FRESNO, CA -- In spite of repeated protests from the government, the defense in the California Healthcare Collective case has been granted additional time to prepare a motion for a new trial. The sentencing hearing, which was scheduled to take place yesterday, has been re-set for September 15th. In the meantime, defense attorneys will continue to interview jurors and search for evidence to strengthen their motion. It would require unusual and compelling evidence to set aside the jury’s verdict, but the CHC case has already shown that it can go where no medical marijuana trial has gone before.
Entrance to the City of Modesto photo by Vanessa Nelson
Luke Scarmazzo, 28, and Ricardo Montes, 27, were convicted last May on a variety of charges related to the CHC, a medical marijuana dispensary that operated on a busy street in Modesto. Entry required a valid doctor’s recommendation for marijuana, but attempts at legitimacy didn’t end there. Scarmazzo and Montes kept exhaustive records, paid a staggering amount of taxes and lobbied local officials to establish dispensary regulations. However, the CHC had a critical point of vulnerability that its good-faith efforts couldn’t cover: it was operating in an area that was notoriously hostile towards medical marijuana.
The fingerprints of local police and sheriffs appear all over the investigation of the CHC, in spite of the fact that these intelligence operations are usually credited solely to the Drug Enforcement Administration and the Internal Revenue Service. In September 2006, after much covert surveillance and multiple undercover operations, local law enforcement assisted federal agents with a search of the dispensary and several associated residences. The raid was a deathblow to the CHC, and it left Scarmazzo and Montes facing serious criminal charges.
Their case resulted in the first federal trial for medical marijuana dispensary operators, and prosecutors went at it full-throttle. In addition to counts involving possession, cultivation and distribution of marijuana, the government had something much more ominous in store for the defendants. Scarmazzo and Montes were both indicted on continuing criminal enterprise, a charge that carries a mandatory minimum sentence of twenty years and a maximum of life imprisonment.
It was a risky move for the government. Shortly before the trial began, Judge Oliver Wanger ruled that the CHC’s business documents could be presented as a defense to the continuing criminal enterprise charge. This allowed the jury to see a great deal of formal paperwork that declared the CHC to be in compliance with state law. From articles of incorporation to tax documents, bank records to endless receipt books, the jurors were shown a regular flood of forms. When it came time to deliberate, however, they were told to ignore statements about California law. They were in a federal courtroom, after all, and the U.S. government doesn’t recognize state medical marijuana laws.
It was a situation that created some discord and a few conflicted consciences. Shortly after deliberations got underway, an elderly man named David Jackson issued a request to be removed from the jury. When asked about his reason, Jackson made a series of revelations that inspired the judge to declare misconduct. Jackson had spoken about his wife’s recent death when he was questioned for jury selection, but he had withheld the fact that she used medical marijuana during her final days. Saying that he was biased, Jackson explained that he couldn’t live with himself if the jury convicted the defendants. He was promptly replaced with an alternate juror, and deliberations began anew.
The tension didn’t end there. Upon reflection, Jackson’s removal appears to be only the first sign of anguish within the jury.
Ricardo Montes and Luke Scarmazzo photo by Vanessa Nelson
After handing down the convictions, some of the departing jurors watched with curiosity as the defendants’ family members collapsed in wails and sobs in the hallway. The high emotions appeared incongruous to them – as the jurors later reported, they had expected the convictions to result in light sentences. Once they learned about the twenty-year mandatory minimum, some of the jurors went public by registering their outrage with the press, signing petitions that asked for sentence reductions, and providing defense attorneys with information for the new trial motion.
The clock is ticking, however, and the defense may not get enough evidence to adequately strengthen their motion. Scramazzo’s attorney Anthony P. Capozzi explained the situation succinctly in court yesterday – it’s the jurors who aren’t talking who may be crucial for the motion. To that end, Capozzi asked for two things from the judge: more time to investigate and a list of the jurors’ phone numbers.
The requests ruffled Assistant U.S. Attorney Kathleen Servatius, who provided a series of arguments against extending time for the motion. The jurors who are going to come forward have already done so, she speculated, and it was time to proceed with sentencing instead. “A conviction was returned,” she reminded the judge pointedly.
Servatius also suggested that the defense has been dragging its heels in the three months since the verdicts came down. “He only wrote enough to preserve the motion,” she complained of the defense’s filing on the new trial motion late last month.
Capozzi broke in, arguing back. “The defendants are facing 30 years and 25 years for doing something that was legal under state law,” he pointed out, trying to underline the need for diligence in such dire circumstances. Pre-sentencing reports have recommended a term of 360 months of imprisonment for Scarmazzo and just under 300 months for Montes.
Judge Wanger attempted a compromise, giving the defense only a few weeks of extra time for the motion so that it could be handled before Servatius’s upcoming trip to Washington D.C. Although he was openly accommodating with the time extension, the judge was more reluctant to give up the digits. In order to get ahold of the jurors’ phone numbers, Capozzi will have to file his request and then hope that it’s granted.
If the new trial motion doesn’t evolve during the coming weeks, the defendants could easily end up with prison terms akin to those recommended in the pre-sentencing reports. Mandatory minimums can be circumvented, but only under a set of very limited conditions that make up the “safety valve.” Since Scarmazzo and Montes were found guilty of a high-level offense for which they had a managerial role, their chances of receiving safety valve consideration were essentially nonexistent right off the bat.
After reading character letters for an unrelated case yesterday, Judge Wanger offered some possible foreshadowing. In response to the claim that an overly-harsh sentence had been recommended for a defendant, the judge gave the following suggestion. “The family should take those concerns up with Congress,” he said plainly.
Scarmazzo and Montes may very well hear the echoes of those words during their sentencing hearing on September 15th .
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