Dismiss Bryan Epis' Federal Case Due to Prosecutorial Misconduct and Because He Followed State Medical Marijuana Law

We, the undersigned, ask you to move to dismiss the federal case of Bryan Epis.

Bryan Epis was the first California medical marijuana patient prosecuted federally for growing medical marijuana as legalized by the state law. After getting a recommendation for medical marijuana from his doctor as required by California law, Epis began growing his own marijuana in his basement in Chico, CA in late December 1996, just after California's medical marijuana law took effect. He later agreed to allow four others (all with valid medical marijuana recommendations from doctors) to grow medical marijuana with him in his basement in early 1997.

While visiting his mother in Los Altos, 200 miles away (near San Jose in Silicon Valley), in early 1997, Epis read several newspaper articles announcing that the San Jose City Council had approved a medical marijuana dispensary ordinance." Epis obtained the guidelines from the San Jose Planning Department, and wrote a 16-page rough draft for the City Council. Embedded in the 16 page word processing document was an Excel spreadsheet Epis created listing hypothetical figures for number of members, sales amounts, etc., which went all the way up to 100,000 members.

Epis soon abandoned the idea for the Silicon Valley dispensary and never finished the draft. He directed his energies instead to learning internet programming languages, and built a hotel reservation web site, BestLodging.com. On June 25, 1997, the DEA executed a search warrant for Epis home and arrested him.

During the raid, they found 458 plants, which may seem like a lot, but these were small indoor plants with a growing space limited to 11 inches in diameter, producing ounce to ounce each. In contrast, outdoor plants can grow to 6 feet in diameter and produce 1 to 2 pounds each (64 times as much). The DEA has determined that the weight of a marijuana plant can be accurately predicted by the diameter of the plant. For that reason, some California counties, such as Santa Cruz County, base their medical marijuana growing guidelines limiting the grow to 100 square feet per patient. The total growing area for all five patients was only 117.875 square feet: (14 trays x 7.5625 square feet per tray in the bloom room (each tray is 33 inches x 33 inches) = 105.875 square feet, added to a 3' x 4' (12 square feet) vegetative room = 117.875 square feet). Additionally, 169 of the 458 plants seized on June 25, 1997 were seedlings. Half of them would have been discarded because they were "male" plants.

Assistant US Attorney Samuel Wong charged Epis with conspiracy to manufacture over 1,000 plants. The government had no direct evidence that Epis conspired with others to grow more than 1,000 plants, so the prosecutor and two agents took the Excel spreadsheet which Epis had created to import into the Silicon Valley dispensary proposal (Exhibit 27 at trial) and concocted expert testimony from Agent Ron Mancini and Agent Shane Redmond, claiming the figures in the spreadsheets represented "growth from the marijuana cultivation" from his marijuana garden in his Chico basement (200 miles away from San Jose).

When the court refused to allow the introduction of the larger San Jose Proposal under the "doctrine of completion" to explain what Exhibit 27 was, ruling I'm not going to allow the jury to hear what the San Jose City Council is doing with medical marijuana clubs, the false testimony about the figures in the spreadsheet was not rebutted. The jury convicted Epis of conspiring to grow more than 1,000 plants. In 2002, Epis was sentenced to a mandatory minimum sentence of 10 years.

After spending over two years in prison, after oral argument, the Ninth Circuit Court of Appeals remanded the case and released Epis on bail, as it had recently ruled in another case, Raich v. Ashcroft (later changed to Gonzalez v. Raich) that the federal government couldn't prosecute people following state medical marijuana laws when no commerce was involved. The remand order directed the district court to stay the case awaiting the outcome of the Supreme Courts decision in Gonzalez v. Raich, 545 U.S. 1 (2005), and if decided against Epis, to resentence him under "extant law." The Supreme Court reversed the Ninth Circuit on this issue.

In preparation for resentencing on appeal, the defense asked to view the evidence seized from Epis home (in search of further evidence of prosecutorial misconduct). After several delays, the prosecutor revealed that all of the evidence in the case had been destroyed except the governments hand-picked exhibits. When the district court demanded to know how that happened, the government produced affidavits detailing how evidence held in four different places was destroyed.

At first the district court agreed to allow the defense to depose the agents who made the decisions to destroy the evidence, and to conduct documentary discovery in anticipation of a hearing to determine if the destruction of the evidence was inadvertent or intentional. However, the prosecutor filed a motion arguing that the district judge lacked jurisdiction to delve into the destruction of evidence issue, because it was beyond the scope of remand. The district court judge acquiesced.

Epis is facing the prospect of going back to prison and serving 7 additional years for growing medical marijuana legally under state law. It would be a travesty for President Barack Obama to not uphold his promise to end the Bush policy of circumventing state medical marijuana laws with federal law.

It would be an even greater travesty to ignore the prosecutorial misconduct here, which is far worse than in the Ted Stevens case. Here, the government manufactured evidence and presented false opinion testimony by two police officers.

Accordingly, we, the undersigned hereby ask you to immediately move to have Bryan Epis' case dismissed (case # D.C. No. CR-97-00381-FCD).