                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3053
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Timothy Anderson

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                              Submitted: April 7, 2017
                               Filed: April 26, 2017
                                  ____________

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

      A jury found Timothy Anderson guilty of one count of conspiracy to distribute
heroin and one count of possessing heroin with the intent to distribute. Anderson
appeals his conviction on the ground that the district court1 erroneously denied his

      1
        The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.
pretrial motion to dismiss the indictment, which alleged that the prosecution violated
the Religious Freedom Restoration Act (“RFRA”). See 42 U.S.C. § 2000bb-1. For
the following reasons, we affirm.

                                          I.

       In May 2013, a grand jury indicted Anderson on one count of possession with
intent to distribute heroin and one count of conspiracy to distribute heroin. See 21
U.S.C. §§ 841(a)(1), 846. Anderson filed a pretrial motion seeking dismissal of the
indictment. In this motion, Anderson admitted that he distributed heroin, but he
argued that the Government’s decision to prosecute him under the Controlled
Substances Act (“CSA”) violated his free exercise rights under RFRA. Anderson
alleged that he “is a student of Esoteric and Mysticism studies” who created “a
religious non-[p]rofit” to distribute heroin to “the sick, lost, blind, lame, deaf, and
dead members of Gods’ [sic] Kingdom.” As such, he argued that the Government’s
decision to prosecute him violated RFRA because his practice of distributing heroin
was “an exercise of [his] sincerely held religious belief.”

       The district court denied Anderson’s pretrial motion. The court did not
conduct an evidentiary hearing to determine the sincerity of Anderson’s religious
beliefs. See United States v. Quaintance, 523 F.3d 1144, 1145 (10th Cir. 2008)
(affirming dismissal of RFRA defense where the district court, “after conducting a
three-day evidentiary hearing on the motion, determined that the defendants had not
established the existence of a sincerely held religious belief”). Rather, the court
assumed for purposes of ruling on the motion that Anderson’s heroin distribution was
an exercise of sincerely held religious beliefs and that the prosecution “substantially
burdened” this “exercise of religion.” See 42 U.S.C. § 2000bb-1(a). Nevertheless,
the court held that the Government had shown that its prosecution of Anderson was
both “in furtherance of a compelling governmental interest” and “the least restrictive
means of furthering that compelling governmental interest.” See id. § 2000bb-1(b).

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Thus, the court denied Anderson’s motion and prohibited him from presenting this
defense to the jury during trial. The jury convicted Anderson on both counts, and he
was sentenced to 324 months’ imprisonment. Anderson now appeals, asserting that
the district court erred in denying his motion to dismiss the indictment and in
prohibiting him from presenting his RFRA defense to the jury.

                                         II.

        “A person whose religious practices are burdened in violation of RFRA may
assert that violation as a claim or defense in a judicial proceeding and obtain
appropriate relief.” United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012)
(quotations omitted). “RFRA, enacted in 1993, amended all federal laws, including
criminal laws, to include a statutory exemption from any requirement that
substantially burdens a person’s exercise of religion unless that requirement is the
least restrictive means to achieve a compelling government interest.” Id. “[I]n a
RFRA analysis, a rule imposes a substantial burden on the free exercise of religion
if it prohibits a practice that is both sincerely held by and rooted in the religious
beliefs of the party asserting the claim or defense.” Id. at 710 (quotations omitted).

       Here, the district court assumed without deciding that Anderson’s practice of
distributing heroin was an exercise of sincerely held religious beliefs and that the
prosecution therefore substantially burdened his exercise of religion. We note that
a reasonable observer may legitimately question how plausible it is that Anderson
exercised a sincerely held religious belief by distributing heroin. Nevertheless,
because the district court did not hold an evidentiary hearing or make any factual
findings regarding Anderson’s beliefs, we likewise will assume without deciding that
the prosecution substantially burdened an exercise of religion. We review de novo
the remaining questions of whether the prosecution (1) furthered a compelling
governmental interest and (2) was the least restrictive means of furthering that
compelling governmental interest. See id. at 708; 42 U.S.C. § 2000bb-1(b).

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       The Government first argues that it has a compelling interest in regulating
heroin distribution because heroin is listed under Schedule I of the CSA and, as such,
it has a high potential for abuse, has no currently accepted medical use in treatment,
and lacks accepted safety for use under medical supervision. See 21 U.S.C.
§ 812(b)(1)(A)-(C). However, as the Supreme Court explained in Gonzales v. O
Centro Espirita Beneficiente Uniao do Vegetal, “the Government’s mere invocation
of the general characteristics of Schedule I substances, as set forth in the Controlled
Substances Act, cannot carry the day.” 546 U.S. 418, 432 (2006). Rather, “RFRA
requires the Government to demonstrate that the compelling interest test is satisfied
through application of the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially burdened.” Id. at 430-31
(quoting 42 U.S.C. § 2000bb-1(b)).

      In O Centro, the Government sought to enforce the CSA against a religious
group that used hoasca, another Schedule I drug, for sacramental purposes. The
Court noted that “[f]or the past 35 years, there has been a regulatory exemption for
the use of peyote—a Schedule I substance—by the Native American Church” and
“[e]verything the Government says about the DMT in hoasca . . . applies in equal
measure to the mescaline in peyote.” Id. at 433. Thus, the Court concluded that the
Government had not demonstrated a compelling interest in prohibiting the
“circumscribed, sacramental use of hoasca” by this particular group. See id. at 432-
33.

       Arguably, we could distinguish O Centro on the basis that heroin simply is
more dangerous than either hoasca or peyote. However, we need not do so. Rather,
we can distinguish O Centro on the basis that the Government in this case has
demonstrated a different compelling interest. Unlike in O Centro, the Government
is not prosecuting Anderson for engaging in a “circumscribed, sacramental use” of
heroin. See id. Instead, the Government is prosecuting Anderson for distributing
heroin to others for non-religious uses.

                                         -4-
       Indeed, in United States v. Christie, the Ninth Circuit held that the Government
had demonstrated a compelling interest in bringing a similar prosecution for
distribution of marijuana. 825 F.3d 1048, 1054, 1057 (9th Cir. 2016). There, a
married couple operated the “Hawaii Cannabis Ministry,” which distributed cannabis
to members in exchange for a “suggested donation price.” Id. at 1052-53. Becoming
a member was not difficult, and even minors could do so. Id. Further, ministry
employees did not confirm that the people receiving cannabis were members, and
they did not advise the recipients that the cannabis was for religious purposes only.
Id. at 1054. Thus, the court held that “[t]he record in this case succeeds where the
record in O Centro fell short” because the Government had “a compelling interest in
mitigating the risk that cannabis from the Ministry will be diverted to recreational
users.” Id. at 1057.

       Likewise here, Anderson does not even allege that the recipients of his heroin
used it for their own religious purposes. Rather, he alleges only that his distribution
allowed him to exercise his own religious beliefs.2 Thus, we have no difficulty
concluding that prosecuting Anderson under the CSA would further a compelling
governmental interest in mitigating the risk that heroin will be diverted to recreational
users. See id. (“Such illegal, non-religious use, by definition, finds no protection
under RFRA.”).

       We also have no difficulty concluding that the Government has chosen the least
restrictive means necessary to further that interest. As with the compelling interest
test, RFRA “requir[es] the Government to demonstrate that application of a
substantial burden to the person . . . is the least restrictive means of furthering [that]


      2
      In fact, the trial evidence established that Anderson supplied heroin to multiple
co-conspirators who sold it to their own customers, with no evidence of religious
concerns or uses.

                                           -5-
compelling governmental interest.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751, 2780 (2014) (quotations and alterations omitted). Here, as in Christie, the
Government could not “achieve its compelling interest to the same degree while
exempting [Anderson] from complying in full with the CSA.” See Christie, 825 F.3d
at 1061. Indeed, we see no way for the Government to accommodate Anderson while
still furthering its interests. Anderson “cannot simply point to other groups who have
won accommodations for the sacramental use of peyote and hoasca . . . because the
government has shown material differences between those particular groups and their
sacramental practices, on the one hand, and [Anderson] and [his] religious exercise,
on the other.” See id. Specifically, Anderson’s religious exercise involves heroin
distribution. Moreover, Anderson has indicated that he will not stop distributing
heroin under any circumstances, stating that he “does not want to compromise his
faith in any way.” As such, we are convinced that prosecuting Anderson under the
CSA represents the least restrictive means for the Government to further its
compelling interest in mitigating diversion of heroin to recreational users. Therefore,
we reject Anderson’s RFRA defense.

       Furthermore, we reject Anderson’s argument that he was entitled to present his
RFRA defense to the jury. Because the district court concluded that prosecuting
Anderson under the CSA was the least restrictive means to further a compelling
governmental interest, it was proper for the court to reject Anderson’s RFRA defense
as a matter of law and to prohibit him from raising it again at trial. See In re Young,
82 F.3d 1407, 1419 (8th Cir. 1996) (noting that “compelling governmental interest”
and “least restrictive means” inquiries are “questions of law”), vacated & remanded
sub nom. Christians v. Crystal Evangelical Free Church, 521 U.S. 1114 (1997),
reinstated in relevant part, 141 F.3d 854, 856 (8th Cir. 1998); United States v.
Brown, No. 95-1616, 1995 WL 732803, at *2 (8th Cir. 1995) (unpublished)
(affirming district court’s ruling that defendant could not prevail under RFRA and
that he may not present evidence on this issue at trial).



                                         -6-
                            III.

For the foregoing reasons, we affirm.
                ______________________________




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