United States v. Sherryanne Christie

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10233

Plaintiff-Appellee,

D.C. No.

v. 1:13-cr-00889-LEK-1

SHERRYANNE L. CHRISTIE,

FKA Sherryanne L. St. Cyr,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 14-10234

Plaintiff-Appellee,

D.C. No.

v. 1:10-cr-00384-LEK-1

ROGER CUSICK CHRISTIE,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted October 16, 2015

Honolulu, Hawaii

Filed June 14, 2016

2 UNITED STATES V. CHRISTIE

Before: Diarmuid F. O’Scannlain, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge O’Scannlain

SUMMARY*

Criminal Law / RFRA

The panel affirmed the convictions of two ministers of the

Hawaii Cannabis Ministry for violations of the Controlled

Substances Act (CSA) in a case in which the defendants

claim that their convictions violate their rights freely to

exercise their religion, as guaranteed by the Religious

Freedom Restoration Act of 1993 (RFRA).

The panel held that the government has a compelling

interest in mitigating the risk that cannabis from the Ministry

will be diverted to recreational users, and that the facts of this

case demonstrate that mandating the defendants’ full

compliance with the CSA would help to advance this

compelling interest to a meaningful degree. The panel held

that in light of these defendants and the facts in this record,

the government could not achieve its compelling interest in

mitigating diversion through anything less restrictive than

mandating the defendants’ full compliance with the CSA.

The panel therefore rejected the defendants’ RFRA defense.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CHRISTIE 3

Rejecting the defendants’ contention that RFRA is

unconstitutionally vague, and thereby renders the CSA

unconstitutionally vague, the panel explained that the Fifth

Amendment has no application to RFRA, which is not a penal

statute or anything like one. The panel held that the

defendants’ appeal to the rule of lenity is equally untenable.

The panel rejected as foreclosed by precedent the defendants’

contention that the CSA’s classification of marijuana as a

Schedule I controlled substance violates the Due Process

Clause of the Fifth Amendment.

The panel held that the district court did not abuse its

discretion in issuing wiretaps in the course of investigating

the Ministry, and that the district court’s determinations in

denying the defendants a Franks hearing were not clearly

erroneous.

4 UNITED STATES V. CHRISTIE

COUNSEL

Thomas M. Otake (argued), Law Office of Thomas M. Otake,

Honolulu, Hawaii, for Defendant-Appellant Roger Cusick

Christie.

Georgia K. McMillen (argued), Law Office of Georgia K.

McMillen, Wailuku, Hawaii; Lynn E. Panagakos, Law Office

of Lynn E. Panagakos, Honolulu, Hawaii, for Defendant-

Appellant Sherryanne L. Christie.

John M. Pellettieri (argued), Attorney, Appellate Section;

Leslie R. Caldwell, Assistant Attorney General; Sung-Hee

Suh, Deputy Assistant Attorney General; United States

Department of Justice, Criminal Division; Florence T.

Nakakuni, United States Attorney; Michael K. Kawahara,

Assistant United States Attorney; United States Attorney’s

Office, Honolulu, Hawaii; for Plaintiff-Appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the federal government may

criminally prosecute two ministers of the Hawaii Cannabis

Ministry who admit to using and distributing large quantities

of cannabis, but who claim that in doing so they were merely

exercising their sincerely held religious beliefs.

I

The Reverend Roger Cusick Christie founded the Hawaii

Cannabis Ministry in the year 2000, in Hilo, a city on the

UNITED STATES V. CHRISTIE 5

Island of Hawaii. Rev. Christie envisioned the Ministry as “a

community wherein Cannabis could be celebrated as a

sacrament.” Sherryanne Christie was received into the

Ministry in 2007, and in 2008 she was ordained a minister,

eventually joining Rev. Christie as a sort of “assistant

manager.” Sherryanne ran the Ministry by herself for several

months in 2009 while Rev. Christie recuperated from a

broken ankle. The two wed in 2012.

A

According to Rev. Christie, “[t]he consumption,

possession, cultivation and distribution of Cannabis are

essential and necessary components of the THC Ministry,”1

which distributed cannabis both to its members and to

medical marijuana users. As Rev. Christie put it, “[n]o truly

religious person would turn a blind eye to those in need.”

Rev. Christie boasted of winning the Ministry 2,000 to

3,000 converts on the Island of Hawaii, and another 62,000

worldwide. His charisma consisted, in part, of his promise

that those who joined his flock would be delivered from the

1

“THC” is presumably a (not so subtle) allusion to

tetrahydrocannabinols, which are hallucinogenic substances that are found

in cannabis and are specifically listed as Schedule I controlled substances

under the federal Controlled Substances Act (CSA), 84 Stat. 1242,

21 U.S.C. § 801 et seq., and its implementing regulations, 21 C.F.R.

§ 1308.11(d)(31). Following the parties’ lead, we use the terms

“cannabis” and “marijuana” interchangeably. Hence, references to

marijuana should be understood to signify cannabis within the meaning of

the CSA. Cf. 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts

of the plant Cannabis sativa L., whether growing or not; the seeds thereof;

the resin extracted from any part of such plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of such plant, its

seeds or resin.”).

6 UNITED STATES V. CHRISTIE

reach of federal drug laws. For instance, he was enthusiastic

about advertising the Ministry’s slogan: “We use cannabis

religiously and you can too.” Similarly, the Ministry’s

website prominently displayed an assurance that members

would know neither “arrest,” nor “prosecution,” nor

“conviction of ‘marijuana’ charges . . . starting as soon as you

sign up.”

Signing up was not difficult. There were two primary

paths to membership. Those who wished could come to

downtown Hilo and meet with Rev. Christie at the Ministry’s

physical home, called the Sanctuary. Rev. Christie would

often insist on a “donation” of fifty dollars, and while he

reserved the right to turn hopefuls away, one of the Ministry’s

former employees could not recall anyone ever being

rejected. To the contrary, Rev. Christie even boasted of

enrolling people who “come in on a cruise ship and they, you

know they are just here for a day and they need. . . you

know?” Alternatively, one could join the Ministry by

purchasing a so-called “Sanctuary Kit” for $250 through the

Ministry’s website. Sanctuary Kits included one or two blank

membership cards; information about the Ministry, and about

laws governing religious cannabis use; and various cannabis-

related items (but no cannabis itself). The Ministry’s website

made clear that there was no minimum age to join, and that

even minors could become members.

The Ministry obtained its cannabis from various sources,

including from a black market in and around Hilo, and

distributed cannabis in two primary ways.

First was during “communion” at Sunday services, which

took place every week for approximately two hours at a time.

At the start of each service Rev. Christie would ask those

UNITED STATES V. CHRISTIE 7

present to introduce themselves and explain why they had

come, in order, he testified, to “weed out” (his pun) “any

visitors or members who seemed insincere.” There is no

evidence of how he went about doing so.

Second, during the week Rev. Christie and other Ministry

employees would distribute cannabis to members who came

in person to the Sanctuary, again in exchange for a suggested

donation price. As Rev. Christie explained, members could

choose from a broad menu of cannabis products to pick up

and to take away with them: “packets,” “live plants,”

“clones,” “seeds,” “candy,” “brownies and chocolate chip

cookies all with cannabis,” “holy anointing oil,” and

“tinctures.”2

The Ministry’s distribution protocol required those who

wished to obtain cannabis during the week to appear in

person and to present a membership card or a state-issued

medical marijuana card. Prior to the Spring of 2009,

recipients were also required to meet privately with Rev.

Christie. By April 2009, the Ministry was distributing more

than half a pound of cannabis among approximately sixty to

seventy people daily, “most everyday.”

It was around this time that the Christies instituted a more

efficient distribution method, dubbed the “express”

procedure. Its purpose was to allow individuals to receive

cannabis from the Ministry without first having to meet

2

Tinctures could be used in a variety of ways, as Rev. Christie explained

to one interested party over the phone: for example, “[y]ou carry your

purse, you can dose yourself [at] the movie theater[,] at the restaurant. . . .

You just take out the bottle and give a drop in your tongue and away you

go, nobody even looks at you.”

8 UNITED STATES V. CHRISTIE

privately with either Sherryanne or Rev. Christie. Instead,

each person would order a specific amount of cannabis from

a Ministry staff member, hand over his or her Ministry ID

card, tender the corresponding “donation” price—which

could be more or less expensive depending on the quality of

the herb—and wait while the staff member retrieved the

requested cannabis from Rev. Christie or Sherryanne. The

express procedure eventually became the “primary way” the

Ministry distributed cannabis, and it was so popular that it

often generated a line stretching out the Ministry door and

onto the sidewalk.

The Christies were proud that the Ministry achieved such

a high profile, and they aver that they operated the Ministry

in an open and non-secretive manner throughout its history.

Rev. Christie was something of a public personality, for

instance, speaking candidly about the Ministry’s activities in

various news media and even running for mayor on a ticket

pushing marijuana reform. Over the years Rev. Christie also

met several times to discuss the Ministry with various

representatives of state and federal law enforcement.

The Christies wrote down a handful of rules nominally

designed to ensure that cannabis went out only to Ministry

members or medical marijuana users. But in practice these

rules were little more than parchment barriers.

Specifically, the Ministry “did not confirm that persons

who came to the express service were who their Ministry ID

card identified them as,” and the employees administering

express “did not confirm that the person named on the

Ministry ID card was actually a member.” In addition, the

district court found that Ministry employees “never advised

people who came through the express service that there were

UNITED STATES V. CHRISTIE 9

restrictions on what ‘members’ could do with the sacrament.

For example, they never told customers that the sacrament

was only for religious purposes or that ‘members’ could only

use the sacrament on Ministry premises or that ‘members’

were prohibited from distributing the sacrament to non-

members.”

B

In response to these concerns, the federal government

opened a criminal investigation into Rev. Christie and the

Ministry. Investigatory results included 284 marijuana plants

which law enforcement officers found in July 2009 on a farm

run by friends of the Christies, whom the Christies had

recruited to cultivate marijuana to be distributed through the

Ministry. In June 2010, a grand jury indicted Rev. Christie,

Sherryanne, and various of their associates, charging them

with a handful of crimes including numerous Controlled

Substances Act (“CSA”) violations. See 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), 846, and 856(a)(1). After the

district court denied four of their pretrial motions, Rev.

Christie and Sherryanne ultimately pled guilty pursuant to

plea agreements. Rev. Christie pled guilty, as relevant here,

to one count of conspiracy to manufacture and distribute 100

or more marijuana plants, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(B). For her part, Sherryanne pled

guilty to one count of conspiring to manufacture and

distribute fifty or more marijuana plants, in violation of

21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C).

Rev. Christie was sentenced to sixty months in prison, to

be followed by four years of supervised release. Sherryanne

was sentenced to twenty-seven months in prison, to be

followed by three years of supervised release.

10 UNITED STATES V. CHRISTIE

The Christies timely appealed their convictions. The

district court had jurisdiction under 18 U.S.C. § 3231, and we

have jurisdiction under 28 U.S.C. § 1291.

II

The Christies first claim that their convictions violate

their rights freely to exercise their religion, as guaranteed by

the Religious Freedom Restoration Act of 1993 (RFRA),

107 Stat. 1488, 42 U.S.C. § 2000bb et seq.3

A

RFRA supplies a rule of decision in cases where a person

finds himself in the unfortunate position of needing to choose

between following his faith and following the law. “In

general,” RFRA provides, sincere religious objectors must be

given a pass to defy obligations that apply to the rest of us, if

refusing to exempt or to accommodate them would impose a

substantial burden on their sincere exercise of religion.

42 U.S.C. 2000bb-1(a).

But this rule is not absolute. “The mere fact that [a

person’s] religious practice is [substantially] burdened by a

3

The Christies do not argue that the government has violated their rights

under the First Amendment’s Free Exercise Clause, presumably

recognizing that any such theory would be doomed by the Supreme

Court’s decision in Employment Division v. Smith, which held “that the

right of free exercise [under the First Amendment] does not relieve an

individual of the obligation to comply with a ‘valid and neutral law of

general applicability on the ground that the law proscribes . . . conduct that

his religion prescribes.” 494 U.S. 872, 879 (1990) (quoting United States

v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the

judgment)).

UNITED STATES V. CHRISTIE 11

governmental program does not mean that an exemption

accommodating his practice must be granted.” Thomas v.

Review Bd., 450 U.S. 707, 718 (1981). Even in the

circumstances just described, RFRA allows the federal

government to treat religious objectors the same as everyone

else “only if” the government meets a two-part test: the

government must demonstrate that forcing the religious

objector to comply with the law is both “in furtherance of a

compelling governmental interest,” and is “the least

restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000bb-1(b). If the government

cannot justify its actions under that test, courts are directed to

order “appropriate relief” against the government and in favor

of the religious objector. Id. § 2000bb-1(c).

In other words, RFRA gives each person a statutory

right not to have his sincere religious exercise

substantially burdened by the government, save for cases

expressly denominated “[e]xception[al].” Id. § 2000bb-1(b).

Moreover, RFRA is explicit that such right may be invoked

against the government as either a “claim or defense,” id.

§ 2000bb-1(c), a sword or a shield. If a person has a

sufficiently realistic fear that the government is going to

punish him for exercising his religious beliefs in defiance of

the law, he may unsheathe RFRA and file a preemptive strike

in an effort to subdue the government before it treads further.

E.g., Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 425–27, 439 (2006) (granting a

preliminary injunction under RFRA to a religious sect

threatened with prosecution for past violations of the CSA);

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785

(2014) (enjoining government from requiring full compliance

with the Affordable Care Act of claimants who felt compelled

to violate its commands for religious reasons). Alternatively,

12 UNITED STATES V. CHRISTIE

if the government strikes first—for example, by indicting a

person for engaging in activities that form a part of his

religious exercise but are prohibited by law—the person may

raise RFRA as a shield in the hopes of beating back the

government’s charge. E.g., United States v. Bauer, 84 F.3d

1549, 1559 (9th Cir. 1996) (vacating convictions so

defendants could interpose RFRA as defense to having

possessed marijuana in violation of the CSA); see also

Wisconsin v. Yoder, 406 U.S. 205, 207, 234–35 (1972)

(striking down criminal convictions and nullifying state

compulsory school-attendance law as applied to religious

objectors who invoked First Amendment defense to

prosecution). In either scenario, a religious objection may

have the effect of immunizing the objector’s past conduct

from official sanction—even though such conduct violated a

law that is otherwise valid—and of nullifying, in whole or in

part, his continuing duty to comply with a generally

applicable command.

B

For their RFRA defense to prevail, the Christies first had

to establish a prima facie case. United States v. Zimmerman,

514 F.3d 851, 853 (9th Cir. 2007) (per curiam). The Christies

were required to demonstrate that the beliefs they espouse are

actually religious in nature (rather than philosophical or

political, for example); that they sincerely hold those beliefs,

and do not simply recite them for the purpose of draping

religious garb over commercial activity or straightforward

drug trafficking; and that forcing them to obey the federal

marijuana laws would impose a substantial burden on their

ability to conduct themselves in accordance with those

sincerely held religious beliefs.

UNITED STATES V. CHRISTIE 13

The district court assumed without deciding that the

Christies had satisfied all of those elements. A fairminded

observer might question just how plausible each of those

assumptions really is, but on this appeal we are not asked to

determine if any of them would stand up under scrutiny. Like

the district court, we will assume—without deciding, and for

purposes of this proceeding only—that the Christies have

successfully established a prima facie case under RFRA.

With that assumption, RFRA forbids the government

from requiring the Christies to comply with the CSA unless

the government can make two showings. The government

must demonstrate, first, that demanding the Christies’

unbending compliance—more concretely, forcing the

Christies to violate their religious beliefs by ceasing to use

and to distribute cannabis altogether—would actually

advance a compelling government interest to some

meaningful degree. See Hobby Lobby, 134 S. Ct. at 2779

(holding that government must demonstrate that its “marginal

interest in enforcing the [challenged law] in these cases” is

compelling (emphasis added)); Brown v. Entm’t Merchs.

Ass’n, 564 U.S. 786, 803 n.9 (2011) (“[T]he government does

not have a compelling interest in each marginal percentage

point by which its goals are advanced.”). If the government

clears that hurdle, it must then show that forcing the Christies

to comply with the CSA is the least restrictive means by

which it can achieve its compelling interest. That is, the

government must show that it would not be able to

“accommodate [the Christies’] religion more without serving

[its compelling] interest less.” United States v. Friday,

525 F.3d 938, 946 (10th Cir. 2008).

The district court concluded that the government had done

everything RFRA requires. We review the district court’s

14 UNITED STATES V. CHRISTIE

compelling-interest and least-restrictive-means conclusions

de novo, United States v. Vasquez-Ramos, 531 F.3d 987, 990

(9th Cir. 2008) (per curiam), but we review any findings of

“historical fact” underlying those conclusions for clear error,

see Ornelas v. United States, 517 U.S. 690, 699 (1996).

C

The threshold question is whether the government has a

compelling interest in prosecuting the Christies for using and

distributing cannabis. As the Supreme Court has emphasized,

“RFRA requires the Government to demonstrate that the

compelling interest test is satisfied through application of the

challenged law ‘to the person’—the particular claimant

whose sincere exercise of religion is being substantially

burdened.” O Centro, 546 U.S. at 430–31 (quoting 42 U.S.C.

§ 2000bb-1(b)). Hence, we must “look[] beyond broadly

formulated interests justifying the general applicability of

government mandates and scrutinize[] the asserted harm of

granting specific exemptions to particular religious

claimants.” Id. at 431. The compelling-interest

determination “is not to be made in the abstract,” but “in the

circumstances of this case.” Cal. Democratic Party v. Jones,

530 U.S. 567, 584 (2000).

1

The government first argues that it has a compelling

interest in mitigating the risk that cannabis from the Ministry

will be diverted to recreational users, and that the facts of this

case demonstrate that mandating the Christies’ full

compliance with the CSA would help to advance this

compelling interest to a meaningful degree. We agree.

UNITED STATES V. CHRISTIE 15

We have little trouble concluding that the government has

a compelling interest in preventing drugs set aside for

sacramental use from being diverted to non-religious,

recreational users. A risk of “diversion,” after all, simply

means the threat that cannabis—an illegal, Schedule I

controlled substance—will wind up in the hands of people

whose use is disconnected from any sincere religious

practice. Such illegal, non-religious use, by definition, finds

no protection under RFRA. Further, the government’s

interest in reducing the incidence of illicit, recreational

cannabis use follows from its more general interest in

enforcing the CSA to “promot[e] public health and safety,” an

interest the Supreme Court recognized in O Centro. 546 U.S.

at 438. Moreover, insofar as diverted cannabis could

foreseeably fall into the hands of minors, or otherwise expose

them to the hazards associated with illegal, recreational drug

use, the government’s interest in reducing the likelihood of

diversion is contained within its “compelling interest in

protecting the physical and psychological well-being of

minors.” Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S.

115, 126 (1989).

In addition to demonstrating that it has a compelling

interest in combating the risk of diversion in general, the

government must take a second step under RFRA: it must

show that its interest in combating diversion is compelling on

the facts of this case. Cf. Entm’t Merchs., 564 U.S. at 799

(explaining that the government “must specifically identify an

actual problem in need of solving,” and must show that the

burden on the specific claimants’ religious exercise is

“actually necessary to the solution.” (quotation marks

omitted)). O Centro is instructive. There, the Supreme Court

endorsed the government’s “general interest in promoting

public health and safety by enforcing the Controlled

16 UNITED STATES V. CHRISTIE

Substances Act,” 546 U.S. at 438, although it held that under

RFRA such a general interest is not compelling unless the

government submits additional proof that the specific RFRA

claimants’ particular activities create a risk of diversion to

non-members or a risk to the health of the religious

practitioners, id. at 437.

The record in this case succeeds where the record in O

Centro fell short because, as the district court concluded, in

this case there is specific evidence that the Ministry’s

distribution methods created a realistic possibility that

cannabis intended for members of the Ministry would be

distributed instead to outsiders who were merely feigning

membership in the Ministry and adherence to its religious

tenets. Additionally, the government’s interest in this case is

all the more compelling given the Ministry’s well-publicized

willingness to extend membership in the Ministry (with all

that that entails) to minors.

For those reasons, we agree with the government that

mandating the Christies’ compliance with the CSA would

help it advance a compelling interest in preventing diversion.

If the government took no action against the Christies, its

compelling interest would be meaningfully compromised.

2

The Christies make three counterarguments, none of

which we find persuasive. First, they argue that the

magnitude of any diversion risk was insubstantial, because

(i) the Ministry’s distribution was governed by formal rules

limiting recipients to sincere members and medical marijuana

patients; and (ii) the government failed to produce any actual

evidence that the Ministry’s cannabis had been diverted to

UNITED STATES V. CHRISTIE 17

non-adherents in the past. We reject the first point because,

as discussed above, there is more than enough evidence in the

record to support the district court’s conclusion that the

Ministry’s broad and loose distribution methods gave rise to

a realistic threat of diversion, notwithstanding whatever rules

were technically on the books. We reject the second point as

well because we see no reason the government should be

required to demonstrate past incidents of diversion in order to

establish a compelling interest in combating a realistic risk

that diversion will occur in the future. Indeed, in O Centro,

“the absence of any diversion problem in the past” was not

enough to defeat the government’s effort to establish a

compelling interest in preventing diversion going forward.

See O Centro, 546 U.S. at 426. Furthermore, unlike in O

Centro, here the record establishes the existence of a black

market for cannabis in and around Hilo, as well as the

opportunity for diversion from the Ministry created by lax

enforcement of its distribution protocols. These

circumstances remove any doubt that the Ministry’s cannabis

was “vulnerable to diversion.” O Centro Espirita

Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d

1236, 1262 (D. N.M. 2002).

Second, the Christies criticize the district court’s

determination that weaknesses in the Ministry’s distribution

procedures created a clear potential for diversion. The

Christies contend that the analysis and factual findings

underlying the district court’s conclusion are flawed, for a

variety of reasons. Even if some of these arguments are

debatable, they are simply too weak to survive under our

deferential “clearly erroneous” standard of review. “To be

clearly erroneous, ‘a finding must be more than possibly or

even probably wrong; the error must be pellucid to any

objective observer.’” United States v. Quaintance, 608 F.3d

18 UNITED STATES V. CHRISTIE

717, 721 (10th Cir. 2010) (quoting Watson v. United States,

485 F.3d 1100, 1108 (10th Cir. 2007)). None of the

conclusions the Christies attack is clearly erroneous.

Third, the Christies contend that the government simply

has no compelling interest in preventing the diversion of

cannabis, period. They offer three main reasons: current

medical and scientific evidence proves that the CSA’s

classification of marijuana as a Schedule I controlled

substance lacks a rational basis; the CSA grants an exemption

for the Native American Church’s use of peyote, and other

groups have been granted exemptions to use hoasca—and

taken together, the argument goes, these precedents discredit

the government’s asserted interest in preventing diversion of

the Ministry’s cannabis; and the Department of Justice has, of

late, instituted policy exceptions to its enforcement of the

CSA’s marijuana provisions.4 We reject these arguments.

4

The Christies cite an August 29, 2013 memo from then-Deputy

Attorney General James M. Cole to “all United States Attorneys.” The

memo, entitled “Guidance Regarding Marijuana Enforcement,” updates

federal prosecutors on DOJ’s strategy for enforcing the CSA “in light of

state ballot initiatives that legalize under state law the possession of small

amounts of marijuana and provide for the regulation of marijuana

production, processing, and sale.” Indeed, at least two states in this

Circuit—Washington beginning in 2012, and Oregon in 2015—have

authorized the possession and retail sale of marijuana (subject to state fees

and taxes) under conditions which seem to cast state law at cross-purposes

with federal criminal enforcement. See Wash. Rev. Code Ann.

§§ 69.50.4013(3), 69.50.382, 69.50.385, 69.50.535 (West); see generally

State v. Rose, 365 P.3d 756 (Wash. Ct. App. 2015); Or. Rev. Stat. Ann.

§§ 475.864, 475B.110, 475B.345 (West); see generally State v. Mays, Jr.,

346 P.3d 535 (Or. Ct. App. 2015).

Despite liberalization under certain state laws, the memo affirms

DOJ’s “commit[ment] to enforc[ing] the CSA consistent with” Congress’s

judgment “that marijuana is a dangerous drug and that the illegal

UNITED STATES V. CHRISTIE 19

a

In the first place, the Christies have not come close to

showing that the CSA’s classification of marijuana as a

Schedule I controlled substance lacks a rational basis and

therefore violates the Fifth Amendment. We discuss this

contention of theirs in greater depth later in this opinion. See

Part IV, infra.

b

Nor are the Christies aided by exemptions that different

groups have won for the sacramental use of peyote and

hoasca. The Christies are right that RFRA does not allow the

government to refuse an accommodation to a group which is

materially indistinguishable from one already exempted, but

the government has not violated that principle in this case.

distribution and sale of marijuana is a serious crime that provides a

significant source of revenue to large-scale criminal enterprises, gangs,

and cartels.” Nevertheless, the memo clarifies that DOJ intends to

“focus[] its efforts on certain enforcement priorities that are particularly

important to the federal government.” The listed priorities include

“[p]reventing the diversion of marijuana from states where it is legal under

state law in some form to other states” and “[p]reventing the distribution

of marijuana to minors,” especially “when marijuana or marijuana-infused

products are marketed in a manner to appeal to minors; or when marijuana

is being diverted, directly or indirectly, and purposefully or otherwise, to

minors.”

The memo stresses that it “is not intended to, does not, and may not

be relied upon to create any rights, substantive or procedural, enforceable

at law by any party in any matter civil or criminal,” and that “nothing

herein precludes investigation or prosecution, even in the absence of any

one of the factors listed above, in particular circumstances where

investigation and prosecution otherwise serves an important federal

interest.”

20 UNITED STATES V. CHRISTIE

Indeed, the peyote and hoasca precedents say very little about

whether the government has a compelling interest in

preventing diversion of the Ministry’s cannabis. As courts

have repeatedly emphasized, cannabis differs critically from

peyote and hoasca precisely because there is a thriving

market for diverted cannabis, whereas there is no comparable

demand for recreational peyote and hoasca. See, e.g., O

Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

389 F.3d 973, 1020 (10th Cir. 2004) (en banc) (McConnell,

J., concurring); Olsen v. Drug Enf’t Admin., 878 F.2d 1458,

1463–64 (D.C. Cir. 1989); Church of the Holy Light of the

Queen v. Mukasey, 615 F. Supp. 2d 1210, 1220–21 (D. Or.

2009), vacated on other grounds sub nom. Church of the Holy

Light of the Queen v. Holder, 443 Fed. App’x 302 (9th Cir.

2011); United States v. Lepp, 2008 WL 3843283, at *11

(N.D. Cal. Aug. 14, 2008).

The record here shows that such a market exists in and

around Hilo. And again, diversion concerns are more

pressing here than in other cases due to the Ministry’s well-

documented lack of diligence in overseeing its distribution

methods. In short, it follows from the “focused inquiry”

demanded by RFRA, O Centro, 546 U.S. at 432, that even if

the government lacks a compelling interest in preventing

diversion of one particular drug from one particular religious

group, the government may still have a compelling interest in

preventing diversion of a different drug from a different

religious group. That is exactly the case here.

c

Finally, recent shifts in DOJ enforcement priorities do not

deprive the government of a compelling interest in preventing

diversion of the Ministry’s cannabis. We are of course

UNITED STATES V. CHRISTIE 21

mindful of the Supreme Court’s admonition that “a law

cannot be regarded as protecting an interest of the highest

order when it leaves appreciable damage to that supposedly

vital interest unprohibited.” O Centro, 546 U.S. at 433

(quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520, 547 (1993)) (alteration omitted).

Nevertheless, the recently promulgated DOJ memos

touted by the Christies do not establish that the government’s

enforcement efforts have been so completely abandoned, or

are so thoroughly honeycombed with exemptions, for us to

conclude that the government has forfeited any claim to a

compelling interest in preventing mass diversion of cannabis.

By their own terms, the memos are “intended solely as a

guide to the exercise of investigative and prosecutorial

discretion,” and “do[] not alter in any way the Department’s

authority to enforce federal law, including federal laws

relating to marijuana, regardless of state law.” Like proposed

administrative rules, DOJ memos ought not be given great

weight because they do not announce “final decision[s],” and

the DOJ “may well revise its analysis” in light of new

information or changed circumstances. United States v.

Antoine, 318 F.3d 919, 921 (9th Cir. 2003). Indeed, the DOJ

may alter its approach based simply on the election of a new

administration with different priorities and a different

philosophy. Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983)

(Rehnquist, J., concurring in part and dissenting in part).

Hence, while perhaps relevant, DOJ policies do not carry the

weight the Christies ascribe to them. It is not for us to decide

whether prosecuting the Christies represents the best exercise

of prosecutorial discretion, or the wisest allocation of the

Executive’s finite resources.

22 UNITED STATES V. CHRISTIE

In sum, we conclude that the government has a

compelling interest in preventing diversion of the Ministry’s

cannabis, and that enforcing the CSA against the Christies

would meaningfully advance that interest.

3

Separate and apart from its interest in preventing

diversion of the Ministry’s cannabis, the government urges

that it has a compelling interest in “preserving [its] ability to

administer” the CSA. Specifically, the government argues

that granting the Christies an exception would compromise its

ability to enforce the CSA because it would spawn a

multitude of RFRA claims, likely for “the distribution of

other drugs in high demand, perhaps cocaine or heroin.” The

government also asserts that the CSA, like the tax code, is a

closed regulatory system that could not function if it were

subject to religious carve-outs.

We are unpersuaded by these arguments, for each of them

was squarely rejected by the Supreme Court in O Centro.

The government may well be right that granting an exception

to the Christies would invite a flood of RFRA claims, perhaps

for distribution of cocaine and heroin. But that objection is

insufficient, for it is nothing more than a “slippery-slope

concern[] that could be invoked in response to any RFRA

claim.” O Centro, 546 U.S. at 435–36. Furthermore, O

Centro specifically held that the CSA is not like the tax code

or other “closed regulatory system[s] that admit[] of no

exceptions under RFRA.” Id. at 434. Like it or not, when

religious objectors raise RFRA as a defense to prosecution

under the CSA, RFRA requires courts to “strike sensible

balances” on a case-by-case basis, in light of “the particular

practice at issue.” Id. at 439.

UNITED STATES V. CHRISTIE 23

D

While we agree with the government that forcing the

Christies to obey the CSA’s no-cannabis-distribution mandate

would advance a compelling interest in mitigating a realistic

threat of diversion, we must still ask whether the government

has chosen the least restrictive means necessary to achieve

that interest.

As its name implies, the “least restrictive means” test

calls for a comparative analysis. In one corner we have the

government’s preferred means: a mandate that the Christies

comply with the CSA to the letter, enforceable with criminal

penalties. Our job is to lay such preferred means side by side

with other potential options. Could the government achieve

its compelling interest to the same degree while exempting

the Christies from complying in full with the CSA? That is

the question RFRA requires us to confront. And the

government must demonstrate, based on the facts before us,

that the answer is “no.”

At a minimum, the government must address those

alternatives of which it has become aware during the course

of this litigation. United States v. Wilgus, 638 F.3d 1274,

1289 (10th Cir. 2011) (“[T]he government’s burden is two-

fold: it must support its choice of regulation, and it must

refute the alternative schemes offered by the challenger, but

it must do both through the evidence presented in the

record.”); see also Zubik v. Burwell, 136 S. Ct. 1557, 1560

(2016) (vacating and remanding cases to lower courts for

fresh RFRA analysis “[i]n light of the positions asserted by

the parties in their supplemental briefs”). The government

must show that each proposed alternative either is not “le[ss]

restrictive” within the meaning of RFRA, see 42 U.S.C.

24 UNITED STATES V. CHRISTIE

§ 2000bb-1(b)(2), or is not plausibly capable of allowing the

government to achieve all of its compelling interests.

In this case, the Christies have put forth four purportedly

less restrictive alternatives.

1

The Christies first emphasize that “[n]umerous statutory,

judicially-crafted, and policy exceptions exist to the CSA,”

again citing the Native American Church and its exemption

for peyote use. The Christies take this to prove that the

government need not mandate their unbending compliance

with the CSA in order to achieve its compelling interest in

preventing diversion.

We have already explained why this argument fails. The

Christies cannot simply point to other groups who have won

accommodations for the sacramental use of peyote and

hoasca and say “we’ll have what they’re having,” because the

government has shown material differences between those

particular groups and their sacramental practices, on the one

hand, and the Christies and their religious exercise, on the

other.

2

The Christies next assert that a less restrictive alternative

would have been for the government to bring these

prosecutions under a less punitive provision of the CSA,

ideally a provision that would not have triggered statutory

mandatory minimum penalties. The Christies cite nothing for

the proposition that a (potentially) less punitive charging

decision qualifies as a “less restrictive” alternative.

UNITED STATES V. CHRISTIE 25

We find such lack of authority unsurprising, for at least

two reasons. First, when the government exposed the

Christies to the threat of a mandatory minimum, it did not

restrict their religion to a greater degree than if the

government had forgone such charges, for either prosecution

would trigger an outright ban on their ability to use and to

distribute cannabis. Such alternative prosecutions are equally

restrictive of religion, even if they might not be equally

punitive. Cf. Hobby Lobby, 134 S. Ct. at 2782 n.40

(explaining that to qualify as a less restrictive means, a

proposed alternative must “accommodate[] the religious

beliefs asserted in these cases”). Second, given the broad

array of charges prosecutors can choose to bring or not to

bring in any given case, recognizing the Christies’ theory

would plunge courts far too deep into the business of

reviewing the most basic exercises of prosecutorial

discretion.

3

The Christies next contend that the government should

have given them “notice” of its “compelling interest prior to

the imposition of criminal penalties.” We understand the

Christies to mean that RFRA blocks the government from

prosecuting them now because it failed to alert them to its

ongoing investigation before it indicted them. That view is

wrong.

The CSA itself gave the Christies all the notice to which

they were entitled; no authority we have encountered suggests

that RFRA obligates the government to tip off parties who are

about to be indicted and might raise a RFRA defense. Such

outreach might be good practice—at least in those cases

where the government is aware of the possibly religious

26 UNITED STATES V. CHRISTIE

nature of the offensive conduct—but we cannot say that

RFRA compels it. Nor does RFRA suggest that the

government is somehow estopped from prosecuting a

particular defendant who engages in religiously motivated but

otherwise unlawful conduct, simply because the government

has failed to prosecute such person for some period of time

previously (whether through inadvertence, temporary

enforcement discretion, or simply because it was awaiting the

fruits of a pending investigation).

4

Finally, the Christies suggest meeting the government

somewhere in the middle. Rather than complying with the

CSA’s total prohibition on using and distributing cannabis,

the Christies propose that they would shut down the express

distribution method, if they were permitted to continue using

and distributing cannabis in the allegedly more circumscribed

manner they had employed previously. Such compromise,

they insist, represents a plausible means by which the

government could achieve its compelling interests.

The government has convinced us otherwise, and

therefore we decline to grant the Christies’ requested relief.

Indeed, the Supreme Court vindicated free exercise claims in

cases like Yoder, O Centro, and Hobby Lobby only because

it was convinced that, on the facts before it, the government

could very likely achieve all of its compelling interests

without insisting that the religious objectors comply with the

relevant laws in full. That determination is necessarily fact-

specific and context-dependent. But RFRA requires nothing

less. As O Centro emphasized, “‘[c]ontext matters’” when

applying RFRA, for the standard it employs—strict

scrutiny—“does take ‘relevant differences’ into account—

UNITED STATES V. CHRISTIE 27

indeed, that is its fundamental purpose.” O Centro, 546 U.S.

at 431–32 (quoting Grutter v. Bollinger, 539 U.S. 306, 327

(2003), and Adarand Constructors, Inc. v. Peña, 515 U.S.

200, 228 (1995)).

Here, given the facts of this case, it is simply not plausible

to suppose that the government could achieve its compelling

interest in preventing diversion if it were to accommodate the

Christies in the way they have proposed. As we detailed

earlier, the government has brought forth substantial evidence

that the Christies distributed cannabis for years in a loose and

barely discriminate manner, even before the advent of

express. The problem is not simply that the Christies hardly

regulated who could join the Ministry, or even that they

actively marketed their church as a safe haven from the

federal drug laws. More troubling is that even the barebones

membership requirement was not enforced as a meaningful

check on who could receive the Ministry’s cannabis.

Cannabis distributed through the Ministry seemed available

to anyone to use anywhere; the Christies simply gave

cannabis to those who showed up, took their money, and sent

them on their way. In view of these circumstances, and given

the Christies’ steadfast belief in a divine command to spread

cannabis far and wide—to “liberat[e] cannabis” and to

“cultivate . . . and distribute herb all over the world,” as Rev.

Christie described his vocation—we are incredulous that the

Christies would undertake the sort of extensive reforms

needed to mitigate the enormous potential for diversion the

government has documented.

The Ministry’s precepts and longstanding patterns of

practice give us the same concerns then-Judge Ginsburg

voiced in 1989 when she was confronted with a similar free

exercise claim put forth by the Ethiopian Zion Coptic Church,

28 UNITED STATES V. CHRISTIE

a group which, like the Ministry, faced prosecution under the

CSA for having used and distributed cannabis in accordance

with their religious beliefs. See Olsen, 878 F.2d at 1459.

Like the Christies, members of the Church sought an

accommodation premised on a “proposal for restrictive use.”

Id. at 1462. The D.C. Circuit rejected their proposed less

restrictive alternative. It concluded that the Church’s

“proposal for confined use would not be self-enforcing,”

given that “the tenets” of the Church endorsed broad and

continual cannabis use, and because the record demonstrated

that the Church had previously enforced only “‘minimal’”

checks on “‘distribution of cannabis to nonbelievers.’” Id.

(quoting Town v. State ex rel. Reno, 377 So. 2d 648, 649 (Fla.

1979)). Although Olsen was a pre-RFRA case, we find its

reasoning instructive as applied to the Christies. Given the

record here, we are left with the conclusion that requiring the

Christies to comply with the CSA’s no-cannabis-distribution

mandate is the least restrictive means by which the

government can achieve its compelling interest in preventing

diversion, and we therefore refuse to order dismissal of the

Christies’ indictments on RFRA grounds.

RFRA sets a demanding test: it obligates the government

to satisfy the compelling-interest and least-restrictive-means

tests with respect to “the person” whose religious exercise is

substantially burdened in a specific case. 42 U.S.C.

§ 2000bb-1(b). This focused inquiry requires that we not

ease the government’s burden by rubberstamping vague or

generalized arguments about means and ends; but, just as

much, it means that we may not blind ourselves to who “the

person” seeking a religious exemption actually is in a given

case. And in this case, in light of these defendants and the

facts in this record, we are convinced that the government

could not achieve its compelling interest in mitigating

UNITED STATES V. CHRISTIE 29

diversion through anything less than mandating the Christies’

full compliance with the Controlled Substances Act.

The Christies’ statutory free exercise rights have not been

violated. We reject their RFRA defense.

E

Finally, before moving on from RFRA, we must address

an additional argument put forth by Sherryanne Christie, who

maintains that she should be exempted from prosecution,

even if her husband is not, because he was the founder and

leader of the Ministry, while she was a mere underling who

joined in reliance on his word that RFRA would shield them

from prosecution.

We reject this claim. There is no justification for treating

Sherryanne differently from her husband. Sherryanne was a

leader in the Ministry—even if she was her husband’s

subordinate—and her zeal for distributing cannabis was no

less ardent than her husband’s.

Moreover, even if we were sympathetic to Sherryanne’s

self-serving portrait of her role in the Ministry, we would

reject her theory because it misunderstands the nature of a

RFRA claim. Sherryanne’s argument amounts to a promise

that if spared prosecution, she will refrain from using and

distributing cannabis altogether. Sherryanne, in other words,

is not really asking for a religious accommodation at all. Cf.

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.

2028, 2032 n.2 (2015) (“[T]o ‘accommodate’ . . . means

nothing more than allowing the plaintiff to engage in her

religious practice despite the . . . normal rules to the contrary

. . . .”). Hence, Sherryanne’s proposed alternative is no less

30 UNITED STATES V. CHRISTIE

restrictive than what the government seeks here: full

compliance with the CSA.

RFRA empowers courts to grant exceptions to generally

applicable laws so that otherwise-unlawful conduct may be

permitted to continue. RFRA does not, however, contemplate

that courts will direct the Executive to dismiss a prosecution

whenever a defendant volunteers to abandon all of the

religious conduct he or she had pursued in the past. If

Sherryanne has undergone a conversion in response to being

indicted, that is something the prosecution might like to have

known, but it will not entitle her to the saving grace of a

RFRA defense.

III

The Christies next contend that their indictments must be

thrown out on the theory that RFRA is unconstitutionally

vague, and thereby renders the CSA unconstitutionally vague.

We review this argument de novo. United States v. Woodley,

9 F.3d 774, 778 (9th Cir. 1993).

The Christies contend that RFRA plunges courts so deep

into a morass of free-form balancing that the statute is

unconstitutionally vague. And the remedy, they go on, is to

dismiss their indictments. Notably, the Christies do not

allege that the CSA is in any sense vague, or that they lacked

notice that their cannabis activities fell within its terms. Nor

could they. Instead, their basic argument is that RFRA

amends the CSA; RFRA’s balancing tests are hopelessly

open-ended; therefore, they could not predict in advance

whether RFRA would immunize their otherwise-criminal

conduct. RFRA’s intersection with the CSA, they conclude,

violates the Fifth Amendment’s prohibition on vague criminal

UNITED STATES V. CHRISTIE 31

laws. For the same reasons, the Christies also seek refuge

under the rule of lenity.

We are not persuaded. Indeed, the Fifth Amendment

simply has no application here. RFRA cannot be

unconstitutionally vague because it is not a penal statute or

anything like one.5 It does not define the elements of an

offense, fix any mandatory penalty, or threaten people with

punishment if they violate its terms. Rather, it supplies

religious objectors like the Christies with an affirmative

defense to criminal prosecution. 42 U.S.C. § 2000bb-1(c).

The Christies cite no authority for the proposition that the

Fifth Amendment can be used to invalidate a prosecution

under a clear criminal law, simply because that law is subject

to an affirmative defense that is “vague.” (That is, vague in

the sense the Christies claim RFRA is vague—that a person

may have a hard time predicting in advance whether the

defense will immunize him or her from liability.) And for

good reason: one could level the same charge against many

affirmative defenses, including self defense, necessity, or

defense of another (to say nothing of duress, entrapment, and

insanity). Because such affirmative defenses are widely

5

Justice Thomas, in his history of the void-for-vagueness doctrine, cites

one case in which the Supreme Court voided a vague statute that he

classifies as non-penal. Johnson v. United States, 135 S. Ct. 2551, 2566

n.1 (2015) (Thomas, J., concurring in the judgment) (citing Keyishian v.

Bd. of Regents, 385 U.S. 589 (1967)). But, significantly, the statute in

Keyishian required termination of public employment for “treasonable or

seditious” utterances or acts. 385 U.S. at 597. Hence, even if it was

technically not penal, it was closely analogous. Moreover, it raised due

process concerns just like an ordinary penal law, because, as the Supreme

Court has held elsewhere, public employment can qualify as a

constitutionally protected property interest. Perry v. Sindermann,

408 U.S. 593, 601–03 (1972).

32 UNITED STATES V. CHRISTIE

applicable under federal and state law, the Christies’ theory

has the potential to render many sections of the criminal code

void for vagueness. That is good evidence that their theory

is unsound.6

The Christies’ appeal to the rule of lenity is equally

untenable. Once again they cite no authority for the position

that lenity applies to “ambiguous” affirmative defenses rather

than to ambiguous laws that define elements or mandate

punishment. Moreover, any defendant invoking RFRA could

make the same lenity argument the Christies press here;

hence, like their vagueness argument, their lenity argument

risks invalidating every prosecution where a defendant seeks

protection under RFRA. For good reason, that cannot be

right.

IV

The Christies next contend that their indictments should

be dismissed on the theory that the CSA’s classification of

6

Even if the Christies were correct that the void-for-vagueness doctrine

applies and that RFRA is unconstitutionally vague, they never explain

why the proper remedy would be to dismiss their indictments, instead of

striking down RFRA and tossing their defenses along with it. And even

if the Fifth Amendment did require us to enjoin the present prosecutions,

the implication would be that every federal prosecution is at risk of being

enjoined, because—as the Christies emphasize—RFRA amends the entire

United States Code. 42 U.S.C. § 2000bb-3(a). A theory that renders

every federal criminal law potentially void for vagueness cannot be right.

Further, if RFRA’s test makes the CSA unconstitutionally vague, then the

CSA must have been unconstitutionally vague when it was subject to an

identical free exercise defense under the balancing tests set forth in

Sherbert v. Verner, 374 U.S. 398 (1963) and Yoder, 406 U.S. 205 in the

days prior to Smith, 494 U.S. 872. See 42 U.S.C. § 2000bb. That clearly

cannot be right.

UNITED STATES V. CHRISTIE 33

marijuana as a Schedule I controlled substance violates the

Due Process Clause of the Fifth Amendment. We review this

question de novo. Bateson v. Geisse, 857 F.2d 1300, 1303

(9th Cir. 1988).

The Christies do not claim that the CSA’s classification

of marijuana infringes any of their fundamental rights.

Instead, they maintain that such classification “is arbitrary

and lacking in any rational justification and therefore

constitutionally invalid.”

This argument is foreclosed by our precedents. In 1978

we rejected a challenge identical to the one the Christies raise

today. United States v. Miroyan, 577 F.2d 489, 495 (9th Cir.

1978), partially overruled on other grounds as recognized by

United States v. Pineda-Moreno, 688 F.3d 1087, 1090–91

(9th Cir. 2012). And while it may be true that marijuana’s

legal status continues to evolve, as does its standing in the

medical and scientific communities, those developments do

not come close to demonstrating that changes since 1978

have left Miroyan’s “central holding obsolete.” Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992).

Thus, Miroyan controls our decision, and requires that we

reject the Christies’ due process argument.

V

Finally, the Christies contend that the district court should

have suppressed certain wiretap evidence the federal

government obtained in the course of investigating them and

the Ministry, and that it should have ordered an evidentiary

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

34 UNITED STATES V. CHRISTIE

A

Wiretap authorizations are governed by the Omnibus

Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510–2522.

The government must show that every wiretap it seeks is

necessary. Specifically, § 2518(1)(c) requires each wiretap

application to include “a full and complete statement as to

whether or not other investigative procedures have been tried

and failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous.” If the affidavit

complies with § 2518(1)(c), a judge may approve the wiretap

if he “determines on the basis of the facts submitted by the

applicant that . . . normal investigative procedures have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous.” 18 U.S.C.

§ 2518(3)(c).

We review de novo whether an application for a wiretap

contains a full and complete statement of the facts required to

show necessity under § 2518(1)(c). United States v. Rivera,

527 F.3d 891, 898 (9th Cir. 2008). If we conclude that it

does, we then review the issuing court’s decision to grant the

wiretap for abuse of discretion. Id.

B

The government began investigating the Ministry as early

as August 2007. In April 2009 it obtained authorization to

tap two of Rev. Christie’s phone numbers (TT1 and TT2),

and in June 2009 it obtained an extension of those wiretaps

and an authorization to tap Rev. Christie’s cell phone (TT3).

The government, through DEA Agent Clement Sze,

submitted a 90-page affidavit for TT1 and TT2, and a 135-

UNITED STATES V. CHRISTIE 35

page affidavit for TT3. We conclude that both affidavits

demonstrated the requisite necessity.

1

First, the affidavits recounted the traditional investigative

methods the government pursued before it applied for the

wiretaps. Between August 2007 and February 2009, the

government utilized one confidential informant, who

provided information about the Ministry, made a series of

drug purchases from Rev. Christie, and engaged him in

several recorded conversations. In 2008, the informant

introduced Rev. Christie to an undercover DEA agent, who

likewise carried out recorded conversations. Before applying

for the wiretaps, the government also installed a pole camera

outside the Ministry’s front entrance, and conducted

additional physical surveillance of the Ministry’s building

and those entering and exiting it. Further, in May 2008 the

government began to use a pen register for two of Rev.

Christie’s phone numbers. The TT3 affidavit also disclosed

that the TT1 and TT2 wiretaps had led the government to

identify six of the Christies’ cannabis suppliers.

2

Second, the affidavits explained why the above non-

wiretap methods had failed to lay bare the full extent of the

Christies’ suspected drug trafficking operation.

With respect to physical surveillance, the affidavits noted

that such surveillance is hard to perform in Hilo because it is

a “very close-knit community,” making it difficult for police

officers to conceal their identities. Moreover, the affidavits

stated that Rev. Christie and his associates appeared to be

36 UNITED STATES V. CHRISTIE

conscious of surveillance, and appeared to have engaged in

“counter-surveillance” on several occasions. Furthermore,

the affidavits claimed that physical surveillance was of

limited use because the government could not determine

which of the people entering and exiting the Ministry were

cannabis suppliers as opposed to ordinary Ministry members.

Finally, the pole camera was not able to video the Ministry’s

side entrance and could not capture audio. The TT3

application explained that during the time the TT1 and TT2

wiretaps were in operation, physical surveillance continued

to be ineffective, partly due to changed circumstances like

Rev. Christie’s ankle injury that left him homebound for a

period of time.

With respect to confidential informants and undercover

agents, the affidavits stated that both techniques were of

limited utility because Rev. Christie was reluctant to discuss

his supply methods with Ministry members. The affidavits

also predicted that if the informant tried to purchase large

quantities of cannabis in an effort to draw out the suppliers,

he would likely arouse Rev. Christie’s suspicions. The

affidavits concluded that recruiting additional informants

would be difficult given that Hilo is a tight-knit community,

and cited one example of a person who was arrested and

claimed to work for Rev. Christie but refused to cooperate.

Similarly, the undercover agent’s role ended after Rev.

Christie realized that he was not a sincere Ministry member

but was actually a DEA agent.

Finally, pen registers could not bring the investigation

home because they could not disclose the content of

communications and, in most cases, failed to convey

information about the parties to such communications.

UNITED STATES V. CHRISTIE 37

3

Third, the affidavits ran through a list of traditional

methods that had not been tried and explained why each was

unlikely to succeed.

Vehicle trackers were said to be inadequate because most

suppliers brought their cannabis to the Ministry, so tracking

Rev. Christie’s vehicle would not be effective. Moreover, as

noted, the government’s physical surveillance could not

distinguish between suppliers and ordinary Ministry

members, except for one time when the government

identified a supplier carrying a marijuana plant into the

Ministry, but he came and left too quickly for the government

to put a tracker on his vehicle. Likewise, the TT3 application

explained why vehicle trackers could not be applied to those

suppliers who had been identified by the TT1 and TT2

wiretaps and prior physical surveillance, because their

vehicles were parked in front of the Ministry only briefly and

within view of multiple businesses. Finally, the affidavits

noted that Hilo is comprised mostly of large rural areas, and

for that reason vehicle trackers likely would not be able to

pinpoint where marijuana was being grown even if they could

be affixed to the vehicles of known suppliers.

The affidavits then explained that issuing grand jury

subpoenas would be ineffective because people would likely

invoke their Fifth Amendment privilege not to testify and

could alert Rev. Christie to the investigation.

The affidavits likewise dismissed subpoenaing business

and bank records because, it said, doing so could expose the

investigation. The affidavits also stated (erroneously) that the

38 UNITED STATES V. CHRISTIE

Ministry did not use banks because it operated on a “cash and

carry” basis.

Finally, the affidavits explained that search warrants

would not be effective because they probably would not

identify Rev. Christie’s sources, and also because executing

search warrants would blow the lid off the investigation.

C

We conclude that each affidavit contains a full and

complete statement of the facts in compliance with

§ 2518(1)(c). We have emphasized in the past that courts

reviewing necessity are to “employ a ‘common sense

approach’ to evaluate the reasonableness of the government’s

good faith efforts to use traditional investigative tactics or its

decision to forego such tactics based on the unlikelihood of

their success.” United States v. Gonzalez, Inc., 412 F.3d

1102, 1112 (9th Cir. 2005) (quoting United States v.

Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001)). That being

said, wiretap applications must contain more than “boilerplate

conclusions that merely describe inherent limitations of

normal investigative procedures.” Blackmon, 273 F.3d at

1210. But minor deficiencies in detail will not doom an

affidavit. Our reasoning in Rivera makes clear that we

evaluate “the level of detail in the affidavit as a whole,”

rather than piecemeal. 527 F.3d at 899 (emphasis added); see

also id. at 899–901.

Here, the affidavits’ discussions of physical surveillance,

vehicle trackers, pen registers, confidential informants, and

undercover agents do more than enough to demonstrate the

wiretaps’ necessity. While those sections admittedly contain

some boilerplate, each one also gives several case-specific

UNITED STATES V. CHRISTIE 39

reasons why continued use of the technique in question would

likely be ineffective without a wiretap. Moreover, given that

the government investigated the Ministry for nearly two years

before applying for the wiretaps, we cannot say that the

government sought “to use the wiretap as the initial step” in

its investigation. Id. at 902. The affidavits suffice to pass

legal muster under the flexible, common-sense standard

outlined above.

D

As in Rivera, in this case the government “could probably

have relied on [non-wiretap] techniques alone to successfully

prosecute a few individuals.” Id. But the government’s

legitimate interest extended beyond prosecuting a few

individuals; it encompassed exposing the entire suspected

conspiracy. Id. And, like the defendants in Rivera, the

Christies “may well be correct” that the government “did not

use traditional techniques as much as it could have.” Id. at

903. Perhaps the government could have tried harder to

recruit another confidential informant, for instance. But we

have “repeatedly held that ‘law enforcement officials need

not exhaust every conceivable alternative before obtaining a

wiretap.’” Id. (quoting United States v. Canales Gomez,

358 F.3d 1221, 1225–26 (9th Cir. 2004)). In the end, we are

satisfied that the issuing court did not abuse its discretion in

authorizing the wiretaps.

E

Finally, the Christies contend that defects in the Sze

Affidavits should have at least won them an evidentiary

hearing pursuant to Franks, 438 U.S. 154.

40 UNITED STATES V. CHRISTIE

To obtain a Franks hearing, a defendant must make “a

substantial preliminary showing that a false statement was

deliberately or recklessly included in an affidavit submitted

in support of a wiretap order, and the false statement was

material to the district court’s finding of necessity.” United

States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004). False

statements are material “if the wiretap application purged of

the false statements would not support findings of probable

cause and necessity.” Id. We review de novo the district

court’s denial of a Franks hearing, but we review for clear

error the district court’s underlying finding that the

government did not intentionally or recklessly make false

statements. United States v. Meek, 366 F.3d 705, 716 (9th

Cir. 2004).

The Christies are not entitled to a Franks hearing. The

district court found one false statement in the Sze Affidavits,

namely, the statement that the Ministry operated on a “cash

and carry basis.” But the court concluded, rightly, that this

error was not material. The district court found that the

government had not made any other false statements, let

alone knowingly or recklessly so. Nothing in the Christies’

briefing before us shows that the district court’s

determinations were clearly erroneous.

VI

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.