U.S. WILL APPEAL POT DECISION JUDGE REFUSED TO JAIL MARIJUANA GROWER

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.