Pubdate: Thu, 15 Jan 2009
Source: Contra Costa Times (CA)
Contact:  2009 Knight Ridder
Author: Josh Richman, Oakland Tribune
Bookmark: (Marijuana - Medicinal)


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 trial.

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 prosecution.

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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