Bryan Epis Appeal On Hold Pending Supreme Court Raich Review 7/16/04

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Chico, California, medical marijuana patient and grower Bryan Epis won a victory of sorts this week when the US 9th Circuit Court of Appeals sent his case back to a lower court to review both his sentence and his conviction. The problem is Epis is already two years into a ten-year mandatory minimum prison sentence on Terminal Island, and the 9th Circuit's action ordered the lower court to wait until the US Supreme Court decides a California medical marijuana case that could influence whether his conviction will stand. That means Epis, a former law student and father to a 10-year-old daughter, will have to sit months, perhaps as long as a year, waiting for the Supreme Court to decide Raich v. Ashcroft, the medical marijuana case where the 9th Circuit found the Controlled Substances Act unconstitutional as applied to medical marijuana patients and providers in states where it is legal.

Bryan Epis
(photo courtesy The November Coalition)
Unless he is released on bail. Three previous motions to free Epis pending appeal have been denied without explanation. Attorney Brenda Grantland, who is representing him on appeal, told DRCNet she is about to file a fourth. "I'm concerned because the prior motions were rejected without explanation," she said, "but I'm hoping that since they have postponed making a decision indefinitely and because he could end up serving his entire sentence before this is decided, that will tip the balance this time. That would turn this into a really positive ruling," Grantland said.

Epis is serving the 10-year sentence after being found guilty of growing more than 1,000 plants and growing them near a school. During his trial, Epis and others testified that he was part of the Chico Medical Marijuana Caregivers, a group of four patients growing together, but federal prosecutors argued that he was involved in a commercial grow and was merely trying to hide behind the state's medical marijuana law.

"Set him free!" said William Dolphin, communications director for Americans for Safe Access (, the Oakland-based group that defends medical marijuana patients and providers. "Give the man bail and let him return to his daughter," Dolphin told DRCNet. "The 9th Circuit has effectively punted on this, waiting for the Supreme Court. It's one thing to let things drag out when it's a civil matter, like the Oakland Cannabis Buyers Co-op, but we're talking about a man in prison here. To take another year of this man's life waiting for this to be sorted out is not appropriate," he said.

While at this point, the 9th Circuit's decision to remand the case does not make things any easier for Epis, it does show the potential impact of a favorable Supreme Court decision in the Raich case, as well as illustrating the multiplying ramifications of the Supreme Court's Blakely decision last month. In that case, the justices ruled Washington State's sentencing guidelines unconstitutional, a decision that has been interpreted by legal scholars and federal judges alike as implicitly rendering the federal sentencing guidelines unconstitutional as well. (See related story this issue.)

"What the 9th Circuit's remand order does is find explicitly that if Raich is upheld, Bryan would get a new trial. That order will be published in the Federal Reporter, and that means it sets precedent," said Grantland.

It would have been difficult for the 9th Circuit to disagree with Grantland's legal arguments, since they relied on the court's own reasoning in Raich. In her brief to the court, Grantland argued that because medical marijuana has "no direct or obvious effect on interstate commerce," federal drug laws are being "unconstitutionally applied against the cultivation and consumption of the herb in this state." That is precisely what the 9th Circuit said in Raich.

"This shows the importance of the Raich case," said ASA's Dolphin. "It indicates that the Supreme Court decision in that case will affect a great number of other cases. We have already seen similar remands in the OCBC case, as well as cases in Ukiah and Marin County," he said. "The remand order also tells the district courts they need to reconsider cases based on the Raich decision, and it makes clear that the Supreme Court has the opportunity to effectively harmonize the conflict between state and federal law on this."

The 9th Circuit ruled that the lower court would have to reconsider the Epis case based on the outcome of Raich. If Raich is upheld, conviction would be unlikely. But in the case his conviction is upheld, the court also ordered the lower court to resentence Epis based on the Supreme Court's Blakely decision.

Epis appears to be one of the people for whom the Blakely decision was crafted. After being convicted on the cultivation charges, Epis lost the possibility of avoiding prison under the "safety valve" provision of the federal sentencing guidelines and had his prison sentence lengthened after the district court judge -- not a jury -- found that he had played a role as a manager or supervisor of a drug organization. Blakely says the judge cannot do that, so Epis appears due for a sentence cut if and when his conviction is upheld.

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Issue #346, 7/16/04 In the Wake of Blakely: Senate Committee Hearing Seeks Sentencing Fix, 2nd Circuit Seeks Quick Supreme Court Hearing | Bryan Epis Appeal On Hold Pending Supreme Court Raich Review | Movie Review: Maria Full of Grace | Nevada Secretary of State Says No to Three Ballot Initiatives, Including Marijuana Measure -- Sponsors Go to Court | MPP Pulls Out of Arkansas Medical Marijuana Initiative Campaign -- Locals Vow to Continue Ballot Qualifying Effort | Newsbrief: Delaware General Assembly Calls for Repeal of Higher Education Act Anti-Drug Provision | Newsbrief: Fiji Marijuana Farmers Resist Police Raids | Newsbrief: Drug Czar Flack Barthwell Steps Down in Senate Bid | Newsbrief: Iran Allows Harm Reduction Efforts in Heroin Fight (Unofficially, Of Course) | Newsbrief: Hiring Freeze at Federal Bureau of Prisons, Layoffs Possible Next Year | Newsbrief: Another Pain Doctor Indicted -- Could Face Death Sentence | Newsbrief: 20th Anniversary of Law Raising Drinking Age to 21 | This Week in History | Media Scan: Reason on Kerry, Daily Camera on New Prohibition | Job Opportunity: Communications Assistant, Drug Policy Alliance, NYC | The Reformer's Calendar

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