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.
At a hearing on June 4, Wong, who has been a federal prosecutor for 26 years, told U.S. Magistrate Judge Gregory G. Hollows he was "awaiting information from the Department of Justice regarding vacating a judgment of conviction that has been upheld." He said it was unprecedented in his experience and he wanted to make sure he was doing everything right.
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.
The settlement document says, "Epis agrees that there was no misconduct or wrongdoing by the United States, its attorneys, its agents, or anyone acting on its behalf in this case."
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."
Famed San Francisco lawyer J. Tony Serra, who was lead defense counsel at the trial, and lawyer Zenia Gilg, who worked primarily on pretrial motions, testified in depositions earlier this year that they didn't recall their advice to Epis on the plea offer.
The settlement agreement came in the context of a pleading known as a habeas motion filed by Balazs in January 2011 seeking "to vacate, set aside or correct" the sentence.
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."