Federal Response in Opposition To Motion To Dismiss

Case 2:16-cr-00082-TS-RTB Document 458 Filed 08/11/16 Page 1 of 19
JOHN W. HUBER, United States Attorney (#7226)

ROBERT A. LUND, Assistant United States Attorney (#9579)
TYLER L. MURRAY, Assistant United States Attorney (#10308)
AMANDA A. BERNDT, Assistant United States Attorney (#15370)
Attorneys for the United States of America
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,
Case No. 2:16-CR-82-TS
Plaintiff,
RESPONSE IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS
INDICTMENT
vs.
LYLE STEED JEFFS, et. al.,
Defendants.
District Court Judge Ted Stewart
INTRODUCTION
Lyle Jeffs and his codefendants have been indicted for a conspiracy to divert federal
money intended to feed hungry households away from the moneys rightful recipients for their
own benefit and to launder the proceeds of such fraud. The result of this fraud is that the rankand-file members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS
church) are left to subsist on minimal food while the defendants divert funds to members not
eligible to receive Supplemental Nutrition Assistance Program (SNAP) benefits (including
themselves) and to front companies, which then purchase non-food items to benefit the church
and its leaders. Defendants now seek to dismiss this indictment because they contend that
SNAPs requirements that persons receiving benefits only purchase eligible food for use in their
household impermissibly burden their religious belief in consecration. They further argue that
the government has no compelling interest in ensuring that only qualified households receive and
use the SNAP benefits, and that the program is not harmed if the FLDS leaders are allowed to
continue this fraudulent scheme. Such arguments fly in the face of the evidence and are not
supported by the controlling case law.
PROCEDURAL HISTORY
On February 17, 2016, a federal grand jury returned an indictment against 11 individuals,
alleging a conspiracy to commit SNAP benefits fraud and a conspiracy to commit money
laundering. ECF No. 1. All 11 defendants are members of the FLDS church and have pleaded
not guilty to the charges.
On July 12, 2016, counsel for Lyle Jeffs filed a motion to dismiss the indictment on the
grounds that the rules requiring SNAP recipients to use the benefits to purchase eligible food for
their households impermissibly burden his religious beliefs under the Religious Freedom
Restoration Act (RFRA) and violate his freedom of religious exercise under the First
Amendment. ECF No. 269. The other ten defendants joined in that motion. ECF Nos. 278, 280,
283, 288, 320, 331, 344, 354.
Defendant John Wayman filed a substantive supplemental
memorandum in support of the motion. ECF No. 281. Finally, certain other defendants have
filed documents seeking to preserve their right to provide additional evidence in support of the
sincerity of their religious beliefs and/or the substantial burdens to these beliefs. ECF Nos. 377,
380, 388, 391, 395, 402.1 They have not actually filed any such evidence.
FACTUAL BACKGROUND
As alleged in the indictment, in approximately 2011, Warren Jeffs, considered to be the
Prophet of the FLDS church by its members, instituted the United Order (UO). ECF No. 1,
7-8. The UO purports to be the highest level of worthiness in the church and devout FLDS
members aspire to eligibility in the UO. Id., 8. In order to be considered worthy for the UO,
members were required to donate all material assets to the FLDS church and were required to
obtain all needed goods from the Bishops Storehouse. Id. As the UO was instituted, church
leaders (including Lyle Jeffs, Seth Jeffs, John Wayman, and Kimball Barlow) directly instructed
members to divert their SNAP benefits to the Storehouse. Id., 8, 10, 27-28. They further
provided instructions on how to avoid suspicion and detection by the government. Id., 10. UO
members were also directed to purchase goods with SNAP benefits only from FLDS-controlled
businesses specifically, Meadowayne Dairy and Vermillion Cliffs. Id., 11. The members
were directed to purchase goods at Meadowayne or Vermillion and transfer those goods directly
to the Storehouse or to convert their benefits to fungible assets by swiping their EBT cards at
Meadowayne or Vermillion without the exchange of any food products. Id., 11, 29-30. The
defendants then provided the food items to members that were not qualified to receive SNAP
benefits and used the converted proceeds to purchase non-food items.
Id., 13-14, 32.
Defendants Kimball Barlow, Nephi Allred, and Preston Barlow have not filed supplemental
memoranda of any kind related to this motion.
Examples of the non-food items purchased with SNAP proceeds include paper products, a John
Deere tractor, and a 2012 Ford F-350 truck.
Id., 38.
During the alleged fraud period, the rank-and-file members of the FLDS church were
required to obtain all goods from the Bishops Storehouse, which was largely funded and
supplied by SNAP proceeds. Id., 8. The Storehouse was intended to provide for all UO
members, regardless of whether they were approved by government to receive SNAP benefits.
Declaration of Sheryl Barlow, 13 (Exhibit 1). However, the Storehouse rarely, if ever, provided
the quality or quantity of food requested or necessary to feed the members a nutritious diet. Ex.
1, 3-4, 6-8; Declaration of Julie Jeffs, 4-6 (Exhibit 2); Declaration of Allene Steed, 7-8,
10 (Exhibit 3); Declaration of Sarah Draper, 8 (Exhibit 4). Members rarely received fruit,
vegetables, or meat, and often lived off of rice and tomato sauce or plain toast. Ex. 1, 4, 6-9;
Ex. 3, 10. Correspondence and records regarding the Storehouse inventory make clear that no
orders were ever filled as requested. Declaration of Angela Mennitt and attachments (Exhibit 5).
In at least one instance, the shortages in nutritious food led to severe health issues for children.
Ex. 4, 8.
Meanwhile, the leaders of the FLDS church specifically Lyle Jeffs and John Wayman
and their families received special treatment. Instead of receiving all of their food from the
Storehouse, the Jeffs and Wayman families used SNAP proceeds to purchase food from nonFLDS stores. Ex. 3, 5; Ex. 4, 4-6; Declaration of Dowayne Barlow, 13 (Exhibit 6). They
also received preferential treatment at the Storehouse, receiving the best available food, and were
given priority over other families. Ex. 1, 14; Ex. 2, 6, 8-9; Ex. 4, 5-6. While other
members rarely got meat or vegetables, Jeffss family ate meat with nearly every meal and Lyle
would get salads when he was watching his weight. Ex. 3, 5; Ex. 4, 4; Ex. 6, 13.
Waymans family also received food from the Storehouse before other families, which led to
shortages. Ex. 1, 14; Ex. 2, 6; Ex. 3, 8-9.
Finally, Jeffs used the Storehouse as his
personal bank, using SNAP proceeds to purchase a luxury vehicle and as spending cash. Ex. 6,
14.
ARGUMENT
I.
Standard of Review
A.
Federal Rule of Criminal Procedure 12
Though Jeffs did not cite the authority for his motion to dismiss, it is appropriately
construed as a motion to dismiss the indictment under Federal Rule of Criminal Procedure 12.
Fed. R. Crim. P. 12(b); see also, e.g., United States v. Winddancer, 435 F. Supp. 2d 687, 69091
(M.D. Tenn. 2006). In evaluating a Rule 12 motion to dismiss, the court is to assume all facts in
the indictment are true and should make all factual inferences in favor of the government.
United States v. Jeronimo-Bautista, 425 F.3d 1266, 1267 (10th Cir. 2005). Rule 12 contemplates
that a court may make factual findings in deciding a motion to dismiss, but only if those findings
do not impede on the province of the ultimate factfinder. United States v. Pope, 613 F.3d 1255,
1259 (10th Cir. 2010); United States v. Hall 20 F.3d 1084, 1086 (10th Cir. 1994); Fed. R. Crim.
P. 12(e) (Where factual issues are involved in determining a motion, the court shall state its
essential findings on the record.).
B.
Arguments & Facts Contrary to the Indictment
In the opening motion, Jeffs makes certain arguments that directly conflict with the facts
in the indictment. For example, Jeffs argues that the SNAP benefits consecrated to the FLDS
church went only toward the purchase of food. ECF No. 269 at 26-27. As stated in the
indictment, however, SNAP proceeds were diverted for the purchase of non-food items,
including vehicles. ECF No. 1, 38. Jeffss attempt to paint the nature of this alleged offense in
a light contrary to the indictment should therefore be rejected and any facts or arguments in the
motion to dismiss that directly contradict the indictment should be stricken and not considered by
the Court.
II.
The Religious Freedom Restoration Act of 1993

The Religious Freedom Restoration Act of 1993 (RFRA) requires that the government
not substantially burden a persons exercise of religion unless such a burden is in furtherance
of a compelling government interest and is the least restrictive means of furthering that interest.
42 U.S.C. 2000bb-1; 42 U.S.C. 2000bb-1(a) and (b); Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751, 2767 (2014). As explained in the opening motion, RFRA invokes a burden-shifting
analysis. In this case, each defendant must establish, by a preponderance of the evidence, that
the government action: (1) substantially burdens (2) a religious belief or exercise (3) that is
sincerely held. United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996). If each defendant
can meet his or her burden, the burden shifts to the government to establish that the law as
applied furthers (1) a compelling government interest (2) by the least restrictive means possible.
Gonzalez v. O. Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006).
A.
Sincerely Held Religious Belief
The defendants in the case must establish that their beliefs are both religious in nature
and sincerely held. Meyers, 95 F.3d at 1482. On the first point, it is the defendants burden to
prove that the belief is religious rather than secular, cultural, or commercial. United States v.
Sandia, 188 F.3d 1215, 1218 (10th Cir. 1999) (RFRA does not protect defendant who claimed
his possession of golden eagle parts was religious when he later attempted to sell those parts for
a profit); Meyers, 95 F.3d at 1484 ([W]e hold that Meyers beliefs more accurately espouse a
philosophy and/or way of life rather than a religion.).
Defendants must also establish that their belief is sincere. The issue of sincerity is a
factual matter. United States v. Quaintance, 471 F. Supp. 2d 1153, 1171 (D.N.M. 2006), affd by
United States v. Quaintance, 608 F.3d 717 (10th Cir. 2007).
Sincerity analysis seeks to
determine the subjective good faith of an adherent in performing certain rituals. [] The goal, of
course is to protect only those beliefs which are held as a matter of conscience. Intern. Soc. For
Kirshna, Inc., et al. v. Barber, 650 F.2d 430, 441 (2nd Cir. 1981) (internal citations omitted).
Both extrinsic evidence and credibility assessments can be useful in this analysis. Id.; Tagore v.
United States, 735 F.3d 324, 328 (5th Cir. 2013) (sincerity is largely a matter of individual
credibility); United States v. Manneh, 645 F. Supp. 2d 98, 112 (E.D.N.Y. 2008) (finding
defendant failed to meet her burden on sincerity after having observed her during direct and
cross-examination).
At this stage in the proceedings, none of the defendants can meet this burden. First, the
court has no means by which to assess the credibility of each defendant because the vast majority
of defendants have failed to file anything testimonial in support of their burden.2 Without such
Lyle Jeffss counsel attached a 2009 affidavit from their client in support of the motion. This
affidavit was signed before the institution of the United Order and thus has no relevance to the question of
consecrating SNAP proceeds for use by non-qualified individuals and for the purchase of non-food items.
Without any direct testimony from Jeffs on the sincerity of his beliefs as related to SNAP proceeds, his
burden cannot be met.
evidence in the form live testimony at the requested evidentiary hearing the defendants
cannot meet their burden on sincerity, and the RFRA inquiry should therefore end here.3
The evidence that does currently exist, moreover, belies any argument that the abuse of
the SNAP program was part of a sincerely held religious belief. In terms of extrinsic evidence,
one factor that indicates insincerity is whether an adherent acts in a manner inconsistent with that
belief. Intern. Soc. For Krishna, Inc., 650 F.2d at 441. See also Quaintance, 608 F.3d at 722-23
(affirming district courts finding that religious beliefs of defendants were not sincere); Manneh,
645 F. Supp. 2d at 111-13 (finding defendants religious belief was insincere). In the cases of at
least Lyle Jeffs and John Wayman, the evidence on this factor makes clear that the asserted
religious belief in full consecration is about selfish profit and not a sincere religious belief.
Specifically, Lyle Jeffs and John Wayman personally profited from the scheme to divert SNAP
proceeds from qualifying families. As the exhibits to this motion make clear, Jeffs and Wayman
were not constrained by the rules they set out for the rest of the FLDS members. Ex. 1, 12,
14; Ex. 2, 6; Ex. 3, 5, 8-9. While those members were struggling to get enough nutritious
food to feed their families from the limited resources of the Storehouse, Jeffs required them to
use their SNAP benefits to buy food for his family meals from other grocery stores and received
first choice of the food from the Storehouse. Ex. 3, 5, 8-9; Ex. 4, 4-6. Waymans family
also received preferential treatment at the Storehouse. Ex. 1, 14; Ex. 2, 6. Even more
compelling is the evidence that Jeffs used SNAP proceeds to purchase at least one luxury vehicle
Additionally, there may another basis for the defendants actions that belie the sincerity of their
beliefs often FLDS members follow the orders of their leaders out of fear and intimidation. If they do
not strictly obey their leaders dictates, they risk being cast out of the only community they have ever
known and further risk losing all contact with their families and friends.
for his own use, while the rest of the FLDS members fought to obtain the most basic food from
the Storehouse. Ex. 6, 14. Similarly, John Wayman ostensibly still maintains ownership and
control of a business, and apparently has not consecrated all his resources to the FLDS church,
as required of rank-and-file members, as evidenced by the fact that he has sufficient personal
resources to pay for private counsel.
B.
Substantial Burden
The third step in establishing a prima facie case under RFRA is for each defendant to
establish that the government action at issue substantially burdens his or her religious exercise.
See, e.g., United States v. Friday, 525 F.3d 938, 947 (10th Cir. 2008) (We are skeptical that the
bare requirement of obtaining a permit can be regarded as a substantial burden under RFRA, at
least in this case.) United States v. Tawahonga, 456 F. Supp. 2d 1120, 1131-32 (D. Ariz. 2006)
(finding that the permit process for obtaining eagle feathers is only a slight burden on
defendants religious exercise). There is likely a substantial burden placed on religious exercise
if the government: (1) requires participation in an activity prohibited by religious belief; (2)
prevents participation in conduct motivated by religious belief; or (3) places significant pressure
on an adherent to engage in conduct contrary to a sincerely held religious belief. Abdulhaseeb v.
Calibone, 600 F.3d 1301, 1315 (10th Cir. 2010). In this case, the government requires SNAP
recipients to use their benefits only to purchase eligible food to feed the approved household,
thereby preventing FLDS members from consecrating all their goods to the FLDS church.
Except for Lyle Jeffs, no defendant has put forth any evidence showing how the SNAP
program rules substantially burden his or her individual religious beliefs. Defendants appear to
be arguing that the limitation on how SNAP proceeds are used prevents their ability to
consecrate all material assets to the FLDS church. But no defendant has asserted that he or she
received SNAP benefits and were constrained from donating those benefits to the church.4 Nor
has any defendant save Lyle Jeffs argued that the government action substantially burdens his or
her right to proselytize about the importance of consecrating ones SNAP benefit. Without any
such evidence from each individual defendant, the court must find no evidence of a substantial
burden on each defendants religious exercise.5
Lyle Jeffs has argued that his religious exercise is substantially burdened because he, as
the Bishop of Short Creek, must preach to his congregation about the importance of consecrating
their SNAP benefits, and he cannot do so without the risk of prosecution. But nothing in the
creation of the United Order or the law of consecration requires Jeffs to preach specifically about
SNAP benefits. Jeffs could easily preach about consecration of material assets without ever
mentioning SNAP benefits.
Without specific requirements from FLDS leaders for FLDS
members to turn over SNAP benefits and to use such benefits only at FLDS-controlled
businesses, there would likely be no risk to Jeffs for conspiring to divert SNAP benefits. The
small burden of not specifically discussing how to use SNAP benefits illegally is even less of a
burden than requiring a permit before taking an eagle for religious purposes. Cf. Tawahonga,
456 F. Supp. 2d at 1131-32.
Jeffs argues that the substantial burden is on the FLDS members who receive SNAP benefits.
That argument misses the point. Unless these defendants can establish that they were recipients of SNAP
benefits, it is difficult to see how their belief in consecration was burdened by the SNAP rules.
5
Nor have they explained why it is a substantial burden on their religion to purchase food with
SNAP proceeds as opposed to luxury vehicles.
10
The defendants cannot meet their initial RFRA burden of showing that the SNAP
program substantially burdens their sincerely held religious beliefs. The Court can and should
deny the Motion on this ground alone.
C.
Compelling Government Interest
Even assuming each defendant could establish a prima facie case under RFRA the
Motion would still fail because the United States has a compelling government interest in
enforcing the SNAP program rules.6 Jeffs argues that the government has no compelling interest
in pursuing this case because the defendants scheme not only does not frustrate the
governments goal of feeding hungry households, but actually serves it.7 This argument is not
only based on facts in direct conflict with the indictment but also contrary to the evidence that
FLDS members were forced to survive on toast and rice while Jeffs himself lived large.8
The purpose of SNAP is to permit low-income households to obtain a more nutritious
diet through normal channels of trade by increasing food purchasing power for all eligible
The United States has attached declaratory evidence to its response. With that evidence, the
United States has met its burdens under RFRA. Thus, the Court may assume the defendants could meet
their burdens and still find in favor of the United States without an evidentiary hearing. See, e.g., In re
Grand Jury Empaneling of Special Grand Jury, 171 F.3d 826, 835 (3d Cir. 1999) (evidentiary hearing not
required when supporting evidence is submitted via affidavits).
7
In a footnote, Jeffs questions whether the government would have a compelling government
interest in prosecuting FLDS members who use SNAP benefits to buy food and then served that food at a
dinner party. ECF No. 269, p. 27, n.7. But the scheme at issue here is far from a dinner party; rather, this
scheme is akin to the leaders requiring the FLDS members to fund a for-profit restaurant at which the
leaders alone dined with their SNAP proceeds.
8
In footnote 9 of his brief, Jeffs wrongly accuses the United States of unfairly attempting to break
apart this community and religion because it has only indicted the leaders of the church and not the rankand-file members who actually consecrated their SNAP benefits. ECF No. 269, p. 29, n.9. This
argument is unfounded. The governments interest is not in breaking apart this community; it is to
protect the members of this community whose health is put at risk so the defendants can siphon money
away from this vital federal program for their own financial gain.
11
households who apply for participation. 7 U.S.C. 2011. See also Declaration of Jeff Cohen,
5 (Exhibit 7); Alkabsh v. United States, 733 F.Supp.2d 929, 933 (W.D. Tenn. 2010) (Congress
implemented the Food Stamp Program in order to safeguard the well-being of the Nations
population by raising levels of nutrition among low-income households.) (citation omitted).
The many amendments by Congress to SNAP over the decades make clear that SNAP and its
regulations serve two compelling interests: (1) to ensure every person who needs assistance in
obtaining nutritious food gets that assistance, even when they may not be in a position to cook
their own meals in their own home; and (2) to prevent fraud and abuse in a federal program that
does not have unlimited funds. Ex. 7, 11, 17-20, 22-25, 34. For example, by allowing
individuals in battered womens shelters to obtain SNAP benefits, Congress has sought to ensure
that the benefits are available even when a person temporarily is not in a standard household.
Ex. 7, 24-25. Likewise, by limiting the definition of household, the government sought to
prevent fraud in the program by limiting a households ability to manipulate its composition to
obtain an unfairly large allotment.
Ex. 7, 17.
The Supreme Court has recognized the
governments legitimate interest in preventing fraud and abuse in administering SNAP. Bowen
v. Roy, 476 U.S. 693, 710 (1986) (No one can doubt that preventing fraud in these benefits
programs is an important goal.).
In United States v. Christie, the Ninth Circuit recently held that the United States has a
compelling government interest in preventing the diversion of marijuana used for religious
purposes to recreational, non-religious users. United States v. Christie, No. 14-10233, 2016 WL
3255072, at *6 (9th Cir. June 14, 2016). In part, the court held that the governments interest in
preventing marijuana from being used illicitly stems from its general interest in promoting the
12
health and safety of citizens due to the hazards associated with drug use. Id. Like an interest in
preventing the hazards associated illicit drug use, the government here has a compelling interest
in ensuring that people have the economic power (through the use of SNAP benefits) to purchase
nutritious food and avoid the ill effects of an unhealthy diet. To that end, ensuring that those
SNAP benefits are not diverted for unlawful purposes is a related but separate compelling
government interest. See also Ex. 7, 17-19 (explaining the history of governments efforts to
correctly define household to best serve the programs goals while preventing fraud and the
diversion of resources to non-eligible persons).
D.
Least Restrictive Means
Once the United States has established a compelling government interest in pursuing this
action, it must also show that it is the least restrictive means of serving this interest. The United
States burden in proving this element is two-fold: it must support its choice of regulation, and
it must refute the alternative schemes offered by the challenger[.] United States v. Wilgus, 638
F.3d 1274, 1289 (10th Cir. 2011). Satisfying this burden does not require the government do
the impossible by refuting each and every conceivable alternative regulation scheme; rather, the
government need only refute the alternative schemes offered by the challenger. Id.; see also
Holt v. Hobbs, 135 S. Ct. 853, 868 (Sotomayor, J., concurring); Walker v. Beard, 789 F.3d 1125,
1137 (9th Cir. 2014) (the government is under no obligation to dream up alternatives that the
plaintiff himself has not proposed.).
The United States can meet its first burden in supporting its choice of regulation. See
generally Ex. 7 (explaining the purpose behind the definitions and exceptions in in the SNAP
statutes and regulations). Because the key purpose of SNAP is to increase the food purchasing
13
power for low-income households, a fundamental concept of the program is the household.
Over the years, Congress has worked to narrowly tailor the definition of household to prevent
individuals who are not low-income from being considered household members and to prevent
household members from manipulating the composition of their household for purposes of
receiving larger benefit allotments. Ex. 7, 15-18. For example, in 1981, Congress had
concerns that some SNAP household members were artificially claiming to be separate
households, although they lived together, in order to receive larger benefit allotments. Congress
changed the law so that certain individuals such as parents and their children who live together
are presumed to purchase and prepare meals together even if they do not do so. See S. Rep. No.
97-139, at 442 (1981) (indicating that the 1981 Amendment to the Food Stamp Act was
designed to prevent food stamp household members from artificially claiming to be separate
households, although they live together, and thereby receiving larger benefits.). See also Lyng
v. Castillo, 477 U.S. 635 (1986); H.R. Conf. Rep. 103-213, at 927-28 (1993).
Likewise, when Congress considers an exception to the concept of household, it does
so carefully and limits any such exception to ensure the goals of the program are met. These
limited exceptions to the SNAP ineligibility of residents of institutions and boarding houses
reflect Congressional intent in protecting taxpayer investment in SNAP such that SNAP benefits
are issued to and benefit only those who are truly needy, while also serving low-income
populations with special needs[.] Ex. 7, 25. Thus, as the legislative and regulatory history of
SNAP makes clear, the SNAP rules have been carefully considered and tailored to guarantee that
the neediest among us are able to secure a nutritious diet while simultaneously protecting the
public fisc by working to limit fraud and abuse in the program. Ex. 7.
14
Jeffss sole proposed alternative is that the United States not pursue this action and let the
FLDS members continue to consecrate their SNAP benefits so that the FLDS leadership may
distribute and use those benefits as it sees fit, whether it be feeding non-qualified members or
buying non-food items.9 ECF No. 269, pp. 30-31. In support, Jeffs argues that the FLDS
scheme in fact serves the purpose of SNAP better because they can pool their resources to buy in
bulk. ECF No. 269, pp. 27-28. They further claim that the Storehouse has never seen real
shortages as many government witnesses have stated. Id., p. 28, n.8. Finally, Jeffs points to
SNAPs group living exceptions, arguing that the exception works to allow the benefit to be used
by the facility to purchase food for the facility. Id. at 31.
None of these arguments are persuasive. First, the group living exceptions allowed by
current SNAP regulations are far narrower than Jeffs describes and do not allow using SNAP
benefits to feed residents who do not receive SNAP benefits. Second, this argument flatly
ignores the diversion of SNAP proceeds for non-food items. This proposal therefore fails to
serve the two compelling government interests of ensuring low-income households can obtain a
nutritious diet and preventing fraud and abuse in the program.
As set out by Jeff Cohen, Deputy Associate Administrator for SNAP the group living
exception for the disabled and elderly is tightly regulated and specifically designed to serve the
programs stated purpose. Ex. 7, 21-32, 34. As is clear from the statutory language, the idea
behind this exception is to ensure that segments of the population that are unable to live
9
In short, the defendants want to have their cake and eat it too. On the one hand, they want
members to apply for SNAP benefits on an individual basis (guaranteeing that most members will qualify
to receive benefits); on the other, they want to share all of their resources as a unified community. But if
that were the case, the assets of the entire community should be taken into account including church
assets, profits from the many successful, FLDS-controlled businesses, and other employment income.
15
independently or cook individual meals, but otherwise qualify for SNAP, are not excluded from
the program. Ex. 7, 25, 34. A facility serving these populations must be certified by the
program and must be authorized as a retail food store. Id., 26, 30. The individual will still be
awarded benefits in accordance with household size (whether that be a woman and her children
living in a battered womens shelter, or a single disabled adult as a household of one). Id., 29.
Most importantly, the SNAP benefits awarded to an individual in a group living situation may
only be used by the facility to buy meals or food for that resident. Id., 31 (the main factor
that must be met is that each residents food stamps must be used for meals intended for that
resident.) (emphasis added).10 When a resident leaves a group living facility, any unused
SNAP benefits must be returned. Id.
This distinction is fatal to Jeffss proposed alternative. Under Jeffss proposal, the FLDS
would apply for SNAP benefits on an individual basis and then consecrate those benefits to the
Storehouse.
The Storehouse would use those benefits to purchase food, but could then
redistribute the food to anyone in the community without regard to the individual SNAP
recipients. The result would be (and in fact is) that the individual FLDS member who qualified
for SNAP would not receive his or her benefit, frustrating the intent of the program to ensure
10
Jeffss motion mistakenly assumes that group living arrangements are permitted to pool SNAP
recipients benefits and share them with a larger group that does not include SNAP recipients. ECF No.
269, p. 31 (Clearly, the understanding with this accommodation is that other individuals in the group
home may get a portion of the food which was purchased by another individuals SNAP benefitbut
because it is cooperative in natureit is of no consequence.). This is not allowable under SNAP rules.
Longstanding policy dictates that SNAP benefits used in group living arrangements may not be used to
purchase food or meals for residents who are not receiving SNAP. Ex. 7, 31-32; see also 7 C.F.R.
273.2(n)(3).
16
needy people get nutritious food.11 Indeed, Jeffs proposed alternative would mean that nonqualifying individuals such as himself would have free reign (under the guise of religious belief)
to use the SNAP benefits of others to fund their own lavish lifestylesa situation totally at odds
with the long-stated and well-known purposes of the SNAP program. His proposal is thus
nonsensical on its own terms.
Moreover, allowing the FLDS to appropriate the SNAP proceeds as they see fit without
oversight would encourage exactly the fraud and abuse alleged in the indictment. Jeffs argues
that the FLDS scheme actually better serves the governments interest in feeding needy people
because it increases the purchasing power for the community by allowing the Storehouse to buy
in bulk. ECF No. 269, pp. 26-28. Whether that is true is beside the point because Jeffss
proffered vision of the scheme is not the reality. Instead, defendants through the Storehouse
divert SNAP proceeds for their own benefit whether that be to purchase food for their own
(and other) non-eligible households or to use those proceeds to fund other businesses, to buy
vehicles, and to fund the FLDS church leaderships lifestyles and other church operations.
In sum, the defendants have failed to meet their burdens under RFRA. None of the
eleven defendants have put forth any evidence that they hold a sincerely held religious belief in
consecrating SNAP benefits or that SNAP regulations place a substantial burden on those beliefs.
11
Correspondence and documents from the Storehouse (attached to Ex. 5) demonstrate that the
FLDS scheme to consecrate their SNAP benefits frustrates the intent of the program. Correspondence
among Storehouse employees makes clear that the people were not getting the food they needed to feed
their families. Ex. 5, Atts. A-H; see also Ex. 2, 4-6. As Attachment H shows, the Storehouse could
rarely supply even half of the basic items needed by the community. Ex. 5, Att. H. It should be noted
that Attachment H covers a period of four months (October 2015January 2016) during which Martha
Bistline was Storehouse manager. ECF No. 269, Ex. 11., 3. And yet in her declaration, she falsely
states, under oath, that [i]f needs were known to us, they were met. Id., 6.
17
Even if they could meet that burden, however, the United States has established that it has
compelling government interests in regulating the distribution and use of SNAP benefits, and
that the SNAP regulations are the least restrictive means of serving those interests. RFRA
therefore does not protect the defendants conduct and the Court should deny the instant motion
to dismiss.
III.
FIRST AMENDMENT
Jeffs also argues that the SNAP regulations and this prosecution violate his right to free
exercise of religion under the First Amendment. ECF No. 269, pp. 31-41. Supreme Court
precedent establishes the general proposition that a law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice. Church of the Lukumi Babalu Aye
v. Hialeah, 508 U.S. 520, 531 (1993). A law that is neutral on its face, but is selectively applied
will not pass constitutional muster. Id. at 534. Other than his own bald assertion, Jeffs offers no
evidence that the SNAP statutes are being selectively enforced. Specifically, Jeffs argues that
the SNAP statutes violate the First Amendment because they are selectively enforced against the
FLDS while simultaneously allowing other groups to engage in similar communal-type living
without federal prosecution. Id., p. 37. To the extent they are referring to the group living
exceptions delineated in the SNAP regulations, the United States has already distinguished those
regulations and exceptions from the FLDS scheme. See supra, pt. II-D.
Finally, Jeffs argues that the SNAP program is not narrowly tailored to serve a
compelling government interest.
ECF No. 269, pp. 37-41.
The government has already
established that the SNAP statutes serve compelling government interests by the least restrictive
18
means. See supra, pts. II-C and II-D. On those same grounds, it can satisfy the more lenient
narrowly tailored test. United States v. Hardman, 297 F.3d 1116, 1129-30 (10th Cir. 2002)
(In the context of these cases, least restrictive means is a severe form of the more commonly
used narrowly tailored test.) (citing Sherbert v. Verner, 374 U.S. 398, 407 (1963)); Kikumura
v. Hurley, 242 F.3d 950, 962 (10th Cir. 2001) (noting that the governments burden under the
First Amendment is less stringent than under RFRA). Thus, Jeffss First Amendment challenge
is unsuccessful and should be denied.
CONCLUSION
For the foregoing reasons, the United States respectfully requests that the Court deny the
Motion to Dismiss the Indictment and for all other appropriate relief.
DATED this 11th day of August, 2016.
JOHN W. HUBER
United States Attorney
/s/ Amanda A. Berndt____________
AMANDA A. BERNDT
Assistant United States Attorney
19
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Case 2:16-cr-00082-TS-RTB Document 458 Filed 08/11/16 Page 1 of 19

JOHN W. HUBER, United States Attorney (#7226)

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Case No. 2:16-CR-82-TS

District Court Judge Ted Stewart

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Defendant John Wayman filed a substantive supplemental

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Id., 13-14, 32.

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Finally, Jeffs used the Storehouse as his

Federal Rule of Criminal Procedure 12

Arguments & Facts Contrary to the Indictment

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The Religious Freedom Restoration Act of 1993

Sincerely Held Religious Belief

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Sincerity analysis seeks to

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Without specific requirements from FLDS leaders for FLDS

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Compelling Government Interest

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The Supreme Court has recognized the

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Least Restrictive Means

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ECF No. 269, pp. 37-41.

The government has already

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