9th Circuit Mulls Pot-Smoking Celeb's Appeal

9th Circuit Mulls Pot-Smoking Celeb's Appeal
Posted by CN Staff on September 13, 2005 at 20:11:01 PT
By Justin Scheck, The Recorder
Source: Cal Law 
California -- It was unclear why there was no drum circle on the third floor of the 9th U.S. Circuit Court of Appeals on Tuesday morning. The dozen or so people assembled outside Courtroom One were certainly loud enough -- despite repeated exhortations by security guards to keep the noise level down -- and the top thing on their minds was smoking pot.
And these are people who take their weed seriously: pot lawyers, pot lobbyists, pot activists, pot smokers, a pot reporter and the requisite pot publicists -- a middle-aged assembly that ranged from besuited to bedraggled. As the group waited for a 9th Circuit panel to finish hearing more conventional arguments -- a qui tam case, for example -- they had lots to say about marijuana. "If you smoke pot, you have less of a chance of getting cancer than if you don't," explained Ed Rosenthal, the focal point of the group. Rosenthal is a pot celebrity, as well as an author and publisher of pot books. ("'The Big Book of Buds,' volume one and volume two, are probably our best-sellers," said the primly suited Jane Klein, Rosenthal's business partner and wife. "They treat marijuana like you would roses," she said, referring to pictures and descriptions of growing conditions.) In 2003, Rosenthal's celebrity moved beyond the pot community when he was convicted in San Francisco federal court of growing marijuana, despite the fact that the city of Oakland had licensed him to do so. Rosenthal appealed that verdict -- even though U.S. District Judge Charles Breyer sentenced him to just one day in jail -- because Breyer refused to let the jury hear that the pot was grown for locally sanctioned medicinal use. "The trial was grossly unfair," Rosenthal said Tuesday in the middle of the passionate group outside the courtroom. His lawyer, Dennis Riordan, stood a good distance away as the group waited. In court, Riordan used softer language than his client's in his oral argument before a 9th Circuit panel of Judge Marsha Berzon, Senior Judge Betty Fletcher, and, sitting by designation, 8th Circuit Senior Judge John Gibson. Riordan said that since his client was a city officer -- by virtue of his medical-marijuana license -- he was immune from prosecution. He likened the prosecution to the federal government arresting local law enforcement officials for possessing drugs while they are working on an undercover investigation, and pointed out that federal law gives immunity to officials "lawfully engaged" in law enforcement. While the judges -- especially Berzon -- seemed somewhat skeptical of that argument (she wrestled several times with the meaning of "lawfully engaged"), they had few questions about a narrower defense by Riordan: that Rosenthal, because he could have reasonably thought his pot growing was legal, should have been acquitted. Or, at the very least, the jury should have been allowed to hear the medical marijuana argument, Riordan said. "Due process requires simply that a jury hear that defense," he told the panel. Amber Rosen, an assistant U.S. attorney, argued the case for the government. She said that a city may not deputize someone to act in violation of federal law, challenging the assertion that Rosenthal was lawfully engaged. Rosen also spent time challenging Rosenthal's one-day sentence, which deviated from optional sentencing guidelines. That argument didn't go over well with the judges. "If it's not mandatory, [Breyer] doesn't have to justify a departure from the guidelines," Berzon said. "So why are we looking at a departure from the guidelines?" After the hearing, Riordan -- an appellate specialist with Riordan & Horgan -- said that while he hopes to win on the immunity issue, he's more confident that the judges will order a new trial based on the entrapment argument. "We could go down like a rock on the immunity issue and win hands down on the entrapment-by-estoppel issue," he said. In addition to Riordan, Joseph Elford, a lawyer with Americans for Safe Access, argued that prosecutors misled the grand jury that indicted Rosenthal. After the arguments, which ran nearly a half-hour longer than scheduled, the judges didn't seem swayed by either side. The same could not be said for the pro-pot contingent, which stood outside the courtroom expounding on the need to legalize marijuana -- though that was not the issue before the 9th Circuit. "If there's any justice in the universe," insisted Bruce Mirken of the Marijuana Policy Project, "Ed Rosenthal will win his appeal." The case is U.S. v. Rosenthal, 03-10307. Source: Cal Law (CA)Author: Justin Scheck, The RecorderPublished: September 14, 2005Copyright: 2005 ALM Properties, Inc.Website: Articles & Web Site:Ed Rosenthal's Trial Pictures & Articles Pot Guru Challenges Drug Convictions'Ganja Guru' Appeal Set After Delay
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Comment #6 posted by Richard Zuckerman on September 14, 2005 at 09:43:10 PT:
There is a doctrine in the law known as Executive Estoppel. This means that the government is prohibited from asserting your violation of the law after they have already told you it is allright to commit the law violation. People v. Studefin (phonetic last name), a published New York State decision addresses Executive Estoppel. People v. Tallmadge, a published federal appeals decision, I believe from the 9th Circuit, I believe some time in the early 1990s, addresses a similar issue in the context of applying for a firearms purchase.Medical necessity should be a defense to this type of criminal charge. The Judiciary should be more compassionate. Instead of acting as a check upon the other two branches, they are improperly complacent. It is a shame Americans have not learned their lesson after repeatedly voting for REPUBLICANS AND DEMOCRATS, that these two parties have their corporate self-interests at heart, not your concerns for pursuit of happiness and freedom. When will Americans learn to vote for Libertarian Party candidates, Green Party candidates, and candidates such as Ralph Nader, who want to fulfill the original intent of Corporations, to serve the needs of Americans instead of their own personal international business interests? Has anybody logged on to or about our criminal federal government? Has anybody contacted our local Boards of Education and demanded an improvement in the curriculum of schools so they teach the dark side of government? Has anybody read WEED POLITICS column from this month's issue of WEED WORLD magazine?This week, the Appellate Division of the Superior Court of New Jersey will rule upon my motion to supplement my Appellant's Brief, in the case of Richard Paul Zuckerman, Plaintiff v. Borough of Highland Park, et al, Defendants, Docket number A-4461-04T1, appeals court Team 1 Leader Ed Costantini, (telephone number)(609) 984-4735, (609) 292-4822, over the Highland Park Public Library [] "policy" of a 3 minute time limit use of the public pay telephone, even when nobody is waiting to use the phone, arrest by 3 Highland Park Policemen for verbal refusal to produce identification [download and read the opinion in the case of Larry Hiibel v. Sixth Judicial District Court of Nevada, from the search option of] and a COMPLETELY FABRICATED "disorderly conduct." I was only convicted of the "disorderly conduct". My civil rights lawsuit was dismissed because I failed to obtain post-conviction relief from this "disorderly conduct," that probable cause is presumed from the conviction. The trial judge relied upon Heck v. Humphrey, 512 U.S. 477(1994). After I filed an appeal and filed my Appellant's Brief, I found Bembenek v. Donohoo, 355 F.Supp.2d 942, 948-950 (E.D. Wisc. January 28, 2005), which follows 2nd Circuit and 7th Circuit precedent holding that Heck v. Humphrey was a 5-4 decision, that 4 years after Heck v. Humphrey, one of the 5 Justices changed her mind and joined the 4 Justices, that Heck v. Humphrey is no longer good law because there is now a 5 Justice majority on this issue. Moreover, New Jersey State precedent has already held that municipal court convictions are inadmissible in any civil court and do not bar relitigation of the underlying facts, e.g., Trisuzzi v. Tabatchnik, 285 N.J.Super. 15, 25, 666 A.2d 543 (App. Div. 1995). I am waiting for them to submit their Appellee's Brief, in order to file a motion for direct certification to the New Jersey Supreme Court to ask for the State's Highest Court to establish a cause of action for Retaliation under the State Constitution. SOMETHING FOR YOU PEOPLE TO ASK YOUR LAWYER IS WHY A CAUSE OF ACTION HAS NOT ALREADY BEEN ESTABLISHED FOR RETALIATION FOR VIOLATION OF YOUR OWN STATE'S CONSTITUTION???!!! Unfortunately, CNN Lou Dobbs had an interview with a member of the Council on Foreign Relations, about six months ago, about their plan to eliminate the Canadian-U.S. international border and Mexican-U.S. international border, BY THE YEAR 2010, which would eliminate all State Constitutions and perhaps the U.S. Constitution, which would require us to rely upon the United Nations Universal Declaration of Human Rights as our only source of individual freedoms! Has anybody EVER taken a look at these so called "freedoms"? Log on to about the U.N. Universal Declaration of Human Rights, please? There is a U.S. Senate Bill pending right now which would allow them to do "research" on weather manipulation, as if they have not been doing it for years [e.g., "chemtrails"]! Yes, the government can create an earthquake! Log on to the Militia of Montana web site for the book on this [Nikola Tesla's technology!]. There is another U.S. Senate Bill right now, about to be decided on this day, which would immunize all pharmaceutical companies from lawsuit after you and I are force-medicated from any catastrophe [As I mentioned previously, the federal government can create these weather problems!!!]. PLEASE IMMEDIATELY CALL THE TOLL FREE U.S. CAPITOL TELEPHONE NUMBER TO OPPOSE THESE BILLS, (877) 762-8762??!! In addition, the United Nations, World Health Organization, has implemented CODEX ALIMENTARIUS rules which would require us to obtain a prescription for all vitamins, minerals, and herbs, which was passed with the CAFTA immigration law! Yeah! They slip a little paragraph into a thick wad of paperwork of a Congressional Bill hoping Congress does not read it! This is their modus operandi! Democrats, Republicans, the United Nations, Council on Foreign Relations, the Freemasons, Bilderbergers, will enslave us all if Americans do not open our eyes and do something about it!Richard Paul Zuckerman, Box 159, Metuchen, New Jersey, 08840-0159, richardzuckerman2002
Member of:;;; California NORML newsletter; [BUT NOT THEIR SUPPORT FOR OPEN-BORDER IMMIGRATION!!!!]; The Free Press [Kerrville, Texas]; New Jersey Militia Newsletter [10 U.S.C. Section 311 provides that every person from age 17 years of age is a member of the "unorganized militia"!!]; Law Enforcement News [John Jay College of Criminal Justice]; National Rifle Association.
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Comment #5 posted by FoM on September 14, 2005 at 07:56:55 PT
I hope you are doing ok during these difficult times for everyone.
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Comment #4 posted by FoM on September 14, 2005 at 07:12:09 PT
I found one more.
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Comment #3 posted by FoM on September 14, 2005 at 07:10:15 PT
I looked and this appears to be the last news on the ACLU lawsuit that I've found.
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Comment #2 posted by billos on September 14, 2005 at 04:12:23 PT
Has anyone heard anything more about the pending lawsuit against the DEA to allow the growing of cannabis at UMASS for research? The story seems to have disappeared.
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Comment #1 posted by herbdoc215 on September 13, 2005 at 22:44:14 PT
Has always been my defense...with biz liciences and state dept of health cards; the law itself lured me into breaking the 'letter' of the law :) "allegedly" :)...I'm curious to see how far it gets Ed, hope it doesn't go the other way and him end up in jail by a retrial...sure seems to be a hell of a roll of the dice? But at least he's sticking his toe into the water for us. If anybodies interested our sites up now with a whole bunch of pictures at
 www.ashlumines.comShows us patients and cannabis users ain't as "disposable" as some would have people believe.Peace, Steve Tuck
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