Monday, December 01, 2008

Federal bar on state law to hinder defense

By SUSAN HERENDEEN
sherendeen@modbee.com

last updated: November 01, 2007 03:54:27 AM

Two Modesto men who ran a medical marijuana clinic on McHenry Avenue will have a difficult time mounting a defense against federal drug charges if they cannot talk about the pain relief the drug can provide or their efforts to ensure that the California Healthcare Collective complied with state laws.

But they won't have to go to trial Nov. 13 in U.S. District Court in Fresno. Judge Law- rence J. O'Neill on Wednesday pushed the trial back to April 15, giving the defense a few more months to challenge a prose- cutors' contention that the vo- ters' decision to legalize medical marijuana has no place in federal court.

Ricardo Ruiz Montes, 27, and Luke Scarmazzo, 27, were ar- rested in September 2006 after a 15-month investigation that in- cluded surveillance and pur- chases by undercover agents who had prescriptions for medical marijuana.

Their attorneys want to show that the collective had a business license, paid taxes and cooperated with the City Council, which eventually voted to ban such dispensaries.

They also say Montes, Scarmazzo and six other defendants who face a host of drug and conspiracy charges are victims of entrapment, because they called to verify prescriptions the agents presented, as required by law.

"I want to show how these agents purchased this mari- juana," said defense attorney Anthony Capozzi of Fresno, who represents Scarmazzo. "The government wants to leave all that out."

$40K clinic ballooned to $4.5M

The case has been closely watched because the collective raked in $4.5 million between December 2004 and June 2006. Scarmazzo also has drawn attention, because he released a rap-style music video in which he shakes his fist at the City Council a few months before his arrest.

Montes started the collective with a $40,000 settlement he got from an injury accident. His attorney said the collective would have closed its doors if Montes thought he was doing anything wrong or believed he'd face fed-eral prosecution that could result in 20 years to life behind bars.

"It wasn't a secret, clandestine lab," said attorney Robert Fork- ner of Modesto, who represents Montes.

A 2005 ruling by the U.S. Supreme Court said a 1996 initiative that legalized marijuana for medical uses in California does not shield people from federal prosecution.

U.S. Attorney Kathleen Servatius argues that the political debate surrounding medical marijuana is out of bounds in federal court.

"Defendants cannot identify a single authorized federal government official who erroneously told them it was permissible to sell marijuana," Servatius said in legal papers.

Raids have more than doubled

The collective was one of 20 pot clubs statewide raided in 2006 by the Drug Enforcement Agency. Federal investigators have more than doubled their efforts so far this year, raiding 45 pot clubs.

The National Organization for the Reform of Marijuana Laws, a Washington, D.C.-based group, estimates that there are more than 400 medical marijuana dispensaries in California, and more than 150,000 medical marijuana users.

Three cases have gone to trial in federal courts in California since the high court's opinion two years ago. Testimony about Proposition 215, the initiative that legalized medical marijuana in 1996, has been banned each time.

"These cases in federal court are extremely difficult to defend," said Kris Hermes, a spokesman for Americans for Safe Access, a nationwide medical marijuana advocacy group that is based in Oakland.

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.

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