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]