By Ann Harrison
ah@well.com
More than two years after standing trial for growing medical marijuana, Ed Rosenthal was back in court yesterday seeking to overturn his conviction and settle some scores with the federal judiciary.
Despite widely sympathetic media coverage of his case, prosecutors also appealed the decision and are trying to send Rosenthal back to the slammer.
Rosenthal’s attorneys asked a three-judge panel of the 9th U.S. Circuit Court of Appeals to throw out his conviction based on improprieties by the prosecutor, jury and judge.
But assistant U.S. Attorney Amber Rosen argued that Rosenthal’s one-day sentence “was an abuse of judicial discretion” and pressed for a two to five year sentence.
Judge Marsha Berzon noted that the Supreme Court had recently ruled in the Booker decision that judges are not bound by mandatory sentencing guidelines. Undeterred, Rosen asked the judges to consider “the reasonableness of the departure, not the legality of the departure.”
Rosenthal, who has written extensively about cannabis cultivation, said he appealed his conviction on three felony charges because it provided another opportunity to take on the federal marijuana laws. He was arrested in February 2002 after DEA agents raided his Oakland, California home and an Oakland warehouse where he cultivated cannabis. Rosenthal says the warrant used to search the warehouse did not meet the standard of probable cause.
Although Rosenthal risks being sent to prison if granted a new trial, Rosenthal said he wants to highlight what he says was judicial misconduct and manipulation of juries in marijuana cases.
One of Rosenthal’s appellate attorneys, Joe Elford, argued that the conviction should be overturned because Assistant U.S. Attorney George Bevan lied to the grand jury when seeking an indictment in the case. When jurors expressed reluctance to indict because it would deprive sick people of medical cannabis, Bevan told the jury that he was strictly after Rosenthal and did not seek to shut down dispensaries.
Despite this assertion, Elford noted that San Francisco’s Harm Reduction Center dispensary was shut down as a result of the investigation that led to Rosenthal’s indictment.
Rosen replied that prosecution of the dispensary was not part of the case and noted that the grand jury was informed that Rosenthal was “growing it solely medical use. “The federal government targets suppliers,” says Rosen.
Judge Betty Fletcher noted that the grand jury served at the “conscious of the community” and noted that when prosecutors took alcohol sellers to court in the days a of alcohol prohibition “they couldn’t get indictments.”
Rosenthal’s other appellate attorney, Dennis Riordan, argued that District Judge Charles Breyer prevented jurors from hearing testimony that Rosenthal was growing medical cannabis while protected under federal statute. Breyer ruled that because the federal government does not recognize the 1996 Compassionate Use Act, California’s medical cannabis law, Rosenthal’s cultivation of medical cannabis was irrelevant in the case.
Rosenthal contended that he was deputized in September1998 as an agent of the City of Oakland under an interpretation of the federal Controlled Substances Act.
The Oakland City Council passed an ordinance that incorporated Section 885(d) of the Act to protect cultivators under its medical cannabis policy based on state law. Section 885(d) grants immunity “for any duly authorized officer of a political subdivision of a state lawfully engaged in the enforcement of a municipal ordinance relating to controlled substances.”
The appellate judges questioned yesterday how to interpret the word “lawfully” in the statute when state law conflicts with federal law. Section 885(d) is usually used to shield narcs trying to make drug buys and entrap suspects. But the City of Oakland stood the statue on its head to protect medical cannabis cultivators and patients under state law.
During the trial, Judge Breyer asserted that a literal reading of the statute would exonerate Rosenthal. But Breyer chose not to do this. The judge prevented Rosenthal from telling the jury what he was led to believe from a plain reading of the statute - a defense known as “entrapment by estoppel.”
Rosenthal was also not allowed to rebut the government’s claim that he grew marijuana for profit. After discovering the he was growing medical cannabis, nine of the twelve jurors in his case disavowed the verdict and said they had been misled.
Due to a bit of Byzantine logic, Rosenthal was ultimately sentenced by Breyer to one day instead of a mandatory five year sentence because the judge concluded that Rosenthal “reasonably” but erroneously believed that he was immune from prosecution.
During the appellate hearing Riordan argued that Rosenthal should get a new trial so he could inform the jury that he was acting with the approval of Oakland city officials under state law. “It’s an affirmative defense based on the conclusion that somebody was reasonably misled by public officials,” Riordan told the court. “He had a Sixth Amendment right to present that defense to a jury.”
Rosen countered that “no affirmative misleading statements were made by federal officials.” She also defended Bryer’s exclusion of medical cannabis arguments in Rosenthal’s case because California state law violated the federal Controlled Substances Act.
In his argument before the judges, Elford said jurors in Rosenthal’s trial were discouraged from their right to nullify the verdict – or voice opposition to unjust laws by refusing to convict - and were advised by the judge not to follow their own “sense of justice.”
Elford also noted that two jurors committed misconduct by seeking outside advice from a lawyer. The lawyer told one juror to follow the judge’s instructions or “she could get into trouble for exercising her conscience.”
Rosen countered that the advice was not proper, but the district court found that the advice to follow instructions did not pressure the jurors to convict.
“What we don’t do is tell people they are going to get into trouble,” replied Judge Berzon.
If Rosenthal wins his case, it conceivable that other cities could follow Oakland’s example and appoint medical cannabis “distribution officers” who could be immune from arrest by enforcing city policy.
“I am trying to fight not only for my rights, but for the rights of all medical marijuana patients,” said Rosenthal. “If they find that 885(d) is the law, then cities, towns and counties all over California will be able to appoint city officers to cultivate and distribute medical cannabis.”
Medical cannabis activists are also hoping that if his conviction is overturned, medical marijuana defendants will not be barred from informing juries of their intent.
“How in the U.S. can this be debated, the right of a defendant to tell their story to the jury,” said Bruce Mirkin of the Marijuana Policy Project. “Where is our congressional delegation from California, where is Barbara Boxer? Where is Diane Feinstein? Why don’t they condemn this?”
Rosenthal said he was not concerned about the prospect of being re-sentenced to a longer prison term if he is granted a new trial. “If the jury really had the chance to hear the evidence, I’m sure that I would be acquitted,” said Rosenthal. “I want to be exonerated and go head to head with Bevan on a level playing field and see how far he can advance the ball.”
Rosenthal’s appeal is perhaps the most important federal medical cannabis case since the Supreme Court ruled in June in Gonzalez v. Raich that the federal government has the power to prosecute medical cannabis growers who follow California law. Rosenthal’s appeal was on hold until that case was decided. The appeals court is not required to return a verdict in Rosenthal’s case by any set time.
