Did the Feds Frame Brian Epis?
December 16, 2005
Fred Gardner , Counter PunchThe judge who sentenced Bryan Epis to 10 years in federal prison now realizes that Epis was the victim of prosecutorial misconduct, according to Brenda Grantland, the lawyer handling Epis's appeal. Epis, 38, was convicted in 2002 of conspiracy to cultivate more than 1,000 cannabis plants. He was granted bail in August 2004, after serving more than 25 months. The government is intent on sending him back to prison. Grantland charges that at Epis's trial, Assistant U.S. Attorney Samuel Wong misled the jury and U.S. District Judge Frank Damrell about a crucial piece of evidence -a spreadsheet Epis had drafted in early 1997 when he briefly contemplated opening a dispensary in Silicon Valley. Epis's 16-page business plan for the Silicon Valley dispensary was on the computer that DEA agents confiscated in June, '97, along with 485 plants, when they raided the 15'-by-15' grow-site Epis maintained in his basement in Chico. Epis said he had been growing for himself and four other documented medical users, and providing a small surplus (for which he was never remunerated) to a dispensary called Chico Medical Marijuana Caregivers (CMMC).
The U.S. Attorney offered Epis a four-year prison term if he'd plead guilty to criminal cultivation. When Epis refused, a conspiracy-to-grow-more-than-a-thousand-plants charge was added (by factoring in plants he planned to grow in the future). None of his alleged co-conspirators were charged.
When the case finally came to trial in 2002, the prosecution took a one-page spreadsheet from the Silicon Valley plan and introduced it as evidence of Epis's financial goals for his basement garden in Chico. Wong referred to Epis's "marketing plan" in his opening statement and a DEA agent and a former Butte County Sheriff's deputy made much of the "marketing plan" in their testimony. Epis himself didn't recognize the out-of-context excerpt of a document he'd created more than five years earlier, and he had a hard time on the stand trying to explain it. Epis had not read through the exhibits the prosecution provided the defense as part of pre-trial "discovery" proceedings, and apparently neither had his lawyer, Tony Serra. Epis studied a blow-up of the spreadsheet on the courtroom wall and said he thought it might be a projection of expenses and costs for a group of dispensaries seeking to bring the price down to $20/eighth-ounce.
The spreadsheet undermined Epis's claim that his cannabis cultivation was not geared towards moneymaking. Wong asked if the spreadsheet was in fact Epis's "marketing plan," and when Epis said no, he introduced into evidence two more pages of the (Silicon Valley) proposal that referred to the spreadsheet as a "marketing plan." The jury took only four hours to find Epis guilty of conspiracy and cultivation (within 1,000 feet of Chico Senior High School). At a sentencing hearing in October 2002, Wong portrayed Epis as "no different than any other drug trafficker that this court has seen and sent to jail."
Epis is now 38. At 17 he was in a near-fatal car crash that left him with two compressed vertebrae. Prescription painkillers sapped his energy; marijuana enabled him to function. He got a degree in electrical engineering at Chico State, then a law degree from Cal Northern School of Law. (Epis drafted the elaborate Silicon Valley proposal as an exercise of sorts, putting to use what he'd learned in law school about how to write a business plan.) He never practiced law and doesn't expect to.
Damrell sentenced Epis to 10 years, the mandatory minimum, and denied him bail pending appeal. The Sacramento Bee pinpointed Wong's triumphant tactic: "The prosecutor argued that Epis's 'lame story about planning to make only $10 an hour' from the work he did for the dispensary is belied by profit projections on documents he created and which were found in a search of his home. 'What he saw in Proposition 215 was a license to grow and market marijuana to make money,' Wong told Damrell. 'Every time he wrote down something about marijuana, he wrote dollar signs next to it.'"
Epis served 25 and a half months in federal custody. After the Ninth Circuit Court of Appeals ruled in December '03 that Angel Raich and Diane Monson could cultivate cannabis for medical use within California, Grantland was able to get Epis out on bail. (It took until August '04.) The Supreme Court's ruling against Raich-Monson in June '05 might have triggered his prompt return to prison if not for the appeal Grantland had mounted in connection with Wong's misconduct.
The night after he'd testified, Epis realized that the damning spreadsheet had been part of his Silicon Valley business plan. A frantic search of his papers turned up most of the 16 pages -but not the spreadsheet itself. Serra submitted the incomplete version to the court as Defense Exhibit A, but Damrell did not accept that the unstapled, out-of-order pages created in WordPerfect were part of the same document as the spreadsheet, which was in color and created in Excel. Serra asked Wong if the Silicon Valley plan had been provided on discovery and Wong replied, according to the transcript: "the two-page document and the one-page document were turned over in discovery." During a recess Serra asked Wong if he could look through the discovery materials (his own set being back in San Francisco), and Wong would not extend the courtesy.
In early 2003, Grantland began reviewing the case file. It was incomplete, she realized. She was told by the court reporter that all the government exhibits had been returned to Wong. The court reporter didn't recall there being any defense exhibits. Grantland was told by Serra that during the move of his office from Pier Five to North Beach, various items had been misplaced. (This a tale of prosecutorial misconduct but the pre-Grantland defense doesn't come off covered with honor.) Among the items Grantland couldn't find was the marked copy of Defense Exhibit A that Serra tried to introduce as evidence at trial. Epis, from prison, "kept insisting that the whole proposal had been among the discovery materials," Grantland says. Also, Epis realized belatedly, a complete version would exist on his confiscated computer. Grantland decided to continue searching and, in a carton that appeared to be unrelated to the case, she found a red notebook full of articles about medical marijuana and... the entire Silicon Valley proposal. The notebook contained 150 pages that DEA agents had printed out from Epis's computer and turned over to the defense in discovery. Also included was a cover letter to Serra's office from Nancy Simpson, the assistant U.S. attorney who preceded Wong on the case, stating that DEA Agent Ron Mancini was in charge of the prosecution evidence.
In October, 2003, Damrell conducted a special "Rule 10(e) hearing" to resolve discrepancies in the record. Wong protested Grantland's substitution of the Silicon Valley proposal she'd found among the print-outs for the partial version Serra tried to submit as evidence. Grantland protested Wong's refusal to provide the entire document and his original attempt to mislead the court about the nature of the spreadsheet. The focus of a 10(e) hearing is narrow: deciding whether challenged documents should be included or excluded from the record that the appeals court will review. New documents cannot be added during a 10(e) hearing. Wong tried to keep the new material out but Damrell said he'd allow it "for the purposes of this hearing only." Wong denied that the pages describing the business climate in San Jose were from the same document as the spreadsheet/"marketing plan" introduced at trial as proof of Epis's criminal activity in Chico. "Wong is lying to you as we speak," Grantland told Damrell. "The court has a duty to correct prosecutorial misconduct and false testimony at the moment it happens." Damrell made a finding that Wong's version of Defense Exhibit A -scrambled and missing several pages- was the real one for purposes of the record. Grantland was dismayed.
In June 2004 the Ninth Circuit Court of Appeals heard oral arguments on the case. Wong opened himself up for questioning on the spreadsheet maneuver by saying "Miss Grantland falsely accuses me of prosecutorial misconduct." All three judges proceeded to examine him relentlessly. Soon thereafter Grantland filed a bail motion for Epis which the Ninth Circuit granted without asking Wong to respond. The appeals court also remanded Epis's case to Damrell for resentencing and retained jurisdiction over the appeal.
Damrell heard oral arguments on the re-sentencing motion last week (12/5/05) Here's Grantland's account:
" While I was sitting waiting for the judge to take the bench, AUSA Samuel Wong came up to me and handed me a memo which said: 'DEA Special Agent Brian Nehring is the new DEA agent assigned to the Bryan Epis case. Special Agent Nehring informs me that one of the agents assigned to this case after DEA Special Agent Ron Mancini's departure mistakenly allowed the documents seized from Bryan Epis' home to be destroyed. I am awaiting my receipt of reports on the destruction of the documents and will forward them to you upon my receipt. On behalf of the United States, I sincerely apologize for this error.'
"Of course I was livid. We have been trying to get access to the 10 or 20 boxes (or more) of stuff they took from Bryan's house in order to look for more evidence of government wrongdoing. Plus we needed his medical records because the government is disputing that Bryan had a legitimate need for medical marijuana.
"When the judge called the case, he asked me to start by telling him why I thought we needed an evidentiary hearing. I told him we needed to resolve the dispute over the two government exhibits which are the heart of our prosecutorial misconduct charge, and which the government is still asking the court to rely on in sentencing Bryan. (We now have evidence in the record to show that the documents were excerpts from a totally irrelevant proposal for a dispensary in Silicon Valley that was never started, and that the two agents lied when they said the exhibits showed that Bryan actually made or expected to make -off the tiny garden in his basement- $4 million dollars a week, or some such nonsense. That's what Wong argued in his opening statement, so it's clear that he coached them to say that.)
"And then I told the judge about the memo I got from Wong today, saying the evidence had been destroyed except for the government's exhibits. The judge couldn't believe that could happen and wanted to hear about it from Wong. Wong said, yes it is unfortunately true that the evidence was inadvertently destroyed. Judge Damrell said [I'm paraphrasing]: 'That can't happen. I've never in my career known that to happen. Somebody has to give the order to destroy evidence. I'm not accusing you. Mr. Wong, but I can't see how this could have happened inadvertently.' Wong said they mistakenly thought the case was closed. Damrell said 'How could they mistakenly decide the case was closed? Especially a case like this? Someone would have to tell them that.'
"After that, Wong's credibility pretty much shredded by his own lies and corruption, the judge granted my request to depose the officers who were responsible for safekeeping of this evidence and the decision to destroy it. He gave Wong two weeks to submit a declaration explaining the circumstances of the destruction, plus an inventory of all the evidence that was seized. I have an opportunity to reply after that, and we set a status hearing for January 17. I guess I'll be conducting the depositions in the first half of January.
"Judge Damrell also agreed to give us an evidentiary hearing on our prosecutorial misconduct claims, at a future date, to be set later. Wong of course is claiming that Bryan wasn't truthful in his debriefing last Monday, so he'll get to put on those claims at the evidentiary hearing. The judge said the new destruction of evidence issue might become part of the evidentiary hearing, but he would decide after he learns more about it.
"At the Rule 10(e) hearing, Judge Damrell was agreeing with Wong that these are different documents, and that Wong really hadn't lied about it. Today, when Wong tried to tell Damrell that we had already been through this at the Rule 10(e) hearing and the judge had concluded that these were different documents, Judge Damrell said something like 'We didn't have a full hearing on this at the 10(e) hearing because it was beyond the scope. There was a lot of confusion then about these documents. Now I'm looking at these documents side by side, and they're all the same document.' Wong argued with him, saying... Gov. Ex. 27 [the one-page spreadsheet] related to the Chico grow. Judge Damrell said 'It's obvious now that they're all from the same document.'
"Another good sign was, Judge Damrell was asking me what my research showed about the kinds of relief he could give us in this weird mid-appeal remand posture, if he were to find prosecutorial misconduct...
"After the hearing Bryan and I went to the probation office to read the 330 letters the court has received so far asking for leniency in Bryan's case. (They're still trickling in, the probation officer says.) It took hours and we only got halfway through. We'll have to read the rest next time. It was very draining. There were many sad stories in there, and many people who said poignant things. And some funny ones... The probation officer who has read the entire 330 said that she didn't recognize any of the ones I brought in today. So the total number of letters is probably somewhere between 350-370!
"Thanks for all your support. Most of all it shows the public cares about this travesty. And that a lot of people are watching the government's conduct here."
A Note about Chico
Chico is a small city near the Northern end of California's Central Valley where the farmers grow rice and olives on vast tracts. The main claim to fame of the local college, Cal State Chico, is binge drinking. When Bryan Epis went there in the mid-1980s, Cal State Chico regularly won Playboy's "party-school-of-the-year" award.
One of the potentially important medical uses of cannabis is as an alternative to alcohol. Tod Mikuriya, MD has written on the subject: "Patients self-medicate with alcohol and/or cannabis in pursuit of similar short-term results, including disinhibition, analgesia, euphoria, and stress reduction. Although the desired results are apparently similar, the actual biological effects are as dissimilar as the two drugs' mechanisms of action. For example, alcohol 'helps' PTSD patients by obliterating disturbing memories -the patient speaks of 'becoming blotto'- whereas cannabis enables him/her to see and act upon past problems from a distance, and soberly.
"Although medicinal use of cannabis by alcoholics can be dismissed as 'just one drug replacing another,' lives mediated by cannabis and alcohol tend to run very different courses. Even if use is daily, cannabis replacing alcohol (or other addictive, toxic drugs) reduces harm because of its relatively benign side-effect profile. Cannabis use is not associated with car crashes; it does not damage the liver, the esophagus, the spleen, the digestive tract. The chronic alcohol-inebriation-withdrawal cycle ceases with successful cannabis substitution. Sleep and appetite are restored, ability to focus and concentrate is enhanced, energy and activity levels are improved, pain and muscle spasms are relieved. Family and social relationships can be sustained as pursuit of long-term goals ends the cycle of crisis and apology."
If ever there was a setting where cannabis use should be encouraged for harm-reduction purposes, it is Chico, California. Mikuriya's paper on "Cannabis Substitution for Alcohol" (O'Shaughnessy's, Summer 2002) suggests that a person's drug of choice is heavily influenced by social context in adolescence and early adulthood. It makes sense that the ratio of alcohol users to cannabis users would be lower if college students wishing to self-medicate in pursuit of dishinhibition, analgesia, euphoria and stress reduction had a legal setting in which to do so. If there are any administrators at Chico who really care about the students' well-being, they should let the sheriff and the DEA know that a cannabis club in Chico would be a boon to public health. Student Health Services should approve its use. Students at Cal State Chico can be expected to press this demand as the medical marijuana movement advances. --