POT GURU CHALLENGES DRUG CONVICTIONS

SAN FRANCISCO - Attorneys for Ed Rosenthal, the self-described "Guru of
Ganja" who has written books on how to grow marijuana and avoid getting
caught, asked a federal appeals court to overturn his drug convictions.

Rosenthal, convicted two years ago of growing and distributing hundreds of
marijuana plants, says he was authorized to do so by the city of Oakland
under a 1996 California medical marijuana law. U.S. District Judge Charles
Breyer refused to allow a jury to hear that defense, and Rosenthal was
prosecuted and convicted of being a major drug supplier.

Still, Breyer sentenced him to one day in prison on grounds that Rosenthal
reasonably believed he was immune from prosecution because he was acting on
behalf of Oakland city officials. The government and Rosenthal both
appealed.

The government maintained Rosenthal, now 60, should have gotten at least 24
months. Amber Rosen, an assistant United States attorney, told a three-judge
panel of the 9th U.S. Circuit Court of Appeals that Breyer abused his
discretion by issuing a sentence that fell outside sentencing guidelines.

Citing new law from the Supreme Court, the circuit court suggested Tuesday
it would not increase Rosenthal's sentence.

"He departed from the guidelines. They are not mandatory," Judge Marsha
Berzon said.

Rosen suggested the circuit should consider "the reasonableness of the
departure, not the legality of the departure."

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 operators said distributed to sick and dying patients.

While the case was on appeal, however, the Supreme Court ruled that the
federal government can prosecute medical marijuana growers and users despite
California's medical marijuana law.

That decision, which applied retroactively, grounded into law the
government's authority to undermine California's medical marijuana law. At
the time, it was questionable whether the federal government had such
powers.

The justices 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 retroactive.

Dennis Riordan, one of Rosenthal's appellate attorneys, told the court that
Rosenthal's conviction should be overturned, or at least he should have been
given the opportunity to inform the jury at a new trial that he was acting
on behalf of Oakland officials, even if federal law prohibited distributing
marijuana.

"It's an affirmative defense based on the conclusion that somebody was
reasonably misled by public officials," he said.

Judge Betty Fletcher suggested that, before Rosenthal's arrest, various
California court decisions were already published declaring state law does
not immunize medical marijuana users or sellers from federal prosecution.

"There were other strong evidences that he could be prosecuted," Fletcher
said.

Rosenthal, in an interview after the hour-long hearing, said "I was told by
the city attorney's office that I was immune from prosecution. If I can't
rely on government officials, who can you rely on?"

Rosen, the federal prosecutor, told the court that only federal officials,
not state authorities, can grant immunity from federal laws.

The court appeared troubled, however, by the misconduct of a juror who asked
an attorney during the trial whether she had to follow the law or could vote
her conscience. The attorney told the woman, who was sensing Rosenthal was
dealing in medical marijuana, that she must follow Breyer's instructions or
she'll get in "trouble."

Berzon said jurors are not supposed to be told "they are going to get into
trouble." Fletcher added that, if the attorney-friend of the juror advised
the juror to vote her conscience, "Wouldn't the government say that was jury
tampering?"

Rosen replied: "She has no right of nullification. Her friend told her, 'You
need to follow the court's instructions.' It diminished a juror's sense of
her power to nullify. She has no right of nullification."

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 court did not indicate when it would rule.

The case is United States v. Rosenthal, 03-10307.