That justice may prevail this document has been filed to ...



September 16, 2013

SENT BY FAX ONLY (856) 858-9243

Honorable George S. Leone, J.A.D.

Hall Of Justice

Suite 530

101 S. 5th Street

Camden, New Jersey 08103-4001

SENT BY FAX ONLY (973) 622-1240

Hon. Joseph L. Yannotti, J.A.D.

Leroy F. Smith, Jr. Public Safety Building

60 Nelson Place

Newark, New Jersey 07102-1501

Superior Court of New Jersey

Appellate Division

P.O. Box 006

Trenton, NJ 08625

Attn: Joseph H. Orlando, Clerk

Re: State v. Edward R. Forchion

App. Div. Docket No. A-004052-12T4 (direct appeal)

App. Div. Docket No. A-004477-12T4 (appeal of VOP

9 month sentence)

App. Div. Docket No. A- _________ (Amended Notice of

Appeal of the Denial

of the Stay Motion)

Dear Judges Leone and Yannotti:

Pursuant to Judge Leone’s Order dated September 11, 2013, I am faxing an original and two copies of a motion for emergent relief (a stay of the VOP sentence), along with an Amended Notice of Appeal (attached to the Certification of John Vincent Saykanic, Esq. as Da38).

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Also enclosed is a Certification of Counsel with Exhibits, a Letter Brief, along with a Certification of Service.

I believe that Mr. Forchion has presented several meritorious and substantial grounds for appeal, particularly Subpoint V (“Medical Necessity”) of the Letter Brief, as Mr. Forchion is a medical marijuana patient (with a valid California Medical Marijuana card) suffering from bone cancer diagnosed in 2001. He is certainly no flight risk (as he enjoys going to court and has never missed any court appearances) and is certainly no danger to the community.

Thank you for your courtesy and cooperation.

Very truly yours,

John Vincent Saykanic

JVS/ms

Encl.

cc: Hon. Charles A. Delehey, J.S.C. (by fax 609-518-2852)

Assistant Prosecutor Michael V. Luciano, Jr.

(by fax 609-265-5007)

Jodi Ferguson, Assistant Public Defender (e-mail only)

Donald M. Ackerman, Esq. (e-mail only)

Edward R. Forchion (e-mail only)

(with enclosures)

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JOHN VINCENT SAYKANIC, ESQ.

NJ ATTORNEY NUMBER: 045801984

1135 Clifton Avenue

Clifton, New Jersey 07013

TEL: (973) 472-5863

FAX: (973) 614-0386

Attorney for Defendant-

Appellant Edward R. Forchion

Re: State v. Edward R. Forchion

App. Div. Docket No. A-004052-12T4 (direct appeal)

App. Div. Docket No. A-4477-12T4 (VOP sentence)

App. Div. Docket No. A- _______ (Denial of Stay)

CERTIFICATION OF SERVICE

I, John Vincent Saykanic, Esq., certify that on September 16, 2013, I faxed a copy of the Notice of Motion for Emergent Relief, along with all supporting papers, to:

Michael V. Luciano, Assistant Prosecutor

49 Rancocas Road

PO Box 6000

Mount Holly, New Jersey 08060

Dated: September 16, 2013 _______________________

JOHN VINCENT SAYKANIC

JOHN VINCENT SAYKANIC, ESQ.

NJ ATTORNEY NUMBER: 045801984

1135 CLIFTON AVENUE

CLIFTON, NEW JERSEY 07013

TEL.: (973) 472-5863

FAX: (973) 614-0386

Counsel for Defendant-

Appellant Edward R. Forchion

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

APP. DIV. DOCKET NOS.:

A-004052-12T4 (direct appeal)

A-4477-12T4 (VOP sentence)

A- _______ (Denial of Stay)

___________________________

)

STATE OF NEW JERSEY, ) NOTICE OF MOTION FOR EMERGENT

Plaintiff-Respondent, ) RELIEF (A STAY PENDING APPEAL

v. ) OF THE NINE-MONTH VIOLATION

EDWARD R. FORCHION, ) OF PROBATION SENTENCE)

Defendant-Appellant. )

___________________________)

TO: Michael V. Luciano, Burlington

County Assistant Prosecutor

49 Rancocas Road; PO Box 6000

Mount Holly, New Jersey 08060

HONORABLE JUDGES:

PLEASE TAKE NOTICE that on a date and a time to be set by the Court, the defendant-appellant Edward R. Forchion, through his attorney, John Vincent Saykanic, Esq. (designated counsel by the Public Defender’s Office), shall move before the Judges of the Appellate Division for an Order granting a stay of the nine-month sentence imposed for a violation of probation conviction.

PLEASE TAKE FURTHER NOTICE that in support of this application, defendant will rely upon the accompanying Certification of Counsel with Appendix and Letter Brief.

Respectfully submitted,

______________________

John Vincent Saykanic

Counsel For Defendant-

Dated: September 16, 2013 Appellant Edward R. Forchion

JOHN VINCENT SAYKANIC, ESQ.

NJ ATTORNEY NUMBER: 045801984

1135 CLIFTON AVENUE

CLIFTON, NEW JERSEY 07013

TEL.: (973) 472-5863

FAX: (973) 614-0386

Counsel for Defendant-

Appellant Edward R. Forchion

SUPERIOR COURT OF NEW JERSEY

APP. DIV. DOCKET NOS.:

A-004052-12T4 (direct appeal)

A-4477-12T4 (VOP sentence)

A- _______ (Denial of Stay)

______________________________

) CERTIFICATION IN SUPPORT

STATE OF NEW JERSEY, ) MOTION FOR EMERGENT RELIEF

Plaintiff-Respondent, ) (A STAY OF THE NINE-MONTH

v. ) VIOLATION OF PROBATION

EDWARD R. FORCHION, ) SENTENCE)

Defendant-Appellant. )

______________________________)

I, John Vincent Saykanic, Esq., an attorney-at-law of the State of New Jersey, of full age, hereby certify that:

1. I am designated counsel by the Office of the Public Defender (OPD) assigned to represent the defendant-appellant Edward R. Forchion in his appeal of his conviction for possession of marijuana and appeal of his nine month violation of probation sentence.

2. On April 1, 2010, in Mount Holly Township, the defendant Edward R. Forchion (a medical marijuana patient suffering from bone cancer diagnosed in 2001) was arrested, charged and subsequently indicted in Burlington County Ind.

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No. 2010-08-0866-I for possession with intent to distribute a controlled dangerous substance (marijuana) in a quantity of one ounce or more but less than five pounds, contrary to N.J.S. 2C:35-5b(1) (third degree) (Count One), and possession of a controlled dangerous substance (marijuana) in a quantity of more than 50 grams, contrary to N.J.S. 2C:35-10a(3) (fourth degree) (Count Two). (Da[1]1-3). The indictment alleges that Mr. Forchion possessed about one pound of marijuana, a fact Mr. Forchion admitted.

3. A pretrial motion to suppress evidence was filed and, following an evidentiary hearing, was denied on March 15, 2011.

4. Mr. Forchion moved to represent himself pro se at trial, and on January 5, 2012, the Honorable Charles A. Delehey, J.S.C., granted the application, with Mr. Forchion to be assisted by Burlington County Public Defender Donald M. Ackerman, Esq. (Da4-5).

5. Mr. Forchion, with the assistance of John Vincent Saykanic, Esq. (acting pro bono) filed a pretrial brief (82 pages with a 107-page Appendix) raising eight issues (not including subpoints) challenging the marijuana laws and the applicability of the laws to Mr. Forchion. These issues are discussed in more detail, infra.

6. Following a jury trial in May of 2012, Mr. Forchion was convicted of Count Two (possession of a cds) but the jury could not reach a verdict on Count One (possession with intent) and a mistrial was declared. (Verdict Sheet annexed at Da6-8). During this trial Mr. Forchion flew back and forth from California (he is a dual citizen of New Jersey and California), never missing a court date. His bail was, in fact, returned because he had shown no willingness to miss court and, in fact, relished attending every court hearing.

7. The State elected to retry Mr. Forchion on Count One (possession with intent), and on October 18, 2012, the jury unanimously (12-0) acquitted Mr. Forchion of the charge.

8. Sentencing was scheduled for January 16, 2013, and Mr. Forchion flew in from California for sentencing. On January 16, 2013, Judge Delehey sentenced Mr. Forchion on the fourth degree possession conviction to two (2) years of probation, with probation to be transferred to Los Angeles, California, if possible. In addition, the mandatory penalties, assessments, and fees were imposed, and

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defendant’s driving license was suspended for six months. (Judgment of Conviction annexed at Da9 to 12). Judge Delehey rejected a verbally made request for a stay of sentence pending appeal.

9. A timely Notice of Appeal was filed on the direct

appeal by the Office of the Public Defender (“OPD”) (Notice of Appeal annexed at Da13), with a Docket Number of A-004052-12T4. A “Scheduling Order” (filed August 23, 2013) was entered with a due date for Mr. Forchion’s appellate brief and appendix of October 15, 2013. (Da14). Mr.

Saykanic represents Mr. Forchion as designated counsel by the OPD.

10. Mr. Forchion intended to move for reconsideration of sentence, and he incorrectly believed that he had 30 days to report to Probation since he was planning on filing a motion for reconsideration. In addition, on the following morning Mr. Forchion did speak to someone in Probation and informed them that he was planning to report after receiving scheduled medical treatment in California. (Ackerman Certification; Paragraph 9; Da19). Mr. Forchion advised the individual from Probation that he was scheduled to go back to California for his cancer treatment on January 30, 2013 but was unsure as to where he would be

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living. Mr. Forchion’s medical condition and treatment in Californian is discussed in detail, infra. Mr. Forchion advised Probation that he would be filing a motion for reconsideration of sentence along with a stay of sentence, that he had 20 days to do so, and would do so once he got back to New Jersey. No one advised Mr. Forchion that he would be arrested.

11. On January 17, 2013 (the day after sentencing), following apparent ex parte actions (as neither Mr. Forchion nor his attorney Donald Ackerman were present or advised about), a fugitive arrest warrant was issued for Mr. Forchion (signed by Judge Delehey) less than 24 hours after Judge Delehey had refused to incarcerate Mr. Forchion. A bench warrant was thus issued within 24 hours after sentence (probably record time) due to the perceived failure by Mr. Forchion to report to Probation.

12. An arrest warrant was issued due to a hearing that Mr. Forchion knew nothing about. Mr. Forchion was consequently arrested at the Philadelphia International Airport by the Burlington County Sheriff’s Department while Mr. Forchion was on his way to California for his cancer treatment. He was held in Pennsylvania for 17 days, then transported to the Burlington County Jail for 29 more days

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until the Probation hearing on March 12, 2013. Mr. Forchion did not try to hide and in fact posted on his Facebook page the date and time of his departure from Philadelphia International Airport (where he was arrested). (Ackerman Certification, Paragraph 10; Da 20).

13. On March 12, 2013, admitted before Judge Delehey

that he failed to report to probation on January 16, 2013 after being sentenced by Judge Delehey (See Paragraph 2 of Certification of Mr. Ackerman, filed September 6, 2013; Da19). Mr. Forchion pleaded guilty to the alleged probation violation since he was advised that if he did not plead guilty he would be incarcerated for 9 months (which would have been disastrous to his health). By pleading guilty, Mr. Forchion was released from jail two days later and ordered back to Judge Delehey on September 10, 2013 for final adjudication on the violation. Mr. Forchion submits that the only reason he pleaded guilty to the Probation violation was because he had been told that if he pleaded guilty he would be released from jail to go to California to receive his medical treatment. Mr. Forchion pleaded guilty and was, in fact, released from jail two days later.

14. At the VOP sentencing on March 12, 2013, Judge Delehey indicated that he would stay the remainder of Mr.

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Forchion’s jail sentence, “if he could show that he continued to need treatment for his bone tumors.” (Paragraph 3 of Ackerman Certification; Da19).

15. On March 12, 2013, after Mr. Forchion pleaded guilty to the probation violation, Judge Delehey sentenced

the defendant to 270 days in the County Jail and terminated his probation. (Da15). The VOP Judgment of Conviction is annexed at Da15-17). A timely Notice of Appeal (filed April 29, 2013) was filed by the OPD (Docket No. A-4477-12T4; Da18). This appeal is scheduled to be argued on the Excessive Sentence Calendar in Trenton on October 23, 2013.

16. Mr. Forchion has, since at least the year 2000, had a cancerous tumor of the bone for which he receives

treatment. This is described in the report of Dr. Sant P. Chawla, M.D. (of the Sarcoma Oncology Center, 2811 Wilshire Boulevard, Santa Monica, California) as a “Giant Cell Tumor Right Femur DX 08/2001.” (Report of Dr. Chawla dated August

20, 2013, annexed at Da22-25). As stated in a letter by Dr. Chawla dated March 14, 2013:

Mr. Edward Forchion is enrolled in a Phase II Clinical Trial receiving

Denosumab at our facility. His treatment regimen consists of a monthly injection that must be administered during a specific treatment window.

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Patient will continue on this Clinical Trial as long as it is beneficial to his health. In accordance to protocol, patient will need a serial MRI of Right Knee with contrast every 4 months. Please see regimen calendar for upcoming treatment dates. (Da21).

17. On March 14, 2013, the Honorable Jeanne T. Covert, J.S.C.P. signed an Order releasing Mr. Forchion so that he could continue with treatment. She also set a review hearing for September 10, 2013. (Ackerman Certification, Paragraph 4, Da19). Mr. Forchion was released after serving approximately 45 days of his nine-month (270 day) sentence. On average, an inmate can be released from a nine-month jail term after about 80 or 90 days; theoretically leaving Mr. Forchion with about 45 more days to serve in the event he serves his sentence.

18. Mr. Ackerman filed (on behalf of Mr. Forchion) a Notice of Motion for Stay of Sentence Pending Appeal (filed September 6, 2013; Da30).

19. At the review hearing on September 11, 2013, Judge Delehey denied the motion for a stay and ordered that Mr. Forchion serve the following Burlington County staggered jail sentence (to accommodate Mr. Forchion’s medical treatment): 1) report to the Burlington County Jail

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on September 20, 2013; released October 8, 2013; 2) incarcerated again on October 8, 2013; released November 5, 2013; incarcerated again on (Da31-32); incarcerated again on November 13, 2013; released December 2, 2013; 4) incarcerated again on December 13, 2013; released December 29, 2013; 5) incarcerated again on January 9, 2014; released January 28, 2014; and 6) incarcerated on February 6, 2013. (Da31-32).

20. Mr. Forchion filed an “Application for Permission to File Emergent Motion” (Da33-36) and on September 11, 2013, the Honorable George S. Leone, J.A.D., granted leave to file a motion for emergent relief. (Da37).

21. An Amended Notice of Appeal (appealing Judge Delehey’s order of September 11, 2013 denying the motion for a stay of sentence) has been filed with the Appellate Division by the OPD. (Da38).

22. At the time of his arrest on April 1, 2010, Mr. Forchion had a valid California State Medical Marijuana

card. (Da39).

23. At the time of Mr. Forchion’s arrest (April 1, 2010), it was unclear as to whether the State of New Jersey would accept other states; registry ID cards. This is reflected in the Medical Marijuana Summary Chart (dated

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April 8, 2011; at Da40-43); in the State of New Jersey section it reads: “Accepts other states’ registry ID cards?” the answer is “Unknown.” (Da43).

24. For the foregoing reasons (and reasons stated in the accompanying letter brief), I am respectfully

requesting that this Court grant the motion for a stay of the nine month jail sentence pending appeal.

25. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated: September 16, 2013 _______________________

JOHN VINCENT SAYKANIC

Attorney for Defendant-

Appellant Edward R. Forchion

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September 16, 2013

Honorable George S. Leone, J.A.D.

Hall Of Justice

Suite 530

101 S. 5th Street

Camden, New Jersey 08103-4001

Hon. Joseph L. Yannotti, J.A.D.

Leroy F. Smith, Jr. Public Safety Building

60 Nelson Place

Newark, New Jersey 07102-1501

Re: State v. Edward R. Forchion

App. Div. Docket No. A-004052-12T4 (direct appeal)

App. Div. Docket No. A-004477-12T4 (appeal of VOP

9 month sentence)

App. Div. Docket No. A- _________ (Amended Notice of

Appeal of the Denial

of the Stay Motion)

Dear Judges Leone and Yannotti:

Kindly accept this letter brief in lieu of a formal brief in support of Mr. Forchion’s emergent motion for a stay of sentence.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

Defendant-appellant Edward R. Forchion respectfully relies upon the procedural history and facts stated in the accompanying Certification of Counsel (dated September 16, 2013).

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LEGAL ARGUMENT

POINT I

A STAY OF SENTENCE SHOULD BE GRANTED

UNDER THE APPLICABLE RULES AND LEGAL

AUTHORITY SINCE IRREPARABLE HARM WILL

RESULT IF THE STAY IS NOT GRANTED,

MERITORIOUS ISSUES FOR APPEAL EXISTS,

AND THERE WILL BE LITTLE PREJUDICE

TO THE STATE AND GREAT PREJUDICE TO

DEFENDANT IF THE STAY IS NOT GRANTED

R. 2:9-3(b) provides: “a sentence of imprisonment shall not be stayed by the taking of an appeal or by the filing of a notice of petition for certification, but the defendant may be admitted to bail as provided in R. 2:9-4.” R. 2:9-3(c) provides: “A sentence to pay a fine and an order placing the defendant on probation may be stayed by the trial court on appropriate terms if an appeal is taken . . .” Stays are appropriately entered to preserve the status quo and to prevent irreparable harm of the subject matter during the pendency of the action. Crowe v. DeGioia, 90 N.J. 126 (1982). A stay should be granted when the

enforcement of an order, pending on appeal, would render it

impossible to set the appellant right if he succeeds. Jewitt v. Dinger, 29 N.J. Eq. 199 (Ch. Div. 1878); McAlpin v. Universal Tobacco Co., 55 A. 999 (Ch. Div. 1903).

As Justice LaVecchia recently stated in her dissenting

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opinion in McNeil v. Leg. Apportionment Com’n, 176 N.J. 484, 487 (2003), the requirements for a stay pending appeal are well settled:

When seeking the equitable relief of a stay pending appeal of a judgment, the movant must demonstrate that: (1) irreparable harm will result from the enforcement of the judgment pending appeal; (2) the appeal presents a meritorious issue, and movant has a likelihood of success on the merits; and (3) assessment of the relative hardship to the parties reveals that greater harm would occur if a stay is not granted than if it were. [Id. (citing Crowe v. De Gioia, supra, 90 N.J. at 132-134).

Mr. Forchion will suffer the irreparable harm of serving his nine-month jail sentence unnecessarily in the event this motion for a stay pending appeal is denied and then, in the future, his conviction is reversed on appeal.

The following meritorious issues (Subpoints) with a likelihood of success on appeal exist:

SUBPOINT I

THE INDICTMENT MUST BE DISMISSED WITH

PREJUDICE SINCE THE CATEGORIZATION OF

MARIJUANA AS A SCHEDULE I DRUG IS

UNCONSTITUTIONAL AND VIOLATES DUE

PROCESS AND EQUAL PROTECTION

The New Jersey Compassionate Use Medical Marijuana Act

(Act) was approved by the State Legislature on January 18,

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2010, and on August 9, 2012, the Medical Marijuana Program (MMP) registry finally opened to qualified patients. In December 2012, the first state-approved dispensary-Greenleaf Compassion Center in Montclair-opened for business and began serving patient. The New Jersey Medical Marijuana Act (N.J.S.A. 24:61-2e) states that:

[T]he purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

New Jersey is now one of the 20 States in the nation (in addition to the District of Columbia) to legalize medical marijuana. In addition, two States—Washington State and Colorado--have recently legalized recreational marijuana, and the United States Justice Department by way

of a “Memorandum For All United States Attorneys” (dated August 29, 2013) announced that it will not challenge state laws that legalize marijuana.

Title 24 defines and categorizes “Narcotic Drugs and

Other Dangerous Substances.” Controlled substances are broken down into five Schedules—Schedule I through Schedule

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V, with Schedule I substances being considered to have the highest potential for abuse with “no accepted medical use in treatment in the United States.” (emphasis supplied). N.J.S.A. 24:21-5. Obviously, New Jersey’s passage of the Medical Marijuana Act vitiates the categorization of marijuana as a Schedule I substance with “no accepted medical use in treatment,” as the whole point of the Act is to provide ill people with the use of marijuana (i.e., medicinal purposes). Many scientific studies have proven that marijuana does have an accepted medical use in treatment and should not be a Schedule I drug.

SUBPOINT II

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE DEFENDANT’S RIGHTS UNDER THE RELIGIOUS

FREEDOM RESTORATION ACT AND THE FIRST

AMENDMENT ESTABLISHMENT CLAUSE, AND

ARTICLE 1, PARAGRAPH 4 OF THE NEW JERSEY

CONSTITUTION; SINCE PEYOTE IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED AN EXEMPTION FOR HIS

RELIGIOUS SACRAMENT GANJA (MARIJUANA)

The First Amendment provides that “Congress shall make

no law respecting an establishment of religion, or

prohibiting the free exercise thereof.” Article I, paragraph 3 of the New Jersey Constitution provides: “No

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person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience ...” Article I, Paragraph 4 of the New Jersey Constitution provides that “There shall be no establishment of one religious sect in preference to another ...”

Rastafarianism is a recognized religion by both the United Nations and United States. Rastafarianism first took root in Jamaica in the nineteenth century, and is based on a combination of Old Testament ideology and

East African philosophy. During the 1920’s, with the rise of Jamaican Nationalism and the African-American leader Marcus Garvey, the religion gained adherents in the United States. See Mircea Eliade, Encyclopedia of Religion, 96-97 (1989) (1989); See United States v. Bauer, 84 F.3d 1549, 1556 (9th Cir. 1996); Steele v. Blackmun, 236 F.3d 130, 132 (3rd Cir. 2001).

Mr. Forchion is a practicing Rastafarian and marijuana—-known as ganja in the religion--operates as a sacrament and is an integral part of the Rastafarian

religious ceremony. It is used as a food--many followers of the faith use marijuana as a spice, and as an ingredient in cake, bread and drinks such as ganja tea. It is also

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used as a natural medicine, considered to be a gift from Jah (God) to enhance one’s health.

SUBPOINT II(A)

THE DEFENDANT’S SACRAMENTAL USE OF

CANNABIS IS PROTECTED UNDER THE RELIGIOUS

FREEDOM RESTORATION ACT (RFRA)

By depriving Mr. Forchion (and all Rastafarians) of his ability to possess his sacramental cannabis, the State of New Jersey has burdened Mr. Forchion’s exercise of his religion in a manner forbidden by the Religious Freedom Restoration Act (RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (1993), codified at 42 U.S.C. §§ 2000bb-2000bb-4 (1994).

In People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), the Ninth Circuit ruled that the RFRA forbids prosecuting Rastafarians for using marijuana within the federal realm, such as a United States territory or a

national park, thus upholding a portion of the RFRA. The

Court in Guerrero, however, ruled that the defendant could be prosecuted for importing marijuana, since Rastafarianism does not require importation of a controlled substance, which increases its availability. Id. at 1223. While the

RFRA has been held only to apply to the federal government, the principle of the act should apply to the states as well, particularly to a practicing Rastafarian. The RFRA

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protects the religious use of marijuana by practicing Rastafarians, just as the 1919 Volstead Act (Prohibition Act) protected the religious use of alcohol in

the Catholic Church.

In Employment Division Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court upheld, against a First Amendment challenge, an Oregon law criminalizing peyote use, which was used in Native America religious rituals. Smith, a member of the Native American Church, ingested peyote for sacramental purposes at a church ceremony, which led his employer to fire him. Smith sued for unemployment benefits, arguing the denial burdened his First Amendment right to freedom of religion, and the Supreme Court allowed Oregon to enforce the anti-drug law. In response to Smith, Congress enacted the RFRA.

In Church of Lukumi Babalu Aye, Inc. v. Hiahleah, 508 U.S. 520 (1993), the Court applied the Smith framework to local animal-slaughter laws. The City of Hialeah, Florida, had enacted several ordinances that banned the ritual

sacrifice of animals; these laws directly burdened the religious practice of local members of the Santeria religion, who challenged the laws in court. See id. at 525-

8

28. The city sought refuge in Smith, but its position was undermined by the fact that the ordinances were not generally applicable, but rather contained express exceptions for animal slaughter for food and for hunting.

See id. at 536-37. The Supreme Court applied Smith to hold that heightened scrutiny would apply to the local laws. Id. at 546. The import of Smith and Lukumi Bagbalu Aye is that, where a statutory scheme does not make exceptions from the baseline regulatory of prohibitory regime, it cannot grant exceptions for secular purposes but deny exceptions for religious purposes without compelling reasons for the denial.

In Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d. 359, 364-65 (3rd Cir.) cert. denied, 120 S.Ct. 56 (1999) Cir. 1999), cert. denied, 120 S.Ct. 56 (1999) the plaintiff officers were Sunni Muslims whose religion imposes on adult males to wear beards, their request for exemption from the policy was denied as the department announced a 'zero tolerance policy' for departures from the ban, except for those officers who

received a "medical clearance" to wear a beard. See id. at 361. The Third Circuit held that, because exceptions were

9

made for those who needed to wear a beard for a secular (medical) reason, the compelling-interest test would govern the prohibition's application to claims for religious exemption. See id. at 366 ("[W]hen the government makes a value judgment in favor of secular motivations, the government's actions must survive heightened scrutiny.").

Because the department offered no compelling reason for the policy, the court upheld the Free Exercise claim. See id. at 366-67.

Gonzales v. O Centro Espirita Beneficente, Uniao do Vegetal, 546 U.S. 418 (2006), involved the Federal Government’s seizure of a sacramental tea (ayahuasca), containing a Schedule I substance, from a New Mexican branch of the Brazilian church Uniao do Vegetal (UDV). The church sued and claimed that the seizure was illegal, and sought to ensure future importation of tea for religious use. The United States District Court for New Mexico agreed and issued a preliminary injunction under the RFRA. The Government appealed to the Ten Circuit Court of Appeals, which affirmed. The Supreme Court heard the case

and found that the Government had failed to meet its burden under the RFRA that barring the substance served a

10

compelling government interest. The Court also disagreed with the government’s central argument that the uniform application of the Controlled Substances Act (CDS) does not allow for exceptions for the substance in this case, as Native Americans are given exceptions to use peyote,

another Schedule I substance.

Since both peyote (a Schedule I substance) and sacramental tea (ayahuasca) (another Schedule I substance) have been provided religious exemptions by the Supreme Court, the Rastafarians’ religious sacrament, ganja (marijuana), must be afforded the same exemption.

SUBPOINT II(B)

THE STATE OF NEW JERSEY’S INTERFERENCE

WITH THE DEFENDANT’S SACRAMENTAL USE OF

MARIJUANA SUBSTANTIALLY BURDENS HIS

EXERCISE OF RELIGIOUS FREEDOM

The State’s interference with Mr. Forchion’s sacramental use of marijuana substantially burdens his exercise of religion. Compelling a party to forego a religious practice imposes a substantial burden on that party. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 140-41 (1987). In the Rastafarian religion, no substitute exists for cannabis; its ingestion or topical application is necessary for a Rastafarian ceremony to

11

occur. Because cannabis is regarded as sacred, Rastafarian doctrine does not permit the substitution of any other plants or materials as sacraments during Rastafarian ceremonies, and does not permit the substitution of any other practice for the ingestion of cannabis.

SUBPOINT III

N.J.S.A. 2C:35-5A(1) AND B.10(A)

ARE UNCONSTITUTIONAL AS THEY VIOLATE

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION SINCE PEYOTE (A

SCHEDULE I SUBSTANCE) IS A RECOGNIZED

RELIGIOUS EXEMPTION ALONG WITH ANOTHER

SCHEDULE I SUBSTANCE (AYAHUASCA TEA); THE

DEFENDANT, A PRACTISING RASTAFARIAN,

MUST BE AFFORDED THE SAME PROTECTION

Since both peyote (a Schedule I substance) and sacramental tea (ayahuasca) (another Schedule I substance) have been provided religious exemptions by the Supreme

Court, the failure to do so for Rastafarians and their religious sacrament ganja (marijuana) is violative of the equal protection clause of the Fourteenth Amendment.

SUBPOINT IV

THE MARIJUANA STATUTES ARE UNCONSTITUTIONAL DUE TO VAUGENESS, INDEFINITENESS AND OVERBREADTH; THEY ALSO

VIOLATE THE UNITED STATES CONSTITUTION’S PROHIBITION AGAINST BILL OF ATTAINDERS; AT THE VERY LEAST, DEFENDANT

SHOULD HAVE BEEN ALLOWED TO PRESENT EXPERT

TESTIMONY CONCERNING THIS ISSUE

Mr. Forchion is a dual citizen/resident of both New

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Jersey and California. He is a legal medical/marijuana patient in the State of California (Da39). The Due Process clause of the Fifth and Fourteenth Amendments require that criminal laws be drafted in language that is clear enough for the average person to comprehend. If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.

The failure by the State of New Jersey to reclassify from a Schedule 1 drug does not in any way diminish Mr. Forchion’s argument that a reasonable person would have believed he would be entitled to have medical marijuana in his possession after New Jersey passed its medical marijuana law on January 18, 2010. Mr. Forchion was justified in believing that he would have some legal protection, as nearly half of the medical marijuana states do accept other state’s registry ID cards.

SUBPOINT V

N.J.S.A. 2C:35-5A.(1) AND 2C:35-5B(10)(A) ARE UNCONSTI-TUTIONAL ON THE GROUNDS OF “MEDICAL NECESSITY” OR THE DEFENDANT IS EXEMPT FROM PROSECUTION DUE TO “MEDICAL NECESSITY”; THE INDICTMENT MUST BE DISMISSED WITH PREJUDICE

N.J.S.A. 2C:3-2 (Necessity) provides:

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a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by

law for which neither the code nor other statutory law defining the

offense provides exceptions or defenses

dealing with the specific situation

involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

Mr. Forchion (a medical marijuana patient suffering from bone cancer diagnosed in 2001) uses marijuana for medical reasons with a valid California Medical Marijuana card permitting such medical use. (Da39). Since the marijuana in question emanates from California, the “medical necessity” defense is applicable here.

As stated in Paragraph 23 of the Saykanic Certification, at the time of Mr. Forchion’s arrest (April 1, 2010), it was unclear whether New Jersey would accept other states; registry ID cards. This is reflected in the Medical Marijuana Summary Chart (dated April 8, 2011),

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which reads in the New Jersey section: “Accepts other states’ registry ID cards?” the answer is “Unknown.” (Da43). Mr. Forchion submits that he is the future defendant hypothetized by the sharply divided (4 to 3) New Jersey Supreme Court in State v. Tate, 102 N.J. 64 (1986).

SUBPOINT VI

THE DEFENDANT SHOULD HAVE BEEN ALLOWED

TO PRESENT EXPERT TESTIMONY ON

THE ISSUES RAISED IN THIS BRIEF

At the very least, Mr. Forchion should have been

permitted to present expert testimony by the way of an expert witness or witnesses on the issues raised in this brief (including the issue concerning Rastafarians’ use of marijuana as a religious sacrament).

The following were Mr. Forchion’s proposed witnesses:

Dr. Julien Heicklien – would testify to rebut the anticipated State’s expert as to the classification of marijuana.

Chris Conrad – religious expert.

Ali Ras I – Rastafarian religious expert.

New Jersey State Senator Nicholas Scutari – sponsored medical marijuana bill.

New Jersey State Senator Bassano – sponsored and held state committee meetings explaining medical

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marijuana. His testimony would explain the bill’s intent.

New Jersey Assemblyman Reed Gusciora – co-sponsored medical marijuana bills; his testimony is needed to explain the intent of the bill.

Edward E. Alexander, M.D. (California License A45272)

Recently, the Appellate Division reversed an order denying post-conviction relief due to the refusal of the public defenders to pay for an expert witness as to whether

defendant’s mental faculties were impaired. See State v. Leon Nelson, 2013 WL 4765340 (N.J.Super.A.D.; decided September 6, 2013).

SUBPOINT VII

THE INDICTMENT SHOULD BE DISMISSED WITH

PREJUDICE IN THE INTEREST OF JUSTICE

Even during the alcohol prohibition (“Prohibition”), which began with the enactment of the Volstead Act (the 1919 law giving federal agents the power to investigate and prosecute violations of the Eighteenth Amendment), there

was a blanket exception for the manufacture, use, etc., of

alcohol for "sacramental purposes" at Title II, section 3.

SUBPOINT VIII

INTERNATIONAL LAW AND TREATIES PROHIBIT

THE INTERFERENCE WITHDEFENDANT’S

RELIGIOUS USE OF CANNABIS

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International law and treaties prohibit the interference with Mr. Forchion's religious use of cannabis for sacramental purposes. The international law doctrine of comity requires that United States tribunals give consideration in areas that implicate international interests. See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). In 1992, the United States Congress ratified the United Nations International Covenant on Civil and Political Rights ("ICCPR"). See 138 Congo Rec. S4781-84 (1992). This congressional action strengthens the applicability of the general doctrine of comity in a case such as this involving religious freedom. The Rastafarian ceremonial use of cannabis falls squarely within this concept of "manifesting" religious belief, and so precisely the type of practice that Congress intended to protect worldwide by ratifying the ICCPR and, earlier, the Universal declaration. Congress enactment of the International Religious Freedom Act ("IRPA"), Pub. L. No. 105-292, 112 Stat. 2788 (1998) (codified at 22 U.S.C. §§

6401-6481 (Supp. IV 1998)), further reflects its commitment to enhancing religious freedom across national boundaries, and further supports the comity rationale for permitting the Rastafarian religion to make sacramental use of

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cannabis in the United States.

For the State of New Jersey (an American State) to ignore the religious practices of this defendant, or other similarly situated Rastafarians, will make America appear hypocritical when it criticizes China for its persecution of the Falun Gong religious sect, or of Saudi Arabia, Iran and Pakistan’s treatment of Christians.

POINT II

BAIL PENDING APPEAL SHOULD BE GRANTED

AS SUBSTANTIAL QUESTIONS EXIST AND THE

SAFETY OF ANY PERSON OR THE COMMUNITY WILL

NOT BE SERIOUSLY THREATENED IF THE DEFENDANT

IS RELEASED PENDING APPEAL PURSUANT TO R. 2:9-4

R. 2:9-4 (Bail After Conviction) provides that bail pending appeal shall be granted if it appears that the case involves a substantial question that should be determined by the appellate court, and that the safety of any person or of the community will not be seriously threatened if the defendant remains on bail and that there is no significant risk of defendant’s flight. Mr. Forchion does not have to show that he is likely to prevail on appeal; instead, he

must show that at least one substantial question exists for appeal, which, he respectfully submits, he has done.

Mr. Forchion was originally granted straight probation by Judge Delehey. It was only after Mr. Forchion did not

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report to Probation following his sentence (i.e., simply walking across the street) that he was given a nine-month jail sentence. The reasons for Mr. Forchion not reporting directly to Probation are explained in the accompanying Certification. As explained in Paragraph 9 of Mr.

Ackerman’s Certification, Mr. Forchion intended to move for reconsideration of sentence, and he incorrectly believed that he had 30 days to report to Probation since he was planning on filing a motion for reconsideration. In addition, Mr. Forchion did speak to someone in Probation and informed them that he was planning to report after receiving scheduled medical treatment in California. (Ackerman Certification; Paragraph 9; Da19).

In the event that this stay is not granted, then by the time the Appellate Division decides the appeal (one to one-and-a-half years) all of the custodial portion of the sentence would have already been served. If Mr. Forchion’s conviction is reversed, then he would have unnecessarily

served this jail time. Put another way, a denial of the continued stay will be equivalent to eviscerating the defendant’s appeal, rendering it (in large part) moot.

It should also be stated that Mr. Forchion pleaded guilty to the alleged probation violation since he was

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advised that if he did not plead guilty he would be incarcerated for 9 months (which would have been disastrous to his health). By pleading guilty, Mr. Forchion was released from jail two days later and ordered back to Judge Delehey on September 10, 2013 for final adjudication. Mr. Forchion only pleaded guilty to get out of jail and receive his medical treatments. Mr. Forchion pleaded guilty and was, in fact, released from jail two days later.

CONCLUSION

For the foregoing reasons and the authorities cited, the defendant-appellant Edward R. Forchion respectfully requests that this Court grant his motion for a stay or, in the alternatively, grant bail pending appeal.

Respectfully submitted,

_____________________

John Vincent Saykanic

Attorney for Defendant-

Dated: September 16, 2013 Appellant Edward R. Forchion

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[1] “Da” denotes Appendix to this Certification.

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