CAUGHT IN THE MIDDLE

After a decade of legal wrangling and more than two years in prison,
med-pot pioneer Bryan Epis faces a return to prison

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.