Greenbud

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.''

__________________
"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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