Caught in the middle
June 20, 2007
Robert Speer, Chico News and Review (CA)
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.