SACRAMENTO, CA – When Bryan Epis took the witness stand last June, he seemed anxious. The medical marijuana defendant had a mild stutter that was uncharacteristic, and he even misspelled his own name for the court reporter. Observers figured it was just a case of the jitters, or the stress of the years of prosecution and incarceration taking their toll on his composure. They may have been right, but that wasn’t the whole story.
The truth was that Epis had something else to be nervous about – he was taking the stand to try to save his own skin, and to do so he planned to testify about the illegal activities of his friends. This wasn’t what was expected from the man who had become the king of martyrdom in the medical marijuana community, and observers watched with shock as their hero inched closer and closer to what many would call “snitching.” Would he accomplish the delicate feat of placating the prosecution without revealing too much about his acquaintances? Whatever the outcome, it was a gutsy move.
Bryan Epis photo by Tim Castleman
For those who are confused about why Epis was on the witness stand in the first place, this story needs some background. Plagued by ever-shifting court dates and bereft of media coverage during the past couple years, the Epis case has gone from cause célèbre to relative obscurity. His face was once plastered on billboards and smiled out from the front pages of newspapers, but lately it seems that there are more questions than answers about what’s going on in the Epis case. Even the most avid supporters have found that the trail went cold a long time ago.
In spite of being a medical marijuana patient and caregiver in compliance with California law, Epis was busted in 1997 for a grow in the basement of his Chico home. The plant total was less than five hundred, most of which were seedlings. His case was quickly taken over by federal authorities and Epis was charged with criminal cultivation of over a hundred marijuana plants.
Although medical marijuana was legalized by California voters the year before Epis’s bust, prosecution in federal court deprived him of a medical defense. The U.S. Attorney maintained that, in spite of the changes to state law, marijuana still remained illegal on the federal level. This claim rested on the Controlled Substances Act of 1970, which has been widely criticized as Constitutionally unsound, but the prosecutors got their way nonetheless. As the case neared trial in 2002, it became clear that all evidence about medical marijuana and its legality under state law would be excluded.
The U.S. Attorney initially offered Epis a plea deal for four years in prison, and when he refused, prosecutors tacked on a charge for conspiracy to cultivate over 1000 marijuana plants. To support this charge, the prosecutors whipped out spreadsheets that were purported to show Epis’s plans to set up collective marijuana grows in various locations. All of a sudden, the defendant was being portrayed as an ambitiously greedy money-monger intent on overgrowing the entire state.
From there, things continued to go downhill. Epis went to trial at the Sacramento federal courthouse in 2002, facing a cultivation count and a conspiracy count. The trial began with a charge of jury tampering, which stemmed from medical marijuana protesters gathering near the courthouse and distributing leaflets containing case-specific information about Epis. The trial ended with convictions, followed up by a sentencing hearing that was a shock to the activist community. U.S. District Judge Frank C. Damrell, Jr., sentenced Epis to a decade of incarceration, and he served slightly over two years in prison before being released pending appeal in August 2004.
Brenda Grantland photo by Tim Castleman
Epis’s appeal cites prosecutorial misconduct, claiming that the government deliberately submitted partial evidence for some exhibits. By presenting only small portions of each spreadsheet, the defense maintains, prosecutors intentionally misconstrued which documents applied to which locations. Defense attorney Brenda Grantland was also met with a devastating surprise from the government in December 2005 – U.S. Attorney Samuel Wong admitted that much of the case evidence had been mistakenly destroyed. Given this unusual turn of events, it became a bigger challenge for Grantland to make her case, but the intrepid attorney has persisted nonetheless.
Midway through the appeal, the case was sent back to the district court for re-sentencing proceedings, which began almost immediately after the Supreme Court ruled against medical marijuana patients in Raich v. Gonzales. This time, there was serious debate over whether Epis would qualify for a safety valve, and the spreadsheets emerged from ancient history with a new significance.
Epis, for his part, argues that the spreadsheets presented at trial never applied to his Chico operation. It sounds like nit-picking, but the question of what applied to Chico has been a crucial issue that has stood to affect his sentencing. Since the Chico location was within a thousand feet of a school, Epis was initially disqualified from consideration for a safety valve that would allow the judge to sentence below the mandatory minimum ten years. In an effort to avoid having to serve out the remainder of his sentence, Epis hoped for safety valve eligibility by convincing the judge that the evidence used to secure his conviction had nothing to do with Chico.
Epis began this fight by asserting in a November 2005 debriefing hearing that the spreadsheets did not apply to the Chico grow. According to Epis, the documents were like a mathematical contemplation of starting collectives elsewhere in California – Silicon Valley and Newhall, specifically. The government has staunchly opposed the statement that the spreadsheet was not about Chico, and U.S. Attorney Wong has spent the majority of the past year trying to demonstrate Epis’s claim to be a lie.
In many ways, the process has taken on a life of its own. Proving Epis lied under oath became an obsessive campaign for Wong, who pressed forward with a series of hearings that spanned several months and required multiple witnesses. The final person to take the stand in these hearings was Epis himself, who was sworn in on June 22nd, 2007, and thereby exposed himself to extensive questioning about his documents.
His purpose was to address issues raised during proceedings held last February. At that time, Wong presented an audio recording of the November 2005 debriefing hearing at which Epis declared that the spreadsheets in evidence did not apply to his Chico operation. After playing the tape, Wong attempted to disprove Epis’s statement by pointing out details in the spreadsheet that he believed applied to the Chico grow.
However, the prosecutor didn’t get very far with his assertions about the spreadsheets, and even the law enforcement witnesses he brought to the stand said that the plant numbers indicated on the document far exceeded the capacity of the Chico site. If Epis had meant for the spreadsheets to apply to Chico, which was never solidly shown, it was no more than an overly optimistic daydream.
Once on the witness stand, Epis maintained that he made these proposals for sites in Silicon Valley and for Newhall, but not for Chico. Like many of his plans, however, the projections from his spreadsheets never even came close to being fulfilled. “At the time, I thought of opening a dispensary in San Jose. I took a few steps towards it, but never followed through,” Epis explained. “I abandoned the plans because of law school, making a hotel website, watching my daughter, learning programs, going to the Chico dispensary and helping out there.”
He insisted he did not make a document like this for Chico because his former partner David Kasakove “wanted to run the whole show.”
Defense Attorney Brenda Grantland took the time to question her client about the figures in the documents and their basis in reality. Soon, their fantastical qualities began to become apparent.
“Where did you get the figures for the spreadsheet?” the attorney asked.
Epis shrugged, “Just out of the blue one day.”
Grantland continued, “How did you get a starting figure?”
“The whole movement was just starting,” Epis said, referencing the era directly following the legalization of medical marijuana in California. “Everything was in its infancy. It was fledgling, so there was no data to base these numbers on.”
The defense attorney got more specific. “Why did you start with twenty members?”
Epis had nothing to give. “It was just a good starting figure.”
Her client was vague, but Grantland persisted. “Why does it double every month?”
“I think that’s just a function,” Epis speculated, making an attempt to describe how the spreadsheet program works. “The cells don’t actually have numbers in them. It’s just the value of the last cell times two, all the way down. This is the way to get it done faster.”
Wong then broke in, objecting on the grounds that the witness was guessing. Judge Damrell, however, didn’t agree with the prosecutor, and decided to allow the testimony because it described Epis’s habit. Once this matter was resolved, Grantland turned back to her client. “Why was it not important for it to be accurate?”
“It was still in its rough stage,” Epis responded. “It was just a draft.”
As expected, Wong pushed much harder on the subject of the spreadsheet figures. The prosecutor directed attention back to the fact that the document began with an assumption of twenty members. “I never opened there, but I thought that I would immediately have twenty members,” Epis explained. “I’m one of those people who thinks they can do everything with not a lot of time. I had a lot to do, and it never happened. Maybe I’m glad it didn’t happen.”
Wong wasn’t satisfied, pointing to the exponential increases in members shown on the spreadsheet. “Doesn’t your proposal show the hopes and dreams of distributing marijuana statewide?”
“Tcht – no!” Epis snorted. “I wasn’t going statewide. I was just thinking of going to Silicon Valley. I was fed up with Dave,” he explained, again referencing former partner David Kasakove.
With a flourish, Wong turned on the courtroom projector to display a document filled with squiggles and a few lines of double-digit addition. Epis took one look at the screen and broke into laughter. “I was doodling one day, scribbling all over the place,” he told the prosecutor. When Wong tried to describe the document as a compensation plan, Epis balked. “It’s a theoretical thing that no one should have to be questioned about,” he said plainly.
Grantland then issued an objection, reminding the judge that the hearing was simply about whether her client lied during debriefing. Judge Damrell agreed. “Let’s get to the issues,” he said to Wong. “We already tried this case once.”
Wong may not have made much headway when addressing the spreadsheets, but during last February’s hearing he put forth a convincing argument that Epis had lied about another matter during the 2005 debriefing. On tape, Epis claimed that he never had a contract to supply a San Francisco medical marijuana dispensary operated by Dennis Peron. The prosecutor then presented a document that was attached to the door of Epis’s Chico grow operation during his 1997 bust. “Do not enter this facility,” it reads. “I, Bryan Epis, am the designated primary caregiver to the CCC of San Francisco as well as other clubs. Call Dennis Peron to verify.”
Epis, however, contends that this is no evidence of a contract. In fact, he claims that the sign is a misleading document because he never actually supplied any of his marijuana to the dispensary. He testified to accompanying another supplier, Keith Dusek, to the club in order to sell marijuana that was in Dusek’s possession. At that time, Epis said, there was vague talk about his Chico grow supplying the dispensary, but it all quickly crumbled over disputes about pricing. These disputes led to the creation of other documents submitted by the prosecution – several angry letters Epis wrote to Peron, claiming the dispensary operator had “broken our contract” by selling the marijuana at too high of a price. In spite of this souring, Epis never took down the premature sign on the door of his grow-room that declared he was supplying Peron.
On the stand, Epis claimed he was simply too busy to bother with taking down the sign. He referred back to the long list of interests and pursuits that he recited earlier in his testimony. In that whirlwind of activities, Epis insisted, there was not a spare second to deal with removing hanging documents. “It would have taken 30 seconds to do it,” Epis shrugged during his explanation. “I didn’t have it.”
The prosecutor, of course, wasn’t buying it, and Wong grilled Epis on every detail of the trip he took with Dusek to sell marijuana at the San Francisco dispensary. On the stand, Epis repeatedly stated that this selling trip occurred on only one occasion, and that the marijuana in question was not his because he had not yet harvested his first crop at that time. He also made it clear that he was not actually selling, but rather acting as a sort of a matchmaker between the buyer and seller. “I was helping other people sell their weed,” was Epis’s description. “I was helping people put it through legal channels rather than putting it onto the black market.”
Continuing to describe himself as a “middleman” and a “transaction conductor,” Epis restated his characterization multiple times. As the hearing went on, he portrayed his role with increasingly passive language. “I was helping the weed to be sold to a legal place,” Epis said at one point. “I was there at a time when medical marijuana was sold at the club.”
According to Epis, the trip to San Francisco with Dusek was on January 24th, 1997. It started with an oil change at Jiffy Lube and ended with the sale of a half-pound of marijuana to Peron. Wong claimed that something else happened during this visit, alleging that Epis made a contract to personally supply Peron with marijuana in the future. The prosecutor presented an exhibit that had been entered into evidence, quoting a letter written by Epis. “‘But what about the contract on January 24th, that I entered into with the Cannabis Cultivators Club? Are you telling me that you are going to breach this contract?’” Wong read from the letter, then turned to Epis on the stand. “Who were the parties in this contract?”
“There never was a contract because he kept giving counteroffers,” Epis claimed. “There wasn’t a contract. We never got things squared away.”
“Did you shake hands on this deal?” Wong probed.
“I guess I did,” Epis conceded, but after a moment’s reflection again stated that he never actually sold marijuana.
Judge Damrell turned towards the witness stand. “Did he hand money to you?” he asked simply.
Epis, however, didn’t know. “Either to me or Keith,” he replied.
The prosecutor directed the witness’s attention back to the wording of the letter, asking him why he would refer to a contract if no contract had been made. “I thought we were coming to an agreement at first,” Epis offered. “I was pretty much just ranting and raving. I never sent this to him, obviously.”
Wong then clarified whether Epis had been in law school at the time, and when the prosecutor got confirmation, he quickly made his point. “Did you take contract classes?” Wong asked. Epis admitted that he did, leaving the general impression that he might have a clearer understanding of the contract process than he was letting on.
His confidence increasing, Wong pointed out another line penned by Epis that used the term “my medicine” and described how he didn’t want it being sold for Peron’s “rip-off prices.” The prosecutor then looked up from the paper, asking what was meant by “my medicine.” When Epis responded that medicine was marijuana, the prosecutor sought further clarification. “And the word ‘my’ – does this mean it was yours?”
Epis was blunt, “No.”
Wong turned condescending in his pursuit of an admission. “What does the word ‘my’ usually mean?”
“Well, me,” Epis responded, adding the usual clarification, “but I was just helping people bring marijuana in because they didn’t know who to sell it to.”
“But you wrote that you wanted the prices lowered,” the prosecutor argued. “So what did you mean by ‘our contract?’”
“I was thinking of working with him at the time, but right after that, it was like – Peron? Forget him! I’m going to do my own thing,” Epis said, beginning to get colorful. “I keep using the word ‘contract,’ but I was just mad at him.”
The prosecutor worked through the figures some more before performing his last attempt to trick Epis into admitting there had been an actual contract for future sales. “Did you feel good that they wanted to buy more marijuana from you?” Wong asked, referring to Peron’s club.
“I wouldn’t say it was from me,” Epis made the distinction yet again. “I wanted to help them help others by lowering the price, but things were changing right after that and it was pretty much the same day that I said, ‘I’m not going to do this.’ It was the last time I went to that club. I started my own place.”
The prosecutor wasn’t going to get much more from the witness – Epis blocked him at every move with a restatement of the same explanation. Wong did, however, seek to get the most out of the questioning and tried to get Epis to connect Dusek with the Chico growsite. The prosecutor did his best, but Epis flatly denied that Dusek helped with the Chico grow. There was just one problem with that statement – Epis had previously testified under oath that Dusek had hung the mylar wall coverings in his basement grow-room.
When asked about his previous testimony, Epis was vague. He said that he gave that statement because he had been told that Dusek’s fingerprints were found on the mylar. Although he didn’t recall specifically, Epis deduced that Dusek had either hung the mylar or he had touched it when he visited the Epis home with his friend Wayne in 1994.
Wong pounced on the name, “Who is Wayne?”
“A guy I used to buy cannabis from,” Epis responded.
The prosecutor demanded a last name, but Epis claimed he couldn’t remember it. Wong was incredulous, “You can remember showing him your grow room 13 years ago, but you can’t remember his name?”
Squinting his eyes, Epis acted as though he was trying to peer into his memory. “Justman, Hudson, I don’t know,” he said. “I tried to look it up once.”
Epis seemed to be toying with the prosecutor now, and he did so with a calm, confident ease. The stutter had long since evaporated, and a more genuine side of his personality was shining. His vague evasions had transformed into cheeky retorts, and by the end of the afternoon the man who stepped down from the stand appeared quite self-assured.
Did he navigate the waters of the snitch without becoming one himself? It’s a subjective determination, open to various degrees of interpretation depending upon opinion. Public reaction is likely to be mixed, but it certainly makes a great deal of difference that the statute of limitations has already passed on these crimes.
As for the defense attorney, she emerged from the hearing optimistic. Grantland acknowledged the risks her client had taken, but also stated a belief that there would be no negative impact. “In the minds of the feds, what Bryan admitted today would be aiding and abetting the distribution of marijuana – a crime he has never been charged with,” the defense attorney explained. “The statute of limitations has passed, but it would be relevant conduct which could be used to enhance his sentence under the guidelines, if he hadn’t already been subjected to a much harsher sentence under the mandatory minimum.”
Her parting message was one of hope. “My impression was that Bryan’s candidness today greatly enhanced his credibility with the judge, who – I hope – after ten years has begun to realize he is dealing with an honest man, trying to do the right thing to help sick people, legally.”
Bryan Epis’s resentencing hearing is scheduled for 10am on September 14th, 2007, in Courtroom 2 (15th Floor) of 501 I Street in Sacramento, CA.
Bryan Epis with his girlfriend, attorney and supporters in front of Sacramento federal court building photo by Tim Castleman
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