|Federal prosecutors not only are preparing to re-try Oakland "Guru of Ganja" Ed Rosenthal, but seem to be searching for more charges to file against him.|
Rosenthal, 61, was in federal court Wednesday for the first time since his 2003 convictions were overturned earlier this year. U.S. District Judge Charles Breyer ordered him to return Sept. 13, when he and attorneys will try to set a trial date.
"The government might want to take a hard look at this case, is my suggestion," said Breyer as the brief status hearing ended.
Outside, Rosenthal's attorney, William Simpich of Oakland, said he took that parting comment to mean the judge believes "this case should be terminated."
But William Dolphin, a spokesman for the Oakland-based medical marijuana advocacy group Americans for Safe Access, said Wednesday at least two witnesses appeared under subpoena last Thursday before a federal grand jury in San Francisco that's probing Rosenthal's activities over a wider range of time than the original case included - possibly a prelude to new charges.
Those two people, who for now wish to remain anonymous, both invoked their Fifth Amendment rights against self-incrimination, Dolphin said. They're to appear before the grand jury again Thursday, perhaps to be offered immunity from prosecution in exchange for their testimony; this could leave them to choose between testifying or being jailed for civil contempt of court.
Famed for his marijuana cultivation books and the "Ask Ed" column he wrote for High Times magazine, Rosenthal was convicted of three marijuana-growing felonies in 2003, more than a year after federal agents raided sites including his Oakland home, an Oakland warehouse in which he was growing marijuana, and a San Francisco medical marijuana club he supplied.
Medical use of marijuana on a doctor's recommendation is legal under state law but prohibited by federal law, so Rosenthal was barred from mounting a medical defense at trial. Breyer sentenced him to one day behind bars - time he'd already served.
The 9th U.S. Circuit Court of Appeals overturned his convictions in April, finding juror misconduct -- a juror's conversation with an attorney-friend during deliberations -- compromised Rosenthal's right to a fair verdict and so warranted a new trial.
But the court also rejected Rosenthal's claim of immunity from prosecution as an officer of Oakland who grew the drug under the city's medical marijuana ordinance. The court in July refused Rosenthal's requests for rehearing, or for an "en banc" rehearing by a larger panel.
Simpich told Breyer on Wednesday that Rosenthal's team of lawyers by Oct. 15 will file a petition seeking the U.S. Supreme Court's review. But Breyer said the 9th Circuit's Aug. 16 remand of the case requires that a retrial be scheduled within 70 days of that date.
Richard Watts of San Francisco, arrested and charged in the same 2002 raids that nabbed Rosenthal, has not yet been tried. His attorney, J. Tony Serra of San Francisco, is serving 10 months in the federal prison at Lompoc for failing to pay income taxes and won't get out until March. So Breyer on Wednesday ordered Watts to find a new lawyer by the Sept. 13 hearing or one will be appointed for him.