9/13: 'Ganja Guru' appeal set after delay

An excellent article on Ed Rosenthal's appeal arguements scheduled for
tomorrow.
We here at ASA are very hopeful about this appeal, by the way.


9/12/2005 06:56 AM
'Ganja Guru' appeal set after delay
Oaklander argues even light sentence for pot convictions too harsh; feds
want 2 to 5 years
By Josh Richman, STAFF WRITER
Inside Bay Area

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.

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.


Contact Josh Richman at jrichman [at] angnewspapers.com.