The said case of Modesto Dispensary operators Ricardo Ruiz Montes and Luke Scarmazzo is discussed here.
In May 2008, 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.
The CHC had been incorporated as a non-profit business and non-profit companies are permitted to pay salaries for their employees.
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.”
“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.”
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.
On January4, 2011, the 9th Circuit sealed these poor young men’s fate.
Appellant Montes was sentenced to the statutory minimum of twenty years. His assertions to the contrary are rejected. Appellant Scarmazzo was sentenced to just under twenty-two years. Appellants’ sentences are not grossly disproportionate to their crimes and are, therefore, not unconstitutional. See Hutto v. Davis, 454 U.S. 370, 374 (1982); United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007).
“Appellant Montes was sentenced to the statutory minimum of twenty years. His assertions to the contrary are rejected. Appellant Scarmazzo was sentenced to just under twenty-two years. Appellants’ sentences are not grossly disproportionate to their crimes and are, therefore, not unconstitutional. See Huttov. Davis, 454 U.S. 370, 374 (1982); United States v. Meiners, 485 F.3d 1211, 1213(9th Cir. 2007).”
Are you kidding me? For selling marijuana at a dispensary? This is how detached people get.
A copy of unpublished opinion is here: Montes Unpublished Decision
A copy of the published opinion is here: Montes Published Opinion
Even though there was admitted juror misconduct, the 9th Circuit didn’t want to cut them a break. To charge a continuing criminal enterprise for a dispensary is overkill of the highest proportions. This was of course at the end of the Bush era but Obama didn’t step in to save these poor men from double decade sentences.