Second thoughts and a new pot trial?

Marijuana dispensary case jurors regret voting guilty; lawyers want new hearing

By SUSAN HERENDEEN
sherendeen@modbee.com

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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.

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Two Modesto men found guilty in medical marijuana case

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.