SECOND THOUGHTS AND A NEW POT TRIAL?

Marijuana Dispensary Case Jurors Regret Voting Guilty; Lawyers Want New Hearing

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.

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.

Once the verdicts were in, U.S. Attorney McGregor Scott called a news
conference in Modesto, where he was flanked by Police Chief Roy
Wasden and Stanislaus County District Attorney Birgit Fladager.

The federal prosecutor called Montes and Scarmazzo the "poster
children" for problems with California's Compassionate Use law.

Since then, the state attorney general's office has issued guidelines
for law enforcement regarding medical marijuana dispensaries and
their clients, saying cooperatives and collectives must incorporate,
operate as nonprofit organizations and equitably distribute earnings
among their members.

Before those guidelines, the terrain was murky, letting the
California Healthcare Collective incorporate as a nonprofit even
though Montes and Scarmazzo paid themselves $13,000 a month,
purchased jet skis with profits from marijuana sales and tooled
around town in a $180,000 Mercedes-Benz.

The legality of medical marijuana is a hot topic because state and
federal law contradict each other.

A 1996 state initiative said qualified patients and primary
caregivers may cultivate and possess small amounts of marijuana for
medicinal use. A 2005 U.S. Supreme Court ruling said medical
marijuana laws in California and 12 other states do not shield people
from federal prosecution.

The Bush administration ramped up prosecutions after the high court
ruling, with drug enforcement agents raiding 90 dispensaries across
the state and prosecutors filing criminal charges in about half of
those cases, according to Americans for Safe Access, an Oakland-based
advocacy group.

The Beginning of a Trend?

The Modesto dispensary was the first to go to trial in federal court
and the first case in which dispensary operators were charged with
engaging in a continuing criminal enterprise, according to attorney
Anthony Capozzi of Fresno, who represents Scarmazzo.

Prosecutors subsequently brought the continuing criminal enterprise
charge in a dispensary case in Bakersfield, so the stiff charge could
be the beginning of a trend. But observers think the next
administration may back away from the policy of raids and federal prosecution.

Sen. Barack Obama of Illinois has said he would let states make their
own rules. Sen. John McCain of Arizona has backed raids, but also
promised that seriously ill patients would never face arrest for
using marijuana -- according to the news story Will and Silva mention
in their affidavits.

"Those who are interested in medicinal marijuana are watching this
case very closely," said Capozzi, who argues that the trial is the
result of a vindictive prosecution.

Jurors are expected to weigh guilt and innocence, not the possible
penalties their verdicts will bring, so the discomfort Will and Silva
felt when they learned that their verdicts would bring a mandatory
20-year sentence is irrelevant in the legal arena.

But the notion that a news story -- or any outside source -- could
have influenced the outcome may be enough to set aside the verdicts
and retry the case with a new jury. As a prosecutor noted in legal
papers, jurors were frequently admonished not to read news stories
about the case.

Juror Conduct at Issue

Attorney Robert Forkner of Modesto, who represents Montes, said he
will ask the judge to hold a hearing with Will and Silva, and any
other juror the court may want to summon, to determine whether the
deliberations were fair.

"If there's juror misconduct, the judge has to give us a new trial," he said.

Meanwhile, six former co-defendants who accepted plea deals and
testified against Montes and Scarmazzo got sentences that ranged from
probation to one year in prison. Some worked at the dispensary and
operated extensive cultivation operations in homes and others bought
large amounts of marijuana from the dispensary.

Before the trial, Montes and Scarmazzo told The Bee that they
preferred to take their chances with a jury rather than accept a
10-year plea deal prosecutors offered. Verdicts in hand, the U.S.
attorney's office is recommending 25 years to life for Montes and 30
years to life for Scarmazzo.

Given another chance, the defendants would make a deal.

"If we get a new trial," Forkner said, "we're going to settle this case."