Pubdate: Wed, 14 Jan 2009
Source: Oakland Tribune, The (CA)
Copyright: 2009 ANG Newspapers
Author: Josh Richman
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis)
Bookmark: (Cannabis - California)
Bookmark: (Ed Rosenthal)


SAN FRANCISCO - A lawyer asked a federal appeals court Wednesday to
overturn the re-conviction of Oakland's Ed Rosenthal, claiming the "Guru
of Ganja" wasn't allowed to present a full, adequate defense at his second

Attorney Michael Clough told a three-judge panel of the 9th U.S. Circuit
Court of Appeals that Rosenthal, now 64, was denied the ability to present
witnesses who would corroborate his claim that he honestly, reasonably
believed he'd been deputized by the city of Oakland to grow marijuana for
area medical marijuana cooperatives, and so was protected from federal

California law and Oakland ordinances allow for medical marijuana use,
possession and cultivation, but federal law - which bans all marijuana
use, possession and cultivation - trumps them. Circuit Judge Richard Paez
noted that U.S. District Judge Charles Breyer, who presided over
Rosenthal's trials, had offered to let Rosenthal testify to this belief.
But Clough said letting him do so without allowing any corroborating
witnesses to testify essentially amounted to compelling Rosenthal to
testify in order to mount his defense - and the Fifth Amendment forbids
compelling defendants to testify.

Assistant U.S. attorney Kloster Gray argued Rosenthal's good faith "was
not relevant to the issue of guilt or innocence," and said Breyer acted
properly in refusing to permit irrelevant evidence.

"Growing marijuana is clearly a nefarious activity," Gray said, noting
courts have held there's "no local opt-out provision in the Controlled
Substances Act."

Outside the courthouse, Rosenthal called this "a case about the rights of
Californians to use marijuana."

"I think the judges had problems with both sides, I don't know what's
going to happen," he said, adding that he believes marijuana should be
legal for all purposes and what was said in court Wednesday was nothing
more than "a bunch of crap - blah, blah, blah."

Federal agents arrested Rosenthal and others Feb. 12, 2002, raiding
Rosenthal's Oakland home and other sites including a West Oakland
warehouse where Rosenthal was overseeing marijuana cultivation, and a San
Francisco medical marijuana dispensary.

A federal jury convicted Rosenthal on Feb. 1, 2003, of three counts of
marijuana cultivation and conspiracy; most jurors soon renounced the
verdict upon learning Breyer had excluded evidence that Rosenthal grew the
marijuana believing he was an official acting for Oakland. Breyer on June
4, 2003, dramatically departed from federal sentencing guidelines, giving
Rosenthal just one day in prison - time he'd already served - but warning
that this case had put others on notice that federal law trumps California
and local laws.

A 9th Circuit panel overturned Rosenthal's convictions in April 2006,
finding one of the trial jurors had engaged in misconduct by asking a
lawyer friend during deliberations whether jurors could vote their
conscience and ignore the evidence before them - a practice known as

Federal prosecutors re-indicted Rosenthal in October 2006 on the original
charges plus nine more including alleged money laundering. Breyer in March
2007 dismissed those nine new charges, issuing a rare finding that
prosecutors had engaged in "vindictive prosecution."

Admitting that Rosenthal had already served his first conviction's
sentence and so couldn't be punished any more for the same charges, the
government still chose to reprosecute the marijuana charges. Rosenthal was
re-convicted May 30, 2007, of marijuana cultivation and distribution,
although the jury deadlocked on the conspiracy counts.

Among those accompanying Rosenthal to court Wednesday were Dale Gieringer,
director of California's branch of the National Organization for the
Reform of Marijuana Laws (NORML), and Steve Kubby, a longtime Libertarian
Party activists who helped write California's medical marijuana law and is
now director of the American Medical Marijuana Association.
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