APPEAL SUCCEEDS FOR POT ACTIVIST

Outside Influence On The Jury Affected 2003 Case, The 9th Circuit Determines.

SAN FRANCISCO - An appeals court Wednesday threw out the 2003
conviction of a prominent marijuana activist, citing an outside
influence on the jury that found him guilty of supplying hundreds of
pot seedlings to medical patients through Bay Area dispensaries.

The decision by the 9th U.S. Circuit Court of Appeals awards Edward
Rosenthal a new trial if the federal government decides to pursue its
case against him.

He's entitled to it, said the court, because "extraneous information"
obtained by one juror and passed on to another may have affected the
verdict. An attorney-friend told the juror she would "get in trouble"
if she considered the medical connection that jurors correctly suspected.

All evidence of it had been barred from the case, and the trial
judge, U.S. District Judge Charles Breyer of San Francisco,
instructed the jury to apply only the federal anti-pot laws.

"Jurors cannot fairly determine the outcome of a case if they believe
they will face 'trouble' for a conclusion they reach as jurors,"
Senior Circuit Judge Betty Fletcher of Seattle wrote in the unanimous
opinion. "The threat of punishment works a coercive influence on the
jury's independence, and a juror who genuinely fears retribution
might change his or her determination of the issue for fear of being punished."

The appeals court also, in effect, ruled against the government's
appeal of Rosenthal's unusual one-day sentence. Federal prosecutors
contended it was far too short for his marijuana cultivation and
conspiracy convictions.

With the convictions set aside, the sentencing issue became moot. But
the appeals court said in a footnote that it would "not be inclined
to disturb (Breyer's) reasoned analysis." Breyer had ruled that "just
punishment" required "substantial departure" from the federal
sentencing guidelines.

Rosenthal and the medical marijuana movement were the losers,
however, on the broadest issue raised by the defense appeal - whether
Oakland immunized Rosenthal from federal prosecution when it
deputized him to grow pot for people entitled to use it under
Proposition 215, California's medical marijuana law.

Even under the state law, the judges said, only patients and their
primary caregivers are permitted to grow pot. That part of the
decision would restrict defense options in a retrial.