9th Circuit orders district court to release Bryan Epis on bail
Today the Ninth Circuit issued its third order this month in
Bryan Epis' case, this time ordering the district court to release Bryan on
bail pending appeal!
Epis was convicted of conspiracy to grow 1,000 marijuana
plants, in a federal trial in which the jury was repeatedly instructed that
medical marijuana was not a defense to a federal criminal charge. Despite the
instructions, a lot of medical evidence came in at trial -- mostly through the
cross-examination of defense witnesses by prosecutor Samuel Wong -- including
testimony about the five patients that were growing together in Epis' basement
and sharing the work and harvest. All of them had doctors' recommendations --
so under the Ninth Circuit's decision in Raich v. Ashcroft, all of the plants
shared between the five patients would be exempt from federal control, since
their activities were legal under state law.
What was left over from their harvests -- 6% of the
marijuana grown by the group over the few months they were in operation -- was
shared with the Chico Medical Cannabis Caregivers, which provided medical
marijuana to patients with doctors' recommendations. Although the CMCC received
reimbursement from patients, the payments were voluntary, and indigent patients
were provided medical cannabis without charge. Although it was originally
agreed that CMCC would reimburse Epis and the others for the amount they
contributed to the club, the evidence showed that they were never actually
paid. Issues regarding reimbursement and medical cannabis dispensaries like
CMCC were not covered in the Raich decision, and still have not been decided by
the Ninth Circuit.
Bryan Epis' oral argument in the Ninth Circuit was held on
June 18, 2004. (You can listen to it on the 9th Circuit website, in the audio
recordings section. Look for case number 02-10523.) On July 12, the Ninth
Circuit issued an order remanding the case back to the trial court for further
proceedings in light of Raich v. Ashcroft, but told them to wait until the
Supreme Court decided the Raich case to make these findings.
On July 26, I filed Bryan's fourth motion for bail pending
appeal, this time arguing in the alternative that they should reconsider their
order remanding the case and putting it on hold pending the Supreme Court's
decision in Raich, because Bryan was incarcerated. I showed in the motion that
Bryan had already served more time pending appeal than the federal sentencing
guidelines would permit for the 32 to 52 plants they distributed through the
Chico dispensary if those were found to be illegal at all! The government's
opposition was due yesterday, and so far I haven't received it. Maybe they
didn't file anything.
Today, the Ninth Circuit ordered Bryan's release, leaving
the conditions of bail pending appeal up to the trial judge -- Judge Damrell in
Sacramento. I have been in contact with the courtroom deputy about scheduling a
hearing sometime next week. I did not hear back from her by the close of
business today, so there won't be any word on when the hearing will be until Monday
at the earliest. In the meantime, I contacted the federal prison and had the
Ninth Circuit fax the order to them. It is conceivable that the prison will let
Bryan out before Judge Damrell takes any further action, since the Ninth
Circuit ordered him to release Bryan.
Bryan commented today, in a phone call from Terminal Island:
"I feel ecstatic that I'm being released pending the Supreme Court's
future affirmation of Raich v. Ashcroft, which at a minimum will allow a new
jury to hear the truth about my medical marijuana defense. I'd like to thank
the literally thousands of people who supported me during my incarceration, especially
my daughter, my mom, Cheryl, and the rest of my family, Steph Sherer, Hilary
McQuie and everyone else at Americans for Safe Access, Angel and Robert Raich,
and Dale Gieringer at California NORML. They gave me the strength I needed
while being incarcerated for the crime of implementing
