Pubdate: Thu, 15 Mar 2007
Source: San Francisco Chronicle (CA)
Copyright: 2007 Hearst Communications Inc.
Author: Bob Egelko, Chronicle Staff Writer
Bookmark: (Cannabis - Medicinal)


Judge Calls Charges Against Oakland Man Vindictive -- Second Trial 
Seen As Unlikely

The federal government's five-year effort to throw one of the 
nation's most prominent advocates of marijuana in prison appears to 
be all but dead after a judge ruled that prosecutors had vindictively 
piled on charges against the Oakland man after he successfully 
appealed his pot-growing convictions.

U.S. District Judge Charles Breyer ruled Wednesday that prosecutors 
had illegally retaliated against Ed Rosenthal, 62, last fall when 
they added tax-evasion and money-laundering charges to his previous 
indictment for growing marijuana for medical patients.

The new charges were based on old evidence, the judge said, and 
appeared to be aimed at punishing Rosenthal for winning his appeal 
and for complaining publicly that his trial had been unfair.

Prosecutors' actions and statements seemed designed "to make 
Rosenthal look like a common criminal and thus dissipate the 
criticism heaped on the government after the first trial," Breyer 
said. That perception, he said, "will discourage defendants from 
exercising their First Amendment right to criticize their 
prosecutions and their statutory right to appeal their convictions."

Breyer left the marijuana-growing charges intact but noted that 
prosecutors could not seek to add to the sentence the judge imposed 
on Rosenthal before the convictions were overturned -- one day in 
prison, which Rosenthal has already served.

The ruling leaves the government with two options for pursuing 
Rosenthal, neither of them attractive.

One would be to appeal the decision to the Ninth U.S. Circuit Court 
of Appeals in San Francisco, the same court that overturned 
Rosenthal's convictions last year. The other would be to proceed with 
a second trial next Monday in San Francisco on the earlier 
cultivation charges, knowing that Rosenthal could not be sent to 
prison even if he were convicted for a second time.

A spokesman for the U.S. attorney said prosecutors were reviewing 
their options. Rosenthal said it was time to bring the case to an end.

"The court's ruling is reassuring, but my continued prosecution on 
the marijuana charges is still malicious," he said in a statement 
released by his lawyers.

Joe Elford of Americans for Safe Access, an attorney for Rosenthal, 
said, "Taxpayer dollars should not be wasted on a vendetta carried 
out by the government."

Rosenthal was one of the first growers of medical marijuana to be 
pursued by federal prosecutors, and the case attracted national 
attention in part because the target was a prominent one. Rosenthal 
was High Times magazine's "Ask Ed" columnist and the self-proclaimed 
"Guru of Ganja," who had called for legalizing marijuana long before 
advocates of its medicinal properties gained popular support.

He was arrested in February 2002 on federal charges of growing 
hundreds of marijuana plants in a West Oakland warehouse for patients 
served by the Harm Reduction Center, a San Francisco medical-cannabis 

Breyer, the judge at Rosenthal's trial, refused to let the jury hear 
evidence about California's medical marijuana law or Rosenthal's 
status as an official in Oakland's medical marijuana program. A jury 
convicted Rosenthal of three felony cultivation charges in 2003.

A majority of the jurors disavowed their verdict after learning of 
the excluded evidence, however, and urged leniency. Breyer sentenced 
Rosenthal to the one day in prison he had already served, rather than 
the usual five-year term for the crimes, saying Rosenthal had 
believed he was acting legally because of his position in the Oakland program.

In overturning the convictions, the appeals court cited a juror's 
telephone call to a lawyer friend, who told her she could get in 
trouble if she didn't follow Breyer's instructions to consider only 
federal law. The court also indicated that Breyer had acted within 
his authority in imposing a one-day sentence and that prosecutors 
could not win a longer term for the same charges.

The new indictment, issued by a federal grand jury in October, 
included the previous marijuana charges along with money laundering 
- -- four transactions, totaling $1,850, that Rosenthal was accused of 
structuring to hide marijuana proceeds from the government -- and 
five counts of filing false tax returns that omitted his marijuana income.

The non-marijuana charges were punishable by up to 20 years in 
prison, although Rosenthal's attorneys said federal guidelines would 
call for a sentence of less than two years.

Assistant U.S. Attorney George Bevan, the chief prosecutor, told 
Breyer the government would not seek additional prison time on the 
marijuana counts but was "committed to doing the retrial and seeing 
the case to a conclusion."

At a hearing in October, Bevan noted Rosenthal's post-verdict 
complaint that he hadn't gotten a fair trial because jurors hadn't 
heard the full story. "So, I'm saying, this time around, he wants the 
financial side reflected, fine, let's air this thing out," Bevan 
said. "Let's have the whole conduct before the jury: tax, money 
laundering, marijuana."

In Wednesday's ruling, Breyer commended Bevan for his candor but said 
his comments only "confirm the appearance of vindictiveness."

Prosecutors had Rosenthal's tax returns and financial records before 
his first trial but apparently decided to pursue them only after 
being criticized by Rosenthal and his supporters and losing in the 
appellate court, Breyer said.

He said the U.S. Supreme Court has consistently ruled for more than 
30 years that charges or potential punishment can't be increased 
after a successful defense appeal unless prosecutors come up with new 
evidence to justify harsher treatment.
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MAP posted-by: Beth Wehrman