Marcio Jose Sanchez  /  AP
Wearing a wizard's robe emblazoned with a marijuana leaf, Ed Rosenthal is flanked by his attorneys outside the federal courthouse in San Francisco on Friday.
updated 4/13/2007 7:29:11 PM ET 2007-04-13T23:29:11

Federal prosecutors said Friday they would retry a marijuana grower known as the "guru of ganja," even after a judge urged them to drop the case.

U.S. District Judge Charles Breyer demanded to know who in the Justice Department made the decision to continue pursuing Ed Rosenthal, whose conviction was overturned last year.

Newly appointed U.S. Attorney Scott Schools made the decision, according to Assistant U.S. Attorney George Bevan. Bevan said he was unsure whether Justice Department officials in Washington were involved.

Rosenthal, 62, cannot be sentenced to prison even if he is convicted again because an appeals court upheld the one-day prison sentence imposed by Breyer in 2003. The trial is set for May 14.

"This isn't a criminal case; this is a political case," said Rosenthal, who appeared in court in a blue wizard's robe emblazoned with a golden marijuana leaf. "I may as well get my money's worth and have a trial."

Rosenthal was convicted in 2003 of growing hundreds of plants for a city of Oakland medical marijuana program. The conviction was thrown out last year because a juror committed misconduct by consulting a lawyer on how to decide the case.

When federal prosecutors indicted Rosenthal again on three growing charges in October over the same marijuana operation, they also added four counts of money laundering and five counts of filing false tax returns.

But Breyer tossed out those additional charges last month, saying they were solely to punish Rosenthal for winning his appeal to overturn his initial conviction and complaining that the government treated him unfairly.

Prosecutors said Friday they wouldn't appeal the judge's decision to toss out those charges.

On Friday, Rosenthal's attorneys filed court papers asking Breyer to order the government to pay their fees for fighting the money laundering and tax charges.

Federal law allows defendants to seek attorneys fees if they've been wrongly charged by vindictive prosecutors.

His lawyers declined outside court to say how much money they were seeking.

A spokeswoman for the U.S. attorney declined to comment on the fee request.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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