                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                    Nos. 09-2013, 09-2014
 v.
                                                  (D.C. No. 06-CR-538-JCH)
                                                          (D.N.M.)
 DANUEL DEAN QUAINTANCE and
 MARY HELEN QUAINTANCE,

          Defendants-Appellants.


                                ORDER AND JUDGMENT *


Before HENRY, EBEL, and GORSUCH, Circuit Judges.


      Danuel and Mary Quaintance responded to their indictment for conspiracy

and possession with intent to distribute marijuana with a motion to dismiss. They

didn’t deny their involvement with the drug, but countered that they are the

founding members of the Church of Cognizance, which teaches that marijuana is

a deity and sacrament. As a result, they submitted, any prosecution of them is

precluded by the Religious Freedom Restoration Act (“RFRA”), which forbids the




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
federal government from substantially burdening sincere religious exercises

absent a countervailing compelling governmental interest.

      After taking extensive evidence, the district court denied the motion to

dismiss. It held, as a matter of law, that the Quaintances’ professed beliefs are

not religious but secular. In addition and in any event, the district court found, as

a matter of fact, that the Quaintances don’t sincerely hold the religious beliefs

they claim to hold, but instead seek to use the cover of religion to pursue secular

drug trafficking activities.

      After this ruling, the Quaintances pled guilty to the charges against them

but reserved their right to appeal the district court’s denial of their motion to

dismiss. They do that now. Because we conclude the district court did not err in

finding the Quaintances insincere in their beliefs, we affirm its judgment.

                                           I

                                           A

      While the Quaintances are the only appellants before us, their case stems

from the arrest of Joseph Butts, Ms. Quaintance’s brother and a co-defendant in

the district court proceedings. During a traffic stop in eastern Missouri, a drug-

sniffing dog alerted to the presence of narcotics in Mr. Butts’s pickup truck. In

the vehicle, which Mr. Butts said belonged to his sister or his sister-in-law,

officers discovered approximately 338 pounds of marijuana. Mr. Butts was

promptly arrested.

                                          -2-
      On learning of Mr. Butts’s arrest, the Quaintances sought to raise the

$100,000 needed to bail him out of jail. According to Timothy Kripner, another

co-defendant in the district court, the Quaintances called to recruit him for “a

job.” R. Vol. III at 287. Mr. Kripner agreed to rent a car and drive to the

Quaintances’ home in Arizona, where they told him of Mr. Butts’s arrest in

Missouri for transporting marijuana. To raise the money needed for bail, they

asked Mr. Kripner to make a delivery for them. As they explained the plan, the

next day Mr. Kripner would pick up a load of marijuana in New Mexico and drive

it to California. There, his car would “be stashed with $100,000,” which he was

to return to the Quaintances. R. Vol. III at 290. The Quaintances later added two

more deliveries to the agenda, another to California and one to Arizona. For his

trouble, Mr. Kripner was promised $35,000.

      Their plans set, the next day the Quaintances and Mr. Kripner traveled in

tandem to Lordsburg, New Mexico, using cellular phones and two-way radios to

communicate between the two cars. A few miles outside of town, they

rendezvoused with “backpack runners” from Mexico, who loaded four bags filled

with marijuana into Mr. Kripner’s car. Before they could leave the scene,

however, Border Patrol agents stopped both Mr. Kripner’s and the Quaintances’

cars. The agents searched the vehicles, discovering in Mr. Kripner’s car the bags

containing approximately 172 pounds of marijuana. The Quaintances and Mr.

Kripner were arrested and later indicted for possession of marijuana with intent to

                                         -3-
distribute and conspiracy to commit the same. A superseding indictment added

Mr. Butts and the marijuana found in his truck to the conspiracy charge.

                                          B

      In due course, the Quaintances moved to dismiss the indictment under

RFRA, 42 U.S.C. § 2000bb et seq. They explained that they are members of the

Church of Cognizance, which Mr. Quaintance founded in 1991. The church is

organized around the teaching that marijuana is a deity and sacrament. The

Quaintances claimed that they sincerely hold this belief and that possession (and

consumption) of marijuana is essential to their religious exercise. Accordingly,

they argued the prosecution against them unduly burdened their religious beliefs

and thus could not stand under RFRA.

      RFRA allows religious adherents to challenge government activities that

encroach on their beliefs. To make out a prima facie RFRA defense, a criminal

defendant must show by a preponderance of the evidence that government action

(1) substantially burdens (2) a religious belief, not merely a philosophy or way of

life, (3) that the defendant sincerely holds. United States v. Meyers, 95 F.3d

1475, 1482 (10th Cir. 1996). If a defendant makes that showing, it falls to the

government to show that the challenged action is justified as the least restrictive

means of furthering a compelling governmental interest. Id. Here, the

government conceded that criminal punishment for the charged crimes constitutes




                                         -4-
a substantial burden, leaving the Quaintances to prove the religiosity and sincerity

prongs of their prima facie defense.

      The Quaintances sought and received an evidentiary hearing in connection

with their motion to dismiss. That hearing eventually consumed approximately

three days, during which the district court received live testimony from ten

witnesses as well as argument and briefing from counsel. At the end of it all, the

district court issued an extensive 38-page opinion denying the motion to dismiss

and concluding that the Quaintances had failed to establish either of the

remaining elements of their prima facie case.

      In the district court’s view, the Quaintances failed to show that their beliefs

about marijuana qualify as “religious” within the meaning of RFRA. 1 Even if

they had succeeded on that score, the court added, they couldn’t show that they

sincerely held their professed religious beliefs, rather than simply used them as

cover for secular drug activities. United States v. Quaintance, 471 F. Supp. 2d

1153 (D.N.M. 2006).




      1
         To assess the religiosity of their beliefs, the court followed the approach
our court adopted in Meyers, 95 F.3d at 1483-84. Meyers examined five factors
in evaluating religiosity of a belief system: ultimate ideas, metaphysical beliefs,
moral or ethical system, comprehensiveness of beliefs, and accoutrements of
religion. Id. at 1483. The last factor includes ten subfactors: founder, teacher, or
prophet; important writings; gathering places; keepers of knowledge; ceremonies
and rituals; structure or organization; holidays; diet or fasting; appearance and
clothing; and propagation. Id. at 1483-84.

                                         -5-
      The Quaintances sought to take an interlocutory appeal challenging these

rulings, but we dismissed the appeal, holding that it must wait until the district

court entered a final judgment. United States v. Quaintance, 523 F.3d 1144 (10th

Cir. 2008). After this and other motions practice in the district court, the

Quaintances eventually pled guilty to the indictment, reserving the right to appeal

the district court’s rulings. Once the district court entered a final judgment of

conviction, they brought this appeal.

                                           II

      On appeal, the Quaintances challenge both of the district court’s

independent reasons for denying their motion to dismiss the indictment. They

argue that the district court erred as a matter of law when it held their beliefs are

not “religious” in nature. And they challenge the correctness of the district

court’s factual finding that their beliefs are, in any event, not “sincerely held.” 2

      2
          Notably, in their briefs before us the Quaintances do not challenge the
propriety of the district court’s decision to address these questions in a pre-trial
motion to dismiss. They do not, for example, argue that the decision on one or
the other of these issues implicates the “trial of the general issue” and is therefore
inappropriate for pre-trial resolution under Federal Rule of Criminal Procedure
12(b)(2). Neither do they contend that these questions are properly answered by a
jury, not the district court. At oral argument and through supplemental filings
submitted pursuant to Federal Rule of Appellate Procedure 28(j), Mr. Quaintance
sought to raise objections along these lines for the first time, arguing the district
court erred in not sending his RFRA defense to a jury. Recognizing our
dependence on the adversarial process to sharpen the issues for our decision and
the potential inequities associated with passing on an argument to which the
opposing party hasn’t had a fair opportunity to respond, we decline to entertain
this late-blossoming objection. See Hill v. Kemp, 478 F.3d 1236, 1250-51 (10th
                                                                        (continued...)

                                          -6-
Because we cannot say the district court’s latter, sincerity holding was reversibly

wrong, we cannot say it erred in denying the motion to dismiss and need not

address the district court’s religiosity holding.

                                           A

      Under our precedents, sincerity of religious beliefs “is a factual matter,”

and so, “as with historical and other underlying factual determinations, we defer

to the district court’s findings, reversing only if those findings are clearly

erroneous.” Meyers, 95 F.3d at 1482; see also Thiry v. Carlson, 78 F.3d 1491,

1495 (10th Cir. 1996); United States v. Seeger, 380 U.S. 163, 185 (1965)

(sincerity of beliefs is “a question of fact”); Iron Eyes v. Henry, 907 F.2d 810,

813 (8th Cir. 1990) (reviewing district court’s sincerity finding for clear error);

Smith v. Pryo Mining Co., 827 F.2d 1081, 1086 (6th Cir. 1987) (same); Sourbeer

v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986) (same). That is, we may disturb

the district court’s finding of insincerity “only if the court’s finding is without


      2
        (...continued)
Cir. 2007); Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir.
1994) (White, J., sitting by designation). Moreover, it’s unclear whether Mr.
Quaintance even could raise such objections to the district court’s decision, given
that the Quaintances specifically asked the district court to take evidence and rule
on the religiosity and sincerity questions before trial, as it did. See United States
v. Shaffer, 472 F.3d 1219, 1227 (10th Cir. 2007) (discussing invited error
doctrine). None of this, however, should be taken as endorsing the pre-trial
resolution of motions that implicate factual questions intertwined with the merits,
all in contravention of Federal Rule of Criminal Procedure 12(b)(2). See United
States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997); United States v. Fadel, 844
F.2d 1425, 1430-31 (10th Cir. 1988).

                                          -7-
factual support in the record or if, after reviewing all the evidence, we are left

with a definite and firm conviction that a mistake has been made.” Aquila, Inc. v.

C.W. Mining, 545 F.3d 1258, 1263 (10th Cir. 2008) (internal quotation marks

omitted). To be clearly erroneous, “a finding must be more than possibly or even

probably wrong; the error must be pellucid to any objective observer.” Watson v.

United States, 485 F.3d 1100, 1108 (10th Cir. 2007). 3

      3
         The Quaintances argue that sincerity wasn’t at issue in Meyers and Thiry
and urge us to consider those cases’ statements about the applicable standard of
review to be dicta. Sincerity, they say, is best viewed as a “constitutional fact”
meriting “independent” or de novo review. See Bose Corp. v. Consumers Union
of U.S., Inc., 466 U.S. 485, 505-11 & n.27 (1984). Though RFRA offers
statutory, not constitutional, protection of religious freedom, the Quaintances note
that we have extended the constitutional fact doctrine to certain findings in RFRA
cases and subjected them to plenary appellate review. See United States v.
Friday, 525 F.3d 938, 949-50 (10th Cir. 2008).

       Even assuming without deciding we were free to revisit the governing
standard of review, we question whether de novo review would be appropriate or
make any difference in this case. Even when the constitutional fact doctrine
applies, credibility determinations remain subject to clear error review, see Harte-
Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989), and a sincerity
finding is in the end “almost exclusively a credibility assessment,” Kay v. Bemis,
500 F.3d 1214, 1219 (10th Cir. 2007). In those few instances where the Supreme
Court has mandated de novo review of facts involving a litigant’s state of mind,
the inquiry has usually involved some purely legal question. See Bose, 466 U.S.
at 511 (holding appellate court must, when evaluating actual malice in libel case,
independently determine “whether the evidence in the record . . . is of the
convincing clarity required to strip the utterance of First Amendment
protection”); Miller v. Fenton, 474 U.S. 104, 116-17 (1985) (holding
“assessments of credibility and demeanor” are “not crucial” to deciding
voluntariness of confession; relevant inquiry is “whether the techniques for
extracting the statements . . . are compatible with a system that presumes
innocence and assures that a conviction will not be secured by inquisitorial
means”). Sincerity, meanwhile, lacks the legal flavor that makes those questions
                                                                       (continued...)

                                         -8-
      As the district court noted, numerous pieces of evidence in this case

strongly suggest that the Quaintances’ marijuana dealings were motivated by

commercial or secular motives rather than sincere religious conviction.

      First, the Quaintances’ colleague and putative fellow church member, Mr.

Kripner, testified that the Quaintances considered themselves in the marijuana

“business.” R. Vol. III at 280-81. According to Mr. Kripner, the Quaintances

bought marijuana from him about once every two weeks. The quantities involved

ranged from a half pound to a pound, while the prices ran from $350 to $600,

which the Quaintances paid in cash, mostly in $100 and $20 bills. The

Quaintances indicated to Mr. Kripner that they were reselling the marijuana,

sometimes telling him “it went really fast,” other times saying “they were still

sitting on some of it.” R. Vol. III at 283. At one point they complained to Mr.

Kripner that he’d sold them “bad weed,” saying they “couldn’t get rid of it” and it

“was going to hurt their business.” R. Vol. III at 280-81.

      Second, that business was apparently integral to the particular marijuana

transaction resulting in the Quaintances’ arrest. As the district court noted, Mr.

Butts’s arrest and consequent need for $100,000 bail gave the Quaintances a

powerful motive “to undertake a large drug transaction for monetary, as opposed


      3
       (...continued)
more readily susceptible to plenary review on appeal. Further, for reasons that
follow, we consider the district court’s sincerity finding persuasive under any
standard of review that conceivably might pertain.

                                        -9-
to religious, purposes.” Quaintance, 471 F. Supp. 2d at 1173. And they made it

clear to Mr. Kripner that bail money was precisely the goal of the “job” they

recruited him to perform. To that end, they coordinated a fairly intricate process

whereby Mr. Kripner, together with the Quaintances, was to meet up with

backpack runners in the New Mexico desert, collect his marijuana cargo, and then

transport the load to California. There, Mr. Kripner would park his car at a hotel,

where the Quaintances had arranged for someone to take the car, remove the

marijuana, and replace it with $100,000 for Mr. Kripner to return to the

Quaintances. Had the whole plan not been short-circuited at the initial pick-up,

two more trips were scheduled to follow, ultimately resulting in a $35,000 payday

for Mr. Kripner. So it is that the very transaction at issue here was part of a

lucrative scheme to raise money for a secular purpose.

      Third, the Quaintances hastily inducted Mr. Kripner into the Church of

Cognizance the night before he was to pick up the first load of marijuana for

them. The Quaintances had previously suggested Mr. Kripner join their church,

promising that it would legalize his marijuana use, but he had declined the offer.

On the eve of his scheduled pick-up, though, he joined, signing a church

membership pledge and receiving a certificate designating him an authorized

church courier. But the Quaintances never had him read the pledge or asked if he

shared their beliefs. And Mr. Kripner never considered marijuana a deity or

sacrament. Rather, he testified that he joined the Church of Cognizance just so he

                                         - 10 -
could “do the load” the Quaintances hired him to transport. R. Vol. III at 287.

The timing and circumstances of all this, the district court found, tended to

suggest that the Quaintances, too, “were acting for the sake of convenience, i.e.,

because they believed the church would cloak Mr. Kripner with the protection of

the law.” Quaintance, 471 F. Supp. 2d at 1174. That is, they inducted Mr.

Kripner because they thought it might insulate their drug transactions from

confiscation, “not because they had a sincere religious belief that marijuana is a

sacrament and deity.” Id.

      Fourth, Mr. Kripner testified that he sold the Quaintances cocaine along

with their marijuana purchases. He shared cocaine with Ms. Quaintance, then

later started selling the Quaintances a quarter-ounce of the drug about once a

month. 4 The fact that the Quaintances bought cocaine for recreational purposes,

the district court explained, tends to “undermine[],” though not foreclose, their

assertion that they used another illegal drug (marijuana) for religious rather than

secular purposes. Quaintance, 471 F. Supp. 2d at 1174. 5

      4
         While Mr. Kripner testified that he used cocaine with both of the
Quaintances, R. Vol. III at 285, the district court found only that he consumed
cocaine with Ms. Quaintance, Quaintance, 471 F. Supp. 2d at 1174, apparently
relying on testimony from a drug task force agent that Mr. Kripner mentioned
only Ms. Quaintance’s cocaine use when being debriefed after arrest, see R. Vol.
III at 365. The district court expressly found that Mr. Kripner was credible in
other respects, however, and that both Quaintances purchased cocaine.
Quaintance, 471 F. Supp. 2d at 1173-74.
      5
          The Quaintances deny using cocaine and also challenge its relevance. At
                                                                     (continued...)

                                        - 11 -
      These four considerations convincingly support the district court’s finding

that the Quaintances’ professed beliefs were not sincerely held. 6

                                          B

      The Quaintances reply by arguing that Mr. Kripner isn’t a credible witness

and his testimony shouldn’t be the basis for assessing their sincerity. They

emphasize that Mr. Kripner dealt drugs, violated his bail conditions by breaking a

promise not to use drugs, and faced up to forty years’ prison time when he

testified for the government.

      An initial problem with these arguments is that we generally grant “great

deference” to a district court’s credibility assessments. Wessel v. City of

Albuquerque, 463 F.3d 1138, 1145 (10th Cir. 2006). Unlike this court, the district

court was able to hear Mr. Kripner testify, observe his demeanor on the witness



      5
       (...continued)
most, they say, it reveals they have personal failings, not that their beliefs about
marijuana are insincere. But while the Quaintances’ recreational cocaine use may
not necessarily rule out sincerity, it does lend support to the suggestion that their
marijuana use was likewise nonreligious.
      6
         The district court cited still other considerations in support of its finding
that the Quaintances’ beliefs were insincere. For example, it observed that Mr.
Quaintance was a longtime marijuana user but began to justify his use in religious
terms only after he had been arrested for marijuana possession; the lack of
evidence that the Quaintances’ professed beliefs required them to distribute large
quantities of marijuana to church members; and the lack of religious ceremony at
Mr. Kripner’s induction into the church. The Quaintances argue that these
considerations are legally improper for various reasons. But, because the
evidence we’ve already discussed in the text supplies more than enough record
support for a finding of insincerity, we need not grapple with any of these issues.

                                        - 12 -
stand, and consider his testimony in light of the weaknesses the Quaintances

identify. Having done so, the district court expressly found his testimony

credible. We are not well positioned to find otherwise. And our own review of

the record in this case reveals nothing that would lead us, in any event, to reach a

contrary conclusion. So, for example, despite Ms. Quaintance’s contention that

Mr. Kripner’s account of events “is practically nonsense,” Mary Opening Br. at

57, Mr. Kripner’s testimony appears to us coherent and does not contain the sort

of glaring internal inconsistencies or wild details that might render it incredible.

      Relatedly but distinctly, the Quaintances complain that the district court

selectively credited Mr. Kripner’s testimony by ignoring certain other statements

of his suggesting the Quaintances’ beliefs were both religious and sincere. But

this argument overstates the import of what Mr. Kripner actually said. After Mr.

Kripner testified that Mr. Quaintance had told him marijuana was the “tree of

life,” defense counsel asked Mr. Kripner if Mr. Quaintance believed what he’d

said. R. Vol. III at 297-98. Mr. Kripner replied, without further elaboration, “To

a certain extent.” R. Vol. III at 298. This testimony, however, does little to assist

the Quaintances’ cause. The district court noted that the Quaintances themselves

had introduced “no evidence” that this particular “tree of life” concept reflected

their asserted religious beliefs — as opposed to a belief in marijuana as a source

of food, clothing, fuel, and shelter. Quaintance, 471 F. Supp. 2d at 1174 n.23.

Moreover, even assuming without deciding that the “tree of life” concept might

                                         - 13 -
have religious significance, Mr. Kripner’s testimony does no more than

equivocate on the sincerity of the Quaintances’ belief in it.

      Finally, the Quaintances urge us to credit their own claims and evidence of

sincerity. They point to, among other things, their history of publicly professing

their beliefs about marijuana and their modest standard of living, as well as the

Church of Cognizance’s official condemnation of selling marijuana. They say

these facts tend to suggest sincere religious adherence. Even assuming without

deciding that this is so, the record contains additional, overwhelming contrary

evidence that the Quaintances were running a commercial marijuana business

with a religious front — particularly in this transaction, aimed at securing bail

money for Ms. Quaintance’s brother. In light of this competing evidence, we can

hardly say that the Quaintances’ evidence of sincerity renders the district court’s

finding of insincerity erroneous, let alone clearly erroneous.

                                        ***

      Because the district court’s finding of insincerity stands, it is unnecessary

for us to address the district court’s alternative holding that the Quaintances’

proffered beliefs were not even religious in nature. Without the essential element




                                        - 14 -
of sincerity, their RFRA defense must fail. The judgment of the district court is

affirmed.

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                       - 15 -
