U.S. appeals court questions pot grower's 2002 conviction

June 16, 2004

Claire Cooper , Sacramento Bee

SAN FRANCISCO - A federal appeals court raised serious questions Wednesday about the pot-growing conviction of Bryan James Epis, co-founder of the Chico Medical Marijuana Caregivers, but the judges did not indicate whether they'll order a new trial.

Epis is serving a 10-year term for his 2002 conviction for conspiring to grow marijuana. The sentence came after a stormy trial in which Sacramento U.S. District Judge Frank C. Damrell Jr. instructed jurors to disregard evidence of medical use under California's Proposition 215. However, recent federal court decisions have barred federal prosecutors from going after medical marijuana operations that don't involve interstate commerce. The Supreme Court is expected to announce this month whether it will review one of those cases.

The possible implications for Epis were explored at Wednesday's hearing by a three-judge panel of the 9th U.S. Circuit Court of Appeals. There's no deadline for a decision.

 'What's your good-faith factual basis for saying (Epis) was cultivating marijuana primarily for commercial purposes?' Judge Michael Daly Hawkins of Phoenix asked the prosecutor, Assistant U.S. Attorney Samuel Wong. Wong answered that Epis' operation, unlike those that have been given the courts' protection, was 'a profit-making enterprise.' But he admitted under questioning from Hawkins that the jury wasn't asked to decide whether Epis ran a commercial operation.

Wong contended the jury's finding that Epis conspired to grow more than 1,000 plants indicated 'there had to be a commercial aspect.'

But Donald Lay, a visiting circuit judge from Minnesota, noted that 'only 458 plants' were seized when Epis' premises were raided. Lay said the government's contention that more would be grown in the future seemed 'kind of tenuous.'

Brenda Grantland, Epis' lawyer, called the Chico operation 'a closed system, limited to medical marijuana patients.' But Judge Jay Bybee of Las Vegas, the third member of the 9th Circuit panel, questioned her closely about the amount of pot a medical user would require daily.

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