FRESNO, CA -- After a long stretch of marginally relevant law enforcement testimony, the trial of medical marijuana dispensary operators Luke Scarmazzo and Ricardo Montes finally began to offer some attention-grabbing witnesses. The government had nearly lulled the gallery to sleep with hour after hour of evidence about tangential and legally inconsequential traffic stops on the defendants. Following that, prosecutors had presented narratives on stake-out operations that were as dull and slow-paced as doing the surveillance in real-time, and accounts about residential searches that were equally laborious in their recital. But when Stanislaus County Sheriff’s Deputy Jesse Tovar took the stand, the courtroom got a taste of something new. Tovar had a different plot for his story: the undercover infiltration of the defendants’ dispensary, the California Healthcare Collective.
The eyes that followed Tovar to the witness stand saw a man who was slight and dark, and carried himself with remarkable self-assurance. There were things about him that hinted at youthfulness, like his spiky hair and a pair of ears that stuck out just barely enough to be noticeable. But Tovar was older than his energy and alertness would suggest. His face, though it conveyed a smooth charm, was worn in a way that also communicated experience. Whether by nature or artifice, he kept his left eyebrow in a faintly upraised position, and it gave him quite a distinctive look. On a less handsome face, such asymmetry would have been unflattering, and with a less engaged personality, it would have created a sense of detached cynicism. But on Tovar, the raised eyebrow implied acuity, giving an impression of insight to the words he spoke on the stand.
While being questioned by Assistant U.S. Attorney Elana Landau, the witness gradually revealed his role in the investigation of the CHC. He directed his answers toward the jury, turning to speak to them in a way seldom used by novice witnesses. At the time of the investigation, he explained, he had been working as an agent in a law enforcement task force called the Stanislaus Drug Enforcement Agency. It was a group of local and federal agents whose functions he described as “not street level.” Instead, he told the jurors, the SDEA was “more interested in distributors and manufacturers of, say, methamphetamine.”
When asked to explain his training and experience, Tovar went straight back to the meth-talk. As he chatted on about the special programs he had completed in methamphetamine enforcement, including a two-week course devoted entirely to the drug’s manufacture, the jurors were beginning to look a bit mystified. It had already become apparent that Scarmazzo and Montes were being tried by a judge who was more familiar with methamphetamine cases, but it was now quite clear that the defendants had been investigated by agents who were trained and directed to uncover meth labs rather than medical marijuana dispensaries.
Landau cheerfully steered her witness back to the relevant drug, prompting him to talk about his training with regard to marijuana cultivation. As it turned out, Tovar had a lot to say about his education and his skills regarding this subject. He had taken a weeklong class about locating marijuana grows from the air, and then spent four years participating in the notorious eradication program known as the Campaign Against Marijuana Planting, or CAMP. Tovar also declared a great deal of knowledge and training regarding indoor marijuana grows, and maintained that he had investigated over fifty of these operations. This was a claim that would become more pertinent later on, when he would testify about searching a grow house associated with the defendants. First, however, the prosecutor guided her witness into the story of infiltrating the CHC.
To start out, Tovar briefly went over the definition and the procedures for undercover drug purchases. Calling such buys “tools used in investigation,” the agent described putting on plain clothes and an audio-transmitting wire before going to a person or place to try to purchase a controlled substance. When Landau asked about the reason for such a stealth operation, Tovar responded, “They wouldn’t sell to us otherwise.”
It was a reply that quickly got an objection from Montes’s attorney, Robert Forkner. “It assumes facts not in evidence,” he argued.
Judge Wanger turned to Tovar, and asked if his response was based on his experience or his speculation, and when the agent indicated the former, the judge overruled the objection. “You can cover it on cross,” he told the defense attorney. That reassurance was an exercise in vanity, however – Forkner had not been one to seek clearance for the inquiries he made during cross-examination, and he wasn’t about to start. But he did have to take his seat and wait as the witness’s story finally blossomed in front of him.
As Tovar testified, his busy undercover day on the medical marijuana scene had been June 22nd, 2005. This was when he visited two dispensaries on the same street – the CHC and a facility called The Green Pole, which were both located on Modesto’s busy McHenry Avenue. Of course, Tovar did not go into the operation unprepared. As part of the background work on this assignment, the agent had gone to the trouble of obtaining what he termed a “doctor’s note for the use of marijuana.” He described making an appointment with a traveling physician, with whom he had a five-minute interview that resulted in the issuance of a recommendation. According to Tovar, he had cited “knee problems” but was not given a physical examination and did not even mention medical records. Instead, his testimony suggested that he had merely named an excuse and handed over a $155-$160 fee in exchange for a doctor’s written approval of marijuana use. The account inspired vigorous whispering across the defense table, but the agent continued with his story uninterrupted.
Arriving at the CHC, Tovar said he encountered two individuals guarding the business from outside, but he was admitted after showing his doctor’s note. He presented the same document to the receptionist once inside, thereby gaining admission to the back room. Tovar told the jury that this was where marijuana was being sold – processed buds were laid out in a glass display case under a sign that indicated different types of marijuana and the corresponding prices. He also reported seeing 7 to 10 small plants being kept under a grow light, but drew a blank when the prosecutor asked him about other products for sale.
“They may have had edibles,” Tovar attempted. “I don’t recall.”
“I would count that,” Landau smiled. “I mean, like shoes, shirts, school supplies?”
The agent said he recalled no such items for sale in the back room. He appeared to only remember the wrap-up of the operation. With the help of one of the three men working behind the counter, Tovar alleged, he bought an eighth of an ounce of marijuana, then went to turn the purchased item and the receipt over to Modesto Police Detective Doug Ridenour.
As Landau concluded her direct examination, observers got a moment to glance over at Ridenour live in the flesh. He had been the prosecutors’ main helper throughout the trial, sitting at their table so he could fetch evidence and witnesses whenever necessary. And Ridenour was certainly deserving of a second glance – during the first week of trial, he had gone instantly from the image of a shaggy-haired slacker to a clean-cut preppy look, leaving his watchers wondering what kind of undercover investigation had just concluded elsewhere.
But there wasn’t long to gaze over at the ever-morphing detective, because Forkner was eager to question Tovar about his “doctor’s recommendation that states a medical necessity for marijuana.” But eyes went straight back over to Ridenour once he was named as the one who had asked Tovar to do the undercover buy. Amidst objections from Landau, Forkner needled the witness in a vain attempt to reveal a higher chain of command. The only other information Tovar offered about the set-up for the operation was that Ridenour had also picked out the physician who issued the recommendation – a Dr. Bennett from Northern California.
“Can I see your medical marijuana recommendation?” Forkner’s question was much more like a demand.
Tovar seemed momentarily off guard. “I don’t have it.”
“Where is it?” the defense attorney persisted.
“At home,” Tovar replied.
“At home…” Forkner echoed the witness contemplatively, then leapt with a sudden question, “Do you still use it?”
“No,” Tovar answered, “it’s expired.”
The defense attorney then asked about other specifics regarding the recommendation. Had the agent told the doctor that he had tried other therapies and medications, which weren’t working to relieve his condition? Had he said to the doctor that marijuana was the only thing that alleviated his pain? Had he reported that he had seen other physicians about the condition? Tovar answered in the negative to all of these questions.
Forkner tried another one, “Did you ask him to give you a written recommendation that allows you to legally –”
Landau promptly objected on grounds of relevance, saying that the defense attorney’s half-uttered inquiry was addressing state law. After the question was rephrased, as ordered by the judge, Tovar replied that he had merely filled out the paperwork that would allow him to receive a doctor’s recommendation. But Forkner’s very next utterance landed him in trouble again. “What kind of misrepresentations did you put on the paperwork?” he asked the witness pointedly.
The prosecutor cut in with another successful objection, but, in a strengthening pattern, Forkner’s next question pleased her even less. “Once you fraudulently obtained this marijuana –” the defense attorney began.
“Objection!” Landau said, her chipper tone finally going sour.
“Let the question be asked,” Judge Wanger advised.
“Once you fraudulently obtained this medical marijuana,” Forkner repeated with emphasis, “what did you do?”
At the first moment of opportunity, Landau renewed her objection. She claimed that the defense attorney’s question involved a legal opinion, and the judge agreed with her assessment. “You introduced a legal representation for fraud,” Judge Wanger explained.
It was then that Tovar made a curious admission. “It wasn’t a lie,” the agent said of his claim to the doctor. “I injured my knee playing soccer years ago.” Nevertheless, Forkner quickly established that the injury had never been treated and was probably just a temporary twist, after which Tovar’s argument of truthfulness appeared to pale.
But the defense attorney wasn’t done with the witness. For the sake of emphasis, Forkner asked a few questions that appeared to be aimed at beating the term ‘medical marijuana recommendation’ into the jurors’ heads. “So you were denied access until you showed your medical marijuana recommendation?”
“Once I showed my documentation,” the agent responded, “I was allowed in.”
Forkner continued, “Was the receptionist also shown this medical marijuana recommendation?”
“Yes,” Tovar answered simply. He also easily acknowledged that the CHC’s receptionist had placed a call to Dr Bennett.
Forkner embarked on a lengthy compound question, asking if the receptionist had confirmed Tovar as a patient of that doctor “who had a valid recommendation for the use of medical marijuana for the treatment of a specific ailment.” Landau objected in a flash, saying that the question called for speculation. As the prosecutor pointed out, Tovar could only answer questions about the end of the conversation he was able to hear.
“I’ll rephrase,” Forkner offered, turning back to the agent. From there, he confirmed that the receptionist had appeared to ask the doctor if the witness had a valid medical marijuana recommendation.
The defense attorney also had a few more questions about the back room of the dispensary, but Tovar was just as resistant with him as he had been under direct examination. He couldn’t remember any creams or lotions for sale, and also denied any recollection of shirts for sale.
“California Healthcare Collective shirts with a logo…?” Forkner asked, prompting the witness.
“No,” Tovar replied, incredulous. “How do you remember shirts?”
Forkner pulled from evidence a law enforcement photograph of lotions for sale at the CHC, showing it to the witness and asking whether the items depicted had been in the dispensary when he was there.
“No,” Tovar said with certainty. “I would have remembered seeing those.”
Slowly, the defense attorney finished up with questions for the witness, but he was far from satisfied about the issue. “Do you have Dr. Bennett’s phone number?” Forkner asked abruptly, his pen out and ready to record any digits the witness recited. But Tovar offered none, and, for the record, the defense attorney vowed to get the information from Ridenour instead. After all, Forkner had a problem to solve – one that required putting the doctor on the stand, or so he claimed once the jury had left the courtroom for a break.
“The government has now opened the door to a medical necessity defense,” Forkner announced at first opportunity. “Now we are entitled to call doctors, patients and experts, and show that you need a medical necessity to get a recommendation for medical marijuana.”
Judge Wanger, however, stood firm. “A medical necessity defense is not relevant,” he maintained.
The judge then reiterated that medical marijuana information was being admitted only as it related to a defense on the continuing criminal enterprise charge. Since incorporation, licensing, and legitimate business practices were relevant to that charge, the defendants could talk about the nature of the CHC’s operations in a limited way to prove it was a valid company. “If it’s a total sham, it’s more likely to prove criminal than something that’s incorporated,” the judge stated regarding the CHC.
As Forkner argued it, however, Tovar’s testimony about Dr. Bennett made the CHC look like a sham business because the shoddy examination discredited the concept of medical marijuana. “The implication to the jury is that it’s all a sham, it’s all fake,” the defense attorney asserted, hijacking the judge’s vocabulary.
“I found out for the first time today, after a year and a half on this case, that [Agent Tovar] went to an actual doctor,” Forkner continued heartily. “I have to add Dr. Bennett to my witness list.”
“I thought they all got doctor’s recommendations in order to do these buys,” Judge Wanger reflected about the undercover agents.
Forkner interjected, disagreeing vehemently, recalling that he had referenced fraudulent recommendations during jury selection and in his opening statement. Assistant U.S. Attorney Kathleen Servatius, however, offered the defense attorney a small, false comfort. “There was still deception,” she said about Tovar’s recommendation. “He wasn’t going to use the marijuana.”
Ultimately, however, Judge Wanger decided to let Forkner make a proffer for calling the doctor as a witness. The defense attorney’s words of gratitude coincided with the prosecutor’s continued protests and warnings. “What goes on in California law is not relevant,” she persisted desperately.
But Servatius did not go away empty-handed…not by a long-shot. While the judge agreed to consider the defense’s proposed witness, he also agreed to the government’s request to keep the word “medical” out of references to the marijuana that was seized. It was a decree that would have a huge impact on the language of the trial.
Forkner disputed the decision, protesting that the word “medical” is on the business receipts, but his argument suddenly went nowhere. “It’s not like medical is some kind of cannabis, like it’s cannabis sativa or indica or some variety,” the judge resolved. “It’s about intent, purpose, use.”
With that declaration, Judge Wanger made a significant change to the tone of the proceedings. Whether it will be enforced as tightly as it was enacted, however, still remains to be seen. A protest requested by Luke's Mom will be held in front of the federal court building, 2500 Tulare, Fresno, CA, at noon, Thursday, May 8, 2008.
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