THE COURT: Okay. Mr. Rosenthal, you have obviously heard your counsel's decision that he does not wish to call any witnesses.

ED ROSENTHAL: My problem with this case, Your Honor, is that I believe that the prosecutor is acting more like a judge and you are acting more like a prosecutor. I would like to bring my case. My case is that this is selective prosecution, that this was done because of political reasons, and that I am being selected out because of my advocacy, whereas somebody like Bob Martin, who cooperates with the Government in going after marijuana users, marijuana producers, and other marijuana suppliers, is given a privilege thing.

I would like to continue the case with the witnesses that we have already announced that we would like to have. And since you have precluded those witnesses, which is the main part of the case, from testifying, there is no reason for anybody to testify.

Thank you.

(Witness returns to counsel table.)

THE COURT: Mr. Rosenthal, stay there, please. Now, you say that I have a precluded the witnesses. If I permit those witnesses to come forward, do you want them called?

ED ROSENTHAL: I would like the witnesses that my attorneys have asked to testify before the jury, not before you.

THE COURT: Okay. And do you want --

ED ROSENTHAL: For the body of the case. And the body of the case is that this is selective prosecution. And that -- and that I have been selected out because of that, and also that the Government actually has been in a Rico -- and we would like to call Mr. Bevan as well, that the Government has actually been in a Rico situation with Bob Martin.

And we have been precluded from tendering our theory of the case.

THE COURT: Mr. Rosenthal, do you want to testify in your case?

ED ROSENTHAL: No, I would like to bring the witnesses that we would like to testify in that case because I would be precluded from testifying. You would stop me, just as you have done to every other witness when it hasn't -- when it hasn't been in the Government's interest.

THE COURT: Okay. ED ROSENTHAL: I believe that you are prejudiced. I believe that you should step down. And I believe that this is a mistrial.

Thank you.

(Witness returns to counsel table.)

THE COURT: Mr. Rosenthal, please stay there.

ED ROSENTHAL: I would rather not.

THE COURT: No, Mr. Rosenthal, I need to ask you a question. If I permit you to testify --

ED ROSENTHAL: No. I want my witnesses. I have a perfect right to testify, I understand that. I want my witnesses to testify.

THE COURT: Counsel --

ED ROSENTHAL: If you are not going to give me my witnesses, I'm not putting on a case.

THE COURT: Okay.

Now, Mr. Rosenthal, if I allow you to testify and say whatever you want to say without any limitation, without any -- freely, that is to say, you may say anything you want to in your defense on the stand, do you wish to do so?

ED ROSENTHAL: Only if I can bring corroborating witnesses.

THE COURT: Okay, then I would like your counsel -- I would like you to spend a moment with your counsel --

ED ROSENTHAL: I would need a day to think about it, Your Honor. I can't think about this. I can't give you an answer right now because I need 24 hours to think about it.

MR. AMPARÁN: May I propose witnesses to the Court to see what the Court's reaction would be?

THE COURT: Any witnesses that you --

MR. AMPARÁN: Supervisor Nate Miley.

THE COURT: Any witness -- then I need to know what Mr. --

ED ROSENTHAL: Mr. Miley is -- I'll tell you what Mr. Miley is going to say. He is going to say that I was an officer of the City, and I was allowed by the City to grow marijuana and to provide it to patients, and also that I was told by the City Attorney that I was free from prosecution.

MR. AMPARÁN: We would also call Barbara Parker, City Attorney for the City of Oakland, who would testify that Mr. Rosenthal was advised that as a deputy of the City of Oakland, he would be shielded from things like Mr. Bevan and his prosecution in Federal Court.

We would also like to call people from the Medical Marijuana Working Group from Oakland that discussed the issues about the legalization of medical marijuana, setting up Oakland -- setting up the policies and procedures that Mr. Rosenthal was advocating, such as for the employment of welfare mothers in Oakland for high-paying salaried positions with benefits and taxing and regulating medical marijuana on a state and federal level.

ED ROSENTHAL: We would also like to call DEA Agent Steele (phonetic) who specifically gave SAMM [Sonoma Alliance for Medical Marijuana] permission and said that they would not be harassed.

MR. AMPARÁN: We could call the testimony of Joe DeVries, Nate Miley's assistant. At the time Nate Miley was the committee chair of the public safety committee of Oakland. Joe DeVries was his head aide in response to health and safety legislation and public safety legislation, and that he was with Mr. Rosenthal, that he went to the Mandela Parkway grow site, and that everything that was done was conducted properly and under the auspices of Prop -- the medical marijuana law and the Oakland ordinance that was drafted and passed in open session authorizing Mr. Rosenthal to conduct --

ED ROSENTHAL: We would also like to call Mr. Bevan to show that he was in a RICO kind of arrangement with Bob Martin and was actually violating federal law when he was doing that.

THE COURT: So your offer of proof -- well, let's --

ED ROSENTHAL: Our offer of proof will be without a proffer.

THE COURT: So, Mr. Rosenthal, let's -- let me ask this question: If I don't permit these individuals just identified by your attorney to testify on the subjects that your attorney has indicated that he wants those people to testify, but would permit you to testify about any of those subjects and anything you want to say, do you or do you not want to testify?

ED ROSENTHAL: Well, if I mention somebody like Nate Miley, can I get Nate Miley here to corroborate that what I said is correct?

THE COURT: The answer is I don't know. I need to know --

ED ROSENTHAL: Well, I need to know.

THE COURT: Oh.

ED ROSENTHAL: I can't -- I can't -- if you are not going to make a decision, then I can't make a decision.

THE COURT: I've made a decision. Do you want to hear the decision?

ED ROSENTHAL: Yes.

THE COURT: You can testify about anything you want to testify without --

ED ROSENTHAL: Can Mr. Miley testify?

THE COURT: Why don't you listen to me. -- without any restriction at all. This is your defense, and whether or not it's legally admissible is not of concern. You may testify to anything you wish.

Now, that is what you can do. With respect to witnesses, other witnesses, other than yourself, the Court would rule as follows: As to those individuals that were just recited by your counsel, and as to the testimony those people would give, that is inadmissible.

It's inadmissible because the Ninth Circuit Court of Appeals affirmed the orders of the Court, which in the first case ruled it to be inadmissible, and it's now the law of the case.

As to the other items of testimony that was contained in the proffer of proof, that was filed by your counsel at the beginning of the trial, much of that would be admissible, if, in fact, you want to call those individuals.

So that is what the situation is.

ED ROSENTHAL: Well, I would like to know whether I could call Mr. Bevan?

THE COURT: Okay. That would depend, of course, on what Mr. Bevan would say and whether or not it would be relevant to the determination.

ED ROSENTHAL: Don't you think that it would be better for us not to warn Mr. Bevan of what we would be asking him?

THE COURT: Fine.

ED ROSENTHAL: So we would like to call him in front of the jury and then see what happens.

THE COURT: You are entitled to make an offer of proof outside of Mr. Bevan's presence as to what he would testify to and why it would be relevant to this determination. And I would listen to that.

ED ROSENTHAL: Well --

THE COURT: If that is what you want to do.

ED ROSENTHAL: Unless we say -- unless I firmly know who I can actually have as a witness, I'm not going to play in this kangaroo charade court, which is exactly what this is, because you are just not letting the full story out. And if you are not letting the full story out, it's not worth doing.

It's just like a Soviet Stalinist trial of comrades, you know? Why don't you just call me Comrade and then send me off to hang? Because that's basically what you are doing, in terms of letting the Government full sway and not allowing us to present any kind of evidence that we want.

We have a right to our theory of the case. And if you don't like the theory of the case, you are not the judge of this. The jury should be the judge of it, what the theory of the case is.

Just because -- just because the Government has said that it doesn't want me to present that theory of the case, doesn't mean that I don't have a right to present any theory of the case that I want.

I do have that right. And you are not allowing me that right. You are not allowing me the witnesses that I have that would prove my case. And you are allowing somebody who has been -- where is he -- here he is -- who has been involved in a RICO conspiracy for the past four years to just go with his smile and smirks and all of this, nasty -- his nasty expressions, go to the jury without admonishing him for it.

It just shows -- it shows what kind of court this is. My participation in it, I want to limit it because I know that you are -- I believe that you, by your previous actions, are working with the prosecutor hand in hand.

THE COURT: Okay. Well, the decision you have to make is whether or not you wish to testify.

ED ROSENTHAL: Well, I'm saying if I testify I would want corroborating witnesses. If you are not going to allow me the corroborating witnesses, then there is no sense in me testifying.

THE COURT: That's up to you.

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