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

Epis Appeal Shows Transformation in Federal Marijuana Law

By Steph Sherer, ASA

Return to Drug War News: Don't Miss Archive

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. (

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