Monday, December 01, 2008

Attorney says problem lies with an in-your-face video

By JOHN ELLIS
THE FRESNO BEE

last updated: May 14, 2008 01:37:05 AM

FRESNO -- Lawyers representing two men accused of illegally selling marijuana out of a Modesto storefront used their closing arguments Tuesday to plead with jurors to use "common sense."

The attorney for one of the defendants, aspiring hip-hop artist Luke Scarmazzo, went so far as to suggest to jurors that federal authorities went after his client after he challenged them by starring in a music video in which he raised both middle fingers and uttered the words: "(expletive) the feds."

"If Luke hadn't done that DVD, would he even be here today?" Fresno attorney Anthony Capozzi asked jurors.

Scarmazzo and Ricardo Ruiz Montes, both 27, face the possibility of life in prison after authorities in September 2006 raided a medical marijuana dispensary known as the California Healthcare Collective that they operated in Modesto.

To federal authorities, the case is simple. Though California voters legalized the medical use of marijuana in 1996 under Proposition 215, federal law trumps state law. And federal law sees the drug, even when used for medical purposes, as illegal.

"This was a business selling marijuana to the tune of $9 million," federal prosecutor Kathleen Servatius told jurors in her closing argument. "You really think it's about a video?"

Both men are facing several drug-related charges, including manufacturing and distributing marijuana, possession of a gun in furtherance of a crime, conspiracy and operating a continuing criminal enterprise.

That final charge is potentially the most damaging because it carries a mandatory 20-year minimum prison sentence with the possibility of a life term.

Servatius outlined the criteria for the criminal enterprise charge, including selling marijuana to undercover agents on multiple occasions, hiring and managing more than five people, and spending well beyond the salaries the men drew, including purchasing jet skis, Louis Vuitton handbags, a $180,000 Mercedes-Benz automobile and staying in Las Vegas hotel rooms .

But Capozzi and Robert Forkner, who is representing Montes, said the defendants operated in the open, even paying taxes and obtaining a business license.

"Everything the defendants did here was open and aboveboard," Capozzi said.

The defense attorneys also hammered on "reasonable doubt," claiming the government did not meet that requirement in its prosecution of Montes and Scarmazzo.

Though prohibited in federal court from arguing that the two men didn't violate state law, the defense attorneys nevertheless pushed the envelope, with Forkner even calling jurors "fellow Californians." That drew a retort from Servatius, who reminded jurors they were also "United States citizens" who were in federal court with federal laws.

In another nod to state law, Capozzi told jurors that Scarmazzo and Montes changed California Healthcare Collective to a nonprofit in August 2006.

But federal authorities have pointed out that for most of the time the dispensary operated from October 2004 until it was raided in September 2006, it was a for-profit corporation, and even under California law, it is illegal to operate a cannabis club at a profit.

Jurors began deliberating about noon Tuesday, but shortly thereafter, U.S. District Judge Oliver W. Wanger was informed that one of the jurors asked to be excused due to a "personal bias."

Wanger brought the juror into the courtroom, where he said his wife had been a medical marijuana user who got relief from the drug before she died. He then said he could never convict anyone who is accused of being involved with medical marijuana.

The man did not disclose this information during jury selection, which saw close to 25 percent of potential jurors excused from serving because they said they believed marijuana has medicinal value.

Deliberations will start anew this morning with one of the four alternates replacing the dismissed juror.

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