Feds will retry pot activist on cultivation charges

April 12, 2007

Bob Egelko, San Francisco Chronicle

The government will retry a prominent marijuana advocate on cultivation charges even though he faces no punishment if convicted, beyond the one day in jail he's already served, a federal prosecutor said today.

Prosecutors decided on a second trial for Ed Rosenthal after a "thorough and careful review,'' Assistant U.S. Attorney George Bevan told U.S. District Judge Charles Breyer, who had urged him to reconsider his decision at a hearing last month.

Bevan said the final decision was made by Scott Schools, the interim U.S. attorney in San Francisco. When Breyer asked if Justice Department officials in Washington had been consulted, Bevan said he didn't know.

Bevan also said the government had decided not to appeal Breyer's dismissal of charges of tax evasion and money laundering, which were included in a new grand jury indictment after Rosenthal's marijuana-growing convictions were overturned by an appeals court. Breyer ruled last month that prosecutors had added the new charges vindictively in retaliation for Rosenthal's successful appeal and his public statements disputing the fairness of his trial.

The judge scheduled the retrial for May 14. Rosenthal told reporters afterward that he was glad the government had opted for a new trial rather than dropping the case.

"When I win this case, it's saying to the government, 'You have to stop harassing the medical (marijuana) dispensaries,' '' said Rosenthal, who was wearing a shiny green robe embroidered with images of marijuana leaves.

Defense lawyer Shari Greenberger said she would ask Breyer to order the government to reimburse Rosenthal for the time his lawyers spent getting the new charges dismissed.

Rosenthal, 62, of Oakland, is an authority on marijuana cultivation whose latest book was "Why Marijuana Should Be Legal.'' He was convicted in 2003 on three charges of cultivating pot plants that he was growing for medical patients in San Francisco.

His trial was the first and most prominent of several federal prosecutions of growers who were providing marijuana for patients and dispensaries under a 1996 California initiative that allowed individuals to use the drug with a doctor's approval.

Breyer barred evidence about medical marijuana during the trial, saying it was irrelevant to a prosecution under federal drug laws. But the judge sentenced Rosenthal to the one day in jail he had already served, rather than the five years prescribed by federal guidelines. Breyer said Rosenthal had believed he was acting legally because the city of Oakland had designated him as an official in its medical marijuana distribution program.

A federal appeals court overturned the convictions last year, finding misconduct by a juror who consulted a lawyer during deliberations. The court also indicated that it would have rejected prosecutors' appeal of the one-day sentence if it had upheld the convictions.

The tax and money-laundering charges that Breyer dismissed were punishable by up to 20 years in prison. Prosecutors have said in a court filing that they would not seek additional imprisonment on the cultivation charges.

E-mail Bob Egelko at begelko@sfchronicle.com.

 



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