U.S. v. Rosenthal, No. CR 02-00053 CRB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtBreyer
PartiesUNITED STATES of America, Plaintiff, v. Edward ROSENTHAL, Defendant.
Docket NumberNo. CR 02-00053 CRB.
Decision Date16 May 2003
266 F.Supp.2d 1068
UNITED STATES of America, Plaintiff,
v.
Edward ROSENTHAL, Defendant.
No. CR 02-00053 CRB.
United States District Court, N.D. California.
May 16, 2003.

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George Bevan, U.S. Attorney's Office, San Francisco, CA, for plaintiff.

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Robert V. Eye, Topeka, KS, Dennis P. Riordan, Joseph D. Elford, San Francisco, CA, William M. Simpich, Oakland, CA, for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL

BREYER, District Judge.


INTRODUCTION

On January 31, 2003, a jury convicted defendant Edward Rosenthal of violating the federal Controlled Substances Act. The jury found that Rosenthal had manufactured and conspired to manufacture marijuana in violation of 21 U.S.C. §§ 841 and 846, and had maintained a place for the manufacture of marijuana in violation of 21 U.S.C. § 856. The charges arose out of Rosenthal's operation of an indoor marijuana-growing facility in Oakland, California. Now pending before the Court is Rosenthal's motion for a new trial. In light of the parties' papers and extensive record, the Court concludes that oral argument is unnecessary.

Rosenthal does not contend that the evidence was insufficient to support his conviction. Nor could he; in fact, there is overwhelming and uncontradicted evidence that he cultivated hundreds of marijuana plants for distribution to medical marijuana centers. Rather, the thrust of Rosenthal's argument is that the Court should have allowed him to present evidence and argument designed to encourage the jury to disregard the controlling law.

At various times during the proceedings the Court has heard oral argument on the issues raised by defendant's motion. In order to appreciate this argument and the Court's rulings during these proceedings, it may be helpful to understand the context in which these matters were originally presented to the Court.

Prior to commencement of trial, the government filed motions in limine to exclude evidence of a "medical marijuana" defense aimed at jury nullification. The government maintained that evidence of Rosenthal's motive or justification for the cultivation of marijuana could not be presented to the jury. In making this argument, the government relied on a fundamental rule of evidence, which requires that only relevant evidence be considered by the jury and that irrelevant evidence be excluded. See Fed.R.Evid. 402. Since the elements of the criminal offenses at issue involve only the knowing or intentional manufacturing of marijuana and not the purpose for which the marijuana was grown, the government claimed that evidence of medical purposes as well as the defendant's belief that he was lawfully engaged in this enterprise was inadmissible.

Accordingly, the Court was required at the outset to determine whether such evidence ... i.e., testimony demonstrating Rosenthal's desire to help people who suffer from serious debilitating illnesses as well as evidence of his belief that he was authorized by the government to engage in the activity ... was relevant to any issue the jury had to determine in order to fairly adjudicate his guilt or innocence. If so, such evidence would be admitted; if not, it would have to be excluded because to admit it would violate the Federal Rules of Evidence and permit the jury to base its verdict on impermissible grounds.

In essence, the defense offered three purported justifications for admissibility. First, it suggested that this evidence would permit the jury to consider whether to acquit notwithstanding the facts and established law. This notion, often referred to as jury nullification, recognizes the power of the jury to refuse to apply the law as instructed by the Court. Since a jury has this power, the defense argued, it was entitled to receive evidence upon which it could choose to exercise its power.

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While jury nullification is a "fact" of judicial life, the United States Supreme Court has explicitly recognized that juries have no right to nullify. See Standefer v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). As such, evidence which is otherwise inadmissible does not become admissible in order to facilitate jury nullification. Among the many reasons for discouraging such a practice is that nullification can lead to grossly unequal protection of the laws. To permit nullification in cases where a defendant has a "good" reason for his conduct when motive is not an element of the crime allows jurors to use their individualized set of beliefs as to "good" reasons to be determinative of guilt or innocence. Reasons, good or bad, are of course relevant to sentencing, but they are not accepted by courts as a basis for verdicts.

Furthermore, in light of the United States Supreme Court speaking directly on this issue of nullification, any change in the law should come from that Court, not this one.

A second reason offered for the admissibility of evidence of Rosenthal's state of mind relates to the Controlled Substances Act and the conduct of the Oakland City Council in response to California Proposition 215. The defense maintained that Rosenthal was deputized by the City to cultivate medical marijuana, and that he was therefore immune from federal prosecution pursuant to Section 885(d) of the Controlled Substances Act. In effect, the defense argued, local government through enactment of ordinances can effectively immunize a defendant from federal prosecution. The scope of the immunity under Section 885(d) is a legal determination to be made by a court, not a jury. After extensive briefing and argument, the Court concluded that this section was not designed to permit a town, or state for that matter, to place its agents out of the reach of a federal criminal law. Moreover, the Controlled Substances Act was intended to set forth a uniform national drug policy. To apply immunity to this defendant based upon his conduct would, of course, effectuate an exception to this drug policy. In other words, as there is no right to jury nullification, nor can there be nullification by local governments. Since the Civil War this country has recognized that whatever the views of local governments, such views do not control the enforcement of federal law. There is no local "opt out" provision in the Controlled Substances Act, even though many would question the wisdom of applying this Act to those who furnish medical marijuana. As is explained in more detail below, nothing in Section 885(d), its predecessor statutes or legislative history remotely supports the interpretation proffered by Rosenthal.

Finally, the defense offered a third reason to admit evidence of Rosenthal's state of mind. Rosenthal claimed that the government by its conduct led him to believe that he would not be prosecuted for this offense. While the availability of this entrapment defense requires federal government conduct, much of the defendant's evidentiary proffer relied on conduct by state and local governments. After considering the evidentiary offering, the Court concluded that there was no evidence from which a jury could conclude that the federal government's conduct led the defendant to believe that he was immune from criminal liability.

Since these three reasons offered by the defense did not support a finding that motive or state of mind was relevant to the issue of guilt or innocence, the Court concluded that the proffered evidence should not be admitted. The Court notes that nothing contained in this order or in any previous order of the Court constitutes a

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determination that the defendant did not believe he was authorized by the City of Oakland to cultivate marijuana. Such evidence is appropriate for consideration at sentencing. It is simply not relevant to the question of guilt or innocence.

With this context in mind, the Court will now turn to the arguments made by Rosenthal in his Motion for a New Trial.

BACKGROUND

Federal law prohibits the manufacture, distribution or sale of marijuana for any purpose. See 21 U.S.C. § 841; United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 489-90, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). In 1996, California voters enacted the "Compassionate Use Act," also known as Proposition 215. Proposition 215 makes it legal under California law for seriously ill patients and their primary caregivers to possess and cultivate marijuana for use by the seriously ill patient if the patient's physician recommends such treatment. To be precise, it exempts a seriously ill patient, or the patient's primary caregiver, from prosecution under California Health and Safety Code section 11357, relating to the possession of marijuana, and section 11358, relating to the cultivation of marijuana. See Cal. Health & Safety Code § 11362.5(d) It does not make it legal under California law for persons other than a seriously ill patient or his caregiver to possess or cultivate marijuana. See People v. Galambos, 104 Cal.App.4th 1147, 1165-67, 128 Cal.Rptr.2d 844 (2002); People ex rel. Lungren v. Peron, 59 Cal. App.4th 1383, 1400, 70 Cal.Rptr.2d 20 (1997); People v. Trippet, 56 Cal.App.4th 1532, 1545-46, 66 Cal.Rptr.2d 559 (1997).

In July 1998, the City of Oakland passed Ordinance No. 12076, also known as Chapter 8.42. The expressed purpose of Chapter 8.42 was to "ensure safe and affordable medical cannabis pursuant to the Compassionate Use Act of 1996," and to "provide immunity to medical cannabis provider associations pursuant to Section 885(d) of Title 21 of the United States Code." That section provides that "no criminal or civil Uability shall be imposed" under the Controlled Substances Act "upon any duly authorized officer of any State, territory or political subdivision thereof ... who shall be lawfully engaged in the enforcement of any law or municipal...

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8 practice notes
  • United States v. Lynch, No. 10-50219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2018
    ...your duty to follow the law" and that it was "not your determination whether a law is just ..." comes from United States v. Rosenthal , 266 F.Supp.2d 1068, 1085 (N.D. Cal. 2003), affirmed in part, reversed in part , 454 F.3d 943 (9th Cir. 2006). This court has explicitly recognized that the......
  • People v. Crouse, Court of Appeals No. 12CA2298
    • United States
    • Colorado Court of Appeals of Colorado
    • December 19, 2013
    ..."lawfully engaged" when they enforce unconstitutional laws.¶ 53 The federal district court's decision in United States v. Rosenthal, 266 F.Supp.2d 1068 (N.D.Cal.2003), rev'd on other grounds, 454 F.3d 943 (9th Cir.2006), is pertinent to the analysis of the right question. The district court......
  • Olympic Forest Coal. v. Coast Seafoods Co., No. 16-35957
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 2018
    ...v. Sigmon Coal Co., Inc. , 534 U.S. 438, 460–62, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ; 884 F.3d 906 United States v. Rosenthal , 266 F.Supp.2d 1068 (N.D. Cal. 2003), aff'd in part, rev'd in part on other grounds , 454 F.3d 943 (9th Cir. 2006).The CWA defines "point source" as follows:The ......
  • United States v. Kleinman, No. 14-50585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 16, 2017
    ...of the court's instructions was taken nearly verbatim from two cases. The first three sentences came from United States v. Rosenthal , 266 F.Supp.2d 1068, 1085 (N.D. Cal. 2003), affirmed in part, reversed in part , 454 F.3d 943 (9th Cir. 2006), where the district court instructed the jury "......
  • Request a trial to view additional results
8 cases
  • United States v. Lynch, No. 10-50219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2018
    ...your duty to follow the law" and that it was "not your determination whether a law is just ..." comes from United States v. Rosenthal , 266 F.Supp.2d 1068, 1085 (N.D. Cal. 2003), affirmed in part, reversed in part , 454 F.3d 943 (9th Cir. 2006). This court has explicitly recognized that the......
  • People v. Crouse, Court of Appeals No. 12CA2298
    • United States
    • Colorado Court of Appeals of Colorado
    • December 19, 2013
    ..."lawfully engaged" when they enforce unconstitutional laws.¶ 53 The federal district court's decision in United States v. Rosenthal, 266 F.Supp.2d 1068 (N.D.Cal.2003), rev'd on other grounds, 454 F.3d 943 (9th Cir.2006), is pertinent to the analysis of the right question. The district court......
  • Olympic Forest Coal. v. Coast Seafoods Co., No. 16-35957
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 9, 2018
    ...v. Sigmon Coal Co., Inc. , 534 U.S. 438, 460–62, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ; 884 F.3d 906 United States v. Rosenthal , 266 F.Supp.2d 1068 (N.D. Cal. 2003), aff'd in part, rev'd in part on other grounds , 454 F.3d 943 (9th Cir. 2006).The CWA defines "point source" as follows:The ......
  • United States v. Kleinman, No. 14-50585
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 16, 2017
    ...of the court's instructions was taken nearly verbatim from two cases. The first three sentences came from United States v. Rosenthal , 266 F.Supp.2d 1068, 1085 (N.D. Cal. 2003), affirmed in part, reversed in part , 454 F.3d 943 (9th Cir. 2006), where the district court instructed the jury "......
  • Request a trial to view additional results

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