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U.S. appeals court reviews first medical pot conviction - Congress' power over marijuana club case at issue

SFGate.com | Bob Egelko | Thursday, June 17, 2004

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.''

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"I believe in the near future, the government will use anti-drug hysteria to set up a police state."
-author William S. Burroughs, 1947

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Hansje

Lying Feds are still at it. The prosecutor is putting forth the typical prohibitionist lie that the law presumes that anyone growing that much is doing it for commercial purposes, resulting in a personal profit, as if the person(s) were involved in racketeering. The large amount does NOT mean that there is a large profit when the product is being sold for cost or less or outright donated charitably.

Hopefully, the judges and even the prosecutors can be convinced of this.

That brings to mind my last visit to the Constitution Center and the Ben Franklin house site in Philadelphia. I thought was very interesting that the folks back then would control people like this by circling their wagons around the person's house, then loop ropes between doorways and windows to their horse teams at the wagons. Then they would pull the walls off the building/house/barn or whatever it was. The homes were, of course, supposed to be unoccupied at the time, because they'd have to grab what they could carry and get out of town before sundown.

That was a nice way of saying that they were still public officials, could keep their pay and status and prestige, and could say they were upholding the law or whatever; but the local tribunal without recognition of the State has adjudicated the matter and decided on banishment and dispossession.

Start Dream Sequence: Get the bulldozers and wrecking balls ready. Think those concrete barriers will stop them? Think that row of trees, hedges or fence will stop them. The people have spoken.
End Dream Sequence.

Hopefully, in the real world, in real life, these officials will simply stop persecuting people for MJ, without things getting bad.

Suetaz

Chico man's pot case on hold

Judge told to await high court's ruling on medical marijuana

Bob Egelko | Chronicle Staff Writer | July 13, 2004 | sfgate.com

The case of a Butte County man sentenced to 10 years in prison for growing marijuana that he said was for himself and other patients was put on hold by an appeals court Monday to await the U.S. Supreme Court's verdict on federal authority over locally grown medical marijuana.

The Ninth U.S. Circuit Court of Appeals in San Francisco ordered a federal judge in Sacramento to reconsider Bryan Epis' case after the Supreme Court decides whether the federal ban on marijuana applies to pot that is grown in the state and supplied without charge to patients under California law.

The Supreme Court ruling, which involves two other patients from Northern California, is due by June.

Epis, 37, could get a new trial if the high court decides that Congress' power to regulate interstate commerce does not apply to drugs grown and distributed noncommercially within a state in compliance with state law.

His lawyer, Brenda Grantland, said Monday that she would renew her request to free him on bail during his appeal and noted that Epis has other challenges to his conviction that the appeals court has not yet addressed.

Epis of Chico was convicted by a jury in 2002 of conspiring to grow more than 1,000 marijuana plants.

Epis has a doctor's recommendation to use marijuana for chronic back and neck pain, and said the 458 plants that officers seized from his basement in 1997 were for him and four other patients, who shared the expenses.

Federal prosecutors maintained that he ran a commercial operation.

Epis' case is the first federal marijuana prosecution to reach the appeals court since California voters approved Proposition 215, the 1996 initiative that legalized marijuana for medical use under state law.

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