A federal district court judge dismissed money-laundering and tax evasion charges against Ed Rosenthal Wednesday, saying federal prosecutors had vindictively re-indicted the "Guru of Ganja" after he publicly criticized them in the wake of his successful appeal of his 2003 marijuana cultivation conviction. In that case, Rosenthal was convicted after not being allowed to present evidence he was growing for medicinal purposes, but was sentenced to only one day in jail after the jury protested upon hearing the rest of the story.
Federal prosecutors tried "to make Rosenthal look like a common criminal and thus dissipate the criticism heaped on the government after the first trial," Breyer said in his opinion [14]. 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."
While he dismissed the two financial counts, Judge Breyer let stand Rosenthal's indictment for growing marijuana for medical patients. But that doesn't give prosecutors much to work with because Breyer also noted that even if he were convicted in a new trial, they could not seek to sentence him to more than the one day that he has already served. That leaves them with the equally unpalatable options of appealing the decision to the 9th US Circuit Court of Appeals -- the same court that overturned the original conviction -- or pursuing a conviction where they cannot punish Rosenthal even if they win.
Assistant US Attorney George Bevan, the chief prosecutor on the case, helped Judge Breyer prove the case for a revenge prosecution. While Bevan told Breyer he would not seek additional prison time on the marijuana counts, he said he was "committed to doing the retrial and seeing the case to a conclusion." That remark came after Bevan told the court in October that Rosenthal had complained about not getting a fair trial because he could not mention medical marijuana. "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 noted Bevan's candor but said his comments only "confirm the appearance of vindictiveness."
"The government was clearly out of line to bring this case forward against me," said Rosenthal in a statement released by his attorneys. "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."
"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 [15], and author of the successful vindictive prosecution motion [16]. "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."