t|pB\ Ike Jhiillkeogeii Law JReporlerIssue No. 11 ISSN 1074-8040 Summer 1996

SrATIMEITOrPURfCBlSince time immemorial humankind has made use of entheogenic substances as pow-erfuftocls for achieving spiritualInsight and understanding. InIhe Twentieth century, however,many of these most powerful ofreligious and apistemologicaloofs were declared illegal in IheUnited Slates, and their usersdecreed criminals. 77ie Shamanhas been outlawed. It is thepurpose of this newsletter toprovide the latest informationand .commentary on the intersection of entheogenic substances and the law.HowtoContact TELRPlease address all correspondence to R|chard Glen Boire.Esq., The Entheogen Law Reporter, Post Office Box 73481.Davis..California 95617-3481.Immediate contact can be madev«a fec^mifra) transmission to916-753-9662. or via e-mail loTELR@aol.com.Subscription IotdrmationThe Enlheogen Law Reporter isSublfehed seasonally (fa., fourmes per year). A one-yearsubscnption for individuals is$25 domestically and $30 Internationally, law library subscripts rata Is $45 per year domes-Ucally and $55 internationally.Copyright IcLiczrcsz©1996 The Emheogan Law Reporter. Although all articles TnTELR are copynghted, TELRfreely licenses and encouragessubscribers lo photocopy,repifnt. anddioittze articles contained In TELR and lireeiy sharethem with others, providad thulTELR is given, credit andTEU?^ contact information isincluded.. Copying or dfeWbut-ing the information In TELR forprofit wrthout prior permissionwill be considered a copyrightInfrfngemern and/or breach ofthis licensing agreementCoiirmnrriAUrvSubscriber information is strictlyconfidential. The list of subscribers is not released to anyone for any reason. Issues aremailed with a nondescript cover- ""> newsletter's

and return ad-using oniy_ theacronym "TELR"

DisclaimerThe Entheogen Law Reporter isnot engaged in rendering legalor other professional advice,and assumes no responsibilityfor the statements ancf opinionsachrartced by anvpf its writers orcontributors. The informationherein n subject to change without notice and is not intended tobe, nor should it be considered,a substitute for individualized legal advice rendered by a competent attorney. If legal adviceor other expert assistance isrequired, the services of a competent attorney or other professional should be obtained.

Author of Opium for the MassesArrested for Possessing Poppies

On March 6, 1956, just be

fore 7:00p.m., JimHogshire, the author ofOpium for the Masses was

inside his apartment when over adozen members of the Seattle PoliceDepartment Narcotics Unit burst inwith a search warrant authorizing asearch ofthe apartment for

...Opium, heroin, mctiunrphetamir*:cocaine, marijuana, and other controlled substances; chemical compounds used to make the aforementioned controlled substances; itemsused to weigh, package and prepare.controlled substances for sale, distribution and use, records of sales and customers indicative of narcotics trafficking; articles of personal property tending to establish the identity of per-son(s) in control ofthe premises, vehicles or storage areas, where controlledsubstances may be found, to frrh"f».but not limited to, notes, records, photographs, video tapes, ledgers, receipts,address books, phone books, bankstatements, safety deposit rental agreements, safety deposit box keys, andother papers relating to transporting,ordering, purchasing, abuse and distribution of controlled substances; UScurrency, proceeds from the sale ofcontrolled substances and other financial instruments, including but not limited to, checks, money orders, money(trails, wire transfer orders, depositslips, records indicating he transfer ofreal estate and/or real property, highvalue jewelry and precious metals orstones reflecting the proceeds of trafficking controlled substances; weaponsand or firearms used to protect said

money, proceeds and controlled substances; items used for communication in the business of narcotics trafficking, including but not limited to,telephone pagers, cellular telephones,police radio scanners, computerequipment, storage media andrecording tapes from telephone an-swering machines,

Mr. Hogshire was handcuffed aswas his wife, Heidi, who walkedinto the scene upon returning froma visit to the supermarket.

As a result of the search, the officers seized a "sealed cardboard boxcontaining approximately 2,200grams of dry plant material" believed to be dried poppies, as wellas "a jar containing many differenttypes of unidentified prescriptionpills." According to Jim Hogshire,the "sealed cardboard box" holding"dry plant material" was a florist'sbox containing cellophane-wrappedlong-stem poppies. Also, seizedwere 3 balance scales, a number ofweapons, and some photographswhich officers said "depict JamesHogshire extracting Opiate liquidfrom Opium Poppy pods." In theHogshire's living room, the officersfound and seized "many bookswhich detail recipes and techniquesfor manufacturing such controlledsubstances as methampheuamine,"as well as "small pipes and tubescommonly used for smoking nar-

XH IrllS XSSUE

cotic drugs." The Hogshires were ;taken to jail and spent three days jin custody before being bailed out j

The alleged events leading up tothe search ofthe Hogshire's apartment were described by the Seattlepolice officer who wrote the affidavit filed in support ofthe searchwarrant The affidavit tells thefollowing strange story:

...I received a letter from a mannamed Robert Black, New York.The letter complained about narcotics activity being conducted byJim and Heidi Hogshire in theirapartment... I wrote Mr. Black aletter asking him to call me. Immediately upon receiving my letter Mr.Black called me. Black gave me hisaddress and phone number so Icould contact him in the future. Italked to Black about the allegationsin his letter. Black told me he was inJim and Heidi Hogshire's apartmentfor approximately 14 hours onFebruary 10 and 11,1996.

Black is a freelance writer and graduate student at Albany NY. [BobBlack is probably best known asthe author of The Abolition ofWork. RGB] He was hired by aNew York start-up magazine towrite an article about a publishingcompany in Port Towosend, Washington. The publishing oompany iscalled Loompanicks. Loorrrpanickspublishes books with a libertarianperspective, this was to be Black'sangle for his article.

Black wanted to see Seattle and savemoney on airfare by flying in on the

(Continued on page 10 J)

Author of Opium for the Mauts Attested for. Possessing PoppiesFederal Court Addresses Meaning of "Religion" Under RFRAThoughts on Jury Nullification in Entheogen CasesEntheogen-telaced Arrests in the NewsOn the Legality of Cannabis, Peyote and Poppy SeedsConferencesAnnouncement: The Lycacum

100102104105106106106

The Enramjea Uw Reporter Foa Office Box 73«l-D»»ij/CaKlbim-4MI7.34Sl-Ftt G* bs) MS.73W«tPage 100

Poppy Arrest

{Continued from page 100)weekend. A person at Loompanicks suggestedBlack fly in on the weekend (February 10 and11) and then come to Port Townsend on Monday. February 13, 1996. It was suggested thatBlack stay with a man who had written severalbooks published by Loompanicks. This man'sname was Jim Hogshire. Arrangements weremade for Jim and his wife Heidi Hogshire to pickBlack up at the airport and host him in theirapartment for the weekend. Loompanicks sentBlack some of Hogshire's books and a magazinehe produces to give him some background - one ofthe books was entitledOpium for the Masses.

tion became very heated. It escalated until !Hogshire grabbed the M-l rifle, aimed it at 'Black's face, and ordered him out of the apart- jmem. Black left. Black told me he did not call jthe police at the time because he didn't think hecould prove what happened. At the timeHogshire's wife and a friend were in the apartment and Black believed they would supportHogshire.

Black described the apartment as a one bedroom:he described the apartment as very messy, and he

On Saturday, February 10, 1996,Heidi picked Black up at the airport atabout noon. In the car they talkedabout Opium for the Masses. Heidisaid the recipe for the opium tea"really works." She said, "I get highoff of one cup, it takes Jim a lot morethough."

They drove to the Hogshire's apartment,., .where Robert (Black] met Jim.Soon Black noticed that Hogshire washeavily under the influence of drugs.Black stated mat he has known drugaddicts in the past, but never anyonewhose "life was so wound arounddrags." Hogshire offered Black opiumteas. Black said he knew about theopium teas and was not"dumbfounded" by the offer. Blackdeclined the tea and Hogshire madesome for himself by putting a darkbrown substance into water and boiling it Black told me that Hogshire"continuously drank" opium tea forapproximately 14 hours.

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•attain la tka aatkar «f Hat boa* Oaiaaa far taa atun tklckaaalaiaa bar ta ttaa aalaa aaa taw ta praaaea It fraa tka fiaakaaaaa ar fraa aaaaa attalaakla fraa aralat-aaaair ataraa. Blaaaa eoaaaaattea 1* aa kifa that ta atat ta gratia It acaartara.f aaeaaaa a soar afaanaaf Ma kaaa. la tin aoUran aatfiilM Miaa imh aaaar aa aitaa praaattat tka fraaaaiaataaa raoraatlaaai naiaaailaa at eaartrallaa aura.ShoaU roa aia* oar tka aaaakltao a Tlalt. ftp tkaaU tarr tka Itka* kaaa aa a>l rlfla laiala* aaalaat tka aau aoar tka caaoatar.

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2kte-\i*-*Black noticed an isteresting device inthe apaitment Hogshire said it was avacuum pump and bragged that hecould extract "something real exciting" from Sudafed. Black got theimpression that Hogshire meant he could getsomething to help him make drugs.

Black asked Hogshire about bis beliefs in liber-tarianism. Hogshire expressed a strong commitment to the principle. As if to emphasize thestrength of his beliefs. Hogshire picked up a riflewhich was leaning against a wall near his deskand computer. Hogshire told Black it was anM-l rifle.

During the evening Hogshire chewed up somepills. Hogshire told Black the pills were Ritalin.In addition, Hogshire snorted a white powderwhich Hogshire said was Dexedrine.

At approximately 2:00 a.nL, on Sunday February 11. the conversation between Black and JimHogshire turned to religion. Hogshire said hewas a fundamentalist Muslim and the cenversa-

Bob Blade's letter to the Seattle Police.

stated that he believed the Hogshires paid about$800 per month rent

Black described Jim Hogshire as very thin. Hesaid he only saw Hogshire eat potato chips whitehe was in the house. In a addition, Black saidHogshire kept food supplements (c.g., "Ensure")in his house to eat Hogshire told Black he reallywasn't interested in eating.

I read part of one ofthe books written by JimHogshire which is entitled Opium for theMasses. This book, in part, describes a processfor making opium tea by first removing the seedsfrom opium pods, then grinding the pods in acoffee grinder and boiling the mailer. The actualpods are boiled not the seeds. The book sayspeople should save seeds to grow more poppies.It further describes the process of evaporating thewater from opium tea to make opium.

I talked to SPD Narcotics Lieutenant JerryAdams and to DEA Special Agent AndySmith; they said that ephedrine could be extracted from Sudafed by using a vacuumpump. Ephedrine is a controlled substanceand a precursor to methamphetamine. Ritalinand Dexedrine are prescription drugs. Theyare both amphetamines in the same family ofdrug as methamphetamine.

[The affidavit then states that the Hogshire'sapartment manager "smelted a strong chemi

cal odor that seemed to be comingfrom the Hogshire's apartment"about two months earlier. "Theapartment manager also said that theapartment was a one bedroom andthat it was pretty messy."]

I checked Hogshire's name withSPD records and teamed that patrolofficers contacted him on January14, 1996. Hogshire's car was illegally parked... Two bicycle patrolofficers came by. The officerslooked into the car and noticed whatlooked like chemicals stacked on thebackseat Just then, Hogshire cameout carrying a box and began talkingwith the officers. Hogshire said theywere chemicals in his car and that heused them for a hobby. The officerstates in his report that he askedwhat (undof experiments Hogshiredid and Hogshire "couldn't tellhim." In addition, Hogshire said hedid not know what the various chemicals were specifically used for in hisexperiments. Finally, Jim Hogshirestated that his wife Heidi never didtheexperimeritswimhim. But whenHeidi arrived and was interviewedseparately she said that she did "littleexperiments" with him "all thetime." The officer asked Heidi whatkind of experiments they did and shecould not tell him.

Narcotics detectives...responded to the scene.They spoke with Jim Hogshire and he admitted that many ofthe chemicals "could be usedin the production of methamphetamine," buthe denied producing it himself. The detectivesnoticed writings in the warehouse about theproduction of illegal drugs.

The patrol officers noted in their report...thatHogshire was in possession of the following .chemicals: nitric acid, acetone, charcoal, hydrochloric acid. In addition, the official notedthat Hogshire was in possession of an electronic scale. I spoke with DEA Special AgentAndy Smith about these chemicals and he saidthey could be used to make heroin fromopium.

Based on the dried poppies found in the(Continued on page 102)

Tbc Bafacoa^ Lot ReprjRrrtaOffirx Page 101

Poppy Arrest

apartment, Jim Hogshire was charged withviolating the Washington state law outlawing the possession of opium poppies with theintent to manufacture or deliver them. Inaddition, because the police found someguns in the Hogshire's apartment, the prosecutor alleged that in the commission of theabove crime Mr. Hogshire was "armed with

; a deadly weapon." Heidi Hogshire was: charged with simple possession of "Opium| poppies." Neither Jim Hogshire nor HeidiI Hogshire have any previous convictions fori drug-related offenses.ij The Hogshire's attorney filed a motion toI dismiss the charges on the ground that there

was insufficient evidence that the Hogshireswere in possession ofPapaver somniferum,the only species of poppy outlawed underWashington state law (as well as under federal law and the laws ofthe other 49 states).Evidently, during the hearing on the motionto dismiss, the prosecutor, apparently unfamiliar with Marx's well-known aphorismwhich Mr. Hogshire adapted for the title ofhis book, argued that Jim Hogshire did indeed intend to distribute the poppies foundin his home, because "...his book is titledOpium for die Masses, not Opium for Mel"

The judge rejected the prosecutor's arguments and found insufficient evidence thatJim Hogshire manufactured (i.e., grew) thepoppies found in the florist's box in hishome, and also found insufficient evidencethat Mr. Hogshire intended to distribute thepoppies. Consequently, the judge dismissedthe charges against Jim Hogshire. The prosecutor, however, is threatening to re-filecharges of simple possession against JimHogshire as are currently pending against

Heidi Hogshire.

The case against the Hogshires is disquieting. How much of this prosecution is drivenby the fact that Jim Hogshire is a relativelywell-known author whose books challengeconventional notions with regard to drugs?Jim Hogshire's writings figured prorninentlyin the search warrant affidavit, and wereused by the prosecutor in arguing that JimHogshire intended to distribute the poppies.

It seems to me that there is a very goodargument here that the Hogshires are thevictims of unlawful selective prosecution,probably because of Jim Hogshire's writings.In addition to Opium for the Masses and anumber of other books, Jim Hogshire haswritten articles which have appeared in magazines like Harpers, Esquire and GentlemensQuarterly. He is also the publisher otPilb-A-GoGo, a 'zine set to be anthologized asthe book Pharmaceutical Nation. I wonderhow many other people the Seattle Narcoticsteam has arrested for possessing store-boughtpoppies? Have any florists been raided orarrested for selling them?

I am aware of one other publicized arrest forpoppies. It also involved a relatively well-known person, Michael Butler, the producerof the musical Hair. On July 9,1975, SantaBarbara County sheriffs deputies, armedwith a search warrant, seized approximately3000 poppy plants growing outside Mr. Butler's bedroom on his luxurious Santa Barbaraestate. Evidently, many of the four-foot-highplants had their pods scribed, and other evidence was found inside the estate indicatingthat someone was processing the poppies.

Butler's attorney said his client had no ideathat opium could be extracted from thepoppies found growing on his property. Tohim they were simply nice red flowers.According to Butler's attorney, the poppypatch was planted by the estate's gardenersto form a decorative protective barrieraround a tree threatened by ivy. Thecharges against Michael Butler were dismissed after the search warrant was heldinvalid.

In addition to the selective prosecution argument in the Hogshire's case, a decentargument exists that the search warrantshould be quashed because the affidavitfailed to state probable cause that opium orany other controlled substances would befound in the Hogshire's apartment onMarch 6,1996. Bob Black reported that hesaw Jim Hogshire prepare and drink opiumtea. Mr. Black said nothing to suggest thatpoppies, poppy extract, or poppy tea (or anyother controlled substances) remained inthe apartment. The information about finding various legal chemicals in JimHogshire's car was three months old, andeven when fresh was insufficient for arrestFinally, the officers seem to have done avery poor job of corroborating Bob Black'sallegations, something which should bedone anytime there is the hint that an informant is acting out ofa sense of revenge.

TELR

Lower Federal Court Addresses the Meaningof "Religion" in Context ofRFRA and Entheogens

In an instructive case for all religious

users of outlawed entheogens, the Federal District Court for the District ofWyoming rejected a defendant's Reli

gious Freedom Restoration Act (RFRA) defense to federal charges of marijuana possession and trafficking, finding that thedefendant's belief system was not"religious."'

The case involved a man named DavidMeyers who was arrested on federal

charges of possessing and trafficking marijuana. Mr. Meyers moved to raise RFRAas a defense, claiming that as the reverendofthe Church of Marijuana his actions withregard to marijuana were protected.

The central issue addressed by the districtcourt was "what is to be considered a"religion" under RFRA?" The court beganits analysis by noting that RFRA does notdefine "religion." However, because RFRAwas clearly based on, and responding to,

The Enrheejen Law ReporterPon Office Box 73*SI-D»vii«iK&nn»-93«17-J481Fa)((24bn)9l«.733-««

First Amendment jurisprudence, the districtcourt concluded that "RFRA defines'religion' in the same way that federalcourts have defined 'religion' for FirstAmendment purposes." That said, however, the court immediately recognized thatthe United States Supreme Court has neverformulated a workable definition of"religion." Likewise, lower federal courtshave found themselves ill-equipped to create a comprehensive definition of religion

(Continued on page 103)

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"Religion"{Continued from page 102)for First Amendment purposes.

With the difficulties of defining religion sonoted, the district court canvassed the federal cases which have examined the meaning of "religion," and cataloged some ofthefactors that the courts used to determinewhether a set of beliefs was "religious" forFirst Amendment purposes. This surveyled the district court to enunciate a numberof factors as hallmarks of "religion." Allspiritual users of entheogens, whether theyagree or disagree with these factors, shouldbe aware that they are the sort of things acourt is likely to examine if a religiousdefense is ever raised to criminal drugcharges. The factors, which the districtcourt found to be characteristic of"religion," are as follows:

1. Uhtmate [dear. Religious beliefs oftenaddress fundamental questions about life, purpose, and death. As one court has put it, " areligion addresses fundamental and ultimatequestions having to do with deep and imponderable matters.'' [Citation omitted.] Thesematters may include existential matters, suchas man's perception of life; ontological matters, such as man's sense of being; teieologicalmatters, such as man's purpose in life; andcosmological matters, such as man's place inthe universe.2. Metaphysical Beliefir. Religious beliefsoften are "metaphysical," that is, they addressa reality which transcends the physical andimmediately apparent world. Adherents tomany religions believe that there is anotherdimension, place, mode, or temporality, andthey often believe that these places are inhabited by spirits, souls, forces, deities, and othersoils of inchoate or intangible entities.3. Moral or Ethical System: Religious beliefsoften prescribe a particular manner of acting,orway of life, that is "moral" or "ethical." Inother words, these beliefs often describe certainacts in normative terms, such as "right andwrong," "good and evil," or "just and unjust"The beliefs then proscribe those acts that are■"wrong," "evil," or "unjust" A moral orethical belief structure also may create duties -duties often imposed by some higher power,force or spirit - that require the believer toabnegate elemental self-interest4. Comprehensiveness of Beliefs: Anotherhallmark of "religious" ideas is that they arecomprehensive. More often than not, suchbeliefs provide a telos. an overarching array ofbeliefs that coalesce to provide Ihe believerwith answers to many, if not most, of theproblems and concerns that confront humans.In other words, religious beliefs generally arenot confined to one question or a single teaching. [Citation omitted.]5. Accouierments of Religion: By analogy tomany of the established or recognized religions, the presence of the following external

signs may indicate that a particular set of beliefs is "religious:"

A. Founder. Prophet, or Teacher.many religions have been wholly founded orsignificantly influenced by a deity, teacher,seer, or prophet who is considered to be divine,enlightened, gifted, or blessed.

B. Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writings ofteninclude creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms,chants, rites, or mantras.

C. Gathering Places: Many religionsdesignate particular structures, such aschurches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such assprings, rivers, forests, plains, or mountains.

O. Keepers of Knowledge: Mostreligions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages.By virtue of their enlightenment experience,education, or training, these people are keepersand purveyors of religious knowledge.

E. Ceremonies and Rituals: Mostreligions include some form of ceremony, ritual, liturgy, sacrament, or protocol. Theseacts, statements, arid movements are prescribedby the religions and are imbued with transcendent significance.

F. Structure or Organization: Manyreligions have a congregation or group of believers who are led, supervised, or counseledby a hierarchy of teachers, clergy.

G. Holidays: As is etymologicallyevidenced, many religions celebrate, observe,or mark "holy," sacred, or important daysweeks, or months.

H. Diet or Fasting: Religions oftenprescribe or prohibit the eating of certain foodsand the drinking of certain liquids on particulardays or during particular times.

L Appearance and Clothing: Somereligions prescribe the manner in which believers should maintain their physical appearance,and other religions prescribe the type of clothing that believers should wear.

J. Propagation: Most religiousgroups, thinking that they have somethingworthwhile or essential to offer non-believers,attempt to propagate their views and persuadeothers of their correctness.

After setting forth the above hallmarks ofconventional religion, the court made clearthat it recognized the danger of relying onestablished religions as a guide to determining whether a particular belief system isreligious. The court acknowledged thatnew and unique religions are possible andthat no one of the above characteristics isdispositive. At most, said the court, thefactors "should be seen as criteria that, ifminimally satisfied, counsel the inclusionof beliefs within the term religion." Thecourt explicitly noted that "if there is anydoubt about whether a particular set ofbeliefs constitutes a religion, the Court willerr on the side of freedom and find that thebeliefs are a religion."

The court then explained that under theabove "low-threshold inclusion test," thefollowing sets of beliefs would undoubtedlybe considered "religious;" Judaism, Christianity, Islam, Hinduism, Buddhism, Shin-toism, Confucianism, Taoism, Hare Krishna, Batus. Mormonism, Seventh-day Ad-ventist. Christian Scientist, Scientology,Branch Davidianism, Unification Church,Native American Church, Greek religion,Norse religion and Roman religion. Thecourt said the following "obscure beliefs"would "more likely than not," also be considered "religious:" Paganism, Zoroastri-anism, Pantheism, Animism, Wicca,Druidism, Satanism, and Santeria.

To the question of what would be excluded,the court answered "[pjurely personal, political, ideological, or secular beliefs probably would not satisfy enough criteria forinclusion... Examples of such beliefs are:nihilism, anarchism, pacifism, utopianism,socialism, Ubertarianism, Marxism, veg-etism, and humanism."

Using the factors to gauge Mr. Meyers'Church of Marijuana, the court came to theconclusion mat that Mr. Meyers' beliefsabout marijuana were not "religious." Mr.Meyers testified that he was the reverend ofthe "Church of Marijuana," which hefounded in 1978, and which he said hadabout 800 members. The court gave Mr.Meyers' reverend title little weight, explaining that he failed to present evidenceof how he became a reverend or of anyspecial training, experience or educationthat qualified him for that position. Similarly, he did not testify about any specialduties he had by reason of his position.

The court then examined the focus of theChurch of Marijuana, noting that Mr. Meyers testified that the church's only ceremony "revolves around one act: the smoking and passing of joints." Mr. Meyers saidthat smoking marijuana results in a"peaceful awareness." Absent from Mr.Meyers' testimony, noted the district court,was any statement that the state of mindproduced by the marijuana was religious,spiritual, or even metaphysical in nature.Here the district court expressly recognized"that certain religions use mind-alteringsubstances, or engage in mind-alteringphysical activities (such as fasting or sittingin sweat lodges), as a means to a spiritualend. The end usually is movement toward,

. or the perception of, a different reality ordimension." There was no evidence, said

(Continued on page 104)

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{Continued from page I OS)the court, that Meyers' marijuana smokingwns to such an end. Mr. Meyers "did not

r assert that the plant has spoken to him, that) it counsels him, that it guides him, or that itteaches him." "In his 'religion,' noted thecourt, "the plant is essentially passive."

Contrasting Mr. Meyers' Church of Mari-. juana with other visionary-plant-based reli-; gions, the court commented:

In other religions, such as Native Americanreligions, ancient Mexican religions, and primitive tribal religions, riund-altering plants aresacred. The plants are not however, the focusof these religions. Rather, they are a means toan end. the end being to attain a state of religious, spiritual, or revelatory awareness.When believers achieve this state, they areprivy to alt manner of visions and revelationscrjrrcerning the past present and future. Afterexperiencing these states - which are intenseand transitory — they rely on their visions andrevelations to guide their actions.

Finally, the court noted that the Church ofMarijuana possessed few ofthe externalities that characterize recognized religions.It had no prophetic leader or founder. Ithad no religious text similar to a Bible,Talmud, Koran or Veda. Mr. Meyerstestified that the church's "bible" was JackHerer's book Hemp & the Marijuana Conspiracy, but the court concluded that Hempwas a secular book which "does not purportto be a sacred or seminal book containingtenets, precepts, rites, creeds, or parables... it does not touch upon the lofty orfundamental issues associated with religious works." Similarly, the court foundthat other than smoking marijuana, thechinch had no "services, no prayers, noliturgy, no sacrament, and no blessings(such as baptism or marriage)." Likewise,it had no holidays, no special diets or fasting protocols, no special clothing, and itsmembers made no attempts to proselytize.

MP*

In some concluding remarks the court madesome interesting comments suggesting thatMr. Meyers could have met the thresholddetermination of "religion," if he had presented evidence that the Church of Marijuana was a Christian sect:

Had Meyers asserted that the Church of Mari-juana was a Christian sect and that his beliefswere related to Christianity, this Court probably would have been compelled to concludethat his beliefs were religious. Under thesehypothetical circumstances, Meyers wouldhave been able to fit his beliefs into a traditionthat is indisputably religious. If Meyers hadlinked his beliefs to Christianity, the Courtcould not have inquired into the orthodoxy or

propriety of his beliefs, no matter how foreignthey might be to the Christian tradition....Had Meyers sincerely made such a connection,he would have been able to purchase"religious" status for his beliefs by coattailingon Christianity. Unfortunately for Meyers, hemade no such connection.

Instead. Meyers presented the Churchof Marijuana as a "stand alone" religion."

That said, the district court concluded thatMr. Meyers beliefs did not constitute areligion within the meaning of RFRA, andhence, the court denied his motion to raiseRFRA as a defense to the marijuanacharges.

Notes1 United States v. Meyers (D. Wyo. 1995)906 F.Supp. 1494.

[In another recent case concerning RFRA(decided January 23. 1996), the Court ofAppeals for the Fifth Circuit, held thatCongress acted within its power in enactingRFRA. The decision reversed a districtcourt ruling (in a non-entheogen case)which held that RFRA violated the separation of powers doctrine. (Flores v. Boeme(5* Cir. 1996) FJd. (No. 95-500306.)]

TELR

Some Thoughts onJury Nullification inEntheogen Cases

What if juries sitting in en

theogen cases refused toconvict defendants of victimless entheogen crimes?

The idea is not entirely fantastic. Duringthe 1920's and early 1930's, prosecutorshad a very difficult time getting juries toconvict people charged with trafficking alcohol Earlier, jurors sitting in prosecutions brought under the Fugitive Slave Lawalso commonly refused to find defendantsguilty despite the fact that the evidenceshowed that the defendants broke the lawby assisting runaway slaves. The difficultyin getting convictions was one force whichultimately led to the repeal of both alcoholProhibition and the Fugitive Slaw Law.

A fundamental rule in American criminallaw holds that when a jury acquits a person(by all 12 jurors voting not guilty) the

While it is proper and advisable for you tofollow the law as I give it, you are not requiredto do so. You must, however, keep in romdthat we are a nation governed by laws. Refusalto follow the court's instructions as to theelements ofthe crime(s) charged should occuronly in an extraordinary case. Unless findingthe defendant guilty is repugnant to your senseof justice, you should follow the instruction onthe law as given to you by the court You mustalso keep in mind that you may not find thedefendant guilty unless the State has established guilt beyond a reasonable doubt as itwas defined previously in these instructions.1

If the judge agrees to give the instruction,counsel can be much more explicit in his orher closing argument In all likelihood,however, the judge will refuse to give theinstruction. Nevertheless, nothing has beenlost by making the request and a potentialissue on appeal has been preserved.

Notes1 Brody, David, "Sparf and DoughertyRevisited: Why the Court Should Instructthe Jury of Its Nullification Right" 33American Criminal Law Review 89, 121(1995).

person cannot be re-tried for the samecrime. As a result of this bar against !double jeopardy, a jury in a criminal case is joften the final arbiter of truth and justice.While jurors are routinely instructed thatthey must apply the law as it is given tothem by the judge, the truth is that nothingcan be done if the jury unanimously refusesto convict a person they believe is charged

• with violating an unjust law. This power; of the jury is known as jury nullification,! and at present only jurors in Maryland and! Indiana are told about the power. Rather,j most jurors are told that they must take the

law as given to them by the judge and applythat law to the facts as they determine themto be. Again, however, if they unanimouslyagree to find the defendant not guilty, nothing can be done to undo the verdict even ifthe jurors later admit that they acquitted thedefendant because they felt the law underwhich he was charged was unjust

I advise all defense attorneys handling entheogen cases to do their best to educate thejury of their nullification power during closing argument This must be done rathersubtly to avoid drawing objections from theprosecutor and an admonishment from thejudge. In addition, there is nothing to loseby requesting that the judge include in hisor her instructions to the jury an instructionlike the following:

TrjeBflfceegat Law Reporter-Pot Office Box 734BIDmtrT>&ibmi*-9SS17-3431-ltor. (24 ha) 9\6.1SMfa Page 104

Entheogen-relatedArrests in the News

MDMA

On May 15, 1996, Peter Gatien, owner ofthe Manhattan nightclubs "The Tunnel"and "The Limelight" was charged, alongwith twenty-three other people most ofwhom are in their early 20's, with conspiring to distribute MDMA to patrons of hisclubs. If convicted ofthe federal charge, he(and any others convicted ofthe conspiracycharge) faces a maximum penalty of twentyyears in federal prison and a SI millionfine. The government is also expected toseek forfeiture of both clubs.

According to DEA officials, at least 1,000doses of MDMA were sold each month atthe clubs, often for as much as S40 perdose. Evidently, the DEA began investigating the clubs after learning that largeamounts of MDMA were being importedinto the USA from the Netherlands andCanada via Kennedy International AirportAn eight-month investigation, utilizing undercover agents, confidential informants,and wiretaps, led the DEA to the clubswhich the DEA claims were the primarydistribution points for the drug.

LSDLondon/Santa Cruz

On May 10,1996, amateur Santa Cruz filmproducer Joseph Hurley was sentenced toserve 14 years in a London prison for operating one ofthe world's largest (discovered)LSD manufacturing operations from hissmall London apartment The London police raided Mr. Hurley's apartment in August 1995, finding 300 sheets of paperdecorated with American cult cartoon characters and each impregnated with 1000 hitsof LSD. According to British police, theseizure was the largest in that country'shistory and the fifth-largest in the world.

' At Mr. Hurley's sentencing, Judge Geoffrey

Rivlin of the Southwark Crown Court saidHurley was running "a very highly organized and professional enterprise." JudgeRivlin rejected Hurley's suggestion thatLSD was not dangerous, remarking "It isexceedingly dangerous.* According to thejudge, Mr. Hurley's profit from the operation was estimated at SI .58 million, but so

far authorities had only been able to track$9,000, which was ordered confiscated.

According to an AP article, U.S. authorities, who later raided Mr. Hurley's home inSanta Cruz, California, discovered "furtherevidence of Hurley's interest in drugs."Marty Kravel of the Santa Cruz CountyDistrict Attorney's Office said "As far as theLSD scene is concerned, we regard him asa major player on an international scale,someone definitely in the top league." According to prosecutor Kravel, considerationwas being given to seeking Mr. Hurley'sextradition to the United States.

Cal i forniaA seventeen-year-old student at DixonHighschool in California was arrested onMay 22, 1996, for secretly placing LSD inher woodshop teacher's coffee the previousday. On May 21, the teacher, age 52, leftschool early, complaining he "felt sick." Hesaid that he drank his usual morning cup ofcoffee at approximately 9:00 ajn. By earlyafternoon he asked another teacher to takeover his class, complaining that he feltdisoriented. He attempted to walk home,but could not step off curbs or climb stairs.He later drove himself to the hospital seeking medical attention. The student wasturned in by classmates the next day aftershe bragged that she "dosed" the teacher'scoffee with LSD.

MushroomsCal i forn ia

A well-known doctor practicing in NorthernCalifornia was arrested on May 25, 1996,after agents found suspected Psilocybemushroom cultures in bis office. The materials were located after police responded toa burglar alarm which was accidentallytriggered by window washers. Althoughthe window washers explained that therewas no burglar, the responding officer nevertheless (and unconstitutionally, in myopinion) entered the building and searchedthe various rooms. The search led to thediscovery of the suspected mushroom cultures.

The doctor's arrest caused some concernamong subscribers to the "Visionary PlantList" (VPL), an on-line mailist throughwhich subscribers share information aboutvisionary plants and substances. The doctor was one of approximately 200 VPLsubscribers. Along with the various suspectsubstances seized from the office, policealso seized the doctor's computer which

held over a year of archived VPL messages,causing some VPL members concern thattheir messages, as well as their names,were now in the hands of law enforcementagents. It is unclear what, if anything, lawenforcement agents will make of the messages or the VPL forum. The doctor has notyet been charged, as prosecutors await theresult of laboratory tests on the seizeditems.

NevadaOn March 25, 1996, prosecutors in Reno,Nevada, filed felony complaints against twomen charged with operating the state'slargest ever (discovered) Psilocybe mushroom farm. One of the men charged withcultivation and trafficking of "psilocynmushrooms" is a former University ofNevada, Reno seismology professor.

The search warrant affidavit in the caseindicates that neighbors noticed unusualactivity in a Washoe Valley mobile homeand garage as soon as the former professormoved into the home in the summer of1994. Additionally, on February 27, 1996,a Nevada County sheriffs deputy stopped acar driven by the co-defendant in the case.The man, incomprehensibly, consented to asearch ofthe car which contained a numberof covered boxes. Inside the boxes, thedeputy found 50 dried pounds of suspectedPsilocybe mushrooms. Ownership of thecar was traced to the former professor.When North Tahoe Task Force agents latersearched the professor's mobile home, theyfound another 125 pounds of growingmushrooms as well as an additional 21pounds of dried mushrooms. As of thiswriting, law enforcement agents have beenunable to locate the professor.

New MexicoIn late February 1996, Bernalillo Countysheriffs deputies attempting to serve anarrest warrant on a Colorado man discovered 42 jars of growing mushrooms suspected to endogenously produce psilocybin.In another room of the apartment, agentslocated another 47 five-gallon buckets con-mining harvested mushrooms which weredrying. More mushrooms were found on aspecially constructed drying apparatus. Theresident of the apartment, who was nothome at the time, was later arrested. Hisgirlfriend, who was home, was arrested atthe scene.

According to officials, a 3-year-old boy hadaccess to the mushrooms and knew they

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{Continued from page '.05)were kept in buckets and jars. The apartment residents were booked into theBernalillo County Detention Center on

0$>\ charges of trafficking in a controlled sub-V stance, child endangerment and childabuse.

Morning Glory SeedsFive students at a Chester County, Pennsylvania middle school were suspended for tendays in early May 1996, for possession ofmorning glory seeds and for selling them toclassmates. School officials said the seedsconstitute "designer drugs" under the district's drug and alcohol policy. Lt. MichaelNagumy, commander of the Pennsylvaniastate police said that the seeds can be purchased in any flower store and are notconsidered a controlled substance. He saidthe seeds could produce a "mild hallucinogenic effect," although the more commoneffect is to "make you sick." "They're kindof a faddish thing," Nagumy told a reporterfor the Philadelphia Inquirer.

The superintendent of the school districttold the Philadelphia Inquirer 'Tve heardkids are harvesting them [the seeds] fromparks. I don't know who they are, but I doknow they don't want the kind you buy in ahardware store, since they have beentreated with insecticide.... No one is talking permanent expulsion, but this is a serious matter. I don't think any parent wantsa kid going to school where other kids arepassing out seeds. It's sick."

TELR:

On the Legality ofCannabis, Peyoteand Poppy Seeds

A number of readers have written

TELR asking if it is legal topossess, purchase, or import theseeds of certain entheogenic

plants. The vast majority of entheogenicplant seeds are legal, as are the plantsthemselves. However, just as the Cannabisplant is illegal to possess, so are all but itssterilized seeds. Under federal law it isunlawful to possess viable Cannabis seedsor to import them.

The law is similar (with one importantdistinction) with respect to Peyote(Lophophora vrilliamsii) seeds. Like the

cacti itself, under federal law, it is a crimeto possess, sell, or import the seeds of thepeyote cactus. In contrast to Cannabisseeds, there is no exception for sterilizedpeyote seeds. In other words, all peyoteseeds — whether viable or not — are considered Schedule I controlled substances.

While TELR certainly does not recommendit, for all practical purposes, it seems unlikely that the federal government would goto the trouble of criminally prosecuting aperson who imported a small number ofpeyote seeds. (The seeds, however, mightvery well be confiscated and destroyed ifthey are found by Customs or US PostalInspectors.) To convict a person of unlawfully importing peyote seeds, the government would have the burden of proving thatthe importer had knowledge that the seedswere Ulegal. Peyote seeds are not likeopium or cocaine where a jury would behard-pressed to believe that an importer didnot know that the items were illegal.

Lastly, federal law expressly outlaws thepossession and cultivation of the classicopium poppy, Papaver somniferum. However, unlike Cannabis and peyote, evenviable seeds of Papaver somniferum areexpressly excluded from the prohibition. Inother words, it is perfectly legal to purchase, possess or import viable seeds ofPapaver somniferum— but planting themis a crime.

TELR

ConferencesTelluride Mushroom Festival.This year's "Wild Mushroom Festival" willbe held in Telluride, Colorado, from Thursday afternoon August 22, through Sundaymorning August 25, 1996. In addition tothe usual faculty, Dr. Charles Grab will beon hand delivering lectures on Ayahuasca,MDMA, and dialoguing with Dr. AndrewWeil on the topic of "Psychedelics; Naturalor Chemical." Registration fee is S235which included all meals. More information is available at http://teUtiridernin.com/mushroom.html, or write Fungophile, Inc.POB 480503, Denver, CO 80248-0503, orcall/fax: 303-296-9359.

Entheobotany Conference.From Friday evening October 18, throughSunday afternoon October 20, 1996, thePalace of Fine Arts Theater in San Fran

cisco, will be the site of a "multi-disciplinary exploration of shamanic, visionary plants or plant teachers, encompassing their sthnopharmacognosy, phyto-chemistry, and archaeology, psychology andart history." Among the presenters will beCallaway, Furst Hotmann, Ratsch, Samor-ini, Shulgin. and Schultes. Cost is S225payable by check or money order to Entheobotany, PO Box 311, Sierra Madre, CA91025-0311. Telephone/Fax: (818) 355-9585.

TELR;

Announcement:The Lycaeum

On June 22,1996, the Lycaeum, an

information server devoted to visionary plants and substances,went on-line for public access.

The heart of the Lycaeum is composed ofdiscussion groups with topics such as chemical research, ethnobotanical gardening,and shamanic healing. The Lycaeum alsoholds numerous FAQ's pertaining to entheogens, as well as graphics databases,online books, and a host of otherentheogen-related information.

While much of the Lycaeum is accessibleby anyone with a world wide web browser,certain features like mailing lists,nymserver access, and portions of theWWW pages can only be accessed by paidsubscribers. A basic one-year subscriptionis $40.00. To view the public portions ofthe Lycaeum or to become a subscriber, aimyour browser at http://www.lycaeum.org/.

SpecialonTELR Back IssuesTELR is in the process of compilingthe fust 10 issues of TELR into asingle volume for sale at the fell En-theobotanv Conference in San Francisco. To purchase the ten issuesindividually would cost $50. Theprice of the special ten-issue volume(99 pages) will be $19.99.If you are unable to attend the conference but would like a copy of thiaspecially priced back issue volume,reserve yours now by sending yourcheck for $19.99, plus $3.50 s/b, toTELR.

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