HTTP/1.0 200 OK Content-Type: text/html 'Ganja Guru' Appeal Set After Delay
Pubdate: Mon, 12 Sep 2005
Source: Oakland Tribune, The (CA)
Copyright: 2005 MediaNews Group, Inc. and ANG Newspapers
Author: Josh Richman, Staff Writer


Oaklander Argues Even Light Sentence For Pot Convictions Too Harsh; Feds
Want 2 To 5 Years

More than two years after being convicted and sentenced for growing
marijuana, Oakland's self-styled "Guru of Ganja" will make his appeal
Tuesday for why even a slap on the wrist was too much.

Ed Rosenthal, a renowned pro-marijuana author, activist and
cultivation authority, claims he never should have been convicted of
three marijuana-growing felonies. The government claims he not only
deserved conviction, but he also deserved at least two to five years
in prison instead of his one-day, time-already-served sentence.

Three judges of the 9th U.S. Circuit Court of Appeals will decide
sometime in the few months after Tuesday's arguments.

Rosenthal - famed for his books and for the "Ask Ed" column he wrote
for "High Times" magazine - became a medical-marijuana cause celebre
after his February 2002 arrest. Drug Enforcement Administration agents
raided sites including his Oakland home office; an Oakland warehouse
where he'd been growing marijuana; San Francisco's Harm Reduction
Center medical marijuana club, which he'd supplied; and the HRC's
founder's Petaluma home.

After a five-day trial, a federal jury convicted Rosenthal on Jan. 31,
2003, of three marijuana-growing felonies. Upon learning afterward of
the state and city protections Rosenthal had not been allowed to raise
as a defense, several jurors renounced their verdict and rallied to
his cause. U.S. District Judge Charles Breyer sentenced Rosenthal on
June 4, 2003, to one day in prison.

On appeal, Rosenthal basically claims Breyer erred by not letting him
mount an "entrapment-by-estoppel" defense -that is, that local and
federal officials had led him to believe his conduct was protected
under California's 1996 compassionate-use law and by an Oakland
ordinance under which he was deemed an city officer permitted to grow

Light sentence explained

In fact, the appeal notes that at Rosenthal's sentencing, Breyer said
he believed Rosenthal reasonably - although incorrectly - thought the
state and local laws immunized him; the judge used this as an
explanation for the lighter-than-normal sentence.

The appeal also claims:

- -Federal prosecutor George Bevan committed misconduct by falsely
telling the grand jury that later indicted Rosenthal that federal
agencies were not aiming to shut down medical marijuana clubs;

- -Rosenthal wasn't allowed to rebut the government's claims that he
grew the marijuana for profit;

- -Two jurors committed misconduct by voting to convict based in part on
an attorney-friend's advice not to stray from the judge's

- -Breyer erred by instructing the jury it could not bring its "sense of
justice" to bear on this case; and

- -Breyer erred by refusing to exclude evidence from the Oakland
warehouse based on Rosenthal's claim that the warrant lacked probable

The government not only disputes all of these claims but is seeking a
harsher sentence of at least two to five years in prison.

Government's brief

Even if the city of Oakland approved of and encouraged his conduct,
the government's brief says, a "one-day sentence for a defendant who
has been a sophisticated marijuana cultivator for more than four years
is simply indefensible in light of Congress' clear intent to treat
marijuana cultivation as a serious offense, regardless of the use to
which the marijuana is put."

Breyer's enormous departure from sentencing guidelines "was an abuse
of judicial discretion and the case should be remanded for
resentencing," the brief concludes.

Rosenthal's case was on hold for many months as the appeals court
awaited the U.S. Supreme Court's decision in Gonzales v. Raich,
another Oakland-based case aimed at halting federal prosecution of
medical marijuana patients and caregivers.

That case's plaintiffs had argued the Constitution's commerce clause
lets Congress regulate only interstate commerce, and that
Californians' medical marijuana use neither crosses state lines nor
involves money changing hands. That would mean the Controlled
Substances Act's marijuana ban oversteps Congress' authority, and so
shouldn't be used to prosecute patients and caregivers.

But in a 6-3 ruling in June, the Supreme Court essentially concluded
that even marijuana grown in back yards for personal, medical use can
affect or contribute to the illegal interstate market for marijuana,
and so is within Congress' constitutional reach. Once the federal
government was cleared to arrest and prosecute patients and
caregivers, Rosenthal's appeal began moving forward again.

Circuit Judges Betty Fletcher, Marsha Berzon and John Gibson will hear
Rosenthal's appeal.

Varied backgrounds

Fletcher is a 1979 Carter appointee and former Seattle attorney with a
liberal reputation. Berzon is a 1999 Clinton appointee who, after
clerking for outspoken liberal U.S. Supreme Court Justice William
Brennan, spent most of her career in private practice in San
Francisco. And Gibson, "on loan" from the 8th Circuit appeals court,
was a Kansas City attorney before being nominated to the federal bench
in 1981 and the circuit court in 1982 by President Reagan.

"We think it's a panel that will be fair and carefully consider the
claims," said Dennis Riordan, one of Rosenthal's attorneys.
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