Cannabis Yields And Dosage
Cannabis Yields And Dosage is the authoritative study of the science and legalities of calculating medical marijuana. By Chris Conrad
|
Home  Court Reports CHC Government Rests Its Case in CHC Trial, Shows Scarmazzo Rap Video
|
Government Rests Its Case in CHC Trial, Shows Scarmazzo Rap Video |
|
|
|
|
Written by Vanessa Nelson
|
|
Thursday, May 08 2008 |
FRESNO, CA -- The government’s case against California Healthcare Collective operators Luke Scarmazzo and Ricardo Montes concluded yesterday afternoon, allowing the defense to begin calling its own witnesses this morning. After days of tediously thorough evidence, a build-up to climax began with testimony from undercover officers who infiltrated the medical marijuana dispensary, then continued on with a series of former friends and co-defendants who testified against Montes and Scarmazzo. A final wave of financial documents came into evidence as the case neared its conclusion, pushing along a surprisingly dramatic finale: a controversial screening of the defendants’ rap video.
Stephanie Falcon
The defense was caught off-guard by the arrival of the next witness, a fetching young brunette who came to the stand neatly groomed and perfectly poised. Stephanie Falcon, an intelligence researcher for the Drug Enforcement Administration, had been a surprise to the defense attorneys…and, as usual, Forkner didn’t take it lying down. But before being challenged by the ardent defender, Falcon briefly described her history with the DEA. An injury during training had derailed her plans to become an agent, and so Falcon had trained to become an intelligence specialist instead. Her job required her to handle data analysis assignments from the DEA…and with this particular investigation, it meant processing a mountain of the receipts that were ubiquitous in the CHC case.
According to Falcon, she had been provided with three boxes’ worth of documents seized from the garage of the Edgebrook Drive property during the September 2006 search. The boxes were filled with receiving records, sales orders and purchase orders for her to mathematically organize.
It was no enviable task. After only a couple hours of dealing with the CHC’s financial records, many in the gallery had been grumbling about the dullness and monotony. To painstakingly review and record the figures of each document into a spreadsheet, of course, took a much higher tolerance for tedium. Although the volume of receipts was formidable, defense attorney Robert Forkner argued that the young researcher had not been given enough records to analyze. Falcon’s spreadsheet only included data on documents that had been seized by the DEA, and since these were incomplete business records, the defense attorney claimed that the analysis presented a skewed picture of the CHC’s finances.
Missing from the seized documents were receipts from all of January and February of 2005, and there was only a single one for 2004. This deficiency left Falcon with sales orders that covered just 75% of the time period that the CHC had been in operation. Even more troubling was the dearth of purchase orders amongst the documents. Forkner calculated that Falcon was given purchase orders that covered a mere 15% of the time frame that the CHC was open. As the defense saw it, this disparity made for an incomplete picture as well as a slanted one – with more extensive records of sales than of expenditures, the result was likely to be a gross exaggeration of profits.
In spite of this argument, Forkner gained little ground in his attempt to block the DEA researcher’s testimony. When he suggested that Falcon ought to have reviewed accountant records and tax returns in order to give a more accurate view of the CHC’s finances, Assistant U.S. Attorney Kathleen Servatius made a series of successful objections on the grounds that the defense attorney was referring to items not in evidence. Nonetheless, Forkner’s tenacity was rewarded in that it served to reinforce to the jurors the idea that they were about to hear skewed figures.
Servatius then guided her witness through the presentation of her calculations. The sales receipt totals could be given by monthly and yearly breakdowns, but the emphasis was on the grand total for the entirety of the CHC’s operations: a figure that hovered just slightly under $10 million. By contrast, the purchase books analyzed by Falcon barely totaled over $800,000. The jury had seen an abundance of evidence about the defendants’ financial success, but the profit margin suggested by this analysis seemed incredibly high by any standards.
As the researcher’s time on the stand came to an end, both sides battled it out for the last word. Forkner’s parting shot was an admission from Falcon that she would defer to an accountant regarding her financial analysis, but Servatius got her witness to change her stance in the instance that the accountant came up with the same numbers over and over again. This hypothetical tug-of-war saw Falcon to the end of her testimony, and the diligent number-cruncher was excused.
Agent Brian Barger
When called, the government’s perennial witness Brian Barger once again walked the familiar path from his seat at the prosecutors’ table up to the stand. After being reminded by Judge Wanger that he was still under oath, Barger dutifully served as the vehicle by which Servatius was able to introduce some final pieces of evidence.
Earlier in the day, the defense had stipulated to a long list of bank records involving several different accounts for the defendants, the CHC and Militia Music. As it turned out, Barger had also created a document that showed the funds deposited into Scarmazzo’s bank account directly from the CHC account. These figures varied without any discernable pattern, ranging between $13,000 to nearly $20,000 per month, for a grand total at just under $300,000. Deposits into the Militia Music account exceeded $50,000, according to Barger, but the agent later admitted that these funds could possibly have been generated by Scarmazzo’s rap performances and CD sales.
During the time period of the CHC’s operation, the total deposits to Montes’s bank accounts were substantially less than those made to his co-defendant. As Barger calculated, Montes saw an influx of approximately $150,000 to his checking and savings accounts. This information was all given as a recitation of names, dates and financial institutions, and it felt like a boring oasis of tranquility in the midst of the chronic conflict between the government and the defense.
Predictably, the lull was only temporary, and disputes resumed once Barger began testifying about his own data chart for the CHC account. As the agent put it, he had gone through the bank statements and made a summary of relevant activity regarding deposits and withdrawals. And it was precisely this concept of relevance that rubbed the defense the wrong way. Noting that the withdrawals included on the summary document were chosen selectively, Forkner argued that it would be more accurate to include all the withdrawals listed on the various bank statements. Judge Wanger disagreed, and, out of the presence of the jury, he took an opportunity to explain his decision to allow the document as evidence. “This is not an accounting analysis,” the judge stated. “The purpose is to show that substantial income and resources were generated by the business at this time.” If the defense attorneys desired, he added, they could call a forensic accountant to the stand to attack the government’s financial documents. Forkner suggested that the bank statements themselves were sufficient proof of income, but Judge Wanger was unswayed. He stood by his decision to allow the government’s withdrawal summary, reiterating, “They are just showing the big items to make the point that income and resources are generated.”
Nevertheless, cross-examination quickly revealed that not all of the selected charges were big items. Defense attorney Tony Capozzi pointed out a payment for some $30 worth of dry cleaning, but Barger defended its inclusion in his list – it looked like a personal expense, he claimed, because the CHC didn’t appear to require uniforms on its employees. The defense attorney also challenged the inclusion of a Hampton Inn hotel stay costing approximately $170, but Barger said it was significant because it was a travel expense that didn’t appear to be business-related.
This was a more difficult position to take with regard to the charges from a gardening store, especially because the witness asserted that such supplies are associated with marijuana grows. “Wouldn’t that be a business expense?” Capozzi asked.
The question sparked a fierce verbal struggle with Servatius, which culminated in the defense attorney heatedly telling the prosecutor, “I’ll spit out some law too!” Judge Wanger promptly instructed the jury that questions asked by attorneys are not considered as evidence, and the cross-examination soon found its way back on course.
But controversy was never far behind, and it emerged once again when Capozzi asked about an ambiguous charge for something called “can you hear me now?” Barger didn’t know what the purchase was for, but testified that he included it because it was made in Las Vegas. To the defense attorney, this looked like an opening. “Did you investigate state laws in Nevada?” he asked the witness. Without pausing for more than a confused frown from Barger, Capozzi hurriedly continued. “State laws in California that are similar to state laws in Nevada –” As expected, an objection from Servatius put an end to all talk of Nevada, but the issue had been tangential for Capozzi. The defense attorney had set himself a clear task – find out why the September 2006 activity hadn’t been included in the account statements, or in the reports and summaries.
The raid on the CHC had been at the end of the month, so Capozzi reasoned that the time period ought to be considered when reviewing the financial information. The defense got nowhere with Barger on this issue. Capozzi tried straightforward questioning, eliciting only claims of ignorance from the witness. Forkner, however, could be relied upon to push the question as far as it would go. After asking permission to approach the stand, the intrepid attorney presented a document exhibit that Barger said he didn’t recognize. Of course, Forkner was eager to jog a memory. “Is it a $93,000 payment to the IRS in September 2006 that –” Servatius interjected, arguing that the witness had stated that he didn’t recognize the document. Forkner’s inquiry was effectively silenced, but not Forkner himself. The defense attorney continued to push and push about the absent month of records.
“Is there a reason you didn’t review September 2006?” Forkner asked
“We didn’t have it,” Barger answered simply.
The defense attorney was skeptical. “And you have no way of getting it?”
“I guess we don’t,” Barger shrugged.
Servatius stepped in to object, saying that the government did have a reason but she wanted to discuss it during a sidebar conference. The prosecutor got her request, and after returning from the bench, Forkner abandoned his line of questioning. This time, however, he began asking questions about the “Currency Transaction Reports” that are required by the IRS when depositing an amount of money exceeding $10,000.
“In all those records, did you find any deposits over $10,000 where there wasn’t a CTR filed?” Forkner asked.
Ultimately, however, Barger offered the defense nothing. “I don’t know,” he maintained. “I analyzed the documents…but I can’t think off the top of my head.”
But Forkner didn’t relent until he was blocked in a last-ditch effort to take the ledger up to the stand and show it to the witness. Servatius deemed the move inappropriate, and another sidebar ensued. After the attorneys returned from the impromptu conference, Barger was finally excused from the stand…but subject, like always, to re-call.
Officer Gary Martinez Barger’s seat was taken by an older Hispanic male with spectacles and a small, barely-graying moustache. This was Gary Martinez, an officer with 27 years at the Modesto Police Department, and he presented himself with a pleasant but sober demeanor. As Martinez revealed to Servatius, he had been serving on the task force called the Stanislaus Drug Enforcement Agency at the time of the defendants’ bust.
Shortly after the raid, on October 5th, 2006, Martinez participated in the search of two safety deposit boxes listed in Scarmazzo’s name at Wells Fargo bank. Guiding the narrative with photos, Servatius showed a picture of a machine that requires a user to punch in a number and give a scan of a matching thumbprint in order to gain access to the boxes.
Of course, these safeguards weren’t necessary for Martinez, as he was accompanying the agent who had obtained a search warrant for the boxes. Once opened, one of the boxes yielded $30,000 in cash, while the other was said to contain the curious figure of $100,010. On cross-examination, Forkner showed the witness the records for the safety deposit boxes, getting Martinez to notice that the defendant had used his real name and real address when filling out the forms.
“Do people who are trying to hide money put it in their own name and put it out there for the whole world to see?” the defense attorney asked, gesturing outwards expansively.
Martinez was quite a contrast to Forkner’s dynamic vigor. The officer was contemplative, and when he spoke, his voice was gentle and serious.
“Well, that’s a good question,” he remarked, continuing to mull over the question.
Finally, he decided that, in this case, a person is required to get the safety deposit box in his own name. When Forkner pointed out that a person could do it all through a friend, Martinez readily acknowledged that this was a possibility. He was equally agreeable to Servatius as well, who used her re-direct simply to reinforce that getting a safety deposit box is not putting your name “out there for the whole world to see.”
Through the officer, Servatius reminded the jury that private bank records are not usually available to law enforcement, and Martinez’s action had required getting a search warrant.
After this brief testimony, Martinez was excused from the stand. The government was now officially done calling witnesses, but to end its case there would have been anticlimactic. Besides, the jurors still hadn’t seen a hint of the thing they were warned about during voir dire: a “Hollywood-style” rap video featuring potentially offensive language and images, and starring none other than the defendant, Luke Scarmazzo.
As soon as the courtroom video displays began to load up a screen that said “Kraz,” those watching from the gallery perked up. They knew exactly what was coming. The Businessman Focused on the monitors in front of them, the jurors watched, engrossed, as Scarmazzo’s rap video “Business Man” played out in front of them. A woman in the front row began bobbing to the beat almost as soon as the music started. On the other end of the jury box, another woman scowled as though smelling something rotten.
On the screen, a dapper Scarmazzo declares himself a businessman to a skeptical legislative council, shows off a cigarette case of blunts as he rides in the back of a fancy car, walks with an entourage down city streets, conducts a board meeting of smartly-suited employees, and cultivates the adulation of every available reporter. In alternate scenes, a loose-haired Scarmazzo in a wife-beater openly displays his tattooed forearms, smokes on a living room sofa while his crew counts cash and packages marijuana, blows smoke straight into the camera, and encourages his listeners to “put your finger in the air and yell ‘fuck the feds!’”
Flashes of the well-groomed and nicely-attired Scarmazzo flash in and out as he enthusiastically flips off the camera. Contrasting and comparing alternating sets of selves is a key theme in the video, and the discourse of the imagery is rich in messages of integration. The dichotomy is further emphasized by a scene that shows Scarmazzo and his crew sitting on the sofas in front of the coffee table that holds a money-counting machine and piles of packaged marijuana. As the men lean in towards the camera, their casual clothes flash into business suits while their faces flash to masks of former presidents’ faces.
There were expressions of perplexity from some of the jurors, but most of the smiles were inscrutable – conveying amusement as easily as hiding nervousness or masking contempt. Surely Servatius recognized that playing the video was an intrinsically risky move. Image, music and fantasy each speak a powerful language, and, when combined, become the stuff of which dreams are made. To present such a world to the jurors required them to make an immediate transition into a state of mind connected only loosely to the cold realm of factual evidence in which they had been asked to function for the past week and a half. Reactions on this plane are human and influenced by a million slivers of varying circumstance – they are virtually unpredictable in their duration and direction, but almost certain in their visceral strength.
For Servatius, using the video was like playing with fire, but she appeared to be a confident and self-assured master of the flame…at least until the jury was excused for the day and she was hit with the startling realization of an irreversible misunderstanding. It began as perplexity. Capozzi had said he didn’t expect his client to testify, but Servatius noted that she was suddenly being presented with character testimony that would only be relevant if Scarmazzo was going to take the stand. Clarifying the issue, Capozzi announced his client’s intentions, “Based on playing the videotape, he will be testifying.” But the precise meaning of Capozzi’s message wasn’t spelled out to the prosecutor until later, while the attorneys were discussing another witness. Robert Raich would be allowed to testify about the basic functioning of the business, Servatius recapped, but he would not be permitted to talk about the CHC’s non-profit status because this would bring in a discussion of compliance with state law.
Rather than agreeing, as Servatius appeared to expect, Capozzi merely shrugged off her assertions. “You showed the video,” he countered. “Now we can talk about the city council.” Judge Wanger modified Capozzi’s statement, saying that the defendant would now be allowed to testify about his explanations for things that he said and expressed in the video.
Eyes wide, Servatius replied that she had a much different understanding of the consequences of showing the video. Faced with the current situation, she seemed stunned and commented, “I wouldn’t have played it if I knew that.” “Mr. Scarmazzo wasn’t going to testify until the video was shown,” Capozzi said, getting riled up. “It had a clear effect on the jury. One woman wouldn’t even look at it!”
Smoothing over the tension, Judge Wanger assured Servatius there would be no discussion of the law in the defendant’s testimony. However, the judge also assured Capozzi that his client would be able to testify about the city council conflict to some degree.
“He can say, ‘We had a dispute with the city council and I was unhappy with the way I was treated,’ but he won’t go into the ordinances or what the attorneys advised.”
But the judge was not so flexible about the testimony of expert witness Irv Rosenfeld. As a surviving member of the Investigational New Drug program, which closed its enrollment years ago, Rosenfeld receives a monthly tin of pre-rolled marijuana cigarettes from the federal government. This status caused some concern with the judge and the prosecutors, who worried that Rosenfeld’s expert testimony about yields and quantities of marijuana might turn into a question-and-answer session about the IND program. This would create a wrinkle, if not a rip, in the government’s position that marijuana is uniformly illegal under federal law. It might also, the judge noted, give the defense an opening to talk about the prohibited topic of medical necessity.
“No medical necessity defense, no testimony about the federal program,” Judge Wanger repeated as a warning. “That’s Congress’s issue, not the court’s.” But Capozzi fought to the bitter end for the approval to mention the IND program.
“Mr. Rosenfeld is given nine ounces of marijuana every month from the U.S. government,” the defense attorney argued. He has to mention that as past of his background experience and opinion…this qualifies his background and opinions.”
Judge Wanger shook his head. “It would have a confusing effect,” he told Capozzi. The judge’s ruling on this detail was firm and clear, as was his conflicted reaction to the situation as a whole. With a sigh, he suggested attacking the wisdom of Congress, or the validity of having marijuana in a schedule of drugs to which there are no officially accepted medical uses.
“I recognize the need here, the conflict,” he said softly, reiterating that politics are not the business of the court. Judge Wanger’s views on the applicable laws are solid but transparent – he recognizes the restrictions of his role and the type of passivity it requires. As he told the jury on the first day, courts do not make the law.
“I think the time will come when the medical effects of the substance will be recognized,” the judge has acknowledged outside the presence of the jury.
But there’s no waiting time left for Scarmazzo and Montes, who will begin presenting their case later today. And fresh from the screening of the music video, the jurors will be waiting eagerly to see if another image of the defendants can be presented to them, and to weigh its strength accordingly.
 Be first to comment this article | |
Only registered users can write comments.
Please login or register. |
|
|
