The U.S. Justice Department: Ask About Our Vindictive Prosecutions

This week U.S. District Judge Charles Breyer dismissed money laundering and tax evasion charges that federal prosecutors brought against California medical marijuana grower Ed Rosenthal after he humiliated them by 1) getting sentenced to time served (one day) for drug offenses that could have resulted in a prison term of five years or more and 2) getting the 9th Circuit to overturn the conviction because of juror misconduct. After the appeals court's ruling, the government, which had made a big show of treating Rosenthal like a drug kingpin even though he was growing marijuana in cooperation with the city of Oakland for patients entitled to use it under California law, faced the prospect of either giving up or pursuing a new trial on the same marijuana charges. But even if a second jury convicted Rosenthal, Breyer could be expected to impose the same one-day sentence, which the 9th Circuit already has indicated was reasonable under the circumstances. So the prosecutors decided to tack on money laundering and tax evasion charges based on the same underlying conduct, thereby making sure Rosenthal would go to prison. Noting that "upping the ante" after a defendant's successful appeal creates a presumption of vindictive prosecution, Breyer said the government had failed to overcome that presumption.

Instead the prosecutors offered additional evidence that they were beefing up the indictment to get back at Rosenthal for exposing them to widespread criticism and ridicule. At a hearing on Rosenthal's motion to dismiss the new indictment, Breyer asked Assistant U.S. Attorney George Bevan to explain the additional charges. Bevan replied:

The purpose is this: Mr. Rosenthal, after the verdict, took to the microphone and said, I didn't get a fair trial. The jury didn't know that I was growing for [medical marijuana] clubs. The jurors said this was a distorted process. The government was part of it. The Court was a part of it. We would have wanted to know why he was growing the plants.

So I'm saying, this time around, he wants the financial side reflected, fine, let's air this thing out. Let's have the whole conduct before the jury: Tax, money laundering, marijuana. And let's decide it on all the evidence.

Note that the government did not decide to let the jury hear why Rosenthal was growing the marijuana, information that Breyer excluded from the original trial at the prosecution's request. Bevan's explanation for the new charges can only be understood as facetious; it amounts to saying, "You thought your first trial was unfair? We'll show you unfair!" When Breyer, taken aback, asked Bevan to clarify whether the U.S. Attorney's Office was seeking to punish Rosenthal for exercising his First Amendment right to criticize the government's conduct, the prosecutor's response was hardly reassuring:

We have evaluated our strategy with respect to charging on only cultivation. It was uncomfortable from my standpoint to be on the receiving end that the trial was deemed unfair—was said to be unfair....

We only charged and only tried a portion of his conduct, and what we're saying now is, "Okay, we're going to put all of his conduct in front of the jury. We want the jury to know everything about his conduct, the marijuana cultivation and what he did with the money and his tax returns." And that's the basis for the indictment.

Bevan was only digging himself deeper, implying that Rosenthal should be punished for making him uncomfortable. Breyer concluded:

A reasonable observer would interpret the government's conduct as warning: "Okay Mr. Rosenthal, if you want to attack the trial as unfair, and put us in the uncomfortable position of being criticized in the press and by the jurors, we are going to show the jury and the public that you are a tax fraud and a money launderer." In other words, the government's deeds—and words—create the perception that it added the new charges to make Rosenthal look like a common criminal and thus dissipate the criticism heaped on the government after the first trial. The problem with this perception, however, is that it will discourage defendants from exercising their First Amendment right to criticize their prosecutions and their statutory right to appeal their convictions. If they do, and they are successful, the government will punish them by bringing more serious charges.

[via The Drug War Chronicle]

   

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  • ||

    The Ed Rosenthal
    High Times guru of ganja
    Boy am I thirsty

  • ||

    Yet another activist judge bent on destroying our American way of life. He hates us for our freedom, etc.

  • ||

    sage is my hero
    he keeps haiku day alive
    keep on keeping on

  • Guy Montag||

    As has been said before on this case, thank goodness he was not growing tobacco!

  • ||

    Well, that's one good result. Only ten thousand miscarriages of justice left to rectify.

    Public embarrassment doesn't go far enough. Why aren't there mandatory minimums for malicious prosecution.

  • ||

    Email me re: pills
    Make your haiku meter grow
    To 9-11-9

  • LarryA||

    Mr. Bevan: If you don't want to look like an ass, don't be an ass.

  • ||

    Email me re: pills
    Make your haiku meter grow
    To 12-14-12

  • Dennis||

    The notable thing here, I think, is ust how candid and matter-of-fact Bevan was about the US attorney's office's motive. It's always hard to tell from a transcript what the tone of the exchange really was, but he seemed to offer his defense of the new indictments as though nothing could be more reasonable. "Hey, he made us uncomfortable, so we're gonna really stick it to him!" They upped the ante after a successful, invoked the presumption of vindictive prosecution, and (apparently) just figured they'd get a pass.

    That's the combination of the natural arrogance of federal prosecutors and the presumption that all's fair in the drug war at work. Really nice to see it get slapped down for once.

  • I. Self. Divine.||

    Rosenthal you prick
    Breyer should have pimp-slapped you
    Lets all go get high.

  • I. Self. Divine.||

    Oops I fucked that up
    Confused Bevan with Rosen
    Still in haiku though

  • Guy Montag||

    The notable thing here, I think, is ust how candid and matter-of-fact Bevan was about the US attorney's office's motive. It's always hard to tell from a transcript what the tone of the exchange really was, but he seemed to offer his defense of the new indictments as though nothing could be more reasonable. "Hey, he made us uncomfortable, so we're gonna really stick it to him!" They upped the ante after a successful, invoked the presumption of vindictive prosecution, and (apparently) just figured they'd get a pass.

    Actually, the feds (Secret Service) kept bernieS (Ed Cummings) in jail for a long time just because he embarassed them too.

    Nice to see one judge not falling for this.

  • D.A. Ridgely||

    What a beautiful bitch-slap! Additional money quote from the decision:

    The government does not cite a single case that suggests the government may "up the
    ante" after a criminal defendant's successful appeal in order to rebut the defendant's
    widespread public criticism of the trial.


    BTW, the court went on to state it didn't doubt the "subjective good faith" of the prosecutor; that is, it didn't find that the prosecution was acting in knowing and willful disregard of the law. Given the judge's sua sponte comments interrupting the prosecution's oral opposition argument at the motion hearing, the only other reasonable conclusion would be that the judge thought the prosecutor was a half-wit.

    Of course, the two aren't mutually exclusive.

    Golly, maybe more federal prosecutors should have been fired.

  • I. Self. Divine.||

    Been at work too long
    Cannot even keep names straight
    I really need pot.

  • ||

    Note that the government did not decide to let the jury hear why Rosenthal was growing the marijuana, information that Breyer excluded from the original trial at the prosecution's request

    In the legal world
    this "request" is a motion
    See Rule 401

  • ||

    Limmericks are far superior.

    There once was a lawman out west
    a wacky tobacky grower he did arrest
    1 day sentence? Not enough
    so they thought they'd get tough
    and basically got the charges de-pressed.

    That last line is torture, I know....

  • My Name Is Not D\'Artagnan||

    Crimethink is a dick
    So is that asshole Montag
    Man, I love haiku

  • Timothy||

    Now, if only we could compose some sort of sonnet...

  • ||

    if you have no skill,
    and can't write a limerick,
    why are you trying?

  • VM||

    A sonnet to please Tim is on the way.
    Stretching literary skill so mightily;
    A topic worthy for haiku day
    And for advancing the cause of liberty.

    Crime against drugs is the topic here
    What should be legal or not is discussed
    Or is decriminalization the big fear
    of drugs such as pot and angel dust

    This topic has lively chatting and even word games
    The usual gang with the usual fun
    Sometimes it gives us a troll's flames
    But that's all expected here on Hit and Run.

  • Timothy||

    I suck at haiku
    Sonnets are impossible
    I just make big graphs.

  • Timothy||

    Viking Moose wins thread
    I am humbled by his poem
    This is a haiku

  • ||

    **** my ****, ****er
    anyone can write haiku
    they don't even rhyme!

    (kidding about the asterisked part;)

  • ||

    Be Crimethink a dick?
    Love for Haiku can't abide
    With hate for haiku'r.

  • ||

    Email me re: pills
    Make your haiku meter grow
    To 12-14-12


    Help me, I help you
    Nigerian, rich, but stuck
    Give your bank info?

  • D.A. Ridgely||

    Perhaps if sonnets were only twelve lines long,
    Viking Moose's three quatrains would win.
    But sonnets are fourteen lines in form
    Requiring a couplet at the end.
    Now fourteen lines about a DA's sin,
    Prosecuting just vindictively,
    Are hard to write - the words are hard to spin
    To work out so they rhyme effectively
    (That is to say more or less as they ought.)
    A better bard's aim at abuse of power
    Would ridicule the poor attorney caught
    By his own words to make his case go sour.
    But I am not that bard, and just will say
    The judge shot Beven's bullshit down. Hurray!

  • ||

    Sonnet's toughest bit:
    iambic pentameter
    Don't try it at home

  • VM||

    Forgot the couplet
    stupid, idiotic moose
    kicks cupcake. trods off

    suggest that I learn
    lest I embarrass myself
    any further here

  • M (smoldering while Rome fiddl||

    Higglety-Pigglety,
    Arch-libertarians
    And some who aren't even
    Nearly so arch

    Stray from pursuing their
    Prosecutorial
    Tyrants, like clockwork on
    The Ides of March.

  • Brian Sorgatz||

    Maybe I'll try my hand at a Flintstonean sonnet. That's the one with the rhyme pattern YABBA DABBA DOO.

    Huh huh. Flintstonean.

  • M (orthodox clerihewian)||

    Fred Flintstone
    Antedated sceptre and throne;
    Thus, though a libertarian,
    His opponents were merely saurian.

  • Tragedian M||

    Attorney George Bevan
    Risks forfeiting heaven.
    Unlike a clerihew, he's vindictive,
    While, alas, also unlike a clerihew, not fictive.

  • Dennis||

    BTW, the court went on to state it didn't doubt the "subjective good faith" of the prosecutor; that is, it didn't find that the prosecution was acting in knowing and willful disregard of the law. Given the judge's sua sponte comments interrupting the prosecution's oral opposition argument at the motion hearing, the only other reasonable conclusion would be that the judge thought the prosecutor was a half-wit.

    That's quite possible. But I read that paragraph as a sop to the AUSA - more of a professional courtesy than anything else. Essentially, the judge didn't need to find that Bevan acted in subjective bad faith to reach the result he wanted to reach, so, he didn't.

    Golly, maybe more federal prosecutors should have been fired.

    Amen to that (though I'm guessing you meant this somewhat tongue-in-cheek - and so do I; after all, they're just being replaced anyway). Even though a former AUSA now in private practice is the greatest mentor I've ever had (and I still call him for advice from time to time), most of my experience with government prosecutors at all levels has been negative. And not just b/c we've been adversaries.

  • ||

    Wait a minute, are you suggesting that federal prosecutors might be allowing the fair application of the law to be corrupted by using their powers to support or oppose political agendas?

    Holy crap, someone should tell the Attorney General! He'd be furious.

  • ed rosenthal||

    The Government is always persecuting people, and ED's a well known fish in the niche. They like to make examples. Ed Rules

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