[Marxism] California marijuana conviction thrown out
Brian_Shannon at verizon.net
Wed Apr 26 22:02:59 MDT 2006
Ed Rosenthal has been a Berkeley activist since the early 1960s.
Although known primarily for his fight against marijuana laws, he was
active in the Berkeley Vietnam Day Committee and for other social
Court overturns 'Guru of Ganja's' cultivation conviction
By DAVID KRAVETS, AP Legal Affairs Writer
Published 10:25 am PDT Wednesday, April 26, 2006
SAN FRANCISCO (AP) - 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
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
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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