A federal prosecutor said Friday that he plans to retry a prominent marijuana advocate on cultivation charges even though the man faces no punishment if convicted -- a decision the trial judge suggested he reconsider.
U.S. District Judge Charles Breyer postponed Ed Rosenthal's retrial, which was to start Monday, and gave prosecutors a month to decide whether to appeal his dismissal of charges of tax evasion and money laundering, the only charges that carried possible prison sentences.
In papers filed before the hearing, Assistant U.S. Attorney George Bevan said the government wouldn't drop the case even if it fails to reinstate the dismissed charges, or decides not to appeal Breyer's dismissal order.
In either event, Bevan wrote, "the government would proceed to trial on the drug counts.''
At the hearing, Breyer noted that Bevan has already agreed not to seek imprisonment for Rosenthal on the marijuana cultivation charges, in light of a federal appeals court decision that overturned Rosenthal's convictions at his first trial.
Rosenthal, 62, was convicted by a jury in 2003 on three charges of cultivating marijuana that he was growing for medical patients. Breyer sentenced him to the one day in jail he had already served, rather than the five years prescribed by federal guidelines, saying Rosenthal had believed he was acting legally because he had been designated as an official in Oakland's medical marijuana program.
A federal appeals court overturned the convictions last year, finding misconduct by a juror who consulted a lawyer during deliberations. Prosecutors then obtained a new grand jury indictment, adding tax and money-laundering charges that carried potential prison terms of up to 20 years.
Breyer dismissed the additional charges Wednesday, ruling that prosecutors had illegally retaliated against Rosenthal for his successful appeal and his public statements challenging the fairness of his trial.