Pubdate: Thu, 05 Jun 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Author: Claire Cooper, Bee Legal Affairs Writer


SAN FRANCISCO -- The federal government's odd case against the nation's 
leading marijuana guru took another unusual turn Wednesday, when a judge 
sentenced Edward Rosenthal to the single day he's already spent in a county 

Cheers rang through the courthouse as U.S. District Judge Charles Breyer 
said a "just punishment ... requires substantial departure" from sentencing 
guidelines for Rosenthal's pot-farming crime, and then announced a sentence 
of "one day with credit for time served."

Prosecutors had requested a 6 1/2 -year term. Pot activists were 
forecasting as much as 85 years, though the legal maximum appeared to be 
about 60 years.

Several of the jurors who convicted Rosenthal in February -- without 
knowing he grew his pot for the benefit of hundreds of medical users -- 
wept with joy.

"It affected us so much," said foreman Charles Sackett as he left the 

"This is Day One in the crusade to bring down the marijuana laws," the 
defendant told reporters afterward.

But he called Breyer corrupt and asked him to resign.

"He did me no favors," Rosenthal said. "What he did is he made me a felon 
because he did not allow this jury to hear the full story."

Rosenthal's lawyer, Dennis Riordan, said the conviction will be appealed. 
Prosecutors declined to comment on whether the government will appeal the 
sentence, which also includes three years of supervised release, a $1,000 
fine and a $300 assessment.

Rosenthal, 58, has been the most prominent of the California growers 
targeted by federal drug agents since the state in 1996 adopted Proposition 
215, permitting pot use by qualified patients.

The country's leading author of how-to books and articles on marijuana 
cultivation, Rosenthal was deputized by Oakland as supplier for a 
city-sponsored pot cooperative in an attempt to keep federal authorities at 

But because virtually all marijuana remains illegal under federal law, 
Breyer barred evidence of medical use at Rosenthal's trial. As a result, 
the jury found him guilty of supplying hundreds of pot seedlings to users 
without having heard that his massive Oakland warehouse farm wasn't a 
purely commercial enterprise.

Immediately after the trial, most of the jurors revolted, appearing 
publicly with Rosenthal, apologizing, expressing anguish at the role they 
said they would have declined to play if they had been informed.

Last week nine of them signed a letter to Breyer, urging him to "bring the 
law into alignment with morality and ethics."

"It's wonderful to see mercy involved in our judicial system," juror Pamela 
Klarkowski said after court Wednesday.

Others who supported Rosenthal in the sentencing proceeding included 
California Attorney General Bill Lockyer, who wrote to Breyer to urge the 
minimum possible sentence.

Lockyer asked the judge to consider California's initiative and a widely 
sponsored bill pending in the U.S. House that would allow defendants in 
federal pot cases to introduce evidence of compliance with state medical 
pot laws. Two House members from California, Democrat Sam Farr and 
Republican Dana Rohrabacher, introduced the bill in response to the 
Rosenthal case.

Assistant U.S. Attorney George Bevan argued the federal government's 
position in court, saying, "Mr. Rosenthal was growing a lot of plants. .. 
There was nothing exceptional about this case." He said Rosenthal "deep 
down in his heart" didn't really believe he was an officer of Oakland.

The prosecutor also contended Rosenthal violated rather than furthered 
Proposition 215 because the initiative purports to legalize the drug only 
for patients and their caregivers, not for growers and cooperatives.

But Breyer asked, "Is it logical to say you can have it but you can't get it?"

The judge called the circumstances of Rosenthal's crime "highly unusual."

Rosenthal conducted his business in the open, reasonably believing he was 
immune from prosecution, Breyer said. He also took into account Rosenthal's 
support from public officials.

Riordan, Rosenthal's attorney, said the jury should have been allowed to 
weigh the same factors -- a point he'll make in appealing the conviction.

Defense lawyer J. Tony Serra said Rosenthal's sentence "shows the enormous 
disparity in attitudes toward medical marijuana in two adjacent Northern 
California federal jurisdictions," San Francisco and Sacramento.

Serra represented Bryan Epis, who received a 10-year sentence in federal 
court in Sacramento last fall for supplying pot to a medical dispensary in 

Serra said he didn't expect Rosenthal's sentence to affect Epis' appeal, 
but he said Epis has other strong appeal issues.
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MAP posted-by: Jay Bergstrom