Pubdate: Fri, 28 Jun 2002
Source: Sacramento Bee (CA)
Copyright: 2002 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Denny Walsh, Bee Staff Writer
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

LEGAL GLITCH HALTS POT TRIAL

The Judge In The Case Learns That The Defendant Never Entered A Plea.

The trouble-plagued marijuana trial of Bryan James Epis may have hit an 
insurmountable obstacle Thursday -- the defendant has never entered a plea.

The charges on which Epis is being tried are contained in an indictment 
returned by a federal grand jury on Jan. 30, but there was no arraignment.

On Thursday morning, the jury heard opposing attorneys' opening statements 
and the government began presenting its evidence. After the lunch break, 
however, defense lawyer J. Tony Serra brought the procedural glitch to the 
attention of U.S. District Judge Frank C. Damrell Jr.

The judge put one of his law clerks to work on what impact the oversight 
will have. Later, when the jury was excused for its mid-afternoon break, 
Damrell observed, "It would appear that this indictment is in trouble."

Serra agreed, arguing that "the charges now don't exist."

The judge responded, "That would be my conclusion."

Damrell then sent the jury home until Tuesday and scheduled a hearing 
Monday on the question of whether an indictment is still valid once trial 
has commenced without a not-guilty plea.

The indictment in question is the third since July 1997 to charge the 
35-year-old Epis with growing marijuana.

Evidence against Epis gained through a 1994 search, which was the 
foundation of the first indictment, was tossed out.

A second indictment, based on a second search, was returned Jan. 25, 2001.

The third indictment, also based on the second search, came 12 days before 
Epis' trial was to begin and supplanted a second indictment.

At the time, Damrell was dealing not only with a slew of pre-trial motions 
filed by Serra's firm, but also with a motion to allow former co-defendant 
Michael James Godwin's challenge of the first search of Epis' house in 
Chico that led to charges against the pair.

Damrell granted Godwin's motion in March, and Assistant U.S. Attorney 
Samuel Wong is appealing that ruling.

Epis alone was charged in January's four-count superceding indictment. 
Serra moved the next day to continue the trial, and the judge granted the 
request over Wong's objection. Arraignment on those most recent charges 
somehow was lost in the shuffle.

The questions seemingly are:

Can Epis be arraigned now and forced to continue defending himself against 
the third indictment?

Can the trial proceed on the superceded charges in the second indictment?

Can the trial proceed at all, or does Wong have to start over?

It was a disconsolate Damrell who left the bench Thursday after remarking 
woefully that state funds spent on the trial thus far may have been wasted.

Because Epis was a founder and supplier of Chico Medical Marijuana 
Caregivers, the trial has received national attention as a battleground in 
the war between advocates of medical pot and officials who enforce the 
federal ban on the drug for any purpose.

Epis claims he never profited from marijuana and conformed to California's 
Compassionate Use Act by providing it only to seriously ill patients with a 
doctor's recommendation.

Wong is derisive of that claim, saying Epis was growing pot long before the 
1996 passage of California's initiative, and insisting that the defendant 
envisioned huge profits.

It is the first federal criminal case involving a cannabis buyers' club to 
get to a jury, although Damrell has ruled that medical necessity is not a 
defense in federal court.

The trial was to start Monday, but the judge disqualified all of the 
prospective jurors after determining that pro-marijuana demonstrators 
outside the courthouse handed some of them a statement on the case written 
by Epis and a pamphlet offering advice on their rights and options as jurors.

Serra told Damrell the statement had been on Epis' Web site for months and 
was downloaded without his client's permission.

The judge has ordered an investigation of whether Epis was in any way 
responsible for the dissemination of the literature and has scheduled a 
post-trial hearing on the matter.

On Wednesday, the judge had another panel of prospects shuttled to and from 
the courthouse from an undisclosed location in order to circumvent the 
demonstrators.
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MAP posted-by: Jay Bergstrom