Pubdate: Mon, 8 Sep 2008
Source: Modesto Bee, The (CA)
Copyright: 2008 The Modesto Bee
Contact:  http://www.modbee.com/
Details: http://www.mapinc.org/media/271
Author: Susan Herendeen
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/topic/dispensaries

SECOND THOUGHTS AND A NEW POT TRIAL?

Marijuana Dispensary Case Jurors Regret Voting Guilty; Lawyers Want New Hearing

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." 
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MAP posted-by: Richard Lake