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San Francisco Chronicle, May 30, 2007
by Bob Egelko, Chronicle Staff Writer
(05-30) 13:59 PDT SAN FRANCISCO -- Marijuana advocate Ed Rosenthal was convicted for a second time today of violating federal drug laws by growing pot plants for medical patients, but he faces no punishment for the felony convictions, apart from the one day in jail that he has already served.
Rosenthal, 62, of Oakland, a well-known authority on cannabis cultivation, former columnist for High Times magazine and author of a recent book calling for legalization of marijuana, was convicted by a federal jury in San Francisco of three charges of illegal cultivation and conspiracy after a day of deliberations. He was acquitted of a fourth charge, and the jury deadlocked on a fifth charge.
A separate jury had convicted Rosenthal of similar charges in 2003, but the verdict was overturned by an appeals court because of misconduct by a juror who called a lawyer for advice during deliberations. The charges normally carry a sentence of at least five years in prison, but U.S. District Judge Charles Breyer imposed only a one-day sentence, saying Rosenthal had believed he was acting legally because Oakland had designated him as its agent in the city's medical marijuana program.
Federal prosecutors tried to add charges of money-laundering and tax evasion for the retrial, but Breyer refused, saying the government was retaliating for Rosenthal's criticism of the case and his successful appeal. Prosecutors proceeded with the second trial, rejecting the judge's suggestion that they drop the case, but conceded that they could not seek additional punishment for Rosenthal.
Rosenthal was arrested in February 2002 after federal agents seized more than 3,700 marijuana plants at an Oakland warehouse. He was charged with growing marijuana for distribution by a number of medical marijuana dispensaries in the Bay Area.
In both trials, Breyer barred evidence that the marijuana was intended for medical use under Proposition 215, the 1996 California initiative allowing patients to use the drug with their doctor's approval. He also excluded evidence about Rosenthal's designation as an agent by the city of Oakland.
Left without a defense, Rosenthal's lawyers called no witnesses at the retrial, and instead argued that the prosecution's case was tainted by the testimony of some of Rosenthal's former friends and business partners who had been granted leniency.
Because of the judge's rulings, "The jury was not allowed to hear valuable information it needed to make an unbiased and fair decision," Rosenthal said today after the verdict.
His defense lawyers said they would ask Breyer to throw out the convictions.