Famed Medical Marijuana Advocate Asks Feds To Overturn Conviction

September 12, 2005

, KTVU - TV

An Oakland marijuana grower who was sentenced to one day in prison for cultivating the plants asked a federal appeals court in San Francisco Tuesday to overturn his conviction.

 

Ed Rosenthal, 60, contends he should have been allowed to argue in his federal trial in San Francisco in 2003 that he honestly believed he was immune from U.S. prosecution because he was helping the city of Oakland carry out its medical marijuana program.

 

Rosenthal's attorney, Dennis Riordan, told a panel of the 9th U.S. Circuit Court of Appeals that the trial judge's refusal to allow that argument violated Rosenthal's constitutional right to a fair trial.

 

"He had a Sixth Amendment right to present that defense to a jury," Riordan contended.

 

Rosenthal, the author of 13 books and a monthly column about marijuana, was convicted of conspiring to cultivate marijuana, cultivating it and maintaining marijuana premises at an Oakland warehouse.

 

He claimed he was growing starter plants for patients needing medical marijuana. But he was not allowed at the federal trial to mention a California law that permits seriously ill patients to use the drug.

 

Although Rosenthal was sentenced to only one day in prison, he says he is appealing his conviction in order to exonerate himself.

 

Rosenthal said outside of court, "I feel I should be exonerated of the three felony counts.

 

"I'm also doing it to try to change the enforcement of federal laws and protect officers of cities and states whose job it is to provide medical marijuana to patients," Rosenthal said.

 

Rosenthal wants the appeals court either to dismiss the charges or order a new jury trial, allowing him to make the defense argument.

 

Meanwhile, a federal prosecutor asked the appeals panel not only to uphold the convictions but also to order the trial judge, U.S. District Judge Charles Breyer, to reconsider the sentence.

 

Assistant U.S. Attorney Amber Rosen said, "Congress intended that large-scale cultivation should be treated as a serious offense."

 

Prosecutors contend Rosenthal should be sentenced to two to five years in prison.

 

Rosen also argued that because Oakland's medical marijuana program was illegal under federal law, Rosenthal wasn't entitled to argue that he believed that he was immune from federal prosecution.

 

A three-judge appeals panel took the case under submission and will issue a written ruling at a later date.

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