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San Francisco -- Federal District Court Judge Charles Breyer ruled today that author and medical marijuana activist Edward Rosenthal was vindictively prosecuted, and dismissed charges of tax evasion and money laundering. The remaining marijuana charges against Rosenthal are virtually identical to those pursued against him in his prior 2003 trial. With an admission in court by the U.S.Attorney that it would not seek additional punishment beyond the one-day sentence Rosenthal was given after being convicted at his first trial, the prosecution has little reason to proceed with the case.
"We are gratified that the court has recognized the vindictive nature of this prosecution and has reigned in the prosecutor," said Joe Elford, Chief Counsel for Americans for Safe Access, and author of the successful vindictive prosecution motion. "The additional charges brought against Rosenthal were clearly in retaliation for his criticism of the government. Taxpayer dollars should not be wasted on a vendetta carried out by a prosecutor against a defendant."
Judge Breyer's ruling follows a hearing last week in which the court ordered the government to produce all prosecutorial memoranda explaining the reason for a second prosecution of Rosenthal. The order is the result of a motion to dismiss based on vindictive prosecution filed by Americans for Safe Access and other attorneys with Rosenthal's legal team. The substance of the brief was that the government was retaliating against Rosenthal for his successful appeal and his statements to the press that his first trial was unfair. In his ruling, Judge Breyer asserted that "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," because he criticized the government.
"The government was clearly out of line to bring this case forward against me," said Rosenthal. "The court's ruling is reassuring, but my continued prosecution on the marijuana charges is still malicious. To make me and my family go through a second prosecution to obtain, at most, a one-day time served jail sentence seems personally motivated."
Rosenthal was recently re-indicted after his 2003 conviction was overturned in April 2006 by the Ninth Circuit Court of Appeals. After finding out that medical marijuana evidence had been excluded from the 2003 trial, a majority of the jurors that convicted Rosenthal recanted their verdict. Due at least in part to public outcry, Rosenthal was sentenced to one day in jail. The government was relying on the new charges of tax evasion and money laundering to justify the second prosecution of Rosenthal. The court has now confirmed that Rosenthal's continued prosecution is suspect.
"It is a monumental day for justice that the court has recognized the vindictive nature of this prosecution and has dismissed all allegations of financial misconduct," said attorney Robert Amparán, from Rosenthal's legal team. "We feel strongly that the vindictiveness of this prosecution will spill over from the dismissed charges onto the remaining medical marijuana charges and that the jury will ultimately vindicate Mr. Rosenthal." The defense team for Rosenthal includes the following attorneys: Robert AmparÃ¡n, Shari Greenberger, and Omar Figueroa, with Joe Elford acting as co-counsel for the specific purpose of authoring and arguing the motion to dismiss based on vindictive prosecution.
Assistant U.S. Attorney George Bevan stated earlier in a remarkably candid admission that the reason for this second prosecution of Rosenthal is a direct response to "the specific comments that Rosenthal and others made." The prosecutor further admitted in a recent legal filing that it sought out and held its new evidence in abeyance, so it "would be in a position to charge Rosenthal with [additional charges] if the Ninth Circuit reversed his conviction."
At Rosenthal's first appearance on new charges, in October 2006, the court remarked, in reference to public comments by the defendant at the time of his 2003 conviction: "[Rosenthal] can say whatever he wants to about the prosecution, and he can say whatever he wants to about the judge. That is his constitutional right."
- U.S. District Court Ruling on Vindictive Prosecution
- Vindictive prosecution motion
- Government's opposition
- Rosenthal's reply
- For more information on Ed Rosenthal's cases
ASA is the largest national member-based organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. ASA works to overcome political and legal barriers by creating policies that improve access to medical cannabis for patients and researchers through legislation, education, litigation, grassroots actions, advocacy and services for patients and the caregivers. ASA has over 30,000 active members with chapters and affiliates in more than 40 states.