Petition for Writ of Certiorari — Ben Yahweh v. United States

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Supreme Court, U.c

ny FILED

96 101 JUL 17 19%

No. office OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

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YAHWEH BEN YAHWEH, a/k/a,

ROBERT LOUIS BEASLEY, JR., a/k/a DAN ISRAEL,

RUFUS PACE, a/k/a AHAZ ISRAEL,

ERNEST LEE JAMES, a/k/a AHINADAB ISRAEL,

RICHARD INGRAHAM, a/k/a JOB ISRAEL,

LINDA GAINES, a/k/a JUDITH ISRAEL,

WALTER LIGHTBURN, a/k/a AMRI ISRAEL,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

7

PETITION FOR WRIT OF CERTIORARI

¢

Benepict P. KUEHNE

Counsel of Record

SALE & KUEHNE, P.A.

NationsBank Tower, Suite 2100

100 S.E. 2d Street

Miami, Florida 33131-2154

Telephone: 305/789-5989

Fax: 305/789-5987

Email: ben.kuehne@counsel.com

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

sd Bie ns thy dota Da i Neh Ps tatoo Band

QUESTIONS PRESENTED FOR REVIEW

1. Does the prosecution of a legitimate religious

organization as an enterprise for purposes of a racketeer-

ing conspiracy violate fundamental notions of religious

freedom and extend beyond the ambit of the RICO stat-

ute?

2. Can trial courts be permitted to utilize a supple-

mental jury instruction to encourage the jury to reach a

verdict, even after the jury several times announced its

inability to reach a verdict and after the court was aware

of the jury’s numerical division?

ii

LIST OF PARTIES

The parties to the proceedings in the court whose

judgment is sought to be reviewed are:

Robert Louis Beasley, Jr.

Linda Gaines, a/k/a Judith Israel

Richard Ingraham, a/k/a Job Israel

Ernest Lee James, a/k/a Ahinadab Israel

Walter Lightburn, a/k/a Amri Israel

Rufus Pace, a/k/a Ahaz Israel

United States of America

Yahweh Ben Yahweh

No corporate entities are parties to this proceeding.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

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A. Course of Proceedings and Disposition Below.. 2

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REASONS FOR GRANTING THE WRIT ........... 7

I.

IDENTIFYING A LEGITIMATE RELIGIOUS

ORGANIZATION AS AN ENTERPRISE FOR PUR-

POSES OF PROSECUTION OF A RACKETEERING

CONSPIRACY IS NOT WITHIN THE AMBIT OF

THE RICO STATUTE AND VIOLATES FUNDA-

MENTAL NOTIONS OF RELIGIOUS FREEDOM 8

II.

THE USE OF A SUPPLEMENTAL JURY INSTRUC-

TION COMING AFTER THE JURY SEVERAL

TIMES ANNOUNCED ITS INABILITY TO REACH

A VERDICT AND AFTER THE COURT WAS

AWARE OF THE JURY’S NUMERICAL DIVISION,

MUST BE PROHIBITED AS AN UNCONSTITU-

TIONAL COERCION OF THE RESULTING VER-

Ca aah cose bhp kee e ee ee hesnanceeevioees 12

iv

TABLE OF AUTHORITIES

CASES

Allen v. United States, 164 U.S. 492 (1896) ....4, 12, 13

Brasfield v. United States, 272 U.S. 448 (1926)...

Burton v. United States, 196 U.S. 283 (1905)......

Duncan v. Louisiana, 391 U.S. 145 (1968).........

H. J. Inc. v. Northwestern Bell Telephone Co., 492

US: CO 040 ee cee

Jimenez v. Myers, 40 F.3d 976 (9th Cir. 1993), cert.

denied, __, U.S. __, 115 Si Ct. 60 (1994)......

Lawson v. Dugger, 844 FSupp. 1538 (S.D. Fla.

ROPE e ctv < FUN shies chee HesStR ie et arndeeees

National Organization for Women v. Scheidler, 510

LS. SO 000 SS Boos sk ee ee

United States v. Bagaric, 706 F.2d 42 (2d Cir), cert.

denied, 464 U.S. 640.(1963) .... . 0 cccisercvcsces

United States v. Beasley, 73 F.3d 1518 (11th Cir.

i ESP ER ELST REE STEP Ee Fed LUE EER See EVIE NE

United States v. Dickens, 695 F.2d 765 (3d Cir.

1982), cert. denied, 482 U.S. 1092 (1983)........

United States v. Turkette, 452 U.S. 576 (1981).....

United States v. Webb, 816 F.2d 1263 (8th Cir.

i SEMPER TPE Oke ORE Pee he PPro ET Lee ae

United States v. Zielie, 734 F.2d 1447 (11th Cir.

1984), cert. denied, 469 U.S. 1189 (1985)........

Werner v. McCotter, 49 F.3d 1476 (10th Cir.), cert.

denied, __ U.S. __, 115 S. Ct. 2625 (1995) ....

Wisconsin v. Yoder, 406 U.S. 205 (1972) ..........

eR

Page

Vv

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

United States Constitution

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STATUTES

18 U.S.C

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| RR ree rer ty meme rer ope oe SS CPt Re

28 U.S.C

MRL G CUCM ahs Peed PoE RRR OLE ORs W TORE OEE A 1

Religious Freedom Restoration Act 42 U.S.C.

DES Sine Wh 4CCKs bees 0 ad SA oe oa ae 2

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OTHER AUTHORITY

Melton, G.J., The Encyclopedia of American Reli-

po eo A. . RRR err me pen ere 8

PETITION FOR WRIT OF CERTIORARI

Petitioners in this case are Yahweh Ben Yahweh,

Robert Lewis Beasley, Jr., a/k/a Dan Israel, Rufus Pace,

a/k/a Ahaz Israel, Ernest Lee James, a/k/a Ahinadad

Israel, Richard Ingraham, a/k/a Job Israel, Linda Gaines,

a/k/a Judith Israel, and Walter Lightburn, a/k/a Amri

Israel. Petitioners request that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Eleventh Circuit.

+

OPINIONS BELOW

The decision of the Eleventh Circuit affirming peti-

tioner’s convictions is reported as United States v. Beasley,

73 F.3d 1518 (11th Cir. 1996).

4

JURISDICTION

On January 5, 1996, the Eleventh Circuit affirmed

petitioners’ convictions and sentences imposed by the

United States District Court for the Southern District of

Florida. The Eleventh Circuit denied rehearing and

rehearing en banc on April 18, 1996. Petitioners invoke

the jurisdiction of this Court pursuant to 28 U.S.C. § 1254

and Supreme Court Rule 13.1.

¢

PROVISIONS OF LAW

U.S. Constitution, First Amendment.

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof...

U.S. Constitution, Fifth Amendment.

No persons shall . . . be deprived of life, liberty, or

property without due process of law...

U.S. Constitution, Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

5 a

Racketeer Influenced and Corrupt Organizations.

18 U.S.C. § 1962.

Reproduced in the Appendix.

Religious Freedom Restoration Act of 1993.

42 U.S.C. § 1988 and §§ 2000bb - 2000bb-4.

Reproduced in the Appendix.

¢

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below.

This is an extraordinary case. Petitioner Yahweh Ben

Yahweh is the religious leader of the Nation of Yahweh, a

recognized religion which has its historical roots in the

Hebrew Israelite movement. From the Miami headquar-

ters at the Temple of Love, Yahweh Ben Yahweh led the

many followers of the Nation of Yahweh in the course of

their religious practices, preaching a message of spiritu-

ality, community, belief in God, and self-sufficiency. The

Yahweh religion attracted adherents throughout the

United States and the world, with followers in more than

40 United States cities and more than 1,000 locales world-

wide. The membership of the Nation of Yahweh included

many dedicated practitioners who lived a communal life-

style in Miami, shunned civilian clothing in favor of the

religiously significant white robes, and rejected their

birth names by acquiring biblical names marking them as

God’s chosen people. Although the majority of Yahweh

members were Black, the religion attracted Hispanic,

White, Jewish, and Caribbean members.

The government, however, saw the Nation of Yahweh

in a different light, accusing Yahweh Ben Yahweh of

presiding over a racketeering enterprise in the form of

the Nation of Yahweh. In a superseding indictment

returned by a federal grand jury in the Southern District

of Florida, the government claimed the religious organi-

zation, through Yahweh Ben Yahweh and 18 of its mem-

bers, engaged in a pattern of racketeering consisting of

murders, arson, and acts of extortion. The superseding

indictment charged petitioners and 12 codefendants with

a RICO conspiracy (18 U.S.C. §§ 1962(d) & 1963), a sub-

stantive RICO count (18 U.S.C. § 1962(c)), and extortion

(18 U.S.C. § 1951). The indictment alleged 19 acts of

racketeering, including murders, attempted murders,

arson and extortion.!

At the conclusion of a five-month trial, petitioners

were found guilty only of the RICO conspiracy. The jury

was troubled during deliberations, announcing it could

not “unanimously agree on any defendant in” the RICO

conspiracy (R87-14245). The district court instructed the

jury to continue deliberations (R87-14272), after which

the jury persisted in its inability to reach a unanimous

verdict (R87-14277). The court gave the jury a modified

Allen charge? (R87-14291-14300) which did not assist the

jury (R87-14316). Subsequent jury notes expressed confu-

sion about the instructions (R88-14347, 14389), resulting

in the giving of modifications to those instructions

(R88-14382-14383; R9-1126-16) after the court became

aware of the jury’s numerical division (R87-14304).

The district court imposed non-guideline sentences

on all defendants, with Yahweh Ben Yahweh receiving a

sentence of 18 years incarceration. Gaines and Ingraham

received sentences of 16 years imprisonment. Beasley

received a sentence of 15 years. Pace received a 15'/2 year

sentence. Lightburn and James received identical 16'/2

year prison sentences.

Petitioners appealed their convictions and sentences

to the Eleventh Circuit Court of Appeals. There, they

raised a number of evidentiary and procedural issues.

1 Prior to trial, the government dismissed one murder as a

racketeering act, and the district court dismissed the extortion

count and the extortion racketeering predicate act during trial.

2 Allen v. United States, 164 U.S. 492 (1896).

iii

The Eleventh Circuit affirmed the convictions and sen-

tences. United States v. Beasley, 72 F.3d 1518 (11th Cir.

1996). The court found the evidence was sufficient to

sustain the RICO conspiracy convictions and that “the

government’s naming of the Yahweh Nation as the RICO

enterprise was proper.” Id. at 1525. The appellate court

also ruled that evidence of the religious beliefs and prac-

tices of the National of Yahweh “was highly relevant to

the jury’s understanding of the existence, motives, and

objectives of the RICO conspiracy and the means by

which it was conducted.” Id. at 1527. The court further

declared that the trial was not unfairly tainted by pros-

ecutorial misconduct and due process violations, and that

because the supplemental jury instruction “preceded the

note indicating the division of the jurors,” the instruction

was not inherently coercive. Id. at 1529.

B. Factual Recitation.

The lengthy trial in this case was essentially a cru-

sade against the tenets of the Nation of Yahweh. The

religious beliefs and practices of the Nation were chal-

lenged and often ridiculed by the prosecution. Referring

to the Nation as a “so-called religion” (R23-34), the pros-

ecution constantly belittled the Nation of Yahweh’s claim

to the ancient heritage of the Hebrew Israelite.

The Nation of Yahweh is a recognized religious orga-

nization throughout the world (R56-7550; R52-10383).9

3 The courts have recognized the religious legitimacy of the

Nation of Yahweh. Lawson v. Dugger, 844 F.Supp. 1538 (S.D. Fla.

1994).

Yahweh Ben Yahweh, the spiritual leader of the Nation of

Yahweh, preached the message of Yahweh through his

sermons and writings.

The religious headquarters in Miami, the Temple of

Love (R70-10400-10402), was a vibrant, self-sustaining

community, with legitimate businesses and other activ-

ities used by members. Although not required to do so,

Yahweh adherents were an identifiable group, often

wearing distinctive white robes as a symbol of purity

(R70-10345). Yahweh teachings encouraged both spiritual

and physical well-being, and advanced a healthy kosher

diet consisting primarily of vegetables (R70-10343). Mem-

bers practiced abstinence by limiting sexual activity to

procreation purposes (R70-10343-10344). The Nation of

Yahweh had a generally positive reputation in the com-

munity (R65-9429; R75-11503).

According to the prosecution evidence, the Nation of

Yahweh had a dark side, which the government claimed

represented a racketeering enterprise (R5-427-1-2). From

1981 through 1987, members of the Nation of Yahweh -

“enterprise” — allegedly engaged in multiple acts of mur-

der, arson, and extortion (R5-427-2-3). According to the

prosecution’s witnesses, Yahweh Ben Yahweh directed

followers in these misdeeds, although there was no sug-

gestion that Yahweh Ben Yahweh himself engaged in any

of the predicate acts.

Through three former members of the Nation of Yah-

weh, the government presented evidence about admitted

homicides which these witnesses claimed were directed

by Yahweh Ben Yahweh. Rozier contended he was a

member of a secret sect within the Nation of Yahweh

known as the “Brotherhood,” established for the purpose

of defending the Nation from enemies (R37-3540).

According to Rozier, members of the Brotherhood, espe-

cially Rozier, committed the racketeering predicate acts.

Among the alleged racketeering acts were the “white

devil” killings in which Yahweh purportedly directed

that “death angels” were to kill a white person. Other

murders included the execution of dissidents or enemies

of the Nation of Yaheh.4

REASONS FOR GRANTING THE WRIT

The judgment of the United States Court of Appeals

for the Eleventh Circuit in this case so far departs from

the accepted and usual course of judicial proceedings and

approves such a grievous departure from the law by the

district court as to call for the exercise of this court’s

certiorari jurisdiction.

4 After the federal RICO trial, Yahweh Ben Yahweh and

other federal defendants proceeded to trial to defend against

charges brought by the State of Florida involving the very

murders which had formed the predicate acts in the federal

RICO counts. The jury acquitted all defendants of the

substantive homicide offenses. State v. Yahweh Ben Yahweh,

Circuit Case No. 92-21518 (Dade County, Florida).

I.

IDENTIFYING A LEGITIMATE RELIGIOUS ORGANI-

ZATION AS AN ENTERPRISE FOR PURPOSES OF

PROSECUTION OF A RACKETEERING CONSPIRACY

IS NOT WITHIN THE AMBIT OF THE RICO STATUTE

AND VIOLATES FUNDAMENTAL NOTIONS OF

RELIGIOUS FREEDOM.

The RICO conspiracy alleged in this case described the

Nation of Yahweh as the racketeering enterprise. The appel-

late court upheld that unprecedented use of the RICO stat-

ute, notwithstanding that the Nation of Yahweh is a

recognized, established, legitimate religion.> The govern-

ment, however, made that religion out to be a criminal

organization, notwithstanding its firm roots in the universal

principles of faith, hope, and charity that bind together most

organized religions. While this Court and other courts have

permitted a wide range of legitimate enterprises to be named

as the vehicle through which racketeering acts are commit-

ted, never before has organized religion been put on trial in

such a manner. Compare United States v. Turkette, 452 U.S. 576,

580 & 587 (1981); United States v. Zielie, 734 F.2d 1447, 1463

(11th Cir. 1984), cert. denied, 469 U.S. 1189 (1985); United States

v. Bagaric, 706 F.2d 42 (2d Cir), cert. denied, 464 U.S. 840

(1983). The appellate court’s first-time approval of this

assault on organized religion as the basis for a racketeering

prosecution not only departs from the purpose of the rack-

eteering law, but also raises a serious conflict with our

constitutional concept of religious freedom in this country.

> The Yahweh religion has been recognized in serious

reference and research publications. Melton, G.J., The

Encyclopedia of American Religions 147 (1989).

,

While courts have frowned on efforts to place artifi-

cial limits on what constitutes a pattern of racketeering

activity, H. J. Inc. v. Northwestern Bell Telephone Co., 492

U.S. 229, 239 (1989), the application of the racketeering

enterprise and pattern elements to an admittedly legiti-

mate religion is far beyond the contours of the RICO

statute. In National Organization for Women v. Scheidler, 510

U.S. 249 (1994), this Court recognized that a RICO enter-

prise is “the vehicle through which the unlawful pattern

of racketeering is committed ...” As the Scheidler court

mandated, it is the enterprise itself “that engages in a

pattern of racketeering activity.” Id. That very purposeful

limitation cannot and does not, as a matter of law, apply

to a legitimate, organized religion. Until the Eleventh

Circuit decision, no court had so far extended the reach of

RICO.

The appellate court ruling also conflicts with the

fundamental principle respecting the free exercise of reli-

gion as set out in the Religious Freedom Restoration Act

of 1993. Pub.L. No. 103-141, 107 Stat. 1488 (42 U.S.C.

§§ 1988 & 2000bb-2000bb-4). In enacting the Religious

Freedom Restoration Act, Congress expressly found that

“governments should not substantially burden religious

exercise without compelling justification{.]” 42 U.S.C.

§ 2000bb(a)(3). Under the Religious Freedom Restoration

Act, limitations on the free exercise of religion are gener-

ally prohibited:

Government may substantially burden a

person’s exercise of religion only if it demon-

strates that application of the burden to the

person —

10

(1) is the furtherance of a compelling gov-

ernmental interest; and

(2) is the least restrictive means of further-

ing that compelling governmental interest.

42 U.S.C. § 2000bb-1. While members of a religious orga-

nization are not immune from prosecution under RICO,

defining an enterprise as an organized religion is not only

an attack on religious freedoms, but a substantial burden

to an individual’s exercise of religion. Consider the

obvious implications of the appellate court ruling that

permits a religion itself to be put on trial: RICO conspir-

acy prosecutions brought against the entire Islamic faith

because clerics and followers are believed to be involved

in domestic terrorism; RICO allegations brought to bear

on mainstream Christian religious ministries because pro-

ponents of the faith engaged in a campaign to prevent

freedom of choice by illicit means. The dangers arising

from this judicial expansion of the RICO statute are both

tangibly and constitutionally troublesome.

This is a case which merits serious review and which

should be of substantial concern to this Court. RICO may

well extend to a subset of actors within an organized

religion, as was the case in United States v. Dickens, 695

F.2d 765 (3d Cir. 1982), cert. denied, 482 U.S. 1092 (1983),

involving a group of militant Muslims who practiced

armed robbery. That is certainly allowable. But where the

religion itself is made the racketeering enterprise, it is as

though God’s laws have been challenged as subservient

to the laws of man. That is, after all, what is so apparent

in this case.

11

Because the government did not charge a particular

group of Yahweh members, but branded the entire reli-

gion as a racketeering enterprise, there is little doubt that

the government's intention was to destroy an entire reli-

gion, marking its membership as people following a cor-

rupt path. This is more than a “substantial burden” on

the exercise of religion in that the government’s approach

significantly inhibited or constrained conduct manifest-

ing a central tenet of the Nation of Yahweh's religious

beliefs and denied its membership the reasonable oppor-

tunity to pursue the chosen faith. See Werner v. McCotter,

49 F.3d 1476, 1480 (10th Cir.), cert. denied, _ __: U.S. __, 115

S. Ct. 2625 (1995). “[OJnly those interests of the highest

order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion” Wiscon-

sin v. Yoder, 406 U.S. 205, 215 (1972). The appellate court’s

treatment of the Nation of Yahweh essentially relegates

the previously vibrant, respected religion to the garbage

heap of history.

That result is why consideration by this Court is so

important and especially significant. By fairly limiting the

expansive reach or RICO, the Court does not in any way

undercut the government's ability to prosecute racketeer-

ing violations. The Court will, however, define the clear

line between organized religion and those members of a

religious group who chose to follow a path inconsistent

with the law. Certiorari review will enable this Court to

clarify this apparent conflict and to resolve the important

question presented.

12

II.

THE USE OF A SUPPLEMENTAL JURY INSTRUC-

TION, COMING AFTER THE JURY SEVERAL TIMES

ANNOUNCED ITS INABILITY TO REACH A VER-

DICT AND AFTER THE COURT WAS AWARE OF THE

JURY’S NUMERICAL DIVISION, MUST BE PROHIB-

ITED AS AN UNCONSTITUTIONAL COERCION OF

THE RESULTING VERDICT.

This case was unique in so many respects. Among the

most unusual occurrences was the extent to which the

district court attempted to salvage a complicated five-

month criminal trial by constantly persuading the jury to

reach a verdict. Not satisfied with the jury’s multiple

confessions of being deadlocked and hung, the district

court persisted in manipulating the jury into concluding

the case at a substantial cost to the petitioners’ right to a

fundamentally fair trial.

The district court gave a modified Allen charge.® Soon

after receiving the Allen charge, the jury foreperson

requested to speak with the court. The court, in response,

sent a note to the jury asking for an explanation in

writing. The next note from the jury revealed the jurors’

numerical division.” The district court announced to the

parties that the court had become aware of the numerical

division, but did not reveal the division to the jury.

6 Allen v. United States, 164 U.S. 492 (1896). This occurred

after 12 hours of deliberations, when the jury advised the court

of its inability to reach a verdict.

7 In total, the jury presented six notes to the court

pertaining to their inability to reach a verdict. The note

identifying the numerical division has vanished and was not a

part of the record on appeal.

13

Instead of merely allowing the jury to deliberate

further or declaring a mistrial, the trial court opted to

further instruct the jury, first by explaining the jury

should continue its deliberations, and then modifying the

RICO conspiracy instruction by deleting a portion of the

original charge. The trial court by this time knew the

jury’s division, knew that further instructions could move

the fragile minority, and opted to use forbidden informa-

tion to prevail upon the jury to reach a verdict, which

occurred the very next day.

Although it is legally unprecedented for a court to

reinstruct the jury after knowing the jury was hopelessly

deadlocked and knowing the jury’s numerical division,

the appellate court in this case concluded that the multi-

ple jury notes, the Allen charge, and the supplemental

instructions were not “inherently coercive.” 73 F.2d at

1529. The court stated that it could reverse the convic-

tions “only if we find under the totality of the circum-

stances that either the district court’s learning of the

numerical division or the giving of the Allen charge, or a

combination of the two, was inherently coercive.” Id. By

approving the jury manipulation, the appellate court

effectively enabled the district court to become the 13th

juror who participated in bringing about a verdict. That is

inconsistent with controlling precedent.

A trial by jury is fundamental to the American

scheme of justice and is an essential element of due

process. Duncan v. Louisiana, 391 U.S. 145 (1968). This

court has prohibited courts from inquiring about a jury’s

numerical division during deliberations. Brasfield v.

United States, 272 U.S. 448 (1926). In this case, after the

court was aware of the jury’s inability to reach a verdict

14

and the numerical division of that jury, the trial court

continued to instruct the jury in ways which manipulated

the jury. This was the same type of post-division

instruction found to be coercive by the Eighth Circuit in

United States v. Webb, 816 F.2d 1263 (8th Cir. 1987).

In recent years, courts have come to frown on Allen

jury instructions designed to persuade minority jurors.

See generally Jimenez v. Myers, 40 F.3d 976 (9th Cir. 1993),

cert. denied, _ _ U.S. ____, 115 S. Ct. 60 (1994). When a court

is aware of particular difficulties of jury deliberations,

“the most extreme care and caution [are] necessary in

order that the legal rights of the defendant should be

preserved.” Burton v. United States, 196 U.S. 283, 307

(1905). The trial court’s failure to remain neutral, instead

instructing the jury in a manner intended to persuade

them to reach a verdict, was mischief of the worst sort.

The appellate court’s acceptance of this situation causes

8 The court’s supplemental instruction stated:

We have used some standard jury instructions

and one sentence in these instructions seems to be

creating confusion. Therefore, let me suggest that you

delete the following sentence in the first paragraph of

page 16: So, if a defendant has an understanding of

the unlawful nature of a plan and knowingly and

willfully joins in that plan on one occasion, that is

sufficient to convict him for conspiracy even though

he did not participate before, and even though he

played only a minor part.

As to the second area of confusion which you

indicate, let me answer you as follows:

LADIES AND GENTLEMEN:

You must, if you can, reach a decision as to each count

in the indictment as it pertains to each defendant.

15

constitutional conflict with the defendant's right to a fair

trial by an impartial jury.

The issue posed for evaluation by this court is the

extent to which trial courts are permitted to go when

attempting to lead the jury to a verdict. This case is laden

with indications that the district court, in an effort to

salvage a five-month complex racketeering conspiracy

trial, wanted the jury to reach a unanimous verdict, not-

withstanding the jury’s persistent refusal to do so. The

district court’s use of deliberation information is the type

of manipulation that moves the court from the role of an

impartial jurist to a partisan “super juror.” The appellate

court’s approval of a situation which flies in thé face of

controlling precedent warrants serious examination by

this court. The rule established by the appellate court is

that trial judges can overreach in persuading a jury to

return a verdict, particularly if the case is complex or

lengthy. That is an intolerable situation, justifying this

court’s prompt attention. Certiorari review is the only

effective way of resolving what is an apparent and

obvious conflict with existing precedent. The appellate

court’s decision departed from the rationale of the

“numerical division” cases and has set that court on an

especially troublesome precedential path. The case pre-

sents a question of exceptional importance, especially

given the rise of complex criminal mega-trials in which

the courts face enormous pressures to resolve cases. For

all these reasons, certiorari review is a proper and neces-

sary course in this case.

16

CONCLUSION

The decision of the appellate court threatens funda-

mental notions of religious freedom and fairness. Pros-

ecutions of organized religion have no place in our

criminal justice system absent the most extraordinary

circumstances. A full frontal assault on an organized

religion jeopardizes the religious principles of the entire

Nation. The conflict between the application of the RICO

law and the Religious Freedom Restoration Act in this

case is palpable. Because this case presents questions of

national importance, this Court should exercise its discre-

tion to issue the writ of certiorari.

Respectfully submitted,

Benepict P. KUEHNE

SALE & KUEHNE P.A.

NationsBank Tower, #2100

100 S.E. 2nd Street

Miami, Florida 33131-2154

Telephone: 305/789-5989

Fax: 305/789-5987

EMail: ben.kuehne@counsel.com

Counsel for Petitioners

CONTENTS OF APPENDIX

Page

United States v. Beasley, 73 F.3d 1518 (11th Cir.

ER aN OEE Ds AE EAD Spe epee Fee ae eee App. 1

Re EE cain ous a cat ade bd wen und ask App. 30

Racketeer Influenced and Corrupt Organizations

PO ee Re A BI cil bad ses wdersad covers App. 33

Religious Freedom Restoration Act of 1993

Me Ra RUT Rahal hee ke ce ek soe shee es App. 35

42 U.S.C. §§ 2000bb-2000bb-4 ................ App.

35

App. 1

UNITED STATES of America,

Plaintiff-Appellee,

V.

Robert Louis BEASLEY, Jr., a/k/a “Dan Israel,” Rufus

Pace, Sr., a/k/a “Ahaz Israel,” Ernest Lee James,

a/k/a “Ahinadad Israel,” Richard Ingraham, a/k/a

“Job Israel,” Linda Gaines, a/k/a “Judith Israel,”

Walter Lightburn, a/k/a “Amri Israel,” Yahweh, Ben

Yahweh, f/k/a “Hulon Mitchell, Jr.,” a/k/a “Hulon

Shah,” & “Moses Israel,” Defendants-Appellants.

No. 92-4773.

United States Court of Appeals,

Eleventh Circuit.

Jan. 5, 1996.

Defendants were convicted in the United States Dis-

trict Court for the Southern District of Florida, No.

90-868-CR-Roettger, Norman C. Roettger, Jr., Chief Judge,

of Racketeer Influenced and Corrupt Organizations Act

(RICO) conspiracy, and they appealed. The Court of

Appeals held that: (1) evidence was sufficient to prove

RICO conspiracy; (2) evidence of defendant’s religious

practices and beliefs was properly admitted; (3) evidence

that defendant was racist was admissible; (4) defendants

were not prejudiced by alleged prosecutorial misconduct;

(5) any Brady violations were harmless; (6) defendants

were not prejudiced by court’s exclusion of testimony

that witness was a psychopath who had no conception of

the truth; (7) modified Allen instruction could not have

had coercive effect upon jury; (8) coconspirator statement

was admissible; and (9) trial court did not abuse its

discretion in excluding defendant from trial.

Affirmed.

App. 2

Michael G. Smith, Fort Lauderdale, FL, for Pace.

Clayton Kaeiser, Miami, FL, for James.

Mark Graham Hanson, Miami, FL, for Ingraham.

Paul A. McKenna, Coconut Grove, FL, for Gaines.

Steven H. Kassner, Coral Gables, FL, for Lightburn.

Benedict Kuehne, Miami, FL, for Yahweh.

Kendall Coffey, U.S. Attorney, Lisa Rubio, Linda Col-

lins Hertz, Albert Jordan, Miami, FL, for appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before EDMONDSON and DUBINA, Circuit Judges,

and CUDAHY*, Senior Circuit Judge.

PER CURIAM:

In a superseding indictment, a federal grand jury in

the Southern District of Florida charged appellants

Robert Louis Beasley, Jr. (“Beasley”), Rufus Pace, Sr.

(“Pace”), Ernest Lee James (“James”), Richard Ingraham

(“Ingraham”), Linda Gaines (“Gaines”), Walter Lightburn

(“Lightburn”), Yahweh Ben Yahweh (“Yahweh”),! and 12

codefendants with a RICO conspiracy, under 18 U.S.C.

* Honorable Richard D. Cudahy, Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation.

1 The record shows that Yahweh Ben Yahweh has been

called by a number of names throughout his lifetime. Although

his birth name is Hulon Mitchell, Jr., he rejects that name as a

slave name. For clarity’s sake, we follow the practice in the

district court and refer to this defendant as “Yahweh.”

:

5

Ee

App. 3

§ 1962(d) (count I). Count I listed 19? racketeering acts of

murder, extortion, and arson. Appellants Yahweh, Gaines,

Lightburn, Beasley, James, Pace, and five codefendants

were also charged with a substantive RICO count under

18 U.S.C. § 1962(c) (count II). Count III charged appel-

lants Yahweh and Gaines with extortion under 18 U.S.C.

§ 1951.

After a trial that lasted approximately five months,

appellants were found guilty of the RICO conspiracy

(count I). The jury acquitted Pace, James, and Beasley of

count Il. Yahweh, Gaines, Lightburn and Ingraham

received mistrials as to count II. Appellants filed various

opposed post-trial motions which were all denied.

The appellants were all sentenced pre-guidelines.*

Gaines and Ingraham were each sentenced to 16 years’

imprisonment and a $5,000.00 fine. Beasley was sen-

tenced to 15 years’ imprisonment and a $5,000.00 fine.

Pace received a 15'/2 year sentence and a $5,000.00 fine.

Lightburn and James were each sentenced to 16'/2 years

in prison and a $5,000.00 fine. Yahweh was sentenced to

18 years’ imprisonment and a $20,000.00 fine. Appellants

then perfected this appeal.

2 Count I originally contained 19 racketeering acts;

however, the government dismissed racketeering act 6 prior to

trial, and the aistrict court dismissed racketeering act 19 and

count III pursuant to Federal Rule of Criminal Procedure 29.

3 The United States Sentencing Guidelines (“U.S.S.G.”)

became effective November 1, 1987.

App. 4

I. BACKGROUND FACTS

In 1979, Yahweh and Gaines moved to Miami, Flor-

ida, and laid the foundations for a religious cult later to

be known as the “Yahwehs” or “Black Hebrew Israelites.”

Yahweh taught that blacks are the true Jews, that God

and Jesus are black, and that he had been chosen by “the

Terrible Black God, Yahweh” to lead blacks from years of

oppression to the promised land of Israel.

Yahweh’s followers were required to give up their

legal or slave names and to adopt Hebrew names, all of

which had a last name of Israel. Societal norms were

discarded as Yahweh established his own laws, which

were purportedly based upon the Bible. Yahweh's fol-

lowers grew, and by late 1980, he had the financial means

to buy a building in Miami known as the “Temple of

Love.” Many of Yahweh’s followers chose to be full-time

workers who were required to give all of their posses-

sions to the Temple. Businesses were established inside

the Temple, including a printery, a grocery store, and a

beauty salon.

Between late 1981 and 1982, Yahweh instituted pro-

found changes in the administration of the Yahweh reli-

gion. First, Yahweh announced that he was the son of

God and renamed himself Yahweh Ben Yahweh (God, the

son of God). He encouraged his followers to break from

the “immoral world” and to give up their outside jobs

and move into the Temple. Clothing changed from street

clothes to African apparel and then to white robes and

turbans. Yahweh taught his followers to avoid their birth

families, because they were not “true” families.

App. 5

When Yahweh's followers moved into the Temple,

families were often separated. Tight security was estab-

lished at the Temple; all who entered were searched.

Yahweh established a trusted group of male bodyguards

called the “Circle of Ten” who protected Yahweh and

stood guard at all Temple entrances with 5 to 5 foot

wooden staffs, swords, or machetes. Yahweh taught that

uninvited entrants to the Circle would lose their lives.

Gaines became Yahweh’s companion and “right hand

man.” Among her duties, Gaines collected money and

possessions from full-time workers and handled the Tem-

ple’s finances. Gaines had special privileges, including a

bodyguard. Yahweh sought to spread his influence

nationally by sending out specially trained and trusted

elders to establish satellite temples, distribute Yahweh

literature, and spread his teachings. Between 1982 and

1985, temples were established by a group of 40 or so

elders in several large metropolitan areas in the United

States.

Between 1981 and 1984, Yahweh’s power and influ-

ence grew, as did the Temple’s finances. Yahweh

demanded total loyalty and almost total control of the

members’ lives, which he achieved by “teaching against”

members who disagreed with or failed to fo!low his spiri-

tual teachings. Yahweh forced dissidents to stand at

meetings and openly face his ridicule. He directed cult

members to administer severe beatings to those who vio-

lated his rules. Followers feared for their lives if they did

something wrong, spoke out against Yahweh, or left the

Temple. In an effort to totally control his followers, Yah-

weh carefully regulated their food, sleep, and medical

care. All members were required to work long hours to

App. 6

further the Temple’s financial interests. Although Yahweh

preached brotherly love, he also directed members to

commit murder. Yahweh required that his followers pub-

licly state that they would die and kill for God Yahweh,

two requirements that he routinely propounded in teach-

ing sessions, during which the members literally shouted

in unison their willingness to do so.

As Yahweh’s power and influence continued to grow,

his teachings became black supremacist and violently

racist. Yahweh prophesied war between the black and

white races and called “white America” a country cursed

by God Yahweh and harboring God’s enemies. Yahweh

taught that one day, his group would chase white men,

whom he referred to as “white devils,” from the face of

the earth by killing them. Yahweh referred to God Yah-

weh as a “Terrible Black God” of war and violence and

taught that death to his enemies would be at the hand of

his “death angels.”

At Yahweh's direction, many murders and attempted

murders in the Miami area occurred. One of the most

violent members of the group, Robert Rozier (“Rozier”),4

testified at trial that an ultra-secret group called the

“Brotherhood” was established within the cult. This

group was to perform any task that Yahweh directed,

including murder. Yahweh conducted separate meetings

for Brotherhood members, which were to be kept secret

* Rozier was the key witness for the government. The

record demonstrates that he attended college at Berkeley in

California, but did not complete his education there because he

was drafted by the St. Louis Cardinals to play professional

football in the National Football League.

App. 7

under penalty of death. Among those present at Brother-

hood meetings were Rozier and defendants Dexter Grant,

Pace, Beasley, Ingraham, Maurice Woodside, James, Yah-

weh, and sometimes Gaines. To become a member of the

Brotherhood, one had to kill a white person and bring

proof of the kill to Yahweh in the form of a head, an ear,

or some other body part. Between April and October

1986, Yahweh sent his death angels into the Miami com-

munity on multiple occasions to kill white people ran-

domly and to commit acts of retribution against blacks

who interfered with the Yahwehs’ sales of products and

collection of donations. Yahweh also directed the killings

of white people as retribution for 400 years of oppression

and for specific acts of alleged police brutality against

blacks occurring at the time.

At the trial of this case, Yahweh took the stand and

testified in his own behalf. Additionally, Ingraham called

Paul George (“George”), a historian, as an expert witness

to testify that the Yahweh religion is a true religion.

We now briefly summarize each racketeering act.

Racketeering Act 1: Attempted Homicide of Eric

Burke.

When Burke broke away from the group, Yahweh

preached that he should be killed. The plan failed, how-

ever, notwithstanding Yahweh’s directions to his fol-

lowers to get machetes and “roll Burke’s head.”

Racketeering Act 2: Homicide of Aston Green.

Green was a member of the cult who attempted to

leave. Green returned to the Temple to retrieve his Bible,

at which time he was taken to a back room where 10 or so

App. 8

members beat him almost to the point of death. Semi-

conscious, Green was taken to a remote construction area

by Ingraham, John Foster, and Ricardo Woodside, where

Green, still alive, was decapitated with a machete. Upon

learning of the murder, Yahweh was delighted and

worked the crowd in the Temple into a frenzy where they

all stood and clapped.

Racketeering Acts 3 and 4: Homicide of Carlton

Carey; Attempted Homicide of Mildred Banks.

Carey was shot several times and died at the scene.

Banks was also shot, and she sustained a deep gash in her

neck during an attempt to decapitate her with a machete.

She survived but was unable to identify her assailants.

Racketeering Act 5: Homicide of Leonard Dupree.

Because Dupree was known to be a karate expert,

Yahweh openly challenged him to fight Lightburn, the

Yahwehs’ resident martial arts expert. The two men

squared off in front of about 30-60 Yahweh onlookers.

Dupree quickly knocked Lightburn down, at which point

Yahweh ordered all present, including Ingraham and

Maurice, to attack Dupree. Ingraham struck Dupree in

the face with a tire jack. Dupree was literally beaten to

death. During the struggle, Gaines locked the doors of

the Temple at Yahweh’s request. Yahweh allowed no one

to leave and made everyone, including children, strike

and kick Dupree’s lifeless body. Dupree’s body has never

been found.

App. 9

Racketeering Acts 7 and 8: Homicides of Glendell

Fowler and Kurt Doerr.

Yahweh told Rozier (who murdered six people at

Yahweh’s direction) to kill a white devil, cut his head off,

and become a son of God Yahweh. Rozier walked around

the Coconut Grove area of Miami, spotted an intoxicated

white man, followed him into an apartment, told the man

he was an angel of Yahweh, and then stabbed him to

death. Upon leaving the apartment, Rozier noticed a sec-

ond white man inside the apartment. Rozier also stabbed

him to death.

Racketeering Act 9: Delray Beach Arson.

The people in the Delray Beach neighborhood of

Miami had attacked several of the Yahweh members.

Yahweh selected 15-20 people to firebomb the area so that

similar incidents would not occur in the future. An alter-

cation occurred between the residents of the area and the

Yahwehs. Notwithstanding the fact that the police

arrived, the Yahwehs threw dozens of firebombs. Yahweh

ordered the arsonists to stand in front of the residences

and use their swords and machetes to murder anyone

who tried to exit the burning houses. The residents were

too terrified to come out and face Yahweh’s “death

angels.”

Racketeering Act 10: Homicide of Clair Walters.

Walters was found in an abandoned hotel with his

throat cut and his left ear removed. Yahweh member

Ardmore Canton later showed Rozier the ear that he had

cut from Walters’s lifeless body.

App. 10

Racketeering Act 11: Homicide of James Myers.

James M. Littlejohn (“Littlejohn”) told Rozier about

killing a white man. Littlejohn said that he had been

taught by Yahweh to stab the victim in the kidney area to

cause the victim to go into shock. When police found

Myers, he had been stabbed in the back and kidney area,

and although both ears had been cut, neither had been

severed from his body.

Racketeering Act 12: Homicide of Lyle Austin

Bellinger.

Carl Douglas Perry (“Perry”) told Rozier that he had

killed a white man who had been wearing a Star of David

tee shirt sold by the Yahwehs. Perry stabbed the victim

several times after which the victim fled and fell near a

canal. The police found the body of a white man,

Bellinger, lying near a canal.

Racketeering Act 13: Homicide of Raymond Kelly.

Yahweh ordered Rozier and Perry to kill several

white devils during a single night in September 1986.

They rode the metrorail south and followed potential

victims in Coconut Grove before walking south to the

University of Miami in Coral Gables. Rozier and Perry

later found two white victims whom they stabbed to

death, severing both ears from one of the victims.

Racketeering Act 14: Homicide of Cecil Branch.

Branch was stabbed over two dozen times, and one

of his ears was severed. The police found Branch face

down on the floor of his house; he was bound and gagged

with strips of bed sheets. A latent fingerprint on the

frame of Branch’s front door matched Rozier’s prints.

App. 11

Racketeering Act 15: Homicide of Harry Byers.

| Anthony Murphy (“Murphy”) had never killed a

white devil and decided that he would look for a white

child, thinking a child would be easier to kill than an

' adult. Instead, he found Byers, whom he stabbed several

times in the abdomen before cutting off his left ear.

Racketeering Act 16: Homicide of Reinaldo Echevar-

ria.

Brian K. Lewis (“Lewis”) stabbed and killed Echevar-

ria, a white Cuban male, but sustained severe injuries

himself when his hand slid down the knife blade during

the stabbing. Lewis almost lost his fingers, but they were

saved through surgery. Echevarria had been stabbed so

severely that medical experts described the murder as

“overkill.”

ae ~~ crete ese ne:

Racketeering Acts 17 and 18: Homicides of Anthony

Brown and Rudy Broussard.

In October 1986, the Yahwehs tried to buy an apart-

ment complex located in Opa Locka, Florida, which con-

sisted of five buildings occupied by drug dealers and

families with several children. Brown and Broussard

stood up to the Yahwehs, at which time Yahweh ordered

Rozier and Perry to kill them. Both were later shot in the

head at point-blank range.

II. STATEMENT OF THE ISSUES

The following issues are presented by the appellants

on appeal:

App. 12

(1) whether the evidence was sufficient to prove a

RICO conspiracy;

(2) whether the evidence was sufficient to support

Yahweh’s conviction;

(3) whether the evidence was sufficient to support

Gaines’s conviction;

(4) whether the district court properly admitted evi-

dence of Yahweh beliefs and practices;

(5) whether the district court improperly allowed

the injection of racism at trial;

(6) whether the appellants are entitled to have their

convictions reversed based on alleged prosecutorial mis-

conduct;

(7) whether alleged Brady® violations deprived the

appellants of a fair trial;

(8) whether expert testimony of Rozier’s psycho-

pathic tendencies was properly excluded;

(9) whether the district court erred in its supple-

mental instructions to the jury;

(10) whether the district court properly admitted a

co-conspirator statement incriminating Pace; and

(11) whether the district court abused its discretion

in excluding James from the trial.

5 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963). 3

5 mel Olt ed Am Bit

App. 13

Ill. STANDARDS OF REVIEW

Sufficiency of the evidence is a question of law sub-

ject to de novo review. This court views the evidence in the

light most favorable to the government, with all reason-

able inferences and credibility choices made in the gov-

ernment’s favor. We need only find “that a reasonable

fact-finder could conclude that the evidence establishes

the defendant’s guilt beyond a reasonable doubt.” United

States v. Keller, 916 F.2d! 628, 632 (1ith Cir.1990), cert.

denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724

(1991).

The district court’s evidentiary rulings are not subject

to reversal absent a clear abuse of discretion. The court's

discretion to exclude otherwise relevant evidence under

Federal Rule of Evidence 403 is limited; relevant evidence

may be excluded only when its probative value is sub-

stantially outweighed by the danger of unfair prejudice.

“Even where an abuse of discretion is shown, non-consti-

tutional evidentiary errors are not grounds for reversal

absent a reasonable likelihood that the defendant’s sub-

stantial rights were affected.” United States v. Sellers, 906

F.2d 597, 601 (11th Cir.1990).

Prosecutorial misconduct is a basis for reversal only

if, in the context of the entire trial and in light of any

curative instruction, the misconduct may have prejudiced

the substantial rights of the accused. United States v.

Obregon, 893 F.2d 1307, 1310 (11th Cir.), cert. denied, 494

U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990). The

district court’s conclusion that no Brady violation

occurred is subject to de novo review by this court. See

Delap v. Dugger, 890 F.2d 285, 298-99 (11th Cir.1989), cert.

App. 14

denied, 496 U.S. 929, 110 S.Ct. 2628, 110 L.Ed.2d 648

(1990). The exclusion of expert testimony is subject to the

abuse of discretion standard. United States v. Cameron, 907

F.2d 1051, 1061 (11th Cir.1990). Appellate review of a

district court’s decision to give an Allen’ charge is limited

to evaluating the coercive impact of the charge. United

States v. Elkins, 885 F.2d 775, 783 (11th Cir.1989), cert.

denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477

(1990).

When the jury instructions, taken together, accurately

express the law applicable to the case without confusing

or prejudicing the jury, there is no reason for reversal

even though isolated clauses may, in fact, be confusing,

technically imperfect, or otherwise subject to criticism.

An erroneous instruction does not require reversal unless

this court is left with a substantial and ineradicable doubt

as to whether the jury was properly guided in its deliber-

ations. United States v. Weissman, 899 F.2d 1111, 1114 n. 1

(11th Cir.1990). In addition, this court gives deference to

the district court’s exclusion of a defendant from the

courtroom pursuant to Federal Rule of Criminal Pro-

cedure 43. United States v. Kizer, 569 F.2d 504, 506-07 (9th

Cir.), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71

(1978); see also Foster v. Wainwright, 686 F.2d 1382, 1388

(11th Cir.1982), cert. denied, 459 U.S. 1213, 103 S.Ct. 1209,

75 L.Ed.2d 449 (1983) (when considering constitutional

claim of denial of right to be present at trial, appeilate

court gives great deference to a district court decision

excluding defendant).

7 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.

528 (1896).

App. 15

IV. ANALYSIS

A. Sufficiency of the Evidence to Prove RICO Con-

spiracy.

r

Appellants were each convicted of violating 18 U.S.C.

Sec. 1962(d), which makes it unlawful for any person to

conspire to violate a substantive RICO provision. Appel-

lants challenge the required elements of (1) an enterprise,

(2) a pattern of racketeering activity, and (3) an effect on

interstate commerce.

First, we are persuaded that the government’s nam-

ing of the Yahweh Nation as the RICO enterprise was

proper. Substantial legal precedent permits a wide range

of legitimate enterprises to be named as the vehicle

through which racketeering acts are committed. See

United States v. Turkette, 452 U.S. 576, 580, 587, 101 S.Ct.

2524, 2527, 2530, 69 L.Ed.2d 246 (1981); United States v.

Zielie, 734 F.2d 1447, 1463 (11th Cir.1984), cert. denied, 469

U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964, and cert. denied,

469 U.S. 1216, 105 S.Ct. 1192, 84 L.Ed.2d 338 (1985). A

variety of entities can be enterprises, including benevo-

lent and nonprofit organizations such as unions and ben-

efit funds, governmental units, courts and judicial offices,

police departments, and motorcycle clubs to name a few.

Second, we are convinced that the government prop-

erly proved a pattern of racketeering by showing the

required relatedness and continuity of the criminal acts as

well as the required relationship between the racketeer-

ing acts and the enterprise. In order to prove the required

two predicate acts, the government must show that the

racketeering predicates are related, and that they amount

to or pose a threat of continued criminal activity. H.J. Inc.

App. 16

v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109

S.Ct. 2893, 2900-01, 106 L.Ed.2d 195 (1989). The acts were

related in that they all revolved around the simple pur-

poses of silencing dissention, retaliating for community

resistance, and making the “death angels” a reality. The

acts showed the required continuity, because they contin-

ued over an approximately five-year period. The acts also

affected the enterprise and/or the enterprise facilitated

the racketeering activities. The racketeering acts affected

the Temple by eradicating dissention, eliminating opposi-

tion from the community, and confirming the members’

belief in “death angels” and Yahweh’s prophecies. The

acts bolstered members’ morale and commitment to the

group and reinforced the members’ hostility to the out-

side community.§

Third, the appellants assert that the government did

not prove that the predicate acts affected interstate com-

merce. To satisfy the interstate commerce requirement,

only a slight effect on interstate commerce is sequired.

See, e.g., United States v. Norton, 867 F.2d 1354, 1359 (11th

Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d

8 Not all of the members of the Temple supported or were

engaged in the homicidal activities that are the subject of this

case. Indeed, not all of the members took Yahweh's fierce

injunctions literally. As the hub of the conspiracy, the

Brotherhood did follow those injunctions sometimes to the

letter; and so did some others. But there is a distinction between

the conspirators in this case and the general population of the

Temple. We recognize and stress this difference. This case

involves a prosecution of specific people for their unlawful

conduct. The case is not the prosecution of a religion. The

religion had adherents who never became involved in illegal

activity and who were not implicated in this conspiracy.

App. 17

701, and cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107

L.Ed.2d 154 (1989). The testimony at trial was undisputed

that the Yahweh Nation reached out to other states and

indeed to other countries in an attempt to spread its

influence. Yahweh publications and tapes were distrib-

uted throughout the United States in Yahweh trucks or by

mail and were sent to foreign countries. Given this con-

certed effort to establish national and international influ-

ence and the Yahweh membership’s extensive travel in

interstate commerce, the effect of the Nation on interstate

commerce is more than “slight.”

B. Sufficiency of the Evidence to Support Yahweh's

Conviction.

Our review of the record convinces us that the evi-

dence presented at trial was more than sufficient to sup-

port Yahweh’s conviction for RICO conspiracy. The

government proved that Yahweh agreed to the commis-

sion of two or more predicate acts. While he did not

commit the acts personally, he ordered his followers to

commit numerous acts of murder, secure in the knowl-

edge that his orders would be carried out. The jury prop-

erly rejected his argument that the government merely

showed his innocent association with the enterprise.

It is well settled that in order to establish a defen-

dant’s involvement in a RICO conspiracy, the government

need only prove that a defendant, by his words or

actions, objectively manifested an agreement to partici-

pate directly or indirectly in the affairs of an enterprise

through a pattern of racketeering activity, i.e., the com-

mission of at least two racketeering acts. United States v.

App. 18

Fernandez, 797 F.2d 943, 950 (11th Cir.1986), cert. denied,

483 U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987); 18

U.S.C. § 1961(1)(A). The government met its burden.

C. Sufficiency of the Evidence to Support Gaines’s

Conviction.

The government overwhelmingly proved Gaines’s

involvement in the conspiracy. The government offered

proof that she was aware of the basic structure and pur-

pose of the enterprise, agreed to the commission of the

predicate acts, and, by her actions, nurtured to fruition

the acts of the other co-conspirators. Gaines not only was

privy to the ultra-secret workings of the Brotherhood, but

also sought to facilitate the ruthless crimes.

Though Gaines was not involved in many of the

racketeering acts, taken in the light most favorable to the

government, the government proved, and the testimony

was undisputed, that Gaines was Yahweh's “right hand

man” and administrator. In addition to a general involve-

ment in the affairs of the Yahwehs, Gaines was speci-

fically involved in several racketeering acts. For example,

concerning the beating to death of Dupree at the Temple,

Gaines was not only present but, at Yahweh’s direction,

locked the door so that no one could leave the scene. She

was also involved in the Delray Beach arson. Yahweh

specifically told the arson team that if they needed any-

thing to go to Gaines. Moreover, Gaines was involved in

the Opa Locka incident and the coverup after the Delray

firebombing, and she was the head of public relations for

the Temple. Given this wealth of evidence, it is apparent

App. 19

that Gaines was not only privy to the ultra-secret work-

ings of the Brotherhood, but also was aware of numerous

other vioient activities. By her actions, she sought to

facilitate these ruthless crimes and actively worked to

dispel any suspicions cast on the Yahwehs.

D. Admission of Yahweh Beliefs and Practices.

Appellants argue that the government obtained the

convictions in this case by condemning a religion. The

district court ruled that evidence of Yahweh teachings

was admissible when relevant to the charges in the indict-

ment, but that testimony regarding general teachings of

the Yahweh faith was not relevant. The evidence admit-

ted was highly relevant to the jury’s understanding of the

existence, motives, and objectives of the RICO conspiracy

and the means by which it was conducted. Yahweh used

the religion as a means of exhorting followers to commit

the racketeering acts, and appellants cannot hide behind

the general principle that religion is normally inadmiss-

ible in court under both the Federal Rules of Evidence

and the First Amendment. Although evidence of Yahweh

beliefs and practices was damaging to the defense, it was

not unfairly prejudicial.

A person’s beliefs, superstitions, or affiliation with a

religious group is properly admissible where probative of

an issue in a criminal prosecution. United States v. Sun

Myung Moon, 718 F.2d 1210, 1233 (2d Cir.1983), cert.

denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984);

see also United States v. Reme, 738 F.2d 1156, 1159-60 (11th

Cir.1984), cert. denied, 471 U.S. 1104, 105 S.Ct. 2334, 85

L.Ed.2d 850 (1985); United States v. Mills, 704 F.2d 1553

App. 20

(11th Cir.19%3), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517,

82 L.Ed.2d 825 (1984).

It seerns clear from the record that the Yahweh reli-

gion was not on trial. The evidence regarding the religion

was relevant, because religious teachings were used to

justify, rationalize, and promote crime. Appellants argue

strenuously that the contested evidence violated Federal

Rule of Evidence 610, which prohibits using religion to

impeach a witness’s credibility. The appellants’ argument

is misguided. The government agrees that it would have

been improper to attack witnesses’ credibility with their

religious beliefs by suggesting that, because of those

beliefs, their testimony was untrustworthy. See United

States v. Sampol, 636 F.2d 621, 666 (D.C.Cir.1980). How-

ever, in this case, the government inquired into Yahweh

practices and beliefs in an effort to show the background

of the RICO enterprise, which the defendants used to

carry out acts of murder and arson. The evidence was

relevant to show how Yahweh exerted influence and con-

trol over the members and how he used his preachings to

justify heinous crimes. It is also important to our analysis

that Yahweh himself sought to interject religion into his

cross-examination by responding to numerous questions

with a religious/ Biblical response. On direct examination,

defense counsel asked Yahweh about his practices and

life style, as well as about general Yahweh beliefs. For

those reasons, the admission of all of this evidence was

not unduly prejudicial under Federal Rule of Evidence

403. Relevant evidence is properly excluded only by a

finding that “its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

issues or misleading the jury. .. . ” Fed.R.Evid. 403; see

App. 21

also United States v. Terzado-Madruga, 897 F.2d 1099, 1117,

1119 (11th Cir.1990).

Finally, it is apparent to us that the Yahweh religion

was not on trial, in violation of the First Amendment. The

government did not indict the Yahweh religion, but only

named it as the racketeering enterprise. The First Amend-

ment’s protection of beliefs and associations does not

preclude such evidence where relevant to a trial issue. See

United States v. Abel, 469 U.S. 45, 52-53 n. 2, 105 S.Ct. 465,

469 n. 2, 83 L.Ed.2d 450 (1984). See also Dawson v. Dela-

ware, 503 U.S. 159, 165, 112 S.Ct. 1093, 1097-98, 117

L.Ed.2d 309 (1992).

E. Injection of Racism at Trial.

Appellants argue that the district court erred in per-

mitting the government to introduce evidence that Yah-

weh was racist. As previously discussed, however,

evidence of Yahweh’s racist views not only demonstrated

the context, motive, and setup of the crime, but was

necessary to complete the story of the charged offenses.

See United States v. Collins, 779 F.2d 1520, 1532 (11th

Cir.1986); United States v. Williford, 764 F.2d 1493, 1499

(11th Cir.1985). At the very least, Yahweh’s racist views

and preachings were directly and highly relevant to

explain the motive for the “white devil” killings. See

Smalley v. United States, 798 F.2d 1182, 1188 (8th Cir.1986).

App. 22

F. Alleged Prosecutorial Misconduct.

Appellants argue that they are entitled to have their

convictions reversed based on alleged prejudice they suf-

fered at trial due to supposedly improper prosecutorial

comments and inadmissible evidence. These arguments

are meritless. Taken in context, the majority of the alleged

instances were not improper. Even in the instances of

improper comments, however, appellants have failed to

show that they were prejudiced in light of the district

court’s rulings and the weight of the evidence. The com-

ments were isolated, not emphasized, and, in the context

of the lengthy trial, could not have been prejudicial.

G. Alleged Brady Violations.

Appellants argue generally that they were routinely

denied Brady disclosures in a timely fashion. Specifically,

they challenge the prosecution’s failure to disclose (1) a

proffer written by government witness Rozier; (2) a

police report revealing the time of the discovery of Aston

Green’s body; and (3) latent prints from crime scenes that

did not match the defendants’ prints. In most of these

alleged instances, the information was not Brady mate-

rial. Even where appellants have shown that exculpatory

or impeachment information was withheld until trial,

however, they have failed to show that, had the informa-

tion been timely disclosed, a reasonable probability exists

that the outcome of the proceedings would have been

different. Given this failure, any error would be harmless.

App. 23

H. Exclusion of Testimony of Rozier’s Psychopathic

Tendencies.

Appellants contend that the district court abused its

discretion by not permitting Dr. Barry Crown to testify

that Rozier was a psychopath who had no conception of

the truth. A district court “has wide discretion in its

determination to admit and exclude evidence, and this is

particularly true in the case of expert testimony.” Hamling

v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2903, 41

L.Ed.2d 590 (1974). Absent unusual circumstances, expert

medical testimony concerning the truthfulness or cred-

ibility of a witness is inadmissible. See United States v.

Wertis, 505 F.2d 683, 685 (5th Cir.1974) (per curiam), cert.

denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697 (1975).

Expert medical testimony concerning the truthfulness or

credibility of a witness is generally inadmissible because

it invades the jury’s province to make credibility deter-

minations. In any event, in the present case, given the

extensive cross-examination of Rozier, appellants suf-

fered no prejudice even if we assume the district court’s

ruling was incorrect.

I. Supplemental Jury Instructions.

In this case, the district court gave a modified Allen

instruction. After only 12 hours of deliberations, the jury

advised the court that they were hung. Defense counsel

asked the district court to give the pattern modified Allen

instruction right away, but the district court found it was

“a little early” to give an Allen charge and told the jury to

continue deliberations on counts I and II and to consider

and apply all of the court’s instructions as a whole. The

- =>

App. 24

district court later modified its ruling and gave an Allen

charge, which amounted to a “toothless tiger.” We have

reviewed the charge and fail to see how it could have had

any coercive effect upon the jury. The record also demon-

strates that after giving the redacted and modified Allen

instruction, the district court learned of the jury’s numer-

ical division. Appellants argue that the Allen-type charge

given to the jury, combined with the district court’s

knowledge of the jurors’ numerical division, coerced the

jury’s verdicts. We can reverse only if we find under the

totality of the circumstances that either the district court’s

learning of the numerical division or the giving of the

Allen charge, or a combination of the two, was inherently

coercive. United States v. Chigbo, 38 F.3d 543, 545 (11th

Cir.1994), cert. denied, __ U.S. __, 116 S.Ct. 92, 133

L.Ed.2d 48 (1995).

Importantly, the district court did not poll the jurors

but learned of the numerical division through an

unsolicited note from the jury. Second, the district court

gave the redacted and modified Allen instruction before it

learned of the jury’s division. In Sanders v. United States,

415 F.2d 621 (5th Cir.1969)9, cert. denied, 397 U.S. 976, 90

S.Ct. 1096, 25 L.Ed.2d 271 (1970), the district court gave a

modified Allen instruction after learning the numerical

division of the jurors. The former Fifth Circuit approved

the language of the instruction and rejected the defen-

dant’s claim that the instruction had been improper

9 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981)

(en banc), the Eleventh Circuit Court of Appeals adopted as

binding precedent the decisions of the former Fifth Circuit

issued before October 1, 1981.

App. 25

merely because the district court had known the jury’s

numerical division. Id. at 631-32. The situation here is

easier to decide because the district court’s redacted

Allen charge preceded the note indicating the division of

the jurors. In United States v. Brokemond, 959 F.2d 206 (11th

Cir.1992), we held: “we have ruled that even where the

judge undertakes the inquiry into numerical split and

thereafter follows it with an Allen charge, reversal is

unnecessary absent a showing that either action, or a

combination of the two actions, was inherently coercive.”

Id. at 210.10

J. Admission of Co-Conspirator Statement Incrimi-

nating Pace.

Pace moved in limine to exclude the testimony of his

former girlfriend, Sharon Saunders (“Saunders”), on the

ground that it was hearsay. The government responded

that the testimony was admissible as an exception to the

hearsay rule under Federal Rule of Evidence 801(d)(2)(E).

After hearing argument, the district court overruled

Pace’s objection to Saunders’s testimony. During the

course of Saunders’s cross-examination, the district court

gave the jury a Federal Rule of Evidence 801(d)(2)(E)

instruction. In our view, Saunders’s testimony was prop-

erly admitted. See Bourjaily v. United States, 483 U.S. 171,

107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v.

10 We are also persuaded that the appellants have failed to

show prejudicial error from the district court’s redaction of the

original RICO instructions. The modification was made at the

government's expense and made acquittals more likely. Thus,

appellants have shown no grounds for reversal.

App. 26

James, 510 F.2d 546, 549 (5th Cir.) (en banc), cert. denied,

423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975).

Beasley’s statement to Saunders implicating himself

and Pace in the Carey/Banks incident was in furtherance

of the conspiracy. Beasley had used Saunders’s gun?!

during the crime and sought to induce her secrecy by

telling her that the murder was God Yahweh’s will. As

such, the statement furthered the conspiratorial objec-

tives. Even if the statement was erroneously admitted,

however, Pace’s conviction is not entitled to reversal

because the alleged error was harmless. See Delaware v.

Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674

(1986).

K. Exclusion of James From the Courtroom.

James contends that the district court violated his

Sixth Amendment right to be present at all stages of the

trial by excluding him from the courtroom. Specifically,

he argues that the district court’s only warning was

issued to his lawyer at a time when James was not pre-

sent, a warning he claims was insufficient as a matter of

law. It is undisputed that under Federal Rule of Criminal

Procedure 43(b)(2), before excluding a defendant from the

courtroom, a district court must warn the defendant to

stop misbehaving and inform him that he will be

11 Carey was shot to death with a .32-caliber revolver.

Based on the circumstantial evidence, the jury could properly

have inferred that the gun used to kill Carey belonged to

Saunders.

App. 27

removed if he continues his disruptive conduct. See Illi-

nois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060-61, 25

L.Ed.2d 353 (1970). But the factual premise of James’s

argument — that the district court failed to personally

warn him — is contradicted by the record. As evidenced

by the comments of counsel and the court, James was

present at the competency hearing held on February 24,

1992, (R46:5474, 5476, 5534-37, 5548), at the end of which

the court found that James was competent and was

“malingering.” (R46:5548). With James still in the court-

room, the district court stated:

And I’m certainly going to accept the offer by

[Yahweh] to ask defendant James to straighten

up his conduct and assist his counsel if he can.

And if he does not do that, I will have little

alternative but to invoke the provision of Rule

43(b) and exclude him from the courtroom and

the trial and proceed on.

Now, the amazing thing is that a camera was

installed in this courtroom as they will be in all

the federal courtrooms. .. . [I]t was installed the

weekend before this outburst by Mr. James.

So I have the capability now of having Mr.

James simply remain in his . . . holding cell

downstairs and he can see and observe the

trial. . . in case I have to exclude him from the

courtroom and he can make notes to his lawyer

and we’d have to take perhaps an additional

recess .. . before you would make cross exam-

ination, and I’m hopeful that . . . these two extra

matters .. . will help him.

(R46:5549-50.)

App. 28

After a recess, the district court, with James again in

the courtroom, repeated that it hoped Yahweh could per-

suade James to behave because it would “hate to exclude

him but [didn’t] have much choice.” (R46:5556.) When

James again became disruptive, the district court

excluded him with instructions that he be placed “in his

cell where he can best see and hear the proceedings” and

that James be provided “a pen and pencil [to] permit him

to make any notes necessary to furnish to his law-

yer ... at the next recess.” (R46:5556-58).

As the record makes clear, the district court told

James, or at the very least stated in James’s presence, that

he would be removed under Rule 43(b) if he continued

his disruptive behavior. In our view, this warning was

sufficient to put James on notice of what might happen if

he did not behave. See United States v. West, 877 F.2d 281,

287 (4th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 377, 107

L.Ed.2d 362 (1989); Scurr v. Moore, 647 F.2d 854, 858 (8th

Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 670, 70 L.Ed.2d

638 (1981).

James’s related contention that the district court

failed to explore possible alternatives to exciusion is also

misplaced. There is no statutory or constitutional require-

ment that a court try its luck with other sanctions before

excluding a disruptive defendant, and we give great def-

erence to the district court’s decision that exclusion was

necessary. See Foster v. Wainwright, 686 F.2d 1382, 1388

(11th Cir.1982), cert. denied, 459 U.S. 1213, 103 S.Ct. 1209,

75 L.Ed.2d 449 (1983).

James’s remaining arguments concerning this issue

are specious and warrant no further discussion.

App. 29

V. CONCLUSION

The arguments appellants present in this appeal are

all meritless. We affirm their convictions in all respects.

AFFIRMED.

“ne

App. 30

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-4773

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT LOUIS BEASELY, JR.,

a/k/a “Dan Israel”,

RUFUS PACE, SR.,

a/k/a “Ahaz Israel”,

ERNEST LEE JAMES,

a/k/a “Ahinadad Israel”,

RICHARD INGRAHAM,

a/k/a “Job Israel”,

LINDA GAINES a/k/a,

“Judith Israel”,

WALTER LIGHTBURN, a/k/a

“Amri Israel”,

YAHWEH BEN YAHWEH f/k/a “Hulon Mitchell, Jr.”,

a/k/a “Hulon Shah” & “Moses Israel”,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Florida

BEFORE: EDMONDSON and DUBINA, Circuit Judges,

and CUDAHY’, Senior Circuit Judge.

PER CURIAM:

The petition(s) for rehearing filed by ROBERT LOUIS

BEASLEY, JR., RUFUS PACE, SR., ERNEST LEE JAMES,

RICHARD INGRAHAM, LINDA GAINES, WALTER

LIGHTBURN and YAHWEH BEN YAHWEH is denied.

App. 31

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-4773

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT LOUIS BEASELY, JR.,

a/k/a “Dan Israel”,

RUFUS PACE, SR.,

a/k/a “Ahaz Israel”,

ERNEST LEE JAMES,

a/k/a “Ahinadad Israel”,

RICHARD INGRAHAM,

a/k/a “Job Israel”,

LINDA GAINES a/k/a,

“Judith Israel”,

WALTER LIGHTBURN, a/k/a

“Amri Israel”,

YAHWEH BEN YAHWEH f/k/a “Hulon Mitchell, Jr.”,

a/k/a “Hulon Shah” & “Moses Israel”,

Defendants-Appellants.

On Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC (Opinion

pace, Fd).

Before: EDMONDSON and DUBINA, Circuit Judges, and

CUDAHY", Senior Circuit Judge.

App. 32

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure, Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

App. 33

RACKETEER INFLUENCED AND

CORRUPT ORGANIZATIONS

§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly, from

a pattern of racketeering activity or through collection of

an unlawful debt in which such person has participated

as a principal within the meaning of Section 2, Title 18,

United States Code, to use or invest, directly or indirectly,

any part of such income, or the proceeds of such income,

in acquisition of any interest in, or the establishment or

operation of, any enterprise which is engaged in, or the

activities of which affect, interstate or foreign commerce.

A purchase of securities on the open market for the

purposes of investment, and without the intention of

controlling or participating in the control of the issuer or

of assisting another to do so, shall not be unlawful under

this subsection if the securities of the issuer held by the

purchaser, the members of his immediate family, and his

or their accomplices in any pattern or racketeering activ-

ity or the collection of an unlawful debt after such pur-

chase do not amount in the aggregate to one percent of

the outstanding securities of any one class, and do not

confer, either in law or in fact, the power to elect one or

more directors of the issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collection of

an unlawful debt to acquire or maintain, directly or indi-

rectly, any interest in or control of any enterprise which is

engaged in, or the activities of which affect, interstate or

foreign commerce.

App. 34

(c) It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce,

to conduct or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through a pattern of

racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire

to violate any of the provisions of subsection (a), (b), or

(c) of this section.

App. 35

RELIGIOUS FREEDOM RESTORATION ACT

§ 2000bb. Congressional findings and declaration of

purposes

(a) Findings

The Congress finds that -

(1) the framers of the Constitution, recognizing free

exercise of religion as an unalienable right, secured its

protection in the First Amendment to the Constitution;

(2) laws “neutral” toward religion may burden reli-

gious exercise as surely as laws intended to interfere with

religious exercise;

(3) governments should not substantially burden

religious exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872

(1990) the Supreme Court virtually eliminated the

requirement that the government justify burdens on reli-

gious exercise imposed by laws neutral toward religion;

and

(5) the compelling interest test as set forth in prior

Federal court rulings is a workable test for striking sensi-

ble balances between religious liberty and competing

prior governmental interests.

(b) Purposes

The purposes of this chapter are -

(1) to restore the compelling interest test as set forth

in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.

Yoder, 406 U.S. 205 (1972) and to guarantee its application

App. 36

in all cases where free exercise of religion is substantially

burdened; and

(2) to provide a claim or defense to persons whose

religious exercise is substantially burdened by govern-

ment.

§ 2000bb-1. Free exercise of religion protected

(a) In general

Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule

of general applicability, except as provided in subsection

(b) of this section.

(b) Exception

Government may substantially burden a person’s

exercise of religion only if it demonstrates that applica-

tion of the burden to the person -

(1) is in furtherance of a compelling governmental

interest; and

(2) is the least restrictive means of furthering that

compelling governmental interest.

(c) Judicial relief

A person whose religious exercise has been burdened

in violation of this section may assert that violation as a

claim or defense in a judicial proceeding and obtain

appropriate relief against a government. Standing to

assert a claim or defense under this section shall be

governed by the general rules of standing under article

III of the Constitution.

ks fee DATO ea ee) ene

App. 37

§ 2000bb-2. Definitions

As used in this chapter -

(1) the term “government” includes a branch,

department, agency, instrumentality, and official (or other

person acting under color of law) of the United States, a

State, or a subdivision of a State;

(2) the term “State” includes the District of Colum-

bia, the Commonwealth of Puerto Rico, and each territory

and possession of the United States;

(3) the term “demonstrates” means meets the bur-

dens of going forward with the evidence and of persua-

sion; and

(4) the term “exercise of religion” means the exer-

cise of religion under the First Amendment to the Consti-

tution.

§ 2000bb-3. Applicability

(a) In general

This chapter applies to all Federal and State law, and

the implementation of that law, whether statutory or

otherwise, and whether adopted before or after Novem-

ber 16, 1993.

(b) Rule of construction

Federal statutory law adopted after November 16,

1993 is subject to this chapter unless such a law explicitly

excludes such application by reference to this chapter.

App. 38

(c) Religious belief unaffected

Nothing in this chapter shall be construed to autho-

rize any government to burden any religious belief.

§ 2000bb-4. Establishment clause unaffected

Nothing in this chapter shall be construed to affect,

interpret, or in any way address that portion of the First

Amendment prohibiting laws respecting the establish-

ment of religion (referred to in this section as the “Estab-

lishment Clause”). Granting government funding,

benefits, or exemptions, to the extent permissible under

the Establishment Clause, shall not constitute a violation

of this chapter. As used in this section, the term “grant-

ing”, used with respect to government funding, benefits,

or exemptions, does not include the denial of government

funding, benefits, or exemptions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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