Case 2:16-cr-00082-TS-RTB Document 550 Filed 09/19/16 Page 1 of 12

JAMES C. BRADSHAW (#3768)

BROWN, BRADSHAW & MOFFAT, L.L.P.
10 West Broadway, Suite 210
Salt Lake City, Utah 84101
Telephone: (801) 532-5297
Facsimile: (801) 532-5298
Attorney for John Wayman
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN CLIFTON WAYMAN,

DEFENDANT WAYMANS
MEMORANDUM RE:
SINCERE RELIGIOUS BELIEF
Case No. 2:16-CR-0082-TS
(Judge Ted Stewart)

Defendant.
Defendant John Wayman submits this memorandum with an accompanying
declaration in support of his request that the Court find he has made his prima facie
showing of sincere religious belief.1
Religious Belief
RFRA only protects religious beliefs, not secular philosophies or ways of life.
So, to raise a RFRA defense, Wayman must show that his beliefs, are in fact, religious.2
It is anticipated that the Government will stipulate that the FLDS church is a religion.

The Wayman Declaration is attached hereto as Exhibit A.

See Meyers, 95 F.3d at 1482; Yellowbear v. Lambert, 741 F.3d 48, 53-54 (10th
Cir. 2014).

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However, even if that stipulation is not forthcoming, Wayman has nevertheless met his
burden.
In the Wayman Declaration filed contemporaneously herewith, Wayman describes
how he was raised in the FLDS church, inculcated from the time he was a child with the
churchs doctrines.3 Wayman also describes the important role that the Law of
Consecration plays in his faith.4 And, although the scope of a persons religion and what
it entails is defined personally and not necessarily by the orthodoxy of the religion to
which he ascribes,5 a claim to a religious belief is admittedly logically stronger when the
belief is shared by others.6 With that in mind, the detailed description of the history of the
FLDS church and its focus on the Law of Consecration as described by Mr. Jeffs is
significant.7
Sincerity of Belief
Beyond showing that his belief his religious, Mr. Wayman must also show that he

See Wayman Declaration at 3, 4, 11.

See Wayman Declaration at 8-13.

See EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116-18 (10th
Cir. 2013), overruled on other grounds 135 S.Ct. 2028 (2015).
6

See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010); Levitan v.
Ashcroft, 281 F.3d 1313, 1321 (D.C. Cir. 2002).
7

See Doc. 269, pp. 313.

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is sincere in his belief i.e., that he actually holds the beliefs he claims to hold.8 In
weighing his sincerity, this Courts task is a modest one and limited to asking whether
the claimant is (in essence) seeking to perpetrate a fraud on the court.9 Because of the
limited scope of the Courts inquiry, sincerity is generally presumed or easily
established.10 When judging whether a person is attempting to perpetrate a fraud on the
court, some courts have suggested that it is useful to examine whether the person acts
consistently with his stated beliefs.11 Yet whatever weight inconsistency is given, it must
be remembered that a finding of sincerity does not require perfect adherence to beliefs
since even the most sincere practitioner may stray from time to time.12 A sincere
religious believer doesnt forfeit his religious rights merely because he is not scrupulous
in his observance; for where would religion be without its backsliders, penitents, and
prodigal sons?13 Further, when looking at the sincerity of a persons belief, the

Yellowbear, 741 F.3d at 54.

Id. (emphasis added).

10

Moussazadeh v. Texas Dep't of Criminal Justice, 703 F.3d 781, 79091 (5th Cir.

2013).
11

International Soc. for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441
(2d Cir. 1981).
12

Moussazadeh, 703 F.3d at 791.

13

Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012).

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consistency of a persons act must be judged by how that person understands his own
belief, not how the government (or anyone else) would interpret it for him.14
With these principles in mind, this Court may easily find that Mr. Wayman has
more than aptly demonstrated that he holds a sincere religious belief.
First, Mr. Wayman has submitted a declaration. It provides the details of his long
history as an FLDS adherent that supports his claim of sincerity. In his declaration,
Wayman specifically notes that he has been a life-long adherent to the FLDS faith, which
has long included among its doctrines the Law of Consecration.15 In other words, in
contrast to many controversies found in first amendment jurisprudence, Mr. Waymans
beliefs do not have an ad hoc quality indicating that they were only first claimed as a
defense to a criminal prosecution.16
Second, and beyond Mr. Waymans word, the Governments own arguments and
evidence is telling. At Mr. Waymans detention hearing, the Government called William
Jessop as a witness who described Wayman as someone who had proven an unwavering
devotion.17 Mr. Jessop likewise confirmed Waymans commitment to living the Law of
14

See Wall v. Wade, 741 F.3d 492, 499502 (4th Cir. 2014); also Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010) (The issue is not whether the lack of a
halal diet that includes meats substantially burdens the religious exercise of any Muslim
practitioner, but whether it substantially burdens Mr. Abdulhaseebs own exercise of his
sincerely held religious beliefs.).
15

See generally, Wayman Declaration.

16

Cf. Meyers, 95 F.3d at 1484.

17

Doc. 92, p. 35 l. 2324; also accord p. 48, l. 34; p. 77, l. 1922.

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Consecration.18 In Mr. Jessops opinion: based on my entire life of knowing John

[Wayman], there has never been a time where he has wavered or deviated at all.19
At that very same detention hearing, the Government itself strenuously argued Mr.
Waymans devotion to his religion, specifically describing Mr. Wayman as one of the
most high ranking members in the FLDS Church;20 in the highest degree of fidelity in
that community;21 and asserted that Waymans very role in the church today was that
of a devout member22 and one of the most loyal followers of Warren and Lyle Jeffs.23
Indeed, the Government argued that it is Waymans very devotion to his church which led
him, in the Governments view, to commit this charged crime:
But for that devotion, [Wayman] would not have ever served on
the high council, he would not ever have been a bishop of Short
Creek, um, and he would not have, as the government alleges in
the indictment, ordered the commission of the alleged fraud and
money laundering.24
It has been the Governments consistent argument that there are no conditions of
release under which Mr. Wayman can be effectively managed outside of confinement,
18

Doc. 92, p. 76 l. 1013.

19

Doc. 92, p. 40 l. 1922.

20

Doc. 92, p. 78 l. 1920.

21

Doc. 92, p. 78 l. 2324.

22

Doc. 92, p. 79 l. 17.

23

Doc. 92, p. 79 l. 22-23.

24

Doc. 92, p. 79 l. 15.

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precisely because of his sincere devotion to his church and its leaders. Any attempt by
the Government to now challenge Mr. Waymans sincerity and claim it is a mere pretense
adopted to perpetrate a fraud on this Court should be soundly rejected as it runs head-on
into the doctrine of judicial estoppel.25
Accordingly, based on Mr. Waymans declaration, the testimony of Government
witness William Jessop, and the Governments own binding arguments, Mr. Wayman has
met his burden of showing that his belief in the FLDS church and the Law of
Consecration is a sincerely held religious belief. On this basis alone, any plausible
concerns over cross-examination expressed by the Government are moot.26
Government Concerns Moot
The conclusion that Mr. Wayman holds sincere religious beliefs is not impacted by
the Governments concern over a lack of cross-examination; in fact, cross examination as
to the subject matter at issue here the sincerity of ones personal religious beliefs may
not even be considered by this Court for purposes of determining sincerity.

25

Judicial estoppel is appropriately invoked when a partys new position is clearly

inconsistent with its former position; when acceptance of the later position leads to the
perception that the court is being misled; and when asserting the inconsistent position
gives the asserting party an unfair advantage. See Eastman v. Union Pac. R. Co., 493
F.3d 1151, 1156 (10th Cir. 2007). Additionally, any new argument by the Government
that Wayman isnt really devout absolutely undermines the findings upon which this
Court justified continued detention.
26

See Doc. 537.

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For example, the Government asserts that Mr. Wayman has acted inconsistently
with his beliefs because he has been able to have first dibs relative to food in the
Bishops Storehouse, and further alleges that Wayman has not consecrated his business to
the FLDS church.27 Initially, the Governments claim as to the business is made wholly
without foundation and runs, once again, into the problem of being directly contrary to
the testimony of its own witness. During the detention hearing, Mr. Jessop was adamant
that Mr. Wayman had consecrated his business to Warren Jeffs and to the priesthood
under Warren Jeffs.28 The truth is, the Government does not, and should not, have any
idea what Mr. Wayman may have tithed or consecrated to his church; nor is there any
relevance whatsoever to the accusation in any event since there is no allegation made that
Waymans business had any role in the charged offenses.
Even ignoring the Governments lack of foundation and consistency, the more
important consideration for this Court is the unavoidable consequence of where the
Governments proposed questioning leads. The areas of inquiry identified by the
Government would place this Court in the untenable and forbidden position of defining
the contours of Mr. Waymans faith. In Yellowbear, the Tenth Circuit highlighted the
pitfalls in such an endeavor:
Of course, trying to separate the sacred from the secular can be a
tricky businessperhaps especially for a civil court whose
27

Doc. 458, pp. 89; see also Doc. 537, p. 2 (emphasizing inconsistency).

28

Doc. 92, p. 55 l. 25, p. 56 l. 14, 1112.

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warrant does not extend to matters divine. But at least one feature
of the statute's religiosity requirement often proves relatively
unintrusive in its application and not infrequently dispositive: the
question of sincere belief. . . . in suggesting we may ask whether
a claimant truly holds a religious belief isn't to suggest we may
decide whether the claimant's religious belief is true . . . And
even if it were otherwise, federal judges are hardly fit arbiters of
the world's religions.29
Overall, the Governments averments regarding Mr. Waymans consecrations and
servitudes are factually incorrect and cannot be substantiated. However, even assuming
for argument that the Government could actually prove what is alleged, doing so puts this
Court deep inside forbidden territory. The Law of Consecration as outlined in scriptural
text provides for just remuneration to elders, high priests, and the bishop as may be
thought best or decided by the counselors and bishop.30 As set out in Mr. Waymans
declaration, members of this religion believe the bishop has been set apart, and is guided
by the influence of a supreme being.31 Respectfully, neither the Government nor a court
has any business second guessing those beliefs. It just isn't for judges to decide whether
a claimant who seeks to pursue a particular religious exercise has correctly perceived the
commands of [his] faith or to become arbiters of scriptural interpretation.32

29

Yellowbear, 741 F.3d at 54 (citing authority).

30

Doctrine and Covenants, section 42, verses 7173.

31

Wayman Declaration at 10.

32

Yellowbear, 741 F.3d at 5455.

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Accordingly, even in light of the potential testimony that the Government may
seek in order to refute Mr. Waymans claim (as well as its own) that he is sincere in his
religious belief, Mr. Wayman has met his burden.
Substantial Burden
The last showing Mr. Wayman must make is that government action substantially
burdens his sincerely-held religious beliefs. Government action can substantially burden
religious beliefs if it prevents participation in conduct motivated by a sincerely held
religious belief, or, alternatively, if it places substantial pressure on an adherent . . . to
engage in conduct contrary to a sincerely held religious belief.33 Both the SNAP
regulations and the present criminal prosecution do just that.
According to the Law of Consecration, members of the FLDS faith are obligated to
consecrate all their property for the use of the church and the benefit of their
coreligionists. In contrast, under the Governments proposed interpretation of the law,
members of the FLDS faith are prohibited from consecrating any property that they
obtain through SNAP. Simply put, SNAP prevents participation in the Law of
Consecration, or, put differently, places substantial pressure on FLDS members to
withhold some of their property from consecration. This is the first substantial burden.
For those in any kind of leadership role in the FLDS church, SNAP regulations
(according to the Government) also keep them from teaching or instructing their
33

Hobby Lobby v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013) (citing
Abdulhaseeb, 600 F.3d at 1315).
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congregants consistent with the Law of Consecration when it concerns property derived
from SNAP. Nor is this burden removed if FLDS leaders avoid discussing SNAP
benefits specifically.34 The inability to discuss SNAP benefits whether proactively or
reactively (i.e. in response to a members question) is itself a substantial burden.
Of note, the Governments exhibit list relative to the scheduled hearing includes:
Statements made by John Wayman to a United Order General Meeting of FLDS
members in the LSJ Meetinghouse in Colorado City Arizona. (Doc. 538). According to
the Government, this audio recording35 was made by a Government informant during a
2012 church meeting. It appears that John Wayman is conducting the service in the role
of the temporary bishop. The Governments use of this recording speaks volumes in
terms of the substantial burdens placed upon the practice of this religion. There is
nothing in Mr. Waymans message to the congregation that could be considered a request
that members violate the law. There is no discussion whatsoever regarding SNAP
benefits. But what the recording does include is Mr. Waymans very personal, and
plainly religious plea to members that they live their lives consistent with their sacred
scriptures, including the Law of Consecration. If a conspiracy can be proved by showing
that there was an implicit agreement to violate the law,36 and the Government contends
34

Cf. Doc. 458, pp. 911.

35

The government only recently disclosed the 2012 to Defendants. They have yet
to disclose the source of the tape and Mr. Wayman reserves the right to further contest
authentication.
36

See, e.g., United States v. Rahseparian, 231 F.3d 1267, 1272 (10th Cir. 2000).
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that teaching this core principle puts one within the conspiracy, it necessarily follows that
the practice of this long-held and faith-based belief is both substantially and undeniably
burdened. The inability to instruct members, whatever form it takes, consistent with the
Law of Consecration, is a second substantial burden.
Conclusion
With the foregoing, Mr. Wayman has met the initial burden of a RFRA defense.
He has shown that this sincerely-held religious belief is being substantially burdened by
Government action. With that, it now becomes the Governments burden to show that the
Government action serves a compelling interest and that there are no less restrictive
means that would achieve that interest.37

Submitted this 19th day of September, 2016.

/s/ James Bradshaw

______________________
JAMES BRADSHAW
Attorney For John Wayman

37

Mr. Wayman anticipates filing additional briefings relative to these issues.

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CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of September 2016, I electronically filed the
foregoing Defendant Waymans Memorandum Re: Sincere Religious Belief with the Clerk
of Court using the CM/ECF system which sent notification of such filing to all parties.

/s/ Ann Marie Taliaferro

_______________________________________
K:\JCB\P\7194.wpd

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