U.S. APPEALS COURT REVIEWS FIRST MEDICAL POT CONVICTION

Congress' Power Over Marijuana Club Case at Issue

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."