Pubdate: Wed, 14 Sep 2005
Source: San Diego Union Tribune (CA)
Copyright: 2005 Union-Tribune Publishing Co.
Contact:  http://www.uniontrib.com/
Details: http://www.mapinc.org/media/386
Note: Does not print LTEs from outside it's circulation area.
Author: David Kravets, Associated Press
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

LAWYERS ASK COURT TO OVERTURN MAN'S MARIJUANA CONVICTIONS

SAN FRANCISCO (AP) -- 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.
- ---
MAP posted-by: Jay Bergstrom