FILED

United States Court of Appeals

Tenth Circuit

June 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DANUEL DEAN QUAINTANCE and

MARY HELEN QUAINTANCE,

 Defendants-Appellants.

Nos. 09-2013, 09-2014

(D.C. No. 06-CR-538-JCH)

(D.N.M.)

ORDER

Before HENRY, EBEL, and GORSUCH, Circuit Judges.

The court has sua sponte determined that the order and judgment entered in this

appeal on May 19, 2010, should be published. Accordingly, the prior order and judgment

is being filed today as a published decision. The version of the decision for publication

follows this order.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANUEL DEAN QUAINTANCE and

MARY HELEN QUAINTANCE,

Defendants-Appellants.

Nos. 09-2013 and 09-2014

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 06-CR-538-JCH)

Scott M. Davidson, Albuquerque, New Mexico, for Defendant-Appellant Danuel Dean

Quaintance.

John F. Robbenhaar, Assistant Federal Public Defender, Albuquerque, New Mexico, for

Defendant-Appellant Mary Helen Quaintance.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States

Attorney, with her on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before HENRY, EBEL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

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2

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 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

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3

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.

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

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4

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 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 a substantial burden, leaving the Quaintances to prove the religiosity

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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

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). 

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

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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 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).

6

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

 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.

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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). 

7

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

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

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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 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.

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

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“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 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

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 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. 

10

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 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

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5

 The Quaintances deny using cocaine and also challenge its relevance. At 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.

11

1174.5

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 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

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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 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

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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 of sincerity, their RFRA

defense must fail. The judgment of the district court is affirmed.

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