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Written by Vanessa Nelson
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Sunday, 07 December 2008 04:45 |
Last May, a federal jury found Scarmazzo and Montes guilty on cultivation and possession charges, as well as a count of continuing criminal enterprise. These convictions were all related to a medical marijuana dispensary, the California Healthcare Collective, which Scarmazzo and Montes ran for nearly two years in the city of Modesto.
The CHC distributed marijuana exclusively to patients who provided valid recommendations from qualified physicians, in accordance with California’s medical marijuana act. But because the U.S. government refuses to recognize California’s law regarding medical marijuana, arguments about the CHC’s compliance with state law were strictly limited at trial. At sentencing, however, the matter became a key issue of debate.
Following state law does not get a medical marijuana defendant off the hook in federal court, but this factor can make a slight difference when a prison sentence is being determined. On occasion, a judge’s consideration of a defendant’s compliance with state law will result in a minor adjustment in the applicable sentencing levels. To learn more about state law, Judge Wanger called on Assistant U.S. Attorney Elana Landau, who acted as co-counsel for the government at trial. As a former prosecutor in state court, Landau ostensibly had experience and authority to argue about what was legal on that level. “Under state law, you are not entitled to profit,” she answered.
Landau went on to cite the 2005 appellate ruling in People v. Urziceanu, which affirmed that Senate Bill 420 provides legal protections for medical marijuana collectives that receive reasonable monetary reimbursement from the patients they serve. Landau, however, suggested that Scarmazzo and Montes received a level of compensation that was unreasonable and went far beyond recovering their expenses. “There’s evidence the defendants profited,” she told the judge, emphasizing the final word.
 Convicted dispensary operator Luke Scarmazzo was in earnest at sentencing
It didn’t take much more for the prosecutors to convince Judge Wanger on this point. Recalling trial testimony, the judge referenced Scarmazzo’s purchase of a $180,000 Mercedes, his luxury travel expenses and an affinity for designer clothing. Along with the “excessive compensation,” Judge Wanger said, these things were “disabling” for non-profit status. “I am confident that would have been found if this was litigated,” he added.
The government also claimed that marijuana from the CHC had been diverted for non-medical purposes, which was in clear opposition to California law. This claim turned up on the probation report, which cited an assortment of law enforcement reports of CHC medicine bottles being found in possession of non-patients who had no association with Scarmazzo and Montes. To Capozzi, holding the defendants responsible and penalizing them for these seemingly random busts was unfair. “The report says the defendant sold marijuana to individuals who were in turn selling it to other people,” the defense attorney said, appealing to the judge. “There’s no evidence of that.”
Arguing against the deletion of these statements, Servatius pointed to a section early in the report that quoted from a police officer. “‘We arrested people who bought it from other people who bought it from the CHC,’” Servatius paraphrased the officer’s words, presumably about a marijuana seizure. “The information has relevance, though it might not affect [the defendant’s] sentence.”
Looking in detail at one of the cited incidents, Judge Wanger read through the facts of a case in which law enforcement officers found CHC bottles in the property of a juvenile. “It doesn’t say what’s in the bottles, what liquid,” the judge commented. By assuming the containers were for fluids, he appeared unaware that the medicine bottles were the packaging for the marijuana buds sold at the CHC.
 Sentencing was somber for convicted dispensary operator Ricardo Montes
“There was no evidence of this presented at trial, and there’s no evidence in what was presented for sentencing” the judge declared, finalizing his decision.
Undeterred, the government went on to suggest that there was another reason that the CHC may not have been legal under state law: its patients weren’t sick enough. Landau informed the judge that she had examined 83 doctors’ recommendations belonging to the CHC’s patients, and discovered that they were for illnesses she did not consider serious. “Pain to the back, pain to the knee, mood disorders, neck pain, foot pain, anorexia…there was a 22-year old with carpal tunnel!” Landau rattled off a list of the conditions she deemed less-worthy of medical marijuana. “Not one person with a grave, horrible illness!”
For his part, Judge Wanger reinforced the idea that he was not on the bench to make medical decisions. “Science and politics are beyond the court,” he said. “There are strong views about the deleterious properties of marijuana. There is also another set of views … that is a battle to be fought in the halls of Congress and the Executive. One place it can’t be battled is the courts. We don’t make law.”
The statement sounded final, but the judge was not done interpreting state law. In his view, there was a final factor that caused the CHC to fall outside the protections of state law. “If there was some effort to have growing areas that supplied the collective, then there would be reason to rule differently,” Judge Wanger commented, saying that California law requires medical marijuana collectives to designate cultivation areas. The judge made this declaration in spite of the fact that the defendants were both convicted for cultivation in connection with a grow house that supplied the CHC and was managed by a CHC employee.
As it turned out, the judge was comfortable overriding the jury’s decisions. “The court finds there was substantial evidence of a conspiracy, even though the jury did not,” Judge Wanger stated. Therefore, the marijuana and firearms found at an associate’s residence would count against Scarmazzo and Montes at sentencing. The only item excluded from this list was a small amount of cocaine attributed to a CHC employee, for which charges had already been dropped.
Capozzi objected strenuously to this ruling. His client’s sentencing level should not be increased because of the possession of firearms, he declared. After all, the jury acquitted both defendants on the firearms charges at trial. The government, however, had a more simple explanation. “Whether they were found guilty or not, there were guns in the residences and the business,” Servatius asserted.
Judge Wanger agreed with the prosecutor, recalling statements one of the defendants made on the stand. “Mr. Montes’s testimony was, ‘We don’t want it to be, but this business is dangerous… I’m not carrying [a gun] for personal protection, but carrying it because we’re a target, because of the business,’” the judge paraphrased. “So, he has it for the sake of the business. I don’t know how you avoid this conclusion.”
Capozzi also objected to the probation report, which stated that there were a thousand plants at the grow house associated with the CHC. He reminded the court of trial testimony that all but approximately twenty of those plants were unrooted clones, then insisted, “The jury made a special finding that it was under a hundred plants.”
“It doesn’t matter,” Servatius countered. “That’s how many there were. The evidence shows it.” The jury’s finding, she said, was not controlling for sentencing.
Judge Wanger agreed with the prosecutor. “A finding for sentencing enhancement does not punish a defendant for crime which was not committed.” In calculating the quantity for sentencing a drug offender, he explained, the court uses a standard that’s broader than the jury’s standard. The jury must have proof of guilt beyond a reasonable doubt in order to convict, while determinations at sentencing are based only on a preponderance of evidence. Therefore, Judge Wanger could sentence Scarmazzo and Montes for the cultivation of a thousand plants, even though the jury found them guilty of a lesser amount. And that’s exactly what he did.
The argument over the plant count was just one instance in which math got fuzzy during the sentencing hearing. Before the final quantity calculation, there was another number that needed to be determined: for the continuing criminal enterprise conviction, the judge needed to estimate the total amount of marijuana that had ever passed through the CHC. It proved a difficult task, and it led to some confusing mathematics. Although the CHC had thorough transaction records, the receipts seized by federal agents often listed dollar amounts and not quantities of marijuana. Using a forensic accountant, the government reached a total of $9.2 million for the gross sales of the CHC during its 23 months of operation. “We only had money, and we know they earned it selling marijuana,” Servatius said. “We know they sold joints, we know the amount of marijuana that was in them, and we know the amount of money that was there.”
 Defense attorney Anthony P. Capozzi represented Scarmazzo at trial
Capozzi also posited that his client should be sentenced solely for the quantity of marijuana that was seized from the CHC by law enforcement. “To go beyond that is purely speculative,” he argued.
“By the defense’s calculation, the defendant won’t be punished for two years’ worth of sales that he made,” Servatius said, scoffing at Capozzi’s suggestion.
Agreeing with the prosecutor, Judge Wanger commented that the defense was attempting to portray a “still picture in time,” while the conviction was for criminal enterprise that functioned over time. He reaffirmed that he would rely on the government’s characterization of which amounts were relevant for sentencing.
Undeterred, Capozzi kept fighting, arguing that the quantity was a result of sentencing entrapment. As such, the defense attorney was claiming that law enforcement agents had lured their target into increasing his level of criminal activity so that he would qualify for a higher tier of punishment at sentencing. “Undercover agents came in [to the CHC] in 2005,” Capozzi reminded the judge. “They went in consistently over several months … They let the defendants operate the business and accumulate marijuana.”
“Mr. Capozzi is ignoring the fact that Mr. Scarmazzo sold marijuana without inducement for two years,” Servatius retorted. “Any defendant could make an argument that they would have stopped if arrested earlier.”
Judge Wanger rejected the claim of sentencing entrapment outright, referring back to in camera testimony given by Stanislaus County law enforcement officers during a hearing on the genesis of the case. The judge insisted that the seven-month time delay between the undercover operations and the raid of the CHC was not for the purpose of busting the defendants for a larger quantity of marijuana. Based on the testimony of the local officers, Judge Wanger concluded that the delay was caused by Stanislaus County handing the case over to the feds. “It was about state authorities not knowing what to do and going to the federal authorities,” the judge said. “It’s a case of the right hand not knowing what the left hand was doing.”
“The state didn’t prosecute it because it was legal under state law,” Capozzi argued, only to be drowned out by a reiteration of the judge’s findings to the contrary. “They were allowed to operate under state law,” the defense attorney tried again. “They were in the permit process.”
“They were in litigation with the city,” Servatius noted. “The city was doing all it could to shut them down.”
Judge Wanger laid the debate to rest. “There was no action by the government that overbore their wills,” he concluded about Scarmazzo and Montes. Then he turned to the defense attorneys, saying, “In the hearing, you argued vindictive prosecution. This is an issue of prosecutorial discretion. The government is free to take the time it needs to investigate.”
Working backwards from the prosecution’s figure of $9.2 million in total sales, the judge turned his attention back to estimating the total quantity of marijuana the CHC had sold. This calculation soon became a misadventure in metrics. The probation officer suggested the value of the CHC's marijuana might have been $100 per kilo, meaning that the CHC would have distributed 92,000 kilos of marijuana over a period of just under two years. This figure put the offense level through the roof. The government thought this quantity was too high, leading to speculation about whether the marijuana should be valued at $1000 per kilo instead. Eventually, the judge elected to scrap all the prior math and do his own calculations. His results yielded the more reasonable price of $10,000 per kilo and a quantity of 920 kilos.
The government said it was being very generous by basing their figures on the priciest marijuana at the dispensary, which was sold for $10 per gram. After an objection from the defense and some testimony from Scarmazzo, however, it turned out that the government was actually doing its calculations from the cheapest product at the dispensary. The $10 price was for a pre-rolled joint, and Scarmazzo testified that most patients wanted buds, which went for up to $20 per gram at the CHC. After some argument between sides, the judge finally settled at an average price of $15 per gram and calculated the quantity of marijuana distributed by the CHC to be just over 600 kilos. This amount would set the position for both defendants’ offense level within the sentencing guidelines.
 Luke Scarmazzo drew criticism from the judge and the prosecutor for his provocative public statements
In light of these facts, Capozzi objected to the probation report’s statement that Scarmazzo had been “involved in a murder case.”
Servatius disagreed. “That’s accurate,” she insisted about the probation report. “There were three guys chasing a guy and he got killed. I believe one was convicted of murder.”
Circumstances permitted the facts of the case to be settled quickly. Robert Forkner, who was present to defend Montes, also served as the attorney for one of Shryock’s assailants. When asked by the judge, Forkner explained that there were no murder convictions – two of the co-defendants pled guilty to manslaughter, but Scarmazzo pled guilty to assault with force likely to produce great bodily injury. Forkner also referenced case evidence indicating that although Scarmazzo had punched the victim, he also tried to keep one of his friends from hitting Shryock with a metal pipe. Upon hearing this, Judge Wanger ordered the probation officer to amend the report by replacing the word “murder” with the correct terminology for the assault charge.
“Mr. Scarmazzo was not convicted of any homicide crime,” the judge declared.
A change in the rhetoric alone was not enough to satisfy Capozzi, who also wanted a sentencing level reduction for Scarmazzo. “The criminal history is over-stated,” Capozzi protested. “The defendant was trying to help someone, not hurt him.”
That was too much of a stretch for Judge Wanger. “But he hit him,” the judge pointed out, incredulous at Capozzi’s claim. Refusing to reduce Scarmazzo’s criminal history level, the judge went on to comment that the assault on Shryock was unjustifiable. The egging of cars had been a crime against property, Judge Wanger emphasized, and it was wholly inappropriate for the attackers to respond with violence.
Seizing upon the judge’s disapproving mood, Servatius began to argue against reductions for the acceptance of responsibility. In her view, Scarmazzo had been dishonest with law enforcement officers as soon as he was out of jail for the Shryock assault. “The defendant got out of custody and immediately began selling marijuana,” she said, “and lied to his probation officer.”
As expected, Capozzi characterized the situation in a dramatically different way. According to the defense attorney, Scarmazzo gave multiple statements to police about his involvement with the CHC, and then took full credit for his actions when he testified during trial. “Come on,” Capozzi urged the judge.
“The defendant didn’t take credit on the witness stand – he denied everything except that he was an employee of Mr. Montes,” Servatius returned with vigor. Then she mentioned the content on Scarmazzo’s MySpace page and other statements he made publicly. “The defendant seems very proud of what he did, instead of being ashamed and admitting he violated the law.”
Noting that the acceptance of responsibility involves an element of contrition, Judge Wanger concluded that Scarmazzo did not demonstrate adequate remorse. “Throughout the case, the defendant’s attitude has been that they had a defense under the law,” the judge noted. “The attitude expressed on the video acknowledged his conduct violated federal law… He said, ‘We’ll follow state law – the feds can go jump in a lake.’”
It was a gentle way of characterizing the famous line in the music video of Scarmazzo’s rap song “Business Man,” in which he tells listeners to “put your finger in the air and yell, ‘Fuck the feds!’” The video’s story, which was scripted with the help of a Hollywood production company, was of a drug dealer striving to gain legitimacy as a business man. In spite of the fact that it was purely fantastical, the video was screened for the jury as the finale of the government’s case at trial. Defense attorneys argued that the video was inadmissible as evidence and that showing it prejudiced the jurors, but their argument will have to wait for the appeal in order to be put to the test.
In the meantime, at the defense’s urging, Judge Wanger decided to defer his ruling on the acceptance of responsibility until after the defendant delivered his personal statement. Capozzi requested that Scarmazzo’s shackles be loosened while he read his speech, so that the defendant could see his notes more effectively. The judge appeared to acquiesce, but the marshals who guarded Scarmazzo needed a more definite agreement before they would unlock the chains. “The policy is that we don’t uncuff them unless you order it,” the marshal standing on the left side of Scarmazzo explained. After a moment of contemplation, Judge Wanger ordered that the defendant have one hand free while he read his personal statement.
 Supporters for Scarmazzo and Montes watched the court case close-up
Chains clanking, Scarmazzo shuffled up to the podium and waited for his hand to be unfettered. Once he began his statement, he spoke steadily in a calm, clear voice. First, he attempted to clarify state law regarding medical marijuana dispensaries, quoting extensively from Senate Bill 420 and defending the CHC as a legitimate non-profit business. Continuing, he revealed that he and Montes had been undergoing a hunger strike to protest the injustice of their incarceration and sentencing. Then he moved on to address the acceptance of responsibility.
Some of what was said about him at trial was true, Scarmazzo admitted, but other things were untrue. Regarding his role in the CHC, he said, “I gave medical cannabis to the seriously ill. I did not do so out of lawlessness or lack of respect for the law, but was authorized to do so under state law.”
According to the defendant, it was misleading to call the trial “The United States versus Luke Scarmazzo and Ricardo Montes.” This title implied that the prosecution was done by the will of the people, Scarmazzo insisted, when it was really an action made “by some who imposed the will of the tyrannical few.”
This situation had made the courtroom into a battlefield, by Scarmazzo’s description. “Sometimes power must come at the end of a sword,” he said.
Touching on political theory, Scarmazzo declared that states must have freedom to make their own laws so that they may be experimental laboratories for the nation as a whole. He also drew from James Madison to speak about the importance of the separation of power in the government. Many forefathers considered the judicial branch to be the weakest arm of government, and Scarmazzo indicated one particular way that the legislative branch has dominated courtroom decisions. “My sentence was decided when I was eight years old,” he announced, referencing legislation passed by Congress in 1988 to instate mandatory minimum sentencing.
In Scarmazzo’s view, mandatory minimums disabled judges and perverted justice. This was especially true, he noted, when it came to his conviction on continuing criminal enterprise. “It was supposed to protect against cartels, not against state-authorized businesses,” Scarmazzo sad about the charge.
Speaking about the use of his music video in his prosecution, Scarmazzo proclaimed that he and his co-defendant were being punished for “speech criticizing the government, which is what is protected the most.”
Following this statement, Servatius broke in and interrupted Scarmazzo. “I object to the political statement,” she said decisively through the courtroom speakers.
Barely missing a beat, Scarmazzo continued with his speech and earned gasps of exasperation from the prosecutor. “Mr. Scarmazzo, please wait for the court’s ruling!” Servatius scolded from afar.
Judge Wanger paused momentarily, then waved his hand. “The court will allow Mr. Scarmazzo to say what’s in his mind and his heart,” the judge said, commenting that these things would be relevant for determining the acceptance of responsibility.
With this green light, Scarmazzo went on to describe the federal government’s Compassionate Investigational New Drug program. Although closed to new entrants, this program provides marijuana to its surviving participants on a monthly basis, courtesy of the federal government. “Nothing contradicts federal prohibition more than the IND program,” Scarmazzo stated boldly.
Harkening back to his earlier symbolism of the courtroom as a battleground, Scarmazzo offered his experience as a lesson. “I hope the blood on the sword today shows us that pragmatism can be cowardice,” he said.
Rounding out his speech, Scarmazzo repeated quotes from the recent President-elect Barack Obama and from Abraham Lincoln. This selection was driven towards a recitation of Lincoln’s statement that “all men are created equal,” during which the themes of war in the Gettysburg Address merged with Scarmazzo’s own battle imagery to create a climax.
Concluding, the defendant returned to the subject of contrition. “I accept responsibility in the same way the government should accept responsibility for taking away these rights,” he said, “but I will still be moved by compassion and against unjust law.”
This was the end of Scarmazzo’s speech, and the sense of finality was heightened as the marshals moved in to re-shackle his free hand. Springing at the pause, Servatius launched into an emphatic rebuttal. “What we just heard is from an individual with no respect for the federal government,” she said, adding that Scarmazzo had not accepted responsibility for his role as a leader.
“The defendant is not a political prisoner, and this was not a political prosecution,” Servatius continued. She referred to another medical marijuana dispensary operator, David Chavez, whom she was currently prosecuting for continuing criminal enterprise. “He’s not a rap star,” she said of Chavez.
“We don’t prosecute people because they sing songs,” Servatius declared in closing. “We prosecute people because they sold marijuana in violation of federal law.”
The judge’s statement on the subject was even more telling. “The decision to take this case to trial was political,” Judge Wanger said. “Not on the part of the government, but on the part of Mr. Scarmazzo.”
Turning to the defendant, the judge made a direct address. “I understand and respect your opinions, but I disagree with them,” Judge Wanger explained. “I have taken an oath to be faithful to the Constitution of the United States. We give full faith and credit to the laws of the state, except where they conflict with federal law.”
It was now time for the final mathematics. Starting from an offense level and then aligning it with Scarmazzo’s criminal history level, Judge Wanger enacted a lengthy series of additions and subtractions. The reasons for these adjustments had already been argued thoroughly by both sides, so that the judge had only to make a short proclamation as he ruled on each increase and decrease.
On the issue of whether Scarmazzo had been a leader or organizer, the judge was unambiguous. “The defendant took the position that he didn’t organize or supervise, but he was a manager,” Judge Wanger contended. Scarmazzo had testified that he was the CHC’s chief financial officer, the judge noted, and this job meant managing the finances. As a leader, Scarmazzo received a four-level increase in his sentence.
In deciding on whether to make reductions for the acceptance of responsibility, the judge seemed less certain. “I agree there is a contrition element,” Judge Wanger reflected, “and Ms. Servatius makes a compelling argument that he has no remorse.” Nonetheless, the judge decided to grant Scarmazzo a partial decrease of two levels for the acceptance of responsibility.
The concession did not come without reproach, however. “He put his finger in the air,” Judge Wanger continued, recalling Scarmazzo flipping off the federal government in the music video. “It comes close, but it’s not incendiary enough, like crying ‘Fire!’ in a crowded theater.”
 During a break in the hearing, defense attorney Anthony P. Capozzi fielded questions from news media
“There is more than just marijuana to this offense,” Judge Wanger commented. “There’s the enterprise aspect…the way the enterprise was operated, the volume of marijuana and patients, the lifestyles that were pursued.” The judge continued, building up to the revelation of the sentence. “Mr. Scarmazzo is intelligent and has other talents. He hasn’t pursued them, or maybe he’s exhausted them. I don’t know. But he has made bad judgment.”
All in all, the calculations on the continuing criminal enterprise conviction tallied up to a sentencing range between 292 to 365 months. However, at the last minute, the judge decided that “the law will be well served” by a reduction that put the range at 262 to 291 months. Judge Wanger chose the low end, with a sentence that came out to twenty-one years and ten months, “because of community support and letters from family.”
Their support may have shaved some time off the sentence, but Scarmazzo’s friends and family members were not happy with the pronouncement. Some sat quickly converting months into years, while others erupted in tears immediately. Crowded onto the other side of the courtroom, in the rows behind the government’s table, a large collection of prosecutors and law enforcement agents had gathered to watch the spectacle. They sat posture-perfect and forward-focused, collectively setting a laudable standard of stoicism.
The penalties for Scarmazzo’s two remaining convictions were still to be determined. These would be less severe, and since all of the sentences would be served concurrently, they would not add any more time on top of the sentence for continuing criminal enterprise. On the conviction for the cultivation count, Judge Wanger settled on a sentence of 151 months. Based on the calculations from the sentencing guideline grid, the conviction on the possession count would have carried the same penalty as the cultivation conviction, but the limitations of a statutory maximum took this third sentence down to 60 months.
The court also imposed a special assessment of $300 and 60 months of probation to follow Scarmazzo’s release from prison. In addition, there was the matter of the sizeable forfeiture the prosecutors had won. This required Scarmazzo and Montes to pay the government back for all the money that the CHC had grossed during its 23 months of operation. This figure, which was set at $9.2 million, was not representative of the CHC’s profits. It included the sums the defendants had paid for the marijuana that was sold at the dispensary, as well as all other business costs. It also, oddly enough, included some $100,000 that Scarmazzo and Montes had already paid to the government in taxes while the CHC was in operation. During a forfeiture hearing last May, defense attorneys argued that, since the government had already received this sum in tax money, it should be deducted from the total that the defendants now owed to the government. The judge disagreed and stuck to the standard legal guidelines, which stated that all criminal proceeds were subject to forfeiture. As a result, the government would get paid twice by the CHC. Doubtless, these forfeiture statutes had been written based on the assumption that the “continuing criminal enterprise” would not be openly paying taxes to the federal government as the CHC had. These were largely uncharted waters, perilously swirling around the essential injustices in the conflict between state and federal law.
The penalties were now set for Scarmazzo, but he was already looking ahead to his appeal. Towards that end, he declared that he did not have funds for an appeal attorney and asked the judge for representation from a public defender. Capozzi was being withdrawn from the case, but Judge Wanger offered to put him right back on as a court-appointed attorney. It was all up to Scarmazzo, and the judge outlined a few pros and cons for the decision. “Mr. Capozzi is a very good attorney – and a former U.S. Attorney,” Judge Wanger commented, but Scarmazzo expressed no eagerness. The judge switched tacks. “Sometimes it’s good to have a new set of eyes,” he remarked.
His status on the case would be in limbo until Scarmazzo made the appropriate filings, but Capozzi was intent on getting a hold of his parting gift anyway. After asking that Scarmazzo be assigned to Lompoc penitentiary and getting the government to agree to the return of his client’s computer, Capozzi said that he would like to have one of the CHC t-shirts from the boxes of government evidence. His request was followed by a blank silence. “Does the government have any objection?” Judge Wanger finally asked.
“Double X,” Capozzi shot in, indicating his desired shirt size.
“Is he facetious?” Servatius asked, her voice carrying tones of bewilderment through the phone line. Deprived of the opportunity to read visual cues and facial expressions, she doubted that Capozzi was in earnest.
“No,” Judge Wanger answered, assessing Capozzi. “He’s serious.”
“This is too frivolous,” Servatius said, her voice still suspicious. Then, promptly and dismissively, she conceded, “I have no objection.”
The clock was ticking past four in the afternoon and time was running low, but the length of Scarmazzo’s hearing necessitated a break in the proceedings before the court went on to sentence Montes. The packed gallery poured out into the hallway, only to encounter a team of officers with a trained German Shepherd. An observer amiably asked if the dog was sniffing for bombs. “No,” one of the officers responded cautiously. “He’s just goofing off.”
There were more surprises waiting outside, where a few camera crews from local television stations were assembled. Emerging from the courthouse, Capozzi recited to reporters the length of the sentence and tempered the news with words of hope about the appeal. He then departed in a hurry, as he was due to handle another case in state court immediately.
As if taking Capozzi’s cue, the camera crews all packed up and left. The departures continued, draining the audience drastically. By the time court was back in session for Montes’s sentencing, the group of spectators on the defense’s side had been halved. The loss was even more apparent in the rows behind the government’s table, where the once-thick law enforcement audience had been reduced to a mere sprinkling. As it appeared, Montes did not excite the public’s attention nearly as much as Scarmazzo had. Although Montes was the chief executive officer and founder of the CHC, he was not a provocative rapper.
It may not have attracted much of a crowd, but Montes’s low public profile became his one advantage at sentencing. Time and time again, Judge Wanger praised Montes for making better choices regarding his lifestyle and conduct. “Mr. Montes wasn’t as outspoken,” the judge assessed. “He wasn’t out there and on TV, and he was not as strident as Mr. Scarmazzo.”
Indeed, Scarmazzo cast a long shadow over his co-defendant’s hearing. Defense attorney Robert Forkner was able to win several corrections to Montes’s probation report, but by and large, most of the key issues had already been argued during Scarmazzo’s sentencing. Still, there were a few battles specific to Montes, and Forkner took these up with zeal.
 At sentencing, Ricardo Montes was cast as the more sympathetic defendant
Smaller things could be corrected, however, and Forkner set out to finally clear up a long-standing error. Publicly, the CHC had become notorious for having paid its security guards the generous wages of $120-$150 per hour. This tidbit caused a buzz when it hit the newspapers right after the September 2006 raid, and it persisted in spite of the defendants’ claim that it wasn’t true. “$120-$150 should be daily, not hourly,” Forkner insisted, gesturing towards his copy of the probation report.
For her part, Servatius clung to the misrepresentation. “The report is factually accurate,” she protested. “That’s what the pay-stubs said.”
Balancing the claims, Judge Wanger turned to the probation officer and proposed an edit. “So put in ‘the pay-stubs were in error,’” he instructed.
The defense attorney also took issue with a phrase used in the probation report, which characterized Montes’s decision to open a medical marijuana dispensary as “taking the easy way out.”
Judge Wanger shrugged at the matter. “I can’t control the probation officer’s opinions and views,” he stated. “They’re independent, and, frankly, they’re supposed to be.”
As it turned out, the probation officer voluntarily deleted the controversial sentence. Instead, the paragraph was amended to end with the statement, “[Mr. Montes] recognized the opportunity to make large sums of money.”
 Defense attorney Robert Forkner fought for his client zealously
“Mr. Montes has not been in trouble before,” Forkner declared, gearing up to a bigger point.
“No, he hasn’t,” Judge Wanger eagerly offered his agreement.
Forkner continued, “He wouldn’t be here today if the voters of the state of California hadn’t voted for a law that conflicted with federal law.”
It was an argument that Servatius couldn’t tolerate. “This defendant sold more marijuana and made more money than all the cases I’ve prosecuted,” she insisted. “He was trying to use California law to make a lot of money. This is not what the voters of California envisioned with the Compassionate Use Act.”
Once again, Judge Wanger defended Montes by comparing him to his co-defendant. “He didn’t lead the high-roller lifestyle with Mr. Scarmazzo,” the judge said of Montes. “He wasn’t going to Vegas. He wasn’t buying expensive clothes for his women. He wasn’t buying a $180,000 vehicle.”
Servatius could have easily reminded the judge of trial evidence that showed Montes had been along for the high-roller trip to Vegas and had provided the interest-free loan that enabled Scarmazzo to buy the Mercedes. Instead, she made the point that, in spite of differences in their consumption habits, Montes and Scarmazzo were both big spenders. While Scarmazzo showered ladies in Louis Vuitton accessories, receipts presented at trial suggested that Montes showered his parents with large purchases of granite and marble. Further, Servatius noted, there was evidence that Montes had transferred large sums of money into his mother’s bank account in an attempt to conceal it.
Judge Wanger speculated that it would be difficult to distinguish these actions from the behavior of someone who was altruistically trying to help his family. Servatius balked at the idea, saying that the Montes family owns substantial amounts of real estate. She urged the judge not to give the defendant a reduced sentence simply because he used drug proceeds to help his family refurbish their many properties.
At this point, Montes was given the opportunity to make his own statement to the court. In doing so, the difference between him and Scarmazzo was glaringly apparent. While Scarmazzo’s oration drew from the speeches of famous U.S. Presidents and the writings of revered forefathers, Montes quoted no one. While Scarmazzo accused the government of targeting him to punish his free speech, Montes challenged no one. And while Scarmazzo’s speech had been lengthy, Montes’s speech was only a trio of short sentences.
“I did run the medical marijuana dispensary,” Montes said. “I accept responsibility for breaking the federal law, but I wouldn’t be here without the state law. That’s pretty much it.”
Judge Wanger gave Montes a sentence of 240 months for the continuing criminal enterprise conviction. That was the mandatory minimum sentence for the crime, but the judge was careful to note that the sentence would have been only slightly shorter if not for the mandatory minimum. True, the offense level was quite high, and it was enhanced by increases for the firearms and for being a leader. However, due to reductions for his acceptance of responsibility and his non-existent criminal history, as well as a reduction the judge granted for being “less exploitative in the use of funds,” the guideline sentence was knocked down to 210 months.
In Judge Wanger’s view, a harsh sentence was appropriate for purposes of deterrence. “There is enough controversy and enough misunderstanding with people who would engage in these activities because they believe they’re immunized by state law,” the judge said after pronouncing Montes’s sentence. “One other reason for the strict federal sentence is to make understood, to say, ‘Look at this law.’ As long as the U.S. Attorney classifies marijuana as schedule I, they run this risk.”
 Compassion got Ricardo Montes a sentence of 20 years in prison
As it appeared, Montes was already hurting financially. Like Scarmazzo, he no longer had the funds to pay for private legal representation and would require the services of an attorney assigned by the court. After requesting to be relieved from the case and asking for Montes to be assigned to the penitentiary at Lompoc, Forkner made his farewells. For the judge, he had kind words. “Mr. Montes and Mr. Scarmazzo wanted me to thank you for giving them what they feel is the fairest trial they could have gotten, given the circumstances,” he relayed. For all the suffering they created, the proceedings concluded on a pleasant note.
Outside the courtroom, Forkner spoke plainly about the chances for the appeal. “I think the 9th Circuit is going to order a remand for a hearing on the juror misconduct,” he predicted, referencing the turbulence the jury encountered while reaching its verdicts. One juror was excused mid-way through the deliberations, admitting that his late wife had used medical marijuana and that he concealed his personal bias during jury selection. Deliberations began anew with an alternate and verdicts were quickly reached, but soon afterwards another complication emerged. It turned out that a juror named Craig Will had read a summary of a newspaper article that discussed medical marijuana dispensaries and shared this information with other jurors. In a written affidavit submitted to the court last fall, Will claimed that the outside information affected his decision on the verdicts, but this was not enough to convince Judge Wanger to order a re-trial. If Forkner’s prophecy comes true, the appeals court may see the matter differently.
In the meantime, the defense attorney has the peace and assurance of knowing that he gave the case his best effort. “I fought it as hard as I could,” he said intently.
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Last Updated on Wednesday, 04 February 2009 13:31 |
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Cannabis Yields And Dosage
Cannabis Yields And Dosage is the authoritative study of the science and legalities of calculating medical marijuana. By Chris Conrad
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