Court Voids 'Guru of Ganja's' Pot Conviction

April 25, 2006

David Kravets, Associated Press

A federal appeals court on Wednesday overturned the self-proclaimed "Guru of Ganja's" pot cultivation conviction because of jury misconduct, but otherwise upheld federal powers to charge marijuana growers.

Ed Rosenthal, who has written books on how to grow marijuana and how to avoid getting caught, was convicted here three years ago for cultivating hundreds of marijuana plants for a city of Oakland medical marijuana program. U.S.

District Judge Charles Breyer sentenced Rosenthal to one day in prison, saying the Oakland man reasonably believed he was immune from prosecution because he was acting on behalf of city officials.

The government sought a two-year prison term and appealed, arguing Breyer did not have the authority to give such a light sentence - a position the 9th U.S. Circuit Court of Appeals said "it was not inclined to disturb." Rosenthal cross-appealed, saying he was immune from prosecution or should have been given the right to tell jurors he was growing marijuana for medicinal reasons - both points the appeals court also rejected.

Luke Macaulay, a spokesman for U.S. Attorney Kevin Ryan said the office was "considering the available options." Those include asking the court to reconsider its decision, appealing to the U.S. Supreme Court, going ahead with a new trial or dismissing the charges.

Rosenthal, reached by phone, declined immediate comment, saying he had not read the decision.

His attorney, Dennis Riordan, speculated the government would not retry him because even if he's convicted, federal rules generally don't allow judges to increase their original sentence.

"We're enormously happy the conviction was overturned," Riordan said. "He is not a felon."

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 affect 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 distributed pot to sick and dying patients.

A three-judge panel of the San Francisco-based appeals court unanimously overturned the conviction Wednesday because it was concerned that a juror committed misconduct and Breyer did not declare a mistrial, as Rosenthal's defense team requested.

"Juror A" asked an attorney during the trial whether she had to follow the law or could vote her conscience because she suspected Rosenthal was growing marijuana for medicinal uses. The attorney told the woman she must follow Breyer's instructions to follow federal law or she would get in "trouble."

"We hold that here the communication was an improper influence upon Juror A's decision to acquit or convict," Judge Betty Fletcher wrote for the court. She was joined by Marsha Berzon and John Gibson.

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

That decision, which applied retroactively, grounded into law the government's authority to undermine California's medical marijuana law and those in 10 other states.

The Supreme Court 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.

Following 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.

Rosenthal once wrote the "Ask Ed" column for High Times magazine and has written books with titles including "The Big Book of Buds" and "Ask Ed: Marijuana Law. Don't Get Busted."

The case is United States v. Rosenthal, 03-10307.

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