Pubdate: Thu, 01 Nov 2007
Source: Modesto Bee, The (CA)
Copyright: 2007 The Modesto Bee
Contact:  http://www.modbee.com/
Details: http://www.mapinc.org/media/271
Author: Susan Herendeen
Cited: National Organization for the Reform of Marijuana Laws 
http://www.norml.org
Cited: Americans for Safe Access http://www.americansforsafeaccess.org
Bookmark: http://www.mapinc.org/topic/dispensaries
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

POT CLINIC TRIAL RESET FOR APRIL

Federal Bar on State Law to Hinder Defense

Two Modesto men who ran a medical marijuana clinic on McHenry Avenue 
will have a difficult time mounting a defense against federal drug 
charges if they cannot talk about the pain relief the drug can 
provide or their efforts to ensure that the California Healthcare 
Collective complied with state laws.

But they won't have to go to trial Nov. 13 in U.S. District Court in 
Fresno. Judge Lawrence J. O'Neill on Wednesday pushed the trial back 
to April 15, giving the defense a few more months to challenge a 
prosecutors' contention that the voters' decision to legalize medical 
marijuana has no place in federal court.

Ricardo Ruiz Montes, 27, and Luke Scarmazzo, 27, were arrested in 
September 2006 after a 15-month investigation that included 
surveillance and purchases by undercover agents who had prescriptions 
for medical marijuana.

Their attorneys want to show that the collective had a business 
license, paid taxes and cooperated with the City Council, which 
eventually voted to ban such dispensaries.

They also say Montes, Scarmazzo and six other defendants who face a 
host of drug and conspiracy charges are victims of entrapment, 
because they called to verify prescriptions the agents presented, as 
required by law.

"I want to show how these agents purchased this marijuana," said 
defense attorney Anthony Capozzi of Fresno, who represents Scarmazzo. 
"The government wants to leave all that out."

$40k Clinic Ballooned to $4.5m

The case has been closely watched because the collective raked in 
$4.5 million between December 2004 and June 2006. Scarmazzo also has 
drawn attention, because he released a rap-style music video in which 
he shakes his fist at the City Council a few months before his arrest.

Montes started the collective with a $40,000 settlement he got from 
an injury accident. His attorney said the collective would have 
closed its doors if Montes thought he was doing anything wrong or 
believed he'd face federal prosecution that could result in 20 years 
to life behind bars.

"It wasn't a secret, clandestine lab," said attorney Robert Forkner 
of Modesto, who represents Montes.

A 2005 ruling by the U.S. Supreme Court said a 1996 initiative that 
legalized marijuana for medical uses in California does not shield 
people from federal prosecution.

U.S. Attorney Kathleen Servatius argues that the political debate 
surrounding medical marijuana is out of bounds in federal court.

"Defendants cannot identify a single authorized federal government 
official who erroneously told them it was permissible to sell 
marijuana," Servatius said in legal papers.

Raids Have More Than Doubled

The collective was one of 20 pot clubs statewide raided in 2006 by 
the Drug Enforcement Agency. Federal investigators have more than 
doubled their efforts so far this year, raiding 45 pot clubs.

The National Organization for the Reform of Marijuana Laws, a 
Washington, D.C.-based group, estimates that there are more than 400 
medical marijuana dispensaries in California, and more than 150,000 
medical marijuana users.

Three cases have gone to trial in federal courts in California since 
the high court's opinion two years ago. Testimony about Proposition 
215, the initiative that legalized medical marijuana in 1996, has 
been banned each time.

"These cases in federal court are extremely difficult to defend," 
said Kris Hermes, a spokesman for Americans for Safe Access, a 
nationwide medical marijuana advocacy group that is based in Oakland. 
- ---
MAP posted-by: Richard Lake