Release order short-lived in peyote case

A Utah County man charged with distributing the hallucinogenic plant peyote was ordered freed by a federal magistrate Tuesday — but that order was then stayed by a U.S. district judge, pending an appeal by prosecutors.

In a custody hearing Tuesday, U.S. Magistrate Judge Samuel Alba ordered the release of James "Flaming Eagle" Mooney, pending the outcome of 19 counts of distributing peyote he and his wife, Linda Mooney, face. Alba released Linda Mooney last week, also pending the outcome of the charges against them.

During a previous custody hearing, Alba expressed concern that Mooney's alleged use of peyote while facing state charges several years ago indicated the medicine man's violation of possible terms of release by a Utah district court judge.

During Tuesday's hearing, Mooney's defense attorney provided documents showing that a 4th District judge did not specifically forbid Mooney from using peyote while out on bail. After a four-year legal battle, the Utah Supreme Court ultimately ruled that Mooney and members of his Oklevueha EarthWalks Native American Church could use the controlled substance for religious purposes.

Federal prosecutors have said the Utah Supreme Court ruling has no bearing on their case, adding they believe Mooney is not a member of a federally-recognized tribe and is therefore violating federal law by distributing peyote to his members.

Immediately after Alba's ruling, the U.S. Attorney's Office filed a motion to appeal the decision with U.S. District Judge Ted Stewart, who stayed the order pending a future hearing.

Prosecutors say Mooney is "unstable" and a danger to the community. Witnesses have testified that Mooney threatened legal action if they worked with prosecutors investigating him and his wife.

In court Tuesday, Mooney's attorney pointed out that investigative reports by the court indicate Mooney has not used peyote since 2002 and that he and his wife have lived in the same place throughout their state prosecution.

Mooney will remain in federal custody until Stewart rules on the release order.

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