament” of the ONAC
faith. Thus, while marijuana is considered a medicine of the church, it is not an essential
sacrament of the faith, nor does it play a role in any of the ceremonies of the church, save one.

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Peyote, by contrast, is the only “sacrament” of the church. Barnes did not provide any historical
evidence that the manufacturing of marijuana is central to the ONAC religion specifically, or to
Native American religion in general.
All of the evidence presented by Barnes points to a conclusion that manufacturing
marijuana and intending to donate it to the Toledo church was a “personal belief” and a choice
that he made, not one that was critical to practicing the ONAC faith. While Barnes is correct that
it is not the place of the court to decide the “centrality of . . . beliefs to canonical texts,” that does
not prevent this court from determining whether a particular practice is required by a religion as
a part of the substantial-burden analysis, which asks whether precluding a practice through the
application of a law would place a substantial burden on practicing the religion. See Haight v.
Thompson, 763 F.3d 554, 567 (6th Cir. 2014) (internal citations omitted). Barnes offered no
evidence that being unable to manufacture marijuana would make him unable to practice his
religion, or that he would be forced to choose between obeying the law and practicing his
religion.
A recent Ninth Circuit case supports the conclusion that ONAC members are not exempt
under RFRA to manufacture marijuana. See Oklevueha Native Am. Church of Haw., Inc. v.
Lynch, 828 F.3d 1012, 1017 (9th Cir. 2016). In that case, the Ninth Circuit was “skeptical” that
the ONAC’s marijuana use amounted to an exercise of religion. Id. at 1015–16. Even assuming
that it qualified, there was insufficient evidence to conclude that prohibiting marijuana imposed a
“substantial burden” under RFRA. Id.
Oklevueha state[s] in no uncertain terms that “Peyote is the significant
sacrament,” and that they consume cannabis only “in addition to and in . . .
substitute for their primary entheogenic sacrament, Peyote.” They make no
claim that peyote is unavailable or that cannabis serves a unique religious
function. What is more, their certified complaint states that Oklevueha
“honors and embraces all entheogenic naturally occurring substances,
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including Ayahuasca, Cannabis . . . and many others.” Put simply, nothing
the record demonstrates that a prohibition on cannabis forces [Oklevueha
members] to choose between obedience to their religion and criminal
sanction, such that they are being “coerced to act contrary to their religious
beliefs.”
Id. at 1016 (quoting Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008)).
Likewise, Barnes does not present evidence that preventing his manufacture of marijuana
presents him with a choice between following his religion and following the law.
Likewise, Oklevueha’s admission that marijuana is merely a substitute for peyote also
distinguishes Barnes’s case from Holt v. Hobbs, ___ U.S. ___, 135 S. Ct. 853 (2015). In Holt,
the Supreme Court found that the Religious Land Use and Institutionalized Persons Act
(“PLUIPA”), 42 U.S.C. § 2000cc et seq., the “sister statute” to RFRA, required a prison to grant
a Muslim inmate a religious exemption to grow a half-inch beard. Id. at 859. The district court
had held that the inmate’s religion was not substantially burdened by the prison’s grooming
policy because the inmate was able to engage in “other forms of religious exercise,” such as use
of a prayer rug, distribution of Islamic material, and observation of religious holidays. Id. at 862.
The Court rejected that conclusion, reasoning that the prison’s refusal to allow the inmate to
grow a beard still forced him to choose between “engag[ing] in conduct that seriously violates
[his] religious beliefs” or “fac[ing] serious disciplinary action.” Id. at 862 (quoting Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751, 2775 (2014)). By contrast, Barnes has
produced no evidence that denying him marijuana forces him to choose between religious
obedience and government sanction, since his religion states in no uncertain terms that many
other substances, including peyote, are capable of serving the exact same religious function as
marijuana.

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If Barnes provided no evidence that growing and donating marijuana is part of the ONAC
religion, then it logically follows that precluding Barnes from doing so cannot substantially
burden the practice of that religion.

He made no argument that, without manufacturing

marijuana in large quantities to donate to the Toledo church, he would be unable to practice his
religion. He was not faced with a choice between the law and his religion. He did not even truly
argue that this regulation was a substantial burden—his argument hinged almost exclusively on
the idea that because the ONAC deemed marijuana to be a medicine and issued him a
membership card, he was able to grow as much marijuana as he wanted without any restriction.
Moreover, Barnes cannot meet the second prong of a RFRA-based exemption: that the
belief is a religious one, and not a personal belief or philosophy. By Barnes’s own admission,
his religion did not require him to produce marijuana in large quantities or to donate that
marijuana to the church. There is ample evidence in the record to support a conclusion that
Barnes’s belief in marijuana was primarily a personal one, and to suggest that he was using the
ONAC as a means of protection from criminal sanctions. His long history of marijuana use, his
quick epiphany and conversion to the Church of Anyana-Kai, the absence of marijuana from the
list of sacraments of the ONAC religion, and Barnes’s admission that marijuana was not a
necessary part of his religion and that he was not required to make a donation of marijuana to the
church all support a finding that Barnes’s actions were, in fact, based on his own personal belief
or philosophy regarding marijuana.
B.
Barnes also challenges the district court’s denial of his motion, in the alternative, to
present a RFRA-based defense at trial. The district court concluded that the defense was
irrelevant because RFRA did not authorize Barnes to manufacture marijuana.

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Barnes is charged with a general-intent crime, the manufacture of marijuana. See, e.g.,
United States v. Manns, 277 F. App’x 551, 556–57 (6th Cir. 2008) (manufacture of marijuana is
a general-intent crime); United States v. Miller, 870 F.2d 1067, 1071–72 (6th Cir. 1989).
General-intent crimes require that a defendant “knowingly” committed the criminal act. This
intent requirement goes to whether the defendant knew he was engaging in the act, not whether
the defendant knew that his actions were illegal. Ignorance of the law is no defense to a generalintent crime. Ratzlaf v. United States, 510 U.S. 135, 149 (1994); United States v. Kimes,
246 F.3d 800, 806–07 (6th Cir. 2001). The defendant’s good-faith belief in the legality of his
conduct cannot negate an element of the charges. See Bryan v. United States, 524 U.S. 184, 193
(1998) (“knowingly” merely requires proof of knowledge of the facts that constitute the offense,
not knowledge that they were illegal).
Under the Federal Rules of Evidence, a party is not entitled to present evidence at trial
that is not relevant. Fed. R. Evid. 402. Relevancy determinations are within the district court’s
discretion, and evidence that neither negates an element of the crime charged nor establishes a
defense is not relevant. See id. Because the manufacture of marijuana is a general-intent crime,
and ignorance of the law is not a defense, evidence that Barnes believed he could manufacture
large quantities of marijuana in his home for the ONAC, pursuant to a RFRA exemption, is
irrelevant.
Barnes argues that he had an “innocent reason” that allows him to present a RFRA
defense at trial. He bases his argument on language that “[a]n act is done knowingly if done
voluntarily and intentionally and not because of mistake or accident or other innocent reason.”
United States v. Ausmus, 774 F.2d 722, 726 (6th Cir. 1985). While Barnes does not misquote
this language, he does miss the point of that language in this circuit. Barnes argues that he

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should be able to present his “innocent reason” that he believed he could grow marijuana based
on a RFRA exemption. However, all that this language does is ensure that an individual cannot
be convicted of a general-intent crime when he did not know that he committed the underlying
act itself. For example, Barnes does not argue that he thought he was growing large amounts of
basil. Had he thought he was growing basil, but mistakenly grew marijuana, he could potentially
mount a defense to this crime. But he knew he was growing marijuana—and that knowledge is
the only knowledge required to convict him under the statute.
III.
Barnes’s final argument—that this court should reschedule marijuana from a Schedule I
to a Schedule III controlled substance, reverse his sentence, and remand to resentence him—was
waived by entry of his conditional guilty plea.
Barnes did not raise this issue in the district court, nor did he preserve the right to raise it
in his conditional plea agreement. Based on Rule 11(a)(2) and the law of this circuit, entry of
Barnes’s guilty plea triggered waiver. United States v. Mendez-Santana, 645 F.3d 822, 828 (6th
Cir. 2011); United States v. Herrera, 265 F.3d 349, 351 (6th Cir. 2001).
Conditional guilty pleas are authorized by Fed. R. Crim. P. 11(a)(2), which states that,
“[w]ith the approval of the court and the consent of the government, a defendant may enter a
conditional plea of guilty . . . reserving in writing the right, on appeal from the judgment, to
review the adverse determination of any specified pretrial motion.” This court, in following
Rule 11(a)(2), has placed particular emphasis on the language that the “specified pretrial motion”
that the parties agree may be appealed must be “reserved in writing.” Herrera, 265 F.3d at 351.
A defendant has an “affirmative duty . . . to preserve any issues collateral to the determination of
guilt or innocence by specifying them in the plea itself.” Mendez-Santana, 645 F.3d at 828.

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“[A] criminal defendant must be diligent in protecting his rights and faithful to the procedure
dictated by Rule 11(a)(2) in order to preserve non-jurisdictional issues for appeal.”

Id.

However, if a defendant is successful on appeal, then he “shall be allowed to withdraw the plea.”
Fed. R. Crim. P. 11(a)(2).
Barnes entered his conditional guilty plea pursuant to Rule 11(a)(2) on October 20, 2015.
Pursuant to his conditional plea, Barnes preserved the right to appeal the district court’s denial of
his motion to dismiss the indictment. This is the “specified pretrial motion” that the parties
agreed upon under Rule 11(a)(2), and the arguments raised within that motion govern what
Barnes can now raise on appeal before this court. Barnes’s motion to dismiss is the only
“specified pretrial motion” in his case. Thus, if the scheduling argument does not appear there, it
is waived.
Although Barnes argues that language in his motion to dismiss is sufficient to preserve
this issue for appeal, he is mistaken. He points to language from that motion, such as “[g]iven
the recent changes in position regarding marijuana, both at the state and federal levels, the Court
should not accept the government’s general interest in regulating marijuana as a compelling
interest,” but all of the language he cites is part of his argument for a RFRA defense, and not a
separate argument regarding the scheduling of marijuana. Upon further review of Barnes’s
motion to dismiss, he makes only two arguments: 1) that the indictment should be dismissed
because he was authorized by the ONAC to grow marijuana as part of a RFRA exemption; and
2) that in the alternative, he should be allowed to raise a RFRA defense at trial. Nowhere in his
motion does he ask the district court to reschedule marijuana.
Barnes may be correct that his motion argues that “recent research shows that marijuana
is not as dangerous as was once believed, and in fact has medicinal properties.” However, this is

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not nearly enough to constitute making the argument to the court that marijuana is improperly
scheduled as a Schedule I controlled substance. Nowhere does Barnes mention that it should
instead be Schedule III, nor does he ask the court to do so and sentence him accordingly. In the
conclusion section of his motion to dismiss, he asks the district court for only two things, and he
cannot now attempt to argue on appeal an issue which he did not preserve through his
conditional guilty plea. The entry of his plea waived any right Barnes had to this argument. See
Herrera, 265 F.3d at 351.
IV.
For the reasons stated above, we affirm the judgment of the district court.

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