Federal attempt to jail pot grower shot down
March 14, 2007
Bob Egelko, San Francisco Chronicle
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 dispensary.
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.
Chronicle staff writer Jim Herron Zamora contributed to this report. E-mail Bob Egelko at email@example.com.
This article appeared on page A - 1 of the San Francisco Chronicle