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Oaklander argues even light sentence for pot convictions too harsh; feds want 2 to 5 years
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.
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 iis seeking a harsher sentence of at least two to five years in prison.
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.
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.
Newshawk: Freaktan 420Times.com
Source: InsideBayArea.com and The Oakland Tribune
Copyright: 2005 ANG Newspapers
Contact: jrichman@angnewspapers.com.
Website: https://www.insidebayarea.com/oaklandtribune/localnews/ci_3021802
Author: Josh Richman
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.
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 iis seeking a harsher sentence of at least two to five years in prison.
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.
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.
Newshawk: Freaktan 420Times.com
Source: InsideBayArea.com and The Oakland Tribune
Copyright: 2005 ANG Newspapers
Contact: jrichman@angnewspapers.com.
Website: https://www.insidebayarea.com/oaklandtribune/localnews/ci_3021802
Author: Josh Richman
