On August 28, 2002, Bernie Ellis’s farm was raided by the Tennessee Marijuana Eradication Task Force, a force that included both state and federal law enforcement officers. During the ten hours the Task Force was on Bernie’s farm, two helicopters and ten ground troops combed his land, searched his home and out-buildings and confiscated farm supplies, files from his work as a public health consultant and his computer. The Task Force found a small amount of cannabis in Bernie’s home, 20-25 plants that were four to six feet tall and a number of small “clones” (under 12 inches tall) – all ready to harvest. To their surprise, they also found a proposal solicited by the New Mexico Governor’s Office for Bernie to help that state establish and operate a state-operated medical cannabis production facility.
From the outset, Bernie cooperated with the Task Force officers and answered their questions about why he was growing cannabis. At the time of the raid, Bernie was using cannabis himself for pain associated with degenerative joint disease and pain and sleep disturbance associated with fibromyalgia. He was also providing free cannabis to four very sick people – three of whom were dead within months of the raid. Bernie admitted that he had been providing free cannabis to sick and dying people for many years, beginning when he helped establish the Tennessee AIDS Program for the Tennessee Department of Health in the late 1980s.
At the conclusion of the raid, the Task Force leaders chose not to arrest Bernie. They assured him that he would be able to retrieve his computer within a matter of days so that his work as a public health epidemiologist would not be disrupted. He was also told that the Task Force had found enough plants to place him within the existing guidelines for federal prosecution. Neither of those statements turned out to be true.
For the three months following the raid, Bernie was not charged with any crime. However, in November, 2002, Bernie was informed by his first attorney (a local lawyer recommended by one of the cancer patients that Bernie was helping) that the federal government had asked for the case because of the large reported plant count, which by that time both the government and Bernie’s first attorney knew to be inflated -- but information they did not share with Bernie. He was informed that the federal government intended to charge him with manufacturing 100 or more cannabis plants – a charge that brought with it a mandatory minimum five year sentence. He was also informed that the federal government planned to file a separate “civil asset forfeiture” case against him in order to confiscate his 187 acre farm, a farm that had been Bernie’s home for almost four decades.
After that meeting with his first attorney, Bernie received a great deal of contradictory advice, including a recommendation that he try to sell his farm and flee to Canada. However, Bernie resisted that advice and in short order, he employed a second attorney who was more experienced with defending federal cases. Within months, Bernie dismissed his first attorney from the case. He has worked exclusively with his second attorney ever since. That second attorney, Peter Strianse, has earned Bernie’s complete trust and confidence during the years since he was brought into the case.
Early on in the case, Mr. Strianse worked to negotiate a plea agreement with the federal government. This plea agreement would give Bernie credit for accepting responsibility for cultivating cannabis, it would give him credit for his clean criminal record and for other factors that would allow him to be removed from under the risk of the mandatory minimum five year sentence. During this period, the weight of the evidence (and not the plant count) became the basis for negotiating the final plea. As a result, Bernie requested that the evidence be re-weighed and he discovered that the more accurate weight was around one-quarter of what had been initially charged. However, even this new weight continued to include the plant root-balls and dirt, stalks and other non-useable portions of the plant that are exempted from the definition of marijuana in the federal Controlled Substances Act. (It has now been determined that the actual weight of useable cannabis that was confiscated from Bernie’s farm was only 5% of what he was initially charged with.) However, that new weight (even though still inflated) would have put Bernie in a sentencing range where home confinement or probation would be possible.
With this new basis for the plea agreement, Bernie decided to accept the government’s plea offer. However, when he reported to sign that agreement in September, 2003, Bernie and his attorney discovered that the government had reversed its position without any prior notice and had decided to return to the plant count as the basis for its charges. So once again, Bernie faced the prospect of a five year mandatory minimum sentence. He also continued to face the potential loss of his farm.
From September, 2003 until September,2005, the case against Bernie continued to take many twists and turns. After discovering that he could not raise the $200,000 in cash that the government demanded in order for him to save his farm from the civil asset forfeiture proceeding, Bernie petitioned the court to allow him to withdraw his negotiated guilty plea and accept a jury trial. As he awaited the court’s decision on this petition, over one hundred of Bernie’s friends, neighbors, professional colleagues and family members submitted letters of support to the court. Included in these letters were statements of support from sick people who Bernie had help, their physicians and the survivors of people Bernie had helped who were now deceased.
In September, 2005, the court denied Bernie’s petition to withdraw his guilty plea and held a sentencing hearing forty eight hours later, at which sixty friends and supporters appeared. Judge Richard Haynes allowed full testimony on the medical uses for the cannabis that Bernie was growing and acknowledged that Bernie was fully eligible for the “safety valve,” which removed him from the risk of a five year mandatory minimum sentence. The final sentence was four years of “supervised release,” eighteen months of which would be spent in a Nashville halfway house. This sentence was certainly more lenient than it could have been, and the federal government has appealed the sentence as a result, asking that the appeals court sentence Bernie to significant prison time.
Over 100 people submitted letters of support for Bernie Ellis in preparation for his trial for growing and distributing medical marijuana. These letters from patients and physicians; professional colleagues from Wyoming, New Mexico, Tennessee, and throughout the country; and Bernie’s neighbors, family and friends attest to the breadth and depth of support that Bernie has received throughout this legal ordeal. They also speak to the travesty that losing his farm for medical marijuana would represent.
On November 11, 2005, Bernie entered the Dismas Charities halfway house in Nashville, TN for an eighteen month stay. He will be allowed to leave the facility to work every day, though his movements and ability to communicate with the outside world will otherwise be restricted. However, as he begins this sentence, Bernie still faces the risk of losing his farm through the civil asset forfeiture action of the federal government. He has requested a jury trial to determine the outcome of the civil asset forfeiture action. As he awaits this second trial, which may occur as soon as January, 2006, Bernie will work to pay down over $90,000 in debt (for legal and related expenses) that he has accumulated during this three year ordeal.