SACRAMENTO, CA – A ten-year prison term was handed back to Bryan Epis during a re-sentencing hearing in federal court last Friday, but the famed medical marijuana cultivator isn’t going behind bars quite yet.
In fact, if the defendant has his way, he won’t be going back to prison at all.
Bryan Epis with girlfriend in front of Sacramento federal building photo by Tim Castleman
The attorneys have long been engaged in a fierce battle over the details of the case, and at Friday’s hearing the heat was amplified by stern commentary from the judge and grandstanding statements from the defendant himself. During a brazen speech made directly before the sentencing, Epis showed that he is more determined than ever to see a just outcome in his case, and to hold tight to a belief in his righteousness. But resolution has been a long time coming, and there’s still quite a ways left to go.
About a dozen other defendants were on Friday morning’s calendar in the courtroom of Judge Frank C, Damrell, Jr. They were all called ahead of Epis, and their time in front of the judge was predictably brief. None of the cases took more than ten minutes, including the decision on a prison term for a murderer, but dealing with the issues involved in Epis’s sentencing ate up the remainder of the day. It was not the typical sentencing hearing, but, then again, there’s not much that’s typical about the Epis saga. Like the rest of the case, this chapter was long and complicated, and in spite of the ring of finality in a sentencing, it’s not even close to being finished yet.
It began with the search of Epis’s Chico home in 1997, mere months after California voters legalized medical marijuana statewide. After the bust, however, Epis was prosecuted by federal authorities, who have steadfastly refused to recognize state law on the issue. This conflict put him in a precarious position, and the problems mounted steadily from there.
The raid yielded 458 tiny marijuana plants from a basement grow-room, but by the time the case finally came to trial in 2002, Epis was charged with a whole lot more than what was actually seized. In addition to indicting him on the count of criminal cultivation, U.S. Attorneys used documents taken from the search to support a charge of conspiracy to cultivate over a thousand plants. These counts were both made more serious by the fact that the grow-site was within a thousand feet of a local public high school, raising the specter of mandatory sentences.
For the cultivation charge, the government relied heavily on spreadsheets that documented Epis’s abandoned plans to start a medical marijuana collective in another part of California. The prosecution presented out-of-context excerpts of this evidence, printed from different computer programs in a manner that made them appear as a series of separate documents that could be applied to various locations. This argument was not lost on the jury, who convicted without being permitted to hear a medical defense from Epis or his attorney. Judge Damrell, who had strictly kept all evidence of California’s medical marijuana law out of the trial, adhered to the mandatory minimum and gave the defendant a sentence of ten years in prison. It was a blow that fell heavy on Epis, sending shockwaves through the medical marijuana movement as a whole.
Activists rallied around the case, mounting a billboard campaign and other public education measures, but Epis did not see freedom again for two more years. In August 2004, he was released on bail pending an appeal that cited prosecutorial misconduct. Not only has the prosecution been accused of deceptively manipulating the evidence, but there was another highly controversial move on the part of the government – in December 2005, U.S. Attorney Samuel Wong made a surprise admission that some of the evidence relating to the case had been mistakenly destroyed. These issues will be taken up once again in the 9th Circuit’s consideration of Epis’s appeal, and the decision of that court could make all the difference in the world.
Defense attorney Brenda Grantland photo by Tim Castleman
This appeal has been undertaken by defense attorney Brenda Grantland, who came into the case post-trial and has fought vigorously to have the conviction overturned. Most recently, though, she has been dealing with the re-sentencing of her client in district court, and in front of the same judge that handed down the original prison term in 2002. In what Grantland called a highly unusual move, the appellate court sent the matter back to U.S. District Court for re-sentencing midway through the appeal, without making a ruling on the case. This set the stage for a two-year struggle over safety valve qualification that might have allowed the judge to give a sentence below the mandatory minimum the second time around.
Predictably, the prosecution attempted to block every move towards safety valve consideration, and a series of evidentiary hearings on these matters spanned most of the past year. Wong argued that the safety valve did not apply because Epis had been untruthful on three specific topics during a 2005 debriefing hearing, and because he had been in a supervisory role regarding the 1997 grow operation. The first of these hearings brought forward two law enforcement officers, Shane Redmond and Ronald Mancini, who had participated in Epis’s bust and his prosecution. Both agents addressed the claim the defendant made during debriefing that the spreadsheets in evidence did not apply to his Chico growsite, and both acknowledged the overwhelmingly speculative nature of the documents. Epis himself echoed these characterizations when he later took the stand, saying the spreadsheets were fantastical daydreams whose scope could never be
Deputy Shane Redmond photo by Tim Castleman
realized by the capacity of the Chico site.
Also explored during the evidentiary hearings were two other points which Wong labeled as lies: Epis’s declaration that the marijuana grown in Chico had stayed in Chico, and statements he had given regarding the actions of acquaintance Keith Dusek. Since findings on these points also reflected on whether Epis had been the manager of the grow, a multitude of briefs from both sides passed through the court. These issues were still unsettled by the time the re-sentencing hearing began, and the looming decisions added to the tension of the proceedings.
“After a two-part hearing on the applicability of the safety valve, it’s now clear that the trial and sentencing were tainted by fake evidence,” Grantland told the judge. “We know now that it’s entirely true that the evidence didn’t apply to Chico, and that agents Redmond and Mancini lied at trial, and that Mr. Wong knew that.”
For his part, however, Wong was flatly dismissive of these allegations. “I deny that the agents lied. They just gave their opinions on interpreting the documents in evidence.”
Assistant U.S. Attorney Anne Pings, who prosecuted a high-profile medical marijuana trial in the same courtroom the month before, had seated herself in the gallery to watch the hearing. As Grantland persisted in her descriptions of lying cops and fake evidence, Pings shifted in her seat and snickered. “They’re smoking too much,” she jeered to the companion seated next to her.
Dismissing Grantland’s accusations, Wong persisted in his argument that Epis lied about the spreadsheets. Specifically, the prosecutor targeted the claim that the documents were simply unfulfilled plans for a Silicon Valley facility. According to Wong, they did apply to Chico, but Epis’s ambitions went far beyond a trio of collectives. “Mr. Epis was looking for a total of 100,000 members statewide,” Wong announced, putting an exhibit up on the courtroom projector. The document he displayed, as he described it, was part of the marketing plan seized from Epis’s home during the 1997 bust.
Wong focused on one sentence segment in particular, which spoke of the possibility that an “aggregation of twenty cannabis clubs” would “substantially affect interstate commerce.” The statement was followed by a list of twenty California cities, including the much-discussed Chico. In Wong’s assessment, this sentence demonstrated an intention to open an extensive network of medical marijuana dispensaries.
“The marijuana was destined for other clubs,” the prosecutor insisted. “We know the marijuana grown in Chico doesn’t stay in Chico.”
Grantland responded by criticizing the prosecutor’s use of “gerrymandered” statements, and also reinforced the claim that these documents were fleeting fantasies. “Officer Mancini said there was no evidence any plan was implemented,” the defense attorney pointed out. “It’s very clear these plans were abandoned…these are fleeting ideas he never finished.”
If the attorneys were looking for a conclusive response from the judge, they were certainly disappointed. “I’m sure the 9th Circuit is going to chew over that,” Judge Damrell mumbled. The lack of resolution did not deter Grantland and Wong, however, and the two proceeded to battle it out over the remaining issues.
On the matter of whether Dusek participated in the 1997 grow operation; Wong used trial transcripts to highlight the inconsistencies in Epis’s testimony. In the portions that the prosecutor emphasized, the defendant went back and forth in his answers, at times appearing to contradict himself. In one portion, Epis said he thought Dusek might have helped him put up mylar sheeting in the grow-room, but later affirmed that he asked him and paid him to do it. During the cross-examination, Epis also waffled on the question of whether Dusek had done more for the cultivation than just putting up mylar. “His testimony has changed, from the trial to the debriefing to the sentencing,” the prosecutor said of Epis. “It’s been all over the place. He has no credibility, your honor.”
Grantland explained that Epis had been guessing on the stand, struggling to remember events that had occurred five years prior to trial. As for some of her client’s statements, Grantland blamed the prosecutor. “Mr. Wong walked him into it,” the defense attorney claimed. “Later, [Epis] says ‘I don’t know if that’s right.’” Besides, she recounted, “Mr. Wong admitted that the others growing with Epis were not supervised by him—”
“I did not say that!” Wong broke in, denying Grantland’s assessment outright. In fact, the prosecutor took an entirely opposite view, declaring that Epis was undeniably the manager of the operation and that he had recruited Dusek into the conspiracy. “Epis provided the most to this operation – he provided the house, he provided the grow lights and the equipment, he provided the expertise…he had to tell the other people how the marijuana was to be grown. And he was also the person who was going to benefit the most from this grow operation.” Wong then displayed a document that he interpreted as Epis’s plan to pocket 38% of the funds generated from the marijuana sales. “He was in this for profit,” Wong concluded regarding the defendant.
Grantland scoffed, “Dividing up a harvest is not the same as managing a criminal operation.” Playing Wong’s game, she whipped out an exhibit of her own. Grantland called this paper a “chit sheet” made during a dispute with James Murphy, in which the defendant had recorded how much Murphy owed for his part of the cost of the grow. “Mr. Epis is not a manager of a criminal enterprise – those people don’t charge underlings for one-third of the expenses and split up the harvest.”
Judge Damrell, however, was swayed by the prosecution’s showing on this point. “I think it’s clear the defendant here was the linchpin to this operation,” the judge determined. “He was essential, the mainstay to this operation. It may have had some cooperative aspects, and I think that there was, but he was the mainstay of the operation, and it could not have happened without him. He advanced the costs. He took on all the attributes of a manager. The facts are overwhelming.”
But the judge was less decisive about whether Epis had lied during the debriefing hearing. “He may well have lied,” Judge Damrell said about Epis, shrugging. “I understand you feel very strongly about that, Mr. Wong. There was fudging and guessing. He was certainly cagey and coy. He was not as cooperative as I’m sure you would want him to be, but I don’t know that I can find that he actually lied. There were statements that were less candid than they could have been, and that troubles me, but there were also statements of uncertainty, and I’m not prepared to make that finding at this time.”
Wong, however, could not be deterred so easily, and he argued that the defense, not the government, had the burden of proof with regard to the safety valve. Grantland, putting forth her own set of precedents on the issue, broke in. “I think I disagree with that, your honor.”
“I thought you might,” Judge Damrell murmured, giving a shadow of a smile, murmuring. But the semi-smile evaporated as he flipped through the citations of case law. “There’s some opposite authority here,” he said, perplexed, as he sent the matter out for consideration by his law clerk. The courtroom paused in anticipation of the results, and after the clerk delivered her finding in a hush at the bench, the judge delivered the announcement soberly. “I misspoke – the defense does have the burden, and I find that the defense did not carry the burden.”
Nonetheless, this was only an inch, and Wong clearly desired a foot. “I would ask the court to make a finding on which statements the defendant was untruthful about,” the prosecutor pressed.
Judge Damrell was generous with his effort to satisfy the ravenous Wong, and specified that Epis had been untruthful about the role Dusek played in the grow operation. But this offering only increased Wong’s appetite, and the prosecutor pressed. “And about the marijuana staying in Chico?”
This time, the judge hit his limit. “How is that relevant?” he asked. “I’m talking about sentencing. There were many statements where the defendant did not carry his burden. He did not demonstrate that he told the truth, and he did not tell the truth, in my view.”
From the judge’s perspective, these details really didn’t matter. He had already found that the safety valve didn’t apply, and the rest of the arguments he saw as appellate issues. “That’s something for the 9th Circuit to consider. This is a sentencing hearing we’re dealing with now,” he reminded the attorneys. “The horse has left the barn on those issues as far as this court is concerned.”
Grantland made a final attempt to argue for a sentence below the mandatory minimum, but Judge Damrell struck her down by reciting a trio of precedents. The referenced cases involved cocaine, crack cocaine and methamphetamines, but the judge nonetheless found them applicable to Epis’s sentencing. “He was growing across the street from a school – it’s hard to get around that,” he added, looking back up at Grantland. “Are you arguing that the safety valve applies?”
“No,” Grantland responded. “I’m arguing that the mandatory minimum doesn’t apply.”
The judge was thoroughly unconvinced, resorting to declarations of powerlessness. “You’re asking me to go back and overturn the jury’s verdict, and I can’t do that.” Calling the result inevitable, he showed his full hand. “In 2002, I made no finding for downward departure. I make that same finding today.”
It was with this introduction that Epis was given the floor to make a statement. As there were no surprises in store for the pronouncement of his sentence, Epis did not adopt the tones of repentance that defendants typically employ in their pre-sentencing speeches. Instead, he unabashedly defended his actions and also did some defiant posturing against the federal government.
Defendant Bryan Epis photo by Tim Castleman
“One thing that’s quite ironic is that if California hadn’t passed the medical marijuana law, I wouldn’t be standing here today,” Epis began. In spite of that belief, however, he stated that he was glad that the law had passed, because it helped so many sick people. With increasing passion, he spoke of watching friends die of cancer and other fatal diseases, and also confessed to learning to move beyond his homophobia. “I am being prosecuted because I have a heart. I saw these people dying and I had to do something.”
Epis’s next move was a challenge, bringing up the proliferation of medical marijuana dispensaries statewide. “There are over a thousand in California, and they will keep growing, and the government doesn’t have the resources or the public support to stop it!” His words were fervent at this point – heated, dramatic, and heavy in emphasis.
“The feds can’t close all of them, but they can pick a few off, and that’s why the price is so high.” In particular, Epis claimed, these economics hinged upon his own operations. “If I hadn’t been prosecuted, patients would be paying $20 for an eighth instead of $60 an eighth.”
But the true outrage, according to Epis, was in the conduct of the prosecutors. “They deprived me of my Constitutional rights as perversely as anyone could be,” he proclaimed before turning to address the judge directly. “And you should be as mad as I am because they duped you too,” he said to Judge Damrell.
As he concluded his speech, Epis emphasized that his motives were not profit or greed, as the prosecution had tried to show. “I am not ashamed of what I did,” he declared. “Anyone with a heart should not be ashamed. But I am sorry I put my daughter, my mother, and the court through all of this.”
Given the opportunity to address the court, the prosecutor flatly contradicted the portrayal of Epis as a humanitarian. “The defendant is not the Mother Teresa of the medical marijuana movement.” Wong then referenced a document found in Epis’s home that indicated he kept track of a $15 debt owed to him by a fatal cancer patient. “He’s a penny pinching person,” Wong said of Epis. “He was in this to make money, and law enforcement interrupted. Otherwise, he would continue to reap profits off of so-called sick and dying people.”
The prosecutor also tried to undermine the political overtones of the case. “This case goes beyond medical marijuana – it goes into how much money Bryan Epis was going to make,” Wong told the judge. “He was making tons of money, your honor.”
After finishing his portrayal of the defendant as a greedy profiteer, Wong concluded his speech by affirming the authority of the government. “There is no such thing as medical marijuana under federal law, and federal law is supreme,” the prosecutor asserted. “[Mr. Epis] used Proposition 215 as a shield for him to make money, and he deserves his sentences.”
Judge Damrell then gave his own address, looking down grimly from the bench. “You have created a great deal of celebrity, and people feel very passionately about medical marijuana, but this case isn’t about medical marijuana,” he said to Epis, growing increasingly stern.
“If you paid more attention to the trial evidence than the cause you were supporting, then you wouldn’t be in this fix today,” the judge continued. “Not enough attention was paid to the evidence, and too much attention was paid to the cause.”
Suggesting that Epis has had too much time to pay to the cause, Judge Damrell went on to list conditions that allowed the defendant to devote himself to activism. “You’re living as a professional student, your mother supports you, you can do what you want. There’s nothing wrong with that. But it lends you to a celebrity that, frankly, I’m not sure you deserve.”
Furthermore, the judge claimed the case, at its core, was not a political one. “I am confounded that this is somehow about federal versus state law,” he said, shaking his head. “This is not about cold-hearted prosecutors versus compassionate defendants. Well, maybe it is – but not in this case. This case is about evidence.”
Although he gave a single sentence of lip-service to concern about sick and dying people, Judge Damrell repeatedly denied that this was a medical marijuana case. “This is not the landmark of medical marijuana. This is the U.S. versus Bryan Epis.” The judge then admonished both attorneys for losing perspective on the specificity of the case, before getting down to the actual pronouncement of the sentence. “This is not a political rally – it’s a lawsuit. Certain rules apply, and I’m going to apply them. I am going to apply, as I must, the probation recommendation. I can’t get below the mandatory minimum, and that’s exactly what I’m going to impose.”
Epis was then officially sentenced to 120 months on the conspiracy charge and 87 months on the cultivation charge, to run concurrently. He was also ordered to pay $200 special assessment and a $15,000 fee to the U.S. government, and to submit to the conditions of a 120-month period of supervised release following the prison term.
That said, the only question that remained was whether Epis would stay out of custody during his appeal, which was already in progress in the 9th Circuit. Although the higher court had already released Epis on bail, Wong described that ruling with skepticism and suspicion. The prosecutor said that the appellate court denied bail twice, but then in Wong’s absence, the third motion was granted without opposition from the government. “It’s my fault that I didn’t file opposition, but the court said I would have a chance and I was on vacation.” Wong cast suspicion on the successful motion while simultaneously emphasizing prior denials of the bail motion. “A different panel kept him in twice,” the prosecutor said of Epis.
As he flipped through the papers in front of him, Judge Damrell appeared to become more perplexed. “They just released the defendant, without even an argument,” he said of the appellate court, astounded. “The order doesn’t say anything.”
“No, but my motion says a lot. We showed other grounds for release,” Grantland said, directing attention to relevant sections of the bail motion. When the judge attempted to dismiss the consideration as irrelevant, Grantland took charge. “Well, then if it’s not relevant, you can disregard it,” she insisted.
After reviewing the selected paragraphs, Judge Damrell addressed the claims of prosecutorial misconduct made in the bail motion. “I suspected as much – we have had a lot about the Exhibit A issue,” the judge acknowledged. However, he also pointed out the other side of the issue, blaming J. Tony Serra, who served as Epis’s trial attorney. According to Judge Damrell, the defense was negligent in failing to adequately examine and challenge the controversial exhibit during trial. “It was in evidence, properly introduced by counsel. Mr. Serra chose not to oppose it.”
“Mr. Serra lost Exhibit A and Mr. Wong was missing two pages,” Grantland contended. “Mr. Serra backed down because Mr. Wong convinced him that—”
The judge interrupted, “He said/she said is not what I’m interested in.” He then turned back to address the decision on the motion. “The 9th Circuit allowed bail without comment when the statute says you have to find exceptional circumstances. I assume they did, and that it had to do with this issue.”
But Wong focused on the count of actual cultivation, arguing that even a successful appeal of the case would not affect the sentence on that charge. “On the manufacturing count, the defendant will go to jail on the 87 month sentence. That decision will not get reversed. It is, in effect, bulletproof. He has another 3-4 years.” The prosecutor made one final attempt to convince the judge that Epis should leave the courtroom in handcuffs. “He deserves an immediate remand, your honor,” Wong insisted.
Judge Damrell looked astonished by Wong’s request. “You’re not suggesting he is likely to flee, are you?”
The prosecutor was undeterred, “In light of the fact that he has 8 years coming—”
The judge cut in, stating that there was no evidence that Epis was going to flee the jurisdiction, nor any evidence that he is a danger to the community.” In addition, Judge Damrell admitted, the destruction of evidence made for exceptional circumstances in this case. “I just came in here one day to find out the evidence was destroyed,” he said, raising his eyebrows. “I think that’s pretty exceptional, isn’t it?”
Wong got defensive, attempting to justify the loss. “This was evidence the defense chose not to use at trial,” he began.
Judge Damrell would entertain no excuses. “But that doesn’t mean it should be destroyed,” he pointed out, repeating his earlier question to the prosecutor. “That’s an exceptional circumstance, isn’t it?”
Wong gave the judge’s description minimal acknowledgement, but stuck to his guns. “It’s unusual, but it doesn’t warrant bail,” he maintained.
The judge shook his head, resolute in his decision to let Epis stay out of custody for the time being. With a speech that echoed his earlier statements about the 9th Circuit, Judge Damrell left the decision up to the higher court. “The 9th Circuit will grant bail on this. They did it before and they’ll do it again,” he predicted. However, the judge decided that he would give the bail issue further consideration, allowing both sides to have another say. “I’m not going to remand the defendant today, but will continue the matter.”
He set a hearing for three weeks out, along with a briefing schedule, but Wong requested an extension because, as he put it, “Ms. Grantland tends to file briefs that are an inch thick.” After a round of laughter, all parties settled on a hearing date of October 22nd, 2007.
“You’ll have to be here at 10am,” Judge Damrell reminded the defendant sternly.
“Thank you, your honor.” Epis responded politely, but was unable to resist adding a snide correction, “I’ve always been on time.”
The court adjourned and all attendees quickly left the room. This included Shane Redmond, the deputy Grantland had publicly accused of lying, and who had sat watching the hearing with an unfalteringly pensive demeanor. Once outside the courthouse, Redmond took the opportunity to confront Epis and have a few words with the defendant. “I want to say that I didn’t lie – I just presented what I had,” Redmond said, building up to a gesture of camaraderie. “I just kind of fell into all this the way that you fell into it,” he told Epis soberly. The defendant nodded and shook Redmond’s hand, then returned to the side of his attorney as she fielded questions from reporters and activists.
In spite of the continued hearing on the bail issue, Grantland has been exceptionally confident that her client will stay out of prison indefinitely. In front of the courthouse, she told a gaggle of Epis’s supporters, “The next time we come here, he’s going to walk right back out.”
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