CANNABIS GROWER TO APPEAL

"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.