Fresno trial targets medical pot

April 25, 2008

John Ellis, Fresno Bee

Luke Scarmazzo is an aspiring hip-hop artist who is facing the possibility of a long stint in prison on federal drug charges.

In the federal government's view, the case against the Modesto resident and co-defendant Ricardo Ruiz Montes is fairly simple: They broke the law by selling marijuana through their business, California Healthcare Collective.

That it allegedly was for medical purposes is irrelevant.

But the case -- due to start this week in U.S. District Court in Fresno -- promises to be anything but straightforward.

For one, there's the ongoing battle between California's Proposition 215, which legalized the medical use of marijuana, and federal law, which views the drug -- even when used for medical purposes -- as illegal.

The debate didn't end when the U.S. Supreme Court in 2005 ruled in favor of the federal government, but it will be on display on the trial's fringes, both with medical marijuana supporters expected in the courtroom and a planned noon rally Tuesday outside the federal courthouse.

As with Dustin Costa, the Merced medical marijuana activist who was convicted in Fresno's federal courthouse on drug charges in 2006, attorneys won't be allowed to take the debate to the jury, because possession or use of the drug is illegal under federal law.

Scarmazzo, who has a prior conviction for assault, is not just a medical marijuana activist.

He starred in a hip-hop video that featured him raising two middle fingers to the camera and declaring "[expletive] the feds."

Prosecutors were incensed by the video, which will be introduced as evidence in the trial.

That prompted Fresno attorney Anthony Capozzi, who is representing Scarmazzo, to say Friday in an interview: "They're going to play it to the jury, and the judge is going to allow it. I can't believe it."

Capozzi added: "The government is just piling it on. They're very vindictive in this case."

Brian Landsberg, a professor at the University of the Pacific's McGeorge School of Law in Sacramento, said the prosecution might look at the video as establishing or contributing to proof of misconduct.

But they also might want to return the gesture that Scarmazzo displayed in his video.

"If they have a strong case, a case they would have brought anyway, taking some satisfaction in going after this guy is just human," he said of the video.

"It shouldn't influence their decision-making, but that doesn't mean they can't take some pleasure in putting on this evidence."

Assistant U.S. Attorney Kathleen Servatius, who is prosecuting the case, did not return a phone call seeking comment.

The trial comes more than 18 months after U.S. Drug Enforcement Administration agents raided California Healthcare Collective, Modesto's only medical marijuana dispensary.

Investigators had purchased marijuana from the clinic with fake doctor recommendations and, affidavits filed in the case say, found healthy people who obtained the drug from CHC.

Investigators 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.

CHC sold $4.5 million worth of medical marijuana in two years. Scarmazzo, 27, has said he was making $13,000 a month as its treasurer and secretary.

Four lower-level employees of the dispensary are scheduled to plead guilty to lesser charges -- though the plea deals are not an absolute certainty.

That would leave Scarmazzo and Montes, listed in records as the company's president, to stand trial.

For both men, the stakes are high because -- in addition to manufacturing and distributing marijuana, and conspiracy charges -- they also face a felony charge of operating a continuing criminal enterprise.

It's a charge that carries a mandatory 20-year minimum prison sentence, with the possibility of a life term.

Capozzi hopes to argue that the two men believed they were following established state law in operating the business. They had a business license. They paid state and federal taxes. In short, Capozzi said, they did not intend to violate the law.

Servatius argued in legal papers that the defendants' belief that their conduct was lawful is irrelevant.

U.S. District Judge Oliver W. Wanger has yet to decide whether the defendants may argue that they believed their conduct was legal.

Kris Hermes, legal campaign director with Americans For Safe Access, an organization that supports medical marijuana, said the coming trial will get a lot of attention from medical marijuana activists, because not many cases make it this far.

Scarmazzo's and Montes' trial, he said, is only the third since the Supreme Court decision.

"There are far, far more raids and indictments, and not many proceeding to trial," he said. "A lot of people unfortunately are pleading out and not putting up a fight against the federal government."

The Modesto Bee’s Susan Herendeen contributed to this report. The reporter can be reached at or (559) 441-6320.

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