Story by Mark Miller
After Breyer announced the sentence, the packed courtroom burst out into applause and ecstatic shouts. Moments later, when the news reached the overflow crowd in the hallways, even louder cheering could be heard in the courtroom.
Rosenthal was also fined $1,000 and was placed on supervised release for three years. During his probation, he cannot possess or grow pot, and will be subject to periodic searches of his property and vehicles.
“The court finds the circumstances of the offense are highly unusual,” Breyer explained while delivering the sentence. “What is significant for sentencing purposes is whether the defendant believed he was protected.”
He was referring to the fact that Rosenthal believed himself to be immune from prosecution when he was deputized by the city of Oakland in 1998 to cultivate cannabis for chronically ill patients, in conjunction with the city’s medical-marijuana ordinance.
At the press conference outside the courtroom, Rosenthal was warmly congratulated by his family, attorneys, a throng of jubilant supporters and activists, and several of the jurors who regretted convicting him.
“I’m not happy I got one day. That’s one day too many,” he told them. “It’s one day too many for the people arrested and in prison for marijuana. Let them go now!”
He was not grateful to the judge who provided his freedom. “Judge Breyer did me no favors, and he made me a felon. He had an agenda to produce a guilty verdict.”
He was referring to the fact that Breyer continuously ruled in favor of the prosecution, refused to let the defense call many of its character witnesses, and barred all evidence that Rosenthal’s motivation for growing the pot was to produce medicine.
Rosenthal was arrested on February 12, 2002, when DEA agents raided his Oakland home. Also raided that day was Rosenthal’s ex-partner in cultivation, James Halloran, the Harm Reduction Center medical-marijuana club in San Francisco, and the Petaluma home of HRC founder Ken Hayes.
Halloran was one of the key witnesses to testify against Rosenthal, in exchange for a reduced sentence. Rosenthal labeled him “a snitch.”
Despite Rosenthal’s release, his attorneys still intend to file an appeal with the 9th Circuit Court of Appeals in San Francisco. The key issue is whether or not the appellate court will find that Rosenthal was in fact protected by federal immunity statute 885(d), which is traditionally used to protect undercover cops from prosecution when they make illegal drug purchases.
Before the trial Breyer had ruled that Rosenthal was not protected by 885(d), but in sentencing, he left the door open for the 9th Circuit to overturn the conviction, by stating that he found Rosenthal’s belief that he was immunized “reasonable.”
Though Rosenthal faced a mandatory minimum of five years, his sentence was reduced via a “safety valve” law, which allows for a lesser sentence for nonviolent, first-time offenders who cooperate with authorities and have not acted as leaders or organizers of crimes. Both the court probation officer and Judge Breyer concluded Rosenthal was eligible for that.
Breyer’s ruling was a defeat for federal prosecutors, who had been seeking a 63-month sentence. During the hearing, the prosecution had called Rosenthal’s grow operation a “cash cow” and even cited one of his books, Ask Ed About Marijuana Laws, to demonstrate that he was aware of federal marijuana prohibition.
The defense argued that if Rosenthal were a drug dealer, he would not have allowed the Oakland fire inspector into his growing facility.
When asked by reporters if he’ll continue to grow, Rosenthal replied, “I’m going to make it safe for everyone to grow by bringing these laws down.
“This sends a message to the Feds, that we’ll see a change of the marijuana laws,” he exclaimed at the end of the press conference. “The DEA can move into waste management.”