Pot guru challenges drug convictions
September 12, 2005
David Kravets, Associated PressAttorneys 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 Tuesday 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 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 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 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 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 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, grounded into law the government's authority to undermine California's medical marijuana law. At the time, it was 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," he said.
Judge Betty Fletcher suggested that, before Rosenthal's arrest, various California court decisions were already published declaring state law does not immunize medical marijuana users or sellers from federal prosecution.
"There were other strong evidences that he could be prosecuted," Fletcher said.
Rosenthal, in an interview after the hour-long hearing, said "I was told by the city attorney's office that I was immune from prosecution. If I can't rely on government officials, who can you rely on?"
Rosen, the federal prosecutor, told the court that only federal officials, not state authorities, can grant immunity from federal laws.
The court appeared troubled, however, by the misconduct of a juror who asked an attorney during the trial whether she had to follow the law or could vote her conscience. The attorney told the woman, who was sensing Rosenthal was dealing in medical marijuana, that she must follow Breyer's instructions or she'll get in "trouble."
Berzon said jurors are not supposed to be told "they are going to get into trouble." Fletcher added that, if the attorney-friend of the juror advised the juror to vote her conscience, "Wouldn't the government say that was jury tampering?"
Rosen replied: "She has no right of nullification. Her friend told her, 'You need to follow the court's instructions.' It diminished a juror's sense of her power to nullify. She has no right of nullification."
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 court did not indicate when it would rule.
The case is United States v. Rosenthal, 03-10307.