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July 27, 2012

Fascinating deal cut in federal habeas action brought by California pot dispensary owner

A helpful reader alerted me to this Sacramento Bee story from earlier this week, headlined "Plea cuts prison term for medical pot seller Bryan Epis," which reports on a remarkable resolution to a remarkable federal criminal justice matter in California. Here are the highlights:

Bryan James Epis, the first person associated with a California cannabis dispensary to duke it out at trial with federal prosecutors over medical marijuana, has had 2 1/2 years whacked off his mandatory 10-year prison term.

Epis, who has been locked in a pitched battle with law enforcement over his cultivation and use of marijuana for almost 20 years, is an inmate at the Terminal Island Federal Correctional Institution in Southern California.  He now should be released in early 2014 instead of September 2016, and will be supervised by probation officers for 10 more years.

The 45-year-old Epis established a cannabis club in Chico, one of the first in the state after passage in 1996 of a California ballot initiative permitting medicinal use of marijuana with a doctor's recommendation.  At the conclusion of a highly publicized trial a decade ago in Sacramento federal court, he was found guilty of conspiring to produce 1,000 or more plants at his home within 1,000 feet of Chico High School.  The crime carries a mandatory minimum 10 years behind bars.  He was free for much of the intervening time pending efforts to overturn the conviction.

The rare agreement, which was approved Tuesday by U.S. District Judge Garland E. Burrell Jr., is surprising on multiple levels:

• Federal prosecutors signed off on it, yet they have zero tolerance for defendants who do what they say Epis did -- grow pot out of a greedy hunger for huge profits.

• The government had argued for years that Epis deserved no reduction because he was less than forthcoming at a debriefing by prosecutors and agents.

• The original sentence is statutorily mandated and had been upheld on appeal.

• The trial prosecutor, Samuel Wong, is known as one of the toughest in the business on pot growers, yet he agreed to the reduction....

A common thread that has run throughout the case, starting with the trial, is Epis' claim that Wong relied heavily on false and misleading evidence, and arguments regarding a spreadsheet seized during a search of his home that the prosecutor knew had nothing to do with the charges in the indictment.  Wong heatedly denies the accusation, arguing an appeals panel rejected the claim.

In April, Hollows scheduled an evidentiary hearing on the issue for June 13. At a pre-hearing conference on June 4, Epis attorney John Balazs and Wong informed Hollows they had reached an agreement....

U.S. Attorney Benjamin Wagner said Tuesday a recent U.S. Supreme Court opinion may have made Epis' challenge more viable.   "As set forth in the settlement agreement, Bryan Epis claimed that his trial attorneys rendered ineffective assistance to him with respect to their advice concerning the United States' pretrial plea offer," Wagner said in a prepared statement. "As also detailed in the agreement, his trial attorneys did not refute that claim, and under recent Supreme Court precedent, Epis therefore might have been entitled to some relief."...

Epis, who has a law degree, said Monday that, "given the risks involved in further litigation and the low track record of success in habeas cases in general, I accepted the government's offer despite all its conditions."

One of the conditions Wong insisted on was that Epis give up his constitutional right to speak out in favor of medical marijuana and across-the-board legalization through the end of his supervised release. Epis stands as a symbol among marijuana advocates of the sacrifices they feel have been made in the face of an intractable federal stance on the drug.

"Although we had strong claims, I understand and concur in Bryan's decision to accept the government's offer … in order to get back to his family as soon as possible," Balazs said Monday.  "At the same time, it seems un-American for the government to insist … that Bryan give up his First Amendment right to advocate for the reform of our country's marijuana laws."

The helpful reader who alerted me to this story was Epis attorney John Balazs, who has also told me that Bryan Epis has given him permission to share info and comments about his case and that he may provide some additional "blog copy" about this fascinating case in the near future.

July 27, 2012 at 05:12 PM | Permalink

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Comments

Good to read .
The defendant’s law degree probably gained him a tad of credibility →}speculation on my part , of course{← ‼

Posted by: M. Blank | Jul 27, 2012 5:22:09 PM

I don't get the first amendment restriction. Why be afraid of a little constitutionally-protected speech, feds?

Posted by: Guy | Jul 27, 2012 8:58:07 PM

lol

why not agree guy! get it and then tell them to shove it! and file a first admendment civil rights case in civil court! That one doens't have a snowballs chance in hell of being held up!

That way he can get out and GET RICH! after the civil suit!

Posted by: rodsmith | Jul 27, 2012 9:48:48 PM

Why do I feel your article is just incomplete and it surely is not appealing to me? How will it convince the other people…? You’ve got to do something with this problem of yours and try to do well before you lose your fan followers too.

Posted by: Buy Generic Viagra | Jul 28, 2012 3:29:44 AM

Epis committed a federal crime (albeit a misguided one that is unconstitutional under any common sense reading of the constitution), and therefore is legitimately subject to punishment. He also was entitled to effective assistance of counsel regarding any plea agreement the government may have offered. It looks like this agreement is for the most part a reasonable resolution of the situation.

But how can we countenance a deprivation of his First Amendment rights during the period of supervised release? I know that courts have approved the deprivation of certain rights during the pendency of SRT, such as the Fourth Amendment, but the First Amendment is different. While the Government has a legitimate cause for keeping (most) convicts from possessing firearms, or for requiring them to submit to searches by probation officers, what possible legitimate purpose is served by prohibiting Mr. Epis from advocating on behalf of drug law reform? There's a reason we talk about the "firstness" of the First Amendment: insofar as it guarantees the freedom of conscience, it is a right the absence of which most Americans would equate with the absence of democracy.

What this reveals to me is just how paranoid and antidemocratic the drug warriors have become. They have long been willing to sacrifice the Fourth Amendment in pursuit of the policy of drug eradication, but now they don't even want people to talk about whether the laws should be changed. This is not like prohibiting a defendant from profiting from his personal story--it actually restrains him from commenting on government policy that he believes should be changed, at least if the Sacramento Bee story is to be believed.

I can't blame Mr. Epis for accepting this obvious contract of adhesion, but I'm amazed a court is willing to accept it. Aren't courts supposed to look out for the rights of the accused? What kind of precedent does this establish?

Maybe Rupert Murdoch can be found liable for some violation of the Federal Wiretap Act, so that he can be required, in order to avoid jail time, to direct Fox News to stop saying unfavorable things about Barack Obama.

Posted by: C.E. | Jul 28, 2012 3:48:23 AM

C.E. --

1. I agree that the advocacy restriction is pointless, but not because it will actually stifle advocacy. It's pointless for the opposite reason: There's going to be plenty of pro-pot advocacy anyway, from a zillion other people, so it makes no difference whether there's one more, or one fewer, voice in the crowd.

2. In order to get Lafler/Frye relief, the advice of counsel must have been plainly blockheaded (no, that's not the legal wording, but it's what it amounts to). It's entirely unclear from the article that Epis could meet this test. On the other hand, persumably the USAO knows the particulars of the case better than we do.

3. "I can't blame Mr. Epis for accepting this obvious contract of adhesion, but I'm amazed a court is willing to accept it. Aren't courts supposed to look out for the rights of the accused?"

Principally, courts are supposed to adjudicate cases. Adjudication in this day and time almost always means settlement by agreement, both in civil and criminal law. Defendants (particularly a defendant who is a lawyer and has a lawyer) can look out for their own rights and, in particular, can decide whether waiving those rights in exchange for something they view as more valuable is worth the candle. This is absolutely standard practice. Indeed, it is the definition of plea bargaining at all, in which the defendant waives his constitutional right to a trial in order to get something (usually a lighter sentence) that he wants more.

4. "What kind of precedent does this establish?"

None, since existing law already establishes that a sentence may properly include restrictions of First Amendment-protected activity.

5. "Maybe Rupert Murdoch can be found liable for some violation of the Federal Wiretap Act, so that he can be required, in order to avoid jail time, to direct Fox News to stop saying unfavorable things about Barack Obama."

Yes, maybe he can, but it wouldn't make any difference. We already have his Secretary of Defense saying unfavorable things (the upcoming cuts in the military budget will be "devastating" to the country's security), and Obama will still have his shills on MSNBC (and Newsweek, Time, the NYT, etc.) to be the Fox antimatter.

And not that that will make any difference either. If we have another quarter of 1.5% "growth," Obama is toast no matter who says what. Right now, he's tied in Gallup and five points behind in Rasmussen, the two pollsters with the best prediction records over the last several cycles.

Posted by: Bill Otis | Jul 28, 2012 7:34:27 AM

The feds care about this specific person's advocacy as compared to the "zillions" in part: "Epis stands as a symbol among marijuana advocates of the sacrifices they feel have been made in the face of an intractable federal stance on the drug." Symbols matter in causes and repeatedly (and logically enough) attempts are made to shut them up.

Posted by: Joe | Jul 28, 2012 11:47:20 AM

Joe --

I agree that symbols matter, but Epis is hardly the foremost symbol for the illegal drugs movement. In fact, I never heard of him before now, even though I follow this issue. Plus, as I said, I have no particular use for this deal, since -- as happened the day it was signed -- Epis's advocacy will be carried on by his lawyer and his acolytes.

And, contrary to the article, the federal "stance" has hardly been intractable. Obama and Holder both said they were going to lay off "medical" marijuana in the states that approve it, but they were reluctantly pushed off their tolerant position by dispensaries that made it clear that they had absolutely no intention of making any effort to limit distribution to the medically needy, and instead would just go gung ho to implement exactly what the voters rejected, to wit, recreational pot.

If they had shown a little self-restraint, Holder would have kept his end of the (sub silentio) deal. But they didn't, so he didn't.

Posted by: Bill Otis | Jul 28, 2012 12:24:50 PM

What a novel notion, Bill: that I shouldn't object to having my First Amendment rights snuffed because others who might agree with me can speak freely on behalf of my cause...assuming, of course, that they secure the proper permits to use an officially designated "free speech area"... and as long as they don't scowl at a cop or anything.

Is there any travesty of justice -- so long as it occurs within the bounds of technically legal statutes or precedents -- you won't defend?

Posted by: John K | Jul 28, 2012 12:31:36 PM

John K --

I would ferociously object if you had YOUR First Amendment rights "snuffed out," since (so far as I know) you haven't committed any crime for which a plea bargian would be needed. But you're not Epis. And every plea bargain out there, every single one, involves a surrender of constitutional rights.

If you want to ban plea bargains, have at it. I won't object. As I've said here many times, I never liked them and still don't.

"Is there any travesty of justice -- so long as it occurs within the bounds of technically legal statutes or precedents -- you won't defend?"

Obamacare.

Posted by: Bill Otis | Jul 28, 2012 2:03:06 PM

Good one.

Posted by: John K | Jul 28, 2012 3:20:33 PM

Thanks.

Posted by: Bill Otis | Jul 28, 2012 3:30:05 PM

The problem is that the type of First Amendment activity prohibited as part of the SRT that is narrowly tailored to reintegrate the defendant into society. It's a prohibition on pointing out that the government is engaged in what the defendant considers unjust and ill-advised policy. Stifling criticism, so that the prosecutor's sensibilities aren't offended is not a valid exercise of government authority.

And courts are supposed to protect defendants' rights. That's why they have to engage in lengthy colloquies before they accept guilty pleas, and they have to undertake Faretta inquiries before someone can waive counsel, and why they have to review search warrants, and why they can overturn convictions or sentences because a defendant was denied a constitutional right. Judges are permitted to reject plea agreements and settlements of civil suits. Of course, while judges reject plea deals all the time if they think that the defendant is getting off too lightly, I'm no so naive as to think many judges care if a deal places an unconscionable burden on a defendant.

Posted by: C.E. | Jul 29, 2012 2:36:44 AM

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