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U.S. District Judge Charles Breyer, upset with accused pot grower Ed Rosenthal’s loquacious sessions with the media, threatened to slap a gag order on a high-profile marijuana prosecution Wednesday. Breyer and the government are both incensed about coverage of the trial, with Breyer telling Rosenthal that his conduct during trial could be a factor in sentencing. During an early morning colloquy outside the presence of the jury, Assistant U.S. Attorney George Bevan Jr. pointed to the cover of Tuesday’s San Francisco Examiner, which featured a picture of Rosenthal and his 12-year-old daughter. The headline read: “My dad’s a hero.” When Bevan showed the tabloid in court, Rosenthal broke into spontaneous applause. The move did not sit well with Breyer. “I don’t want to have to enter an order,” Breyer said later, telling defense counsel to discuss the matter with Rosenthal. Bevan proposed filing a gag order, but Breyer seemed inclined to handle the issue with a warning. Rosenthal was arrested in February 2002 and charged in connection with a grow operation that supplied marijuana for the Harm Reduction Center, a medical marijuana dispensary. He is the highest-profile defendant to go on trial in the Northern District for growing marijuana in connection with California’s Proposition 215, the state’s medical marijuana initiative. Rosenthal’s operation had the blessing of Oakland politicians and police. “I’m all in favor of a gag order,” Rosenthal said after the conclusion of Wednesday’s testimony. “In fact, I think the government should be put under a gag order too, because they’ve been running all these anti-marijuana ads on television that are meant to affect the jury … . Certainly it’s colored the judge.” Rosenthal’s defense lawyer, Robert Eye, declined to comment. So did Bevan. Rosenthal was still talking. “Even if they stop me from speaking, they can’t stop people who know about this issue from speaking,” said Rosenthal, the author of several books on growing marijuana, including one about avoiding prosecution. The trial will continue today before a break Friday, about which Rosenthal said wryly, “I think there’s a special dinner at the country club, so certain members of the trial court can’t make it.” Breyer has demonstrated a singular concern about protecting the jury from outside influence. He has asked the defense to keep any demonstrations away from the jurors, to the extent that it can. Testimony on Wednesday focused on the handling and counting of marijuana plants during the U.S. Drug Enforcement Administration’s February 2002 raid of 1419 Mandela Parkway in Oakland, Calif., where Rosenthal and a partner had established a sophisticated marijuana growing operation.

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