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Oakland marijuana activist Ed Rosenthal - who previously won the dismissal of tax and money laundering charges - has now asked a federal judge in San Francisco to dismiss the remaining marijuana charges he faces.
Rosenthal, 62, is slated to go on trial May 14 in the court of U.S. District Judge Charles Breyer on five counts related to alleged growing and selling of marijuana at an Oakland warehouse and a San Francisco dispensary.
The judge is scheduled to consider the motion for dismissal at a pretrial hearing on May 10.
In papers filed last week, Rosenthal claims he was unfairly singled out for a retrial in retaliation for exercising his free-speech right to claim his first trial in 2003 was unfair.
His lawyers wrote, "The prosecution has targeted Mr. Rosenthal for a retrial despite the fact that he has already served the penalty imposed by the court, precisely because of Mr. Rosenthal's widespread public criticism of the trial."
The attorneys also said a retrial would be "pointless" because prosecutors have pledged not to seek a penalty any greater than the one-day sentence Rosenthal received in his first trial in 2003.
But prosecutors argued in a response filed this morning that a retrial is well within their mandate to enforce federal criminal laws.
Assistant U.S. Attorney George Bevan wrote, "There is no basis in the record to challenge the U.S. attorney's exercise of his prosecutorial discretion as part of the executive branch of the federal government, to carry out this prosecution."
Bevan said in the brief that there was no evidence Rosenthal was treated differently from other defendants whose conviction was overturned on appeal and who were ordered to stand a retrial.
In his first trial in 2003, Rosenthal was convicted of three marijuana cultivation charges, but a federal appeals court overturned the verdict last year on grounds of juror misconduct and ordered a retrial.
Last October, prosecutors obtained a new grand jury indictment charging Rosenthal with five similar marijuana counts and nine additional counts of laundering drug profits and filing false tax returns.
But in March, Rosenthal won a ruling in which Breyer dismissed the additional financial charges on the ground that they appeared to vindictive prosecution in relation for Rosenthal's appeal and his public complaints about the fairness of his first trial.
In those complaints, Rosenthal charged his first trial was unfair because he wasn't allowed to tell the jury about his claims that he was growing marijuana for patients and helping the city of Oakland carry out his medical marijuana program.
Federal courts have ruled that U.S. drug laws make no exception for California's medical marijuana law, a 1996 voter initiative that allows seriously ill patients to use the drug with a doctor's permission.
Newshawk: CoZmO - 420Magazine.com
Source: FOXReno.com (NV)
Author: FOXReno.com / The Associated Press
Contact: steve.halliwell@cox.com
Copyright: 2007 by FOXReno.com
Website: Reno & Lake Tahoe's source for news
Rosenthal, 62, is slated to go on trial May 14 in the court of U.S. District Judge Charles Breyer on five counts related to alleged growing and selling of marijuana at an Oakland warehouse and a San Francisco dispensary.
The judge is scheduled to consider the motion for dismissal at a pretrial hearing on May 10.
In papers filed last week, Rosenthal claims he was unfairly singled out for a retrial in retaliation for exercising his free-speech right to claim his first trial in 2003 was unfair.
His lawyers wrote, "The prosecution has targeted Mr. Rosenthal for a retrial despite the fact that he has already served the penalty imposed by the court, precisely because of Mr. Rosenthal's widespread public criticism of the trial."
The attorneys also said a retrial would be "pointless" because prosecutors have pledged not to seek a penalty any greater than the one-day sentence Rosenthal received in his first trial in 2003.
But prosecutors argued in a response filed this morning that a retrial is well within their mandate to enforce federal criminal laws.
Assistant U.S. Attorney George Bevan wrote, "There is no basis in the record to challenge the U.S. attorney's exercise of his prosecutorial discretion as part of the executive branch of the federal government, to carry out this prosecution."
Bevan said in the brief that there was no evidence Rosenthal was treated differently from other defendants whose conviction was overturned on appeal and who were ordered to stand a retrial.
In his first trial in 2003, Rosenthal was convicted of three marijuana cultivation charges, but a federal appeals court overturned the verdict last year on grounds of juror misconduct and ordered a retrial.
Last October, prosecutors obtained a new grand jury indictment charging Rosenthal with five similar marijuana counts and nine additional counts of laundering drug profits and filing false tax returns.
But in March, Rosenthal won a ruling in which Breyer dismissed the additional financial charges on the ground that they appeared to vindictive prosecution in relation for Rosenthal's appeal and his public complaints about the fairness of his first trial.
In those complaints, Rosenthal charged his first trial was unfair because he wasn't allowed to tell the jury about his claims that he was growing marijuana for patients and helping the city of Oakland carry out his medical marijuana program.
Federal courts have ruled that U.S. drug laws make no exception for California's medical marijuana law, a 1996 voter initiative that allows seriously ill patients to use the drug with a doctor's permission.
Newshawk: CoZmO - 420Magazine.com
Source: FOXReno.com (NV)
Author: FOXReno.com / The Associated Press
Contact: steve.halliwell@cox.com
Copyright: 2007 by FOXReno.com
Website: Reno & Lake Tahoe's source for news
