Oklevueha Native American Church of Hawaii, Inc. et al v. Holder et al

Filing 113

ORDER AFFIRMING IN PART AND REVERSING IN PART DISCOVERY ORDER CONCERNING INTERROGATORIES re 103 , 107 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/13. (emt, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OKLEVUEHA NATIVE AMERICAN
CHURCH OF HAWAII, INC.;
MICHAEL REX “RAGING BEAR”
MOONEY

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
ERIC H. HOLDER, JR., U.S.
)
Attorney General; MICHELE
)
LEONHART, Acting
)
Administrator, U.S. Drug
)
Enforcement Administration;
)
FLORENCE T. NAKAKUNI, U.S.
)
Attorney for the District of )
Hawaii,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 09-00336 SOM/BMK
ORDER AFFIRMING IN PART AND
REVERSING IN PART DISCOVERY
ORDER CONCERNING
INTERROGATORIES

ORDER AFFIRMING IN PART AND REVERSING IN PART
DISCOVERY ORDER CONCERNING INTERROGATORIES
I.

INTRODUCTION.
In the only claim remaining before this court,

Plaintiffs Michael Rex “Raging Bear” Mooney and the Oklevueha
Native American Church of Hawaii, Inc., assert that their right
to religious freedom is being infringed on by federal drug laws,
specifically 21 U.S.C. § 841.

Plaintiffs claim that marijuana

(or, as they say, “cannabis”) is a central part of their religion
and that they fear prosecution for using cannabis in connection
with their religious beliefs.
Early in this case, the court warned Mooney that his
efforts to prevent prosecution under federal drug laws would

likely incriminate himself and open him to the very prosecution
he was hoping to avoid.

Mooney indicated that he understood the

implications of this case.

Mooney’s attorney indicated that

there would be discovery and that all the evidence concerning the
religious use of cannabis and the substantial burden on that use
would come out at trial.

Nevertheless, when Defendants served

interrogatories on Plaintiffs seeking relevant information
concerning whether the Controlled Substances Act substantially
burdens Plaintiffs’ genuine religious beliefs, Plaintiffs
responded by asserting a Fifth Amendment privilege against selfincrimination.

The Magistrate Judge assigned to this case

resolved this discovery dispute by ruling that Plaintiffs had to
answer the second interrogatory, but did not have to answer any
other interrogatory.

Defendants appealed.

This court now

affirms in part and reverses in part.
II.

FACTUAL BACKGROUND.
On July 22, 2009, Mooney and Oklevueha filed the

original Complaint in this matter.

In relevant part, the

original Complaint sought relief under the Religious Freedom
Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1(b).
Plaintiffs asked this court enjoin the federal Government from
enforcing the Controlled Substances Act with respect to their
religious use of cannabis.

See ECF No. 1.

2

In connection with a motion to dismiss that Complaint,
the court raised concerns about the position Mooney was placing
himself in by filing this action:
So I’m going to start by checking with
Mr. Mooney. You know, I have a lot of
concerns about this case, and they’re
concerns about the position you’re putting
yourself in. So in a civil case like the one
you’ve brought, you’re going to have to
follow the civil procedure rules. Mr. Glenn
[, Mooney’s attorney,] knows all about this.
And they include maybe having to answer
written interrogatories under oath. They
include your having to give testimony at a
deposition possibly under penalty of perjury.
And to support the claims that you have
brought, you may have to give statements that
will incriminate you and possibly expose you
to criminal charges. Those criminal charges
can mean that, you know, you face a federal
indictment here, and you may then, if
convicted, face a prison term. You know, it
could be three years, four years longer. And
so I’m really concerned that you bring a
civil suit that kind of forces you to
incriminate yourself and take on the real
possibility -- I mean, its kind of begging
for an indictment. So I’m really concerned
about that.
Transcript of Proceedings of February 22, 2010, at 2-3, ECF
No. 27.

Mooney responded by indicating that he understood and

was aware of the possibility of being prosecuted.

Id. at 5.

The court nevertheless stressed to Mooney that,
although he might have been thinking that he was going to avoid
being criminally prosecuted by bringing this civil action, the
court was concerned that Mooney might be guaranteeing an
indictment by going forward with this case.
3

Mooney responded by

telling the court that he was fully aware of that.

Id. at 7 and

9.
Mooney’s attorney then told the court:
We would rather sue in civil court, putting
our butts on the line, saying, Yes, we use
[cannabis] as a sacrament . . . , than live
in fear of having all cannabis shipments
seized and DEA agents knocking at your door
and arresting you in the middle of the night
because they don’t like your sacrament.
Id. at 18.
Mooney’s attorney stated:
We’re here for a trial. All the evidence
that Your Honor needs about how much
cannabis, when, where, that’s going to come
out at trial. There will be discovery.
There will be evidence. All the evidence
Your Honor needs about his religion and
religious practices and how it’s
substantially burdened by the enforcement of
the Controlled Substances Act against him,
that will come out at trial.
Id. at 29.
Notwithstanding this acknowledgment that the Government
would be entitled to discovery and that all of the facts would
come out at trial, when the Government sought relevant discovery
concerning the alleged substantial infringement on Mooney’s and
Oklevueha’s religious practices from 2003 to present (unless
otherwise stated), Plaintiffs refused to answer, citing Fifth
Amendment concerns.

See Defendants’ First Set of Interrogatories

to Plaintiffs (dated February 6, 2013), ECF No., 107-1, and
Plaintiffs’ Answers to Defendants’ First Set of Interrogatories
4

(dated March 28, 2012), ECF No. 107-2.

After briefing regarding

this discovery dispute, see ECF Nos. 107-3 and 107-4, the
Magistrate Judge ordered Mooney and Oklevueha to answer only
interrogatory number 2.

See ECF No. 103.

This appeal followed.

See ECF No. 107.
III.

STANDARD.
Under Local Rule 74.1 and 28 U.S.C. § 636(b)(1)(A), a

district judge may set aside a Magistrate Judge’s order regarding
any pretrial matter (except those motions delineated in Local
Rule 72.4(a)) when that order is “clearly erroneous or contrary
to law.”

See also Bhan v. NME Hosp., Inc., 929 F.2d 1404,

1414-15 (9th Cir. 1991).
erroneous” test is high.

The threshold of the “clearly
“A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.”

United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r Internal Revenue
Serv., 979 F.2d 1369, 1370 (9th Cir. 1992) (“A finding of fact is
clearly erroneous if we have a definite and firm conviction that
a mistake has been committed.”).
IV.

ANALYSIS.
The Fifth Amendment provides that “[n]o person . . .

shall be compelled in any criminal case to be a witness against
himself.”

This “Fifth Amendment privilege against compulsory

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self-incrimination protects an individual from compelled
production of his personal papers and effects as well as
compelled oral testimony.”
87 (1974).

Bellis v. United States, 417 U.S. 85,

The Fifth Amendment only proscribes self-

incrimination by a genuine compulsion of testimony.
apply to a competent person’s voluntary testimony.

It does not
See United

States v. Washington, 431 U.S. 181, 187 (1977).
Although the text of the Fifth Amendment’s prohibition
against self-incrimination appears to be limited to the criminal
context, “the Fifth Amendment’s protections have been deemed to
apply to civil proceedings.”

Doe ex rel. Rudy-Glanzer v.

Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).

In the civil

context, “the invocation of the privilege is limited to those
circumstances in which the person invoking the privilege
reasonably believes that his disclosures could be used in a
criminal prosecution, or could lead to other evidence that could
be used in that manner.”

Id.

“The only way the privilege can be

asserted is on a question-by-question basis, and thus as to each
question asked, the party has to decide whether or not to raise
his Fifth Amendment right.”

Id.

The Magistrate Judge ordered Mooney and Oklevueha to
answer Interrogatory No. 2, but not Interrogatory Nos. 1 and 3 to
11.

See ECF No. 103.

Rule 33(a)(2) of the Federal Rules of

Civil Procedure states that an “interrogatory may relate to any

6

matter that may be inquired into under Rule 26(b).”

Rule 26(b),

in turn, states, “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense. . . .

Relevant information need not be admissible at

the trial if the discovery appears to be reasonably calculated to
lead to the discovery of admissible evidence.”

The Magistrate

Judge determined that only Interrogatory No. 2 sought relevant
information.

See ECF No. 103 at 4-5.

This determination was

clearly erroneous.
The remaining claim in this case is Plaintiffs’ claim
that, under RFRA, the Government may not enforce the Controlled
Substances Act with respect to Plaintiffs’ alleged religious use
of cannabis.

To establish a prima facie RFRA claim, “a plaintiff

must present evidence sufficient to allow a trier of fact
rationally to find” that the activities the plaintiff claims are
burdened by Government action are an “exercise of religion” and
that the Government action “substantially burdens” the
plaintiff’s exercise of religion.

Navajo Nation v. United States

Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc).
en banc court described a “substantial burden” as follows:
Under RFRA, a “substantial burden” is imposed
only when individuals are forced to choose
between following the tenets of their
religion and receiving a governmental benefit
. . . or coerced to act contrary to their
religious beliefs by the threat of civil or
criminal sanctions . . . . Any burden
imposed on the exercise of religion short of
7

The

that . . . is not a “substantial burden”
within the meaning of RFRA, and does not
require the application of the compelling
interest test . . . .
Id. at 1069-70.

The court therefore examines the interrogatories

for relevance with respect to Plaintiffs’ alleged exercise of
religion and the Government’s substantial burden on that
exercise, determining that each interrogatory seeks relevant
discovery.
The court begins by distinguishing between Oklevueha,
as an entity, and Mooney, as an individual.

Oklevueha has not

established any right to assert a Fifth Amendment privilege under
the circumstances presented here.

The Ninth Circuit has

recognized that the Fifth Amendment privilege against selfincrimination is a personal one that cannot be claimed by
corporate officers on behalf of a corporation.

See Admiral Ins.

Co. v. U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486,
1495 n.8 (9th Cir. 1989).

Of course, a corporation may be the

beneficiary of a corporate employee’s personal invocation of a
Fifth Amendment privilege.

Id.

While a sole proprietor or sole

practitioner may be able to assert a Fifth Amendment privilege
concerning business records, an agent of a collective entity like
a corporation cannot rely on the Fifth Amendment privilege to
avoid producing the entity’s records that the individual may be
holding in his or her representative capacity, even though the
records might incriminate the individual personally.
8

Bellis, 417

U.S. at 88.

In other words, “the privilege against compulsory

self-incrimination should be limited to its historic function of
protecting only the natural individual from compulsory
incrimination through his own testimony or personal records.”
Id. (quotation marks and citations omitted).

The First Amended

Complaint alleges that Oklevueha is “registered as a State of
Hawaii Nonprofit Corporation.”

See ECF No. 26, ¶ 9.

As a

corporation, Oklevueha fails to demonstrate any entitlement to a
Fifth Amendment privilege against self-incrimination.
The court recognizes that Plaintiffs’ letter brief, ECF
No. 107-4 at PageID # 943, states that Mooney is the sole
proprietor of Oklevueha.

However, consistent with the First

Amended Complaint, the Business Registration Division of Hawaii’s
Department of Commerce & Consumer Affairs indicates that the
Native American Church of Hawai`i Inc., the new name of
Oklevueha, is a domestic nonprofit corporation, not a sole
proprietorship.

See

http://hbe.ehawaii.gov/documents/

business.html?fileNumber=224965D2&view=info (last visited June
25, 2013).

That same registration identifies as Oklevueha’s

officers Mooney as “P/CEO/MIN,” Mary Jane A. Mooney and Naomi M.
Mooney as “D,” and Kaliko Lehua Kanaele, Michael Makhtar Meacke’
Hammond, and Kahu Terangi Ruwhiu as “D/MIN.”

Id.

Without an

explanation as to why Oklevueha is not a corporation as alleged
in the First Amended Complaint, Oklevueha fails to show any

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entitlement to assert a Fifth Amendment privilege against selfincrimination.
Turning to Mooney’s individual situation, the court
notes that, when there is no possibility of a criminal
prosecution (such as when a statute of limitation has run for a
crime), a person can have no reasonable belief that disclosures
could be used in a criminal prosecution.

Accordingly, a person

may not invoke the Fifth Amendment in such a situation.
v. Cullen, 623 F.3d 1065, 1071 (9th Cir. 2010).

See Earp

Here, Defendants

seek responses to interrogatories for the period from January 1,
2003, to present, unless otherwise indicated.
at PageID # 912.

See ECF No. 107-1

Mooney does not show that, to the extent any

interrogatory seeks discovery relating to any potential crime for
which Mooney cannot now be prosecuted, he reasonably believes
that any response could be used against him in a criminal
proceeding or lead to other evidence that could be used in that
manner.

Under those circumstances, Mooney may not invoke the

Fifth Amendment with respect to matters outside the applicable
limitation period.

Mooney must therefore answer all

interrogatories to the extent they pertain to events outside the
limitation period.

If Mooney continues to assert a Fifth

Amendment privilege with respect to any matter within the
limitation period, he must first state the limitation period he
claims applies, then count back from the date of his amended

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discovery response and answer the interrogatories with respect to
the period outside that limitation period.
A.

Interrogatory No. 1.

Interrogatory No. 1 seeks discovery concerning Mooney’s
involvement with other religious organizations.

Mooney’s

involvement with other religious organizations may go to the
genuineness of his claimed religious use of cannabis and the
alleged substantial burden on that use.

The requested discovery

also appears reasonably calculated to lead to the discovery of
admissible evidence because the answers to the interrogatory will
allow the Government to interview persons who might be witnesses
at trial.

Accordingly, the Magistrate Judge clearly erred in

determining that the information was not relevant.
Oklevueha must answer Interrogatory No. 1 fully,
without regard to any statute of limitation.

Thus, to the extent

Oklevueha can answer the interrogatory based on its business
records, it must do so.

For example, if Oklevueha paid for

Mooney to travel to attend a conference by one of the
organizations in question or if it paid Mooney’s dues, it must
answer the interrogatory based on those records.

Oklevueha may,

of course, respond to the interrogatory through a corporate
officer other than Mooney.
With respect to Mooney, except to the extent Mooney may
have been a part of another organization and held a position that

11

included supplying, distributing, or possessing cannabis (or
engaging in other allegedly criminal activity) within the
applicable limitation period, the court cannot fathom how
answering Interrogatory No. 1 implicates Mooney’s personal Fifth
Amendment rights.

Mooney must answer Interrogatory No. 1, except

with respect to any involvement by Mooney in what could be
considered criminal activity (for example, by revealing that he
supplied, distributed, or possessed cannabis) during the relevant
limitation period.

Any information outside the limitation

period, even if revealing possibly criminal activity, must be
provided.

The court reminds Mooney that, as stated earlier in

this order, his response must identify what he claims the
limitation period is.
B.

Interrogatory Nos. 3, 4, 5, and 11.

Interrogatory Nos. 3, 4, 5, and 11 seek discovery
concerning the membership and leadership of Oklevueha.
Amendment right is implicated by these questions.

No Fifth

Because

information concerning the membership and leadership of Oklevueha
appears reasonably calculated to lead to discovery of admissible
evidence concerning the genuineness of Plaintiffs’ religious
beliefs and whether the Controlled Substances Act is a
substantial burden on those beliefs, the court orders Plaintiffs
to answer these interrogatories.

12

C.

Interrogatory No. 6.

Interrogatory No. 6 seeks two things.

To the extent it

asks Mooney to identify every religious organization known to him
that is using cannabis in its religious beliefs and practices,
that request is overbroad and not necessarily relevant to any
claim or defense in this case.

However, to the extent it seeks

information concerning Mooney’s and/or Oklevueha’s connection
with any such religious organization, Interrogatory No. 6 seeks
relevant information.

Oklevueha is ordered to answer

Interrogatory No. 6 in full.

Mooney is ordered to state the

limitation period and then to respond with respect to matters
outside the limitation period (including possibly criminal
matters) and to matters within the limitation period that do not
go to anything even potentially criminal.
D.

Interrogatory Nos. 7 and 8.

Interrogatories Nos. 7 and 8 seek information
concerning Plaintiffs’ use of cannabis.
full.

Oklevueha must answer in

With respect to information outside the statute of

limitation for which Mooney could not be personally prosecuted,
Mooney must answer the interrogatories because they seek relevant
information for which there is no Fifth Amendment privilege.

To

the extent the interrogatories seek discovery of information
within the limitation period that might be used against Mooney in
a criminal prosecution, he may assert a Fifth Amendment privilege

13

and withhold that information after identifying the limitation
period.
E.

Interrogatory Nos. 9 and 10.

Interrogatory Nos. 9 and 10 seek information concerning
Oklevueha’s financial records.

As discussed above, Oklevueha has

no Fifth Amendment right to prevent disclosure of those records.
The records are relevant to the scope of any injunction, as well
as to the genuineness of the alleged religious belief at issue
and the burden placed on that belief by the Controlled Substances
Act.

Oklevueha must therefore answer Interrogatory Nos. 9 and

10.

Mooney himself has no valid Fifth Amendment privilege with

respect to Oklevueha’s corporate records.
VI.

CONCLUSION.
The court affirms the discovery order in part and

reverses in part.

Plaintiffs must answer the interrogatories as

described above.
To the extent Mooney may continue to assert a Fifth
Amendment privilege, there may well be adverse consequences to
him.

As this court previously warned Mooney, he may well have to

incriminate himself if he is to be successfully in obtaining an
order enjoining the Government from prosecuting him for his
religious use of cannabis.

That is, to win on their RFRA claim,

Mooney and Oklevueha will have to describe their use of cannabis
and explain how the Controlled Substances Act substantially
infringes on that religious use.

This is not a criminal case, in

which a defendant has a burden of proof only if the defendant

14

opts to assert a defense that he has the burden of proving.

In a

civil case, the burden of proof always begins by being something
the plaintiff must satisfy.
Mooney’s assertion of a Fifth Amendment privilege with
respect to interrogatories raises several issues that he should
consider.

At trial, the court is unlikely to allow Mooney to

testify and then, in response to Government questioning, assert
his Fifth Amendment privilege against self-incrimination.

Any

such invocation of Fifth Amendment rights may well lead to the
striking of direct testimony to preserve fundamental fairness and
the integrity of the court system.

See, e.g., United States v.

$133,420.00 in U.S. Currency, 672 F.3d 629, 640-41 (9th Cir.
2012).

The invocation of Fifth Amendment rights at trial might

also lead to an adverse inference of some kind.

See Baxter v.

Palmigiano, 425 U.S. 308, 318 (1976) (“the Fifth Amendment does
not forbid adverse inferences against parties to civil actions
when they refuse to testify in response to probative evidence
offered against them”).

Similarly, Mooney’s choice to assert a

Fifth Amendment privilege in response to discovery requests may
ultimately prevent him from introducing related evidence at

15

trial, complicating his ability to succeed on his claim.

These

are matters that are brought to the forefront by the present
appeal but that need not be decided here.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Oklevueha Native Am. Church of Hawaii, et al. v. Holder, et al.; Civil No. 09-00336
SOM/BMK; ORDER AFFIRMING IN PART AND REVERSING IN PART DISCOVERY ORDER CONCERNING
INTERROGATORIES

16