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Federal Prosecutors are attempting to undermine California's medical marijuana laws by rejecting efforts by Oakland city officials to immunize medical cannabis grower Ed Rosenthal from federal prosecution.

 

Rosenthal, who was deputized by Oakland officials to cultivate cannabis in accordance with California's Compassionate Use Act (Proposition 215), is on trial this week in U.S. District Court on federal drug charges. A victory for prosecutors could signal the beginning of the end for the state's landmark medical marijuana statute.

 

Across the state, 50 medical cannabis clubs distribute pot to patients who are permitted to cultivate, possess, and consume the drug with a doctor's recommendation.

 

Rosenthal, who is facing a 20-year prison sentence, was swept up in a raid by the Drug Enforcement Administration in February 2002 that also led to the indictment of Ken Hayes, Rick Watts, and James Halloran. They are the first four people indicted by the U.S. Justice Department for providing marijuana to patients in the Bay Area since Prop. 215 passed in 1996. In October, Bryan Epis of Chico was the first medical cannabis grower to be tried in federal court. He was convicted by a jury in Sacramento and is serving a 10-year mandatory sentence for cultivating marijuana in violation of federal law.

 

Rosenthal's case is being followed closely by medical pot activists around the country. "Ed's case is huge, and if he wins, it will have major implications for medical marijuana policy because he will have defeated the feds on their own turf with two arms behind his back," said Rob Kampia, executive director of the Washington, D.C.- based Marijuana Policy Project (MPP).

 

If Rosenthal loses, Kampia said, legislators in Maryland, Vermont, Massachusetts, and New Mexico – where the MPP hopes to sponsor medical marijuana bills on the 2004 ballot – may conclude that state law will not stand up to federal prosecution. "If we go to legislators and say there are eight states where medical marijuana laws are working, they might not believe us anymore," Kampia said.

 

The DEA raid against Rosenthal took place the same day top DEA official Asa Hutchinson unveiled the Bush administration's new antidrug strategy at San Francisco's Commonwealth Club. DEA agents served search warrants on eight locations in the Bay Area, including San Francisco's Harm Reduction Center on Sixth Street and an Oakland warehouse containing several thousand tiny starter plants that Rosenthal says were intended for patients. Leaving nothing to chance, a DEA SWAT team blew open the locked doors of the Sixth Street club with plastic explosives.

 

"Basically, if I lose this case, what they are going to do is crank up the machinery and get a factory process going for prosecuting all the clubs, all the club owners, the people who supply the clubs, and then go after some of the patients," Rosenthal said.

 

Rosenthal, 58, has been charged with cultivating more than 100 marijuana plants at the club, conspiring to grow more than 1,000 marijuana plants, and maintaining a place to grow marijuana at the warehouse. Rosenthal has assembled a large defense team including at least four lawyers, a private investigator, a publicist, and a jury expert. His supporters are planning a billboard campaign to publicize the case and a series of rallies in front of the San Francisco federal building, where gagged and silent protesters conveyed their outrage during last week's pretrial hearings.

 

Rosenthal's lawyers are now in a bare-knuckles legal struggle with Judge Charles Breyer, who has ruled to exclude all discussion of medical issues, Oakland's municipal laws, or Prop. 215 from the trial. Breyer has also denied several other motions to dismiss charges.

 

Rosenthal says he believed Oakland officials had the power to grant him legal immunity under a section of the federal Controlled Substances Act, the very law the feds are now using to prosecute him. The provision is usually used to shield law enforcement agents who possess, buy, or sell drugs in the course of their duties. Oakland decided it could also be used to protect cannabis growers and distributors working with its Medical Marijuana Program, created by city ordinance to carry out the provisions of Prop. 215.

 

Lt. Redford Hart, the city's law enforcement point person on medical marijuana, said the DEA never informed him that the city was violating federal law and could be subject to federal prosecution. Former Oakland City Council member Nate Miley and Oakland assistant city attorney Barbara Parker also testified that they believed Rosenthal was immune from criminal and civil liability.

 

"When the ordinance immunizing officers passed, I felt I was immune and that the city officials knew what I was doing," Rosenthal said. "Who am I to argue with the city attorney?"

 

Rosenthal's defense attorneys say the federal government's prosecution is a form of entrapment because Oakland officials told him his conduct was legal. And he believed what they said was true. It's still unclear if Rosenthal will take the stand in his own defense or whether Breyer will permit him to testify about his state of mind at the time of the alleged crime. "I think it would throw the court into legal disruption if he stopped me from testifying on my own behalf," Rosenthal said.

 

Breyer declined to dismiss the charges based on entrapment, contending that Oakland officials did not speak for the federal government. The defense had no evidence, the judge said, that federal officials did or said anything to convey immunity.

 

"If they win this battle, then I think that the dispensaries in the states that have legal medical marijuana are going to be in for a tough time from the federal government," Rosenthal said. "If we win this, it's like taking several bricks out of the bottom of the wall – it weakens the wall so much that it will eventually implode."

 

Despite what they say is the muzzling of Rosenthal's defense, his attorneys are on the offensive against the DEA. They presented evidence that DEA supervisor Mike Heald, a member of the joint DEA/Sonoma narcotics task force, gave assurances to activists that the DEA would respect California's medical marijuana laws. Breyer excluded the evidence as inadmissible hearsay. "We'll just have to bring in the federal agents and have them discuss it," said Rosenthal, whose defense team is expected to put several DEA agents on the stand.

 

The judge cited concern over jury nullification and strong support for state medical cannabis laws as the reasons for twice moving up the date of jury selection. But while he cautioned protesters outside the courthouse not to lobby prospective jurors, he did tip off jurors during the voir dire screening process that the case involved medical marijuana. Jurors were asked whether they had strong views regarding the legalization of marijuana or the use of marijuana for medical purposes, and were then asked if they could set aside their views and apply federal drug laws to reach a decision. "You may think that the law is unjust, you may think that the law is wrong," Breyer said. "But as a juror, you take the oath that you will follow the law."

 

In a remarkable display of jurisdictional rebellion, more than half of the 77 potential jurors called for the case said in open court that they supported medical cannabis and would not judge Rosenthal on federal law alone. "I believe that federal prosecution of marijuana cases is a waste of resources and the law should be changed," David Loeb of Berkeley declared.

 

Breyer dismissed Loeb and other jurors who had similar views. But enough jurors with strong feelings remain on the jury to give the defense hope that one will vote to acquit. Rosenthal said the people who remain on the jury are a "very fair-minded group, and they realize the fiction that marijuana isn't medicine."

 

"You need a couple of strong-willed people who will say, 'No, the system is guilty and the system should be punished,' " Rosenthal's lawyer Bill Simpich said. "It is not a question of jury nullification but a question of the system standing up and looking people in they eye and telling them what they are doing."

 

The DEA raid exposed the presence of government informants in the medical marijuana community when it was revealed that a self-styled priest named Father Nazarin had provided information to the DEA that was used to support the search warrants. Nazarin, who served as a "spiritual adviser" to San Francisco's former St. Martin de Porres medical pot club on Divisadero Street, wrote a series of letters to the DEA denouncing Rosenthal and others arrested in the sweep as "criminals" and "profiteers." Nazarin, who says his given name is Bashir Ahmed, was himself arrested in November by San Francisco police who were skeptical of his claim that the 250 marijuana plants at his house were being grown for a medical marijuana patient.

 

"Even those people who call themselves medical marijuana distributors are fighting among themselves because they are in for the money," said Richard Meyer, spokesperson for the DEA's San Francisco field division. "They are not fooling us. We know they are in it for the money and are using Prop. 215 as a smoke screen."

 

 

Ann Harrison: ah@well.com - is a San Francisco reporter.

 

Source: San Francisco Bay Guardian, The (CA)

Author: Ann Harrison

Published: January 22, 2003

Copyright: 2003 San Francisco Bay Guardian

Contact: letters@sfbg.com

Website: http://www.sfbg.com/

 

http://www.sfbg.com/37/17/news_pot.html