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Charles Carreon has been a member of the California Bar for thirty years, and retired from the Oregon bar in
2012. A graduate of UCLA Law School (1986), he served the public as an Oregon prosecutor and Federal Public
Defender. His private practice has focused on civil trial and appellate litigation, transactional work for media
companies, and intellectual property registration, negotiation, and litigation. He currently serves as General
Counsel for an Arizona church that administers a pharmacologically active sacrament, and maintains a private
practice consulting on issues of Constitutional law, media law, and intellectual property. He may be contacted at
[email protected] or 628‐227‐4059.
A List of Legal Risks Arising from Submitting a PRE
This list enumerates constitutional defects in the Guidance based on legal analysis with citations
to precedent to be found in two articles by the author: 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?2 and Be Careful What You Wish For – The Peril of Regulated
Status for Psychedelic Churches.3 This list is provided with the usual caveat that laypersons should not
rely on the list as “legal advice,” and should obtain formal advice from legal counsel before issuing
statements or taking official actions.
1. Self-Incrimination: The statements in the PRE itself could provide probable cause to
arrest the individual who signed the PRE, and to issue search warrants of the places where sacramental
controlled substances are kept or distributed. The PRE would provide a roadmap for prosecution of
church members for conspiracy to distribute controlled substances. At trial for violating the Controlled
Substances Act (“CSA”), the PRE could be admitted to impeach contrary testimony denying guilt by the
person who signed the PRE or church members charged as co-conspirators.
2. Possible Prosecution or Investigative Scrutiny from Law Enforcement: The
Supreme Court invalidated the “Marijuana Tax Act” and the “Wagering Act” because they required
registrants to disclose incriminating information to the IRS that was to be shared with law enforcement.
Even though the Guidance doesn’t say that all of the incriminating information in the PRE will be passed
to law enforcement, it doesn’t have to -- the DEA is law enforcement. Thus, the Guidance violates the
Fifth Amendment rights of church members.
3. Suspension of the Right to Partake of the Sacrament: Paragraph 7 commits all
church members to voluntarily forswear taking any sacrament that is a controlled substance. This
restriction impinges upon the right of free exercise as much as does the CSA, and forces a church to
trade off the free exercise rights of its members for the hope of attaining legal status. Ironically, by not
using its sacramental controlled substance for an extended period of time, an applicant church undercuts
its contention that psychedelic communion is essential to its religious path, and that laws forbidding use of
the sacrament substantially burden its right to free exercise of religion.
4. Risk of Perjury: Someone must sign the PRE under penalty of perjury, because an
organization cannot take the oath. Making a false statement in a PRE would violate 18 USC § 1001, that
establishes a five-year maximum sentence for making a false statement in a federal proceeding. Perjury
charges could be premised on material omissions, or if some members of the church failed to keep the
promise required by paragraph 7 to abstain from taking the psychedelic sacrament.
https://www.researchgate.net/publication/331986523_The_DEA's_Guidance_Regarding_Petitions_for_Religious_Exemption_fr
om_the_Controlled_Substances_Act_under_RFRA_Door_to_Religious_Freedom_or_Fifth_Amendment_Trap_for_the_Unwary
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https://www.researchgate.net/publication/331987375_Be_Careful_What_You_Wish_For_‐
_The_Peril_of_Regulated_Status_for_Psychedelic_Churches
5. Unlimited Scope of Requests for Further Information: Paragraph 5 gives the DEA
carte blanche to request any additional information, at any time after submission of the PRE, from an
applicant church. Several precedents hold that a government agency can refuse to grant a license to an
applicant that refuses to provide requested information, a result that is not barred by the Fifth
Amendment. Thus, paragraph 5 provides a foolproof pretext for the DEA to refuse to grant a PRE to a
Psychedelic Church simply by requesting additional incriminating information.
6. No Protection from Prosecution Under State Law Despite Grant of PRE: Paragraph
9 states that “compliance with these guidelines shall not be construed as compliance with other Federal
or State laws unless expressly provided in such other laws.” Every state in the union has adopted the
Uniform Controlled Substances Act (“UCSA”), that mirrors the CSA in virtually all respects; thus if a drug
is in Schedule I in the CSA, it will be in Schedule I in every state. Although the goal of the UCSA is
uniformity between federal and state law, this apparently applies only to legal proscriptions, and not to
exemptions. Thus, without changes in federal and state law to recognize a uniform state exemption
based on the DEA’s grant of a PRE, all Psychedelic Churches outside of the District of Columbia remain
subject to prosecution by local authorities, even if they obtain a certificate of exemption from the DEA.
7. Indefinite Period for Processing the PRE: Nothing in the Guidance indicates how long
the DEA will take to review a PRE. Ayahuasca Healings submitted a PRE in April 2016, and as of the
date of this publication in February 2019, it has neither been approved or denied.
8. Use of “Invitations” to Submit a PRE as De Facto Investigative Demands: On at
least two occasions, the DEA has sent a Psychedelic Church an “invitation to submit a PRE,” that has
been treated by these churches as a de facto investigative demand (Ayahuasca Healings and Soulquest).
These “invitations” have circulated through the Psychedelic Church community as ominous portents, with
every church’s leadership asking themselves whether they will be the next to receive “an offer they can’t
refuse.”
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Politics and Religious Freedom Restoration Act Make Strange Bedfellows: The Sessions Memo.
ONLINE CITATION TO GO HERE