A federal prosecutor and Rosenthal's lawyers rested their cases and made closing arguments Tuesday on whether
Rosenthal should be convicted of five marijuana-growing felonies, and then jurors began deliberating.
But even if convicted, Rosenthal, 62, faces no more than the one day behind bars time he already served to which he was sentenced after his first trial and conviction in 2003, later overturned by a federal appeals court. Whether with a clean slate or as a convict, Rosenthal will walk free no matter what this jury decides.
"You've made a contribution, an important contribution to theadministration of justice," Assistant U.S. Attorney George Bevan assured jurors Tuesday morning, adding "the evidence is clear, and we would submit, overwhelming" to prove Rosenthal's guilt.
Laying out a pattern of documents property and utility records, invoices from bulk supply purchases and the like as well as witnesses' testimony, Bevan said Rosenthal conspired with others to use a warehouse at 1419 Mandela Parkway in West Oakland; a house across the street from his own home elsewhere in Oakland; and the Harm Reduction Center medical marijuana club on San Francisco's Sixth Street as sites to grow and distribute thousands of marijuana plants.
"Your responsibility is to hold him accountable for no more than what he did but no less than what he did," Bevan urged the jury.
Defense attorney Robert Amparan much of whose case was gutted last week as U.S. District Judge Charles Breyer deemed defense witnesses' testimony of medical motivation irrelevant to the federal charges danced a delicate dance in his closing argument Tuesday.
"There are places that we can't go. ... There are answers too realistic, reasonable questions you may have that I can't give you," he told the jurors, instead focusing on discrediting the credibility of government itself "I fear my government because it does not always tell us the truth" and its witnesses in this case.
"The federal government has had almost six years to complete this recipe, ... and yet their recipe, ladies and gentlemen, contains tainted, soiled, spoiled ingredients," he said. "If it smells like something that's going to make you sick, you have the right to reject it."
Breyer repeatedly sustained Bevan's objections or even halted Amparan's argument himself as improper. For example, when Amparan described himself as "a gay Mexican one generation out of the fields," Breyer shut him down, saying "It's not about you." When Amparan accused Bevan of placing a woman and a person of color at the prosecution's table to balance out the two Latinos and a woman at the defense table, Breyer once again cried foul: "I suggest that you simply argue the case."
Finally, as Amparan tried to liken Rosenthal's situation to past injustices done under color of law such as slavery, or internment of Japanese-Americans during World War II Breyer sent the jury out of the courtroom and then lambasted Amparan for trying to lead the jury into questioning federal law itself. Amparan insisted he wasn't, but said he planned to cite false pretenses for the war in Iraq and the botched response to Hurricane Katrina as other instances of the government's mistakes.
As applause erupted from a courtroom packed mostly with Rosenthal's supporters, Breyer warned such outbursts would lead him to clear the courtroom; he then ordered Amparan not to make these arguments to the jury.
With the jury present again, Amparan sought to discredit those who had testified against Rosenthal: Bob Martin, whose own marijuana dispensaries haven't been raided during his cooperation with the government in this case; James Halloran, Rosenthal's former partner who escaped the possibility of three 50-to-life sentences in return for his testimony; and David Lewis, Rosenthal's neighbor and a recovering methamphetamine addict.
Amparan urged jurors to make "reasonable inferences" about what really happened, and why, from the evidence and testimony: "Be strong and have courage, and I trust you will do the right thing."
A federal jury convicted Rosenthal in 2003, but within hours, most jurors publicly renounced their own verdict, claiming they'd been railroaded into convicting him by a court that allowed no consideration or discussion of medical marijuana. Breyer later sentenced Rosenthal to only one day in jail and warned any such cases in the future would receive harsher penalties.
The 9th U.S. Circuit Court of Appeals in April 2006 ruled there had been juror misconduct, and overturned Rosenthal's convictions. Prosecutors re-indicted Rosenthal in October, adding charges that he'd laundered marijuana proceeds and falsified three years worth of tax returns; Breyer in March tossed out those new charges, deeming them to be vindictive prosecution.
Contact Josh Richman at email@example.com or (510) 208-6428.