FEDERAL ATTEMPT TO JAIL POT GROWER SHOT DOWN

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
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.