FRESNO, CA -- Residents of Stanislaus County may have noticed a sudden and seemingly unexplained increase in personal liberty during the past few days. If so, there’s a simple explanation for the phenomenon: the Modesto Police Department and Stanislaus County Sheriff’s Department have been functioning without a significant percentage of their regular officers this week. For a limited time only, many of the Central Valley’s best and brightest in law enforcement could be found lingering on the 7th floor of the Fresno federal courthouse, near the opulent courtroom of Judge Oliver Wanger. The well-groomed gentlemen stood around in the hallways, sporting business suits or police uniforms, and clustering together for various sorts of nervous small talk.
They had come to testify against medical marijuana caregivers Ricardo Montes and Luke Scarmazzo during their jury trial, and they had come in droves. Every nook, cranny and alcove near the courtroom was teeming with them. For a group whose demographics were limited to just one gender and two racial categories, the police witnesses appeared to escape homogeneity only on the characteristic of height. A couple of the men were impressively tall, and one of them was so remarkably short that, after he had been excused, Judge Wanger was prompted to inquire about the Modesto Police Department’s height requirement.
Lieutenant Edward Ormonde Jr.
With so many witnesses available to choose from, the first person called to the stand appeared to be a strange pick. It was Lieutenant Edward Ormonde Jr. of the Ripon Police Department, and his testimony was about investigating a suspected burglary in early 2005. Sure, it was chronologically proper, but it hardly seemed applicable. No one was charged as a result of the investigation and the incident didn’t appear to have anything to do with the defendants’ dispensary, better known as the California Healthcare Collective. Ormonde was simply able to tell jurors about an indoor marijuana grow associated with Scarmazzo, and this appeared to be enough to suit the prosecutors’ interests.
Although only marginally relevant to the case at hand, Ormonde’s story was a novel and captivating one. It dated back to January 3rd, 2005, when Ormonde said the Ripon Police Department received a call about a suspected burglary in an apartment complex. Officers were dispatched to the scene, and when they arrived, they supposedly followed a trail of marijuana debris straight to the apartment in question. This image evoked a surreal fairy tale atmosphere, as though the officers had become part of some bizarre take on the story of “Hansel and Gretel.”
The path of scattered marijuana ended at a sliding glass door to the apartment, at which point the officers had to decide whether to follow it inside…and like any good fairy tale hero, they quickly chose to enter the unknown. But the officers didn’t do it for the sake of adventure, or so they claimed. On the record, they made the entry in order to determine whether there were any victims inside. Noble intentions do deserve praise, and the benefit of any doubt…but it’s still worth wondering why, when no one was found in the apartment, the officers didn’t follow the magical marijuana trail backwards to find the pot burglars.
The answer is that there were victims inside, only they weren’t human. The officers reported a scene of violence and carnage unlike anything previously experienced by the plants that had resided there. When the indoor marijuana grow was ransacked, it wiped out three-quarters of an entire family in a single blow. Out of 75 pots, Ormonde said, only twenty still had plants in them.
The lieutenant promptly went out to secure the search warrant necessary for seizing the plants, and he was returning from this mission when the officers on scene alerted him that the suspect Scarmazzo was approaching the apartment. There was no fingering in the courtroom, however. Scarmazzo’s attorney Anthony P. Capozzi instead stipulated that the suspect in question truly was his client.
According to Ormonde, Scarmazzo immediately acknowledged that the grow was his, saying that he used the apartment as a secondary residence to cultivate marijuana for himself and 13 friends. Ormonde testified that he decided to detain the suspect at that point, but that he granted Scarmazzo’s request to be inside the apartment while it was being searched. Selecting a sofa in a central location to seat his detainee, Ormonde did a check underneath the cushions…and found a semiautomatic pistol. He did not ask Scarmazzo if the gun belonged to him, however. “We were detaining him and I didn’t want to violate Miranda,” the lieutenant explained.
Instead of questioning the detainee, Ormonde continued to search the apartment carefully and made various discoveries. Two immature marijuana plants were under a grow light in the bathroom, and the apartment was well-stocked with various plant nutrient products. There were no clothes in the closet, Ormande reported, but there was marijuana drying there. Similarly, he said he saw no dishes in the kitchen, but he found small amounts of marijuana in a plastic bag and in a glass mason jar. The direct examination was quite thorough when addressing indications of whether or not the apartment was “lived in,” but neglected to ask about the medical marijuana recommendations that had been found in the apartment. Predictably, it took questioning from the defense attorneys to elicit a mention of these papers, and the government fought tooth-and-nail to prevent it.
“What were the documents?” Capozzi asked the witness.
The defense attorney probed, “Why would [Mr. Scarmazzo] have those?”
“I believe to grow for the 13 friends he told me –” the lieutenant began to reply, before being cut off by an objection.
The interruption had come from Assistant United States Attorney Elana Landau, who protested that Capozzi’s question had called for speculation. Judge Wanger sustained her objection, but the prosecutor wouldn’t always be so lucky.
When Capozzi asked the witness how many recommendations had been found, Landau interrupted again. “It goes to California law,” she said with quiet confidence.
After just a moment’s thought, Judge Wanger overruled the objection. “That isn’t the point of the question,” he explained. “The question is about what is happening at the scene.”
Going back to the inquiry, Ormonde replied that thirteen recommendations had been found and that he had taken pictures of them for evidence. When asked, he also acknowledged finding a grower’s certificate.
Capozzi then asked if Scarmazzo had been arrested but not convicted, and this inspired another objection from the government. Landau was challenging the relevance of the question, and she won the judge’s support this time. Undeterred, Capozzi rephrased and asked again, only to watch this query meet the same fate.
His efforts were renewed by Robert Forkner, who served as counsel for Montes. In a cross-examination pestered by the now-familiar objections, questions about criminal charges were put to the witness with emphasis. The government successfully blocked each one, but the defense attorneys nonetheless managed to highlight the idea that Scarmazzo might somehow not be guilty of the grow he had so openly admitted. And more than any other jurors in comparable federal trials, the sixteen men and women in this jury box had heard why and how that was possible.
But, of course, it wouldn’t hurt to reinforce it…and Forkner did precisely that. The defense attorney soon maneuvered himself into a squabble that repeated the words “medical marijuana” to the jury almost to the point of becoming a hypnotic chant. The dispute was over whether the witness had used that phrase in describing the marijuana from the apartment.
Forkner only had to articulate half a sentence, asking, “When you referred to it as ‘medical marijuana,’ what –”
Then the objection came, with Landau claiming he was misstating the testimony, followed by the Ormonde’s repeated denials that he had paired those words on the stand…and, after a review of the transcripts, an admission by the witness that he had used this term when talking about the recommendations. Each step in the process brought a new round of the chant: medical marijuana, medical marijuana, medical marijuana…
On redirect, Landau was brief. Her finale consisted of having the witness read from the recommendations, demonstrating the fact that a patient must sign and acknowledge the fact that marijuana is illegal under federal law. Ormonde was then excused from the stand.
The discord between the two sides was becoming troublesome, and with the jury sent away on a break, Judge Wanger set about clarifying things. The turning point, the judge noted, was when the prosecutor got upset about the questions over whether the detainment led to arrest or release, and whether this was followed by investigation or any criminal charges relating to the incident. In the judge’s view, however, the government had no standing to complain about the questions.
“If the government wants not to refer to such matters, you have to stay out of those areas,” Judge Wanger reasoned. “The witness offered that he detained Mr. Scarmazzo.”
But Assistant U.S. Attorney Kathleen Servatius was focused on her general dilemma. “By asking those questions, some facts are going before the jury that will never be fully explained,” she said earnestly.
The judge gave her the same answer that had frustrated her entreaties for three days in a row. “If it’s part of what’s sold in the business, then its relevant.”
Servatius then fumed, declaring that the apartment grow was for Scarmazzo and his 13 friends, and not part of the CHC. The continuing criminal enterprise charge had become a vehicle for talking about certain aspects of medical marijuana law, and now the defense was packing that vehicle to capacity and building it up to full speed.
But Judge Wanger just gave her the same logic as he had before. “As you know, a co-op is illegal under federal law,” he told Servatius, “but we permit it as evidence of business.”
Officer Kurt Saalfeld
Watchers in the gallery had been hungry for an undercover cop, but Kurt Saalfeld walked into the courtroom wearing his uniform from the Modesto Police Department and killed those hopes. Even if he hadn’t been in uniform, though, it would have been a stretch to imagine Saalfeld convincing anyone he wasn’t a cop. He had a round face with a small moustache, and stood solidly on a stout frame.
Or perhaps he played the part of a small city police officer a little too well…
Whatever the case may be, Saalfeld was a patrol officer back in May 2005, when he stopped a silver Dodge Durango containing both defendants. He testified that he stopped the vehicle because the passenger, who turned out to be Montes, hadn’t been wearing a seatbelt. The odor of marijuana coming from the Dodge was excessive, according to Saalfeld, and so was the amount of cash he saw strewn throughout the car. The officer had the young men step out of the car and called dispatch to send a K-9 unit. But when Officer Jamie Cox arrived on the scene with his drug-sniffing dog, the pair had a hard time ferreting out anything of substance.
About the cash, Saalfeld recalled, the defendants told him that they worked at a marijuana store on McHenry Avenue and they were on the way to the bank to make a deposit of business proceeds. The currency had totaled approximately $40,000 when counted, according to the witness, and had been in small denominations like $10 and $20 bills.
On cross-examination, Forkner wanted to know about the receipt books found in the vehicle. Saalfeld admitted to seeing them but only looking at a few of them, since there had been enough of them to fill up two big garbage bags. He recalled that, in the few receipt books he looked through, the amounts designated on each individual receipt had ranged from $160 to $300. But when he was asked whether the amount of money specified by the receipts added up to the amount of money found in the vehicle, the witness drew a complete and total blank.
“Are you having difficulty remembering because you didn’t write a report?” Forkner wondered.
Saalfeld said that he wouldn’t have written a report because it was just a traffic stop.
“So you let them go?” the defense attorney asked.
“No,” Saalfeld replied. “I cited a seat belt violation, then I let them go.”
Next, Forkner tried to get the witness to do some mathematical estimates with him. Saalfeld was not enthusiastic about the process, but the defense attorney was determined to show that there was a reasonable likelihood that the receipts would add up to approximately the same amount of money that was in the vehicle.
Forkner didn’t get very far, however, as his speculative math gave the government too many opportunities for successful objections. After all, Saalfeld had testified that he only looked at a few of the estimated 2500 receipts found in the vehicle. If he was to extrapolate from that limited set, he would have to have some reassurance that the ones he had seen were generally representative of the whole pool of receipts. It was an impossible task, prompting questions from Forkner that never got answered.
“Did the books you looked at look different than the books you didn’t look at?” was his last and most baffling inquiry on the subject. When it too was killed by an objection, Forkner switched gears.
“Many months later, you were asked by somebody to remember and write a report,” the defense attorney attempted.
“Yes,” Saalfeld offered back, answering right before Servatius’s relevance objection was sustained.
“Who asked you?” Forkner questioned the witness quickly, eagerly…but vainly.
“Objection,” Servatius cut in. “Relevance.”
Judge Wanger sustained it without comment.
“Is that common to have that happen?” Forkner asked.
Servatius made another objection on the grounds of relevance, and this time it was overruled. The judge wanted to hear about what was common practice and what wasn’t.
“It’s happened before,” was all Saalfeld would give.
But Forkner had made his point, summoning specters of doubt, and he seemed pleased with himself at the conclusion of the questioning. Then again, it’s not unusual for Forkner to seem pleased with himself.
Officer Jamie Cox
When Jamie Cox of the Modesto Police Department gets mentioned, it’s almost unfailingly paired with Buddy, the name of the black lab trained to sniff out drugs for the department’s K-9 unit. The pair was called in for the May 2005 traffic stop involving both defendants, but only Cox could make it to the witness stand to testify about it.
On that date, Cox said, he did the typical pattern of activities with the dog – first checking the exterior of the vehicle for hazards, then starting at the driver’s side and leading him around the exterior. According to Cox, Buddy alerted during the walk along the exterior, giving the sign that there were drugs in the vehicle. Buddy was apparently very sensitive to the back end of the vehicle, where he alerted several times. In the cargo area inside, however, Cox found only “very small remnants of what looked to be marijuana” sprinkled around.
The witness testified about the big bags of receipt books containing handwritten receipts, but he didn’t know the dollar amounts they were written for. He did not appear confident about his guesses on the quantity of receipt books, but estimated a range of 50-100 nonetheless. Regarding the cash, he reported seeing it in the map pockets, the glove box, and the center console. He also remembered Scarmazzo saying that he was on his way to the bank to deposit the money. However, he did not count the currency or recall the denominations of the bills.
All in all, the witness’s involvement in the investigation looked like it was effort wasted for both man and beast.
Officer Paul MacDonald
Paul MacDonald, an officer for the Modesto Police Department, was doing patrol duty in the early morning hours of September 7th, 2005, when he got called to respond to a local hotel. On the witness stand, he testified briefly about the experience, and although it had been a relatively inconsequential occurrence, MacDonald had a serious face that seems to naturally convey more gravity than is fitting. His glasses magnify the effect, as does his barely-graying hair. When he testified about going into cover formation in the hallway while two other officers made contact with Scarmazzo by knocking on the door, it sounded like an operation of most extreme peril.
As MacDonald said on the stand, Scarmazzo came out of the room and spoke with the officers, and when they informed him they were going to search the hotel room, no fuss occurred. When officers saw a small baggy of “suspected marijana” and a duffel bag near the bed containing $30,000 in cash, Scarmazzo reportedly offered explanations. MacDonald said he heard Scarmazzo tell another officer that it was proceeds from a dispensary.
When Forkner asked about receipts, the witness verified that there had been receipts, but that another officer had gone down to get them from the car.
For his part, Capozzi contributed a pair of crucial questions.
“Did you arrest Mr. Scarmazzo?” the attorney asked.
“No,” MacDonald said plainly.
Capozzi then asked, “Did he show you his medical marijuana card?”
“No,” MacDonald said, then clarifying, “I found it.”
It had been another of the day’s many detours into police encounters that had gone nowhere, in spite of the possession and cultivation of marijuana, as well as the transport of large amounts of cash money. With so much open talk about medical marijuana, the reason for not arresting or filing criminal charges could not possibly be lost on the jury. And, so, one had to wonder whether these witnesses were helping or hurting the government’s case.
Officer Brian Chandler
Brian Chandler of the Modesto Police Department was far and away the smallest of the day’s witnesses, but he was also the most unrelenting.
For Servatius, who handled the direct examination, he was a perfectly cooperative witness. He easily took her back to the events of October 18th, 2005, when Montes had been misidentified and pulled over on suspicion of a stolen vehicle.
What had happened, Chandler explained, was that the police department had gotten a call about a suspicious person breaking into a vehicle that resembled the one the defendant was driving at the time. When the officer handling the stolen car report spotted Montes driving a vehicle of similar description, he called Chandler in for backup during the vehicle stop. When the sirens were lit up, however, the witness said that Montes kept driving while bending down to reach below him. According to Chandler’s testimony, the car turned a corner and pulled over shortly afterwards, but Montes was still moving and reaching below.
“It makes the hair on the back of your neck stand up,” the witness said, describing his reactions to the suspicious movements. “You fear for your safety. We didn’t feel comfortable getting the driver out, so we brought him back to us.”
By this term, Chandler meant that Montes, who was later cleared of all suspicion of a stolen vehicle, was ordered out of his car by two armed officers who had him back up towards them while they held him at gunpoint. The driver’s side door was left open, and so, after patting Montes down for weapons, Chandler checked the vehicle. He claimed that he then saw an inch and a half of a semiautomatic handgun poking out from under the driver’s seat, and smelled marijuana coming from the vehicle, so he and the other officer called for backup. A K-9 unit with Officer Jamie Cox then arrived, but Chandler reported that no marijuana was found in the car. “Maybe particles,” he said, shrugging.
Chandler was then handed over for cross-examination by the defense. Capozzi passed up the opportunity, as the witness wasn’t relevant to his client, but when Forkner started questioning Chandler, the two had a clash of wills that would ultimately go unresolved.
Of course, Forkner had been provocative from the start. “After you brought Mr. Montes out at gunpoint…didn’t he tell you he had a firearm in the vehicle?” the defense attorney asked.
“Yes,” Chandler granted.
“And wasn’t it exactly where he said it was?” Forkner continued.
The witness had stiffened already. “I don’t recall,” he replied.
Forkner’s position was this: since the magazine for the firearm had been found in the glove compartment, his client couldn’t possibly have hidden it there while he was in the process of being pulled over. From Chandler’s descriptions of the movement in the car, Montes may have been able to stash it under the driver’s seat. But, the defense attorney argued, Chandler certainly would be seeing different movements from Montes if he had reached all the way across the front of the car, opened the glove compartment, placed an object there and then closed it. Forkner was in full pantomime mode for this session, demonstrating extensively the movement that was required for each step. Then, he contrasted those positions with what Chandler had described and demonstrated as being Montes’s movements while being followed by the police.
But Chandler refused to acknowledge that he should have seen the action itself, or at least different movements from Montes, if the magazine had been slipped in the glove compartment right before the traffic stop. “He’s a bigger guy,” Chandler argued about Montes. “He could have reached anywhere in the car.”
Since everyone in the courtroom except the defendants’ daughters was bigger than the witness, Chandler’s excuse got a few quiet chuckles in the gallery. What followed were several repetitions of the same concepts, tweaked only with minor re-phrasings.
“But you didn’t see him reach anywhere else,” Forkner pointed out.
Chandler was showing signs of exasperation now. “I saw him moving down,” he repeated. “He could very well have then reached over into the glove compartment.”
The defense attorney was tenacious. “Did you see him reach into the glove compartment?”
“No,” Chandler replied. Nonetheless, he claimed over and over again that Montes’s passenger seat would have blocked his view of the glove compartment.
Then, in his own evasive movement, Chandler tried to sidestep the issue by saying he hadn’t found a magazine in the vehicle. Forkner, incredulous, pulled out a copy of Chandler’s own police report and had him take a look at it. The witness, when pushed, responded that the words in the report were “a magazine was located in the glove compartment.” After being asked to elaborate on the difference, he explained, “It doesn’t say I retrieved it.”
But Forkner soon regained control of the session, taking Chandler past the point of exasperation and into the sounds of anger – sounds which, in the witness’s high-pitched voice sounded too unbearably comical that not all giggles in the gallery could be suppressed.
“So,” the defense attorney began, “the handgun was found in a place consistent with where Mr. Montes’s hands were?”
“And the magazine was found in a place inconsistent with where Mr. Montes’s hands were?” Forkner proposed.
The witness’s relief evaporated, becoming the metaphorical steam that poured out of his protrusive ears. He repeated a series of all his prior statements in a row, but more loudly and adamantly sounding out the syllables on emphasized words. “No, I still have to disagree with you on that… He could have reached anywhere when he reached down…my view would have been blocked by the passenger seat…I disagree…”
“I have nothing further,” Forkner said breezily before taking his seat and allowing the witness to be excused.
Officer Robert Laxton
Modesto Police Department Patrol Officer Robert Laxton followed Chandler on the stand, and the contrast between the two witnesses was like night and day. Laxton was not only tall and deep-voiced, but he displayed an even temper and a simple friendliness. Without the dramatics of Chandler’s account, Laxton quite casually described arriving at the vehicle stop and taking custody of the seized evidence. Of course, Montes was already handcuffed and shut into the back of the patrol car by the time Laxton arrived, so the dangerous part was long over.
According to Laxton, the officer at the scene handed him an empty Glock handgun and a magazine holding bullets. Servatius fished a box out of one of the giant evidence carts her helpers had wheeled into the courtroom that day, then went to the stand and held it open for Laxton like a wine steward offering him a moment to examine the label of a selected bottle. The officer agreed that the gun and magazine in the box were those he had been given at the scene.
The other item Laxton took into his custody that night was a bag of cash allegedly found in the backseat of Montes’s car. The witness testified that he photographed the cash and then counted it, coming up with a total of $48,000. That admission ended the direct examination, and Servatius sat down, leaving the witness to the defense.
Forkner soon discovered that, unlike the previous witness, Laxton had a malleable will. It made him an easy target for Forkner’s first decisive cut into the credibility of government witnesses.
The defense attorney easily got Laxton to agree that the firearm had been registered to Montes, but Forkner couldn’t get the witness to bite when he asked about the gun being locked in the glove compartment. The officer said he just didn’t know.
Laxton did, however, remember that the money was later returned to Montes by the police department, and he also recalled that the cash had been rolled up into individual bundles of a thousand dollars each. Each bundle, the witness claimed, had a wrapper on it. When the defense attorney asked if anything was printed on the wrappers, Laxton said that they had “bank writing” on them.
With a bit of swagger, Forkner presented the witness with an evidence photograph of the seized currency. It was, Laxton agreed, the one that was taken right before the cash was counted and taken into evidence. And the witness was also asked to acknowledge what was obvious to anyone with a view of the courtroom display monitors: the cash was bound up in simple rubber bands only.
“So where are the wrappers?” Forkner demanded.
“I’m trying to remember the wrappers,” Laxton mumbled. “It’s been a long time,” he added.
The witness had a piteous look on his face, appearing quite forlorn at the realization of his mistake. But the sad expression was no hindrance to Forkner, who went in for the final kill. “Why would you remember wrappers with bank writing if it was just a rubber band?” he asked, feigning no modesty in his triumph.
“I don’t know,” Laxton said feebly before being excused from the stand.
It’s Not Too Late For Entrapment
The local law enforcement witnesses were done for the day, but their presence had a lasting effect nonetheless. Suddenly, Judge Wanger resurrected the argument that the defendants had been victims of entrapment. The judge who handled the case pre-trial had never made a ruling on the defense’s motion, and Judge Wanger was willing to consider it if Forkner could provide a showing. Forkner has long held that the federal government used Modesto city officers to tell the defendants that selling medical marijuana was permitted. He claims that the city used the guise of potential regulation to get business information about Montes and Scarmazzo’s dispensary, the California Healthcare Collective, only to hand this information over to federal agents and even work with them on the bust. The only trouble is, the defense attorney has been having a hard time proving it.
According to the prosecutor, the government has had similar difficulties. “I started a grand jury investigation,” Servatius claimed. All I ever got was gross business receipts…nothing like what he’s saying about the City Attorney.” But, of course, it mattered little to Servatius beyond that point. “Whatever the City of Modesto did with the California Healthcare Collective has nothing to do with this case,” she added. “We came in because they broke federal law.”
Judge Wanger wondered aloud if it would be helpful to have the federal agents in the case answer whether there had been a connection with Modesto, and to what extent.
Forkner’s reaction, predictably, was just the opposite. He proposed running out into the hallway at that very moment and seeing if there were any DEA witnesses for the case still hanging around. If so, he suggested, they could be brought in to answer right this very minute.
Servatius was taken aback, but she came out swinging and demanded the defense attorney stop his “finger-pointing.” Then she blamed the conflict and agitation on him. “Things get heated because of Mr. Forkner’s overzealousness,” she asserted.
Judge Wanger ignored the squabbling and focused on getting Forkner to describe to him all the evidence he had on the entrapment claim. It would take more than just cross-deputization between local and federal agencies to persuade him, the judge warned.
Forkner reported that he had subpoenaed documents from the Modesto City Attorney about all of their interactions with the federal agents, but his request was denied because the information was supposedly privileged. “We need to figure out when this federal investigation started and that’s not privileged,” Forkner concluded.
That declaration was enough to rouse the judge. “Yes, I want to know right now!” Judge Wanger said eagerly. “Get it on the record,” he urged Forkner. As for Servatius, the judge instructed her to make inquiries to the DEA to find out if they requested assistance from local agencies.
A smoking gun may be difficult to unearth at this late stage in the case, but Forkner is passionate about finding the documents or declarations necessary for proof. After all, it seems to be a task perfectly suited for a man with an alleged overabundance of zeal.
The trial of Luke Scarmazzo and Ricardo Montes will resume in the courtroom of Judge Oliver Wanger at 8:30am on Tuesday, May 6th, 2008, at 2500 Tulare Street in Fresno, CA.
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