Pubdate: Wed, 14 Sep 2005
Source: Recorder, The (CA)
Copyright: 2005, NLP IP Company
Author: Justin Scheck
Cited: Americans for Safe Access
Cited: Marijuana Policy Project
Bookmark: (Rosenthal, Ed)
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis - California)


It was unclear why there was no drum circle on the third floor of the
Ninth Circuit U.S. Court of Appeals on Tuesday morning.

The dozen or so people assembled outside Courtroom One were certainly
loud enough -- despite repeated exhortations by security guards to
keep the noise level down -- and the top thing on their minds was
smoking pot.

And these are people who take their weed seriously: pot lawyers, pot
lobbyists, pot activists, pot smokers, a pot reporter and the
requisite pot publicists -- a middle-aged assembly that ranged from
besuited to bedraggled.

As the group waited for a Ninth Circuit panel to finish hearing more
conventional arguments -- a qui tam case, for example -- they had lots
to say about marijuana.

"If you smoke pot, you have less of a chance of getting cancer than if
you don't," explained Ed Rosenthal, the focal point of the group.

Rosenthal is a pot celebrity, as well as an author and publisher of
pot books. ("'The Big Book of Buds,' volume one and volume two, are
probably our best-sellers," said the primly suited Jane Klein,
Rosenthal's business partner and wife. "They treat marijuana like you
would roses," she said, referring to pictures and descriptions of
growing conditions.)

In 2003, Rosenthal's celebrity moved beyond the pot community when he
was convicted in San Francisco federal court of growing marijuana,
despite the fact that the city of Oakland had licensed him to do so.

Rosenthal appealed that verdict -- even though U.S. District Judge
Charles Breyer sentenced him to just one day in jail -- Breyer refused
to let the jury hear that the pot was grown for locally sanctioned
medicinal use.

"The trial was grossly unfair," Rosenthal said Tuesday in the middle
of the passionate group outside the courtroom.

His lawyer, Dennis Riordan, stood a good distance away as the group
waited. In court, Riordan used softer language than his client's in
his oral argument before a Ninth Circuit panel of Judge Marsha Berzon,
Senior Judge Betty Fletcher, and, sitting by designation, Eighth
Circuit Senior Judge John Gibson.

Riordan said that since his client was a city officer -- by virtue of
his medical-marijuana license -- he was immune from

He likened the prosecution to the federal government arresting local
law enforcement officials for possessing drugs while they are working
on an undercover investigation, and pointed out that federal law gives
immunity to officials "lawfully engaged" in law enforcement.

While the judges -- especially Berzon -- seemed somewhat skeptical of
that argument (she wrestled several times with the meaning of
"lawfully engaged"), they had few questions about a narrower defense
by Riordan: that Rosenthal, because he could have reasonably thought
his pot growing was legal, should have been acquitted. Or, at the
very least, the jury should have been allowed to hear the medical
marijuana argument, Riordan said.

"Due process requires simply that a jury hear that defense," he told
the panel.

Amber Rosen, an assistant U.S. attorney, argued the case for the
government. She said that a city may not deputize someone to act in
violation of federal law, challenging the assertion that Rosenthal was
lawfully engaged.

Rosen also spent time challenging Rosenthal's one-day sentence, which
deviated from optional sentencing guidelines. That argument didn't go
over well with the judges. "If it's not mandatory, [Breyer] doesn't
have to justify a departure from the guidelines," Berzon said. "So why
are we looking at a departure from the guidelines?"

After the hearing, Riordan -- an appellate specialist with Riordan &
Horgan -- said that while he hopes to win on the immunity issue, he's
more confident that the judges will order a new trial based on the
entrapment argument.

"We could go down like a rock on the immunity issue and win hands down
on the entrapment-by-estoppel issue," he said. In addition to Riordan,
Joseph Elford, a lawyer with Americans for Safe Access, argued that
prosecutors misled the grand jury that indicted Rosenthal.

After the arguments, which ran nearly a half-hour longer than
scheduled, the judges didn't seem swayed by either side. The same
could not be said for the pro-pot contingent, which stood outside the
courtroom expounding on the need to legalize marijuana -- though that
was not the issue before the Ninth Circuit.

"If there's any justice in the universe," insisted Bruce Mirken of the
Marijuana Policy Project, "Ed Rosenthal will win his appeal."

The case is U.S. v. Rosenthal, 03-10307.
- ---
MAP posted-by: Richard Lake