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Written by Vanessa Nelson
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Friday, 17 October 2008 00:59 |
 Luke Scarmazzo photo by Vanessa Nelson
The legal conflict came to a head when the Drug Enforcement Administration raided the CHC in September 2006. The bust left the dispensary shuttered and nine people indicted on federal charges. By the time the case went before a jury, though, Scarmazzo and Montes were the only ones left in the hot seats. In order to secure guilty verdicts against the pair, prosecutors offered lenient plea deals to co-defendants who were willing to testify for the government at trial…and most of them accepted. The spectacle of friends and former co-workers taking the stand against each other only contributed to the drama of what was already a tense legal situation.
The conflict between state and federal law prevented Scarmazzo and Montes from mounting a medical defense to their charges. With most cases in U.S. District Court, this means all evidence about California law and mentions of medical marijuana are kept away from the jurors. However, as a defense to the charge of continuing criminal enterprise, Scarmazzo and Montes were permitted to show the jury that the CHC was a legitimate business. To this end, the defendants presented articles of incorporation, receipts, tax records and other business documents that stated that the CHC was operating in compliance with California law. Even though the jurors saw all this information, the judge also instructed them that they could only consider federal law when reaching their verdicts. It made for a delicate situation during deliberations, and what happened in the jury room became the focus of the new trial motions that was argued in court last week.
After deliberating only an hour, an elderly man named David Jackson issued a request to be removed from the jury and was brought into the courtroom for questioning. He was admitting a bias, he declared, and it was one he had failed to disclose during the jury selection process. Although he had spoken about his wife’s recent death, Jackson had not revealed that his wife had used medical marijuana while struggling with terminal illness. For that reason, Jackson explained, he couldn’t live with himself if the jury convicted the defendants. After finding that Jackson’s behavior qualified as juror misconduct, Judge Wanger dismissed him from the jury and ordered deliberations to proceed with an alternate.
Verdicts came in quickly after the jury reassembled, but the incident left observers wondering if Jackson’s misconduct could have more serious consequences. Defense attorneys had similar concerns, and following the convictions they began preparing motions to set aside the verdict and order a new trial. Defense attorney Robert Forkner asserted that the incident had a chilling effect on other jurors who may have wanted to acquit, but his argument was curtailed because a juror’s thoughts and mental processes are inadmissible as evidence. That wasn’t the end of the story, though. As Forkner and co-counsel Anthony Capozzi continued to interview the former jurors, the defense attorneys encountered more issues of concern.
In particular, former juror Craig Will revealed that his decision on the verdicts was affected by reading a brief summary of an online newspaper story. The article in question was a San Francisco Chronicle piece about how the future U.S. President may be more lenient in dealing with medical marijuana dispensaries. The story didn’t mention the CHC trial or the defendants, and Will maintained that he didn’t read the full article until after the verdicts. “I read the headline and the teaser, unconsciously, for the story about the presidential candidates,” he recalled. “I realized that I perhaps shouldn't read the article, and so I never clicked on the link.”
 Ricardo Montes photo by Vanessa Nelson
The jurors’ exposure to media stories, of course, was a significant concern during the trial last May. Each day, Judge Wanger greeted the jurors by polling them about whether they had been exposed to any news stories related to the case. On the two occasions when articles about the defendants appeared in the Fresno Bee, juror Larry Silva was the one to raise his hand. Both times, he told the judge, “I saw there was an article, and I put it down.” Both times, Judge Wanger smiled and assured Silva that he had done exactly as he was supposed to do.
Will’s behavior, however, inspired pointed words from Judge Wanger last week. “What could have been clearer? Don’t expose yourself to the media,” the judge said, recalling his instructions to the jury. Continuing, he asked and answered more of his own pointed questions. “What was the subject of the trial? Medical marijuana. And what was the subject of the article? Medical marijuana.”
An initial look at Will’s claims about news exposure suggests that his actions were comparable to those of Silva. In scanning separate lists of general news in separate media, both men encountered a headline and a summarizing sentence about a medical marijuana story. Realizing that the subject matter was relevant to the issues in the trial, both men stopped short of reading the article itself. That is, however, where the similarities end. After all, it was Will who admitted to making decisions about the case based on what he had read. And it was Will who shared the information from this media exposure with the other jurors, an act that supposedly influenced the deliberations.
By Will’s account, explaining the news summary fostered a sentiment in the jury room that the trial charges weren’t serious. “From a certain perspective, it is the state government having a war with the federal government, with the defendants getting caught up in the crossfire,” Will said of the CHC case. “The idea that a new administration might not prosecute these cases did lead to a feeling of, ‘Well, this is just a game… The fact that the new administration will not even bother to prosecute the crime at all suggests that it is not a biggie.’”
This notion was echoed in Silva’s own affidavit. In a statement that was submitted with defense’s new trial motions, he explained that his doubts about the defendants’ guilt were eclipsed by the idea that the offenses weren’t serious. Without that suggestion, Silva maintained, he would not have found the defendants guilty.
 Luke Scarmazzo and supporters outside the court building photo by Vanessa Nelson
Judge Wanger, however, made his decision without requiring the former juror to take the stand. The information in the Chronicle headline and summary, the judge ruled, was not prejudicial against the defense. Any sway it had on the jurors was due to their personal interpretations of the material, or what the judge called “the subjective effects of information.” Since the jurors’ mental processes cannot be considered when scrutinizing their verdicts, Judge Wanger refused to receive Will and Silva’s declarations into evidence.
Besides, the judge noted, the content of the Chronicle article was biased towards the defendants. “The information here is just that a future presidential candidate may treat medical marijuana crimes more leniently – is that favorable or unfavorable to the defendants?” Judge Wanger asked. “Favorable, because it’s about making penalties less.” If a juror took favorable information and analyzed it in a way that made it unfavorable, he concluded, that wasn’t enough to justify overturning the verdict.
The defense was requesting a new trial on several other grounds, but these were argued and denied so quickly that it felt like going through a checklist.
First was the argument that the jury should have been advised that the charges carried mandatory minimum sentences. In this case, the conviction for continuing criminal enterprise required a sentence of twenty years to life in prison. Although the jury had been instructed not to consider punishment when arriving at the verdicts, Will’s affidavit made it clear that jurors had tried to calculate potential sentences for the charges on which they were deliberating. As described in the declaration, the foreman looked through the plea deals for the other seven co-defendants in the case and shared this information with the other jurors. What resulted, according to Will’s statement, were a string of misconceptions about which charges carry mandatory minimum sentences.
“Four jurors told me they wouldn’t have convicted if they knew about the mandatory minimum,” Capozzi announced.
At that, the voice of the prosecutor blared through the courtroom speakers. “He’s just saying that for the press!” accused Assistant U.S. Attorney Kathleen Servatius, who was recently assigned to Washington D.C. and participated in the hearing by telephone.
Capozzi countered by presenting a decision from New York federal judge Jack Weinstein, who recently threw out a child pornography conviction because he had failed to instruct the jury about the mandatory minimum sentence. If held up in higher courts, this ruling could dramatically change the way juries are instructed. However, since Judge Weinstein’s ruling is on appeal, it didn’t provide solid ground for a legal argument. Accordingly, Judge Wanger dismissed the defense’s claims on this subject.
“This should go to legislators or to an appellate court,” he explained. “The legislature isn’t perfect. They don’t always get things right. How many years did we go with the powder/crack cocaine disparity before Congress finally changed the law?”
Moving on, Capozzi argued for a new trial because the defendants’ business lawyer had not been permitted to testify about state law when he took the stand during trial. However, the judge denied this motion almost as soon as it was articulated, and he followed it with a comment that underscored his displeasure about his jury instructions being violated. Suggesting that it wouldn’t have made a difference if the jurors had heard the restricted information, he said, “They didn’t listen to you, they didn’t listen to me.”
When ruling on the next motion, however, Judge Wanger appeared to use contradictory logic. The defense was asking for an acquittal on the continuing criminal enterprise charge, saying that there was no indication that the jurors had done one of the things required for a guilty verdict – finding that the defendants had committed three other felony offenses and unanimously agreeing on which offenses those were. “How do we know the jurors found all three?” Capozzi questioned the judge.
The answer depended on a high level of faith that the jury had followed the court’s rules. “Because they were instructed to do so,” Judge Wanger replied as he denied the motion.
As it stood, the defense had just one last chance at winning a new trial, and it relied on a claim of vindictive prosecution. “Except for a case out of Bakersfield, this is the only continuing criminal enterprise case with a medical marijuana dispensary,” Capozzi asserted. “Both cases are by this U.S. Attorney.”
Servatius’s voice came over the speakers again, jarringly loud. “We have numerous cases where we charge continuing criminal enterprise for individual drug dealing,” she reminded the judge confidently.
For his part, Judge Wanger pointed out that it’s the job of a prosecutor to bring criminal charges. “You can’t interfere with the discretion of the U.S. Attorney unless you bring evidence of animus based on something not associated with the prosecutorial function,” he responded.
 Ricardo Montes and supporters outside the court building photo by Vanessa Nelson
Since Judge Wanger had permitted it at trial, there was little chance of convincing him that the video’s screening was evidence of prosecutorial misconduct. The judge denied the motion outright, adding in a nod towards Capozzi, “I believe you were mightily entertained by it and thought it was a good piece of art.”
By the time Judge Wanger finished ruling on the new trial motions, the clock had pushed past 4pm and little time was left for the sentencing. Looking pale and lean in red jumpsuits, Scarmazzo and Montes were led back to their holding cell and ultimately re-deposited at Fresno County Jail. There, they will await their next hearing, which has been scheduled for November 10th at 2pm. In the meantime, with probation recommending 25 years for Montes and 30 years for Scarmazzo, their prospects at sentencing look grim indeed.
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Last Updated on Friday, 17 October 2008 01:15 |
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