The DEA's Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act under RFRA: Door to Religious Freedom or Fifth Amendment Trap for the Unwary?

Abstract

Summary of the Article
The Drug Enforcement Administration has adopted a procedure to consider claims of exemption from the proscriptions of the Controlled Substance Act for churches that use psychedelic sacraments, and wish to continue doing so without fear of criminal prosecution. The DEA's procedure requires the submission of claims for exemption to adhere to the requirements of a "Guidance" document that requires disclosure of information that could be used to trigger investigations and prosecutions of churches or individuals applying for exemption. During the nine years since the DEA published the Guidance, there have been few applications for exemption submitted, and this author has seen no record of any being granted, despite the evident growth in the number of churches offering psychedelic controlled substances as their communion sacrament. Even though the Guidance requires disclosure of information that could be used for prosecutorial purposes, the author discovered no scholarly papers analyzing the Guidance to determine whether its provisions are subject to valid objections as incursions on the Fifth Amendment right to be free of compelled self-incrimination. In the absence of such an analysis, psychedelic churches and their attorneys have either filed requests for exemption without adequate risk assessment, or have refrained from filing altogether. Accordingly, this article has been prepared to provide an assessment of those risks. The article begins with an introduction to the seminal Supreme Court case that resulted in the DEA's issuance of the Guidance, provides a brief account of the historical origins of the Fifth Amendment, proceeds to a discussion of government regulatory regimes that have required compelled self-disclosure of incriminating facts, and summarizes the holdings of the Supreme Court decisions that overturned these regulatory regimes as violative of the Fifth Amendment. With this background established, the article identifies a variety of Fifth Amendment defects in the Guidance, and suggests how these defects could be remedied by regulatory changes that would assure applicants for exemption that disclosures necessary for the DEA to fairly evaluate requests for exemptions would not be used against them to instigate investigations or prosecution.

Full text

The DEA's Guidance Regarding Petitions for Religious Exemption from the Controlled Substances
Act under RFRA: Door to Religious Freedom or Fifth Amendment Trap for the Unwary?
by Charles Carreon
Summary of the Article
The Drug Enforcement Administration has adopted a procedure to consider claims of exemption
from the proscriptions of the Controlled Substance Act for churches that use psychedelic sacraments, and
wish to continue doing so without fear of criminal prosecution. The DEA's procedure requires the
submission of claims for exemption to adhere to the requirements of a "Guidance" document that requires
disclosure of information that could be used to trigger investigations and prosecutions of churches or
individuals applying for exemption. During the nine years since the DEA published the Guidance, there
have been few applications for exemption submitted, and this author has seen no record of any being
granted, despite the evident growth in the number of churches offering psychedelic controlled substances
as their communion sacrament. Even though the Guidance requires disclosure of information that could
be used for prosecutorial purposes, the author discovered no scholarly papers analyzing the Guidance to
determine whether its provisions are subject to valid objections as incursions on the Fifth Amendment
right to be free of compelled self-incrimination. In the absence of such an analysis, psychedelic churches
and their attorneys have either filed requests for exemption without adequate risk assessment, or have
refrained from filing altogether. Accordingly, this article has been prepared to provide an assessment of
those risks. The article begins with an introduction to the seminal Supreme Court case that resulted in
the DEA's issuance of the Guidance, provides a brief account of the historical origins of the Fifth
Amendment, proceeds to a discussion of government regulatory regimes that have required compelled
self-disclosure of incriminating facts, and summarizes the holdings of the Supreme Court decisions that
overturned these regulatory regimes as violative of the Fifth Amendment. With this background
established, the article identifies a variety of Fifth Amendment defects in the Guidance, and suggests how
these defects could be remedied by regulatory changes that would assure applicants for exemption that
disclosures necessary for the DEA to fairly evaluate requests for exemptions would not be used against
them to instigate investigations or prosecution.
Introduction to RFRA
It's been twelve years since the Supreme Court delivered its unanimous decision in Gonzales v.
O Centro Espírita Beneficente União do Vegetal,1("The UDV decision"), authored by Chief Justice
Roberts, holding that the Religious Freedom Restoration Act ("RFRA") "prohibits the Federal Government
from substantially burdening a person's exercise of religion, unless the Government 'demonstrates that
application of the burden to the person' represents the least restrictive means of advancing a compelling
1Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 US 418, (2006).

<C.Carreon> / FIFTHAMENDMENTNOTE / 1
interest."2The specific legal effect of the UDV Decision was both revolutionary and narrowly limited.
Revolutionary, because it considerably softened the draconian holding in Employment Division, Dept. Of
Human Resources of Oregon v. Smith,3 that eliminated all First-Amendment based rationales for
exemptions from general law that would allow use of psychedelic substances in religious services, by
directing the federal courts to strictly scrutinize the constitutionality of laws that substantially burden
religion practice. Narrowly limited, because it granted a religious exemption for psychedelic use to only
one Brazilian religious sect -- the UDV, and applied the exemption to only one controlled substance --
dimethyltryptamine ("DMT"). Further, it provided protection against only Federal law enforcement
interference.
The UDV decision was made possible only because the Roberts Court embraced the power
Congress granted the federal courts in RFRA, which Congress enacted to remedy the injustice that was
made law in the Smith case. As Justice Roberts stated, "In Smith we rejected the interpretation of the
Free Exercise Clause announced in earlier cases, [and] Congress responded by enacting the Religious
Freedom Restoration Act."4Applying the strict-scrutiny standard of review required by RFRA, the Court
found itself compelled to reject the DEA's two arguments: (1) that the CSA was a "closed system" that
admitted of no exemptions, and (2) that the nation's obligations under the 1971 UN Convention on
Psychotropic Substances further precluded granting any exemptions to the CSA's proscriptions.5
In the wake of the UDV Decision, these two arguments should have vanished forever, but hope
springs eternal with the Department of Justice, that recently attempted to breathe new life into the DEA’s
defunct "closed regulatory system" argument, and had to be reminded by the Ninth Circuit that, "[l]ike it or
not, when religious objectors raise RFRA as a defense to prosecution under the CSA, RFRA requires
courts to 'strike sensible balances' on a case-by-case basis, in light of 'the particular practice at issue."6
The Ninth Circuit’s rejection of the USDOJ’s efforts to stall the growth of precedent show that it has
imbibed the teachings of O Centro, and real progress has been made.
2O Centro, 546 US at 423.
3Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 US 872 (1990).As Justice Blackmun,
Brennan and Marshall, made clear in their dissenting opinion, the Smith case itself was a classic piece of judicial
legerdemain by the late Justice Scalia that "effectuate[d] a wholesale overturning of settled law concerning the
Religion Clauses of our Constitution." Smith, 494 US at 909. RFRA's enactment revitalized a number of important
Free Exercise cases, as the UDV opinion noted: "RFRA expressly adopted the compelling interest test "as set forth
in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).""
4O Centro, 546 US at 424 (ellipses).
5First, the Court found that the Government's interest in maintaining a "closed regulatory system" was not a
"compelling interest" within the meaning of RFRA. Second, the Court held that the Government's asserted interested
in complying with the 1971 United Nations Convention on Psychotropic Substances, did not rise to the level of a
compelling interest. "[I]invocation of such general interests, standing alone, is not enough." O Centro, id. at 438.
6United States v. Christie, 825 F.3d 1048, 1060-1061 (2016), quoting O Centro, 546 U.S. at 435-36, 126 S.Ct. 1211
(emphasis added).

<C.Carreon> / FIFTHAMENDMENTNOTE / 2
The DEA Promulgates Guidance for RFRA-Based Exemption Requests from the CSA
Despite the heel-dragging attitude of the DEA and the Department of Justice, the principles
enunciated in the UDV Decision are now firmly embodied in RFRA law, and the courts have directed the
DEA to review RFRA applications from religious practitioners seeking exemptions from the effect of the
CSA. Thus, in January 2009, the DEA issued a document entitled "Guidance Regarding Petitions for
Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration
Act" (the "Guidance").The Guidance lays out the requirements for filing a Petition for Religious Exemption
from the CSA (a "PRE"). Notably, the Guidance did not go through a public comment procedure, and was
adopted as an act of administrative fiat.
According to the Guidance, a PRE must disclose a church's "membership policies and
leadership," which controlled substances it "wishes to use," where the controlled substances will be used,
and the amounts, conditions, and locations of its "anticipated" manufacture, distribution ... and possession
of controlled substances.7 The procedure provides no set time period for the DEA to process a PRE, and
requires the church to refrain from any use of psychedelic sacraments while the PRE is pending.8
How This Article Came to Be, and What's In It
The Guidance tells exemption seekers to write a detailed confession of conduct the DEA
considers to be criminal, betting that the DEA will conclude that the behavior is worthy of an exemption
from legal sanction. Intuition might lead one to believe that this is not a very good bet, and most lawyers
with experience in criminal law would probably sense serious problems with the Guidance procedure;
however, a thorough analysis of the constitutional hazards inherent in the process has been lacking, and
in the absence of this analysis, churches and their lawyers have been operating in the dark, exposed to
unassessed risks. After discussing the matter with church leaders and attorneys, the author concluded
there was a need to probe those risks on behalf of churches attracted by the potential of obtaining legal
protection from the threat of prosecution, but wary of the risks of drawing attention to themselves by filing
a PRE.
Delving into the topic, the author discovered a similarity between the Guidance and several other
regulatory schemes that the US Government has adopted over the years when faced with the job of
regulating citizen behavior deemed immoral, dangerous, or ideologically undesirable, including gambling,
narcotics trafficking, and membership in the Communist party. As we will see, each of these groups has
been the subject of Government efforts to compel or induce citizens to relinquish their Fifth Amendment
Rights to be free of compelled self-incrimination by requiring disclosure of criminal conduct.
7 The phrases "wishes to use," and "anticipated" are set off in quotes because, as we will discuss later, by putting the
use of controlled substances in the future tense, the DEA intends these phrases to have specific legal meaning.
8Only two applications for exemption have been granted -- a fact of which the author is advised anecdotally, without
review of any documentation to support the fact. The author has been advised that these exemptions were granted
by the DEA to two branches of the Santo Daime Church, after its Oregon branch secured freedom from the risk of
prosecution in CHLQ v. Mukasey, 615 F.Supp.2d 1210 (2006). For those with PACER access, the records of CHLQ
v. Mukasey are a valuable trove of knowledge regarding the process of litigating a RFRA civil lawsuit to judgment.

<C.Carreon> / FIFTHAMENDMENTNOTE / 3
The article begins with a review of the history and purpose of the Fifth Amendment privilege
against self-incrimination. It then briefly reviews the histories of the Harrison Narcotics Act of 1914, the
18th Amendment and the Volstead Act (that jointly prohibited sales of alcohol), and the Marihuana Tax
Act of 1937, all of which utilized registration regimes to require bootleggers, dealers in narcotics, and
cannabis buyers and sellers to incriminate themselves. The article then discusses the seminal litigation
that resulted in Dr. Timothy Leary's successful bid to overturn the Marihuana Tax Act as an
unconstitutional infringement of the Fifth Amendment, explaining how this victory was made possible by
two important Supreme Court decisions -- the first holding that the American Communist Party did not
have to disclose its membership to a Government board of inquiry, and the second holding that
bookmakers did not have to register with the IRS, notwithstanding a Congressional enactment that
required them to do so.
The article then examines the Guidance in light of these precedents, and concludes that (1) the
Guidance infringes the Fifth Amendment right to be free of self-incrimination by requiring disclosure of
facts that could lead to investigation and prosecution for violation of the Controlled Substance Act, and
(2) these constitutional defects could be remedied through rule changes by the DEA.
A Short History of the Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment is the primary source of constitutional protection against abuses9 of the
criminal justice system by the federal government:
"No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in the militia when in actual
service in time of war or public danger; nor shall any personbe subject
for the same offense to be put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty or property without due process of law; nor
shall private property be taken for public use, without just compensation."
Why do we have this privilege to refuse to testify against ourselves when we stand in criminal
jeopardy? The privilege originated in England, where the Star Chamber pursued political prosecutions,
and ecclesiastical courts ferreted out blasphemers, by administering the oath ex officio, that conducted
ideological interrogations under oath, under threat of imprisonment, banishment, and torture.10 General
revulsion with this practice crested after John Lillburne, who had been flogged for refusing to take the
oath in the Star Chamber was granted compensation for his injuries. In 1641, the Star Chamber was
abolished and administration of the oath ex officio was prohibited.
9The Fifth Amendment also requires that felonies be charged by a grand jury, provides protection against "double
jeopardy," and establishes the right of due process in federal criminal proceedings.
10The word "subpoena" derives from the Latin subpoena, a combination of sub (under) and poena (penalty). Merriam
Webster https://www.merriam-webster.com/dictionary/subpoena#note-1

<C.Carreon> / FIFTHAMENDMENTNOTE / 4
In Brown v. Walker,11 the Supreme Court stated:
"So deeply did the iniquities of the ancient system impress themselves
upon the minds of the American colonists that the states, with one
accord, made a denial of the right to question an accused person a part
of their fundamental law, so that a maxim, which in England was a mere
rule of evidence, became clothed in this country with the impregnability
of a constitutional enactment."
This nobly-phrased exposition is stirring and evocative; nevertheless, it elides an important
historical truth -- that common sense and self-preservation were the more likely reasons why the
Founding Fathers elevated the privilege against self-incrimination to the level of an impregnable
constitutional principle. The American Revolution was a hazardous undertaking by men used to risk, who
had reason to put in place a system of government that could not easily be turned into a vehicle for
tyranny. As Ben Franklin said, and each one of the Founding Fathers well knew, they all had to "hang
together, or hang separately." Having been born in the crucible of defiance, it's no surprise that the law of
the land came to embody the Founders' awareness of the importance of being able to have a private life,
within which plans deemed seditious or unlawful by the governing authorities might yet be brought to
fruition.
The primary champion of the Bill of Rights was John Hancock, "a well known smuggler of
molasses, Dutch tea, tobacco, rum and wine among other products."12 In 1768, Hancock's smuggling
vessel, the Liberty, was seized by the British. He was convicted of smuggling, fined £9,000, and forced to
forfeit the ship. Hancock, who signed the Declaration of Independence as the President of the
Constitutional Congress, proposed the Bill of Rights and pressed for its adoption until it was passed by
Congress on September 25, 1789.
Thus, protection of secrets from the prying eyes of government became a mainstay of American
jurisprudence. The Fourth Amendment of the Bill of Rights protects the "right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and seizures," which in
practice allows people to possess written plans for revolution, or substances deemed contraband. The
Fifth Amendment guarantees that evidence hidden in the mind of an accused person cannot be wrenched
from them by torture, threats, or legal compulsion.13 Finally, the First Amendment protects not only the
11Brown v. Walker, 161 US 591, 596-597 (1896).
12http://www.john-hancock-heritage.com/the-liberty-affair/. Based on his experience in losing his property and having
his life and freedom at risk, Hancock’s interests were perhaps most accurately described by the Supreme Court in
Ullman v. United States, 350 US 422, 428 (1956): “Having had much experience with a tendency in human nature to
abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies.”
13"Fourth and Fifth Amendment law are the traditional guardians of a particular kind of individual privacy--the ability to
keep secrets from the government." William J. Stuntz, The Substantive Origins of Criminal Procedure, Yale Law
Journal, Vol.105, page 394 (1995).

<C.Carreon> / FIFTHAMENDMENTNOTE / 5
right to speak, but also the right to refuse to repeat government slogans like the pledge of allegiance, or
to engage in compelled religious speech like school prayer.14
A Brief Review of Federal Drug Registration Schemes Enacted Under the Guise of Taxation
Federal regulation of psychoactive drugs began with congressional enactment of the Harrison
Narcotics Act of 1914. Before that date, cocaine and morphine were common treatments for pain and
fatigue, available over the counter in patent medicines, and by prescription. These unregulated
substances were widely abused, and federal lawmakers sought to protect the public. However, Congress
was unsure of its authority to outlaw drugs by federal law, so it did not make narcotics illegal outright.
Rather, the Harrison Act required importers, manufacturers and distributors of opium to register with the
U.S. Department of the Treasury, keep records of each transaction, and pay a tax on the drugs.15
The DEA's official history concedes that the Harrison Act was disguised as a tax law over the
"anguished objections" of Daniel Roper, Commissioner of the Bureau of Internal Revenue (predecessor to
the IRS), "who saw no reason why a tax bureau should ... control the consumption of ... narcotics," in
order to "pursue ... a moral end in a way that might otherwise be unconstitutional."16 The constitutional
dodge, that made narcotics possession criminal without proof of criminal intent, merely upon the basis of
the failure to have the right paperwork, received approval from the Supreme Court in United States v.
Doremus,17 that pronounced, "If the legislation enacted has some reasonable relation to the exercise of
the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed
motives which induced it."18
The nation's early fervor to beat the drug habit was implemented through ham-handed
enforcement of the Harrison Act -- a tradition that continues to the present day, as mass incarceration has
fed the maw of misery while multiplying the number of addicts and overdoses astronomically. The IRS
narcotics enforcers closed addiction treatment centers and jailed physicians for prescribing "maintenance
doses" to addicts.19 As the DEA records in its official history, under "the Harrison Act, the Narcotic
Division of the Internal Revenue Service closed down state and city narcotics clinics and sent drug
14West Virginia Bd. of Ed. v. Barnette, 319 US 624 (1943); Wallace v. Jaffree, 472 US 38 (1985).
15Drug Enforcement in the United States: History, Policy and Trends, Congressional Research Service, Lisa N. Sacco
(October 2, 2014), Pg. 3.
16The Early Years, page 14. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-
29%20%281%29.pdf>
17United States v. Doremus, 249 US 86 (1919).
18Id. at 93.
19 “Courts and law enforcement, embedded in the culture of prohibition, construed the language to prohibit
maintenance prescriptions for those suffering from addiction.” K.J. Dineen and J.M. Dubois, Between a Rock and a
Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction? Am J Law
Med. 2016 ; 42(1): 7–52. at note 158, citing King, Rufus G. The Narcotics Bureau and the Harrison Act: Jailing the
Healers and the Sick. 1953; 736:736–38.62 Yale L. J.

<C.Carreon> / FIFTHAMENDMENTNOTE / 6
violators to federal penitentiaries."20 This practice was not legally curtailed until the Supreme Court ruled
that, since Congress has no authority to regulate the practice of medicine or to achieve moral ends, the
Harrison Act could not criminalize a physician’s delivery of “moderate amounts of drugs for self-
administration in order to relieve conditions incident to addiction.”21
The drive to sober up the nation picked up speed in 1919, when Nebraska became the thirty-sixth
state to ratify the Eighteenth Amendment, prohibiting "the manufacture, sale or transportation of
intoxicating liquors within...the United States." Later that same year, Congress enacted the Volstead Act,
that prohibited the manufacture and sale of alcoholic beverages.
The bootlegging industry thrived, however, and enforcement of Prohibition, like the Harrison Act,
fell to the Bureau of Internal Revenue, resulting in the bloody gangland struggles made famous in
numerous Hollywood films that glamorized both gangsters and the "G Men" who battled them.
Moonshining in the hill country of the American south gave way to enormous illegal Canadian distilleries
that produced vast supplies of whiskey that made their way by rail, ship and truck to the U.S.
Midwest.22But Prohibition was a short-lived shot in the arm for gangland profiteers -- Congress repealed
the 18th Amendment in December 1933. As the clandestine booze business dried up, many criminals
who had mastered the arts of producing, smuggling, and dealing contraband turned their hands to the
narcotics traffic, which remained illegal after Prohibition's end.
Congress eventually took the burden of narcotics enforcement off the shoulders of the taxing
authorities, tasking the Department of Justice with enforcement of the Harrison Act.23 Thus, by the time
Prohibition was repealed in 1933, the newly-established Federal Bureau of Narcotics was already on the
hunt for new substances to prohibit, and organized crime was tooled up to expand their business into new
fields of unlawful enterprise. The head of the recently-created Federal Bureau of Narcotics, Harry J.
Anslinger, looking for new fields of repressive endeavor, turned his eye towards Cannabis Sativa.
Anslinger built his propaganda campaign with racist appeals that claimed the "devil weed" was a form of
chemical warfare against white virtue, an evidence-free contention that has still not been overcome.
As had been the case with morphine, however, the government did not make the weed illegal
outright; rather, it enacted the Marihuana Tax Act of 1937 (the "MTA"). The DEA explains: "The fear
persisted that any federal drug law might be ruled unconstitutional. The Marihuana Tax Act of 1937 was
therefore modeled on the Harrison Narcotics Act, as well as on a more recent act restricting gangsters
20Id. at page 3. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-29%20%281%29.pdf>
See also, United States v. Jin Fuey Moy, 241 US 394 (1916).
21 United States v. Linder, 268 US 5, 22 (1925).
22Prohibition in US Led to Exciting Times in Canada, Jan., 2, 2015, Vancouver Sun
http://www.vancouversun.com/Prohibition+exciting+times+Canada/10697267/story.html
Rum-running in Windsor, Ontario<https://en.wikipedia.org/wiki/Rum-running_in_Windsor,_Ontario>
Moose Jaw Tunnels Reveal Dark Tales of Canada's Past, March 23, 2018, The Globe and Mail
<https://www.theglobeandmail.com/life/moose-jaw-tunnels-reveal-dark-tales-of-canadas-past/article4158935/>
23Drug Enforcement in the United States, Sacco, Pg. 3 at note 19.

<C.Carreon> / FIFTHAMENDMENTNOTE / 7
from using machine-guns by requiring them to pay a transfer tax."24 State legislatures, however, all
enacted criminal laws prohibiting possession shortly after passage of the MTA, so the required federal
registration became a confession of state law criminal conduct. A successful challenge to the MTA had to
wait 35 years, until Dr. Timothy Leary was convicted under the act, and appealed his conviction to the
Supreme Court. But first, two important cases involving bookmakers and communists had to be decided.
Marchetti: Bookmakers Successfully Attack the Wagering Act
In 1967, Prof. Robert B. McKay published an influential article on the Fifth Amendment privilege
against self-incrimination in the Supreme Court Review. Professor McKay's article, published just before
the Supreme Court's seminal 1968 decision in United States v. Marchetti, 25articulated key policies that
underpin the privilege against self-incrimination:26
"The privilege historically goes to the roots of democratic and religious
principle. It prevents the debasement of the citizen which would
result from compelling him to "accuse" himself before the power of
the state. The roots of the privilege are deeper than the rack and the
screw used to extort confessions. They go to the nature of a free man
and his relationship to the state."27
The Marchetti defendant was a bookie who had been convicted of failing to pay the "annual
occupational tax" that all persons engaged in the bookmaking business were required to pay under the
Wagering Act, and for willfully failing to register as a bookmaker "before engaging in the business of
accepting wagers."28 In Marchetti and two related cases, the Supreme Court dismissed prosecutions for
violations of the Wagering Act on Fifth Amendment grounds. Although the asserted purpose of the
Wagering Act was to raise revenue, the law provided that registration records could be passed from
taxing authorities to criminal prosecutors, which in fact occurred, leading to some convictions for illegal
24The Early Years, page 19. <https://www.dea.gov/sites/default/files/2018-07/Early%20Years%20p%2012-
29%20%281%29.pdf>
25Marchetti v. United States, 390 US 39 (1968).
26"'[T]he two justifications for the fifth amendment privilege are "(1) preservation of official morality, and (2)
preservation of individual privacy * * *' " United States v. Campos-Serrano, 430 F. 2d 173, 177, (7th Cir. 1970),
quoting McKay, Self-Incrimination and the New Privacy, The Supreme Court Review, Vol. 1967 (1967).
27McKay, Self-Incrimination and the New Privacy, at 210 (emphasis added), citing United States v. Wade, 388 U.S.
218, 261 (1967). The Supreme Court Review, Vol. 1967 (1967), pp. 193-232
28Bookmakers had to fills out IRS forms stating their residence and business addresses,and purchase a stamp that
they were "obliged to post ... 'conspicuously' in their principal places of business." They were also required to
"preserve daily records indicating the gross amount of wagers" and "permit inspection of their books of account." The
IRS was required to provide a list of all registered bookies "upon request to any state or local prosecuting officer."
Finally, the law provided that payment of the taxes did not provide any exemption from criminal sanction "provided by
a law of the United States or of any State" for engaging in bookmaking.26 USC Sec. 4412.

<C.Carreon> / FIFTHAMENDMENTNOTE / 8
gambling where the sole evidence against the defendant was the stamp that bookmakers were compelled
to buy and display in their bookmaking offices.29
The Court first distinguished United States v. Sullivan,30 where the Court overruled a bootlegger's
Fifth Amendment objection to filing a tax return on the grounds that it would force him to incriminate
himself by disclosing ill-gotten gains. The Court held that, since all citizens had to answer the questions
on the tax form, the system couldn't be said to single him out for criminal scrutiny. That was an easy
decision, requiring no overturning of settled law. But harder work was ahead. Urging the Court to pursue
a principled approach to constitutional rights to its logical conclusion, Prof. McKay cogently explained why
two Supreme Court decisions, Lewis v. United States,31 and United States v. Kahriger,32 had to be
overturned based on the reasoning set forth in the Court's 1965 decision in Albertson v. Subversive
Activities Control Board.33
The Albertson opinion held that the Communist Party of the United States could not be required
to disclose a list of its members over the organization's Fifth Amendment objection, asserted on behalf of
its members.34 The Court had distinguished Sullivan on the grounds that the bootlegger who didn't want
to answer questions on the income tax form, was merely being asked "neutral" questions that were
"directed to the public at large;" but the Subversive Activities Control Board ("SACB") had focused on the
Communist Party as "a highly selective group inherently suspect of criminal activities ... where
responses to any of the form's questions ... might involve ... admission of a crucial element of a
crime."35 As a result, the SACB's demand to learn "the organization of which the registrant is a member,
his aliases, place and date of birth, a list of offices held in the organization and duties thereof—might be
used as evidence in or at least supply investigatory leads to a criminal prosecution."36 Thus, the
Court sustained the Communist Party's refusal to disclose its membership, putting an end to the SACB's
entire reason for existence, and saving all of the Party's members from criminal prosecution.37
Prof. McKay advised the Court to apply what was good for the Communists to the bookmakers,
noting that the doctrine espoused in Lewis and Kahriger was inconsistent with the principles set forth in
the Albertson decision: "Kahriger and Lewis appear to permit the requirement of incrimination by payment
29"Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been
admitted at trial in state and federal prosecutions for gambling offenses." Marchetti, 390 US at 47, note 7, citing
United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964) and seven other cases where convictions for illegal gambling
were based on evidence of registration.
30United States v. Sullivan, 274 US 259 (1927).
31Lewis v. United States, 348 US 419 (1955).
32United States v. Kahriger, 345 US 22 (1953).
33Albertson v. Subversive Activities Control Board, 382 US 70 (1965) (emphasis added).
34Albertson v. SACB, 382 US at 78. A corporation or other “collective entity” may not assert the Fifth Amendment
privilege against self-incrimination. Braswell v. United States, 487 US 99, 105 (1988).
35Id., 382 US at 79.
36Id., 382 US at 78.
37Id., 382 US at 80.

<C.Carreon> / FIFTHAMENDMENTNOTE / 9
of taxes and registration for the conduct of criminal activities, a result probably inconsistent with
Albertson, which forbade registration that could be used to incriminate."38The Court resolved these
inconsistencies in Marchetti by following Prof. McKay’s suggestion and overruling Kahriger, in language
that made it clear a new day had dawned in Fifth Amendment jurisprudence:
"Prospective registrants [under the Wagering Act] can reasonably expect
that registration and payment of the occupational tax will
significantly enhance the likelihood of their prosecution for future
acts, and that it will readily provide evidence which will facilitate
their convictions. Indeed, they can reasonably fear that registration,
and acquisition of a wagering tax stamp, may serve as decisive evidence
that they have in fact subsequently violated state gambling
prohibitions."39
Dr. Leary Overturns the Marihuana Tax Act
A few days after the Supreme Court delivered the Albertson opinion, on December 22, 1965, Dr.
Timothy Leary was arrested for possession of a small amount of cannabis at the Mexican border.
Prosecuted in Laredo, Texas, he was convicted of violation of the Marihuana Tax Act ("MTA") and two
other controlled substance charges, and sentenced to thirty years in prison.40 Three years later, on
December 11, 1968, Dr. Leary's lawyers stood in front of the Supreme Court to argue that, under
Marchetti, decided earlier that same year on January 29, 1968, the MTA could not pass Fifth Amendment
scrutiny. The MTA required dealers in cannabis to register with the IRS and pay a yearly fee, and
required anyone wishing to acquire cannabis to buy it using a government form that stated their name
and address, and the quantity of cannabis they had bought.41 Seeking to overturn the MTA conviction,
Leary argued that punishing him for not complying with the MTA's self-disclosure requirements would
legitimate a form of compelled self-incrimination.
Justice Harlan, who had written the Marchetti opinion, agreed with Dr. Leary's position:
"[Dr. Leary] asserts the right not to be criminally liable for one's previous
failure to obey a statute which required an incriminatory act. *** We
38McKay, Self-Incrimination and the New Privacy, pp. 205.
39United States v. Marchetti, 390 US at 55 (emphasis added).
40Leary Gets 30 Years on Marijuana Charge, The Harvard Crimson, March 12, 1966.
41"The [MTA] imposes a tax on transfers of marihuana [and] an occupational tax upon those who deal in the drug,
[requiring] all persons who "deal in" marihuana [to pay] an annual occupational tax. *** The first of the transfer tax
provisions, 26 U. S. C. § 4741, imposes a tax "upon all transfers of marihuana which are required by section 4742 to
be carried out in pursuance of written order forms." Section 4741 further provides that on transfers to persons
registered under § 4753 the tax is $1 per ounce, while on transfers to persons not so registered the tax is $100 per
ounce. The tax is required to be paid by the transferee "at the time of securing each order form." **** Another
statutory provision, 26 U. S. C. § 4773, assures that the information contained in the order form will be available to
law enforcement officials. *** Finally, 26 U. S. C. § 4744 (a) makes it unlawful for a transferee required to pay the §
4741 (a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the
transportation or concealment of, any marihuana so acquired." Leary v. United States, 395 US 6 (1969).

<C.Carreon> / FIFTHAMENDMENTNOTE / 10
conclude that petitioner's invocation of the privilege was proper and that
it should have provided a full defense to the third count of the indictment.
Accordingly, we reverse ...."42
The analysis in Leary was straightforward. Like the Wagering Act, the Court held that the MTA
compelled Dr. Leary to "expose himself to a real and appreciable risk of self-incrimination [requiring him]
to identify himself as a transferee of marijuana ... who had not registered [and further directed] that this
information be conveyed by the Internal Revenue Service to state and local law enforcement...."43
Fundamental to Dr. Leary's success before the Supreme Court was his "proper invocation" of the
privilege -- an invocation that nullified what would otherwise have been a 30 year stretch in prison.
To be clear, the result in Leary did not mean that the federal or state government cannot tax
illegal activity -- counterintuitive though it may seem, taxing illegal conduct was not ruled unconstitutional;
thus, several states have enacted laws that impose taxes on criminal activity and the proceeds of crime.44
What Marchetti and Leary teach us is simply that, whenever the government directs the members of a
highly selective group inherently suspect of criminal activities to disclose their identities and the nature of
the conduct that brings them into suspicion, any member of that group, or the group itself on behalf of its
members, can refuse to make those disclosures by invoking the Fifth Amendment, and thus avoid
compelled self-incrimination.
Scrutinizing the Guidance for Fifth Amendment Hazards
Now that we have reviewed how Albertson, Marchetti and Leary empowered the targets of
registration regimes to assert valid objections under the Fifth Amendment, let's analyze the Guidance to
determine whether it is objectionable. Remember, as we go through these objections, that to be valid,
they must be framed based on the right of a psychedelic church to assert the Fifth Amendment on behalf
of its members, as the Communist Party did on behalf of its members, because as a “collective entity,” a
church may not assert the privilege against self-incrimination. (See Note 34.) For the sake of clarity, we
phrase our inquiry in question and answer form.
The central directive of the Guidance is set forth in paragraph 2, entitled Contents of Petition, that
requires the following disclosures:45
"(1) the nature of the religion (e.g., its history, belief system, structure,
practice, membership policies, rituals, holidays, organization,
leadership, etc.); (2) each specific religious practice that involves
the manufacture, distribution, dispensing, importation, exportation,
42Leary v. United States, 395 US at 29.
43Id., 395 US at 18.
44Note: Taxation of Illegal Narcotics: A Violation of Fifth Amendment Rights or an Innovative Tool in the War Against
Drugs? 11 St. John's J.L.Comm.
45The provisions of ¶2 are mandatory, as ¶4 states, "Petitions that do not conform to this guidance will not generally
be accepted for filing."

<C.Carreon> / FIFTHAMENDMENTNOTE / 11
use or possession of a controlled substance; (3) the specific
controlled substance that the party wishes to use; and (4) the
amounts, conditions, and locations of its anticipated manufacture,
distribution, dispensing, importation, exportation, use or possession."
(Emphasis added.)
Paragraph 3 requires a PRE to be signed by "the petitioner" under penalty of perjury. Paragraph
4 states a PRE that does not conform to the Guidance will not be accepted for filing. Paragraph 5
provides that the DEA may demand "additional documents or written statements of facts ... as the DEA
deems necessary," to which the applicant must respond within 60 days, or "the petition will be considered
to be withdrawn." Also of relevance is paragraph 7, that forbids applicants engaging in "any activity
prohibited under the Controlled Substances Act or its regulations unless the petition has been granted
and the petitioner has applied for and received a DEA Certificate of Registration."46 Finally, paragraph 9
provides that nothing in the Guidance "shall be construed as authorizing or permitting any party to take
any action" that is at variance with State or Federal laws, and that compliance with the Guidance does not
imply "compliance with other Federal or State laws unless expressly provided in such other laws."
First, can the Fifth Amendment can be invoked in the context of an administrative proceeding,
such as the exemption procedure described by the Guidance?
Answer
: Yes. To quote from Professor McKay's article: "[N]o person may be compelled to
answer incriminating questions, whether before a court, an administrative agency, or a legislative
investigating committee."47
Second, is invocation of the Fifth Amendment necessary to secure protection from self-
incrimination?
Answer
: Yes. The Fifth Amendment is not "self-executing," and must be invoked; otherwise, its
protections will be waived.48
Third, let us assume that the DEA contends that, since no church or individual is "required" to
submit a PRE to the DEA, the disclosures required by the Guidance are "voluntary," and therefore
unobjectionable. Is this argument correct?
46Paragraph 7 does not appear to invade the Fifth Amendment so much as it does the Free Exercise clause of the
First Amendment, by requiring the cessation of essential religious practices for an undefined period. The
consequences of noncompliance are obvious -- the PRE can be rejected. Alternatively if the PRE falsely swears that
the applicant has ceased using a controlled substance sacrament, the signer could be indicted for perjury under
paragraph 3. Finally, if the applicant does in fact cease using the controlled substance sacrament, or substitutes a
non-controlled substance (for example, by using a "vine-only-Ayahuasca" that contains no dimethyltryptamine) the
applicant will thereby undermine its claim that use of Ayahuasca made with dimethyltryptamine is "essential" to its
religious practice. The Guidance thus contains more pitfalls than the risks of self-incrimination.
47McKay, Self-Incrimination and the New Privacy, at 195, citing Watkins v. United States, 354 U.S. 178, 195-96
(1957); Bart v. United States, 349 U.S. 219 (1955), and other precedents. Kastigar v. United States, 406 U.S. 441,
444-445 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).
48Minnesota v. Murphy, 465 US 420, 425 (1984); accord, People v. Garcia, 224 Cal.App.4th 1283, 1290 (2014)("A
privilege that is not 'self-executing' applies only where it has been invoked.")

<C.Carreon> / FIFTHAMENDMENTNOTE / 12
Answer
: No. Fifth Amendment protections are not abrogated by registration schemes that
purport to be voluntary, when the only "choice" to be made is to refrain from engaging in the criminally
proscribed activity that the registration scheme seeks to uncover by compelled disclosures. In Marchetti,
the high Court overruled the holding in Lewis that "even if the required disclosures might prove
incriminating, the gambler need not register or pay the occupational tax if only he elects to cease, or
never to begin, gambling." The Court explained its position in the following language:
"[If] an inference of antecedent choice were alone enough to abrogate
the privilege's protection, it would ... ultimately license widespread
erosion of the privilege through 'ingeniously drawn legislation.'" ... We
cannot agree that the constitutional privilege is meaningfully waived
merely because those 'inherently suspect of criminal activities' have been
commanded either to cease wagering or to provide information
incriminating to themselves, and have ultimately elected to do neither."49
Accordingly, the Supreme Court has refuted the argument that the Fifth Amendment provides no
protection because members of psychedelic churches could simply "elect to cease, or never begin"
consuming controlled substances as their communion sacrament. Further, the fallacious nature of the
"choice" argument is more evident when scrutinized in the context of the Guidance, because while no one
has a constitutional "right to gamble,"50 they do have a constitutional right to free exercise of religion
under the First Amendment, and that includes the right to consume a psychedelic sacrament.51 The
Supreme Court has repeatedly held that one should not be forced to bargain away one right in order to
exercise the Fifth Amendment right to refuse to make compelled disclosure of private matters. In the
most often-cited example, the Court held that the Fifth Amendment was violated when the New York Bar
Association disbarred a lawyer for invoking the Fifth Amendment when served with a subpoena from the
Bar demanding production of records that would disclose how he handled funds in contingent-fee
cases.52 The Court reversed the order of disbarment, holding that the Fifth Amendment forbids "the
imposition of any sanction which makes the assertion of the Fifth Amendment privilege 'costly,'" and that
"threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are
powerful forms of compulsion to make a lawyer relinquish the privilege."53 In a more recent case, the
Court held a New York law unconstitutional that required the cancellation of municipal contracts and
49Marchetti v. United States, 390 US at 52; accord, Schneckloth v. Bustamante, 412 US 218, 237, n. 18 (1973) ("We
reasoned that there could be no choice when the gambler was faced with the alternative of giving up gambling or
providing incriminatory information.").
50"There is, the Court said, 'no constitutional right to gamble.'" Marchetti, 390 US at 51, quoting Lewis v. United
States, 348 US at 423. Marchetti v. United States, 390 US at 52; accord, Schneckloth v. Bustamante, 412 US 218,
237, n. 18 (1973)("We reasoned that there could be no choice when the gambler was faced with the alternative of
giving up gambling or providing incriminatory information.").
51O Centro, 546 US at 423.
52Spevack v. Klein, 385 US 511, 517 (1967).
53Id., 385 US at 516.

<C.Carreon> / FIFTHAMENDMENTNOTE / 13
disqualification from future municipal contracting for five years, whenever the contractors, in this case two
architects, refused to provide testimony in a state inquiry.54
Like lawyers and architects, church members should not be required to forego claiming their
constitutional right to partake in psychedelic communion, free of the risk of prosecution, by conditioning
participation in the exemption process on exposing church leaders and other members to the risk of
prosecution.
Fourth, let us consider another argument the government has made in defense of past
registration regimes – that the Guidance doesn't ask for disclosure of past acts, for which someone could
be prosecuted, but only "future acts," hypothetical in nature. Combined with the requirement of paragraph
7 of the Guidance, that requires abstention from the use of controlled substances until the PRE is
approved, the following argument could be made: "Since the DEA is not asking for any information about
controlled substances the applicant’s members have previously possessed, manufactured, or distributed,
and since the applicant’s members are not possessing, manufacturing or distributing any controlled
substances while the PRE is pending, the required disclosures will not lead to criminal prosecution." Is
this argument correct?
Answer
: No. Marchetti held that compelled disclosure of a future intent to engage in gambling
"increases the likelihood that any past or present gambling offenses will be discovered and successfully
prosecuted" and "obliges even a prospective gambler to accuse himself of conspiracy" to violate state
and federal gambling laws.55 Overruling contrary precedents, the Court held that "the central standard for
the privilege's application [is] whether the claimant is confronted by substantial ... hazards of
incrimination," a principle that "does not permit the rigid chronological distinction adopted
in Kahriger and Lewis."56 By requiring disclosures of the identities of church leaders, the controlled
substances that the church "wishes" to manufacture, possess and distribute, and the times and places
where these actions will be taken, the Guidance exposes the identified members of churches that submit
a PRE to the risk that past offenses will be investigated, discovered, and prosecuted, and compels
confession of an intent to engage in a conspiracy to violate the CSA. Accordingly, the prospective
phrasing of the disclosures required by the Guidance does not insulate it from Fifth Amendment objection.
Fifth, does the requirement that applicant churches disclose the "organization" and "leadership"
of the church violate the Fifth Amendment?
Answer
: Yes. The disclosure of the identity of any person in conjunction with the disclosure of
the intent to engage in conduct that would be criminal, such as possession, manufacture or distribution of
a controlled substance, is precisely the type of disclosure that subjects one to "substantial hazards of
incrimination." Although leaders and members of the Daime disclosed their identities to the Oregon
District Court in their litigation with the DEA when they submitted declarations in support of their claims,
54Lefkowitz v. Turley, 414 US 70 (1973).
55 Marchetti v. United States, 390 US at 53.
56 Marchetti v. United States, 390 US at 54.

<C.Carreon> / FIFTHAMENDMENTNOTE / 14
the risks of disclosure were mitigated by the pendency of the litigation itself. In the UDV case, the church
sought and obtained a Preliminary Injunction that precluded the DEA from engaging in prosecutorial
activities during the pendency of the case. In future litigation, thought should be given to how to provide
the courts with evidence necessary to adjudicate the claim of exemption without waiving the Fifth
Amendment rights of leaders and members. Attorneys for prospective psychedelic churches should
remember that, in Albertson, the entire battle was over whether the Communist Party could be required to
disclose its membership, and as we noted in that discussion, the Party successfully asserted the privilege
on behalf of its members.57
Sixth, does the requirement to disclose the "membership policies" of the church violate the Fifth
Amendment?
Answer
: No. Membership (the people in an organization) and membership policies (the policies
that members have to follow) are not the same, and the latter does not carry with it the same risk of
incrimination that actual names of people do. The membership policies of the UDV and the Santo Daime
were a focus of inquiry in the court proceedings that resulted in their receipt of a RFRA exemption to use
Ayahuasca as a sacrament. For example, in the case of the Daime, the Oregon District Court Judge
considered whether children had been given psychedelic doses of Ayahuasca, whether the church
members consumed controlled substances other than Ayahuasca, whether prospective church members
were screened for mental and physical illness, and whether the ceremonies had deleterious effects on the
health of members.58 These types of disclosures do not place anyone at risk of prosecution, and
therefore do not implicate the Fifth Amendment.
Seventh, does the requirement to disclose the controlled substance a church intends to use as a
sacrament violate the Fifth Amendment?
Answer
: No. Standing alone, the requirement to disclose which controlled substance a church
intends to use as a sacrament would likely not violate the Fifth Amendment, and would be seen as a
necessary disclosure to allow the regulatory system to function. In the opinion of this author, disclosure
of the sacramental controlled substance, without disclosing the identity of the persons who will possess,
manufacture or distribute it, or the locations where the controlled substance is kept, would not appear to
expose anyone to a "substantial hazard of incrimination."
Eighth, does the requirement to disclose where the sacramental controlled substance will be
manufactured, possessed, and distributed violate the Fifth Amendment?
Answer
: Yes. In Marchetti, disclosure of the addresses where gambling would be conducted
was required by the Wagering Act, as was the duty to post the stamp issued by the IRS on the premises,
57Lawyers may also want to consider the possibility of pursuing class action litigation on behalf of churches acting on
behalf of their membership to obtain relief from the Fifth Amendment incursions presented by the Guidance, and
perhaps for the purpose of seeking RFRA exemptions for a class of members who meet the requisites of individual
devotion to a faith that requires the use of a sacramental psychedelic, but are not members of any organized church.
While a discussion of class action procedure is clearly beyond the scope of this article, future research into the topic
should be conducted.
58 CHLQ v. Mukasey, 615 F.Supp.2d at 1218.

<C.Carreon> / FIFTHAMENDMENTNOTE / 15
and these were two elements that the Court held exposed the registrants to the risk of prosecution.
Likewise, in Leary, the MTA requirement to disclose the addresses of sellers and buyers of cannabis
were found to give rise to well-founded fears of prosecution. In each case, of course, the statutes
specifically provided that the registrant's identity and address would be provided to prosecutors and law
enforcement upon request and payment of a fee for copying the records. In the Guidance, there is no
such provision; however, neither does the Guidance prohibit the transfer of a PRE, or the material
contained therein, to the enforcement arm of the DEA. Further, paragraph 9 specifically warns applicants
that submission of a PRE provides no protections from any provisions of state or federal law. Because the
DEA is charged with enforcement of the CSA, in the absence of affirmative protections to prevent the
transfer of the information to the DEA's own enforcement division or state and municipal law enforcement,
the risk of prosecution is present, and cannot be removed by an unwarranted assumption that the DEA
would not open an investigation while or after evaluating the PRE, or transfer the information to
prosecutors and police.
Ninth, is paragraph 4, providing that any PRE that fails to meet the requirements of the Guidance
will be rejected, objectionable under the Fifth Amendment?
Answer
: The answer is unclear, and highlights the risks of proceeding with a PRE submission
without first seeking to remedy the objectionable features of the Guidance. As previously discussed,
church members should not be penalized for asserting their rights to protect their Fifth Amendment rights
by losing their First Amendment right to free exercise of religion.59 However, some cases hold that an
applicant for a license or privilege from the government, such as an officer's commission from the armed
forces, or a radio license from the FCC, may be required to answer questions that are relevant to the
issuance of the commission or license, or suffer the rejection of their claim, notwithstanding their assertion
of a Fifth Amendment objection.60 In the two cases cited in the footnote, the question was whether the
prospective officer or radio station licensee had ever been a member of the Communist Party, a matter
that went to the fitness of these individuals to receive the commission or license, and did not implicate the
loss of any constitutional right such as the right to free exercise of religion. Thus, if a PRE is submitted
without any invocation of the Fifth Amendment or other complaint regarding the unconstitutionality of the
Guidance requirements, these precedents would likely result in a reviewing court affirming the DEA's
rejection of the PRE for noncompliance with the Guidance.
Tenth, what are the Fifth Amendment implications of a DEA demand for additional information
that the agency “deems necessary to determine whether the petition will be granted,” under paragraph 5?
Answer: Although this question cannot be answered “yes” or “no,” we can identify several
important Fifth Amendment concerns.
59 “[A] person may not be compelled to choose between the exercise of a First Amendment right and participation in
an otherwise available public program.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 US 707,
716 (1981).
60Orloff v. Willoughby, 345 US 83 (1953); Blumenthal v. FCC, 318 F.2d 276 (D.C. Cir. 1963).

<C.Carreon> / FIFTHAMENDMENTNOTE / 16
First, would the Fifth Amendment objection be waived, based on the mere filing of a PRE?61
Absent a Fifth Amendment objection presented in the original PRE, waiver might be inferred. In Leary,
the Supreme Court determined that Dr. Leary had not waived his right to object to the MTA’s Fifth
Amendment defects by testifying “at trial that he had indeed failed to comply with the statute [because the
testimony] was perfectly consistent with the claim that the omission was excused by the privilege.”62
However, Justice Harlan’s answer was guarded when the government argued that Dr. Leary had also
testified “that his noncompliance was motivated, at least in part, by his conviction that the Act imposed an
illegal tax upon religion or upon the ‘pursuit of knowledge.’"63 Justice Harlan deflected this argument on
the grounds that “other parts of [his] testimony clearly indicate that he also was influenced by an
apprehension that by trying to pay the tax he might incriminate himself [and thus the Court could not say]
that petitioner's testimony, taken as a whole, amounted to a waiver of the privilege.”64
Second, assuming the objection was not waived by improvident disclosures in the PRE, could
objection to the demand for additional information provide the basis for an appeal of the DEA’s decision to
treat the application as “withdrawn”? As noted above, the Orloff and Blumenthal cases cited in note 60
concede that an administrative agency may properly refuse to grant a license to an applicant who refuses
to provide requested information based on the Fifth Amendment. However, no court has yet considered
the precise point that would be presented if the DEA made an unreasonable demand for unnecessary
information that would tend to expose church members to the risk of prosecution, and rejected a PRE
when the applicant failed to provide it.
Third, again assuming no prior waiver, could an applicant properly assert the Fifth Amendment to
refuse a response to an administrative subpoena demanding information that a PRE applicant had
refused to provide in response to a paragraph 5 demand? The objection would certainly be proper,
because Fifth Amendment privilege "can be asserted in any proceeding, civil or criminal, administrative or
judicial, investigatory or adjudicatory [to avoid making] disclosures which the witness reasonably believes
could be used in a criminal prosecution or could lead to other evidence that might be so used."65 This
answer is given with the substantial caveat that, since submitting a PRE is unquestionably a foray into the
61 Although the Guidance indicates that failure to provide additional information requested pursuant to paragraph 5
within 60 days will result in the DEA “considering the petition to be withdrawn,” this provides an astute practitioner
with no certainty that this will be the end of the matter. The Guidance provides no protections from information-
sharing with the DEA’s enforcement division, and paragraph 9 provides no protection from “other laws;” thus, if seized
with curiosity, the DEA would be free to issue a subpoena for the requested information. Presented with an
administrative subpoena from the DEA, and absent a valid Fifth Amendment objection, judicial review would likely be
fruitless, because “the Fourth Amendment requires only that a subpoena be sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably burdensome.” See, United States v.
Utah Department of Commerce, Case No. 2:16-cv-611-DN-DBP, Docket # 82 (Utah, July 27, 2017), quoting Becker
v. Kroll, 494 F.3d 904, 916 (10th Cir. 2007).
62 Leary v. United States, 395 US at 28.
63 Leary v. United States, 395 US at 29.
64 Leary v. United States, 395 US at 29.
65 Kastigar v. United States, 406 U.S. 441, 444-445 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (Fifth
Amendment "not only protects the individual against being involuntarily called as a witness against himself in a
criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answer might incriminate him in future proceedings.")

<C.Carreon> / FIFTHAMENDMENTNOTE / 17
lion’s mouth without promises of protection, should the DEA choose to exercise its subpoena powers, in
the event that the issues are joined before a District Court, everything the applicant voluntarily disclosed
in the PRE would be aggressively used against the applicant in an effort to find a waiver.
Eleventh, does the requirement that a PRE be filed under penalty of perjury present a risk of self-
incrimination?
Answer
: Yes. Only a human being can possess the personal knowledge necessary to qualify as
a witness or sign a statement under penalty of perjury.66 A person commits perjury “if she gives false
testimony concerning a material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.”67 Making a false statement in a PRE would violate
18 USC § 1001, that prohibits a person from making “any materially false, fictitious, or fraudulent
statement or representation” in “any matter within the jurisdiction of the executive… branch of the
Government.” The maximum prison sentence for a violation of Section 1001 is five years. As we have
discussed in various contexts, the sine qua non of self-incrimination is the submission of a document to
the government that identifies a person as complicit in the commission of criminal acts under state or
federal law. Because the Guidance requires that a properly-prepared PRE be a statement under penalty
of perjury that identifies the controlled substances the church uses, and the places and times where the
substances are kept and distributed, the person who signs the PRE will have to identify him or herself as
involved in the manufacturing and distribution of controlled substances.
Further, the person who signs the application will be placed at risk of being charged with perjury if
other church members violate the requirement of paragraph 7 of the Guidance that prohibits the applicant
church from engaging "any activity prohibited under the Controlled Substances Act or its regulations
unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of
Registration.” Even if the PRE does not contain an express promise to comply with paragraph 7, such a
promise could be inferred from the submission of the PRE, and the necessary representation by the
applicant that the PRE complies with the Guidance. To avoid subjecting the signer of a PRE to the risk of
a perjury charge, all members of the applicant church would have to refrain from using a controlled
substance as its sacrament for an indefinite period of time, while the DEA reached its decision. The final
irony of the Guidance procedure is that, by refraining from using a controlled substance as a sacrament in
its religious services, an applicant church undercuts the evidence most fundamental to proving its claim
under RFRA -- that psychedelic communion constitutes the essence of its religious path, and that
threatening church members with criminal sanctions for partaking of their psychedelic sacrament
substantially burdens their right to the free exercise of religion under the First Amendment.68
66 In re Dole Food Co, Inc. Stockholder Litigation, 2015 WL 832501 (Del. Chancery Ct. February 19, 2015).
67 United States v. Dunnigan, 507 US 87, 94 (1993).
68 “A substantial burden must be more than an ‘inconvenience.’" Guam v. Guerrero, at id., quoting Worldwide Church
of God v. Phila. Church of God, Inc., 227F.3d 1110, 1121 (9th Cir. 2000). A law imposes a "substantial burden" on
the practice of religion: "when individuals are ... coerced to act contrary to their religious beliefs by the threat of civil
or criminal sanctions." Navajo Nation v. US Forest Svc., 535 F.3d 1058 (9th Cir. 2008) (en banc), cert. denied, 129

<C.Carreon> / FIFTHAMENDMENTNOTE / 18
Twelfth, could the Fifth Amendment defects identified above be remedied by making appropriate
changes to the Guidance to protect the privilege against self-incrimination?
Answer
: Yes. In the author's opinion, the Fifth Amendment defects described above would be
cured if the DEA adopted enforceable administrative rules to guarantee that information in a PRE
identifying the leadership or members of the church, and the location where controlled substances are
manufactured, possessed or distributed, would (a) be used only by the officials specifically charged with
evaluating RFEs, and (b) would not be provided to the enforcement division of the DEA, to any other law
enforcement entity, government agency. or private contractor, and (c) that the information provided in a
PRE would be inadmissible in any criminal prosecution against the church leaders and members
identified in the PRE, and (d) that church leaders and members identified in the PRE would be immune
from prosecution for any acts affirmatively disclosed in the PRE.69 Finally, the proscription against use of
the controlled substance as communion sacrament, that pits the self-interest of the person who signs the
PRE against the free exercise rights of the applicant church and its members, must be eliminated.
Conclusion
Absent the immunity protections described above, submitting a PRE would expose church
members to substantial risks of self-incrimination, and cautious attorneys will warn their clients of those
risks before submitting a PRE on their behalf. In order to obtain the necessary protections, psychedelic
churches would be wise to take a lesson from the Albertson plaintiffs, and act on behalf of their members
to present Fifth Amendment and other appropriate constitutional objections to the DEA70 with a request to
initiate a rulemaking procedure with an opportunity for comment from the affected churches. If the DEA
declines to revise the Guidance and enact rules that will protect the constitutional rights of churches that
wish to use psychedelic controlled substances as religious sacraments without fear of prosecution, the
churches could initiate litigation to secure a decree that, because the Guidance fails to respect the
religious freedoms guaranteed by the First Amendment and RFRA, and forces church members to
engage in an unconstitutional tradeoff of their right to be free of compelled self-incrimination in order to
avail themselves of their right to free exercise of their chosen religious practices, the Guidance therefore
infringes their constitutional rights, and lacks the force of law.
S.Ct. 2763 (2009). "[T]he substantial burden test focuses on the extent of governmental compulsion involved." (AG's
Memo, 13th Principle, Exhibit J, p. 4.) “A statute burdens the free exercise of religion if it ‘put[s] substantial pressure
on an adherent to modify his behavior and to violate his beliefs,’" including when, if enforced, it "results in the choice
to the individual of either abandoning his religious principle or facing criminal prosecution.’" Guam v. Guerrero, 290
F.3d 1210, 1222 (9th Cir. 2002), quoting Thomas v. Review Bd. of Ind. Employment Sec. Div.,450 U.S. 707, 718, 101
S.Ct. 1425, 67 L.Ed.2d 624 (1981) and Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961).
69 "Once the danger of incrimination has been removed, however, as by a sufficient grant of immunity, the testimony
or documents can no longer be withheld." McKay, Self Incrimination and the New Privacy, at 196, citing Ullmann v.
United States, 350 U.S. 422 (1956).
70 The First Amendment also protects against compelled self-disclosure of internal church information and documents
under both the Free Exercise and Entanglement Clauses; however, a discussion of these authorities must wait to be
addressed in a future article.