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court granted the injunction, enjoining the government frompreventing UDV’s importation of hoasca, and the 10th Circuitaffirmed (both a panel and an en banc majority).Held: The government must demonstrate a compellinginterest, at the preliminary injunction phase, to bar the sacramentalreligious use of a controlled substance. Per RFRA,the government must have a compelling interest and utilizeleast restrictive means where a statute places a substantial burdenon the exercise of religion. The Court held the compellinginterest test is expressly articulated in RFRA, and RFRA putsthe burden on the government. The government failed to provethis burden furthered a compelling interest. The Court rejectedthe government’s general reliance on Schedule I substances andtheir characteristics. The CSA allows the attorney general tomake exceptions and in fact there is a long-standing religiousexception for peyote, also a Schedule I substance. FurthermoreRFRA was a response to denial of a claim to a right to use acontrolled substance for sacramental purposes. The Courtdisagreed with the district court’s rejection of the government’sargument that barring the importation of hoasca was necessaryin order to comply with the United Nations Convention onPsychotropic Substances.FIFTH CIRCUITConditions of supervised release.United States v. Del Barrio, 427 F.3d 280 (5th Cir. 2005).Even though defendant had, upon a previous revocation ofsupervised release, been sentenced to 120 days’ confinement in acommunity corrections facility, his sentence (upon a subsequentrevocation of supervised release) of two years’ imprisonment— the statutory maximum sentence available upon revocationof supervised release for his underlying offense — was not anillegally severe sentence because the 120-day stint in the communitycorrections facility was intended to be a special conditionof supervised release, and not a term of imprisonmentcountable toward the available two-year maximum sentence;along the way, the 5th Circuit rejected the argument that districtcourts lack statutory authorization to order residence at, orparticipation in the program of a community corrections centeras a special condition of supervised release; even though 1996legislation on its face removed this as a permissible condition ofsupervised release, that removal was an inadvertent scrivener’serror resulting from the renumbering of some of the provisionsinvolved, for there was no indication that Congress intendedto remove the authority to order this particular condition ofsupervised release.Final order of deportation equals custody for purpose ofhabeas corpus.Rosales v. BICE, 426 F.3d 723 (5th Cir. 2005), cert. denied, 126S.Ct. 1055 (2006).An alien who is subject to a final order of deportation is“in custody” for purposes of habeas corpus litigation under 28U.S.C. §2241; district court thus erred in denying the petitioner’spetition on the ground that he was not “in custody”; however,whether defendant was “in custody” under §2241 was effectivelynow moot, because the REAL ID Act of 2005 stripped federalcourts of jurisdiction over §2241 petitions attacking removalorders, effective immediately and retroactively, with instructionsfor district courts to transfer pending §2241 actions tothe courts of appeals with instructions to treat them as if theywere petitions for review; 5th Circuit, agreeing with the 3rdand 9th Circuit, held that even pending §2241 appeals (likethis one) were properly converted into petitions for review;treating the case as if it were a petition for review, 5th Circuitfound that petitioner was entitled to no relief and hence deniedthe petition.Sufficiency of evidence in obscenity prosecution.United States v. Ragsdale, 426 F.3d 765 (5th Cir. 2005), cert.denied, 2005 U.S. App. LEXIS 21009 (5th Cir. Tex., 2005).(1) Evidence was sufficient to sustain defendants’ convictionsunder 18 U.S.C. §§1461 and 1463 for mailing obscene materials(either simulated or actual rape videos); the videos themselveswere sufficient proof of obscenity; there was no requirementthat the government produce expert testimony that the materialswere obscene even though a defense expert had testified to thecontrary, nor was the jury required to credit the defense expert’stestimony; court also rejected the argument that, because ofthe small deviant segment of society to which such tapes weretargeted, expert testimony was necessary to show that the tapesdid in fact appeal to the prurient interests of such persons; thematerials at issue were not so far removed from the realm ofrecognizable sexual conduct that the jurors would be incapableof assessing the prurient appeal of the materials; in any event,the defense’s own expert established that the materials wouldarouse certain individuals; finally, exercising its own independentconstitutional judgment as to the obscenity vel non ofthe materials at issue, court concluded that the videotapes inquestion were obscene.(2) In obscenity prosecution, district court did not abuse itsdiscretion in allowing allegedly obscene videotapes in Dutch andJapanese to go to the jury without requiring the governmentfirst to translate those tapes; court approved the reasoning of anIllinois district court’s opinion holding that, where substantial inamount, foreign text should generally be translated in order toallow the jury to make a finding as to obscenity; here, however,the “dialogue” was not so significant in magnitude as to makeit an abuse of discretion for district court to send untranslatedtapes to the jury.(3) District court did not abuse its discretion in excludingallegedly comparable visual materials purchased from a localadult video store chain and mainstream bookstores, or statisticsApril 2006 VOICE FOR THE DEFENSE 35