Rosenthal convicted of 3 federal marijuana charges,
vows appeal

Ed Rosenthal.
Photo(s) by Luke Thomas

By Julia Cheever

May 30, 2007

Marijuana activist Ed Rosenthal was convicted in a retrial in federal court in San Francisco today of three counts of growing marijuana and conspiring to do so at an Oakland warehouse.

Rosenthal, 62, of Oakland, the author of more than a dozen books about marijuana, will be sentenced by U.S. District Judge Charles Breyer on June 6.

But he doesn't face any prison time because prosecutors have said they won't seek a sentence greater than the one day in jail and three years of supervised release that Rosenthal already served in a previous conviction.

The jury acquitted Rosenthal of a fourth count of growing and selling marijuana at a now defunct San Francisco dispensary and deadlocked on a fifth charge that he conspired to grow marijuana there.

After the deadlock was announced, prosecutors dismissed that charge.

Rosenthal said after the verdict, "I'm disappointed but not surprised. The jury was not allowed to hear valuable information it needed to make an unbiased and fair decision."

He contended, "This shows how flawed the system is when the jury can't have the whole truth."

Rosenthal claimed outside of court he was growing starter plants for patients needing medical marijuana under California law and was deputized to help the city of Oakland in its medical marijuana program.

But he wasn't allowed to raise those arguments before the jury because federal drug laws permit no exception for state medical marijuana laws like California's Compassionate Use Act. The state law allows seriously ill patients to use marijuana with a doctor's approval.

Rosenthal's attorney, Robert Amparan, said he will ask for a new trial and if necessary appeal the verdict.

Assistant U.S. Attorney George Bevan, the prosecutor in the case, said he had no comment. Scott Schools, the U.S. attorney for Northern California, had not issued a comment by the end of the day today.

In his previous trial in Breyer's court in 2003, Rosenthal was convicted of three similar charges. The judge sentenced him to one day already served on the ground that Rosenthal had a sincere but mistaken belief that he was protected from federal prosecution because he was helping the city of Oakland carry out a medical marijuana program.

In an unusual turn of events, seven jurors in the 2003 trial later disavowed their verdict because they were not informed about Rosenthal's role in medical marijuana.

The earlier conviction was overturned by a federal appeals court last year because a juror improperly consulted a lawyer friend during deliberations.

Last fall, prosecutors obtained a revised grand jury indictment adding nine tax evasion and money laundering counts to the marijuana cultivation charges. But Breyer dismissed the financial charges before the retrial, saying that they appeared to be vindictive prosecution.

The three counts on which Rosenthal was convicted today were conspiring to grow marijuana at a warehouse at 1419 Mandela Parkway in Oakland between 1998 and 2002; growing marijuana there; and using the warehouse for the purpose of growing and selling marijuana.

Bevan told jurors at the start of the trial that Rosenthal ran "a large indoor sophisticated marijuana operation" at the warehouse and that federal drug agents seized 3,100 marijuana plants there during a raid on Feb. 12, 2002.

The verdict came after two half-days of deliberation Tuesday afternoon and this morning.

The trial began on May 15 and consisted only of testimony from prosecution witnesses, including federal agents and former colleagues of Rosenthal's. Defense attorneys rested their case on Tuesday without calling any witnesses and argued to the jury that witnesses who received plea bargains weren't credible and that the prosecution hadn't proved its case.

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