Convicted of Three Felonies, Rosenthal Walks Free

There was not a lot of suspense about the outcome of Ed Rosenthal's trial on federal marijuana charges, but just to tie up loose ends let it be noted that he was convicted again on Wednesday. He will therefore walk free, albeit saddled with three felony convictions, since U.S. District Judge Charles Breyer has made it clear that the sentence this time around will be the same as in the first trial: one day, already served.

Breyer was so disgusted with the prosecution's decision to pursue a second trial (not to mention its vindictive attempt to tack on new charges) that he pretty much ordered the U.S. Attorney's Office to drop the one charge on which the jury did not reach a verdict. The Drug War Chronicle notes that Breyer so far has declined to punish six prosecution witnesses who said they could not in good conscience testify against Rosenthal, who was prevented from telling the jury that he was growing pot in cooperation with local officials for patients who are permitted to use it under California law. Breyer deemed that fact irrelevant to Rosenthal's guilt under federal law but took it into consideration when he imposed the most lenient sentence he could.

So what has U.S. Attorney's Office gained by pissing off Breyer and defying public opinion in Northern California, which strongly supports medical marijuana? It was uncharacteristically silent on the question after Rosenthal's conviction.

Comments

Gimme Back My Dog | June 1, 2007, 11:58am | #

Breyer sounds like a judge who is willing to take a stand on principle. In other words, he has zero chance of ever making SCOTUS.

Jack | June 1, 2007, 12:02pm | #

I just imagine the judge rolling his eyes and making the jerk off hand motion during the prosecution's close

bizzle | June 1, 2007, 12:03pm | #

Dog,

You do realize his brother's already a Supreme Court justice and one with a famously nebulous understanding of freedom?

Warren | June 1, 2007, 12:09pm | #

Rosenthal, ... was prevented from telling the jury that he was growing pot in cooperation with local officials for patients who are permitted to use it under California law. Breyer deemed that fact irrelevant to Rosenthal's guilt under federal law but took it into consideration when he imposed the most lenient sentence he could.

This is what scotches my muffin. I thought a defendant was entitled to present mitigating circumstances as part of his defense. I thought this was a pillar of our system of jurist prudence. Am I just delusional? How can this be "irrelevant"? I understand he's being charged on federal charges and the state licenses and permits don't apply. But honestly, I really thought explaining why you did the deed was always permissible.

Chris S. | June 1, 2007, 12:34pm | #

I thought a defendant was entitled to present mitigating circumstances as part of his defense... How can this be "irrelevant"? I understand he's being charged on federal charges and the state licenses and permits don't apply. But honestly, I really thought explaining why you did the deed was always permissible.

With respect to guilt, it's irrelevant, as it doesn't support a legally cognizable justification or excuse. It's perfectly relevant for sentencing, and that's how the judge used it.

nt | June 1, 2007, 12:35pm | #

So what has U.S. Attorney's Office gained by pissing off Breyer and defying public opinion in Northern California, which strongly supports medical marijuana?

Here's my off-hand guess. The purpose was not to get Rosenthal tossed in the slammer indefinitely or even to simply achieve a conviction. Instead, the local authorities are trying to convey the message that even with Prop. 215 marijuana is still illegal. They're afraid that a tipping point will be reached wherein both local norms and actual official conduct begin to reflect a new set of "facts on the ground," viz. that marijuana is not actually contraband in hippie-infested NorCal.

I loathe the Drug War and pray for its hasty demise, but I think that the feds did well for their side by commandeering the media to make giant commercial advertising the continued illegality of even medical marijuana.

Glad to see that Rosenthal isn't being locked away, but I believe that this round goes to the feds.

Now where can we find an enlightened judge on the Richard Paey case?!?

Timothy | June 1, 2007, 12:36pm | #

I wonder if these will be overturned on appeal like the first verdict.

Gimme Back My Dog | June 1, 2007, 12:48pm | #

biz,

I noticed the last name was the same, but I didn't know it was his brother.

Ken | June 1, 2007, 12:53pm | #

Start the clock, when will some GOP/conservative start bitching about this "activist judge" thwarting the will of the good and decent silent majority?

LarryA | June 1, 2007, 2:08pm | #

Rosenthal, who was prevented from telling the jury that he was growing pot in cooperation with local officials for patients who are permitted to use it under California law.

I'm getting old. I remember when witnesses swore to tell "the truth, the whole truth, and nothing but the truth."

ktc2 | June 1, 2007, 2:19pm | #

Doesn't the whole "why is irrelevant" fly in the face of mens rea?

One of those tired old concepts from back when courts actually attempted justice.

ktc2 | June 1, 2007, 2:20pm | #

The US no longer has a justice system. We have a legal system in which justice is not welcome.

damaged justice | June 1, 2007, 3:12pm | #

If we still had a justice system, the courts would still distinguish between "legal" and "lawful".

bubba | June 1, 2007, 3:35pm | #

Is this guy toast under Cali's 3 strikes law? He'd better keep his nose clean.

bruce m | June 1, 2007, 5:06pm | #

Jacob, surely you are aware that the government will appeal the lenient sentence to the 9th Circuit as "unreasonable" per Booker. All federal courts of appeals, even the somewhat liberal 9th Circuit, are reversing below-guidelines sentences and affirming above-guidelines sentences. A one day sentence is for all intents and purposes per se unreasonable under the law of all 12 federal circuits which hear criminal cases. The sentence will most certainly be reversed and vacated and remanded to the trial court for resentencing. The judge can give him a 2 day sentence and they can keep on appealing, but if that happens the case will be transferred by the 9th Circuit to another district judge for sentencing. The US will have it's decade-long sentence, it will just take a bit longer than usual after the conviction. Assholes.

Tony | June 1, 2007, 9:29pm | #

Actually, one day for a federal conviction for distribution of marijuana is not unreasonable per say. Even for very large amounts, it falls within the statutory sentencing range. And depending on a host of various factors, can easily fall within the guideline range.

I mean, its not crack cocaine we are talking about here. If it was, he'd be spending the rest of his life in prison.

I'll give an example, as I don't know the specifics of Rosenthal's situation so that I can calculate a guideline range. So I'll just use some hypothetical marijuana dealer.

But lets assume hes an otherwise law abiding citizen and doesn't have a large criminal background (no more than 1 pt for his Criminal History).

And lets assume there aren't any aggravating factors such as presence of a firearm, distribution near school, etc..

And lets assume that for purposes of relevant conduct he has say 40 marijuana plants. (Which would be quite a bit).

Keep in mind that in the federal guidelines, "closely related" counts are grouped together for purposes of sentencing, particularly in drug cases. What this means is even though Rosenthal was convicted on three separate counts, for sentencing purposes that becomes irrelevant...we are only concerned with relevant conduct here to get the base offense level.

Soo...

as defined in the guidelines, 1 plant equals 100g for determining sentence. Thus

40plants = 4000g = 4Kg

This calls for a base offense level of 12.

He gets a 2 level reduction for qualifying under the "safety valve" based on his lack of prior criminal history, bringing him to 10.

So with an offense level of 10 and a criminal history category I, his guideline sentencing range is 6-12 months. This falls within Zone B, so that opens up a range of alternative sentences such as probation or home detention.

So even in a situation where a guy has 40 freaking plants, its not likely to trigger severe penalties. Now, if it was an equivalent amount of crack cocaine, we'd be looking at a 324-405 month sentencing range.

What I'm wanting to show here is that despite some reports of severe federal sentences in marijuana cases, its generally not the case. Since it takes so much marijuana to trigger the higher level guideline ranges (really it takes close to a literal ton of the stuff), the biggest factor becomes the criminal history of the defendant, particularly if the defendant gets the career offender enhancement.

In the district I'm in, I have yet to see any federal marijuana prosecutions. Its just not worth their time; they want crack, meth, and heroin cases because those will get the bigger sentences. Anything else the feds leave to the state.

All that being said, let me also say that I'm no fan of the guidelines, or prosecutions for marijuana, or federal durg prosecutions at all. And I'm certainly no fan of the drug war in general.

Just that I hear from a lot of people about defendants getting massive sentences for marijuana, and I don't see how that can be common if the guidelines are used, except in cases of substantial distribution.

Steve in Clearwater | June 2, 2007, 10:18pm | #

BUBBA, this was a federal case, not a state charge or conviction. The 3strikes would not come into play.