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May 16, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge



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.

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 (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 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.


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 (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 (2002); People ex rel. Lunren v. Peron 59 Cal.App.4th 1383, 1400 (1997); People v. Trippet, 56 Cal.App.4th 1532, 1545-46 (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 liability 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 ordinance relating to controlled substances." In an attempt to create immunity from liability under federal law for suppliers of medical marijuana, Chapter 8.42 provided that the City could designate a medical cannabis provider association and its employees and agents as officers of the City of Oakland to they extent they were "enforcing" the purpose of the Ordinance to provide safe medical cannabis to seriously ill patients. Chapter 8.42, § 3.

Following the passage of Chapter 8.42, Oakland designated the Oakland Cannabis Buyers Cooperative ("OCBC") to distribute marijuana in accordance with the new ordinance. At the time of the OCBC's designation, a federal court order was issued barring the OCBC from cultivating or distributing marijuana in violation of federal law. See United States v. Cannabis Cultivators Club, 5 F. Supp.2d 1086 (N.D. Cal. 1998) (the "OCBC lawsuit").

Two weeks after the designation, this Court ruled in the OCBC lawsuit that notwithstanding Chapter 8.42, 21 U.S.C. § 885(d) does not immunize from federal liability the OCBC's manufacture and distribution of marijuana. See United States v. Cannabis Cultivator's Club, No. C 98-0088 CRB, Order Re: Motion To Dismiss (N.D. Cal. Sep. 3, 1998). The day after the Court issued this ruling, Jeffrey Jones, the OCBC's Executive Director, gave Rosenthal a letter stating that while Rosenthal "is acting within the scope of [his] duties as an agent of the [OCBC], [he is] deemed a duly authorized `officer of the City of Oakland' and as such [is] immune from civil and criminal liability under Section 885(d) of the federal Controlled Substances Act." All of the conduct for which Mr. Rosenthal was convicted occurred after Jones purported to make Rosenthal an agent of the OCBC.


In February 2002, the federal government indicted Rosenthal for growing marijuana indoors at 1419 Mandela Parkway in Oakland, California, during the period October 2001 through February 2002. Rosenthal subsequently moved to dismiss the indictment on several grounds, including arguments that his prosecution exceeds the government's powers under the Commerce Clause and violates the Tenth Amendment of the United States Constitution, and that the government had engaged in selective prosecution.

Rosenthal also moved for dismissal on the ground of "official immunity." He argued that the City of Oakland had made him a city official for the purpose of cultivating marijuana for distribution to medical marijuana clubs and therefore he was immune from prosecution pursuant to section 885(d) of the Controlled Substances Act.

Finally, Rosenthal moved to dismiss the indictment on the ground of "entrapment by estoppel." He argued that Rosenthal reasonably relied upon the representations of Oakland city officials that he would be immune from federal prosecution and that these representations, coupled with the plain language of the statute itself, estopped the federal government from prosecuting him for violations of the Controlled Substances Act.

At the January 6, 2003 hearing on Rosenthal's motions to dismiss, Rosenthal argued that he had evidence that federal officials had "acquiesced" in the City of Oakland's deputization of Rosenthal for the purpose of cultivating marijuana. In light of that representation, and over the objection of the government, the Court granted Rosenthal an evidentiary hearing to present his evidence supporting his entrapment by estoppel defense. The hearing was held on January 9, 2003. The Court subsequently denied all of Rosenthal's motions to dismiss.

The government moved in limine to exclude Rosenthal from presenting a "medical marijuana" defense and to exclude evidence and argument aimed at jury nullification. It also moved to exclude any evidence or argument related to Rosenthal's proposed entrapment-by-estoppel defense, including evidence that the City of Oakland had made him a city official for the purpose of cultivating marijuana. After oral argument, and after providing Rosenthal with the opportunity to present additional evidence, the Court granted the government's motions and the case proceeded to trial and verdict.

Rosenthal now moves pursuant to Federal Rule of Criminal Procedure 33 for a new trial on the ground that the Court erred by excluding his defense of entrapment by estoppel. He also argues that the Court improperly excluded nineteen jurors who expressed pro-medical marijuana beliefs and that the Court erroneously instructed the jury with respect to its right to nullification. Finally, he argues that he is entitled to a new trial because of juror and prosecutorial misconduct.


I. Section 885(d) ...

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