IN THE SUPERIOR COURT OF GUAM PEOPLE OF GUAM, ) CRIMINAL CASE NO. 0001-91 ) Plaintiff ) ) DECISION AND ORDER vs. ) ) BENNY TOVES GUERRERO, ) ) Defendant. )
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INTRODUCTION

This matter came before the HONERABLE MICHAEL J. BORDALLO on the 20th day of May, 1999 on Defendants, Benny T. Guerrero, Motion To Dismiss and Motion for the Appointment of an Expert on the religion of the Rastafarian. The Defendant was represented by D. Paul Vernier. Assistant Attorney General Gerad Egan represented the Plaintiff, the People of Guam (“the Government”). Because the Court grants Defendants Motion to Dismiss, it will not address the Motion for the Appointment of an Expert.

BACKGROUND

On or about January 2, 1991, the Defendant, Benny Toves Guerrero was returning to Guam from Los Angeles via Honolulu. At the airport, Guam Customs Officers approached the Defendant and asked him if he was carrying any drugs. The Defendant, a practicing Rastafarian, replied that he was not in possession of any drugs. Thereafter, the Customs Officer searched the Defendants backpack and found marijuana contained therein. The Defendant was placed under arrest and charged with importation of an illegal substance. He was subsequently indicted on January 11, 1991 under the charge of Importation of a Controlled Substance (As a First Degree Felony.

DISCUSSION

The Defendant now request this Court to dismiss the case because of a violation of his First Amendment free exercise rights. The Defendant was charged pursuant to statute 9 G.C.A. Section 67.89, which states: Except for a person registered pursuant to Section 67.95 of this Code or exempted pursuant to Section Section 67.93 or 67.94 of this Code, it shall be unlawful and punishable as a felony of the first degree to import into Guam any controlled substance listed in Schedule I or II as per Section 67.22 through Section 67.25 of this Code or any narcotic drug listed in Schedule III, IV, or V as per Section Section 67.26 through 67.31 of this Code.

The Defendant argues that this statute is inorganic, unconstitutional and inherently violates his First Amendment free exercise rights. Defendant proclaims himself a priest of the Rastafarian religion which has its origin in Jamaica. As part of the rituals and traditions of this particular religion, Defendant contends that the use of marijuana is a necessary sacrament in the practice of Rastafarianism. Rastafarians, according to the Defendant, consider the smoking of marijuana a sacred practice and disfavor its use in a recreational manner. It is the Defendants position that by criminalizing his use of marijuana, he is being denied the right to practice his religion, Rastafarian. Specifically, the Defendant argues that the Organic Act guarantees an Individual his right to freedom of religion. Under Section 1421b of the Bill of Rights, Guam provides the following protection for the exercise of religion:

(a) No law shall be enacted in Guam respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the government for a redress of their grievances. (Emphasis added.)...

(b) No discrimination shall be made in Guam against any person on account of race, language, or religion, nor shall the equal protection of the law be denied.

The 1899 Treaty of Peace enacted when the U.S. acquired Guam from Spain after the Spanish-American War, guarantees the free religious expression of the “native inhabitants of the territories” in two articles:

Article IX. “The civil rights and political status of the native inhabitants of the Territories hereby ceded to the United States shall be determined by Congress.”

Article X. “The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion.”