FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10307

Plaintiff-Appellee, D.C. No.

v.  CR-02-00053-1-

CRB EDWARD ROSENTHAL,

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 03-10370

Plaintiff-Appellant, D.C. No.

v. CR-02-00053-3-  CRB EDWARD ROSENTHAL,

Defendant-Appellee. ORDER AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

September 13, 2005—San Francisco, California

Filed April 26, 2006

Amended July 19, 2006

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

7999
Opinion by Judge B. Fletcher

8000 UNITED STATES v. ROSENTHAL
COUNSEL

Dennis P. Riordan, Donald M. Horgan, and Joseph D. Elford,

San Francisco, California, for the appellant. 

Amber S. Rosen, George L. Bevan, Jr., Hannah Horsley, and

Kevin V. Ryan, U.S. Attorney’s Office, San Jose, California,

for the appellee. 

ORDER

The panel, with the following amendments, has voted to

deny the petitions for rehearing filed by Edward Rosenthal

and the Government; Judge Berzon voted to deny Rosenthal’s

petition for rehearing en banc and Judges B. Fletcher and Gibson so recommend. The panel has granted the government all

relief it requested, and it has granted in part the relief Rosenthal requested. 

The opinion filed April 26, 2006, slip op. 4745, and published at 445 F.3d 1239 (9th Cir. 2006) is hereby amended as

follows: 

8002 UNITED STATES v. ROSENTHAL
1. Fifteenth line (first full paragraph) of slip op. 4755, delete

the entire paragraph beginning with “Although the City

of Oakland” and ending with “under 21 U.S.C.

§ 841(a)).” On the following line (26) of same page,

delete the word “further”.

2. Second line from the bottom of slip op. 4758, delete the

entire paragraph beginning with “Juror A’s declaration”

and continuing onto following page, ending with “consider the federal law.” ” 

The full court was advised of the petitions for rehearing and

rehearing en banc and the proposed amendments included

herein. 

The opinion as amended is filed simultaneously with this

order. No further petitions for rehearing or rehearing en banc

will be entertained. 

With the exception of the relief granted to the parties discussed herein, the petitions for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

B. FLETCHER, Circuit Judge: 

Edward Rosenthal appeals a three-count conviction for violations of the Controlled Substances Act (“CSA”), 21 U.S.C.

§§ 801 et seq., asserting an as-applied Commerce Clause

challenge, a claim of immunity pursuant to 21 U.S.C.

§ 885(d), erroneous evidentiary rulings and instructions by the

district court, prosecutorial misconduct, juror misconduct, and

the improper denial of a hearing under Franks v. Delaware,

438 U.S. 154 (1978). The government cross-appeals, claiming

that the district court erroneously found Rosenthal eligible for

UNITED STATES v. ROSENTHAL 8003
the “safety valve” and erroneously departed downward to

impose a single day of confinement. 

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(b), and we reverse the conviction solely on the

issue of jury misconduct. We affirm the district court on all

other grounds and dismiss the government’s claims regarding

sentencing as moot.

I

In November 1996, Californians passed, by voter initiative,

Proposition 215, the Compassionate Use Act, which allows

patients to obtain marijuana for “personal medical purposes

. . . upon the written or oral recommendation or approval of

a physician.” CAL. HEALTH & SAFETY CODE § 11362.5(d). One

of the purposes of the Compassionate Use Act is 

[t]o ensure that seriously ill Californians have the

right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate

and has been recommended by a physician who has

determined that the person’s health would benefit

from the use of marijuana in the treatment of cancer,

anorexia, AIDS, chronic pain, spasticity, glaucoma,

arthritis, migraine, or any other illness for which

marijuana provides relief. 

Id. The statute shields patients and their primary caregivers

from prosecution under state-law provisions outlawing the

possession and cultivation of marijuana. See id. § 11362.5(d).

A

After passage of the Compassionate Use Act, a number of

“medical cannabis dispensaries” were formed to make marijuana accessible to seriously ill patients. In support of those

efforts, the Oakland City Council, on July 28, 1998, adopted

8004 UNITED STATES v. ROSENTHAL
Ordinance No. 12076 (“the Oakland Ordinance”), which

intends to “ensure access to safe and affordable medical cannabis pursuant to the Compassionate Use Act of 1996.” Oakland, Cal., Ordinance 12076 § 1(C) (July 28, 1998) (codified

as amended at OAKLAND, CAL., MUN. CODE ch. 8.46). The

Oakland Ordinance purports to “provide immunity to medical

cannabis provider associations pursuant to Section 885(d) of

Title 21 of the United States Code.” Id. § 1(D). Under the

Ordinance, the City Manager designates “one or more entities

as a medical cannabis provider association.”

1

 That entity

would then designate individuals to help distribute medical

cannabis to seriously ill persons. 

The City of Oakland designated the Oakland Cannabis

Buyers’ Cooperative (“OCBC”) an official medical-cannabisprovider association. Jeffrey Jones, OCBC’s executive director, designated Rosenthal to be an agent of the OCBC and to

cultivate marijuana plants for distribution to authorized

medical-cannabis users. That designation, memorialized in a

letter from Jones to Rosenthal on September 4, 1998, specifically states that “you are deemed a duly authorized ‘officer of

the City of Oakland’ and as such are immune from civil and

criminal liability under Section 885(d) of the federal Controlled Substances Act.” 

B

After California’s approval of the Compassionate Use Act,

questions surfaced as to whether cannabis dispensaries actually were immune from prosecution under state and federal

drug laws. In 1997, a California Court of Appeal held that

cannabis-cultivating clubs are not “primary caregivers” within

the meaning of the Compassionate Use Act and are therefore

not shielded from prosecution under the state’s controlled1A 2004 amendment to the Oakland Ordinance states that “the City

Manager shall designate not more than one entity as a medical cannabis

provider association.” 

UNITED STATES v. ROSENTHAL 8005
substances laws. See People ex rel. Lungren v. Peron, 70 Cal.

Rptr. 2d 20, 31-32 (Ct. App. 1997).2 On May 19, 1998, the

same district court from which the instant appeal is taken

entered a preliminary injunction order barring the OCBC (and

five other cannabis dispensaries) from manufacturing, distributing, or possessing marijuana with the intent to manufacture

or distribute, in violation of federal law. See United States v.

Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1106 (N.D.

Cal. 1998). 

The OCBC, after designation as an official cannabis dispensary, sought dismissal of the complaint, but the district

court denied that request, rejecting the OCBC’s claim that the

Oakland Ordinance immunized it from federal liability under

21 U.S.C. § 885(d). The district court further denied OCBC’s

requests to modify the injunction to permit an exception in

cases of medical necessity.3

Rosenthal continued cultivating marijuana for distribution

to both the OCBC and San Francisco’s Harm Reduction Center from October 2001 until February 12, 2002, the day of his

arrest. 

2The California Supreme Court denied review of the case on February

25, 1998. Peron, 70 Cal. Rptr. at 20. 

3This court reversed and remanded the district court’s denial of OCBC’s

motion to modify, holding that the medical necessity defense was available and that the injunction could be modified to accommodate this

defense. See United States v. Oakland Cannabis Buyers’ Coop., 190 F.3d

1109, 1115 (9th Cir. 1999). On May 14, 2001, the Supreme Court

reversed, holding that “medical necessity is not a defense to manufacturing and distributing marijuana” under the CSA. United States v. Oakland

Cannabis Buyers’ Coop., 532 U.S. 483, 494 (2001). The Court also held

that the district court had no authority to consider a medical necessity

defense in exercising its equitable powers, as such consideration was precluded by the CSA. Id. at 498-99. 

8006 UNITED STATES v. ROSENTHAL
C

Rosenthal filed a series of pre-trial motions and, eventually,

a motion to dismiss the indictment. He claimed his prosecution exceeded the federal government’s powers under the

Commerce Clause, violating the Tenth Amendment to the

U.S. Constitution; that the government engaged in selective

prosecution; that he was immune from prosecution under the

federal immunity provision; and that the indictment was

tainted due to entrapment-by-estoppel. The district court

denied all of Rosenthal’s motions. It also granted the government’s motions in limine, which precluded Rosenthal from

putting on a “medical marijuana” defense, introducing evidence or argument aimed at jury nullification, or introducing

evidence or argument related to an entrapment-by-estoppel

defense.

D

On January 31, 2003, at the conclusion of the trial, the jury

found Rosenthal guilty of one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1); one count of conspiracy to manufacture marijuana, in violation of 21 U.S.C.

§ 846; and one count of maintaining a place for the manufacture of marijuana, in violation of 21 U.S.C. § 856(a)(1). 

Rosenthal moved for a new trial pursuant to Federal Rule

of Criminal Procedure 33, arguing that the court erred by

excluding his defense of entrapment by estoppel; the court

improperly excluded 19 jurors who expressed pro-medicalmarijuana beliefs; the court erroneously instructed the jury

regarding its right to engage in nullification; and Rosenthal

was entitled to a new trial because of juror and prosecutorial

misconduct. As to juror misconduct, Rosenthal submitted declarations from two jurors, one of whom, on the eve of the verdict, consulted with an attorney-friend who admonished the

juror to follow the judge’s instructions or risk “get[ting] into

trouble.” The district court held an evidentiary hearing on

UNITED STATES v. ROSENTHAL 8007
April 1 and 8, 2003, and denied the motion for a new trial in

a published order. See United States v. Rosenthal, 266 F.

Supp. 2d 1068 (N.D. Cal. 2003) (“Rosenthal I”). 

On June 4, 2003, the district court sentenced Rosenthal to

one day of imprisonment. See United States v. Rosenthal, 266

F. Supp. 2d 1091 (N.D. Cal. 2003) (“Rosenthal II”). The court

found Rosenthal eligible for safety-valve relief pursuant to

United States Sentencing Guidelines § 5C1.2, entitling him to

a sentence below the mandatory five-year minimum. See id.

at 1097. The court departed downward by ten levels based on

the determination that Rosenthal honestly and reasonably

believed he was not disobeying federal law given the promises made by Oakland officials. See id. at 1098-100. Rosenthal was sentenced to three concurrent sentences of one day,

with credit for time served.

II

Rosenthal raises a claim of immunity pursuant to 21 U.S.C.

§ 885(d), challenges to the district court’s evidentiary rulings

and instructions regarding argument, claims of prosecutor and

juror misconduct, and the denial of a Franks hearing.4 The

government cross-appeals, arguing that the district court erred

in finding that Rosenthal was eligible for the “safety valve”

and in departing from the minimum sentence to impose a single day of confinement. 

III

The district court issued a thorough and well-reasoned

order articulating its basis for denying one of the evidentiary

objections, the prosecutorial-misconduct claim, and the jury4Rosenthal originally raised an as-applied Commerce Clause challenge

but abandoned it during oral argument in light of Gonzales v. Raich, 125

S. Ct. 2195 (2005) (upholding application of CSA to intrastate cultivation

of marijuana plants for medicinal purposes). 

8008 UNITED STATES v. ROSENTHAL
instructions claim, see Rosenthal I, 266 F. Supp. 2d at 1079-

82, 1085 n.5, and ruled on the other evidentiary issue and the

Franks hearing issue orally. We agree with the district court’s

written and oral analysis of those issues and adopt its reasoning in whole. However, we reverse the district court on the

jury-misconduct claim. 

We independently review the question regarding immunity

under 21 U.S.C. § 885(d) to underscore our holding that the

provision does not apply to individuals, such as Rosenthal,

who are involved with medical-cannabis dispensaries. 

Finally, we dismiss as moot the government’s cross-appeal

challenging the length of the sentence. 

IV

[1] Rosenthal claims that he is immune from prosecution

under 21 U.S.C. § 885(d). We review de novo a district

court’s decision to dismiss an indictment based on an interpretation of a federal statute. United States v. Marks, 379 F.3d

1114, 1116 (9th Cir. 2004), cert. denied, 543 U.S. 1170

(2005). 

21 U.S.C. § 885(d) states, in full:

Except as provided in sections 2234 and 2235 of

Title 18 [relating to illegal procurement and execution of search warrants], no civil or criminal liability

shall be imposed by virtue of this subchapter upon

any duly authorized Federal officer lawfully engaged

in the enforcement of this subchapter, or upon any

duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or

any possession of the United States, who shall be

lawfully engaged in the enforcement of any law or

municipal ordinance relating to controlled substances. 

UNITED STATES v. ROSENTHAL 8009
Rosenthal argues that he was “lawfully engaged in the

enforcement” of the Oakland Ordinance by ensuring legal distribution of marijuana to seriously ill Californians. Moreover,

he notes that Oakland officials encouraged him to participate

in the distribution of medical marijuana, deputized him to perform that function, and promised, in writing, his immunity

from liability. For these reasons, Rosenthal claims he was a

“duly authorized officer” of the City of Oakland and immunized by § 885(d). 

[2] We agree with the district court that cultivating marijuana for medical use does not constitute “enforcement”

within the meaning of § 885(d). See Rosenthal I, 266 F. Supp.

2d at 1078. As the district court noted, “enforcement” means

“to compel compliance with the law . . . . At best, Rosenthal

was implementing or facilitating the purpose of the statute; he

was not compelling anyone to do or not to do anything.” Id.

Kama is not inconsistent with such a theory. In that case, the

state law mandated the return of marijuana to the individual

from whom the marijuana had been seized, and therefore the

officers in question were “enforcing” the state law that

required them to deliver the marijuana to that individual

because he had a state-law right to its return. 178 Or. App. at

564-65. Here, in contrast, the state law does not give any person a right to obtain medical marijuana from any particular

source, and the Oakland Ordinance does not mandate that

Rosenthal manufacture marijuana. 

We also agree with the district court’s conclusion that

Rosenthal’s interpretation of the immunity provision contradicts the purpose of the CSA. Rosenthal I, 266 F. Supp. 2d at

1078-79. We note, as well, Rosenthal and the OCBC’s intimate knowledge of the district court’s previous orders, which

rejected any claim that cannabis dispensaries were immune

from federal anti-drug laws. See supra Section I.B. 

[3] In conclusion, we reject the premise that an ordinance

such as the one Oakland enacted can shield a defendant from

8010 UNITED STATES v. ROSENTHAL
prosecution for violation of federal drug laws. Rosenthal cannot avail himself of the immunity provision of § 885(d).

V

Rosenthal next contends that the court erred in refusing to

grant a new trial after it became aware that one of the jurors

(to whom we will refer as “Juror A”) sought advice from an

attorney on the eve of rendering a verdict. The district court,

upon conducting a hearing into the matter, concluded that

Rosenthal failed to demonstrate prejudice and denied the

motion for a new trial. We find that the district court applied

an overly burdensome standard of proof and that, under the

appropriate standard of review, prejudice is evident.

A

Denial of a motion for a mistrial based on juror misconduct

is reviewed for abuse of discretion. United States v. Mills, 280

F.3d 915, 921 (9th Cir. 2002). Although this is an “extremely

deferential standard,” see United States v. Martinez-Martinez,

369 F.3d 1076, 1081-82 (9th Cir.), cert. denied, 543 U.S.

1013 (2004), the scenario changes where, as here, we consider

whether the district court applied the appropriate legal standard to guide its prejudice determination. See Suzy’s Zoo v.

Comm’r, 273 F.3d 875, 878 (9th Cir. 2001) (stating that “[a]

mixed question of law and fact exists when primary facts are

undisputed and ulitmate inferences and legal consequences

are in dispute”). Because we review a question of law, we

apply de novo review. 

B

[4] Our juror-misconduct precedents “distinguish between

introduction of ‘extraneous evidence’ to the jury, and ex parte

contacts with a juror that do not include the imparting of any

information that might bear on the case.” Sea Hawk Seafoods,

Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir.

UNITED STATES v. ROSENTHAL 8011
2000). Extraneous-evidence cases involve not only the introduction of “evidence” per se but the “submission of ‘extraneous information’ (e.g., a file or dictionary) to the jury.” United

States v. Madrid, 842 F.2d 1090, 1093 (9th Cir. 1988). Ex

parte contacts, by contrast, generally do “not pertain to ‘any

fact in controversy or any law applicable to the case.’ ” Id.

(citing Rushen v. Spain, 464 U.S. 114, 121 (1983) (per

curiam)). 

Where ex parte communication is involved, the district

court, upon finding a reasonable possibility of prejudice, must

hold a fair hearing. See Madrid, 842 F.2d at 1094. At the

hearing, the defendant generally must demonstrate “actual

prejudice,” without which a new trial is not warranted.5Id. at

1093; see also Sea Hawk Seafoods, 206 F.3d at 906 (noting

that, where ex parte contacts are involved, the defendant will

receive a new trial only if the court finds “actual prejudice”

to the defendant). 

[5] Extraneous-information cases, by contrast, call for more

searching review; we grant a new trial if “there is a reasonable

possibility that the material could have affected the verdict.”

Id. Unlike ex parte cases, we generally place the burden “on

the party opposing a new trial to demonstrate the absence of

prejudice.” Id. (emphasis added). Although the presence of

extrinsic material does not always require a new trial, compare United States v. Bagley, 641 F.2d 1235, 1241 (9th Cir.

1981) (holding that extrinsic material regarding witness’s

immunity placed before jury was not prejudicial), with United

States v. Vasquez, 597 F.2d 192, 193-94 (9th Cir. 1979) (holding that file containing inadmissible extrinsic material left in

jury room for four hours was prejudicial), we carefully review

5

In Sea Hawk Seafoods, we noted an exception in cases of inherently

coercive ex parte contact. See 206 F.3d at 906 (“[a]n ex parte remark may

in some circumstances merit a rebuttable presumption of prejudice

because of its inherently coercive effect, as where a judge instructs a juror

ex parte regarding the verdict . . . .”). 

8012 UNITED STATES v. ROSENTHAL
the circumstances and nature of the material to ensure that

jurors deliberate without undue outside pressure or influence.

C

The district court determined that because the attorneyfriend “was not asked about and did not comment upon any

of the facts in the case nor opine on the applicable substantive

law,” this case involved ex parte contact. Rosenthal I, 266 F.

Supp. 2d at 1088-89. As an ex parte case, the district court

required that Rosenthal demonstrate “actual prejudice” to

secure a new trial. Id. at 1089. 

Unlike the district court, we see the conversation between

Juror A and legal counsel as involving extraneous information, not ex parte contact. Moreover, we find that the government has failed to demonstrate that there is no “reasonable

possibility” of prejudice. 

Juror A believed that the district court’s instruction not to

discuss the case with anyone would not rule out a conversation “about a point of law”; accordingly, she phoned up an

attorney-friend to ask “if [she] had to follow the Judge’s

instructions, or if [she] had any leeway at all for independent

thought.” The attorney-friend responded that Juror A “definitely did have to following [sic] the Judge’s instructions, and

that there was absolutely nothing else [she] could do.” When

Juror A pressed the attorney, asking how there could ever be

hung juries, she was told “that could only happen if the Judge

gives the jury some leeway in his instructions.” The attorney

“then said [Juror A] could get into trouble if [she] tried to do

something outside those instructions.” 

Juror A discussed the matter with another juror, who shared

her own confusion with Juror A “whether a jury really has to

reach a verdict solely based on the law.” After the conversaUNITED STATES v. ROSENTHAL 8013
tion with the attorney-friend, Juror A informed this second

juror that they had to follow the judge’s instructions.6

D

[6] We see the communication between Juror A and the

attorney-friend as raising an instance of extraneous evidence,

not ex parte contact. The circumstances involve the “submission of ‘extraneous information’ ” regarding the “law applicable to the case.” Madrid, 842 F.2d at 1093 (emphasis added)

(second set of internal quotation marks omitted). The communication, tantamount to a substantive legal discussion, is akin

to the definition of “intent” or the distinctions between various degrees of murder. This case thus triggers an inquiry into

whether there is a “reasonable possibility” that the extraneous

information affected the verdict. On that question, we hold

that, here, the communication was an improper influence

upon Juror A’s decision to acquit or convict. 

[7] Jurors cannot fairly determine the outcome of a case if

they believe they will face “trouble” for a conclusion they

reach as jurors. The threat of punishment works a coercive

influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination

of the issue for fear of being punished.7 Not only is there a

“reasonable possibility” of prejudice, but the government has

not succeeded in rebutting the presumption that a new trial is

warranted. Accordingly, we reverse the district court and

order a new trial.

6During the district court’s evidentiary hearing into prejudice, Juror A

refused to testify on Fifth Amendment grounds. The testimony of both

jurors, with the government’s consent, was provided by way of declarations. 

7Although we understand the district court’s concern that it not legitimate or contribute to any effort by a juror to engage in nullification, we

do not think the court was ever in a position to do so since the evidentiary

hearing involved juror misconduct, which is the focus of concern here. 

8014 UNITED STATES v. ROSENTHAL
VI

Because we reverse the district court and order a new trial,

we need not address the government’s cross-appeal regarding

the district court’s imposition of a one-day sentence.8

VII

We reverse this case for a new trial due to juror misconduct. We also hold that Rosenthal may not invoke the immunity provision of 21 U.S.C. § 885(d). Finally, we dismiss as

moot the government’s appeal of the district court’s sentencing determination. 

REVERSED AND REMANDED.

8We note that, in the wake of the Supreme Court’s holding that we

apply a “reasonableness” review to sentencing decisions, see United States

v. Booker, 543 U.S. 220, 261 (2005), we would not be inclined to disturb

the court’s reasoned analysis underlying its sentencing determination. 

UNITED STATES v. ROSENTHAL 8015