Feds' Tangled Web Unraveling in Epis Case

[Tafari]

I meet Bryan Epis at the 2005 Norml Conference. A great guy, I hope you are all going to the 2006 Conf. in S.F April 20-22.

Tafari

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C Notes 12/14/05 by Fred Gardner

Feds' Tangled Web Unraveling in Epis Case

The judge who sentenced Bryan Epis to 10 years in federal prison now
realizes that Epis was the victim of prosecutorial misconduct, according
to Brenda Grantland, the lawyer handling Epis's appeal. Epis, 38, was
convicted in 2002 of conspiracy to cultivate more than 1,000 cannabis
plants. He was granted bail in August 2004, after serving more than 25
months. The government is intent on sending him back to prison.

Grantland charges that at Epis's trial, Assistant U.S. Attorney Samuel
Wong misled the jury and U.S. District Judge Frank Damrell about a
crucial piece of evidence -a spreadsheet Epis had drafted in early 1997
when he briefly contemplated opening a dispensary in Silicon Valley.
Epis's 16-page business plan for the Silicon Valley dispensary was on
the computer that DEA agents confiscated in June, '97, along with 485
plants, when they raided the 15'-by-15' grow-site Epis maintained in his
basement in Chico. Epis said he had been growing for himself and four
other documented medical users, and providing a small surplus (for which
he was never remunerated) to a dispensary called Chico Medical Marijuana
Caregivers (CMMC).

The U.S. Attorney offered Epis a four-year prison term if he'd plead
guilty to criminal cultivation. When Epis refused, a
conspiracy-to-grow-more-than-a-thousand-plants charge was added (by
factoring in plants he planned to grow in the future). None of his
alleged co-conspirators were charged.

When the case finally came to trial in 2002, the prosecution took a
one-page spreadsheet from the Silicon Valley plan and introduced it as
evidence of Epis's financial goals for his basement garden in Chico.
Wong referred to Epis's "marketing plan" in his opening statement and a
DEA agent and a former Butte County Sheriff's deputy made much of the
"marketing plan" in their testimony. Epis himself didn't recognize the
out-of-context excerpt of a document he'd created more than five years
earlier, and he had a hard time on the stand trying to explain it. Epis
had not read through the exhibits the prosecution provided the defense
as part of pre-trial "discovery" proceedings, and apparently neither had
his lawyer, Tony Serra. Epis studied a blow-up of the spreadsheet on the
courtroom wall and said he thought it might be a projection of expenses
and costs for a group of dispensaries seeking to bring the price down to
$20/eighth-ounce.

The spreadsheet undermined Epis's claim that his cannabis cultivation
was not geared towards moneymaking. Wong asked if the spreadsheet was in
fact Epis's "marketing plan," and when Epis said no, he introduced into
evidence two more pages of the (Silicon Valley) proposal that referred
to the spreadsheet as a "marketing plan." The jury took only four hours
to find Epis guilty of conspiracy and cultivation (within 1,000 feet of
Chico Senior High School). At a sentencing hearing in October 2002, Wong
portrayed Epis as "no different than any other drug trafficker that this
court has seen and sent to jail."

Epis is now 38. At 17 he was in a near-fatal car crash that left him
with two compressed vertebrae. Prescription painkillers sapped his
energy; marijuana enabled him to function. He got a degree in
electrical engineering at Chico State, then a law degree from Cal
Northern School of Law. (Epis drafted the elaborate Silicon Valley
proposal as an exercise of sorts, putting to use what he'd learned in
law school about how to write a business plan.) He never practiced law
and doesn't expect to.

Damrell sentenced Epis to 10 years, the mandatory minimum, and denied
him bail pending appeal. The Sacramento Bee pinpointed Wong's triumphant
tactic: "The prosecutor argued that Epis's 'lame story about planning to
make only $10 an hour' from the work he did for the dispensary is belied
by profit projections on documents he created and which were found in a
search of his home. 'What he saw in Proposition 215 was a license to
grow and market marijuana to make money,' Wong told Damrell. 'Every time
he wrote down something about marijuana, he wrote dollar signs next to
it.'"

Epis served 25 and a half months in federal custody. After the Ninth
Circuit Court of Appeals ruled in December '03 that Angel Raich and
Diane Monson could cultivate cannabis for medical use within California,
Grantland was able to get Epis out on bail. (It took until August '04.)
The Supreme Court's ruling against Raich-Monson in June '05 might have
triggered his prompt return to prison if not for the appeal Grantland
had mounted in connection with Wong's misconduct.

Belated Discovery

The night after he'd testified, Epis realized that the damning
spreadsheet had been part of his Silicon Valley business plan. A frantic
search of his papers turned up most of the 16 pages -but not the
spreadsheet itself. Serra submitted the incomplete version to the court
as Defense Exhibit A, but Damrell did not accept that the unstapled,
out-of-order pages created in WordPerfect were part of the same document
as the spreadsheet, which was in color and created in Excel. Serra asked
Wong if the Silicon Valley plan had been provided on discovery and Wong
replied, according to the transcript: "the two-page document and the
one-page document were turned over in discovery." During a recess Serra
asked Wong if he could look through the discovery materials (his own set
being back in San Francisco), and Wong would not extend the courtesy.

In early 2003, Grantland began reviewing the case file. It was
incomplete, she realized. She was told by the court reporter that all
the government exhibits had been returned to Wong. The court reporter
didn't recall there being any defense exhibits. Grantland was told by
Serra that during the move of his office from Pier Five to North Beach,
various items had been misplaced. (This a tale of prosecutorial
misconduct but the pre-Grantland defense doesn't come off covered with
honor.) Among the items Grantland couldn't find was the marked copy of
Defense Exhibit A that Serra tried to introduce as evidence at trial.
Epis, from prison, "kept insisting that the whole proposal had been
among the discovery materials," Grantland says. Also, Epis realized
belatedly, a complete version would exist on his confiscated computer.
Grantland decided to continue searching and, in a carton that appeared
to be unrelated to the case, she found a red notebook full of articles
about medical marijuana and... the entire Silicon Valley proposal. The
notebook contained 150 pages that DEA agents had printed out from Epis's
computer and turned over to the defense in discovery. Also included was
a cover letter to Serra's office from Nancy Simpson, the assistant U.S.
attorney who preceded Wong on the case, stating that DEA Agent Ron
Mancini was in charge of the prosecution evidence.

In October, 2003, Damrell conducted a special "Rule 10(e) hearing" to
resolve discrepancies in the record. Wong protested Grantland's
substitution of the Silicon Valley proposal she'd found among the
print-outs for the partial version Serra tried to submit as evidence.
Grantland protested Wong's refusal to provide the entire document and
his original attempt to mislead the court about the nature of the
spreadsheet. The focus of a 10(e) hearing is narrow: deciding whether
challenged documents should be included or excluded from the record that
the appeals court will review. New documents cannot be added during a
10(e) hearing. Wong tried to keep the new material out but Damrell said
he'd allow it "for the purposes of this hearing only." Wong denied that
the pages describing the business climate in San Jose were from the same
document as the spreadsheet/"marketing plan" introduced at trial as
proof of Epis's criminal activity in Chico. "Wong is lying to you as we
speak," Grantland told Damrell. "The court has a duty to correct
prosecutorial misconduct and false testimony at the moment it happens."
Damrell made a finding that Wong's version of Defense Exhibit
A -scrambled and missing several pages- was the real one for purposes of
the record. Grantland was dismayed.

In June 2004 the Ninth Circuit Court of Appeals heard oral arguments on
the case. Wong opened himself up for questioning on the spreadsheet
maneuver by saying "Miss Grantland falsely accuses me of prosecutorial
misconduct." All three judges proceeded to examine him relentlessly.
Soon thereafter Grantland filed a bail motion for Epis which the Ninth
Circuit granted without asking Wong to respond. The appeals court also
remanded Epis's case to Damrell for resentencing and retained
jurisdiction over the appeal.

Damrell heard oral arguments on the re-sentencing motion last week
(12/5/05) Here's Grantland's account:

INDENT

" While I was sitting waiting for the judge to take the bench, AUSA
Samuel Wong came up to me and handed me a memo which said: 'DEA Special
Agent Brian Nehring is the new DEA agent assigned to the Bryan Epis
case. Special Agent Nehring informs me that one of the agents assigned
to this case after DEA Special Agent Ron Mancini's departure mistakenly
allowed the documents seized from Bryan Epis' home to be destroyed. I
am awaiting my receipt of reports on the destruction of the documents
and will forward them to you upon my receipt. On behalf of the United
States, I sincerely apologize for this error.'

"Of course I was livid. We have been trying to get access to the 10 or
20 boxes (or more) of stuff they took from Bryan's house in order to
look for more evidence of government wrongdoing. Plus we needed his
medical records because the government is disputing that Bryan had a
legitimate need for medical marijuana.

"When the judge called the case, he asked me to start by telling him why
I thought we needed an evidentiary hearing. I told him we needed to
resolve the dispute over the two government exhibits which are the heart
of our prosecutorial misconduct charge, and which the government is
still asking the court to rely on in sentencing Bryan. (We now have
evidence in the record to show that the documents were excerpts from a
totally irrelevant proposal for a dispensary in Silicon Valley that was
never started, and that the two agents lied when they said the exhibits
showed that Bryan actually made or expected to make -off the tiny garden
in his basement- $4 million dollars a week, or some such nonsense.
That's what Wong argued in his opening statement, so it's clear that he
coached them to say that.)

"And then I told the judge about the memo I got from Wong today, saying
the evidence had been destroyed except for the government's exhibits.
The judge couldn't believe that could happen and wanted to hear about it
from Wong. Wong said, yes it is unfortunately true that the evidence
was inadvertently destroyed. Judge Damrell said [I'm paraphrasing]:
'That can't happen. I've never in my career known that to happen.
Somebody has to give the order to destroy evidence. I'm not accusing
you. Mr. Wong, but I can't see how this could have happened
inadvertently.' Wong said they mistakenly thought the case was closed.
Damrell said 'How could they mistakenly decide the case was closed?
Especially a case like this? Someone would have to tell them that.'

"After that, Wong's credibility pretty much shredded by his own lies and
corruption, the judge granted my request to depose the officers who were
responsible for safekeeping of this evidence and the decision to destroy
it. He gave Wong two weeks to submit a declaration explaining the
circumstances of the destruction, plus an inventory of all the evidence
that was seized. I have an opportunity to reply after that, and we set
a status hearing for January 17. I guess I'll be conducting the
depositions in the first half of January.

"Judge Damrell also agreed to give us an evidentiary hearing on our
prosecutorial misconduct claims, at a future date, to be set later. Wong
of course is claiming that Bryan wasn't truthful in his debriefing last
Monday, so he'll get to put on those claims at the evidentiary hearing.
The judge said the new destruction of evidence issue might become part
of the evidentiary hearing, but he would decide after he learns more
about it.

"At the Rule 10(e) hearing, Judge Damrell was agreeing with Wong that
these are different documents, and that Wong really hadn't lied about
it. Today, when Wong tried to tell Damrell that we had already been
through this at the Rule 10(e) hearing and the judge had concluded that
these were different documents, Judge Damrell said something like 'We
didn't have a full hearing on this at the 10(e) hearing because it was
beyond the scope. There was a lot of confusion then about these
documents. Now I'm looking at these documents side by side, and they're
all the same document.' Wong argued with him, saying... Gov. Ex. 27
[the one-page spreadsheet] related to the Chico grow. Judge Damrell said
'It's obvious now that they're all from the same document.'

"Another good sign was, Judge Damrell was asking me what my research
showed about the kinds of relief he could give us in this weird
mid-appeal remand posture, if he were to find prosecutorial
misconduct...

"After the hearing Bryan and I went to the probation office to read the
330 letters the court has received so far asking for leniency in Bryan's
case. (They're still trickling in, the probation officer says.) It took
hours and we only got halfway through. We'll have to read the rest next
time. It was very draining. There were many sad stories in there, and
many people who said poignant things. And some funny ones... The
probation officer who has read the entire 330 said that she didn't
recognize any of the ones I brought in today. So the total number of
letters is probably somewhere between 350-370!

"Thanks for all your support. Most of all it shows the public cares
about this travesty. And that a lot of people are watching the
government's conduct here."

A Note about Chico

Chico is a small city near the Northern end of California's Central
Valley where the farmers grow rice and olives on vast tracts. The main
claim to fame of the local college, Cal State Chico, is binge drinking.
When Bryan Epis went there in the mid-1980s, Cal State Chico regularly
won Playboy's "party-school-of-the-year" award.

One of the potentially important medical uses of cannabis is as an
alternative to alcohol. Tod Mikuriya, MD has written on the subject:
"Patients self-medicate with alcohol and/or cannabis in pursuit of
similar short-term results, including disinhibition, analgesia,
euphoria, and stress reduction. Although the desired results are
apparently similar, the actual biological effects are as dissimilar as
the two drugs' mechanisms of action. For example, alcohol 'helps' PTSD
patients by obliterating disturbing memories -the patient speaks of
'becoming blotto'- whereas cannabis enables him/her to see and act upon
past problems from a distance, and soberly.

"Although medicinal use of cannabis by alcoholics can be dismissed as
'just one drug replacing another,' lives mediated by cannabis and
alcohol tend to run very different courses. Even if use is daily,
cannabis replacing alcohol (or other addictive, toxic drugs) reduces
harm because of its relatively benign side-effect profile. Cannabis use
is not associated with car crashes; it does not damage the liver, the
esophagus, the spleen, the digestive tract. The chronic
alcohol-inebriation-withdrawal cycle ceases with successful cannabis
substitution. Sleep and appetite are restored, ability to focus and
concentrate is enhanced, energy and activity levels are improved, pain
and muscle spasms are relieved. Family and social relationships can be
sustained as pursuit of long-term goals ends the cycle of crisis and
apology."

If ever there was a setting where cannabis use should be encouraged for
harm-reduction purposes, it is Chico, California. Mikuriya's paper on
"Cannabis Substitution for Alcohol" (O'Shaughnessy's, Summer 2002)
suggests that a person's drug of choice is heavily influenced by social
context in adolescence and early adulthood. It makes sense that the
ratio of alcohol users to cannabis users would be lower if college
students wishing to self-medicate in pursuit of dishinhibition,
analgesia, euphoria and stress reduction had a legal setting in which to
do so. If there are any administrators at Chico who really care about
the students' well-being, they should let the sheriff and the DEA know
that a cannabis club in Chico would be a boon to public health. Student
Health Services should approve its use. Students at Cal State Chico can
be expected to press this demand as the medical marijuana movement
advances. --