FRESNO, CA -- When Luke Scarmazzo came to the stand, he wore a grown-up’s dark business suit and striped tie, but his rounded baby-face looked even more youthful than his 27 years.
But the defendant was prepared to detail the key events of that short lifetime, moving quickly through his childhood in Modesto and into his success at high school athletics. Stellar performance on the football team helped his prospects for higher education, and in 1999, he enrolled at Mesa College in San Diego. He had planned to get enough units to transfer to a 4-year college, but he ended up going to work at Bank of America instead. “I was done playing football,” Scarmazzo said on the stand.
Luke Scarmazzo testifies by Dr. Care
And, apparently, he was also quickly done with his bank job and with living in southern California. Scarmazzo moved back to Modesto at the end of 2001, at which time he was ready to fully explore another passion: music. It was no new interest for the defendant, who had spent much of his youth singing in the choir and training in classical piano and guitar. “I’ve always been pursuing the music business, ever since I was a kid,” Scarmazzo said. But now he focused on hip-hop and rap, and to this end he created the music label Militia Musick.
At the same time, Scarmazzo testified, he and Montes had gotten their medical cannabis recommendations, but an absence of dispensaries in California’s Central Valley forced them to make regular trips to the San Francisco Bay Area. It was then that Montes got into a serious car crash, an incident that provided the settlement money the two men would use to transform their lives. In October 2004, they started the California Healthcare Collective, but in spite of the demand, things were very slow for the little medical marijuana dispensary. “We were unfamiliar with business licenses and practices,” Scarmazzo explained. So they moved locations and hired attorney Robert Raich to help them reorganize the corporation, and business suddenly took off for the CHC.
On the stand, Scarmazzo admitted that some of his experiences with the dispensary inspired him to write the song “Business Man.” The music video the prosecutors showed the jury was produced by a company called Final Cut Media, whose résumé, Scarmazzo noted, included the motion picture “Pearl Harbor.” For a cost of about $32,000, Final Cut Media provided scene scripting, creative direction, shoots at many locations from the Bay Area to a Freemason lodge in Stockton, hired various actors to work as extras, and did the post-production editing for the video.
Defense attorney Anthony P. Capozzi then replayed the video for the jurors, whose reactions on second viewing were much less pronounced than they had been the day before. It seemed that the shock factor was gone, and many in the jury box studied their monitors very seriously as the video was shown. At the conclusion of this screening, Capozzi asked his client to go through the production scene-by-scene and explain the intended meaning of what was presented in the video.
This debriefing began with the first scene, in which Scarmazzo is shown coming through theatrical curtains and into council chambers. “There’s lots of symbolism in the video,” he said. “It symbolizes me coming out from behind the scenes.”
Capozzi urged his client to expand on this notion, asking if there were flashback scenes in the video. Indeed, Scarmazzo replied, there were many. “At the city council meeting, I’m flashing back to pre-legalization and the underworld element –”
Assistant U.S. Attorney Elana Landau interrupted with an objection, saying the answer was assuming facts not in evidence. Judge Wanger sustained the objection, and the defendant was left to rephrase his statement. The problem, of course, was the use of the word “legalization,” but Scarmazzo’s substitution of synonyms did not go more smoothly.
“It was flashing back to the way it was before it was…” the defendant paused, then finished in a rush, “…legitimized.”
Scarmazzo was made to repeat that last word, at which time Landau once again claimed the statement assumed facts not in evidence. Judge Wanger, sustaining the objection, turned to the jurors and assured them that he would be instructing them about the applicable law in this case. All other claims of legality or legitimacy, he told the jury, could be dismissed.
Capozzi next asked if the money in the video was real U.S. currency, and the defendant responded in the affirmative. For purposes of realism and emotional effect, Scarmazzo claimed, the producers had urged the use of actual currency. However, he noted, there wasn’t as much money in the video as there appeared to be – most of it was $1 bills, covered with just a top layer of $100 bills.
Questioned on the meaning of the line, “I don’t sit down, I stand up,” Scarmazzo stated that this lyric was plainly about standing up for his personal beliefs. The intended message of showing reporters at the city council meeting, he said, was just as simple, but not as obvious. As the defendant put it, these figures represented the essential conflict that was the video’s theme, but in a more basic way: an image of a supportive reporter was set plainly in contrast to a cynical reporter. “But the council agrees with us in the end,” Scarmazzo explained. “They see our point of view.”
Capozzi then steeled himself for a critical question, asking his client to tell the jury what he had meant by the line “fuck the feds.”
“My personal feelings on it,” Scarmazzo replied, “is that the government is turning a blind eye to things that help people. In California, it’s a little different – there are things available for the people who need them.”
Using vague but suggestive language, the defendant was becoming more adept at skirting the borders of admissible testimony. His next description focused on the scene in the video in which he and three associates wear masks of former U.S. Presidents’ faces, which flash on and off of them as they lean towards the camera. Scarmazzo, who had chosen to wear the face of George Washington, explained his selection by saying that this historical figure represented a shift between what was once acceptable and later made illegal. “It shows the two-facedness of the government,” he said of the scene.
Next, the defense attorney turned his attention to the part in the video in which the defendant is shown entering a room piled high with what appear to be boxes of money. Failing to find any available storage space for the load of cash he’s carrying, he simply sets it down at his feet with a shrug and walks away. But what may look like the posturing and braggadocio typical of rap videos, Scarmazzo said, actually has a much deeper meaning. “It shows that instead of the money being taxed and legalized, it’s being put in these back rooms and doesn’t help anybody,” he articulated.
The images of the dancing girls, however, were not so rich in symbolism. The defendant described their presence as “just the industry standard,” but the thing of greater significance was the shirt that Scarmazzo wore in this part of the video. It read “OPEN UR EYES,” and Capozzi was eager to hear his client’s explanation of this phrase.
“I feel like the federal government is turning a blind eye to the people who are suffering,” Scarmazzo conveyed, echoing his earlier statement. The command written on the shirt, he said, was an order to the government to “open your eyes and see what’s right in front of you…that it’s an acceptable medication.”
Noting the difference between Scarnazzo’s long tresses in the video and his short-cropped hair on the stand, Capozzi asked about the reasons for his client’s transformation in appearance.
“If I was going to go to jail for twenty years to life, I wanted to do one deed that would be good for somebody,” Scarmazzo related. “So I cut it off and gave it to Locks of Love.”
“And what is Locks of Love?” Capozzi urged.
The question got a quick objection on grounds of relevance, and although Judge Wanger overruled it, he did so with a sound of hesitance and aversion in his voice. He appeared personally unwilling, but professionally bound, to allow Capozzi’s question.
Scarmazzo easily and eagerly explained. “Locks of Love is a donator of hairpieces to cancer kids.”
With this image of unambiguous benevolence at the front and center, Capozzi slipped in a question about his client’s prior criminal history. Scarmazzo responded with a brief reference to a conviction for “assault with the intention to do bodily injury,” but the remark was gone almost as soon as it was made. The defense attorney moved on quickly, leaving the prosecution to flesh out what had been a blink-and-you’ll-miss-it mention during direct examination.
Nonetheless, Capozzi encountered some opposition to his next set of questions. “Did you ever form an agreement with Ricardo Montes to break any laws?”
Landau interrupted, claiming that the inquiry implied a legal conclusion, and her objection was immediately sustained.
The defense attorney was left to rephrase. “Did you ever form an agreement with Ricardo Montes to do something improper?”
The prosecutor renewed her objection, her tone conveying some exasperation that the same question had been resubmitted with only a basic synonym replacement. It was a sentiment shared by the judge, who blocked the queries by sustaining Landau’s objection once again.
Capozzi had only one final question for his client. “Did you manufacture or sell marijuana other than through the California Healthcare Collective?”
“No,” the defendant said with emphasis.
Scarmazzo was then handed over to Robert Forkner, who served as counsel for Montes. Surprisingly, the defense attorney’s typically potent powers of examination were effectively castrated by a series of successful objections from Landau. Forkner tried to ask about the medical marijuana recommendations held by the CHC, but was blocked at every verbal turn. Next, he tried a series of inquiries about the significance of Scarmazzo using his own name on documents relating to the CHC, but the questions were shut down before they conveyed even a hint of suggestion. The only solid idea that came through was what came off sounding like a rehearsed promotion for the defendant’s radio appearances, on KWIN 98.3 FM during Friday Night Hype.
As Scarmazzo was not Forkner’s client, it’s unlikely that the questions would have added much to the testimony even if they had been permitted. After all, the bulk of the significant discourse had already come through Capozzi’s examination, making Landau’s battle against Forkner look a little like target practice. Whatever the impact or consequences, though, the scuffle was the government’s first strong showing of prowess on the defensive. And at its conclusion, Scarmazzo was left in Landau’s hands for a lengthy cross-examination.
First off, the prosecutor requested more details about the defendants’ work experience. Landau seemed particularly interested in what Scarmazzo had done for a living in between the time he moved back to Modesto in 2001 and when he started up the CHC with Montes in 2004.
“I worked on the construction of the new Bay Bridge project,” he told the prosecutor. But this employment had not necessitated a move to the Bay Area – the bridge, Scarmazzo explained, was built in sections and then transported to the site of assembly.
Landau also had some logistical and administrative questions about the CHC. When Scarmazzo set up the business with Montes, the prosecutor asked, had the shares been 50/50?
The defendant was hesitant on this point, finally conceding to Landau, “Your terminology is a little off, but okay.”
In response to a continuing series of questions, Scarmazzo explained the evolution of the CHC. It was originally based at 301 McHenry Avenue in Modesto, but the defendant testified that he and Montes decided to re-open the shop down the road at 1009 McHenry Avenue after seeing a “For Lease” sign while driving by. Four employees came with them to work at the new location when it was set up in the very beginning of 2005, Scarmazzo said, but he denied that this timeline matched up with the cultivation bust at the Ripon apartment.
“Your testimony is that the Ripon grow was supposed to go to the CHC?” Landau asked, an undercurrent of challenge under the frothy sweetness of her voice.
“It was grown for patients who couldn’t grow themselves, and given to them,” Scarmazzo replied. In the resulting dispute about whether this activity was indeed part of the collective, the defendant asserted plainly, “If you’re not a member of a collective, it wouldn’t be legal.”
Landau already had begun rephrasing her last question by the time the answer hit her. Interrupting herself, she asked for the defendant’s last response to be stricken from the record. As the statement had offered a legal conclusion, Judge Wanger was perfectly willing to excise it. Landau then went back to contesting the idea that the Ripon grow had been part of the CHC’s activities.
Scarmazzo reiterated the legality of cultivating for patients who couldn’t grow their own marijuana. He informed Landau that money could legitimately change hands in this transaction – under state law, he said, this situation was referred to as the reimbursement of a caregiver.
This last set of declarations brought all the attorneys to their feet. As Landau balked and Assistant U.S. Attorney Kathleen Servatius began issuing vehement objections, Forkner argued over the prosecutors even more forcefully. “She keeps asking the question!” he said to the judge about Landau. “If she doesn’t want the answer, she should stop asking!”
Judge Wanger sustained the government’s objection, but in spite of this green light, Landau directed her cross-examination back to the operations of the CHC. In particular, she wanted to know if Scarmazzo and Montes both negotiated the purchases of marijuana that were made there. The defendant sidestepped a yes or no answer, offering a more precise understanding of the process by which the dispensary acquired marijuana. “When a patient would have excess marijuana, he would bring it in and the collective would distribute it,” he explained.
“So you two would negotiate the price of the marijuana?” Landau tried again.
The defendant was more forthcoming this time. “On behalf of the CHC, yes,” he replied. The prosecutor then brought up Brad Heinmiller’s testimony that his sales offer had been personally rejected by Scarmazzo, but the defendant scoffed. “I never saw him before,” Scarmazzo said of Heinmiller.
It was the perfect set up for Landau to use one of her biggest strengths: the clever use of sarcasm to undermine the defendant’s testimony. “Was there someone who looks just like you working at the CHC?” she queried.
Scarmazzo remained solid. “No,” he answered plainly.
Affecting a puzzled expression, the prosecutor continued. “Was there another Luke Scarmazzo at the CHC?”
“No,” the defendant replied, appearing unruffled by Landau’s light ridicule.
The prosecutor gave a final, drawn-out, “Okay….” that had a tinkling of derisive laughter in its tone. Then, moving on, she asked a series of questions about the structure of decision-making at the CHC.
“The managers could always handle things,” Scarmazzo declared. As the final authorities, however, it was him and his co-defendant who called the shots. “Either me or Mr. Montes were there at all times.”
As for how many employees were operating underneath them, Scarmazzo couldn’t recall a number. He was similarly uncooperative when the prosecutor sought to delineate how, and through whom, orders were passed along in the CHC. Specifically, Landau wanted to know about the back packaging room and who directed the people who worked there, but the defendant wasn’t giving her much help.
“Marijuana was put into baggies?” the prosecutor asked.
“Medication,” Scarmazzo said, stressing his correction.
Landau endured the terminology, moving forward to inquire about the workers in the packaging room. “How did they know what to break up?”
The defendant acted as though the answer was simple and painfully obvious. “They would use what was made available to them,” he replied.
“How did they know what to charge?” Landau pressed.
“The managers,” Scarmazzo responded nonchalantly. “They all knew that.”
The prosecutor was suspicious of the idea that so many employees at the CHC would know how much had been paid and how much should be charged for all the marijuana that was on site at any given time. It was, she recounted, on display shelves, in pre-packed bottles, in drawers behind the counter, and locked up in a safe. As her questions suggested, there was a lot of marijuana to keep track of.
But Scarmazzo shrugged off the inquiries. He didn’t even have access to the functioning safe at the dispensary, he claimed. “The managers had control of it,” he explained. Still, he declined to say how many managers they had or to name off who the managers were.
Landau then brought up Agent Jesse Tovar’s account of the CHC raid in September 2006, during which Scarmazzo had allegedly told him he didn’t have keys to the business. “I didn’t,” the defendant reported. The prosecutor, incredulous, felt compelled to ask the question multiple times to be certain of the answer she was hearing, but the defendant stood by his assertion.
Also of concern to the government was the intended use for the commercial space on Glass Lane that had been leased to the defendants. When Scarmazzo revealed that the business was intended to be a collective, there was a mood of astonishment that quickly faded as the defendant amended his statement. “Not a marijuana collective,” he corrected, “but for soaps, lotions, etcetera.”
“Why was Monica Valencia signing leases?” the prosecutor inquired.
For the defendant, the answer was straightforward. “She had better credit than the rest of us.”
Speaking of credit, Landau took the opportunity to scrutinize some of Scarmazzo’s bank records. “Would it be fair to say,” she asked, “that up until the end of 2004, you were not making much money on music at that time?”
“That’s not fair,” the defendant protested. “I could have survived on music.” However, he readily admitted that the CHC paid more than he earned from music.
In order to pay back the $50,000 loan Montes had given him to buy his Mercedes, Scarmazzo professed that he had “squirreled away” cash earnings from the CHC back before the payroll was done through bank deposits.
Landau continued her questioning on the financial details. “Were you paying taxes on the money you earned from music?”
“I was,” Scarmazzo said with assurance.
The prosecutor seemed surprised, and in response approached the witness stand to show the defendant his personal income tax forms for 2005. Clarifying, Scarmazzo told the prosecutor that the money he made through Militia Musick in 2005 was a very minimal sum. The $80,000 figure that was quoted earlier in the trial, he claimed, was earned mostly in 2007. Landau’s questions reinforced the idea that Militia Musick started earning substantial money only after the CHC had been shut down, with the defendant claiming, “It kind of overlapped.”
Skeptical, the prosecutor asked if it was expensive to make the CDs he sold, but Scarmazzo countered by saying they had cost him less than a dollar apiece. The music video, however, was a different story. The budget for it had been $32,000, and Landau was curious about how he got this money to make the video in 2006 if Militia Musick hadn’t been bringing in significant income until 2007. But the defendant gave no new explanations, instead repeating his old answer, “It overlapped.”
Also overlapping, or so it appeared, were the places that the defendant claimed as residences. As Scarmazzo told it, he hadn’t been living in the Ripon apartment where the grow was discovered, but he had taken up residence in another unit in that same complex. After that, he testified, he lived at the property on Edgebrook Drive with his girlfriend Devina and their daughter Jasmine. When he and Devina separated later that year, Scarmazzo explained, he moved in with his parents at their house on Woolston Way.
As if the lists of addresses hadn’t been dizzying enough, Landau threw in another, reminding the witness that he had been observed going into and out of an apartment on San Clemente Drive. After Scarmazzo confirmed that this was the residence of Monica Valencia, a former co-defendant in the case, the prosecutor got personal.
Cutting through the evasiveness, Landau tried to get firm answers about Valencia. “So the people who perceived her as your girlfriend were mistaken?” the prosecutor asked.
“No, I wouldn’t say they were mistaken,” Scarmazzo acknowledged slowly, then reversed, “but we weren’t boyfriend and girlfriend.” Trying to clarify, he offered, “I moved out of Edgebrook because me and my girlfriend had separated, so I would stay at San Clemente one or two nights a week, and at Woolston the rest of the time.”
But Landau was after more than the details of a lurid love triangle – the questions about the various residences were intended to show that the defendant had lied to his probation officer about where he was living. As a result of his felony conviction on the assault charge, Scarmazzo had been on probation from mid-2004 onwards, and one of the requirements for probation was to immediately report changes of address. After going over all the residences the defendant had just testified about, Landau asked, “Did you report these different addresses to the probation officer?”
“I wasn’t living anywhere else in 2004,” Scarmazzo replied. When asked about 2005, however, he answered very generally. “I wasn’t untruthful with Mr. Chew,” he said of his probation officer. “He’s a very cool guy.”
Then, as he waited under the cynical eye of the prosecutor who was attempting to expose him, the defendant had a moment of inspiration. “It’s the government who’s hiding the truth, not me,” he declared.
The outburst was met with a conciliatory but somewhat condescending reaction from the government. “Let’s agree that you won’t answer unless there’s a question pending. I know you want to get it out.”
“The truth will come out on its own,” Scarmazzo said with conviction.
“Let’s just agree, okay?” Landau asked with a candied smile, pleading pleasantly.
Scamazzo acquiesced, allowing the cross-examination to proceed. Predictably, this meant more accusations that he had lied about his residence. “In 2005, when you said to probation that you were living with your parents, you were actually living at the Edgebrook apartment with Devina,” Landau charged.
The defendant replied that the Edgebrook residence was a house, not an apartment. Landau took the correction graciously, smiling at herself in good humor, but she did not relent on Scarmazzo. “So you lied to the probation officer about living with your family on Woolston Way?” she asked.
“No,” the defendant insisted. “I stayed with them briefly.”
The prosecutor also suggested that Scarmazzo had lied to his probation officer about his employment status, claiming that he was working for a construction company several months after he had quit that job. But the defendant vowed that he had been honest with his probation officer on this issue as well, saying, “I told him I was working for the CHC and that I had a valid medical marijuana recommendation.”
In the light of Scarmazzo’s denials, and his tendency to detour his answers into more mentions of medical marijuana, Landau concluded her cross-examination there. It would be more prudent, assuredly, to prove her point by calling the defendant’s probation officer to the stand to testify. But the prosecutor wasn’t off the hook quite yet. Forkner had taken up his re-direct, and Landau opposed the very first question that came out of the defense attorney’s mouth.
“Did Mr. Chew ever violate your probation?” Forkner asked the defendant.
In spite of the gusto of Landau’s protests, Judge Wanger decided to permit the question. Furthermore, he instructed the prosecutor not to voice the specifics of the reasoning for her objections. “No speaking objections,” he reminded Landau. The statement left some in the gallery bewildered, whispering questions about what form of communication would be used henceforth for objections.
Allowed to answer about the completion of his probation, the defendant testified that it had not been violated. He also claimed that he had not lied to his probation officer about where he was living, reiterating, “I had nothing to hide from him – he was a really cool guy.”
Forkner pushed further. “Did you tell him you were working at the California Healthcare Collective?”
Scarmazzo affirmed this, and even went on to declare about his probation officer, “He told me that under California law I was okay.”
Once the defendant had been excused from the witness stand and the jury dismissed for the day, however, Servatius told the judge that the probation record told a far different story. “He never indicated that he was an employee at the CHC, or that he wasn’t living with his parents, or that he was making $13,000 a month,” she claimed.
It was an issue that the judge believed would be best resolved through the probation officer’s testimony. In the morning, it was decided, former Stanislaus County probation officer William Chew would be summoned to the stand. His words would be part of the very last witness testimony the jury heard before deliberating, and therefore they seemed to have an exaggerated importance. The afternoon session ended early, giving the observers plenty of time to wonder about which side would benefit from the next day’s witness. The trial was coming to a quick close, and, it seemed, every moment and every word was rapidly increasing in significance.
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