Lawyers ask court to overturn Ed Rosenthal's marijuana convictions

Pub Date: September 14, 2005
Pub Source: San Diego Union-Tribune

http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html
?Lawyers ask court to overturn man's marijuana convictions

?
By David Kravets
ASSOCIATED PRESS

September 14, 2005

SAN FRANCISCO - Attorneys for Ed Rosenthal, the self-described "Guru
of Ganja" who has written books on how to grow marijuana and avoid
getting caught, asked a federal appeals court yesterday to overturn
his drug convictions.

Rosenthal, convicted two years ago of growing and distributing
hundreds of marijuana plants, says he was authorized to do so by the
city of Oakland under a 1996 California medical marijuana law. U.S.
District Judge Charles Breyer refused to allow a jury to hear that
defense, and Rosenthal was prosecuted and convicted of being a major
drug supplier.

Still, Breyer sentenced him to one day in prison on the grounds that
Rosenthal reasonably believed he was immune from prosecution because
he was acting on behalf of Oakland city officials. The government and
Rosenthal both appealed.

The government maintained that Rosenthal, now 60, should have gotten
at least 24 months. Amber Rosen, an assistant United States attorney,
told a three-judge panel of the 9th U.S. Circuit Court of Appeals
that Breyer abused his discretion by issuing a sentence that fell
outside sentencing guidelines.

Citing new law from the Supreme Court, the circuit court suggested it
would not increase Rosenthal's sentence.

"He departed from the guidelines. They are not mandatory," Judge
Marsha Berzon said.

Rosen suggested that the circuit should consider "the reasonableness
of the departure, not the legality of the departure."

Rosenthal's prosecution underscored the federal government's position
that medical marijuana is illegal, it has no medical value, and the
will of California voters has no effect on federal drug laws. The
prosecution received national attention in part because of
Rosenthal's status as a leading author and proponent of marijuana,
while at the same time the Drug Enforcement Administration was
raiding Northern California marijuana dispensaries that operators
said distributed to sick and dying patients.

While the case was on appeal, however, the Supreme Court ruled that
the federal government can prosecute medical marijuana growers and
users despite California's medical marijuana law.

That decision, which applied retroactively, upheld the federal
government's authority to undermine California's medical marijuana
law. At the time, it had been questionable whether the federal
government had such powers.

The justices also ruled in an unrelated case, while Rosenthal's
prosecution was pending appeal, that federal judges do not have to
follow congressional sentencing guidelines. That decision was also
retroactive.

Dennis Riordan, one of Rosenthal's appellate attorneys, told the
court that Rosenthal's conviction should be overturned, or at least
he should have been given the opportunity to inform the jury at a new
trial that he was acting on behalf of Oakland officials, even if
federal law prohibited distributing marijuana.

"It's an affirmative defense based on the conclusion that somebody
was reasonably misled by public officials," Riordan said.

After Rosenthal's conviction, nine of the 12 jurors decried their own
verdict once reporters told them Rosenthal's defense, which Breyer
said was not allowed under the law.

The appeals court did not indicate when it would rule.

http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html

Pub Date: September 14, 2005
Pub Source: San Diego Union-Tribune

<http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html>http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html

Lawyers ask court to overturn man's marijuana convictions

By David Kravets
ASSOCIATED PRESS

September 14, 2005

SAN FRANCISCO - Attorneys for Ed Rosenthal, the self-described "Guru
of Ganja" who has written books on how to grow marijuana and avoid
getting caught, asked a federal appeals court yesterday to overturn
his drug convictions.

Rosenthal, convicted two years ago of growing and distributing
hundreds of marijuana plants, says he was authorized to do so by the
city of Oakland under a 1996 California medical marijuana law. U.S.
District Judge Charles Breyer refused to allow a jury to hear that
defense, and Rosenthal was prosecuted and convicted of being a major
drug supplier.

Still, Breyer sentenced him to one day in prison on the grounds that
Rosenthal reasonably believed he was immune from prosecution because
he was acting on behalf of Oakland city officials. The government and
Rosenthal both appealed.

The government maintained that Rosenthal, now 60, should have gotten
at least 24 months. Amber Rosen, an assistant United States attorney,
told a three-judge panel of the 9th U.S. Circuit Court of Appeals
that Breyer abused his discretion by issuing a sentence that fell
outside sentencing guidelines.

Citing new law from the Supreme Court, the circuit court suggested it
would not increase Rosenthal's sentence.

"He departed from the guidelines. They are not mandatory," Judge
Marsha Berzon said.

Rosen suggested that the circuit should consider "the reasonableness
of the departure, not the legality of the departure."

Rosenthal's prosecution underscored the federal government's position
that medical marijuana is illegal, it has no medical value, and the
will of California voters has no effect on federal drug laws. The
prosecution received national attention in part because of
Rosenthal's status as a leading author and proponent of marijuana,
while at the same time the Drug Enforcement Administration was
raiding Northern California marijuana dispensaries that operators
said distributed to sick and dying patients.

While the case was on appeal, however, the Supreme Court ruled that
the federal government can prosecute medical marijuana growers and
users despite California's medical marijuana law.

That decision, which applied retroactively, upheld the federal
government's authority to undermine California's medical marijuana
law. At the time, it had been questionable whether the federal
government had such powers.

The justices also ruled in an unrelated case, while Rosenthal's
prosecution was pending appeal, that federal judges do not have to
follow congressional sentencing guidelines. That decision was also
retroactive.

Dennis Riordan, one of Rosenthal's appellate attorneys, told the
court that Rosenthal's conviction should be overturned, or at least
he should have been given the opportunity to inform the jury at a new
trial that he was acting on behalf of Oakland officials, even if
federal law prohibited distributing marijuana.

"It's an affirmative defense based on the conclusion that somebody
was reasonably misled by public officials," Riordan said.

After Rosenthal's conviction, nine of the 12 jurors decried their own
verdict once reporters told them Rosenthal's defense, which Breyer
said was not allowed under the law.

The appeals court did not indicate when it would rule.

<http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html>http://www.signonsandiego.com/uniontrib/20050914/news_1n14medpot.html

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