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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 marijuana.
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 instructions;
-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 cause.
The government not only disputes all of these claims but is seeking a harsher sentence of at least two to five years in prison.
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.
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.
Pot advocate's appeal hinges on immunity, jury misconduct September 14, 2005 - insidebayarea.com
Lawyer argues that 'Ganja Guru' should have been protected as an appointed officer of the city
SAN FRANCISCO - Two men walked out of Ed Rosenthal's appeal hearing Tuesday and immediately lit up a marijuana pipe, underscoring the conflict the renowned pot advocate still crusades to resolve.
"I want to change these laws and the enforcement of these laws; that's what this is all about," Rosenthal, 60, said after Tuesday's hourlong hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals.
"I was an officer of the city of Oakland; I was told by the city attorney's office I was immune from prosecution," he told reporters. "If you can't rely on government officials, who can you rely on?"
Famed for his marijuana cultivation books and the "Ask Ed" column he used to write for High Times magazine, Rosenthal was convicted of three marijuana-growing felonies in 2003, more than a year after federal agents raided sites including his Oakland home, an Oakland warehouse in which he was growing marijuana and a SanFrancisco medical marijuana club he was supplying.
Attorney Dennis Riordan told circuit judges Tuesday the self-styled "guru of ganja" was denied due process when U.S. District Judge Charles Breyer refused him immunity from prosecution under a statute protecting duly appointed state and local government "officers" and again when Breyer wouldn't let him present his good-faith belief in his immunity as an affirmative defense - that is, "I did it, but here's why" - at trial.
Riordan argued Breyer even took note of Rosenthal's honest, credible and reasonable belief in his own immunity as a mitigating factor at sentencing. Breyer sentenced Rosenthal to one day behind bars, time already served. If it was applicable at sentencing, Riordan said, it should have been viable as an "entrapment-by-estoppel" defense.
Circuit Judge Marsha Berzon questioned Riordan on what the phrase "lawfully engaged" means in the context of the immunity statute. Riordan argued that it must protect state and local officials from federal law; if federal law wasn't being violated, there would be no need for an immunity statute at all.
Assistant U.S. Attorney Amber Rosen argued the immunity statute is meant to apply to law enforcement officers who deal with illegal drugs, not people who are "deputized" by local governments to implement laws that directly conflict with federal law. And only a federal official, not a state or local official, could have invested Rosenthal with a good-faith belief that he was immunized from federal law, she said.
Joseph Elford, another of Rosenthal's attorneys, argued Rosenthal also deserves a new trial because of juror misconduct. During deliberations, a juror troubled by the idea of convicting Rosenthal consulted a friend - who happened to be an attorney - and was advised that she could "get in trouble" for deviating from the judge's instructions. She shared that advice with another juror.
Raising the specter of punishment for a juror is a kind of coercion, Elford said. Berzon questioned whether any prejudice is involved in "coercing" a juror to do what the law requires; Elford replied that it foreclosed the juror from exercising her power to "nullify," or ignore the judge's instructions and vote her conscience.
But Rosen argued that the advice given to the juror in no way compromised Rosenthal's right to a fair trial on the evidence and the law, and therefore isn't grounds for reversal.
Berzon and Senior Circuit Judge Betty Fletcher questioned Rosen on the government's argument that Breyer was unreasonable in sentencing Rosenthal to just one day in prison when federal sentencing guidelines called for at least several years behind bars. Rosen acknowledged the guidelines no longer are mandatory, and the circuit judges seemed reluctant to second-guess Breyer's judgment.
The attorneys also argued over whether prosecutor George Bevan committed misconduct when discussing the investigation's aims with grand jurors who eventually indicted Rosenthal. Rosenthal's attorneys claim Bevan lied about not targeting medical marijuana clubs.
The appeals panel will render a decision in the next few months.