Bryan Epis -- #09636-097

Medical Marijuana Provider Sentenced to 10 Years

Petition to Pardon or Commute the 10-year Mandatory Sentence of Medical Marijuana Provider Bryan Epis. (.doc)

February 26, 2010 -- Drug War Chronicle (US)

Medical Marijuana: Bryan Epis Returned to Federal Prison, Must Serve Out 10-Year Sentence for Growing Pot for the Sick

Bryan Epis, the first California medical marijuana provider to be prosecuted and convicted for growing marijuana for patients, was sent back to federal prison Monday by a federal judge in Sacramento. Epis had served two years of his sentence before he was released in 2004 by an order of the 9th US Circuit Court of Appeals.

The now more than 12-year-old case began in 1997, when Epis was arrested for growing at least 100 marijuana plants in the basement of his Chico home. During his trial, Epis testified that he was growing for himself and four other medical marijuana patients, with any excess marijuana going to a medical cannabis buyers' club.

But based on business plans Epis had sketched out to expand on his garden and prosecutors' allegations he was only in it for the money, a jury in Sacramento found him guilty in July 2002 of growing more than 100 plants and conspiracy to grow more than 1,000 plants. He received a 10-year mandatory minimum sentence, in part because his house was within 1,000 feet of a local high school.

Epis served two years in federal prison before winning a ruling from the 9th Circuit that he should be freed pending the resolution of the landmark Raich v. Gonzalez case. Unfortunately for Epis, the US Supreme Court ruled in that case that federal drug laws trump state medical marijuana laws.

Epis was resentenced to 10 years in 2007, but had been free on $500,000 bail pending appeal. But the 9th Circuit decided against him in August, the US Supreme Court declined to review that ruling, and the end came Monday.

Federal prosecutor Samuel Wong, who has been Epis' bête noir since the beginning of the case, didn't let up Monday. He continued to insist that the case had nothing to do with medical marijuana. "As the court knows, this is not a medical marijuana case. That term doesn't ever apply to cases of this scope," Wong charged. "Mr. Bryan Epis grew and distributed large amounts of marijuana even before the law changed in California," he added, although Epis was never charged with that.

Attorney John Balazs, who represented Epis, asked that he be given a surrender date so that he could explore other means of overturning the conviction and sentence. But US District Court Judge Frank Damrell was having none of it. "It's over, Mr. Epis."

Epis was then taken to a holding cell as his girlfriend and daughter wept. If nothing happens to change things, he won't be free again until around 2017.

Last year, the US Justice Department made it department policy not to persecute medical marijuana providers in compliance with state law. But it has yet to stop the prosecutions of medical marijuana providers arrested before then or move to provide relief for those imprisoned after being convicted under Clinton and Bush-era policies.

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May 3, 2009 -- CA NORML (CA)

9th Circuit Upholds 10-Year Mandatory Minimum for Prop 215 Defendant Bryan Epis

Torture Judge Bybee Rules Against First U.S. Medical Marijuana Defendant

By Dale Gieringer

In an unpublished opinion, a three-judge panel of the Ninth Circuit Court of Appeals reaffirmed the 10-year mandatory minimum sentence of Bryan Epis on charges of conspiracy to manufacture marijuana. Epis' attorney, Brenda Grantland, says she will appeal for an en banc rehearing of the ruling by the full Ninth Circuit.

Epis was the first California medical marijuana patient to be prosecuted on federal charges. He was arrested in 1997, shortly after the passage of Prop. 215, while growing for a Chico patients' group. He was sentenced to 10 years for conspiring to grow over 1,000 plants (from a succession of grows, some of them never planted) in his Chico home.

Epis's attorney, Brenda Grantland, appealed his sentence to the Ninth Circuit on various grounds, including egregious prosecutorial misconduct, improper cross examination, improper denial of safety-valve relief from the mandatory minimum, and the unclarity of the law at the time of his arrest. The panel did not bother to hold an oral hearing, but issued an 11-page ruling denying the appeal.

The panel included the infamous Judge Jay Bybee, recently indicted as an international war criminal by Spain for having authored the DOJ's notorious torture memos.

Bybee was appointed before knowledge of his advocacy of illegal conduct by government agents became public.

Other judges on the panel were Hawkins (a former federal prosecutor), and Rawlinson.

Epis' supporters expressed shock at the opinion. "This is as an egregious miscarriage of justice with no conceivable benefit to the public," said California NORML coordinator Dale Gieringer.

"Bryan Epis believed he was acting lawfully. To imprison him for 10 years is the kind of sentence one might expect only from judges who countenance torture."

The opinion, dated April 08, 2009, may be viewed at: http://www.canorml.org/temp/Epis_opinion.pdf

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September 15, 2007 - Sacramento Bee (CA)

Same Term For Pot Grower

Man Again Gets 10 Years in Medical Marijuana Case

By Denny Walsh, Bee Staff Writer

For the second time in five years, Bryan James Epis, the first person associated with a California cannabis buyers' club to be tried in a federal court for growing marijuana, was sentenced Friday in Sacramento to 10 years in prison.

But U.S. District Judge Frank C. Damrell Jr. denied prosecutor Samuel Wong's request that Epis, 41, be taken into custody immediately. Instead, he set an Oct. 22 hearing on defense attorney Brenda Grantland's forthcoming motion for bail, pending appeal.

Damrell indicated he is leaning toward release, noting that he believes the 9th U.S. Circuit Court of Appeals "may have some interest" in issues that Grantland will bring before it.

Grantland told Damrell that, when she previously argued before a three-judge circuit panel, its members were "very interested" in her contention that there was prosecutorial misconduct and perjury by narcotics officers during Epis' 2002 trial.

She is insistent that Wong and the agents deliberately distorted the meaning of documents seized in Epis' house when it was searched June 25, 1997. Wong is equally insistent that he and his agents, with their expertise, are correctly interpreting that Epis had a statewide marketing plan for his marijuana operation.

Damrell also pointed out that the appellate court three years ago ordered Epis released pending appeal after he had served 25 months of the 10-year sentence imposed in October 2002. He has been free since then.

A month earlier, the 9th Circuit had ordered the lower court to reconsider Epis' conviction, taking into consideration a U.S. Supreme Court ruling in another medical marijuana case. Friday's sentencing was a result of that order.

The circuit panel issued the order to release Epis "without comment," Damrell recalled, calling that "unprecedented in my experience. The law requires such an action be supported by exceptional circumstances, so I can only assume that they found exceptional circumstances.

"My suspicion is the 9th Circuit would grant bail again," the judge added.

The prosecutor argued that the circuit court released Epis because he failed to file an opposition to Grantland's motion for release.

In July 2002, a jury found Epis planned to eventually grow at least 1,000 marijuana plants and that he did grow at least 100 plants in the spring of 1997 at his Chico residence. The fact that the house is within 1,000 feet of Chico Senior High School is one reason Epis is not eligible for a term less than 10-year mandatory minimum attached to the 1,000-plant conviction.

"The result is somewhat inevitable in these types of cases," Damrell remarked Friday before he imposed sentence.

The judge made formal findings that Epis lied when he was debriefed by Wong and the agents, and that he was the "linchpin" of the marijuana growing operation in the basement of his Chico house.

Epis testified at trial that he started using marijuana to manage chronic pain from a near-fatal car accident. He also testified that he started the growing operation after California voters approved Proposition 215 -- the initiative that allows medicinal use with a doctor's recommendation -- in November 1996.

He testified that he and four other people with doctors' recommendations were growing the pot for their personal use. Any leftovers were given to a Chico cannabis buyers' club that he helped establish, he said.

The Epis case remains a rallying point for medical marijuana proponents nationwide, who view it as the ultimate injustice to come from the chasm between state law and the zero-tolerance federal law.

"If Proposition 215 had not passed, I wouldn't be standing here today," Epis told Damrell on Friday. "I'm being prosecuted because I have a heart. I've seen too many people suffer and die from cancer and AIDS not to try to help them. I'm not ashamed of what I did, but I am sorry for my family."

Wong said that Epis' "goal was to go statewide and use Proposition 215 as a shield to manufacture and traffic marijuana." The prosecutor said Epis was motivated by profit not altruism.

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June 21, 2007 - Chico News & Review (CA)

Caught In The Middle

After A Decade Of Legal Wrangling And More Than Two Years In Prison, Med-Pot Pioneer Bryan Epis Faces A Return To Prison

By Robert Speer

Today (Thursday, June 21) at 9:30 a.m., Bryan Epis will walk into the Sacramento courtroom of federal District Court Judge Frank Damrell Jr., where he is scheduled to testify once again in his marijuana-cultivation case.

Epis' case began with his arrest 10 years ago almost to the day and still isn't resolved. What started out as a small-time bust has become a legal roller-coaster ride, made Epis a hero among med-pot activists, and raised serious constitutional issues.

It all goes back to June 25, 1997, when sheriff's deputies raided Epis' home on West Francis Willard Avenue in Chico, where he was growing marijuana plants in his basement. The pot, Epis insisted, was meant for sick people with doctors' recommendations to use marijuana under terms of California's landmark Compassionate Use Act, Proposition 215, passed in 1996.

The deputies seized 458 plants, most of them seedlings, and arrested Epis. They soon turned his case over to the federal Drug Enforcement Agency, however, and he was tried in federal court, which doesn't recognize Prop. 215.

As a result, Epis, who had a doctor's recommendation to smoke marijuana because of spinal injuries he'd suffered in an auto accident, earned a place in the history books by becoming the first med-pot patient in California tried and convicted under the federal Controlled Substances Act.

When Damrell sentenced Epis to 10 years in prison, he turned him into a martyr of sorts among medical-marijuana activists. To them, his case vividly illustrated what can happen to someone who is caught between a state law allowing marijuana's use but giving patients no way to obtain it and a federal government determined to squelch all marijuana use and trafficking.

Now, a full decade later, Epis is back before Damrell again, and once again he is hoping to stay out of prison.

Now 40, Epis is a stocky man with a thick shock of black hair. He makes his living operating a travel Web site, www.bestlodging.com, out of his south Chico home.

At the time of his arrest, he was a 30-year-old Chico State University graduate with a degree in civil engineering, was in his third year of law school at Cal Northern, and shared custody of his 8-year-old daughter, Ashley.

He was also part of a small group of med-pot patients, Chico Medical Marijuana Caregivers, which sought to provide "medicine," as they called it, to other patients.

Five of them were growing the plants hydroponically in Epis' basement, with the idea that they would share the product and sell the excess to other patients. Only Epis lived there, however, and could be tied to the marijuana, so only he was arrested.

Epis wasn't new to pot growing. He'd been busted in 1994 for cultivating a large number of plants, but the search warrant later was ruled invalid and the case was dropped. But he also was a strong believer in finding ways to provide pot -- at fair prices -- to cancer patients and others who really needed it.

At the time, some of the more liberal California cities were trying to find ways to implement Prop. 215 in an orderly fashion and were establishing frameworks for licensing cannabis dispensaries.

One of them was San Jose. Epis obtained a copy of that city's written standards and began drafting a "marketing plan" to establish a dispensary called the Silicon Valley Cannabis Club. Eventually he produced a rough and incomplete 17-page document that included an imported Excel spreadsheet showing, among other things, growth doubling every month.

It was a fantasy document and never acted upon. Epis forgot about it -- until it came back to haunt him.

From the outset of the trial, Damrell prohibited the defense from mentioning medical marijuana. Under federal law it was irrelevant, he said.

Epis didn't exactly ingratiate himself with the judge, either. In reaction to the rejection of his medical-necessity defense, he joined supporters in front of the courthouse handing out fliers about Prop. 215 and his case to prospective jurors. Damrell briefly charged him with jury tampering and had to dismiss the entire 42-member jury pool and summon another group before trial could begin.

Epis' situation was worsened further by the fact that his home happened to be within 1,000 feet of Chico High School. The most serious charge against him was conspiracy to manufacture 1,000 plants within 1,000 feet of a school.

It wasn't hard to prove the conspiracy part -- there was evidence that others had participated, and at the trial (which began on June 26, 2002, one day after the five-year statue of limitations expired), some of them came forward to testify. Nor was it hard to prove the 1,000-feet part: A letter from the CHS principal sufficed.

The 1,000-plant part was harder to prove, however, because fewer than 500 plants had been seized. The prosecution had to prove that the group intended to grow more than 1,000 plants in the future.

To do so, Assistant U.S. Attorney Samuel Wong introduced the spreadsheet from Epis' "marketing plan," labeling it Exhibit 27, but he said nothing about Silicon Valley. Instead he told the jury the data on the document -- which postulated growth to as many as 100,000 customers in a year or two -- were for Chico and showed Epis was "the manager or supervisor of a criminal enterprise" that he expected to expand exponentially.

Epis' attorney was J. Tony Serra, the flamboyant Bay Area lawyer known for defending famous clients, from Black Panther Huey Newton and Earth First! to the Hells Angels and Dennis Peron, co-author of Prop. 215. He's most famous, perhaps, as the basis for the character played by James Woods in the 1989 movie True Believer.

But even Serra couldn't get Damrell to allow the defense to prove that the spreadsheet applied to Silicon Valley, not Chico.

There was no evidence that anyone other than Epis had seen the document, and the numbers on it were "unrealistic to the point of absurdity," as Epis' subsequent attorney, Brenda Grantland, of Mill Valley, wrote in an appeal brief. But, with Damrell's help, Wong was able to convince the jury of its supposed connection to Chico, and Epis was convicted on two counts: conspiracy to grow 1,000 plants or more, and growing more than 100 plants. On Oct. 7, Damrell sentenced him to 10 years in prison, the mandatory minimum.

Epis spent a total of 25 months at federal prisons on Terminal Island and in Lompoc. Grantland prepared an appeal, but it was interrupted when the Ninth Circuit Court of Appeals, ruling on another med-pot case, Raich v. Ashcroft, in August 2004, determined that the cultivation of marijuana for personal medical use is outside federal jurisdiction. One of the plaintiffs in that case was Diane Monson, an Oroville med-pot patient whose plants were seized by DEA agents in 2002 (the Ashcroft in question was then-Attorney General John Ashcroft).

Epis was released from prison and remained out on $500,000 bail while the Raich case made its way to the U.S. Supreme Court. Justices, however, reversed the lower court, and federal precedence was reasserted. Wong quickly filed motions to resentence Epis.

Judge Damrell refused to reconsider the original verdict, so Epis asked for a "safety valve debriefing," a legal mechanism that allows a judge to sentence below the mandatory minimum guidelines if the defendant confesses fully. One criterion is that the defendant not lie during the debriefing, which in Epis' case was conducted by Wong.

When Epis again insisted the spreadsheet referred to his Silicon Valley proposal, Wong said he was lying.

At a February 2007 evidentiary hearing on the debriefing, Damrell expressed concern about Exhibit 27, suggesting for the first time that he understood that it made no sense when applied to Chico. "Once I saw Exhibit 27, I said, 'Whoa, this stuff is way off'," he recounted during the hearing.

"I think he finally got it," Grantland said during a recent phone interview.

Epis himself was unable to testify in February because of a foot injury. He was scheduled to do so this week.

Following this hearing, Damrell will decide how much additional time, if any, Epis must serve. If Epis is sent back to prison, Grantland will immediately file an appeal asking for a new trial.

"The government's fake evidence permeates this trial," she explained.

There's another issue, Grantland said: The Supreme Court decision in the Raich case is not retroactive. "Bryan thought what he was doing was legal, and according to the Ninth Circuit it was."

Grantland is confident that Epis eventually will prevail. "Altogether Bryan's trial was a mockery," she said. "It was outrageously erroneous in so many ways."

Her hope now is that Damrell will allow Epis to stay out on bail, which is secured by his mother's house. If not, Grantland will file a new bail motion in the appeals court. "If we can keep him out on bail, he will stay out forever," she said.

Epis said he and his family have spent more than $100,000 on his defense.

For his part, Wong said he had nothing to say about the case that couldn't be found in court documents.

No lasting precedent will emerge from Epis' case. But it vividly illustrates what can happen to someone trying to implement Prop. 215 in the face of the federal government's staunch opposition. For Epis, this understanding has come at great cost.

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Aug 9, 2004: NEWS ADVISORY from Americans for Safe Access (CA)

Chico Medical Marijuana Grower Bryan Epis Freed by Appeals Court

Federal Panel Amends Last Week's Order to Grant Bail Pending Appeal

SAN FRANCISCO - Bryan James Epis, 37, the first medical marijuana patient convicted in federal court after the passage of California's Proposition 215, should walk out of federal prison in Long Beach today, thanks to an order this morning by an appeals court in San Francisco.

He will be re-united with his 11-year-old daughter, Ashley, tomorrow morning at 10:00 AM on the steps of the federal courthouse in Sacramento where he was convicted. A press conference will follow.

Last Friday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the district court in Sacramento, where he was convicted, to expedite his release on bail. But today the panel amended that order to grant his release directly, setting in motion his immediate release from the medium security correctional facility at Terminal Island. Mr. Epis has served more than two years of a ten-year sentence for growing medical marijuana for himself and other patients.

Last month the same panel heard the appeal of his conviction and decided that Mr. Epis's case should be reconsidered by the District Court, once the U.S. Supreme Court has acted to either uphold or overturn the decision in Raich v. Ashcroft, which established that medical marijuana patients and their caregivers are exempt from the federal prohibition. His attorney had argued that his 2002 conviction was not only unconstitutional under that decision, but based on misconduct by federal prosecutors.

The appeals court also said that if any portion of his conviction remained in effect, that he must be resentenced under new standards set by the Supreme Court decision in Blakely v. Washington, which found that juries, not judges, should determine sentencing. His attorney asked the appeals court to grant Mr. Epis his freedom pending the outcome of the Supreme Court's action on Raich, and subsequent proceedings before the District Court in Sacramento.

Mr. Epis was arrested June 25, 1997, after Butte County sheriff's officers discovered marijuana plants growing in the basement of his home in Chico.

Since his conviction, his case has been cited nationwide in news articles, columns and editorials as a prime example of the injustice of trying patients under a federal drug-trafficking law. During the high-profile medical marijuana trial of Ed Rosenthal in 2003, advocacy groups put up billboards in the San Francisco Bay Area urging "compassion not federal prison" with an image of Mr. Epis's daughter, Ashley, holding a sign saying, "My dad is not a criminal!"

My name is Bryan Epis. In 1996 after California's medical marijuana law passed I was recommended marijuana by my physician to alleviate chronic paraspinous pain resulting from a near-fatal car accident. I started using and growing medical marijuana legally under California law. I also helped start a medical marijuana dispensary in Chico, California and was in the process of starting one in San José, California when I was arrested by the federal government.

I had allowed four other physician approved patients to grow at my house along with me. Because I was nice enough to do this I was indicted and later convicted of a conspiracy to manufacture at least 1000 plants even though only about seven hundred plants were grown by the five of us. I was sentenced to 10 years in federal prison.

I still have an appeal pending. You can help me and hundreds of other medical marijuana patients and caregivers that are in federal prison who were following their state laws by writing to Congress at www.house.gov and www.senate.gov and asking your Representative to support a new bill recently introduced by Sam Farr-D of Carmel, California. Representative Farr's bill will allow me, and others like me, to get a new trial in federal court that will allow us to present a defense that we were following state laws. You can also ask your two senators to introduce or co-sponsor a similar bill in the U.S. Senate. Please do this now.

The letter can be as short as: "Dear (Congressman / Senator) (NAME), U.S. House Representative Sam Farr ­ D of California recently introduced a bill that will allow a defense in federal court for patients and caregivers who follow state law. I urge you to support and / or introduce a similar bill in the senate.. Thank you, (YOUR NAME; ADDRESS; PHONE NUMBER)."

Change will only happen if enough people write to Congress. If you would like to see pictures of the massive protest at my sentencing and a picture of my daughter on billboards throughout California, please see www.freedomtoexhale.com/protestpics.htm .

Thank you, Bryan Epis

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June 17, 2004 - Americans for Safe Access (CA)

Epis Appeal Shows Transformation in Federal Marijuana Law

By Steph Sherer, ASA

The appeal of Bryan James Epis, federal conviction for growing medical marijuana made clear that the legal landscape has changed.

On Wednesday a panel of the Ninth U.S. Circuit Court of Appeals considered arguments about whether the precedent that court set in Raich v. Ashcroft should apply to a medical marijuana patient who provided cannabis to other patients and a non-profit dispensary. That December ruling established that it is unconstitutional for the federal government to prosecute patients and caregivers who grow and distribute marijuana in compliance with state law and receive no money for it.

Appellate attorney Brenda Grantland told the court that Mr. Epis, case fit the standard set by Raich, as evidenced by the injunction issued in the case of the Santa Cruz Wo/Men's Alliance for Medical Marijuana by U.S. District Judge Jeremy Fogel, who ruled the precedent protects the activities of that 250-member collective.

Ms. Grantland told the court that Mr. Epis, activities were no different, because nearly 95% of the marijuana grown in his home was for his own use or that of four other patients with whom he'd formed a cooperative. The excess was donated to the Chico Cannabis Caregivers' Association, a non-profit dispensary that had agreed to reimburse him for his expenses but never did so. Ms. Grantland argued that this was essentially identical to the activities of the two "John Doe" caregivers who provide Angel Raich with the nine pounds a year of cannabis she needs to treat her conditions.

Ms. Grantland also argued that the prosecution's portrayal of Mr. Epis as a major drug dealer was based on misconduct by Assistant U.S. Attorney Samuel Wong. AUSA Wong claimed at trial that documents found on Mr. Epis, computer showed projected profits of more than a million dollars a week. Ms. Grantland said the prosecution knew the spreadsheets contained dummy numbers that had nothing to do with his Chico operation, pointing out that the 15' x 15' foot growing area was only producing 18 foot-high plants a week, almost all of which was used by Mr. Epis and his four fellow-patients.

At trial, Mr. Epis was not allowed to present any evidence of his own medical condition -- chronic neck and back pain resulting from a near-fatal car accident -- the California law legalizing medical marijuana which was passed just months before his arrest in Chico, or the humanitarian nature of his work. Yet most of the questions from the panel involved the details of state law, what medical testimony the jury heard, and how much cannabis a typical patient might consume.

Judge Donald Lay, on loan from the 8th Circuit, demonstrated that he'd done his homework on the case by asking first about the Peron decision, a California case that had found most methods of collective distribution did not fit with state law. Ms. Grantland pointed out that the state legislature has since "clarified" Proposition 215 by passing SB420, which expressly allows patient collectives and remuneration.

The judges also wanted to know if the jury had heard evidence that there was any non-medical distribution, if they'd been told how much cannabis a patient would use, or anything about the cooperative arrangement Mr. Epis had with the other patients.

The answer to all was "no" because, as the panel was no doubt well aware, federal courts have never allowed medical testimony to be introduced at trial, since marijuana violations have never before been found to be crimes of intent. Before the Raich ruling, why anyone was growing or using cannabis or how it was distributed was considered irrelevant. The care the judges took to establish that this evidence was not introduced indicates the precedent set in Raich has changed that, and suggests that the appeals court may find Mr. Epis had a right to present that evidence to the jury.

In a similar case, a federal judge in Los Angeles has recently ruled that a pair of medical marijuana defendants there will be permitted to present evidence that they were in compliance with state law. If the jury finds they met the standard set by Raich, he said he would instruct them to acquit.

The limits of the Raich precedent were also an issue for the appellate judges. Judge Jay Bybee, asked what it would take for a medical marijuana provider to run afoul of the federal jurisdiction over interstate commerce that is the basis for marijuana prohibition. Ms. Grantland said the plants would have to cross state lines. When Judge Bybee expressed skepticism, noting the standard has been different for some time and asking if this only applied to agriculture, she referred to recent decisions that limited the Commerce Clause jurisdiction of the federal government, even in cases where equipment involved had crossed state lines.

AUSA Wong faced tougher questioning, with Judge Lay saying, "What bothers me is how you convinced the jury of conspiracy." He asked AUSA Wong what evidence there was of a thousand plants being grown, noting that only 458 had been seized. He said a conspiracy conviction based on what Mr. Epis might have done in the future was "tenuous". AUSA Wong replied that once a plan was made, the crime was complete, and that the jury had found there to be a conspiracy to grow more than a thousand.

AUSA Wong also faced skeptical questions on the sentencing "enhancement" for Mr. Epis being a manager of the operation, which he claimed was justified because Mr. Epis had "instructed" one of the other patients on how to grow marijuana and told another to hang Mylar.

AUSA Wong further contended that the new state law limits patients and caregivers to 6 plants, which is not true, and that the Chico operation exceeded that. But Judge Bybee noted that 18 plants divided by five patients seemed to be well within that standard.

Steph Sherer is Executive Director of Americans for Safe Access in Berkeley, CA. (www.safeaccessnow.org)

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June 17, 2004 - The San Francisco Chronicle (CA)

U.S. Appeals Court Reviews First Medical Pot Conviction

Congress' Power Over Marijuana Club Case at Issue

By Bob Egelko, Chronicle Staff Writer

A federal appeals court that has slapped restraints on the government's campaign against medical marijuana grappled Wednesday with its first criminal case on the issue, a Chico man's conviction and 10-year sentence for growing pot for himself and other patients.

Bryan Epis' appeal is based on December's ruling by the Ninth U.S. Circuit Court of Appeals that barred the use of federal drug laws against marijuana grown in the state and distributed without charge to patients under California's medical marijuana law. Congress' power to regulate interstate commerce does not extend that far, the court said.

Later this month, the U.S. Supreme Court will consider the Bush administration's request to review and overturn that ruling. But Wednesday, a panel of the appeals court heard arguments in San Francisco over how the December ruling by a different panel of the court applies to Epis, who was convicted by a federal jury in 2002 of conspiring to grow more than 1,000 marijuana plants.

The court could grant him a new trial if it finds that the ruling applies to a defendant who was growing marijuana for others and expected to be paid for any portion of it.

Epis, 37, is the first Californian convicted by a jury of charges involving a medical marijuana club, a small cooperative he organized and supplied from his home. His appeal is the first in a federal prosecution to reach the appeals court since state voters approved Proposition 215, the 1996 initiative that legalized marijuana for medical use under California law.

Others have since been convicted, including Ed Rosenthal, the prominent marijuana advocate found guilty by a San Francisco federal jury last year of growing pot for a cooperative that supplied the drug to patients. Rosenthal is appealing his conviction, and the government is appealing the trial judge's decision not to sentence him to prison.

The judges at both Epis' and Rosenthal's trials ruled that evidence of the marijuana's intended medical use was irrelevant to the federal charges.

Butte County officers seized 458 plants from the basement of Epis' home in June 1997 and found records that more plants had been grown there. Epis, who had a doctor's recommendation to use marijuana for chronic back and neck pain, said he was growing the plants for himself and four other patients who shared in the expenses.

He also said a small fraction of the plants -- 6 percent, his lawyer estimated-were to be sold, at cost, to the Chico cooperative for other patients; they were eventually donated without compensation, defense lawyer Brenda Grantland told the court. But prosecutors said Epis was planning to make millions of dollars.

"This was a profit-making enterprise," Assistant U.S. Attorney Samuel Wong told the three-judge panel Wednesday. He said the jury's finding that Epis conspired to grow more than 1,000 plants "indicates there had to be a commercial aspect."

Grantland argued that the 1,000-plant figure was based on the prosecutor's misrepresentation of an unrelated computer spreadsheet found in Epis' home.

Epis maintained "a closed system, limited to medical marijuana patients, " the defense lawyer said. She also said California law allows a medical marijuana grower to receive reimbursement for expenses.

Both lawyers encountered skeptical questioning.

Judge Michael Hawkins challenged Wong's contention that Epis' operation was "primarily for commercial purposes." Judge Donald Lay told the prosecutor that his assertion that Epis was planning to grow more than 1,000 plants seemed tenuous.

But Lay also told Grantland that Epis' case appeared different from the case that led to December's ruling, in which patients grew their own marijuana or got it for free from a caregiver.

The third panel member, Judge Jay Bybee, asked Grantland what evidence was needed to show that a marijuana supplier's operations affected interstate commerce and, therefore, weren't protected by the December ruling.

When Grantland replied that proof of sales across state lines was required, Bybee said, "That has not been the standard for a long time in the United States."