HTTP/1.0 200 OK Content-Type: text/html Rosenthal Gets Slap On Wrist
Pubdate: Thu, 05 Jun 2003
Source: Oakland Tribune, The (CA)
Copyright: 2003 MediaNews Group, Inc. and ANG Newspapers
Author: Josh Richman, Staff Writer
Cited: Drug Enforcement Administration ( )
Cited: National Organization for the Reform of Marijuana Laws ( )
Cited: Marijuana Policy Project ( )
Bookmark: (Decrim/Legalization)
Bookmark: (Cannabis)
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis - California)
Bookmark: (Rosenthal, Ed)
Bookmark: Breyer (Breyer, Judge Charles)


Activists call ruling -- sending pot king to day in prison -- the beginning 
of end for federal law

Renowned marijuana activist and author Ed Rosenthal walked out of court a 
free man Wednesday after a federal judge sentenced him to just one day in 
prison -- time he already served -- for three marijuana-growing felonies.

Medical marijuana advocates across the nation hailed the ruling as a major 
victory and the beginning of the end for the federal ban on the drug, even 
though the judge said the leniency shown Rosenthal won't be shown anyone 
who follows in his footsteps.

And although elated by his reprieve, the self-styled "Guru of Ganja" 
immediately cast himself as a Moses of marijuana, exhorting the federal 
pharaohs to let his people go so he can lead them into the promised land of 

"This is an historic day," he shouted during a fiery speech to about 200 
cheering supporters outside the courthouse. "This is day one in the crusade 
to bring down the marijuana laws -- all the marijuana laws!"

If the federal government makes no distinction between medical and 
recreational marijuana use, neither will he. "All marijuana should be 
legal," he said, urging the immediate release of all those imprisoned for 
marijuana crimes. Vowing to appeal the felony convictions staining his 
record, Rosenthal -- flanked by his tearful wife and daughter -- railed 
against those who put him through this 16-month prosecution, including the 
judge who had set him free just minutes earlier.

"He thinks he's going to get applause for it. Not from me -- he still 
violated my rights," Rosenthal, 58, said of U.S. District Judge Charles R. 
Breyer, who kept jurors from hearing the defense Rosenthal sought to mount. 
"It is unacceptable, it is corrupt, and he had an agenda. Today I call on 
Judge Breyer -- resign!"

Prosecutors wouldn't comment on Breyer's ruling Wednesday, other than to 
say they hadn't yet decided whether to challenge it in the 9th U.S. Circuit 
Court of Appeals.

Special Agent Richard Meyer, spokesman for the Drug Enforcement 
Administration's San Francisco office, said Breyer's ruling won't deter 
agents from pursuing marijuana cases.

"Our job is not to sentence someone for a crime, our job is not to 
prosecute ... our job is to make the community safe, to take the illegal 
drugs off the street and to bring the perpetrators to justice," he said. 
"That's exactly what we did and that's what we plan on doing in the future."

In 1996, California voters approved a law permitting medical use of 
marijuana, but federal law still bans its cultivation, possession and use 
for any purpose. In February, DEA agents enforcing that federal law 
arrested Rosenthal, who has written many books and a long-running magazine 
column on marijuana cultivation and law.

Rosenthal had wanted to defend himself by saying the state law and an 
Oakland ordinance -- under which he was deemed an officer of the city 
permitted to grow marijuana -- immunized him from federal prosecution.

But Breyer didn't allow jurors to hear that, ruling before trial that the 
state and city had no authority to "deputize" Rosenthal in this way and his 
status under their laws was irrelevant. Jurors convicted Rosenthal on Jan. 
31 but, upon learning afterward of the state and city protections, soon 
disavowed their verdict and rallied to Rosenthal's defense.

Breyer said Wednesday that he believed Rosenthal reasonably -- albeit 
erroneously -- thought the state and local laws immunized him from federal 
prosecution. Although not a permissible defense, the judge said, it is a 
mitigating factor that justifies an enormous reduction from the sentence 
Rosenthal otherwise would have faced.

Yet no future defendant will be able to claim this good-faith belief in 
immunity, Breyer said -- the rulings and the extensive news coverage this 
case produced put everyone on notice that states and cities cannot shield 
medical marijuana providers and patients from the long arm of federal law.

Two of the counts of which Rosenthal was convicted were punishable by five 
to 40 years in prison, the third by up to 20 years. A mandatory minimum of 
five years applied, but Breyer -- over Assistant U.S. Attorney George L. 
Bevan Jr.'s objection -- found Rosenthal eligible for a "safety valve" 
exception to that minimum because he had a clean record, wasn't violent, 
didn't hurt anyone, didn't lead others in committing his crime and provided 
the government with truthful information. Breyer also overruled Bevan to 
grant additional leniency for Rosenthal's acceptance of responsibility for 
his acts.

One of Rosenthal's attorneys, Dennis Riordan, acknowledged this 
slap-on-the-wrist sentence "does not affect the structure of the law and 
the legal right of people in California to grow marijuana"

But Breyer "gave us a very, very powerful weapon in the battle to convince 
the 9th Circuit" that Rosenthal's conviction should be overturned, Riordan 
said. Saying Rosenthal had a "reasonable" belief in his immunity gives the 
appeals court room to rule the state and city laws should have been 
permitted as a defense at the trial, he said -- a ruling that truly would 
gut the federal ban on medical marijuana.

Keith Stroup, executive director of the National Organization for the 
Reform of Marijuana Laws (NORML) in Washington, D.C., called the sentence 
"a great victory for Ed Rosenthal, a great victory for state's rights and a 
great victory for the medical use of marijuana" despite Breyer's caution 
that this get-out-of-jail-free card can be played only once.

"It would be foolish for any other individual to think they can use the 
sentencing decision in Ed's case as a precedent," Stroup acknowledged, yet 
"any U.S. Attorney in any of the states that have legalized medical use of 
marijuana are going to have to think twice now before they bring a federal 
prosecution against someone operating under those laws."

Even if only in this case, Breyer "has made a distinction between someone 
growing marijuana for medical purposes and somebody growing marijuana as a 
drug dealer," Stroup said, denoting "a slap in the face to the Bush 
administration and its head-in-the-sand position that marijuana has no 
medical use."

Bruce Mirken, communications director for the Marijuana Policy Project in 
Washington, D.C., went further: "For all practical purposes, what Judge 
Breyer did today was overturn the federal law banning medical marijuana.

"He cited the extraordinary circumstance of the case, but the whole reason 
Ed Rosenthal was prosecuted is that federal law doesn't recognize anything 
extraordinary or even any difference between seriously ill people and their 
caregivers, and common drug dealers," Mirken said. "I think Breyer's 
actions speak very much louder than his words, and his actions show he gets 

In any event, the widespread attention Rosenthal's case has drawn sets an 
informal precedent, he said. "There will never be another jury that can be 
fooled the way this jury was -- this can't happen again."

Rosenthal said it more simply: "These laws are doomed."

Rosenthal will be on supervised release, the federal equivalent of 
probation, for three years, during which he's barred from committing any 
crimes or possessing any drugs. Asked if he will manage to comply with the 
latter requirement, the pot potentate replied, "Next question?"
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