Pubdate: Thu, 15 Mar 2007
Source: Oakland Tribune, The (CA)
Copyright: 2007 MediaNews Group, Inc. and ANG Newspapers
Contact:  http://www.oaklandtribune.com/
Details: http://www.mapinc.org/media/314
Author: Josh Richman

JUDGE GIVES BREAK TO 'GURU OF GANJA'

Money Laundering And Tax Charges Dismissed; Prosecution Accused Of 
Vindictiveness

A federal judge dismissed money laundering and tax charges against 
"Guru of Ganja" Ed Rosenthal on Wednesday, gutting the government's 
case by ruling the new charges amounted to vindictive prosecution.

The government said the new charges it filed against Rosenthal in 
October resulted from their re-evaluation of the case, U.S. District 
Judge Charles Breyer of San Francisco noted, but "it is apparent that 
it decided to re-evaluate its strategy in response to Rosenthal's 
(and his supporters') public criticism of the trial.

"In other words, the government's deeds  and words  create the 
perception that it added the new charges to make Rosenthal look like 
a common criminal and thus dissipate the criticism heaped on the 
government after the first trial," Breyer wrote.

Case law states there is a presumption of vindictiveness when the 
government increases the charges' severity after the defendant's 
successful appeal  exactly what happened here, Breyer wrote. "As the 
government concedes, this is the rare case in which the presumption 
applies. And it is a case in which the government has failed to 
satisfy its burden of rebutting the presumption."

Rosenthal, 62, offered thanks Wednesday not only to Breyer, but also 
to Assistant U.S. Attorney George Bevan "for being so honest about 
his vindictive state of mind, both in court and in the motions. He 
was probably unaware of it. He was so caught up in his hate of 
marijuana and medical marijuana patients that he didn't realize how 
vindictive he was being."

Breyer didn't dismiss marijuana cultivation and distribution charges 
against Rosenthal, but prosecutors already have said they won't seek 
more than the one-day, time-already-served jail sentence that 
Rosenthal received the first time he was convicted of those crimes.

Rosenthal's legal team issued a statement Wednesday calling for no 
further waste of federal tax dollars on what's left of the case. 
Americans for Safe Access counsel Joe Elford, who argued the 
vindictive-prosecution motion on Rosenthal's behalf, said Wednesday 
such motions are rarely filed and even more rarely granted.

"The question is, do they drop it now or do they drop it later?" an 
ebullient Elford said. "They may well appeal this decision, and when 
they lose that, that might be the time for them to drop this."

The U.S. Attorney's Office is reviewing its options, spokesman Luke 
Macaulay said Wednesday.

Famed for his marijuana cultivation books and the "Ask Ed" column he 
wrote for High Times magazine, Rosenthal was convicted of three 
marijuana-growing felonies in 2003, more than a year after federal 
agents raided sites including his Oakland home, an Oakland warehouse 
in which he was growing marijuana and a San Francisco medical 
marijuana club he supplied.

Medical use of marijuana on a doctor's recommendation is legal under 
state law but prohibited by federal law, so Rosenthal was barred from 
mounting a medical defense at trial. A judge sentenced him to one day 
behind bars  time he'd already served.

The 9th U.S. Circuit Court of Appeals overturned his convictions in 
April, finding that juror misconduct  a juror's conversation with an 
attorney-friend during deliberations  compromised Rosenthal's right 
to a fair verdict and so warranted a new trial. But the court also 
rejected Rosenthal's claim of immunity from prosecution as an officer 
of Oakland who grew the drug under the city's medical marijuana ordinance.

Federal prosecutors filed a new indictment with additional charges in 
October, essentially claiming Rosenthal, from October 2001 through 
February 2002, conspired with Kenneth Hayes and Richard Watts to grow 
marijuana at sites on Sixth Street in San Francisco and on Mandela 
Parkway in Oakland, laundered marijuana proceeds by buying four money 
orders totaling $1,854 during that time and falsified tax returns for 
1999, 2000 and 2001 by omitting income from his marijuana distribution.

Hayes and Watts face similar, related charges. Both were charged 
after the same 2002 raids that nabbed Rosenthal, but injuries 
suffered in a car accident have kept Watts from trial until now and 
Hayes fled to Canada just before he was indicted.

Rosenthal had Tommy Chong headline a $125-per-head event to raise 
money for Rosenthal's legal fund last month. Chong is of the Cheech 
and Chong comedy duo renowned for stoner movie classics such as "Up 
in Smoke" and "Nice Dreams," and he was prosecuted a few years ago on 
federal drug paraphernalia charges.

"It went exceptionally well, about 200 people were here and Tommy 
stayed the whole time. ... The police only came once," Rosenthal said 
Wednesday, noting that Oakland police merely asked partygoers to stay 
inside Rosenthal's house.
- ---
MAP posted-by: Beth Wehrman