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 California law."