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Judge gives break to 'Guru of Ganja'
03.15.07|inside bay area|Josh Richman
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.

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