WWW- It was unclear why there was no drum circle on the third floor of the 9th U.S. Circuit Court of Appeals on Tuesday morning.

The dozen or so people assembled outside Courtroom One were certainly loud enough — despite repeated exhortations by security guards to keep the noise level down — and the top thing on their minds was smoking pot.

And these are people who take their weed seriously: pot lawyers, pot lobbyists, pot activists, pot smokers, a pot reporter and the requisite pot publicists — a middle-aged assembly that ranged from besuited to bedraggled.

As the group waited for a 9th Circuit panel to finish hearing more conventional arguments — a qui tam case, for example — they had lots to say about marijuana.

“If you smoke pot, you have less of a chance of getting cancer than if you don’t,” explained Ed Rosenthal, the focal point of the group.

Rosenthal is a pot celebrity, as well as an author and publisher of pot books. (“‘The Big Book of Buds,’ volume one and volume two, are probably our best-sellers,” said the primly suited Jane Klein, Rosenthal’s business partner and wife. “They treat marijuana like you would roses,” she said, referring to pictures and descriptions of growing conditions.)

In 2003, Rosenthal’s celebrity moved beyond the pot community when he was convicted in San Francisco federal court of growing marijuana, despite the fact that the city of Oakland had licensed him to do so.

Rosenthal appealed that verdict — even though U.S. District Judge Charles Breyer sentenced him to just one day in jail — because Breyer refused to let the jury hear that the pot was grown for locally sanctioned medicinal use.

“The trial was grossly unfair,” Rosenthal said Tuesday in the middle of the passionate group outside the courtroom.

His lawyer, Dennis Riordan, stood a good distance away as the group waited. In court, Riordan used softer language than his client’s in his oral argument before a 9th Circuit panel of Judge Marsha Berzon, Senior Judge Betty Fletcher, and, sitting by designation, 8th Circuit Senior Judge John Gibson.

Riordan said that since his client was a city officer — by virtue of his medical-marijuana license — he was immune from prosecution.

He likened the prosecution to the federal government arresting local law enforcement officials for possessing drugs while they are working on an undercover investigation, and pointed out that federal law gives immunity to officials “lawfully engaged” in law enforcement.

While the judges — especially Berzon — seemed somewhat skeptical of that argument (she wrestled several times with the meaning of “lawfully engaged”), they had few questions about a narrower defense by Riordan: that Rosenthal, because he could have reasonably thought his pot growing was legal, should have been acquitted. Or, at the very least, the jury should have been allowed to hear the medical marijuana argument, Riordan said.

“Due process requires simply that a jury hear that defense,” he told the panel. Amber Rosen, an assistant U.S. attorney, argued the case for the government. She said that a city may not deputize someone to act in violation of federal law, challenging the assertion that Rosenthal was lawfully engaged. Rosen also spent time challenging Rosenthal’s one-day sentence, which deviated from optional sentencing guidelines. That argument didn’t go over well with the judges.

“If it’s not mandatory, [Breyer] doesn’t have to justify a departure from the guidelines,” Berzon said. “So why are we looking at a departure from the guidelines?”

After the hearing, Riordan — an appellate specialist with Riordan & Horgan — said that while he hopes to win on the immunity issue, he’s more confident that the judges will order a new trial based on the entrapment argument.

“We could go down like a rock on the immunity issue and win hands down on the entrapment-by-estoppel issue,” he said.

In addition to Riordan, Joseph Elford, a lawyer with Americans for Safe Access, argued that prosecutors misled the grand jury that indicted Rosenthal.

After the arguments, which ran nearly a half-hour longer than scheduled, the judges didn’t seem swayed by either side. The same could not be said for the pro-pot contingent, which stood outside the courtroom expounding on the need to legalize marijuana — though that was not the issue before the 9th Circuit.

“If there’s any justice in the universe,” insisted Bruce Mirken of the Marijuana Policy Project, “Ed Rosenthal will win his appeal.”

The case is U.S. v. Rosenthal, 03-10307.