FRESNO, CA – Rather than going to trial right away, federal prosecutors have decided to ditch the plan to re-try former dispensary owners Luke Scarmazzo and Ricardo Montes on conspiracy.
Ricardo Montes and Luke Scarmazzo
Both defendants were imprisoned a month ago, following the first trial of medical marijuana dispensary operators in federal court. Oddly enough, the jurors handed down convictions on several weighty felony charges, but failed to return verdicts on conspiracy to manufacture marijuana, distribute marijuana, and possess marijuana with the intent to distribute. Shortly after the trial concluded, Assistant U.S. Attorney Kathleen Servatius revealed that Scarmazzo and Montes would be re-tried on this conspiracy count, but the defendants’ refusal to waive time threw a wrench in the works. Unable to find a way to avoid a speedy trial, Servatius announced yesterday that the government would dismiss the conspiracy count for both defendants “in the interest of justice.”
It was just the latest loop in a case that has been like a roller-coaster ride.
Scarmazzo and Montes’s legal ordeal began when their Modesto-based medical marijuana dispensary, the California Healthcare Collective, was raided nearly two years ago. Even though California and eleven other states have laws permitting marijuana under the approval of a licensed physician, federal authorities refuse to recognize these laws and instead maintain a blanket prohibition. The bust of the CHC, which left the defendants facing a variety of felony charges, is credited largely to the Drug Enforcement Administration and the Internal Revenue Service.
However, city and county agencies also had a high level of involvement in the investigation of the dispensary, using the conflict between state and federal law to justify their actions. Working as part of task forces funded with federal money, deputies from the Stanislaus County Sheriff’s Department paired up with DEA agents for various surveillance actions on Scarmazzo and Montes. There were also many different undercover buys from the CHC, with agents gaining entry using valid doctor’s recommendations as well as forged ones.
Luke Scarmazzo
This conflict between state and federal law played itself out in court when Scarmazzo and Montes finally went to trial in April 2008. Other medical marijuana trials on the federal level have been primarily related to cultivation, and most of the presiding judges have ruled that evidence about medical marijuana could not be shown to a jury. Since Scarmazzo and Montes were charged with continuing criminal enterprise, however, Judge Oliver Wanger ruled that the dispensary’s business documents could be presented as a defense. As a result, the jury saw plenty of corporate paperwork that declared the CHC to be a medical marijuana dispensary that operated in compliance with state law.
As it turned out, documentation about medical marijuana was not the only unusual thing to be presented to this federal jury during trial. Jurors were also shown a controversial music video starring Scarmazzo as his rap star persona. While listening to a catchy beat that incorporates the sound of shotgun, the jury saw the defendant bragging about having a marijuana sales business and then provocatively flipping off the federal government. Defense attorneys claim that showing this video prejudiced the jurors, arguing that it precipitated the series of guilty verdicts they eventually handed down.
The convictions were numerous and weighty, nabbing the defendants on charges of cultivation and possession with the intent to distribute. The most serious conviction, however, was for continuing criminal enterprise. This count carries a 20-year mandatory minimum prison term, which is what Scarmazzo and Montes will face at sentencing unless their attorneys can convince the judge to order a new trial.
The fallout from the guilty verdicts was dramatic and disastrous. A round of federal raids on medical marijuana dispensaries followed the convictions, hitting facilities from Los Angeles to the San Francisco Bay Area before the month was over. Scarmazzo and Montes weren’t around to see it happen, though. They were taken into custody right after the verdict was read, escorted away by U.S. Marshals as family members wept and wailed.
Determined to free their clients as soon as possible, defense attorneys immediately went to work on a motion for a new trial. Their efforts were soon interrupted, however, as the government focused on the conspiracy count that had gone undecided by the jury. Pursuing a conspiracy re-trial significantly complicated the state of the post-trial proceedings, and also came as a surprise to many of those watching the May 27th hearing.
Of course, the defendants were ready with some surprises of their own. Scarmazzo, wearing shackles and a red jumpsuit from Fresno County Jail, quickly asserted his right to a speedy trial. Montes, who sported an identical inmate-issue ensemble, soon followed suit and refused to waive time in the case. As legally sound as these declarations were, however, they had a certain ring of radicalism to them.
Ricardo Montes
One of the essential liberties set forth in the Constitution, the right to a speedy trial is explicitly mentioned through the 6th Amendment and further clarified by the Speedy Trial Act of 1974. In spite of the solidity of these provisions, waiving time has become a standard maneuver for defendants in complex criminal cases. Otherwise, they must secure legal representation, digest the discovery in the case, subpoena necessary witnesses and undertake all trial preparations in an extremely limited time period.
Scarmazzo and Montes, however, were fresh out of trial when Servatius declared the retrial on conspiracy charges. Beside both defendants were attorneys who were already familiar with all the facts of the case and who had direct experience from mounting a defense the first time around. Scarmazzo was therefore able to ask for a speedy trial with confidence, uttering words seldom heard by federal prosecutors. Following the announcement, the government was given three weeks to come up with a legal argument for the denial of the defendants’ due process rights.
As Servatius revealed yesterday, the only speedy trial exclusions she had found pertained to pre-trial rather than post-trial proceedings. Under federal statutes, therefore, a new trial would have to be held before July 17th, but Judge Wanger had barely uttered the date before Servatius capitulated. Saying that justice would not be served by continuing, the prosecutor disclosed that the government was dismissing the conspiracy counts.
This appeared to be the outcome that Scarmazzo had anticipated, and as his strategy played out he offered his co-defendant a joyful “I-told-you-so” expression. It was a welcome victory for the two young men, though likely a temporary one. Servatius’s dismissal was done without prejudice, meaning the government would be permitted to press for a conspiracy re-trial again.
“Oh yes, she could bring the charges back, definitely,” defense attorney Anthony P. Capozzi said of the prosecutor outside the courtroom.
Still, the possibility of a resurrected conspiracy count does not rank high on the defendants’ list of worries. As yesterday’s hearing revealed, both Scarmazzo and Montes are having difficulty accessing the law library in jail. Addressing this grievance, Judge Wanger noted that inmates who are handling their cases pro per typically get priority in such situations. Nonetheless, the judge offered to put in a request for Scarmazzo and Montes to use the law library, hoping that they would be allowed “something more than zero hours per week.”
Such obstruction is likely to be particularly irksome for Scarmazzo, who has always taken an assertive position regarding his own defense. During many of the pre-trial hearings in the case, the defendants were permitted to sit in the gallery and let the attorneys handle everything, but Scarmazzo never accepted such offers. He sat at the defense table whenever possible, watching the arguments with fierce concentration and often pitching in to whisper a suggestion to Capozzi. Scarmazzo may have been the back-seat driver of legal clients, but he was an effective one –his defense appeared to consistently benefit from his suggestions.
At the conclusion of yesterday’s hearing, though, it became clear that Scarmazzo’s struggles are medical as well as legal. The law library isn’t the only facility Scarmazzo has been trying to access in jail, according to Capozzi, who revealed that his client has also been requesting to go to the infirmary. Reportedly, Scarmazzo has become ill because he’s been deprived of the blood pressure medication that he was taking prior to incarceration.
Appealing to Judge Wanger for help, the shackled Scarmazzo described his symptoms. “My high blood pressure has been causing a lot of dizziness and headaches,” he revealed, adding that he had been unsuccessful at controlling the condition through his diet. “There aren’t a lot of options,” Scarmazzo commented about prison fare while the judge nodded sympathetically.
Eager to help, Judge Wanger offered to have one of the U.S. Marshals take the necessary prescription information directly to the jail physician. However, this process hit a delay when Scarmazzo’s family began searching for the right medication. As they fumbled through various prescription bottles belonging to Scarmazzo, it became abundantly apparent that the young man who was standing in chains on the other side of the courtroom wasn’t as healthy as his physique might imply.
Scarmazzo and Montes are both 27 years old, and both have a robust look that speaks to their earlier days as football players. Youth and broad shoulders mask their ailments, and both of them suffer more than is visually apparent at a glance. However, the vigor of their football days is not entirely behind them – throughout the trial, Scarmazzo and Montes have displayed an impressive determination to keep fighting until the game is won.
And, in spite of last month’s convictions, it appears that their case hasn’t even made it to half-time yet. There’s a lot more scoring to be done between here and the appeals court, and in spite of the hardships of jail life, Scarmazzo and Montes still have their game-faces on. The next play will come on August 11th, 2008, when Judge Wanger is scheduled to rule on the defense’s motion for a new trial. It could be the defendants’ chance for an interception or the prosecution’s shot at another touchdown, but whatever the outcome, Scarmazzo and Montes know the crowd will be cheering for them.
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And, in spite of last month’s convictions, it appears that their case hasn’t even made it to half-time yet. There’s a lot more scoring to be done between here and the appeals court, and in spite of the hardships of jail life, Scarmazzo and Montes still have their game-faces on. The next play will come on August 11th, 2008, when Judge Wanger is scheduled to rule on the defense’s motion for a new trial. It could be the defendants’ chance for an interception or the prosecution’s shot at another touchdown, but whatever the outcome, Scarmazzo and Montes know the crowd will be cheering for them.
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