U.S. will appeal pot decision
Judge refused to jail marijuana grower

Bob Egelko, Chronicle Staff Writer

Tuesday, July 8, 2003 -- Federal prosecutors have signaled they will ask an appeals court to send marijuana advocate Ed Rosenthal to prison for cultivating pot for medical patients.

The U.S. attorney's office filed notice with the federal appeals court in San Francisco that it intends to appeal U.S. District Judge Charles Breyer's decision to spare Rosenthal from a prison term for his federal cultivation and conspiracy convictions last month. The notice was dated last Thursday and was obtained by reporters Monday.

Prosecutors did not explain the grounds on which they intend to appeal. The notice was filed with the U.S. Court of Appeals in San Francisco.

Before Rosenthal's June 4 sentencing, the lead prosecutor asked Breyer for a 6 1/2-year sentence. The minimum term normally required by federal law for cultivating more than 100 marijuana plants is five years.

Rosenthal has already asked the appeals court to overturn his conviction, which he contends was unfair because Breyer prevented the jury from hearing evidence related to medical marijuana.

Rosenthal, 58, a prominent author and expert on marijuana growing, was convicted by a San Francisco jury in January of violating federal law by growing marijuana for the Harm Reduction Center, a San Francisco dispensary for medical patients.

He claimed his actions were authorized by California's medical marijuana law and also said he had been deputized by the city of Oakland to supply marijuana to a city-endorsed patient cooperative. Breyer barred that evidence, saying it was irrelevant to a federal prosecution. That decision prompted a majority of the jurors to disavow their verdict when they learned afterward about the evidence.

The judge imposed the lightest possible sentence, a day in jail, which Rosenthal had already served after his February 2002 arrest. Saying Rosenthal had believed -- erroneously, but reasonably -- that he was acting legally, Breyer concluded that the "extraordinary, unique circumstances of this case" justified an exemption from the usual five-year minimum term and federal sentencing guidelines.