to the one that was tangentially involved brian at this and that was the case of santa cruz versus ashcroft i submitted a notice that supplemental authorities in that case the court followed who are have doctors recommendations to grow and use medical marijuana can band together and grow and grow marijuana together for their personal medical use or the medical your client intended to sell for a profit excess were in marijuana no your honor not not without the jump that was made by using those exhibits out of context came out of a proposal that the government knew was a proposal for a dispensary and so a kind valley it had names of people and it had nothing to do with this grow it had preposterous figures when you look at th exhibit you can see there posterous they couldn't possibly be right because they they multiply ten times in one week or two weeks in the first month and then they double every month thereafter you were able to argue this to the jury your honor actually what you've just argued you were able to argue this to the jury which my client's previous attorney was able to argue that he was not allowed to put in the entire document or to question  client understand about the entire document that those excerpts came from which would explain the context so that that's a real one issue which is also when that the problem with the fact apart when you see what it really yes and counsel this all of this argument goes to coopt the question as to whether misrepresents conduct is is is can be people for four of the people sort of five of them total dealing in his home they were growing marijuana together in the basement of his home they were sharing the work and there and the products i was any that product going outside of both by people  were painted for that they were supposed to be reimbursed for some of their expenses the evidence that came out of trial showed that that never actually occurred so the money that was changing hands was not your honor that was not put to the jury the jury was given an instruction actually repeatedly that medical marijuana is not a defense even though the court let mr wong cross examined the defense witnesses in detail about medical marijuana they were and repeatedly instructed so there was absolutely no way the jury without violating their instructions could have found that any part of this was either was or was not medical marijuana that's why a new trial is required that fact finding was kept from the jury and there's no determination whatsoever of the facts having to do with this great defen contrary the prong that's actually haven't i haven't compared it but i believe they can be reimbursed and i think there are other cases saying that they can be reimbursed under state law well i never read the statute based on partially on the government's exhibits which were taken out of context from that proposal for a nonprofit there are only four hundred fifty eight plants and in the government eighteen plants so that comes to between about two hundred to two hundred seventy plants so it came to about six hundred between six hundred seven hundred plants all together over a period of time and that's between the five medical marijuana patients with doctors recommendations to or who are mostly using all of it without any exchange of money between each other except for six percent of the cry was distributed through or was donated basically to the chico club because they were never actually reimbursed for the expenses i would like to re there is there any evidence in the record either presented by by the defense or by the government as to what a medical user of marijuana would reasonably require on a day to day basis and how does that figure compare with the number of plants being grown in this i'm there was not any evidence of that sort in the record because the court was supposedly keeping out all the medical marijuana medical marijuana and terms of the plants actually sees how much marijuana could reasonably be harvested give me a time period of a week a month i think they were harvesting eighteen plants a week these plants are about a foot tall they produce i think about forty eight grams a piece i forget it's in the record the sort of indoor hydroponic plants they don't produce a lot so that the weekly harvest of eighteen plants divided connection to interstate commerce to come within congress's powers i think they would have to show some interstate commerce connection such as plants being sold across state line is never that has not been the standard for a long long time in this country particular since working for well i understand but this is in a medical marijuana context i think if you could show that that the is this confined to agriculture recent supplemental of florida who said that purchasing equipment locally that was manufactured out of state is not enough but you would have to have if you were had some sort of business that involved something no an inventory that was from out of state so if they brought it in from out of state or out of the country for example that would have probably brought it under the commerce clause in my opinion to medical marijuana patients that are authorized under state law so they would have to basically disprove that this was a natural medical marijuana operation and i think they could do that by showing you know outside sales or that sort of thing to nine patients my by the person but thank you thank you cass will give you some time for a vote and we'll hear from the government this time number of the statements of law and has falsely accused me of misconduct in this case in the time allotted to me to respond to or i may not have enough time to respond to each one of her false allegations and i just ask the court to respect tenuous to me where you are the law of conspiracy is that once there is a plan to commit a crime the making of the plan is the completion of the crime in this case the conspiracy was to manufacture at least a thousand marijuana plants that's going on your projections well there were plans that were manufactured in the past that were harvested there were written notes by mr apis indicating that he had harvested plants for a number of weeks eighteen class each week for look that's still a long way from a thousand there were additional supplies and equipment at the marijuana grow operation that indicated that there was a plant to grow additional class on the total number of plants were going to exceed a thousand marijuana plants this issue was presented to the jury mr sarah who represented mr epis during trial advocated that there were there was no such plan that there were there that there was if there was a plan it was a plan for five individual conspiracies for fewer than one hundred marijuana plants apiece the defense had an opportunity pretty persistent its evidence presented its evidence we had to prove beyond a reasonable doubt that's a very very high standard that the plan involved more than a thousand marijuana plants when the plan was created and agreed upon the law of conspiracy is once the plan is agreed upon the crime is complete the failure of the participants in the conspiracy to reach the ultimate goal is immaterial to whatever the crime was committed i have a question about you have your read brief here i have a copy of it  controlled substances act is a proper sized congress commercial cause authority when applied to the interstate manufacture of marijuana plants primarily for commercial purposes what's your factual basis for those are primarily for commercial purposes where you are in this case we had a finding by the jury that the planned to manufacture marijuana plants involved more than excuse me at least a thousand i want to plants that grow and some of it was provided to people that had medical prescriptions but the government was alleging that some of it whether it was five percent ten percent whatever was distributed in some way that took this case outside of rates was that your physician or not that's correct your honor at this testified on the stand and he claims that he intends to sell marijuana grown in his home to the this was a profit making enterprise if you look at the district courts what her stand hording to the government what percentage of the total actual grow was provided to  if you are one of course questions was how much marijuana those patients need and what i would submit to you is to look at the caliper is what i'm trying to get at before you're off on other subjects talking about it what's your factual good faith factual basis for saying that this case involves a speech ration where the individual was cultivating marijuana primarily for commercial purposes if you look at the exhibits that were involved in this case exhibit twenty six there's a handwritten note by this graph this and on that document when he did the jury find that part and that the jury find that his primary purpose was next to the ounce amount with a three hundred dollars figure for instance or the no on that note there's a reference to point six five ounces of marijuana and who put two hundred dollars next to when he looked at exhibit number twenty seven which was his marketing plan a person need for medical use and i would submit that we can look at the california legislature determination in two thousand and three which was the year after the jury convicted mr afters the california legislature passed a bill clarifying a law it did not amend the law as claimed by miss grant one and in that law the california legislature set threshold or marijuana plants pre qualified patients that's what you term a nation by the california legislature this is the finding by the jury that there were going to be more than a thousand marijuana plants involved in the conspiracy the case that there had to be a commercial aspect to this operation but they were harvesting eighteen a week that was in the past they had actually surpassed that level and by the time that we marijuana that was grown from the basement and this is house and he admitted to selling to to a person on the streets and this person was not even a person who had a recommendation from a doctor that your ca process the marijuana how many people do you have to supervise to qualify for line five however i can read my brief question up there were seven involved in this conspiracy that he managed to supervised just in this ca there is a proposition of law that this court has reiterated a number of times and that is a defendant is entitled to his profit on his defense unless the prosecution rebuts the found evidence so that no rational decided and the law that i decided to you is can be derived from a case called united states versus hoicked state seventy nine second five zero five five zero nine and it was amended later on other grounds and that case there was an entrapment instruction requested by the jury instruction requested by the defendant the district court refused to give instruction because no rational jury could intervene a reasonable with the facts that were put in the record how you know what the what the facts showed and that's how i came out with six percent and it's rough because the evidence as i said was only what and or what was brought out by mr wong i just whenever you buy something and you're you don't know how much you're going to use there was no way of knowing whether this was just extra that they happened to buy secondly marketing plan which mr wong cards did admit on cross examination that he sold one time to someone who not yet had a patient doctor recommendation and that he did that because the new law was a clarifying law according to the legislature and it's what the law was intended to be mr epis was arrested approximately four months after proposition two fifteen was passed i don't believe there were any cases in state court even the prone case still hadn't happened yet nobody knew exactly what the law would be as to the fine tuning of the regulations thank you thank you