Why Does The Government Want To Shut Up Bryan Epis?


Bryan Epis has been silenced by the federal government as a condition of his sentencing agreement

Editor’s note: Recently, a remarkable resolution was reached on a federal medical marijuana case involving Bryan Epis, a California cannabis club operator, under which Epis had to agree not to be involved in marijuana activism. Epis’s attorney, John Balazs, has contributed his thoughts about the case below in a guest post which is reprinted here with his permission.

By John Balazs
Bryan James Epis is a well-known medical marijuana activist who is believed to be the first person to be tried in federal court for cultivating marijuana for medical purposes after the 1996 ballot initiative that legalized medical marijuana in California. Although only 458 plants were found at his residence, the government extrapolated from a disputed spreadsheet to project that his “conspiracy” to grow marijuana was for at least 1,000 plants, the threshold to trigger a mandatory minimum 10-year sentence. 

Epis was found guilty at a jury trial of conspiracy to grow more than 1,000 plants, and of producing more than 100 plants. He was sentenced to 10 years’ imprisonment, a $15,000 fine, and 10 years of supervised release. After multiple post-trial evidentiary hearings and extensive litigation, his conviction and sentence were upheld on appeal.
In January 2011, Epis filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255, the federal equivalent of habeas corpus action to challenge a state conviction.  The motion included a number of claims for relief, including that Epis’s trial attorneys were ineffective in advising him concerning a plea offer and that the government committed misconduct in misrepresenting the nature of the spreadsheet.
The motion was supported by a 51-page Memorandum of Points and Authorities and numerous other documents. I was Epis’s attorney in his § 2255 litigation.
Last month, the district court signed off on a rare settlement agreement in which Epis’s conviction on the conspiracy count was vacated and he was resentenced to 90 months on his conviction of growing more than 100 marijuana plants within 1,000 feet of a school. With the time he has already served, the agreement results in his remaining sentence cut by more than half.
Speaking for myself only, this is to comment on a couple of the more unusual and significant aspects of the settlement.
This case is one of the first after the Supreme Court’s decision in March in Lafler v. Cooper, 132 S.Ct. 1376 (2012), where a defendant obtained relief on a ground that was upheld in Lafler, i.e., that his trial attorneys rendered ineffective assistance in violation of the Sixth Amendment by providing deficient advice that resulted in him turning down a government plea offer and receiving a harsher sentence. Before the settlement, the parties deposed Epis’s trial attorneys, who did not refute the basis of Epis’s claim as neither could sufficiently recall their legal advice to Epis regarding the government’s offer.
Given a likely evidentiary hearing, additional briefing, a potential appeal, and significant litigation risk on both sides, the settlement made sense for everyone. Although the essential agreement was reached quickly after the deposition concluded and Lafler was decided, the case was delayed while the government sought guidance from the Department of Justice in D.C. concerning how to deal with the Lafler claim.
Ultimately, I was told that the DOJ would not be issuing any policy memo to U.S. Attorneys on Lafler claims and that each office should deal with such claims as appropriate on a case-by-case basis.
When the final agreement was ironed out, the government insisted on a condition barring Epis from advocating with respect to marijuana during his imprisonment and supervised release.
While courts have upheld conditions of supervised release that limit First Amendment rights when reasonably related to the protection of the public, e.g., United States v. Ross, 476 F.3d 719 (9th Cir. 2007) (upholding condition barring association with neo-Nazi/white supremacy groups), I cannot comprehend what legitimate interest the government has in requiring a broad First Amendment restriction that bars lawful advocacy for the reform of our marijuana laws.
The condition itself is vague and it’s unclear what actions are prohibited. Is Epis now barred from writing his Congressperson to ask that our country’s federal drug laws be amended to allow individual states to permit its residents to use marijuana for medical purposes? 
And, even if the government could lawfully bar Epis from any advocacy to change our marijuana laws (which I doubt), why does it want to do so?  Putting aside the doubtful constitutional validity of a broad, no-advocacy condition, prohibiting U.S. citizens from lawfully advocating to reform our laws — on marijuana or otherwise — is bad policy and bad precedent.
SourceSentencing Law and Policy