Fw: [asa] Epis appeal arguments

[Guest guest]

I submit no opinion about smoking marijuana. I can only say that the marinol

capsules did indeed help my Dad when he was undergoing chemotherapy for

polycythemia vera.

~mk

 

_________

 

Epis Appeal Shows Transformation in Federal Marijuana Law

 

The appeal of Bryan James Epis’ federal conviction for growing medical

marijuana made clear that the legal landscape has changed. On Wednesday a

panel of the Ninth U.S. Circuit Court of Appeals considered arguments about

whether the precedent that court set in Raich v. Ashcroft should apply to a

medical marijuana patient who provided cannabis to other patients and a

non-profit dispensary. That December ruling established that it is

unconstitutional for the federal government to prosecute patients and

caregivers who grow and distribute marijuana in compliance with state law

and receive no money for it.

 

Appellate attorney Brenda Grantland told the court that Mr. Epis’ case fit

the standard set by Raich, as evidenced by the injunction issued in the

case of the Santa Cruz Wo/Men’s Alliance for Medical Marijuana by U.S.

District Judge Jeremy Fogel, who ruled the precedent protects the

activities of that 250-member collective. Ms. Grantland told the court that

Mr. Epis’ activities were no different, because nearly 95% of the marijuana

grown in his home was for his own use or that of four other patients with

whom he’d formed a cooperative. The excess was donated to the Chico

Cannabis Caregivers’ Association, a non-profit dispensary that had agreed

to reimburse him for his expenses but never did so. Ms. Grantland argued

that this was essentially identical to the activities of the two “John Doe”

caregivers who provide Angel Raich with the nine pounds a year of cannabis

she needs to treat her conditions.

 

Ms. Grantland also argued that the prosecution’s portrayal of Mr. Epis as a

major drug dealer was based on misconduct by Assistant U.S. Attorney Samuel

Wong. AUSA Wong claimed at trial that documents found on Mr. Epis’ computer

showed projected profits of more than a million dollars a week. Ms.

Grantland said the prosecution knew the spreadsheets contained dummy

numbers that had nothing to do with his Chico operation, pointing out that

the 15’ x 15’ foot growing area was only producing 18 foot-high plants a

week, almost all of which was used by Mr. Epis and his four fellow-patients.

 

At trial, Mr. Epis was not allowed to present any evidence of his own

medical condition – chronic neck and back pain resulting from a near-fatal

car accident -- the California law legalizing medical marijuana which was

passed just months before his arrest in Chico, or the humanitarian nature

of his work. Yet most of the questions from the panel involved the details

of state law, what medical testimony the jury heard, and how much cannabis

a typical patient might consume.

 

Judge Donald Lay, on loan from the 8th Circuit, demonstrated that he’d done

his homework on the case by asking first about the Peron decision, a

California case that had found most methods of collective distribution did

not fit with state law. Ms. Grantland pointed out that the state

legislature has since “clarified” Proposition 215 by passing SB420, which

expressly allows patient collectives and remuneration.

 

The judges also wanted to know if the jury had heard evidence that there

was any non-medical distribution, if they’d been told how much cannabis a

patient would use, or anything about the cooperative arrangement Mr. Epis

had with the other patients. The answer to all was “no” because, as the

panel was no doubt well aware, federal courts have never allowed medical

testimony to be introduced at trial, since marijuana violations have never

before been found to be crimes of intent. Before the Raich ruling, why

anyone was growing or using cannabis or how it was distributed was

considered irrelevant. The care the judges took to establish that this

evidence was not introduced indicates the precedent set in Raich has

changed that, and suggests that the appeals court may find Mr. Epis had a

right to present that evidence to the jury.

 

In a similar case, a federal judge in Los Angeles has recently ruled that a

pair of medical marijuana defendants there will be permitted to present

evidence that they were in compliance with state law. If the jury finds

they met the standard set by Raich, he said he would instruct them to

acquit.

 

The limits of the Raich precedent were also an issue for the appellate

judges. Judge Jay Bybee, asked what it would take for a medical marijuana

provider to run afoul of the federal jurisdiction over interstate commerce

that is the basis for marijuana prohibition. Ms. Grantland said the plants

would have to cross state lines. When Judge Bybee expressed skepticism,

noting the standard has been different for some time and asking if this

only applied to agriculture, she referred to recent decisions that limited

the Commerce Clause jurisdiction of the federal government, even in cases

where equipment involved had crossed state lines.

 

AUSA Wong faced tougher questioning, with Judge Lay saying, “What bothers

me is how you convinced the jury of conspiracy.” He asked AUSA Wong what

evidence there was of a thousand plants being grown, noting that only 458

had been seized. He said a conspiracy conviction based on what Mr. Epis

might have done in the future was “tenuous.” AUSA Wong replied that once a

plan was made, the crime was complete, and that the jury had found there to

be a conspiracy to grow more than a thousand. AUSA Wong also faced

skeptical questions on the sentencing “enhancement” for Mr. Epis being a

manager of the operation, which he claimed was justified because Mr. Epis

had “instructed” one of the other patients on how to grow marijuana and

told another to hang Mylar.

 

AUSA Wong further contended that the new state law limits patients and

caregivers to 6 plants, which is not true, and that the Chico operation

exceeded that. But Judge Bybee noted that 18 plants divided by five

patients seemed to be well within that standard.

 

Steph Sherer

Executive Director

Americans for Safe Access www.safeaccessnow.org

1678 Shattuck Ave. #317

Berkeley, CA 94709

phone: 510-486-8083

fax: 510-486-8090

 

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