Erowid
 
 
Plants - Drugs Mind - Spirit Freedom - Law Arts - Culture Library  
Have Psychedelics Changed Your Beliefs
about Death or Dying?
Have you had a psychedelic drug experience that altered
your beliefs or understanding about death and dying?
Take the Johns Hopkins Survey about your experience!
Writ of Certiorari to US Supreme Court, by Atley 1997

No. ______________________________     

______________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

______________________________

LEWIS J. ATLEY,
Petitioner,

VS.

STATE OF IOWA,
Respondent.
__________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF IOWA
______________________________
____________________

PETITION FOR WRIT OF CERTIORARI
______________________________
____________________

LEWIS J. ATLEY, pro se Petitioner
#1074758-A
Anamosa State Penitentiary
406 North High Street
P.O. Box 10
Anamosa, Iowa 52205-0010

(319) 462-3504

__________________________________________________

QUESTION PRESENTED

Does Iowa Statute § 124.204(4)(s), as interpreted by the Iowa Supreme Court, in conflict with the Florida Supreme Court, as to the scope of the term "material" in the statute's phrase "any material, compound, mixture, or preparation which contains ...," violate the Petitioner's Due Process protections of the Fifth and Fourteenth Amendments to the United States Constitution, and is void-for-vagueness, as it would: (1) lead to "absurd results" by outlawing much of the life-forms on this planet; (2) result in overbreadth, giving law enforcement virtually unlimited power to arrest and imprison almost every citizen on an ad hoc and subjective basis; and (3) threaten the First Amendment rights of several religions, including Petitioner's?

PARTIES TO THE PROCEEDING

        All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

OPINIONS BELOW

BASIS FOR JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

  1. LEGISLATIVE BACKGROUND

  2. JUDICIAL BACKGROUND

  3. PETITIONER'S CASE

REASONS FOR GRANTING THE WRIT

  1. This Court should grant certiorari as the Opinion below conflicts with the Opinion of the Florida Supreme Court and conflicts with this Court's previous decisions for the interpretation of terms used in a statute that leads to absurd results

  2. This court should grant certiorari due to the National Importance, in that the interpretation of "material" to encompass non-specified plants would permit "a standardless sweep" and open up almost every citizen to arrest and imprisonment by giving unbridled license to law enforcement to "pursue their personal predilection" of arbitrary and discriminatory enforcement

  3. This Court should grant certiorari to consider if the statute is unconstitutionally vague and would threaten the First Amendment rights of several religions, including Petitioner's

CONCLUSION

PROOF OF SERVICE

INDEX TO APPENDICES

[Appendices filed as a separate volume pursuant to Rule 14(1)(i) of the Supreme Court Rules.]
APPENDIX A -Opinion of the Iowa Supreme Court, on rehearing, reported in State v. Atley, 564 N.W.2d 817 (Iowa 1997)
-Order granting Rehearing
-Appellant's Petition for Rehearing
APPENDIX B -Written Opinion of the District Court on Due Process - Motion to Dismiss (unpublished) (& Motion)
APPENDIX C -Oral Ruling of the District Court on Religious Freedom Motion (Trial Tr. pp. 28-29) (& Motion)
APPENDIX D -Amendments I, V, VI and XIV to the United States Constitution
APPENDIX E -Code of Iowa Statutory Provisions Involved
APPENDIX F -Florida Statutory Provisions Involved
-Fiske v. State, 366 So.2d 423 (Fla. 1978) - Opinion
-State v. Savrda, 679 So.2d 363 (Fla.App. 4 Dist. 1996)
-State v. Savrda, District Court Opinion - (unpublished)
-Newspaper article from Florida (Fiske case)
APPENDIX G -CHART A - (plants and controlled substances)
APPENDIX H -Scientific Authority
APPENDIX I -Affidavit of Petitioner
-Affidavit of The Fane of the Psilocybe Mushroom
APPENDIX J
(Unpublished)
-Final Order, Olsen v. DEA, No. 93-1109 (D.C. Cir. May 16, 1994)
APPENDIX K -Affidavits concerning the Psilocybe Mushrooms by:
-John S. Beresford, M.D.
-Nicholas V. Cozzi, Ph.D.
-Jonathan Ott, Entheobotonist
-Chart and table of Dependence Potential and Acute Toxicity by Robert S. Gable, J.D., Ph.D.
APPENDIX L Letter from Chandler, Arizona Chief of Police & Narcotics Unit Officer

TABLE OF AUTHORITIES

SUPREME COURT

Bouie v. Columbia, 378 U.S. 347 (1964)

Chapman v. U.S., 500 U.S. 453 (1991)

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)

City of Boerne v. Flores, ____ U.S. ____, 117 S.Ct. 2157 (1997)

Connally v. General Const. Co., 269 U.S. 385 (1925)

Cuyler v. Sullivan, 446 U.S. 335 (1980)

Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872 (1990)

Giaccio v. State of Pennsylvania, 382 U.S. 399 (1966)

Graynard v. City of Rockford, 408 U.S. 104 (1972)

Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989)

Hernandez v. CIR, 490 U.S. 680 (1989)

Holloway v. Arkansas, 435 U.S. 475 (1978)

Kolender v. Lawson, 461 U.S. 364 (1983)

Lanzetta v. New Jersey, 306 U.S. 451 (1939)

Larson v. Valente, 456 U.S. 228 (1982)

Lewis v. City of New Orleans, 415 U.S. 130 (1974)

Moskal v. United States, 498 U.S. 103 (1990)

Papachristou v. City of Jacksonville, 450 U.S. 156 (1972)

Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989)

Thornhill v. Alabama, 310 U.S. 88 (1940)

United States v. Powell, 423 U.S. 87 (1975)

United States v. Reese, 92 U.S. 214 (1875)

United States v. Rodgers, 466 U.S. 475 (1984)

Village of Hofmann Estates v. Flipside, 455 U.S. 489 (1982)

APPEALS COURTS

Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980)

Olsen v. DEA, No. 92-1109 (D.C. Cir.), (unpublished) (May 16, 1994)

LOWER COURTS

Bemis v. State, 652 N.E.2d 89 (Ind.App. 1995)

Fiske v. State, 366 So.2d 423 (Fla. 1978)

People v. Dunlap, 422 N.E.2d 1379 (Ill.App. 1982)

State v. Atley, 564 N.W.2d 817 (Iowa 1997)

State v. Justice, 704 P.2d 1012 (Kan.App. 1985)

State v. Patterson, 679 P.2d 416 (Wash.App. 1984)

State v. Savrda, 679 So.2d 363 (Fla.App. 4 Dist. 1996)

State v. Winters, 346 So.2d 991 (Fla. 1977)

State v. Wohlever, 500 N.E.2d 318 (Ohio App. 1985)

United States v. McCollough, 891 F.Supp. 422 (N.D. Ohio 1993)

CONSTITUTION OF THE UNITED STATES

U.S. Constitution Amendment I

U.S. Constitution Amendment V

U.S. Constitution Amendment VI

U.S. Constitution Amendment XIV

IOWA STATUTES

Code of Iowa § 124

Code of Iowa § 124.101(13)(c)

Code of Iowa § 124.101(16)

Code of Iowa § 124.204(4)

Code of Iowa § 124.204(4)(p)

Code of Iowa § 124.204(4)(s)

Code of Iowa § 124.204(8)

Code of Iowa § 124.208(3)(e), (f)

Code of Iowa § 124.401(1)(b)

Code of Iowa § 124.401(1)(c)(6)

Code of Iowa § 124B.2(c)

Code of Iowa § 205.5

Code of Iowa § 453B.12

FLORIDA STATUTES

Florida Statute § 893.03(1)(15) (1975), now is - § 893.03(1)(c)(28)

Florida Statute § 893.13(1)(a)(2)

FEDERAL STATUTES AND REGULATIONS

21 C.F.R. § 166.3(c)(3) (1996)

21 C.F.R. § 1307.31

21 C.F.R. §  1308.11(8)

21 U.S.C. § 801 et seq.

21 U.S.C. § 321(g)(1)

21 U.S.C. § 811(a),(b)

21 U.S.C. § 841(b)(1)(B)(v)

OTHER AUTHORITY

H.R. 1444

H.R. 13742

H.R. 17463

H.R. 18583 (P.L. 91-513)

111 Cong. Rec. 15, 977-978 (1965)

Controlled Substances Act (C.S.A.)

Drug Abuse Control Amendments of 1965

Model Controlled Substances Act of 1970, (Revised 1990)

Religious Freedom Restoration Act of 1993

The Entheogen Law Reporter, Issue 2, Spring 1994

Henman, A.R. (Ed.) 1990, The Anti-Prohibitionist Review, No. 1, Jan. 1990

Motolina, F. de, 1971.  Momales o Libro de law Cases de la Nueva Espaņa
   universidad Nacional Autonomia de Mexico, Mexico City.  Originally
   published in 1541

Ott, J., 1995.  The Age of Entheogens & The Angel's Dictionary,
   Natural Products, Kennewick, WA

Sahgun, B. de, 1950-1969 Florentine Codex: General History of the Things
   of New Spain by Fray Bernardina de Suhgun
, Twelve Volumes, University
   of Utah Press, Salt Lake City, Utah

Wasson, R.G., 1980 The Wonderous Mushrooms: Mycolatry in Mesoamerica,
  Harcourt Brace Jovanovich, New York, N.Y.

Wasson, R.G., 1968 Soma: Divine Mushroom of Immortality, Harcourt Brace
   Jovanovich, New York, N.Y.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

___________________________________

PETITION FOR WRIT OF CERTIORARI
_______________
____________________

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

        The Opinion of the Supreme Court of Iowa is reported as State v. Atley, 564 N.W.2d 817 (Iowa 1997), and appears in Appendix A to this Petition.   The unpublished written opinion of the District Court for Scott County, Iowa appears in Appendix B to this petition.  The oral denial of Petitioner's written pro se Motion to Dismiss - Religious Freedom appears, along with the motions in Appendix C to this Petition.

BASIS FOR JURISDICTION

        The Iowa Supreme Court's Opinion, upon rehearing, was filed on June 18, 1997.  This Court has jurisdiction to review the Judgment of the Iowa Supreme Court pursuant to Title 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

        Pursuant to Rule 14(f) of the Supreme Court Rules, the citation of relevant constitutional, statutory, and regulatory provisions involved are listed here, while the pertinent text is set out in the Appendices D, E and F to this Petition.

        First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

        Iowa Statutes:

Code of Iowa § 124.101(13)(c)

Code of Iowa § 124.101(16)

Code of Iowa § 124.204(4)

Code of Iowa § 124.204(4)(p)

Code of Iowa § 124.204(4)(s)

Code of Iowa § 124.204(8)

Code of Iowa § 124.208(3)(e),(f)

Code of Iowa § 124.401(1)(b)

Code of Iowa § 124.401(1)(c)(6)

Code of Iowa § 124B.2(c)

Code of Iowa § 205.5

Code of Iowa § 453B.12

        Florida Statutes:

Drug Abuse Act § 893.03(1)(15) - [now § 893.03(1)(c)(28)]

Drug Abuse Act § 893.13(1)(a)(2)

STATEMENT OF THE CASE

I.        LEGISLATIVE BACKGROUND
        During the 1960's drug use and abuse came to the forefront of American consciousness -- for those involved, and for those who saw mind-altering substances as dangerous to our way of life.  Congressional response began in 1965, when Congress gave power to the Secretary of Health, Education and Welfare to amend the list of regulated drugs to include "any drug which [he] after investigation has found to have, and by regulation designates as having, a potential for abuse because of its depressant or stimulant effect on the nervous system or its hallucinogenic effect ..."  Drug Abuse Control Amendments of 1965, Federal Food, Drug and Cosmetic Act, § 210(v) (1965).

        Following that mandate, the Secretary added LSD, peyote, psilocybin, mescaline and DMT to the list of controlled substances.  21 C.F.R. § 166.3(C)(3) (1966).  It is noteworthy that both mescaline, the chemical found in peyote, and the plant peyote were listed.
        In 1970 Congress passed the Controlled Substances Act, 21 U.S.C. 801 et seq. ("C.S.A.") in an effort "to deal in a comprehensive fashion with the growing menace of drug abuse in the United States."   H.R. 1444, 91st Cong. 2d Sess. 1 (1970).  Title II of the Act contains the schedules of controlled drugs and the criminal penalties for their possession and sale.   Title I deals with treatment and rehabilitation.  Both of these Titles were considered in public hearings before the Subcommittee on Public Health and Welfare of the Committee on Interstate and Foreign Commerce during February and March 1970.   Following the hearings, the Subcommittee held 37 executive sessions and reported out the bill, H.R. 18583, to the full committee, which considered it in eight more executive sessions.  Id. at 12.
        The House Ways and Means Committee also considered similar bills, H.R. 13742 and H.R. 17463, insofar as the legislation relates to import and export of controlled substances.  Id.
        H.R. 18583, which became P.L. 91-513 initially scheduled only those drugs which had already been controlled by law or regulation.  A number of drugs have since been added to the schedules in the manner set forth below.   The classification of psilocybin, psilocin, LSD and the other hallucinogens scheduled by the Secretary of HEW under the authority of the 1965 law has not changed since the Act was passed.
        In a review of the records of the public hearings on the Act, no mention of psilocybin, psilocin, mushrooms or fungi was found.   There is considerable comment on LSD "and other hallucinogens."   However, of the "others," only peyote appears to have been singled out for specific discussion, usually because of questions raised by the Native American Church.  Other drugs receiving scattered attention were marijuana and amphetamines.
        The Act of 1970 set up a process whereby the attorney General may add to, delete from, or reschedule any drug she thinks should be controlled.  Changes in the schedules may be made only after a hearing, which the Attorney General, the Secretary of HEW, or any other interested party may request.   21 U.S.C. § 811(a),(b).  This principle rule was stressed in the DEA's Final Order in the Matter of Petition of Carl Eric Olsen, dated May 16, 1994, No. 92-1109, (affirmed, No. 94-1605, D.C. Cir., Oct. 6, 1996):

Under the CSA (Controlled Substance Act) the regulation of chemicals and the plant material are distinct from each other.  The classification of delta-9-THC has no bearing on the classification of marijuana.  Under the CSA, a proposed change in the scheduling of either THC or the plant material requires the Attorney General to proceed independently.

        In the case of the Act, or the Iowa Statute, it must be noted that the plant Petitioner had, mushrooms, is not listed as one of the controlled substances.
        It is not difficult to argue that Congress, the Secretary of HEW and the DEA never intended to place mushrooms within the list of controlled substances.  In other cases of plants and the substances contained within, both were listed.  This is indicative that when they wished to outlaw a plant, they did so specifically, and not just by listing a chemical found to be an endogenous part of the natural plant.  [i.e., marijuana & THC; peyote & mescaline; coca leaves & cocaine; opium poppies & opium; Tabernanthe iboga & ibogaine.]   Congress specified what plants it deemed proper to control.  They did not designate any plant, mushroom or fungi on the list that Petitioner was involved with.
        Subsequently, all but two states (New Hampshire and Vermont) have adopted the Federal Model Controlled Substances Act with little individual State Legislative discussion or change.  Thus, the legislative history, supra, is applicable to those 48 states who have adopted the Model Act.  However, it should be noted this is not true of the sentencing, or treatment, provisions.   Penalties vary widely between the individual states, and the state's and federal statutes, as does method of determining the penalty.  But, as to the substances prohibited in the "Schedules," the language defining the offenses, and the placing of substances in the schedules, they are all virtually identical, with only minor differences.

II.        JUDICIAL BACKGROUND
        In 1978 the Florida Supreme Court, in Fiske v. State, 366 So.2d 423 (Fla. 1978) held an essentially identical statute to the Iowa Statute in question to be unconstitutionally vague as applied to the non-specific mushrooms.  Finding the statute made no mention of any mushroom, and were not a "material," they held that "in capsule, pill or similar form" the psilocybin statute could be applied constitutionally, where it could not in regards to a mushroom in its natural state.  Fiske, supra, at 424.
        Following Fiske, 4 State Appeals Courts have considered the same issue, with different results: People v. Dunlap, 422 N.E.2d 1379 (Ill.App. 1982); State v. Justice, 704 P.2d 1012 (Kan.App. 1985); State v. Patterson, 679 P.2d 416 (Wash.App. 1984); and Bemis v. State, 652 N.E.2d 89 (Ind.App. 1995).  Also, one Florida Court of Appeals, State v. Savrda, 679 So.2d 363 (Fla.App. 4 Dist. 1996) (Upholding dismissal of mushroom charges "based on the authority of Fiske.")  One Court of Appeals ruled on a slightly different, related issue, State v. Wohlever, 500 N.E.2d 318 (Ohio App. 1985) ("Psilocybe mushrooms are not among substances proscribed by statute.")  The only other state Supreme Court, besides Florida's, to consider the issue has been the Iowa Supreme Court in the Petitioner's case, and the Opinion is in disagreement with that of the Florida Supreme Court's.  No Federal court is known to have considered the issue.

III.        PETITIONER'S CASE
        On July 11, 1994, the Quad-City Metropolitan Enforcement Group (MEG) executed a consent search at Petitioner's residence in Davenport, Iowa.  The MEG officers seized a large number of Mason jars containing mushroom cultures and mushrooms, and some dried mushrooms.  No equipment for extracting the chemical substance from the mushrooms was found, and no extracted, or isolated chemical substance was found.  All mushrooms were in their natural state, either fresh or dried.  They had not been processed in any manner.
        Pursuant to State Lab test results showing that some of the mushrooms and cultures endogenously contained the controlled substance psilocybin, charges were filed in the Scott County, Iowa District Court, as follows: Manufacture of a Controlled Substance (Psilocybin), § 124.401(1)(c)(6); Possession of a Controlled Substance with Intent to Deliver (Psilocybin), § 124.401(1)(b); Failure to Affix Tax Stamp (Psilocybin), § 453B.12, and several unrelated, (to this Petition), offenses.
        Several pretrial motions were filed by Petitioner's court-appointed attorneys, as well as numerous pro se motions.  On Dec. 30, 1994, a Motion to Dismiss Counts I, II & III: Violation of Right to Due Process was filed.  On May 24, 1995, a hearing was held in Scott County District Court before Judge James R. Havercamp on this, and other, motions.  On May 25, 1995, a written Opinion denying the motion was filed.  [See Appendix B.]
        On June 2, and 5, 1995, Petitioner filed several pro se motions due to his court-appointed attorney's failure to do so, and due to a conflict of interest in that his attorney had just been hired as the drug prosecutor for Scott County on June 1, 1995.  The motions relevant to this Petition, filed pro se, were: Motion to Dismiss, based on absence of legislative intent to control psilocybe mushrooms; Motion to Dismiss - mushrooms specifically excepted; Motion to Dismiss - void-for-vagueness and overbroad; and a Motion to Dismiss, based on violation of the First Amendment Freedom of Religion and the RFRA (which the judge ruled was "preserved for appeal" when she denied the motion).  These motions, and all others (including the Attorney's own Motion to Withdraw due to the Conflict of Interest) were denied by the trial judge, Bobbi M. Alpers, on June 5, 1995, just prior to the start of the jury trial.   [The Religious Freedom motion and trial transcript appear in Appendix C.]
        Throughout three-and-a-half days or trial testimony there was a complete absence of any evidence that the Petitioner intended to, or acted to, extract from or process the mushrooms in any way.  All mushrooms were in their natural state.
        Testimony at trial, by the MEG officers, was given that Petitioner told them he was an expert on "the law governing" mushrooms, Atley, at 831-832, and that he was growing many types of mushrooms "for medical and scientific purposes," Atley, at 822, during the search of his residence.  He also told them he had examined the law and that no mushrooms were illegal.
        The Jury returned a verdict of guilty on June 8, 1995.  The Petitioner was sentenced to a term of incarceration equal to 20 years on June 27, 1995.  A notice of Appeal was filed that day.
        On direct appeal to the Iowa Supreme Court, Petitioner's attorney raised several issues, the Due Process, void-for-vagueness violation being one of them.
        On Jan. 22, 1997, a panel of 5 Iowa Supreme Court Justices filed a 15 page Slip Opinion affirming Petitioner's convictions.
        On Feb. 4, 1997, Petitioner filed a pro se Petition for Rehearing with the Court claiming that the court has made several errors in its Opinion as follows:

  • That they had failed to address the Conflict of Interest issue under the Sixth Amendment, Holloway and Cuyler.
  • That they failed to address many of the arguments made in the appeal briefs on the void-for-vagueness issue; had sua sponte raised a standing issue not raised by the State; had failed to note the Religious Freedom Motion in the Appendix, or the arguments on Religious Freedom; and they had failed to apply a proper void-for-vagueness analysis.

        The Iowa Supreme Court, on Feb. 13, 1997, "invited the State to file a written response," which the State did.   Petitioner filed a pro se Reply Brief to the State's Response.  On March 20, 1997, the Iowa Supreme Court, en banc, granted the Petition.  [The Petition, Order and Final Opinion appear in Appendix A.]
        On June 18, 1997, the Iowa Supreme Court, en banc, filed its amended Opinion, supplanting their 15 page Slip Opinion of Jan. 22, 1997, with a new 40 page Opinion, including an 11 page dissent by three Justices on the Sixth Amendment issue.  The Opinion in the other issues remained, essentially, the same.   [This is reported as State v. Atley, 564 N.W.2d 817 (Iowa 1997).]
        Petitioner presented to the Iowa Supreme Court the same arguments that follow in this Petition.  The Opinion failed to address many of Petitioner's arguments, and instead, adopts the faulty logic, and improper analysis, of several Courts of Appeals, misinterprets the Florida Supreme Court's Opinion in Fiske, rejects their conclusion, and contradicts itself by failing to find standing to facially challenge the statute, stating there's "no basis in the record" for the First Amendment claim, Atley, at 833, after noting, in the Sixth Amendment issue, that Petitioner raised a Religious Freedom issue at the trial level, Atley, at 825. [FN#1]
        [FN#1] Petitioner has been a member of The Fane of the Psilocybe Mushroom, a Canadian Chartered Church, since 1984, [Affidavit of The Fane appears in Appendix I], and of the Sacred Mushroom Church, [Affidavit of Petitioner appears in Appendix I].
        Nevertheless, the Opinion they made, essentially, is that cultivation of the non-specified mushrooms, along with Petitioner's "knowledge" that they contained psilocybin, made the statute constitutional "as applied."  They failed to make a true void-for-vagueness analysis, or even address many of Petitioner's arguments.
        The Iowa Supreme Court's decision rests on the statute's phrase in Iowa Code § 124.204(4)(s) that "any material, compound, mixture, or preparation which contains ... psilocybin" encompasses whole mushrooms in their natural state.  Specifically they state: "Certainly a psilocybe mushroom is a 'material containing psilocybin,' under the ordinary and reasonable use of these words."  Atley, at 831.  They never address Petitioner's arguments, fully briefed, as to the "absurd results" such interpretation would lead to; its possible effects on the Native American Church or Petitioner's religion; or the possible law enforcement problems with such a broad interpretation.  These same arguments are presented within this Petition, and under a proper Chapman, infra, type of analysis, the Iowa Supreme Court's Opinion must fail.
        The Iowa Supreme Court's conclusion, Atley, at 831-832, that "material" is not vague for a person who "knows" a non-specified plant, the mushrooms in this case, endogenously contain a minute amount of a controlled substance, would outlaw, by implication, the cultivation of untold numbers of perfectly legal plants and organisms "known" to contain such substances.   Some of these are Morning Glories, Silver Maple trees, sensitive plants, San Pedro cacti, common forage grass, lettuce, certain toads ... just to name a few.  [A Chart is provided in Appendix G with an extensive Scientific Authority section in Appendix H for reference to the many plants and organisms that endogenously contain a controlled substance.]  Each and every one of these would be illegal for Petitioner, or anyone else who also "knows" their endogenous constituents, under the Iowa Supreme Court's Opinion that the term "material" covers non-specified plants in their natural state.  No showing of any overt act, or intent to act, in violation of the statute's defined prohibitions needs to be shown under the Court's Opinion - and none was shown in Petitioner's case.
        This is in direct opposition to the Florida Supreme Court's Opinion that "material" does not advise a person of common and ordinary intelligence that an unlisted plant is illegal, and that "material" could only be applied constitutionally "in capsule, pill or similar form ..."   Fiske, supra, at 424.
        The Iowa Supreme Court's interpretation of "material" violates the Due Process protections of the Fifth and Fourteenth Amendments by being so vague and overbroad that it would (1) lead to "absurd results" by outlawing much of the life-forms on this planet; (2) result in overbreadth, giving law enforcement virtually unlimited power to arrest and imprison almost every citizen on an ad hoc and subjective basis; and (3) threaten the First Amendment rights of several religions, including Petitioner's.
        Since the Model Controlled Substances Act of 1970 (revised 1990), has been adopted by most of the States in the Nation, the interpretation of the term "material" is relevant to 48 of the 50 States.    For these reasons, as well as the arguments that follow, Petitioner respectfully believes this Court should issue a writ of certiorari to review the Opinion of the Iowa Supreme Court.

REASONS FOR GRANTING THE PETITION

I.    This Court should grant certiorari as the Opinion below conflicts with the Opinion of the Florida Supreme Court and conflicts with this Court's previous decisions for the interpretation of terms used in a statute that lead to "absurd results."

       A.    Iowa and Florida Supreme Courts Disagree

        The Iowa Supreme Court held that the term "material" as used in the Iowa Statute § 124.204(4)(s) in the phrase "any material, compound, mixture, or preparation, which contains ... psilocybin," encompasses an unlisted plant, the mushrooms Petitioner cultivated, since Petitioner knew they contained the substance psilocybin naturally.  Specifically they stated: "Certainly a psilocybe mushroom is a 'material containing psilocybin,' under the ordinary and reasonable use of these words." Atley, 564 N.W.2d 817, 831 (Iowa 1997).
        The Florida Supreme Court, in Fiske v. State, 366 So.2d 423, 424 (Fla. 1978), in examining a statute almost identical to Iowa's, found differently:

Section 893.03(1)(15), part of Schedule I, controls any material which contains a quantity of the hallucinogenic substance "psilocybin."  Section 893.13(1)(a)(2) makes possession of psilocybin a felony of the third degree.  The Statute makes no mention of psilocybe mushrooms or, for that matter, of any other psilocybic organic form that grows wild.  If the statute were to specify that psilocybin was contained in certain identifiable mushrooms and were to name those mushrooms, thereby apprising a prospective defendant that possession of those mushrooms is unlawful, it would not be unconstitutional as applied.

Fiske, at 424. (emphasis added)  In other words, had the statute specified mushrooms, or "psilocybe" mushrooms, the statute (law) would have been constitutional "as applied," to Mr. Fiske, in the (fact) situation of the case.
        Several jurisdictions since Fiske failed to note the Florida Supreme Court's statement that it was only because the statute failed to "apprise a prospective defendant" that mushrooms which contained psilocybin were unlawful that it couldn't be "applied."
        A Kansas Court of Appeals, in State v. Justice, 704 P.2d 1012 (Kan.App. 1985) adopted the faulty reasoning in People v. Dunlap, 422 N.E.2d 1379, 1385 (Ill.App. 1982) that "material," as commonly used, would advise a person of ordinary intelligence that Psilocybe mushrooms are illegal.   Neither Dunlap nor the Iowa Supreme Court addressed the "absurd results" that would lead to.  But more importantly, Dunlap erroneously applied a subjective element of fact without first doing a proper objective void-for-vagueness analysis of law.  Without fair warning that any mushroom is unlawful (law), scienter (fact) is impossible to form at all.
        The Justice Court, in a weak attempt to reconcile Dunlap's faulty reasoning, with the Fiske Court's void-for-vagueness type analysis, made a most curious interpretation of Fiske.

Of controlling importance in the Florida court's decision was the complete absence of any evidence that defendant knew that the mushrooms he possessed contained psilocybin.   The court did not strike down the statute as unconstitutional but held that it could not be applied to a defendant who was not shown to have criminal knowledge.

Justice, at 1016 (emphasis added).  It appears that the Justice Court lifted, word-for-word, the emphasized phrase, supra, from West Publishing's "[1]" syllabus and their heading notes.  This is not what the Florida Court said at all.  In fact they said, "if the statute were to name those mushrooms ... it would not be unconstitutional as applied" to Mr. Fiske.   Apparently, the Kansas Court failed to heed West's general disclaimer: "the syllabus constitutes no part of the opinion of the court ..."  The Iowa Supreme Court in Petitioner's case appears to just rubber-stamp the Justice recitation of West's erroneous syllabus.
        The language of the Florida Supreme Court is classic void-for-vagueness language, and principles.  There would have been no reason for that if "knowledge," or lack thereof, on Mr. Fiske's part, was the reason for the ruling, as is claimed in Atley, at 832-833.  No other court has realized the simple fact that the Fiske Court said, in the fact situation at hand, the statute would have been constitutional "as applied" if mushrooms were specified in that statute.  They went on to say that "in capsule, pill or similar form the statute may be applied constitutionally ..."  But as to whole, unprocessed, mushrooms:

The statute as presently framed, however, gives no information as to what plants may contain psilocybin in its natural state.  More particularly, the statute does not advise a person of ordinary and common intelligence that this substance is contained in a particular variety of mushroom.  The statute, therefore, may not be applied constitutionally to appellant.  It does not give fair warning that possession of the mushrooms possessed by appellant is a crime.  See Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 893 (1964); State v. Winters, 346 So.2d 991 (Fla. 1977).

        While the Opinion in Atley adopts the misinterpretations of Fiske, a recent Florida case, where the Defendant was shown to know what mushrooms he had, the State claimed Fiske didn't apply.  The lower court dismissed, and the State appealed.  In upholding the dismissal "based on the authority of Fiske ..." there was no doubt as to the meaning of Fiske, in State v. Savrda, 679 So.2d 363 (Fla.App. 4 dist. 1996).  The Iowa Supreme Court should have looked to the Court's Opinion in Fiske, or the the Florida Appeals Court, rather than the Kansas Appeals Court's.  In fact, they should have made a proper, de novo, void-for-vagueness analysis of the term "material" based on this Court's guidelines in Chapman v. U.S., 500 U.S. 453 (1991).
        While Fiske leaves some room for a more complete void-for-vagueness analysis, it is still the only Court in the United States to apply a proper constitutional analysis.  It is in direct conflict with the Iowa Supreme Court's, the only other Supreme Court to consider the issue.  No Court, though, has yet to consider the true problem with the interpretation of the term "material" such that it encompasses non-specified plants, such as the mushrooms Petitioner cultivated.  That problem is the term, so construed, leads inexorably to "absurd results."

        B.    The Iowa Supreme Court's Interpretation of "Material" and Common Usage Leads to Absurd Results

        With the several cases on this very issue of "material" being vague that have been brought, and with different results being found by the Florida Supreme Court and the Iowa Supreme Court, we have "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, [which] violates the first essential of due process of law."  Connally v. General Const. Co., 269 U.S. 385, 391 (1926).  This Court should now, specifically and unequivocally, do the first, and definitive, analysis of this issue.
        This Court has already decided that the term "mixture" or "substance," in Title 21 U.S.C. § 841(b)(1)(B)(v) of the federal statutes, as applied to LSD including the "carrier weight" that the LSD is mixed or diluted with, did not lead to an unconstitutionally "absurd result."   Chapman v. U.S., 500 U.S. 453 (1991).  The same type of analysis of the term "material" in the Iowa Statute being applied to a non-specified plant that endogenously contains a controlled substance will lead to quite a different conclusion.
        There are literally thousands of common plants, and living organisms, that would be outlawed for anyone "knowing" botany, chemistry, pharmacology, biology, or who is just well-informed, if "material" means any non-specified plant which "contains" one of the specified substances.   The mushrooms in this case are only one of them.  [See Chart A, in Appendix G, for a partial list of various plants and controlled substances.]  [Claims made, infra, in this Petition of an organism's natural chemistry used as an example will, hereinafter, be followed by a number(s) in a bracket [].  Bracketed numbers refer to a Scientific Authority, which appears in Appendix H, that support the claim made.]
        A few of the non-specified organisms, and the controlled substances they endogenously contain are: Morning Glory (Lysergic acid) [31, 32, 55]; Mimosa pudica, the "sensitive plant" (DMT) [68, 73, 98]; Psilocybe mushrooms (Psilocybin & Psilocin) [8, 24, 46, 47, 52, 103]; Bufo alvarius, the "Colorado River Toad" (Bufotenine) [29, 30, 36]; Acer saccharinum, the "silver maple" (DMT) [73]; Trichocereus pachanoi, the San Pedro cacti, and Trichocereus peruvianus, the Peru cacti (Mescaline) [6, 7, 28, 67, 74, 83]; Phalaris arundinacea & Phalaris tuberosa, wild grass - livestock forage grass (DMT & Bufotenine) [12, 41, 42, 43, 72, 88, 108]; and even Homo sapians, human beings (DMT, morphine & codeine) [25, 26, 27, 51, 90].  To even begin to say each of the above is illegal for the Petitioner, or any one, to cultivate or possess just because he "knows" they naturally "contain" a listed controlled substance is absurd.
        Giving the common meaning to the term "material" results in the opposite conclusion found in Chapman's analysis of the term "mixture" or "substance" in the Federal Sentencing Statute as applied to the "carrier weight" of a LSD "mixture."  A straightforward reading of Iowa Code § 124.204(4) does "produce a result 'so absurd or glaringly unjust,'" United States v. Rodgers, 466 U.S. 475, 484 (1984) (citation omitted), "as to raise a 'reasonable doubt' about Congress' intent."  Chapman, supra, at 463-464.
        It would be absurd to even argue that the statute was meant to outlaw all the plants and animals that endogenously contain a specified substance, and that includes mushrooms in this case.  If they are illegal to grow because the Petitioner "knows" they contain a minute quantity of psilocybin, what is the position of the Petitioner, and everyone who reads this Petition, in regards to the "knowledge" of vast numbers of organisms that naturally contain a specified substance but are not specified in the statute?  Is it illegal for Petitioner to grow Morning Glories?  Silver Maple trees?  Does the Petitioner have to buy a tax stamp for Bufotenine when he goes fishing with Colorado River Toads as bait and affix the tax stamp to the toads?  Is Petitioner going to be guilty of "Possession of Mescaline" to cultivate the San Pedro cacti in his home?   What is the charge if he helps a farmer cut and bale a field of Phalaris arcundinacea grass - "Possession with Intent to Deliver a Ton of DMT"?
        The Iowa Supreme Court's Opinion that "material" and the "knowledge" of a plant's endogenous make-up outlaws that growing of an organism, even if its not listed as illegal, is subject to the ultimate reductio ad absurdum argument; Since Petitioner "knows" his own body endogenously "contains" the controlled substance DMT, along with several other listed substances, does he now have to buy a tax stamp, affix it to his forehead, and turn himself in for destruction as a "controlled substance"?
        Since the use of the word "material" in such a manner as to encompass a mushroom not listed leads to the absurd outlawing of thousands of other organisms that naturally contain a listed substance "[w]e are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result."  Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Justice Scalia concurring in judgment).

        C.    The Better Interpretation of "material"

        It is axiomatic that all laws must be reasonably construed.  It would, therefore, be patently absurd for the government to try and make its case by arguing that cacti, toads and mushrooms seized in this case are illegal "containers," "mixtures," or "materials" containing the scheduled drugs.  Such an argument should fail because it stretches to ludicrous proportions the definition of "container," "mixture," or "material."  The average person would not naturally think of a plant or mushroom as a "container," "mixture," or "material."   In fact, such unnatural reductionist definitions would make possession of our own brains illegal for the simple reason that they endogenously contain DMT.

The Entheogen Law Reporter, Issue No. 2, Spring 1994, p. 8.

        In examining a statute, a term should be given its ordinary meaning, Moskal v. United States, 498 U.S. 103, 108 (1990), unless that would lead to absurd results.  For "material" to encompass a mushroom, the term must be interpreted broad enough to, at least, mean "an organism," perhaps so broad as to mean "anything."  The argument, supra, shows the absurd result obtained by that broad an interpretation, and thus, such an interpretation is unconstitutional.  Yet it must have some meaning since the legislature used it.
        Only in the most reductionistic and unnatural interpretation could a whole unprocessed mushroom, or any other plant, be considered to be a "material."  In fact, if the legislature intended the term "material" to be read so broadly as to include the whole mushroom, or other whole natural organisms, it should have used the term "anything."  It should be noted that the legislature used very specific terms in the listing: "Material, compound, mixture, or preparation."  The Legislature is presumed not to waste words or to use words that are redundant.  Given that fact, it is illogical to conclude that the term "material" is so encompassing as the Iowa Supreme Court contends; for it they were accurate, then only the word "material" would have been used.  Given such is not the case, the logic of the Iowa Court fails.
        Considering the rule that the legislature does not intend words to be redundant, there is a particular application in this case.  If the legislature intended the term "material" to include the natural plant, it would have intended the term "material" to be very broad and non-specific, akin to the ordinary scope of the term "anything."  If such were the case, then the legislature would not have used the other terms in the listing, i.e., "compound," "mixture" and "preparation," since the term "anything" or a broadened scope of "material" would have included those terms in the denotation of "anything.  The reason for this conclusion is that the one word, "material," would cover everything.  It follows, therefore, that the legislature's inclusion of the term "material," in a list of laboratory-type terms used together, would be meant to have "material" be related to the other terms.  The phrase, in tote, draws to mind a setting where chemicals, or controlled substances, are mixed, compounded, and prepared to produce "materials."
        Whether considered independently, or together, those words in the context of an anti-drug provision reasonably would be understood as applying to the wide array of binding agents, cutting agents, liquid suspensions, and the like, which are "part-and-parcel" of street drugs.  In other words, since the legislature does not "waste words" in constructing statutes, the inclusion of a list of terms connotes the intention to have each term mean something, not merely to be redundant.  The failure of the Iowa Supreme Court to realize this simple observation should not preclude this Court from a proper understanding.  The proper understanding being that the denotation of the term "material" is bound to a laboratory-type of context, and not the reductionist and over-general denotation found in the Iowa Supreme Court's Opinion in Atley.

        D.    legislative Intent

        This Court aptly noted, in Public Citizen v. U.S. Dept of Justice, 491 U.S. 440, 454 (1989):

        As we said in Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892): [F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet, a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act."

        Where the literal reading of a statutory term would "compel an odd result," Green v. Bock Laundry Machine Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989), we must search for other evidence of congressional intent to lend the term its proper scope.

        The rule of lenity should be used to construe an ambiguous statute of this type in favor of Petitioner.  Since "material," as interpreted by the Iowa Supreme Court, does lead to such absurd results, it raises a "reasonable doubt" about legislative intent.  Moskal v. United States, supra at 108.  The term "material" given the dictionary meaning of "consisting of matter," State v. Patterson, 679 P.2d 416 (Wash.App. 1984) (citing Webster's Third New Int'l Dictionary 1392 (1975)), would prohibit any and all of the plants and organisms which endogenously contain a listed substance, and such a broad scope could not have been the legislative intent.
        Further evidence that such was not the legislator's intent can be discerned by a review of the statute and the substances they did list.  Applying this Court's analysis in Chapman, supra at 454, ("Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence" [PCP] "and did not make that distinction with respect to LSD."); the legislative intent can be discerned in respect to mushrooms, where they "knew how to indicate that" a plant was prohibited "and did not make that distinction with respect to any mushroom.
        The legislature specified the plants it wanted to outlaw as well as their chemical: Peyote & mescaline; coca leaves & cocaine; Papaver somniferum L. (opium poppy) & opium and codeine; Tabernanthe iboga & ibogaine are all examples.  More telling of the legislative intent is marijuana, and THC, which are not only both listed, but in Iowa, and most states, the natural plant has a much less severe penalty than the extracted, (or synthesized) THC chemical it endogenously contains.
        The meaning of this double listing of certain plants, as well as their separated chemical speaks volumes as to legislative intent.   When the legislature wanted to outlaw a plant, they did so specifically.  Had they intended "material" to be so broad as to encompass "anything" there would have been no reason to list any plant at all.
        The DEA recognizes there is a difference in the statutes between a "substance of natural origin" and the chemicals it contains.   As pointed out in the DEA's Final Order in The Matter of Petition of Carl Eric Olsen, dated May 16, 1994, No. 94-1109, (affirmed, No. 94-16O5, D.C. Cir., Oct. 6, 1996):

        Under the CSA (Controlled Substances Act) the regulation of chemicals and the plant material are distinct from each other.  The classification of delta-9-THC has no bearing on the classification of marijuana.   Under the CSA, a proposed change in the schedule of either THC or the plant marijuana requires the Attorney General to proceed independently." (emphasis added) (Final Order appears in Appendix J.)

        The chemical, psilocybin, like THC, would have "no bearing on the classification" of the plant.  In this case, a plant, the mushroom, that is not scheduled at all.  [Perhaps due to psilocybe mushrooms which contain only a minute amount of psilocybin being the safest of all such substances, scheduled or not. Safer than coffee, alcohol, peyote, tobacco or marijuana.) [See Appendix K - Affidavits for more information.]
        As in Chapman, supra at 459, a reading of the statute confirms that "material" was not meant to be so broad as to encompass an unlisted plant.  The legislature has specifically enumerated certain chemicals, and where they desired, certain plants, as "controlled."  It is unreasonable to assume any other plant, any other chemical, or any other life-form is a "controlled substance" if not specifically listed as such.  No person of common and ordinary intelligence, in examining the statute, would come to the conclusion that silver maples, morning glories, or mushrooms were intended to be outlawed, even with the "knowledge" of their endogenously containing a listed controlled substance gained from this Petition.
        A simple test will confirm this.  Going to the statute with the "knowledge" contained herein, does the statute prohibit morning glories (Lysergic acid); San Pedro cacti (mescaline); sensitive plants (DMT); or mushrooms (psilocybin)?  Since none of these plants are listed we must look further to discern what the statute prohibits.  The Code of Iowa § 124.101(16), "manufacture" defined, says in part, "extraction from substances of natural origin" (of a scheduled substance) is prohibited.  But the language, "from substances of natural origin," indicates that the legislature intended to differentiate, and not outlaw, the "substances of natural origin" unless they specifically listed them.  The conclusion, of the person of common and ordinary intelligence, would be that it is legal to grow, possess, or sell morning glories, San Pedro cacti, sensitive plant - and there is no reason to conclude otherwise as to mushrooms.  Processing any of the above to "extract" the substances scheduled is what the statute clearly prohibits.  There would have been no reason for the phrase "extraction from substance of natural origin" if the legislature had not intended to differentiate between "legal plants of natural origin" and the scheduled substances obtainable by "extraction."
        The definition of "manufacture" can also be applied to "substances of natural origin" that are, themselves, scheduled.  With different statutory penalties for marijuana and THC, the legislature, as in Chapman, supra at 459, "clearly distinguished between the "plant" and the extracted chemical.  The intent is clear that a misdemeanor marijuana offense wasn't meant to become a felony THC offense simply by a person's "knowing" marijuana "contains" THC.  Without "extraction" of the THC, a marijuana offense is not a THC offense.  The legislature surely did not intend for their penalty differentiation to be subverted by the faulty reasoning found in the Iowa Supreme Court's Opinion.
        A further indication of legislative intent may be found in the definition of "drug" in the statute as "Substances, other than food, intended to affect the structure or any function of the human body ..."  Iowa Code § 124.101(13)(c).  This specifically says that a "food" (such as coffee, oranges, ginseng and others from which a chemical, if isolated and sold in "capsule, pill or similar form ..." would be regulated, or controlled) that "affects the structure or any function of the human body," is not a "drug" for purposes of the statute.
        More importantly, in seeking to find legislative intent, it would be fair to say that most people would think of a mushroom as a "food" and not a "material."  In addition, the common usage of "food" used to designate a mushroom, or other non-listed plant, does not lead to the "absurd results" that "material" does.
        The federal definition of "drug" includes the exact same paragraph.  Title 21 U.S.C. § 321(g)(1), and has long been looked to for what substances that if "extracted," would become a "drug."  One example is the ephedra plant, also known as Ma-Huang, which contains ephedrine endogenously.  While ephedrine has long been regulated, Iowa Code § 124B.2(c), it is only recently that the plant has been legislated in some states.   The point being, until the plant itself was listed, it was not regulated just because it "contained" ephedrine.  It had to be specified.  Fair warning had to be given.
        Mushrooms, like the ephedra plant, coffee, tea and ginseng are "food," and unless specifically prohibited would fall into the same category as any other food substance.  They are not a drug as the Iowa Code § 124.101(13) defines "drug."  See United States c. McCullough, 891 F.Supp. 422 (N.D. Ohio 1995) (Discussion on "food" as used in the phrase "Substances, other than food ...")
        Congress had to first designate tobacco as a "nicotine delivery system" before the FDA could exercise control over it.   Yet it has always, unquestionably, been a plant that contains nicotine.   Almost everyone "knows" it, and it would be fair to say it is used for the nicotine drug, at least in part.  In Iowa, it is a felony offense to sell nicotine.  Code of Iowa § 205.5.  Yet it would be absurd to allow a prosecution for "Sales of Nicotine" to go forward against every grocery store, gas station, or all of the other outlets selling cigarettes.  Up until recently nicotine was only controlled in its "extracted" form, in "materials" such as "capsules, pills and similar form," Fiske, supra, at 424. (i.e., nicotine patches and gum).
        While now that Congress has labeled cigarettes a "nicotine delivery system," and they can be regulated by the FDA, "fair warning" has been given the manufacturers that cigarettes are so designated.  As Action on Smoking and Health v. Harris, 655 F.2d 236, 241 (D.C. Cir. 1980) ("Labeling or banning cigarettes is a step that can be take [sic] only by the Congress.") points out, "if the statute requires expansion, that is the job of Congress.")  If the legislature wanted to outlaw a mushroom, they would have done so, as they did with other plants, and as is required by the protections of Due Process
        When all of the above is considered, Code of Iowa § 124, as a whole, cannot fairly be said to prohibit mushrooms.  An examination of the statute would find, at the most basic level, no mushroom (or morning glory, silver maple, sensitive plant...) is specified by the legislature who did list other plants as well as their chemical extracts.  The fact that mushrooms are most commonly considered a "food," combined with a reading of § 124.101(13)(c), a "drug" defined, further indicates legislative intent.  With a reading of § 124.101(16), "manufacture" defined, it becomes clear that the legislature did not intend to outlaw all "substances of natural origin" from which a prohibited chemical can be extracted, and that only those "substances of natural origin" they specified were meant to be outlawed.  Finally, "material," interpreted to encompass mushrooms in their natural state, leads to "absurd results."   All these factors, found in the statute in question, would cause any person of common and ordinary intelligence to conclude that a plant, not listed, is not illegal, no matter if the person contemplating cultivation or selling that plant "knows" what it contains as long as there is not intent, or overt act, to extract the controlled substance.  There is no evidence of such illegal act in this case.
        As an Ohio Court of Appeals noted in State v. Wohlever, 500 NE.2d 318 (Ohio App. 1985), where Ms. Wohlever was charged with "Sales of Psilocybe Mushrooms":

        The legislature has clearly detailed substances which are controlled and Psilocybe mushrooms are not among them.   (emphasis added)

As pointed out, supra, before a defendant can have scienter, an issue of fact, the law must first, and fairly, warn of the prohibited conduct - or a "guilty mind" is legally impossible.
        This Court should grant certiorari to consider whether Petitioner's cultivation of mushrooms is no more prohibited than if he cultivated Morning Glories, sensitive plants, or any plant or organism not specified, regardless of his "knowledge" that they contain a controlled substance.  This Court should find that the legislature "clearly detailed substances which are controlled and Psilocybe mushrooms are not among them."  Wohlever, supra.

        II.    This Court should grant certiorari due to the National Importance, in that the interpretation of "material" to encompass non-specified plants would permit "a standardless sweep" and open up almost every citizen to arrest and imprisonment by giving unbridled license to law enforcement to "pursue their personal predilection" of arbitrary and discriminatory enforcement.

        While this Petition concerns an Iowa Statute, all states in the United States (except New Hampshire and Vermont) have adopted the Federal Model Controlled Substances Act in one of its forms.  Thus, this Court should consider the "Question Presented," once and for all the Nation.   While this issue has not been presented to a federal court as of yet, it has been presented to 6 State Courts of Review, with only two State Supreme Courts who have considered the issue, Florida and Iowa, disagreeing.  This Court should now take this opportunity to settle this disagreement due to the National importance of the dangers to all law-abiding citizens the issue presents.
        Statutes are created as a warning to law-abiding citizens of society's boundaries.  They are not intended to be a concealed trap to snare the well intentioned.  A citizen attempting to act within the clearly specified parameters of the law as to any of the number of "substances of natural origin" "known" to "contain" a controlled substance would not find the statute to give fair warning that any mushroom is illegal.
        Petitioner does not question the State's power to regulate potentially hazardous drugs.  In considering the validity of a given statute, this Court should also consider whether the statute is sufficiently specific to provide guidelines to its enforcement, and whether it is narrow enough that the enforcement is not arbitrarily applied to certain members within the class affected by it.   In Papachristou v. City of Jacksonville, 450 U.S. 156 (1972), this Court struck down a Jacksonville, Florida vagrancy ordinance, noting that not only did the statute not give fair notice to potential offenders, but that the vagueness permitted and encouraged an arbitrary and discriminatory enforcement of the law.  See also, Giaccio v. State of Pennsylvania, 382 U.S. 399 (1966).  For the Nation as a whole, the dangers inherent in the enforcement prong of the Due Process analysis is, perhaps, the most important reason for this Court to grant certiorari.
        The defect in the Iowa Supreme Court's reasoning, pointed out supra, also means that no guidelines are provided to law enforcement personnel.  But more importantly, the problem with enforcement is the potential for arbitrary action.  This is more a matter of overbreadth, as in Papachristou, supra, where a great many activities fell within the language of the vagrancy ordinance, and by selectively enforcing it the police were able to use the ordinance for other purposes.  The statute under which Petitioner was convicted clearly lends itself to arbitrary enforcement.  By its terms, as interpreted by the Iowa Supreme Court, it applies to all property owners, garden shops, farmers, and anyone who can be shown to have "knowledge" of a plant's natural make-up which they happen to be growing, and who fail to destroy such plants.
        The broad interpretation of "material" violates the minimal guidelines for enforcement doctrine by "setting a net large enough to catch all possible offenders" that this Court warned about as far back as United States v. Reese, 92 U.S. 214 (1875), or as recently as Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.")  As warned about in Kolender, supra, the term "material" in Iowa Code § 124.204(4),

... "furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecution officials against particular groups deemed to merit their displeasure,'" Papachristou, 405 U.S., at 170, 92 S.Ct., at 847-848 (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940)), and "confers on police a virtually unrestrained power to arrest and charge persons with a violation."  Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J., concurring in result).

Kolender, at 360.
        While the government is expanding the "get tough" approach to the drug problem, the scientific revelations in this Petition point to how wide the interpretation of "material" might allow "harsh and discriminatory enforcement."  The interesting fact that the illicit drug DMT is a mammalian neurotransmitter [25, 26, 27, 90] raises important legal considerations.   Moreover, diazepam (trade name Valium) has been found to occur in rat brains [109] and in trace amounts in wheat grains [109], and "diazepam-like compounds" have been found in bovine urine [63].  The controlled opiates morphine and codeine have been found to be normal components of human cerebrospinal fluid [21], and morphine has been found to be a trace constituent of cow and human milk [51].  Trace amounts of morphine have been detected in "various plants such as hay and lettuce" [34, 50].  Some, such as the forage grass, Phalaris arundinacea, which contains DMT [43, 88, 108] are common articles of commerce which may be purchased by the truckload.   Since a person would have to remain ignorant of all botany to avoid "knowledge" of certain plant's endogenous contents, a large portion of the population of the Nation could be prosecuted at the whim of law enforcement.
        With law enforcement armed with an interpretation of "material" broad enough to include mushrooms, which, by implication includes all of the above plants and organisms, where does this leave the concept of specific guidelines for enforcement?  If morphine occurs in hay and lettuce, in every one of our bodies, even in all the milk sold ... on what basis can a cultivator of mushrooms be punished, without also punishing cultivators of lettuce and hay, tobacco growers, flower growers, and the corner Mom and Pop grocery for illicit trafficking in controlled substance?  [Perhaps the Court will discern an Equal Protection violation in Petitioner's convictions as well.]
        As this Court said 25 years ago in Graynard v. City of Rockford, 408 U.S. 104, 108-109 (1972):

A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

        Not only should this Court declare the statute unconstitutional on the grounds that it does not provide adequate notice and that it encourages arbitrary enforcement, but in addition there is no good reason to uphold the Iowa Supreme Court's interpretation of "material."  The very failure to give notice defeats the aims of the government in enacting such a statute.  If the aim is deterrence of the particular behavior which is harmful to the individual, the statute is totally ineffective in deterring that behavior if the behavior is neither identified in the statutes nor discernible by examination of the statute.
        By the same token, if the goal of the government is prevention of potential harm to the public done by persons in regards to controlled substances, such harm, again, is avoided only if the potential offenders are aware of the prohibited act.
        Finally, if the aim of the statute is to provide sufficient guidelines for enforcement, to protect the public, the statute is actually harmful, as it gives law enforcement virtually unlimited power to arbitrarily and discriminatorily arrest and imprison almost any citizen, seize their property, and all because of the extreme overbroadness of the statute, as interpreted by the Iowa Supreme Court, as to the scope of "material."
        But it is this Court's own words, in Kolender, supra, at 360, that speak most eloquently to the constitutional importance of this Petition:

        Appellants stress the need for strengthened enforcement tools to combat the epidemic of crime that plagues our Nation.  The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government.  As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.  See Lanzetta v. New Jersey, 306 U.S. 452, 54 S.Ct. 618, 83 L.Ed. 888 (1939).

        The statute, as presently framed, without this Court's determination as to the scope of the term "material," not only fails to accomplish the legislative goals, under the Iowa Supreme Court's Opinion, it is a threat to the right to Due Process and to the protections afforded by the Constitution.

        III.    This Court should grant certiorari to consider if the statute is unconstitutionally vague and would threaten the First Amendment rights of several religions, including Petitioner's.

        No right has been more cherished, or is more deeply held to be fundamental, than the First Amendment right to freely exercise one's religion.  The Iowa Supreme Court's interpretation of "material" opens up the possibility of police, prosecutors, judges and juries using such interpretation to persecute and prosecute protected religious practices by an arbitrary and discriminatory application of the statute in question.
        In 1965, when the Drug Abuse Control Amendments were enacted, the first legislative action exempting the Native American Church's use of Peyote was issued.  It is instructive to note that the Food and Drug Administration (the agency then concerned with drug enforcement) saw no need for such an exemption.   In a letter to chairman of the House Committee on Interstate and Foreign Commerce, Congressman Harris, they stated:

If the church is a bona fide religious organization that makes sacramental use of peyote, then it would be our view that H.R. 2, even without the peyote exemption which appeared in the House-passed version, could not forbid bona fide religious use of peyote.  We believe that the constitutional guarantee of religious freedom fully safeguards the rights of the organization and its communicants.   (emphasis added)

11 Cong. Rec. 15, 977-978 (1965).  They had no doubts, at that time, that Constitutional protections were all that was needed.  Indeed, it would seem as clear as that.  After all, the Framers of the Bill of Rights guaranteed that right.
        The Congress scheduled both Peyote (Lophora williamsii), and mescaline, the active hallucinogenic chemical that peyote endogenously contains.  [10, 18, 19, 20, 60, 100]  Federal law, and 21 States (including Iowa), exempt peyote cultivation and sales to, or use by, members of the Native American Church (NAC).  Code of Iowa § 124.204(8); Title 21 C.F.R. § 1307.31.  While each State's exemption reads slightly differently they are all based on the Federal Government's example:

        The listing of peyote as a controlled substance in Schedule I does not apply to the non-drug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration.  Any person who manufactures peyote for or distributes peyote to the Native American church, is required to obtain registration annually, and to comply with all other requirements of law.

        Reading the pertinent section we find that Peyote, a listed controlled substance, is legal to possess and use by members of the Native American Church, and further, that anyone can legally manufacture and sell peyote to members of the NAC if certain requirements are complied with.
        A person cultivating peyote for NAC members, who has complied with the law, will not be charged with "Manufacture of Peyote."   It is not impossible to believe (but highly unlikely) that such a person does not know the peyote they cultivate contains the controlled substance mescaline, which is illegal for everyone.  Code of Iowa § 124.204(4)(p); 21 C.F.R. § 1308.11(18).   But simply gaining that "knowledge" should not allow an otherwise legal act to be changed to the illegal act of "Manufacture of Mescaline," peyote is a "material," according to the Iowa Supreme Court's interpretation, that "contains" mescaline, and the person can be shown to "know" it.   But that is exactly what was done in Petitioner's case.  Petitioner cultivated a plant, not listed as illegal at all, that his Church uses as religious sacrament.   He was prosecuted for "Manufacture; Possession with Intent to Deliver; and Failure to Affix a Tax Stamp ... Psilocybin."
        The NAC is not comprised of ignorant members living on the Plains in the 1800's.  Its members are lawyers, chemists, doctors, and spiritual leaders who surely "know" that peyote contains mescaline, which is illegal for them, as well as everyone else.  They should not be subject to arrest for "Possession of Mescaline," nor should the person growing the peyote for them, by the arbitrary and discriminatory whim of some law enforcement official who doesn't approve of their peyote religion and applies the Iowa Supreme Court's logic as a tool for religious persecution.
        Of course, if the grower extracts the mescaline from the "substance of natural origin" and sells it to a NAC member, perhaps in "capsule, pill or similar form," Fiske at 424, then that person is guilty of "Manufacture of Mescaline," and the Church member would be guilty of "Possession of Mescaline."
        Peyote is not the only cactus that contains mescaline.  [66,100].  At least 13 other varieties contain mescaline as well [2, 3, 7, 65, 67, 74, 83].  Of these, the San Pedro cactus {Trichocereus pachanoi), and the Peru cactus, (Trichocereus peruvianus) are the most common [7, 28, 74].  They are sold by such outlets as K-Mart's Garden Center.  Several religions are known to use them as a sacrament due to their legal status.
        The Trichocereus pervianus is not considered a controlled substance by the U.S.D.A.  They place several import controls, such as "... not more than 200 ... in a single shipment," and, "Import tax increased by 2/3 over other ..."  The Federal Government obviously doesn't consider them illegal just because they contain the controlled substance mescaline.   The Peru cacti is legal, just as the mushrooms in Petitioner Atley's activities.
        Recently the Reverend Thane Eichenauer, a member of the Peyote Way church of God, a church allowed sacramental use of peyote in Arizona, wrote the Chandler Police Department.  Rev. Eichenauer was concerned as to the implication for his religious practices, as, while peyote is legal for his Church, mescaline is not legal for anyone.  He was concerned that "the government authorities in Iowa and Illinois," Atley and Dunlap rulings, "have taken the position that the word 'material' infers and includes any plants that contain an illegal substance."  He went on to ask:

        Since the San Pedro Cactus is known to contain mescaline, I would like to receive clarification as to whether ownership of a San Pedro cactus is illegal and what Arizona uses as a definition of "material".

        Responding to this inquiry, the Chandler Chief of Police, through Sgt. Jesse Boggs, S-22 Narcotics Unit, replied:

I received your correspondence in reference to the San Pedro Cactus (tricocerus pachanoi) you purchased at a local nursery, I reviewed your concern that the cactus may be illegal to possess due to it containing mescaline, a Schedule I controlled substance under ARS 36-2512.A3(O).

I spoke with Wayne Stewart, a Maricopa County Deputy Attorney, assigned to the Narcotics Bureau.  Mr. Stewart was unaware of any prosecutions undertaken for the possession of this cactus, but was not certain if this cactus was illegal to possess.  Mr. Stewart referred me to the Agriculture Department, Plant Services Division.

    This second paragraph punctuates that the term "material" causes this to be "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at this meaning and differ as to its application."  Connally v. General Const. Co., 269 U.S. 385, 391 (1926).  Even the prosecutor, specialized in Narcotics law, didn't know the answer to Rev. Eichenauer's question.  However, the person he referred Sgt. Boggs to did.  He goes on to write:

I contacted Jim McGinnis, chief Enforcement Officer with the Agriculture Department's Plant Services Division.  Mr. McGinnis assured me that the San Pedro cactus is perfectly legal to possess and you should not be concerned about any legal problems arising from the possession of this cactus.

[Letter of July 14, 1997, From Bobby Joe Harris, chief of Police; Sgt. Jesse Boggs, S-22, Narcotics Unit.]  [This letter appears in Appendix L to this Petition.]   Apparently "knowing" that San Pedro cacti contain mescaline wasn't important, at least not in Maricopa County, Arizona.  But it is no wonder that Rev. Eichenauer was concerned.  Petitioner is serving a 20 year sentence for what was essentially the same question: "Does 'material' encompass unlisted, unscheduled plants 'known' to contain a controlled substance?"  The answer in Florida, is "no."  The answer, according to the prosecutor in Maricopa County was "I don't know."  The answer of the person the narcotics officer turned to, is "no."  But the Iowa Supreme Court's answer is "yes."
        Had Rev. Eichenauer gone back and informed the nursery he purchased the San Pedro cactus at that the cactus "contained" mescaline, that "knowledge" wouldn't have brought "Manufacture and Sales of Mescaline" charges against the cultivator/seller - at least not in Arizona.  In Iowa, according to the Iowa Supreme Court's ruling, that's all that would be needed to place the nursery owner in a cell next to the Petitioner.  On the other hand, were the cultivator, or the Reverend, to "extract" the mescaline, then the statute's clear definition of "manufacturing" would be applicable.  The same should be true in Petitioner's case.
    Another religion, the Santo Daime, of Brazil, and other religions, use a combination of plants that contain DMT to prepare as a religious sacrament.  These churches flourish in South America and have members throughout the world.
        Their sacrament, a liquid brew called ayahuasca (eye-a-wasca) is an "extract" who's plant sources of "natural origin" varies from Shaman to Shaman, but one of the most common plants used is the leaf of the Psychotria viridis (DMT) [33, 84].  While the "substance of natural origin," the Psychotria viridis, is not listed as illegal in the United States, the DEA recently classified the brew made from it - "ayahuasca" - as a Schedule I controlled substance.  The curious part of that action is it would seem to Petitioner, who has studied the statutes, that ayahuasca, being DMT extracted into a brew, would be illegal without scheduling it, as it would be covered under the statutory definition of "manufacturing" as "extraction from substances of natural origin" - DMT.
        However, the DEA apparently thought it the better course to apprise persons of "common and ordinary intelligence" that the ayahuasca brew is illegal.  This is commendable and gives "fair warning."   But the plant, like the mushrooms Petitioner had, are legal, to grow or possess, as long as the act of "extraction" to produce the DMT brew (or psilocybin, the chemical) is not committed.  Petitioner committed no act in regards his mushrooms such that Psilocybin prohibition was violated.
        The Christian ayahuasca churches, such as the União do Vegetal (UDV) and Santo Daime (dime), enjoy some legal dispensation in Brazil owing to a favorable governmental decision.  [See: Herman, A.R. (Ed.) 1990 The Anti-Prohibitionist Review, No. 1, Jan. 1990.]  Thanks to the legal status of the Daime in Brazil, the Church has established itself in Spain and other European countries.  The DEA's response to ayahuasca may have been religiously motivated to keep these Churches out of the United States.
        In the Petitioner's case, a Motion to Dismiss Counts I, II & III - Violation of First Amendment was filed pro se just prior to the trial.  This motion was denied by the Trial Court, but was ruled "preserved for appeal."  [Motion and relevant Trial Transcript appear in Appendix C.]  The Iowa Supreme court acknowledged this in their discussion on the Sixth Amendment issue: "Atley also raised constitutional issues, including an alleged violation of freedom of religion, ..."  Atley, at 825.
        In Petitioner's pro Se Petition for Rehearing, [Appendix A], he addressed the sua sponte raising of a "standing" issue by the Court.  Petitioner claimed they had overlooked the Motion which had been in the Appeal Appendix, as well as the religious freedom arguments in the briefs.  But they seemed bent on making up whatever it took to avoid making a proper Due Process analysis of the statute.  In the revised Opinion of June 18, 1997, after having noted the religious freedom claim in their Sixth Amendment issue discussion, they inexplicably state:

        Atley asserts on appeal that the First Amendment guarantee of freedom of religion protects his use and possession of psilocybin, because he contends it is used as part of a religious ceremony.  Although such an argument may implicate an exception to the general rule of standing and serve as grounds to facially challenge a statute, we find his assertion to be meritless and without support in the record.  (emphasis added)

Atley, at 833.  The emphasized part above is a mystery since, as they themselves had noted it had been raised below, and they had the transcripts, if they had bothered to read them, where the Trial Court ruled the issue "preserved for appeal."  But then, this was a Court that failed to address most of the void-for-vagueness arguments made in the briefs, and held it wasn't a Sixth Amendment violation for the Trial Judge to force a lawyer who had been hired as the County Drug Prosecutor to defend Petitioner over everyone's objections.  As the Dissent stated, it was the majority's "zeal to uphold a conviction based on what it views as overwhelming evidence of guilt," Atley, at 839, that blinded them to fair consideration of any issue presented [See Justice Lavorato's Dissent, Atley at 834-839.]
        Since all Petitioner had in this case were mushrooms in their natural state, and cultures for growing them, he felt that prosecution for the mushrooms he cultivated for his Church and himself violated his First Amendment rights.  [See Affidavits in Appendix I.]
        While the RFRA was recently struck down by this Court in City of Boerne v. Flores, ____ U.S. ____, 117 S.Ct. 2157 (1997), and no longer applies, Petitioner's First Amendment, Free Exercise Cause, claim is still valid.   Also, the Establishment Clause and Equal Protection would be implicated since the statute is "facially preferential" to the NAC's use of peyote, a scheduled substance.  This only adds to the seriousness of the Due Process violation of the Petitioner being prosecuted for the unscheduled mushrooms.
        The history of the religious use of the Sacred Mushrooms goes far back. R.G. Wasson, in his book Soma: Divine Mushroom of Immortality [Harcourt Brace Jovanovich, New York, NY, 1968] has been accepted as proving that the god-plant Soma of the ancient Aryan civilization was the sacred mushrooms.  The Aryans swept down from the north into what is now Pakistan and Northern India in the second millennium B.C., and settled in the Indus Valley.  They composed a conan of sacred hymns called the Vedas, which have become the foundation of Hinduism.   The earliest of the four Vedas, the Rg Veda, deals at length with soma, which was at once a god, a plant, the juice of the plant, and the urine of a priest who had ingested the plant.  (Note: the active chemicals in the mushrooms are excreted relatively unchanged in the urine of one who ingests them.)
        In the New World, as early as 300 AD there are stone figurines of shamans with mushrooms from what is now Tenenexpan, Veracruz, Mexico.   [Ott, J., 1995.  The Age of Entheogens, The Angel's Dictionary, Natural Product Co., Kennewick, WA.]  Over 200 stone icons have been discovered in Central America, carved in the shape of mushrooms, with human or animal figures emerging from the "stems."  It has been suggested that these "mushroom stones" were emblematic to the Sacred Mushroom Cult in the Maya area.  These and other artistic representations show the Indians esteemed the mushrooms with the utmost awe and reverence.
        Quite a different attitude was expressed by Spanish friars like Sahgun to these "harmful little mushrooms that intoxicate the same way as wine."  [Sahgun, B. De., Trans. l950-1969.  Twelve volumes.  University of Utah Press, Salt Lake city, UT.]  As friar Motolinia (Motolinia, F. de, originally published in 1541), put it:

They called these mushrooms teunamucatlh in their language, which means "flesh of God," or of the Devil that they worshipped, and in this manner, with this bitter food, they received their cruel god in communion.

        Teunamucatlh, or "teonanacatl" was the name of the mushrooms in Nahuatl, the language of the Nahua, Mexica or Aztecs.   The word would translate more accurately as "sacred mushrooms."   We learn from the writing of the Spaniards that the mushrooms were bitter, induced visions, and that several species were known to the Indians.
        But this was the age of witchcraft, and on 19 June 1620 the Holy Office of the Inquisition formally decreed in Mexico that the ingestion of inebriating plants was a heresy, stating in no uncertain terms:

The use of the Herb or Root called Peyote ... is a superstitious action and reproved as opposed to the purity and sincerity of our Holy Catholic Faith ...  We decree that henceforth no person ... may use or use of this said herb, this peyote, or of others for said effects, nor others similar ... being warned that doing the contrary, besides incurring said censures and penalties, we will proceed against whoever is rebellious and disobedient, as against person suspect in the Holy Catholic Faith.

        Over the next 265 years, there were at least 90 autos de fe of the Inquisition for the use of peyotl, and numerous autos de fe involving teonanactl, the sacred mushrooms, [Wasson, R.G., 1980; The Wonderous Mushroom: Mycolatry in Mesoamerica, Harcourt Brace Jovanovich, New York, NY.], and obliuhqui, or morning glory seeds which, even more that peyotl or teonanacatl, attracted the brutal torture and hideous executions of the Inquisition.
        In modern America, the NAC is given an exemption of peyote use by the Federal Government and 21 states; morning glory seeds are sold openly, and grown by many home owners; and Petitioner sits in a prison cell where he has been sentenced to 20 years for his religious sacrament - and its not even listed as illegal.  While it is not the torture of the Inquisition, neither is it Due Process to be deprived of liberty without "fair notice."
        The more modern practice of using the sacred mushrooms as a sacrament to commune with the Divine is evidenced by the Canadian recognized and chartered religious organization, The Fane of the Psilocybe Mushroom, which Petitioner has been a member of since 1984.  [See Affidavit of The Fane in Appendix I], and the less formal Sacred Mushroom Church.
        There are religions that use: Morning Glory and Hawaiian Baby Woodrose seeds (both contain lysergic acid) [22, 23, 31, 32, 55, 57]; the San Pedro cacti; and a variety of other legal plants, including mushrooms.  The issue before this Court is not whether these "substances of natural origin" should be controlled.  The question is one of Due Process; the failure to provide "fair warning," and the lack of "minimal guidelines" that leads to the "personal predilections" of law enforcement that should be spelled out in the statute for persons of "ordinary and common intelligence" to be able to govern their conduct accordingly.  "If the statute requires expansion, that is the job of Congress."  Action on Smoking and Health v. Harris, 655 F.2d 236, 241 (D.C. Cir. 1980).
        The unbridled powers that the Iowa Supreme Court's interpretation of "material" confers, has lead to the selective prosecution of Petitioner, for a "psilocybin" offense, when all he had were mushrooms, and such an interpretation dances perilously close to the dangers argued herein of a vague law's allowing "harsh and discriminatory enforcement by local officials against particular groups deemed to merit their displeasure."  Papachiristou, 405 U.S. at 170.  Unlike the Spanish Inquisition in Mexico in 1620, the Constitution of the United states respects individual freedom, and protects its citizens through its safeguards.
        When a statute opens the door to such unrestrained power, as the Iowa Supreme court's interpretation of "material" does, and threatens First Amendment rights, strict scrutiny of the statute is required:

        In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.

Village of Hofmann Estates v. Flipside, 455 US. 489, 494 (1982); United States v. Powell, 423 U.S. 87, 92 (1975).  This is especially true when a statute is facially preferential to a specific denomination, such as the Iowa Statute's Peyote exemption for the NAC.  See Larson v. Valente, 456 U.S. 228 (1982); Hernandez v. CIR, 490 U.S. 680 (1989).  [Establishment Clause questions require strict scrutiny.]
        In the Iowa Supreme Court's interpretation of "material," the First Amendment rights of the Native American Church to use Peyote are threatened.  An overzealous prosecutor, who has personal predilections against, say, all peyote religions, could use the dangerous precedent set by the Iowa Supreme Court to impose his own beliefs against the NAC, thereby subverting the clear intent of the legislature to allow the NAC to use peyote and persecute, by prosecution, under the "mescaline" prohibition.  The Petitioner has already been so prosecuted for his cultivation of a non-specified, and hence legal, plant used as a religious sacrament, under the "psilocybin" prohibition.  Thus, the danger is not only possible, but in Petitioner's case, actualized.
        Due Process is violated without "fair warning."  But, more importantly, the "minimal guidelines" for enforcement is left so unclear, so vague, that the Iowa Supreme Court's Opinion opens up the door for abuses of many forms.  It leaves to police, and the courts, what is the providence of the legislature, who did not designate the mushrooms in this case as prohibited.  As this Court pointedly stated in Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 890 (1990), (as to peyote exemptions being a legislative responsibility):

It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.  (Statutes omitted)  But to say that a nondiscriminatory religious exemption is permitted, or even desirable is not to say that it is constitutionally required, and that the appropriate occasion for its creation can be discerned by the courts.  It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

        While, as this Court stated, a peyote exemption may even be "desirable," the ruling in Smith was that it wasn't constitutionally required.  But Due Process is constitutionally required.   Petitioner is not asking for an "exemption," as there is no law to be "exempted" from in regards to his activities.  Petitioner's convictions are a violation of the Fifth and Fourteenth Amendment protections, with First Amendment overtones.

CONCLUSION

        For all the foregoing reasons, the petition for writ of certiorari should be granted.

Dated: September 9, 1997

 

Respectfully submitted,

LEWIS J. ATLEY, Petitioner
#1074758-A
Anamosa State Penitentiary
406 North High Street
P.O. Box 10
Anamosa, Iowa 52205-0010