September 8, 2008 -- Modesto Bee (CA) Second Thoughts And A New Pot Trial? By Susan Herendeen

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Original article: www.modbee.com/1618/story/422071.html

Buyer's remorse from two of 12 jurors is not enough to toss out guilty verdicts that could send two men who ran a Modesto-based medical marijuana dispensary to prison for decades or even life.

So attorneys who want to win a new trial for Ricardo Ruiz Montes and Luke Scarmazzo are taking a different approach, arguing that jurors were unduly influenced by a San Francisco Chronicle story about pot clubs that was published during their deliberations.

The lawyers are backed by Juror No. 3, Craig Will of Twain Harte, and Juror No. 5, Larry Silva of Tollhouse, east of Fresno. They said they would not have convicted Montes and Scarmazzo of engaging in a continuing criminal enterprise had they realized the felony carries a mandatory prison sentence of 20 years to life.

In a declaration filed in U.S. District Court in Fresno, Will said he intended to find the men not guilty until he read a summary of a news story that said future administrations likely would not prosecute dispensaries in states that have legalized marijuana for medical uses.

"I then decided to find the defendants guilty, since it appeared as though this wasn't a serious crime," Will told the court.

In a companion declaration, Silva said Will's mention of the news story prompted him to change his vote as well.

"I did not think that this was a serious case and decided to find the defendants guilty, even though I had doubts about both defendants' guilt in this matter," Silva told the court.

The affidavits form the crux of a motion for a new trial that will be heard Sept. 15, when Judge Oliver W. Wanger is scheduled to sentence Montes and Scarmazzo.

On May 15, Will, Silva and 10 others said Montes and Scarmazzo are guilty of manufacturing and possessing marijuana, as well as operating a continuing criminal enterprise. Jurors cleared both men of weapons charges and deadlocked on a conspiracy charge that later was dismissed.

Five days later, Will and Silva were the first two people to sign an online petition contesting the mandatory minimum sentence the men face.

Jessica Santos of Modesto, who is collecting signatures at gopetition.com, said Montes and Scarmazzo may have flaunted profits from a dispensary that generated $9 million even as city officials pledged to shut it down, but don't deserve decades of prison for running a business they thought was legal.

"Why do we even waste time, money and resources voting if, ultimately, it never matters in the end," said Santos, who described herself as a friend of Scarmazzo's wife. "Luke is going to serve time in prison until he's 55, for running a business that was legal in our state."

Defendants: We Followed The Law

Montes, 27, and Scarmazzo, 28, testified on their own behalf during their trial this spring, saying the California Healthcare Collective, formerly on McHenry Avenue, complied with state laws, paid taxes, verified doctor's recommendations before every sale and had a business license from the city.

They were undercut by plainclothes drug agents who bought marijuana at the dispensary, which was open from December 2004 to June 2006. Agents found more than 1,100 marijuana plants, 13 guns, 60 pounds of processed marijuana and $140,000 in cash in homes associated with the defendants.

Jurors saw a video featuring would-be rap artist Scarmazzo flashing wads of cash and shaking his fist at a mock-up of the City Council, which failed to shutter the business even after two votes aimed at banning medical marijuana dispensaries.

Once the verdicts were in, U.S. Attorney McGregor Scott called a news conference in Modesto, where he was flanked by Police Chief Roy Wasden and Stanislaus County District Attorney Birgit Fladager.

The federal prosecutor called Montes and Scarmazzo the "poster children" for problems with California's Compassionate Use law.

Since then, the state attorney general's office has issued guidelines for law enforcement regarding medical marijuana dispensaries and their clients, saying cooperatives and collectives must incorporate, operate as nonprofit organizations and equitably distribute earnings among their members.

Before those guidelines, the terrain was murky, letting the California Healthcare Collective incorporate as a nonprofit even though Montes and Scarmazzo paid themselves $13,000 a month, purchased jet skis with profits from marijuana sales and tooled around town in a $180,000 Mercedes-Benz.

The legality of medical marijuana is a hot topic because state and federal law contradict each other.

A 1996 state initiative said qualified patients and primary caregivers may cultivate and possess small amounts of marijuana for medicinal use. A 2005 U.S. Supreme Court ruling said medical marijuana laws in California and 12 other states do not shield people from federal prosecution.

The Bush administration ramped up prosecutions after the high court ruling, with drug enforcement agents raiding 90 dispensaries across the state and prosecutors filing criminal charges in about half of those cases, according to Americans for Safe Access, an Oakland-based advocacy group.

The Beginning Of A Trend?

The Modesto dispensary was the first to go to trial in federal court and the first case in which dispensary operators were charged with engaging in a continuing criminal enterprise, according to attorney Anthony Capozzi of Fresno, who represents Scarmazzo.

Prosecutors subsequently brought the continuing criminal enterprise charge in a dispensary case in Bakersfield, so the stiff charge could be the beginning of a trend. But observers think the next administration may back away from the policy of raids and federal prosecution.

Sen. Barack Obama of Illinois has said he would let states make their own rules. Sen. John McCain of Arizona has backed raids, but also promised that seriously ill patients would never face arrest for using marijuana -- according to the news story Will and Silva mention in their affidavits.

"Those who are interested in medicinal marijuana are watching this case very closely," said Capozzi, who argues that the trial is the result of a vindictive prosecution.

Jurors are expected to weigh guilt and innocence, not the possible penalties their verdicts will bring, so the discomfort Will and Silva felt when they learned that their verdicts would bring a mandatory 20-year sentence is irrelevant in the legal arena.

But the notion that a news story -- or any outside source -- could have influenced the outcome may be enough to set aside the verdicts and retry the case with a new jury. As a prosecutor noted in legal papers, jurors were frequently admonished not to read news stories about the case.

Juror Conduct At Issue

Attorney Robert Forkner of Modesto, who represents Montes, said he will ask the judge to hold a hearing with Will and Silva, and any other juror the court may want to summon, to determine whether the deliberations were fair.

"If there's juror misconduct, the judge has to give us a new trial," he said.

Meanwhile, six former co- defendants who accepted plea deals and testified against Montes and Scarmazzo got sentences that ranged from probation to one year in prison. Some worked at the dispensary and operated extensive cultivation operations in homes and others bought large amounts of marijuana from the dispensary.

Before the trial, Montes and Scarmazzo told The Bee that they preferred to take their chances with a jury rather than accept a 10-year plea deal prosecutors offered. Verdicts in hand, the U.S. attorney's office is recommending 25 years to life for Montes and 30 years to life for Scarmazzo.

Given another chance, the defendants would make a deal.

"If we get a new trial," Forkner said, "we're going to settle this case."

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.

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