UNITED STATES DISTRICT COURT NEW MEXICO
February 28th 2006 Preliminary
TAPE # FTR-LCS 2:06-m-3655
11:51:57 DEFENSE: Has this case been called
11:51:59 COURT: Can I call the case now.
11:52:00 COURT: Ok let me call the case because we have to change equipment. Uhm the Court calls the case of Danuel D. Quaintance 06m3655
11:52:13 PROSECUTION: Mr. Martinez for the United States
11:52:14 PROSECUTION: Marc Robert for Mr. Quaintance
11:52:17 COURT: Ok And we are here for Mr. Quaintances Preliminary Hearing on the Criminal Complaint that was filed February 24, 2006 signed by Judge Lynch on the same day. Alright, Mr. Martinez the burden is on the government so call your first witness.
11:52:36 PROSECUTION: The government will call Mr. Zarate
11:52:48 COURT: Please raise your right hand. Do you swear or affirm that the statements you make to the court today will be the truth and nothing but the truth under penalty of law.
11:52:54 ZARATE: Yes Mam.
11:52:55 COURT: Ok please have a seat, and why don't you state your full name for the record an maybe spell it.
11:53:00 ZARATE: My full name is Ivan Zarate
11:53:03 COURT: And how do you spell it? Zarate?
11:53:06 ZARATE: Z-AR-AT-E.
11:53:09 COURT: Alright, You may proceed.
11:53:15 PROSECUTION: Agent Zarate how are you employed sir.
11:53:18 ZARATE: I'm employed at the Lordsburg police department, I'm a police officer currently assigned to the DEA as a Task Force Officer.
11:53:25 PROSECUTION: What are your duties as your assigned to the DEA?
11:53:29 ZARATE: As far a the DEA, to enforce the drug trafficking law.
11:53:34 PROSECUTION: Did you have occasion to be on duty February 22nd, 2006
11:53:40 ZARATE: yes
11:53:41 PROSECUTION: And uh did you come in contact with an individual you later learned to be Danuel Quaintance?
11:53:48 ZARATE: yes
11:53:49 PROSECUTION: And do you see Danuel Quaintance in the courtroom today sir?
11:53:52 ZARATE: yes
11:53:53 PROSECUTION: Would you identify him by pointing at him and describing an article or articles of clothing by color
11:54:01 ZARATE: { to soft to make out }
11:54:04 PROSECUTION: Let the record reflect that Agent Zarate has Identified Danuel Quaintance
11:54:09 COURT: Yes the record will be so reflected.
11:54:14 PROSECUTION: Uhm how did Mr. Quaintance come to the attention of law enforcement on February 22nd 2006?
11:54:21 ZARATE: On February 22 Mr. Quaintance came in contact with a United States Border Patrol — Agent.
11:54:29 PROSECUTION: Was he in a vehicle or was he on foot?
11:54:31 ZARATE: on — a vehicle
11:54:32 PROSECUTION: What vehicle was he driving?
11:54:34 ZARATE: He was the passenger in the 1997 Pontiac — uhm — minivan
11:54:40 COURT: OK, can you speak up just a little bit - I'm having a little trouble hearing you.
11:54:43 ZARATE: Yes Mam.
11:54:44 COURT: What kind of vehicle?
11:54:46 ZARATE: It was a 1997 - Pontiac - minivan — green in color.
11:54:52 PROSECUTION: And he was the passenger?
11:54:53 ZARATE: yes
11:54:54 PROSECUTION: Who was driving that vehicle sir?
11:54:56 ZARATE: That would be his wife Mrs. Quaintance
11:54:58 PROSECUTION: And was there another vehicle involved in this case — agent Zarate?
11:55:02 ZARATE: Yes sir.
11:55:03 PROSECUTION: And what kind of vehicle was that?
11:55:05 ZARATE: It was a gray in color — rental — Chrysler 300 - M
11:55:10 PROSECUTION: And uhm who was driving that vehicle?
11:55:14 ZARATE: That would be one his uh ----members - from the church -- Mr. ---Kripner.
11:55:23 PROSECUTION: And uh — was — Mr. Kripners -uh - the vehicle Mr. Kripner was driving was that stopped by Border Patrol?
11:55:31 ZARATE: Yes sir.
11:55:32 PROSECUTION: What was — What if anything was discovered in the vehicle?
11:55:35 ZARATE: uhm — subsequently they like found four-- large — back packs - containing — bundles of -uhm- Marijuana.
11:55:43 PROSECUTION: And how much — in pounds how much marijuana in total was — located?
11:55:47 ZARATE: Approximately 172 pounds.
11:55:52 PROSECUTION: and uh — where was Mr. Quaintance at the time that Mr. uh Kripner- kripner's car was stopped?
11:56:04 ZARATE: Mr. Quaintance he was like I say he was a passenger in the minivan - the minivan was subsequently also stopped approximately 2 miles uhm in front of the first vehicle
PROSECUTION: and uh that van was stopped after the Chrysler Mr. Kripner was in?
11:56:20 ZARATE: yes sir, yes sir
11:56:23 PROSECUTION: was it stopped before the marijuana was found or was it stopped after the marijuana was found?
11:56:28 ZARATE: I believe it was stopped before the marijuana was found.
11:56:31 PROSECUTION: and uh did Mr. Kripner give any, make any statements, post Miranda, to officers
11:56:41 ZARATE: Mr. Kripner before he was put in handcuffs and Mirandized he did uh comment to the border patrol agents that he's got the right to possess marijuana and transport.
11:56:52 COURT: Mr. Kripner said that?
11:56:54 ZARATE: uhm Mr. Quaintance.
PROSECUTION: well NOW I'M asking you first of all about Mr. Kripner.
11:57:01 ZARATE: talk to him oh uh Mr. Kripner uhm and then border patrol stopped him uhm--uh he uh can you repeat the question again I'
PROSECUTION: yes, did Mr. Kripner make any statements ---- to border patrol or to yourself.
11:57:14 ZARATE: Mr. Kripner made the statements to us, as far as border patrol-- I'm not too sure on that.
PROSECUTION: ok what statements did he make to you?
11:57:25 ZARATE: he advised that — he knew — that — he was going to be transporting marijuana, he advised that he was gonna get paid - to transport it.
PROSECUTION: did he tell you who was paying -
11:57:31 ZARATE: yes
PROSECUTION: for, to transport the marijuana
ZARATE: yes
PROSECUTION: and who did he say was paying him?
11:57:37 ZARATE: Mr. Quaintance
PROSECUTION: and uh — did he say — what else did he tell you?
11:57:43 ZARATE: after that uh — he said that — uhm-- that the only reason he tra-- joined the church uh-- was because he would get away with it, with transporting and using — of marijuana.
PROSECUTION: Did he tell you who recruited him to the chur-- church?
11:57:56 ZARATE: yes, he was baptized, we believe, two days — before, did n say — Mr. Quaintance.
PROSECUTION: he was baptized into this church--
11:58:04 ZARATE: yes
PROSECUTION: do you know the name of the church?
11:58:06 ZARATE: pause — church of cogniza-nce - wa- it - um oh
11:58:12 DEFENSE: purposes of refreshing your memory — Cognizance.
11:58:15 ZARATE: yes
PROSECUTION: and uh did you find any documentation regarding - where they coaborated Mr. Kripners statement-- regarding this baptism?
11:58:25 ZARATE: yes, I did find uh what- we looked — what appears to be a baptism — certificate.
PROSECUTION: did uh you re- uh did you investigate as to who was uh renting the Chrysler that Mr. Kripner was driving?
11:58:41 ZARATE: Quaintance or Mr. Kripner, uhm Mr. Quaintance had deposited some money into the accan — the account - for the car — and Kripner’s cousin — had rented the vehicle for-im.
11:58:52 PROSECUTION: for what purpose?
11:58:54 ZARATE: uh-- Mr. Kripner said that — his cousin was under the impression that — Kripner was gonna go visit his girlfriend — and uh was- not aware of the illegal activity.
11:59:03 PROSECUTION: you spoke to Mr. Kripner’s cousin?
ZARATE: no sir.
PROSECUTION: Did someone in law enforcement speak to Mr. Kripners cousin?
11:59:09 ZARATE: This information was passed on to -uh- to Arizona DEA — and eventually - well -?.
NOTE by DDQ NOT ON RECORD: This shows Arizona DEA involvement
PROSECUTION: But Mr. Kripner didn't deny that he was transporting and being paid to transport the marijuana.
ZARATE: No sir.
11:59:20 COURT: I'm sorry — is it your testimony that Mr. Kripner's cousin thought that Mr. Kripner was going to use the vehicle to go visit Mr. Kripner’s girlfriend?
11:59:31 ZARATE: That's what Mr. Kripner had told us — in the beginning — he said that — uh his cousin had rented the vehicle — for the purpose of him visiting his girlfriend.
11:59:39 PROSECUTION: and uh had Mr. Kripner been paid by Mr. Quaintance --for — as quite-at this time?
11:59:45 ZARATE: NO. ---- not yet.
11:59:48 PROSECUTION: were there uh — let me ask you about two-way radios was that found?
11:59:52 ZARATE: yes uh - those audiovox two way radios — one was found in the minivan and the other was found in the gray vehicle.
12:00:00 PROSECUTION: and uh what channel were they tuned to?
12:00:03 ZARATE: they were both set to channel 6.
12:00:05 PROSECUTION: alright what significance does that have?
12:00:07 ZARATE: to me that would be that through one those two would communicate on that frequency.
12:00:12 PROSECUTION: in other words they could communicate or put each other on frequency or channel 6
ZARATE: yes radio communication. yeah.
PROSECUTION: if you dial over one of those radios over to channel 7 would radio communication be possible
12:00:25 ZARATE: no.
12:00:28 PROSECUTION: now, subsequent to Mr. Quaintance's arrest,- did he make any statements?
12:00:34 ZARATE: That's when Mr. Quaintance said he's got the right to possess and transport it — the marijuana
PROSECUTION: did he say anything else?
12:00:41 ZARATE: well — Mr. Quaintance was advised several times of his rights, and uh again- he said that he had the freedom of speech and that he wanted to talk.
PROSECUTION: What did he say?
12:00:50 ZARATE: well he kept talking — saying that he belonged to the church group — which is — sacrament is — marijuana — and therefore he's got the right to transport it use it and possess it.
12:01:02 PROSECUTION: Did he identify the marijuana in Mr. Kripner’s car?
12:01:04 ZARATE: He would not — quaintn — his words were — I'm not gonna fess up to it — admit n - uh — uhm ownership of it --- but he had the right to possess it and transport it.
12:01:15 PROSECUTION: So, that he wasn't the owner but he was possessing and transporting it?
12:01:19 ZARATE: yes.
12:01:20 PROSECUTION: That's the witness.
12:01:24 DEFENSE: Did he actually say he was the owner of the marijuana that he found in the vehicle, or did he simply say I have the right to own or possess marijuana?
12:01:32 ZARATE: No sir he said I am not the owner he did not admit ownership, but he does have the right to possess it and transport it.
12:01:38 DEFENSE: OK, so that we're clear the marijuana that was found in those two vehicles, Mr. Quaintance never said that's mine.
12:01:46 ZARATE: Never came out of his mouth --- no.
12:01:49 DEFENSE: That's what I meant when I said - Mr. Quaintance never said that.
12:01:50 ZARATE: He never did admit ownership.
12:01:53 DEFENSE: He did however - TELL you - that he was the head of the Church.
12:01:56 ZARATE: Yes.
12:01:57 DEFENSE: He told you that the Church was the Church of Cognizance that he told us.
12:01:59 ZARATE: Yes
12:02:00 DEFENSE: And that that church had as part of it's sacramental practice, the use of marijuana.
12:02:05 ZARATE: That - their worship was marijuana, their
12:02:09 DEFENSE: And that it's considered by the church to be a sacrament.
12:02:14 ZARATE: right.
12:02:15 DEFENSE: He told you that?
12:02:15 ZARATE: yes.
12:02:16 DEFENSE: He — he --- explained to you uhm- a little bit about the church, didn't he?
12:02:24 ZARATE: The only thing he would keep saying — keep repeating over and over again that they were in violation of U.S.C. — uh 22 or — something like that.
12:02:35 DEFENSE: He told you — that uhm — he believed that you're-- that what you were doing was in violation of his rights under U.S. Law and the Constitution, is that correct?
12:02:43 ZARATE: That was it.
12:02:44 DEFENSE: He said he was going to sue everyone because of that violation.
12:02:48 ZARATE: Yeah.
12:02:55 DEFENSE: And so from the very beginning - through out all this Mr. Quaintance told you that this was the proper part of what he considered — to be — an exercise of his religion --- that's what he told you?
12:03:10 ZARATE: That's what he advised - but under law it's a different thing.
12:03:12 DEFENSE: That's what we are here to find out.
12:03:17 DEFENSE: Did Mr. Quaintance say anything else, you told us that he didn't accept ownership, or-or say anything about ownership or possession of the marijuana in the vehicles. You told us that he did talk about his rights under the constitution, and he told us that he described the church. What else did Mr. Quaintance say when you were, you or any other law enforcement officer had contact with him?
12:03:40 ZARATE: Well uh - that's about the same thing that he kept saying over and over-- we were in violation-- he was going to sue everybody, he's got the right to possess it, he's got the right to use it — transport it.
12:03:50 DEFENSE: Now uh — Mrs. Quaintance, Mary Quaintance she declined to make any statements what so ever is that correct.
12:03:55 ZARATE: True.
12:03:56 DEFENSE: uhm -- you testified -- about statements -that Mr. — Kripner made, and you said some things that weren't in the statement — of facts- attached to the criminal complaint. Who signed the Criminal Complaint? Was that you?
12:04:20 ZARATE: I believe it was Danny Lawsalls?? - he's the one brought them to initials for me. ???
12:04:23 DEFENSE: Ok — so he's the person who's sworn to the facts contained in the complaint is Mr. Lawsalls?
12:04:28 DEFENSE: I believe so.
12:04:30 DEFENSE: Judge do you have the signed copies of the complaint?
12:04:34 COURT: uhm -- what I have has the - just the first page signed it's got Mr. ZARATE's name and somebody else’s signature for him but the actual affidavit is not signed — and so — that's
12:04:50 DEFENSE: huh- Not a -I think that's a - on my front page is Ivan ZARATE, TFO initials signature above it but that's not unusual usually they get their signature.
12:04:59 COURT: You're welcome to see the courts copy
12:05:01 DEFENSE: That's fine I just --
12:05:04 COURT: Let me see - let me see -paper crinkle- that wasn't the original - so let me see if there's any difference - no — uhm no the Task Force Officer did not sign the affidavit, the continuation of the statement of facts - but - but the - complaint is signed by someone for Mr.---- ZARATE.
12:05:24 ZARATE: I believe its Danny Lawsalls- that uh- Friday when it came to initials -
12:05:27 COURT: Ok
12:05:28 ZARATE: we were out of the office - uh we were out of the office so they brought them for us
12:05:31 COURT: Ok
12:05:32 ZARATE: clears throat uuuhm --- {sounds like someone else} clearing throat uh- uh-uh
12:05:34 DEFENSE: You said that Mr. Kripner told you that you were going to be paid for transporting the marijuana.
12:05:39 ZARATE: Yes sir
12:05:40 DEFENSE: That he had only joined the church two days earlier
12:05:43 ZARATE: Yes sir
12:05:44 DEFENSE: And that the only reason that he joined the church was to be able to get away with it — it.
12:05:48 ZARATE: Well,-- his words were — I can smoke it, transport it and not get in trouble — by it.
12:05:52 DEFENSE: Are you aware that the churches practices involving the use marijuana isn't smoking it but rather using it — grinding it into a powder and using it in a tea?
12:06:02 ZARATE: Not uh - not according to Mr. Kripner.
12:06:04 DEFENSE: Who had been a member of the church for two days.
12:06:10 DEFENSE: Yes?
12:06:11 ZARATE: yeah lowered tone
12:06:17 DEFENSE: Did Mr. Kripner tell you how much he was going to be paid for transporting the marijuana?
12:06:20 ZARATE: No sir.
12:06:21 DEFENSE: Did he tell you by whom he was going to be paid to transport the marijuana?
12:06:25 ZARATE: Mr. Quaintance
12:06:36 DEFENSE: So according to the information you got at the scene — Mr. Kripner was the one that was doing this for money and the others were doing it - at least on the basis of what they told you - as a part of a religious practice.
12:06:47 ZARATE: Not necesarily defiant sounding
12:06:49 DEFENSE: Ok on the basis of the information you described for us now that seems to be the case! challengingly
12:06:52 ZARATE: well-- well- uh as far as that uh wha-uh got put in the minutes according to Mr. Kripner the way they uh the way the way they support their themselves is by selling it. Not only by — church - uhm religious practicing.
12:07:05 DEFENSE: OK, well then that's not in the complaint, and that's not - and you didn't say that before, so tell us about that - Mr. Kripner believed the church supports itself by selling marijuana for profit?
12:07:15 ZARATE: Yes sir.
12:07:16 DEFENSE: uhm to, was he talking to you when he made that statement, or somebody else?
12:07:20 ZARATE: Well uh he was talking to both of us myself and uh agent Jesus Hernandez.
12:07:24 DEFENSE: That's uh, Jesus Hernandez who's a DEA agent?
12:07:28 ZARATE: uh - a TFO also
12:07:29 DEFENSE: A TFO - and uh what were the circumstances of Mr. Kripner’s interrogation – where was he – who was there?
12:07:35 ZARATE: Where was he – well – he asked to — -- be removed — from the holding cells where which they were at – at the Border Patrol – we went ahead and pulled him out – we set - with him on the side – nobody around – just myself — and Officer Hernandez.
12:07:51 DEFENSE: Alright – so the two of you were there -
12:07:54 ZARATE: Yes sir.
12:07:55 DEFENSE: – three of you were there – you and the other Task Force Officer asking Mr. Kripner questions
12:07:57 ZARATE: Yes sir.
12:07:58 DEFENSE: – and uh tell us what he told you about – the – the use of the — trafficking in marijuana to make money.
12:08:05 ZARATE: Well – like I said – what he said was — -- he was - Baptized two day’s earlier — -- um — -- he rents the vehicle for – he supposed to go pick it up and transport it back to their house — -- which he was going to get paid for – u-um clears throat – once um –that –uh- was good —he said that – the only thing — the only reason why he joined was – to be able to smoke – freely – without getting into trouble.
12:08:28 DEFENSE: Alright – what I’m asking you though is what he told you about – uh – you said just a moment ago that Mr. Kripner said – this church — traffics in marijuana
12:08:38 ZARATE: uh-ha
12:08:38 DEFENSE: as a way to make money
12:08:39 ZARATE: uh-ha
12:08:40 DEFENSE: and -
12:08:40 ZARATE: Yes sir
12:08:41 DEFENSE: – tell us exactly what he said to the best of your recollection.
12:08:43 ZARATE: Well – he said — -- because we asked him – how — how does it work – uh- how is it or what – he said — it’s about three trailers — -- — where-er they live I don’t know where they live – uh it’s uh-- — I don’t know how it is – it’s a – I guess it’s a trailer mobile home park or something – he said it’s — -- three trailers – and – look he’s supposed to pick up the marijuana — -- deliver it there – and from there he’s gonna get paid — -- and is um – was it just for that and he said no – they also sell it to anybody — -- that’s the way they support themselves.
12:09:15 DEFENSE: Alright – do you know where Mr. Kripner lives?
12:09:18 ZARATE: NO – I uh know his address but I don’t know where he lives.
12:09:20 DEFENSE: What town—do you know what town he lives in?
12:09:24 ZARATE: after several second pause No not off the top of my head.
12:09:26 DEFENSE: Um – you testified that he had been baptized into the church two day’s earlier.
12:09:30 ZARATE: Yes.
12:09:31 DEFENSE: So he — reasonably might not be as familiar with the church activities as somebody who had been there for fifteen years?
12:09:37 ZARATE: Possibly.
12:09:41 DEFENSE: Anything else that Mr. Kripner said that might be important to your investigation
12:09:44 ZARATE: That's about it.
12:09:47 DEFENSE: Did you tape record or video tape the interrogation of Mr. Kripner?
12:09:51 ZARATE: uh --no.
12:09:52 DEFENSE: alright -and uh- you took notes and I assume Mr. Flores did too?- or I'm sorry Mr.-
12:09:57 ZARATE: -Hernandez-
12:09:57 DEFENSE: -Hernandez did too?
12:09:58 ZARATE: Notes? -No!
12:10:00 DEFENSE: You don't write things down when you talk to people?
12:10:02 ZARATE: We did but it was one of those things that-we were out in the field and --- it was pretty late so--
12:10:08 DEFENSE: So you didn't have anything to write on or write with?
12:10:11 ZARATE: We were trying to get things moving we didn't - had - been out all day all night.
12:10:16 DEFENSE: Where was this that this was taking place?
12:10:18 ZARATE: Lordsburg.
12:10:20 DEFENSE: At a law enforcement office?
12:10:21 ZARATE: Yes yes border patrol — station.
12:10:24 DEFENSE: And your testimony is that neither you nor agent Hernandez wrote anything down regarding your conversation with Mr. Kripner?
12:10:30 ZARATE: No.
12:10:32 DEFENSE: That's all.
12:10:33 COURT: Ok ---- Mr.
12:10:35 PROSECUTION: no more questions your honor
12:10:36 COURT: Uh- Agent Zarate
12:10:38 ZARATE: Yes Mam.
12:10:39 COURT: Did the defendant Mr. Quaintance uh indicate to you that he knew who Mr. Kripner was?
12:10:46 ZARATE: Yes uh he recognized him as a member of his church.
12:10:49- SILENCE
12:10:57 COURT: Anything further?
12:10:59 PROSECUTION: Nothing further counsel rests your honor.
12:11:01 COURT: Anything further Mr. Robert?
12:11:03 DEFENSE: uh - no thank you.
12:11:04 COURT: Ok you may step down.
12:11:06 ZARATE: Thank you.
12:11:09 COURT: Do you have any witnesses Mr. Robert?
12:11:11 DEFENSE: No I don't
12:11:12 COURT: OK
12:11:18 COURT: Uh Mr. — Quaintance- uh probable cause is a — there has to be minimal sufficient evidence to indicate that there is a crime that has been committed, and that you’re the person who committed the crime. It can be established through hearsay evidence - uh — the fact that Mr. Kripner identified you -uhm- as a ----- and and let me just -uhm-- let me just ask counsel if you want to make any argument?
12:11:52 DEFENSE: Your honor the only thing I'd say is that we have two drivers of and neither of whom is Danuel Quaintance and-
12:11:58 COURT: -ok-
12:11:58 DEFENSE: -that is something of importance and so I would submit that given the information that we have before us there is not enough to make any case of probable cause as to Mr. Quaintance.
12:12:10 PROSECUTION: but they just almost did- not the person -well-find the probable cause well beyond the standard your honor I think we have a cooperative that has said that he was being hired and paid by Mr. Quaintance and Mr. Quaintance saying that he has a right to possess — he has the right to transport - and he has the right to use - and that the marijuana was for distribution — as it was it was said by Mr. Kripner sold to others to support the church.
12:12:38 COURT: Here's my concern — Mr. Martinez — there was no testimony as to why — the vehicle — that Mr. Quaintance was the passenger in was stopped.
12:12:50 DEFENSE: that's not important your honor that’s not
12:12:51 COURT: Ok so is that not an issue Mr. Robert
12:12:53 DEFENSE: no it's not really your honor that's a suppression issue
12:12:57 COURT: OK.
12:12:58 DEFENSE: and we can get to that at the appropriate time and typically in these situations it's not the issue.
12:13:00 COURT: It's just the probable cause — OK.
12:13:05 COURT: I — I'm not sure I understand the significance of him not being the driver he was identified uhm as someone that uh Mr. Kripner uh- uh- knew-- and uh Mr. Kripner identified Mr. Quaintance as being the person who sort of hired Mr. Kripner to uh transport the marijuana that was found in Mr. Kripners vehicle uhm-- he — Mr. Kripner stated that he was a member of the church uh the same church uh Mr. Quaintance admitted he was a member of uhm Mr. Kripner apparently joined the church for perhaps a different reason uhm - then — one would expect-- he he claims to have joined the church so that he could legally smoke or use marijuana. uhm — and Mr. Quaintance admitted — well he didn't admit the marijuana in Mr. Kripners vehicle was belonging to him or to the church-- he certainly coaborated that the church did use marijuana uh- in their ceremony or or the ritual or that it was their sacrament for their church — so there is a connection there in the nexus there. uhm the fact that there was a an identical walky-talky or or communication device in each vehicle uh set to the same station which would allow communication between the two vehicles connects the two vehicles - and given the statements that Mr. Kripner made that he was uh uh told to pick up the vehicle, pick up the load of marijuana and take it to the trailer where Mr. Kripner claims is sort of the church facilities — I think all of that in combination is sufficient to find probable cause and to move this case forward.
12:14:50 COURT: Now, you have a pending motion for immediate release, uhm however it raises issues that probably should best be decided by an article 3 judge.- So as soon as the government uhm responds to that motion, and I think that it's 14 days, and I'm not sure how they received a - a copy of it, we'll get that set up before -uh I guess we don't have a Judge assigned yet.
12:15:19 DEFENSE: It wouldn't have been done yet, the government was provided with a copy of what was filed, what was filed was something that was prepared uh by somebody else. I've been working on my own submission--
12:15:29 COURT: OK
12:15:30 DEFENSE: --and will be addressing all these issues either preindictment, or post indictment, at some time a District Judge will we assigned and will address the motions.
12:15:40 COURT: Ok let's talk about detention then because uh- I've found probable cause now.
12:15:47 DEFENSE: Your Honor this is - - this is a little concircular and uhm kind of troublesome because what we got he is uhm a situation in which — This man who by all other standards would be imminently bondable. He has some a - He's got a DWI in 71, a DWI in 74, and 22 years ago he spent 7 day's in jail and did 6 months community service for a marijuana offence — That's the last time Mr. Quaintance - made the acquaintance - of law enforcement. And so here's a person - who would — like again - by any other standard would be bondable — probably unsecured — but what's holding us back here is his religious practice. And uh - It's funny because - in just the few day's that I have been involved in this case - I- I have encountered the swarm — with which — people treat the notion that somebody — can have a religious practice in which marijuana is a part - of - and so I as - am not any where sure as near as well as Mr. Quaintance himself recognize that there is a perception of prejudice against what he does in his religious practice — that informs all of the thinking that -a for dealing in particular with this case — the thinking of dealing with - a - release. What we have is the pretrial services officer saying - well - he smokes marijuana — that's not entirely true - as I suggested in the questioning of the agent — that - the folks that practice this particular religion in the Church of Cognizance don't smoke it-- they use it in a tea-- and I don't know that that make a lot of difference - in the sense that the same substance is used in both processes — but it is — it - it's not the image of people sitting around the room passing a pipe around this is something that is legitimately done — in a religious organization that's existed since 1991 — and is a part of a religious movement that's existed for a whole lot longer than that. Obviously — I've spent a little time reading the Supreme Courts recent decision in the UDV case — and it's discussion of the application of the a - a - sort of conflicts in some cases - particularly that one and I think this one between — the controlled substances act and the religious freedom restoration act-- and that clearly is going to be an issue that's going to be addressed in this court — in this case - But in this court and at this moment it's got to be dealt with in the sense that uh it's going to keep Mr. Quaintance locked up and he shouldn't be locked up. I want to site the court to a district court case — in Washington State — Federal Court of the Western District — at Seattle — Raynord Earl Valrey — and I've got a copy of the case I will provide to the court. The jest of it is that -a- Rastafarian who was on supervised release time from serving a sentence for illegal possession of a firearm — tested positive for the use of marijuana — and in this case the district court said - under these circumstances - in which the person who is a practitioner- a practicing member of a legitimate religion - who is a part of that legitimate religion - legitimately consumes marijuana - we're not going to interfere with the practice of his religion — and so this court — the Valrey court - handed down an order that said yes he can smoke marijuana - and there is supervision aspects of that that the simple fact of the use of the substance was permitted in the context of federal supervision.
12:19:32 COURT: What was the — what was the burden of proof in that case and at what point was it presented
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