Cannabis Grower to Appeal

by Fred Gardner

"Time served - one day!" An illicit cheer echoed down the 19th-floor corridor of the San Francisco federal building as the overflow crowd got word that U.S. District Judge Charles Breyer had gone easy on Ed Rosenthal. Federal prosecutors had asked for a six-and-a-half-year prison term.

The light sentence meted out by Breyer on Wednesday, June 4, represents a personal victory for the well-known Oakland cannabis cultivator and his family and friends. A political victory could follow if Rosenthal's felony conviction as a marijuana cultivator and conspirator gets overturned.

Rosenthal's attorney, Dennis Riordan, has already notified the 9th U.S. District Court of Appeals that he will challenge the conviction. Riordan, who specializes in reviewing trial records for reversible errors, is convinced he found some significant ones in the Rosenthal case.

For openers: Judge Breyer should have allowed the jury to hear that Rosenthal - who had been authorized to grow marijuana under a program created by an Oakland city ordinance - thought he was acting legally. "If the jury got to hear that," Riordan told the Planet, "they could have decided Ed was acting in good faith and acquitted him. He was denied the right to present a mental-state defense to the jury."

Riordan is also challenging Breyer's ruling that the Oakland cannabis-distribution program is invalid under federal law. The program relies on the same section of the federal Controlled Substances Act, 885( d ), that entitles undercover police officers to obtain, handle and sell illicit drugs.

Section 885( d ) states that "no civil or criminal liability shall be imposed" on any state or local "authorized officer ... who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." A creative Oakland lawyer named Robert Raich proposed that the wording of 885( d ) could apply to city-appointed officers engaged in obtaining, handling and selling cannabis. The city attorney agreed, and Raich's client, Jeff Jones, director of the Oakland Cannabis Buyers Co-op ( CBC ), was deputized to make the herb available to patients qualified to use it under California law. Jones assigned Rosenthal to grow clones-- starter plants of known sex and quality - for distribution to such patients.

Judge Breyer ruled in the Rosenthal case ( and in a previous federal case against Jones and the Oakland CBC ) that interpreting section 885( d ) as protection for cannabis providers would violate the basic prohibitionist purpose of the Controlled Substances Act. Breyer repeatedly described his interpretation as "the common-sense reading of the statute." But the Raich/Oakland reading is the literal one. "I think we have an extremely good chance of being vindicated on appeal," said Riordan.

During pre-trial hearings in January, when Judge Breyer ruled that the Oakland ordinance could not be cited by the defense, he expressed skepticism that Ed Rosenthal was unfamiliar with his previous ruling that section 885( d ) does not protect cannabis providers. But on Tuesday - influenced perhaps by editorials in the San Francisco Chronicle and the New York Times - Breyer gave Rosenthal the benefit of the doubt. He based his lenient sentence on Rosenthal's "reasonable belief" that he had been properly authorized to cultivate by the city of Oakland.

If the 9th Appeals Court rules that 885( d ) does indeed apply to city or state-ordained cannabis operations it would be like driving a tank through the Berlin wall of prohibition. Damage control would commence before cities from Arcata to San Diego start grow-ops. Attorney General John Ashcroft would appeal to the U.S. Supreme Court ( Charles Breyer's older brother, Associate Justice Stephen Breyer, would have to recuse himself ). Ultimately Congress might have to reword the Controlled Substances Act. And in the process, the question of marijuana's presence on Schedule I - dangerous drugs with no medical utility - might be debated. Could get interesting.

Rosenthal's appeal brief will also challenge the propriety of Assistant U.S. Attorney George Bevan's dialog with the grand jury that produced the initial indictment. Unlike the jurors who heard the case in January 2003, the grand jurors were aware that Rosenthal was growing for Bay Area cannabis clubs.

The defense charges that Bevan misled the grand jurors by seeking to allay any fears that indicting Rosenthal would cut off the supply of cannabis to Californians entitled to use it medicinally.

A final appeals issue involves Breyer's ruling that the conduct of jurors Marney Craig and Pam Klarkowski did not constitute grounds for dismissal. Craig had asked a lawyer of her acquaintance whether she could vote her conscience if it clashed with the judge's instructions. The lawyer-friend's answer had been an unequivocal "No. You must obey the judge." Craig relayed this fact to Klarkowski as they drove to court on the morning deliberations were to begin. Under the relevant federal rule of evidence, 606 ( b ), the improper influencing of jurors during the course of a trial can be grounds for dismissal.

The 9th circuit is expected to take a year to a year and a half to rule on Rosenthal's appeal.

Riordan expects the prosecution to appeal Breyer's "downward departure" from a mandatory-minimum sentence of six-and-a-half years. The issue would be whether Rosenthal's status as an employer at the grow-op disqualified him from receiving such leniency. On this matter Riordan does not expect Breyer to get reversed.