When Ricardo Montes took the witness stand, the entire courtroom waited with alert curiosity. The solemn-looking young man had been the less visible of the two defendants, to the extent that the media focused almost exclusively on his partner Luke Scarmazzo during the build-up to trial. The rap star had dominated the public’s imagination, but Montes was certainly the key figure behind the defendants’ medical marijuana dispensary. Not only was he the CEO and founder, but Montes also provided the capital that got the California Healthcare Collective off the ground…and he had the scars to show it.
As curious as they were about the lesser-known defendant, watchers in the gallery appeared even more eager to see how defense attorney Robert Forkner would manage his client during direct examination. If Scarmazzo had been the focus of pre-trial attention, Forkner was undoubtedly the scene-stealer of the trial itself. Early on, he had betrayed a penchant for the impressive entry, and the jurors soon showed signs of perking up whenever a witness was handed to the curly-crowned defense attorney. On cross-examination, his opening question was often like the sudden kicking-in of a locked door in the witness’s mind… a quick, intrusive burst into whatever was being carefully guarded.
And, even when directly examining his own client, Forkner’s initial inquiry was controversial enough to provoke pandemonium. Looking level at Montes, the defense attorney began the session by asking pointedly, “Are you guilty or not guilty?”
Assistant U.S. Attorney Kathleen Servatius broke in with an objection. “That’s the question for the jury,” she declared.
Judge Wanger agreed, saying that Forkner’s query called for a legal conclusion, and the dynamic defense attorney was made to revert to soliciting biographical information from his client.
As the defendant told it, he was 27 years old and had grown up in Modesto alongside his co-defendant. Jurors had already learned about Scarmazzo and Montes’s old football days during the defense’s opening statements, but Forkner’s questioning refreshed their memories. Of course, the jurors’ memories looked to be perfectly sharp without any reminders – they were a remarkably alert and engaged lot. Still, they got another helping of the story of Montes’s 2003 car accident, hearing once again about the crushed finger, the disfiguring facial scars…
Servatius broke in to object to the relevance, so Forkner cut to the chase and asked his client about how he started the CHC. But Montes went right back to the previous topic. “I had a car accident,” he said plainly.
Over another objection, Forkner instructed the defendant to tell how he did it, not why. Montes, however, responded with another answer that displeased the government. “There was a medical necessity need in Stanislaus County –”
Objecting, the prosecutor moved to strike the statement from the record. Judge Wanger granted her wish without debate, leaving the defense attorney to give the question a third try. “You filed incorporation papers at some point…?”
At this prompting, Montes affirmed that he had hired Robert Raich to help get the CHC on track and spent approximately $18,000 on the effort. Forkner affected surprise, asking, “And you were selling cannabis at the store?”
“Yes, medicine,” Montes replied.
This clarification resulted in a repeat of Servatius’s objection and motion to strike the answer from the record. She was as successful with the request as before, but with a bonus: this time, Judge Wanger specifically ordered the jury to disregard the word Montes had used.
Ricardo Montes testifies sketch by Dr. Care
Forkner then asked about taxes, and the defendant was certain in his reply – he couldn’t remember offhand how much money had been given over to the government, but he insisted that the CHC had paid taxes of all kinds. The last check for these purposes, he recalled, had been a payment of approximately $93,000.
“Were you ever advised to stop doing what you were doing?” Forkner inquired.
Servatius interrupted, but she came to the end of her winning streak. Judge Wanger overruled her objection, allowing the defendant to answer the question. “No,” Montes said adamantly.
Forkner then guided his client back to the incidents the jury heard about during the very beginning of the government’s case, in which Montes had been stopped and detained several times on traffic stops. Explaining the abundance of cash reported by the officers, the defendant said, “I had just closed the account at Bank of America and I was taking the money to Wells Fargo.” This was why, he claimed, the cash was wrapped up the way it was.
“You were allowed to leave?” Forkner inquired, referring to his client’s encounter with the police. But as soon as Montes affirmed this, Servatius objected and asked for a sidebar.
Returning from the little conference, which was kept private by a rush of white noise over the courtroom speakers, nothing was stricken from the record. Forkner merely continued, asking the defendant about another time he was stopped by the Modesto Police Department. He had been out having dinner one night, Montes recalled, when he was suddenly stopped and pulled from his vehicle at gunpoint. “They said it was a suspicious car,” he said, relating the reason he was given for the stop.
Although Montes was later cleared of that suspicion, officers had gotten very nervous about a gun that was under the seat of his car. Nonetheless, they were aware of it from early on – the defendant had been forthcoming about its presence, and the law enforcement witnesses for this stop had described him as “very cooperative.”
“I told them I had a gun,” Montes claimed. “It was under the seat and the clip was locked in the glove box.” When asked why the items were in those places, he testified that he thought it was legal that way.
According to Servatius, this answer called for a legal conclusion. Judge Wanger sustained her objection and then excised the defendant’s statement from the record. But Forkner didn’t appear discouraged. He simply went on to his next question, asking the defendant how much cash had been in the vehicle.
Montes responded that the figure was $48,000, but this was no major revelation. Jurors had heard about large amounts of cash throughout the trial, and they didn’t blink at this sum. As it turned out, the Modesto Police Department wasn’t terribly concerned about it either – Montes was released after a brief detention, and he recalled that he was “ordered to be given the money and gun back.”
Defense attorney Robert Forkner photo by Vanessa Nelson
Forkner also brought up the incident in which Montes was pulled over for an alleged “mud-flap violation.” The defense attorney then asked his client if he still drove that particular car. “Yes,” Montes replied, “and I was never stopped for that reason again.”
When asked to describe what happened after he was pulled over, Montes gave an account of his interactions with the police officers. “They said they smelled marijuana,” he remembered. “I said I worked for California Healthcare Collective. They took me in the police car and said that it was all new to them, and they needed to figure it out.” Ultimately, as the defendant told it, the police released him and drove him back to his car. They did not let the marijuana go so easily, though. “They said they’d hold onto the marijuana for a few days,” Montes testified.
In recalling these incidents, the defense attorney did a thorough job of reminding the jury about two things. First was the idea that Montes had been unfairly targeted by the police. While not every vehicle stop lacked justification, there were also times when officers contrived far-fetched excuses for pulling the defendant over. Trial testimony from some of the officers had confirmed this theory, especially with regard to the mud-flap incident, but it was a secondary point. There was another, more powerful notion that Forkner emphasized in his questioning – that if police released his client after he was stopped with marijuana, then he must have had a legitimate reason for possessing it. The implied blessing of law enforcement was passive, reinforced by what they didn’t do to Montes, and Forkner’s inquiries persistently pushed this idea.
After focusing on the subtle signs of the CHC’s legitimacy, Forkner turned his attention to more overt indications. “Did you have a meeting with an attorney for the corporation, take minutes?” he asked his client. Montes answered in the affirmative.
Servatius objected, asking Judge Wanger to give the jury limiting instructions about how to use the defendant’s testimony on this subject. As the judge put it, the jury should consider Montes’s answers only for the purpose of understanding how he conducted his business. The talk about meeting minutes, Judge Wanger emphasized, had no bearing on the law and what was legal.
Asked the reason for the meetings with his corporate attorney, Montes gave a simple response, “To discuss business about the corporation.” Going on, he explained that the first minutes were filed on October 11th, 2004, and that the corporation’s bylaws were subsequently modified as necessary.
If Forkner had hoped to use this testimony as foundation for admitting the bylaws into evidence, he was quickly thwarted by Servatius. “This is more than minutes,” the prosecutor complained. Giving a reason for blocking the evidence was a little more challenging, however – she had to do so without mentioning medical marijuana or speaking to its legality under state law. “On grounds of relevance based on previous rulings,” she managed, and her efforts got a quick reward – the CHC’s bylaws were not shown to the jury.
Instead, the defendant described the corporate structure through his testimony. As the Secretary/Chief Executive Officer, Montes claimed he had general control over the business. This power included authority over Scarmazzo, who functioned as the Secretary/Chief Financial Officer. In spite of Montes’s elevated managerial position, he and Scarmazzo got equal ownership of the business – 50 shares each.
After establishing these facts, Forkner approached the stand with an exhibit that Montes identified as the security proposal for the CHC. “Did you have concerns about safety?” Forkner asked his client.
Montes responded that he had been worried about the security of the business, and he readily elaborated when his attorney requested he mention specific concerns. “Because in many other dispensaries across California, there had been break-ins, hostage situations, robberies, things like that,” he explained. In answer to Forkner’s following questions, Montes indicated that these safety concerns were the reason for installing security cameras on the CHC’s premises. It was also the reason that he kept guns at his business and his home.
As Montes testified, he had been living with his parents at the time of the bust and this explained why numerous receipts for marble, granite and other building materials were found at his parent’s residence. These materials were purchased using money from his personal income, Montes asserted, and all the funds had been accounted for. When Servatious objected that such a declaration was “vague and irrelevant,” Forkner guided his client to a different vein, allowing Montes to declare that he had paid all income taxes in 2005 and 2006. However, after another objection from the government, the judge blocked Montes from testifying about the accuracy of his tax returns.
Ricardo Montes and his mom photo by Vanessa Nelson
The issue of security was the main thrust of the direct examination, and it seemed that all roads led back to questions about gun possession. “Who is Monica Valencia?” Forkner asked.
Montes shrugged slightly, “She’s just a good friend of ours…of mine…well, of all of us.”
Wry smiles were exchanged in the back row of the gallery, presumably by those who were acquainted with the details of the love affair between Monica Valencia and Luke Scarmazzo. Still, Montes’s response had been fully accurate. He managed tact without misleading the listener.
“Can you tell us the reason why the firearm that was there in the business belonged to Monica Valencia?” the defense attorney inquired.
“I asked her if we could use her firearm at the dispensary for protection,” Montes replied. “To keep it in the safe.”
Nodding, Forkner continued. “Was that because your two guns had just been seized by the feds?”
Before the witness could answer, Servatius’s objection got the question stricken from the record, and the defense attorney was left to try again. “You could legally buy firearms?” Forkner asked.
This time, Montes got his answer out before Servatius broke in with an objection. “Yes,” he said confidently. In spite of his promptness, however, his answer was stricken from the record and the jury was told to forget they had ever heard it.
Forkner was permitted to question his client about his practice of using rental cars and switching them every week. When asked why he did this, Montes replied, “It was so that no one would know what car I drove, and so nobody could follow me home and hurt my family.” In response to further inquiry from his attorney, Montes denied that his use of rental cars was inspired by his frequent encounters with police in traffic stops.
This statement gave Forkner the introduction for his next question. “How long after the October stop did you get your $48,000 back?”
An objection from the government blocked Montes’s answer, but Forkner continued to ask about the sum. “Did the $48,000 match up with the receipt books in the car?” he inquired. Montes replied that the figures had been a close match.
Forkner also wanted to know how often the defendant went to the bank to deposit the CHC’s funds. Montes quickly confirmed that a trip to the bank was not a daily activity. The bank was closed by the time the dispensary closed for the night, he testified, and he was often too busy working to take breaks during the day to make a run to the bank. As a result, Montes said, deposits were made at the rate of one every three to four days. Ostensibly, this explained the instances in which large sums of cash were found in the defendants’ possession, and also emphasized the need for security precautions.
It was then that Forkner reached in to make a key point to the jury. “Why were they always round numbers in the deposits?” he asked, his eyes shining.
Montes answered the question as easily and smoothly as always. “I decided medicine shouldn’t be taxed,” he said, “so we paid the sales tax and just sold in round amounts.”
“You were eating the sales tax?” Forkner questioned.
“Yes,” Montes confirmed.
The exchange had provided fertile ground for three important points. First of all, the payment of sales tax underlined the idea that the CHC was a legitimate and regulated business. Secondly, the idea that Montes paid for this himself, rather than imposing on the CHC’s patients, gave him a humanitarian aura. And, finally, the exchange offered Montes another opportunity to highlight the fact that the marijuana he provided was medicinal.
It was this matter of terminology that inspired objections from Assistant U.S. Attorney Elana Landau during a jury break. “Mr. Montes keeps referring to it as medicine,” she said about the marijuana at the CHC.
Defense attorney Anthony Capozzi was quick, claiming that Montes had used the word “medicine” when characterizing his exchange with the police officers that had pulled him over in a traffic stop. This assertion immediately provoked a chorus of opposition from the prosecution’s table, with Landau and Servatius both crying in unison, “No, no, no.”
Quieting the attorneys, Judge Wanger ruled that the word “medicine” would stay in the record only when it was used to refer to what was told to police. Otherwise, he confirmed, it would be stricken.
Even without the forbidden word, however, Capozzi had plenty of ways to suggest the legitimacy of the CHC. He took over the questioning when the jury returned from their break, beginning by presenting Montes with a document about fire extinguishers. “Did the fire company come by and check the business –”
The question was cut off by an objection from the government, and the judge agreed that the matter wasn’t relevant. Capozzi persisted, but his next inquiry fared little better. “Was marijuana out for them to see when they came by?” he asked, referring to the fire department’s inspection. Montes’s response was blocked by another successful objection from the government.
The defense attorney tried another route. “You consulted with a corporate attorney?” he asked. When Montes confirmed this fact, Capozzi had another question ready. “Did you tell him what kind of business it was?”
Montes had barely breathed a “yes” before Servatius interrupted, claiming that the question called for a hearsay response. The judge agreed, leaving Capozzi to rephrase. “Why didn’t he turn you in?” he asked Montes, referring to the corporate attorney.
This inquiry brought another urgent objection, after which Judge Wanger took the opportunity to tell Capozzi that he was attempting to use a defense that wasn’t permitted. The ruling left the attorney to try a different approach. “Do you feel like you did anything wrong?” Capozzi asked the witness.
Servatius again objected on grounds of relevance, this time adding that the question called for a leading conclusion. Judge Wanger agreed, sustaining the objection. “Wrong” is often a problematic word in the courtroom, blurring the law with notions of moral accountability, and Capozzi returned to explicitly legal language. “Did you form an agreement to distribute marijuana with the other co-defendants?” The defense attorney then looked down and proceeded to read off the names of the others who were charged in the case.
After the government objected to this compound question, Capozzi rephrased and asked about each co-defendant individually. “Did you form an agreement to distribute marijuana with Luke Scarmazzo?” he asked.
“No,” Montes said with assurance. And he gave an identical answer as the defense attorney went down the list of names in the indictment, asking the very same question. When this was finished, Capozzi concluded his questioning, leaving the witness for cross-examination. Montes, however, handled the heat gracefully.
“So you were part owner of the California Healthcare Collective?” Servatius began, stepping up closer to the witness stand.
Montes replied easily, “Yes.”
The prosecutor warmed up quickly. “And your duties were to hire other people to distribute marijuana?”
“Cannabis, yes,” Montes answered.
“And you bought marijuana from people to sell to other people?” Servatius asked.
A brief look of confusion flashed across the defendant’s face. “Through my collective, to other members of my collective,” he clarified.
After a tiny pause, the prosecutor went on. “And you had individual clone marijuana plants to sell in your business?”
“Yes,” Montes answered.
“And you hired Mr. Malagon to grow marijuana in Hughson?” Servatius inquired.
The defendant readily admitted that this was true, his facial expressions remaining plain and open.
The prosecutor continued. “You and Mr. Scarmazzo were the only shareholders at that time?”
“Incorrect,” Montes insisted. “In a not-for-profit business, there are no shareholders. At the time we started, there were shareholders, but then we changed it.”
Landau broke in with an ardent objection to this explanation, but her concerns only went so far with Judge Wanger. As the judge began saying that he would allow the answer “in part,” Servatius decided to skirt the issue by withdrawing her question. For the government, it seemed, it was better to avoid even a partial explanation of Montes’s claims of legitimacy.
Ricardo Montes and Luke Scarmazzo photo by Vanessa Nelson
Servatius pushed ahead with her questioning. “So you and Luke ran the business?”
Montes shook his head. “No, I did,” he said, then went on to speak about Scarmazzo’s authority at the CHC. “He was in charge only when I wasn’t there. Otherwise, he was answerable to me.”
The prosecutor, however, seemed intent on placing both defendants at the top of the management chain. Through her questioning, she got Montes to confirm that he and Scarmazzo both had bankcards for the business account and that they both withdrew money from this account. Servatius also questioned the defendant about a car loan he made to Scarmazzo that was, by Montes’s account, a “mostly verbal” arrangement where no interest was charged.
As it had been with the direct examination, the questions in the cross-examination appeared to bend towards the topic of the guns that were found in the CHC and at the defendants’ homes. Of course, the attorneys were at opposite ends in their motivations for inquiring about this subject. While Forkner had tried to elicit a reasonable explanation for the presence of firearms, Servatius was attempting to stick the defendants with prison time. If they were convicted on their charges, Scarmazzo and Montes would get a sentencing enhancement if the jury found that they had possessed firearms in furtherance of their crimes. To this end, Servatius made a strong effort to link the presence of the guns to the act of distributing marijuana.
Reminding Montes that he said he had a gun for protection, Servatius proceeded with a pointed question. “So the employees in the shop were in danger because there was lots of money and lots of marijuana, and people wanted to steal the marijuana and steal the money?” she asked.
Rather than accepting or denying the prosecutor’s characterization, Montes explained his position. “It’s just like any other business,” he said. “If a jewelry person had a lot of inventory, it would be the same way.”
“So it was there for protection because of the marijuana?” Servatius pushed, referring to the firearm.
Montes responded in a calm, clear tone. “It was there to protect the people, the patients and the employees,” he said. “Marijuana is replaceable. Human life is not.” The explanation was slow, gentle and benevolent. Divorced from its context, it sounded more like Montes was explaining the value of human life to one of his young daughters.
Of course, the reality was a far cry from a heartfelt family discussion, and Servatius reinforced this as she resumed her prodding. “So you wanted to protect people from the people who wanted to steal the marijuana you were selling?” she ventured.
Montes finally assented. “Yes.”
The prosecutor tried for another agreement. “So it’s because you sold marijuana that you needed a firearm for protection?” she attempted.
In the same patient tone, Montes put forth his philosophy again. “I would fear for my family’s safety, not fear the marijuana getting stolen,” he emphasized. “The money and the inventory doesn’t really matter.”
“But you’re in danger because of your business,” Servatius broke in, contradicting the defendant.
“Yes,” Montes responded, but tempered his agreement by comparing his situation to that of a person with a big screen television that was coveted by robbers.
Servatius largely ignored the analogy, instead turning her attention to the fact that the gun found in the kitchen of Montes’s residence had been reported stolen.
“I was in the process of getting it permitted,” the defendant explained.
In answer to the next question, Montes claimed that he didn’t know the gun had been stolen. Forkner and Capozzi simultaneously objected on grounds that it was a legal conclusion that the gun had been stolen, and Judge Wanger requested that the government lay more foundation on this point. For her part, the prosecutor responded by needling the Montes about the origins of the gun.
“Where did you get the gun?” Servatius inquired.
The defendant’s reply was brief and vague. “From a friend,” he said simply.
Servatius smiled at the stunted answer. “What’s his name?” she pushed.
Montes held his ground steadily. “I would rather not say,” he returned. There was no animosity in his voice, nor was there a hint of sneakiness. It was a plain refusal – nothing more and nothing less.
Predictably, the prosecutor pushed the defendant about his reasons for not giving up the name of his friend. “I don’t want him to be involved in this,” Montes said matter-of-factly. “It’s not relevant.”
The last comment rubbed Servatius the wrong way. “Usually the court gets to say what’s relevant,” she corrected, following it up with a little smile.
Montes amended his statement. “Then I’d just rather not say,” he answered simply.
Realizing she had hit a brick wall, the prosecutor abandoned the question. “Did you hire other employees to run the business?” she asked instead.
“Yes,” Montes replied.
Servatius made her inquiry more specific. “The agreement was that Mr. Scarmazzo sell marijuana for you?”
Montes agreed, but only after correcting the terminology. “Cannabis, yes,” he said.
“And you hired other people to sell marijuana for you?” Servatius asked.
Montes hesitated again, conflicted about accepting the prosecutor’s language. “Well, I can’t say medical cannabis because you guys already argued that,” he said good-naturedly. “But cannabis, yes.”
Servatius ended her cross-examination here. She elicited a great deal as far as technical admissions of the defendant’s actions, but she had fallen short of making him into a villain. With his understated responses and his calm, straightforward manner, Montes had maintained the impression of being quite honest. He was in earnest as he testified, and even when he resisted a question or two from Servatius, it didn’t damage his sincerity. He was upfront about his moral objections to certain inquiries, allowing him to refuse an answer without seeming slippery or evasive.
Forkner, however, showed himself to be more eager to push the envelope. Standing up for a brief re-direct, he provoked gasps from Servatius with an outrageous first question. Referring to the admissions about marijuana sales, he asked Montes, “Did Ms. Servatius ever call you up and tell you not to do this?”
It was a typical entry for Forkner, but Servatius expressed shock nonetheless. “Objection!” she broke in urgently. “I would ask that counsel be admonished!”
CHC Trial Protestors photo by Vanessa Nelson
Turning to the jury, Judge Wanger said that the question should be disregarded. He followed this up with a stern reminder to Forkner to avoid a repeat performance.
Forkner obliged, wrapping up his re-direct quickly. His final questions gave Montes one last opportunity to justify his possession of firearms. “Why was the gun in the safe?” the defense attorney asked.
“To keep it from falling into the wrong hands,” Montes explained. “You don’t want the gun out when people are around, when there are patients there.” Right up to his last sentence, the defendant subtly pressed the terminology of medical marijuana into the ears of the jurors.
Satisfied, Forkner relinquished Montes and allowed him to be excused from the stand. Where Montes had been cool and ruffled few feathers during the period of intensive questioning, his attorney had used the examination to step up his strategy. Put plainly, Forkner had shown himself to be as zealous in protecting his client as he had been in attacking the government’s witnesses.
Played with less skill and charisma, this level of aggression could easily be seen as frighteningly predatory. But because Forkner did it with a glowing smile and self-possessed charm, he could come in with guns blazing and earn the jury’s adulation rather than its alienation.
Nevertheless, the outlaw-hero image was a tricky one to maintain and effectively utilize. Whether his tactics conveyed valor or treachery to the jury was anybody’s guess, but at the conclusion of Montes’s testimony one thing seemed certain: Forkner was still the fastest draw in the Eastern District.
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