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They’re serving 20 years for running a pot dispensary. Will Obama grant them clemency?

Marijuana: Uncertain medicine

Marijuana’s effects can vary from person to person, and scientists are not quite sure what to make of the common distinction users and growers make between cannabis sativa and cannabis indica.
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Marijuana’s effects can vary from person to person, and scientists are not quite sure what to make of the common distinction users and growers make between cannabis sativa and cannabis indica.

By 2006, former high school football teammates Luke Scarmazzo and Ricardo Montes were living an unimaginable dream in an unlikely setting.

Two years before in Modesto, the conservative Central Valley city where ’50s teen cruisers inspired George Lucas’ 1973 film “American Graffiti,” the friends had opened the town’s first medical marijuana dispensary.

The pot shop was raking in cash and the friends were paying themselves $13,000 each a month as chief officers of the California Healthcare Collective. Montes, who had earned stardom as a bruising defensive end at Fred C. Beyer high school, was the more reserved partner in the business. Scarmazzo, the less distinguished tailback, was the flamboyant face.

Scarmazzo motored along Modesto’s legendary cruising routes in a splashy, $137,000 Mercedes Coupe. He embraced a persona as an aspiring rap star – “Kraz” – and celebrated the weed business in an infamous music video.

“I was young and came into more money than we had ever seen before,” Scarmazzo reflected recently in a telephone call from a federal prison in the valley town of Mendota. “I bought things and spent carelessly, not thinking of the future – nor how it looked.”

Now, 10 years after their arrest by federal narcotics agents, Scarmazzo and Montes are appealing for clemency, formally asking President Barack Obama to release them from prison sentences of 21 years and 10 months for Scarmazzo and 20 years for Montes. They are among numerous offenders seeking leniency in Obama’s waning days in office, arguing they were sentenced unfairly under outdated federal drug laws and in a far different climate for marijuana.

Marijuana legalization advocates depict the two men, both 37, as POWs of a failed “war on drugs.” Arguing they’ve been deprived of their fathers due to harsh “mandatory minimum” sentences, Scarmazzo’s daughter, Jasmime, 14, and Montes’ oldest daughter, Nina, 12, have an online petition imploring Obama to “Free Our Dads!”

In just 2 1/2 years, Scarmazzo and Montes ran a dispensary that took in $9 million from marijuana transactions and, Scarmazzo claims, also paid nearly $2 million in state and federal taxes. Their clemency bids assert they wouldn’t be prosecuted today due to changing marijuana politics, including legislation in Congress denying funding for U.S. drug agents interfering with state medical marijuana laws.

California last year enacted legislation to regulate for-profit medical marijuana businesses. And voters in November legalized pot for recreational use by passing Proposition 64, a measure that also allows people convicted of certain state (though not federal) marijuana offenses to petition to expunge criminal records or reduce charges.

To date, 26 states and Washington, D.C., have legalized marijuana in some form, with licensed pot shops flourishing in many locations.

But that was far from the reality in late 2004, when Scarmazzo and Montes opened the California Healthcare Collective dispensary, after lawmakers passed nebulous legislation to bolster the state’s medical marijuana law, Proposition 215.

Inspired by a 2002 raid by federal drug agents on a Santa Cruz marijuana garden for patients with AIDS, cancer and other severe conditions, the California Legislature approved Senate Bill 420. Becoming effective Jan. 1, 2004, the bill affirmed the rights of seriously ill patients to collectively associate to grow and share marijuana.

Unexpectedly, the bill became a green light for cannabis speculators. Many rushed to open medical marijuana stores, declaring them “collectives” and accepting patient “donations” as payments for medicine. The proliferating dispensaries became the foundation of a California marijuana industry that today is valued at $2.7 billion by cannabis business analysts.

In 2006, the United States Justice Department, under President George W. Bush, saw a cash-reaping scam – a violation of federal law, under which all marijuana is illegal, as well as unlawful profiteering under California medical marijuana rules. As authorities went after several marijuana businesses, they fixated on an upstart pot store in Modesto.

City officials, stunned after the dispensary opened with a standard business license, passed a moratorium on new pot stores and began pursuing steps to close it. Modesto police infiltrated the operation as the feds watched.

Dismissive of risks, Scarmazzo hired a production company to make a spectacular-looking music video in 2006, which depicted hip entrepreneurs packing boxes of cash, filthy rich from marijuana.

Dapper in shades, a braided ponytail and business suit, Scarmazzo rapped boastfully about riding in high-priced wheels, suggesting he kept “a weapon on me” to keep robbers at bay. He presided over a board room with seductive women and delivered this mocking testimony before a tribunal seemingly depicting unwelcoming city officials:

I’m a business man

I mean business, man

Let me handle my business, damn!

In the five-minute video, which was uploaded to YouTube, Scarmazzo brags of making $4,800 per pound – or “bow” – of marijuana, adding a rhyme: “Now that’s what I call incorporating dough!” He celebrated smoking joints in the face of federal marijuana intolerance and, with flipping fingers, delivered his kicker: “F--- the feds!”

Federal and local drug agents raided the California Healthcare Collective just weeks after the video’s release.

At trial, with marijuana federally illegal, Scarmazzo and Montes were prohibited from arguing they were providing cannabis as medicine under California law. Prosecutors portrayed them as enriching themselves by manufacturing pot and distributing it through dispensary sales. They also added a third – critical – charge of “conducting in a continuing criminal enterprise” through repeated marijuana transactions in the course of the business. That carried a 20-year minimum prison term.

Authorities insisted Scarmazzo’s video was not a motivation for charges. But it was played prominently during trial in U.S. District Court in Fresno before the pair was convicted in May 2008.

In phone conversations from prison, Scarmazzo suggested he remains behind bars because of youthful recklessness and an addiction to the high life of the marijuana industry – all depicted in a video he has come to loathe. He wishes it would vanish from the internet, where it still flourishes.

“When I made that video, I was passionate and wanted to push forth the ideology that medical marijuana was something that worked,” Scarmazzo said. “I just felt the federal government was turning a blind eye to people’s needs. Looking back, there were other avenues to do it, to make that point.”

Despite how he portrayed his business in the video – all glamor and money and nary a mention of marijuana as medicine – Scarmazzo looked back from prison differently. He described bonding with people, all with confirmed doctors’ recommendations for marijuana, who came into the dispensary for conditions ranging from chronic pain to cancer. One regular was a retired correctional officer undergoing chemotherapy. “I really realized it helped people,” Scarmazzo said.

Scarmazzo and Montes’ clemency advocate is a 74-year-old New Jersey woman, Georgean Arsons, a retired information technology manager for AT&T and pharmaceutical companies. Arsons’ son Roland Arsons served four years in federal prison in an unrelated marijuana case. He made friends with Scarmazzo while they were in Fresno County Jail.

“They were very similar people, very creative, very loquacious with high intelligence,” Georgean Arsons said.

After Roland Arsons died this year while on an excursion to Ecuador, Georgean Arsons agreed to handle Scarmazzo’s and Montes’ clemency appeal in her son’s memory. She has stayed in email contact with Scarmazzo in Mendota and Montes at the United States Penitentiary in Lompoc and filed clemency paperwork.

While petitions are reviewed by the United States Justice Department, she is hoping their case reaches Obama, who in recent months has reduced sentences for more than 1,000 federal inmates serving time for mostly nonviolent drug offenses.

Obama, whose last day in office is Jan. 20, notably claimed that, in many cases, “their punishments didn’t fit the crime.” He also recently said the conflict between federal and state laws on marijuana is “untenable.” And Arsons took heart when Obama suggested in an interview that marijuana should be treated “as a public-health issue, the same way we do with cigarettes or alcohol.”

“That gives me hope that he (Obama) is going to have mercy on marijuana and medical marijuana offenders who are in federal prison,” Arsons said. She believes the men have no chance at clemency under the incoming Trump administration and attorney general nominee Jeff Sessions, who advocates strict marijuana enforcement.

Scarmazzo has a more difficult path because, unlike Montes, he had a prior criminal record. He served jail time for a January 2003 assault conviction involving the death of an 18-year-old Riverbank man. Authorities said two other men killed the victim, beating and stabbing him in a melee triggered after an egg was thrown at a car. Scarmazzo, then 22, admitted throwing a punch, but said he tried to break up the fight and left before things got out of control.

“It was a tragic incident I deeply regret and wish I could change,” he said.

Gerald Uelmen, professor emeritus at Santa Clara University Law School, said Scarmazzo and Montes’ marijuana business was likely too audacious to draw sympathy from Obama, who has focused heavily on racial disparities in drug sentencing.

“Times have changed, but they haven’t changed to the extent to where what these guys were doing would now be legal,” said Uelmen, who argued before the U.S. Supreme Court, unsuccessfully offering a “medical necessity” defense on behalf of the Oakland Cannabis Buyers Cooperative, a dispensary shuttered by the government in 1998.

As the political landscape has changed, the Justice Department declared in a 2013 memo that it wouldn’t interfere in states that had legalized marijuana if they had “robust” regulations for marijuana businesses – rules that didn’t exist in California when Scarmazzo and Montes were running the California Healthcare Collective.

In their appeals, Scarmazzo and Montes claim their sentences were “unjust” and “disturbing.” They presented declarations from two jurors who said the men were unfairly punished. They also cited another federal dispensary prosecution, in which the operator of a San Luis Obispo pot store that took in $2.1 million in 11 months in 2006-07 got a sentence of one year, plus one day.

Embracing their clemency appeal is Anthony Papa, a former New York drug defendant who was granted clemency by then-Gov. George Pataki in 1997 after serving 12 years of a 15-years-to-life state sentence for selling cocaine.

“I hope President Obama gives them a break,” said Papa, media relations manager for the anti-prohibition Drug Policy Alliance and author of a memoir on his clemency journey. “They’ve served enough time. Half the states have legalized marijuana, and these guys are rotting in prison for a nonviolent drug crime.

“They’re both sorry for the crimes they committed operating a medical marijuana dispensary. But how many dispensaries are around today?”

At their sentencing in November 2008, before federal Judge Oliver Wanger, prosecutor Kathleen Servatius took exception when Scarmazzo protested “the magnitude of the injustice in this case.”

“The defendant is not a political prisoner and this is not a political prosecution,” the assistant U.S. attorney answered. She pointed out that she had earlier obtained a continuing criminal enterprise conviction in an unrelated case involving a dispensary operator in Bakersfield.

“He’s not a rap star,” she added about the Bakersfield defendant. “He didn’t have a video. We don’t prosecute people because they sing songs.”

Montes told the court he believed they were operating the dispensary according to California medical marijuana rules, saying: “I never intended to break the law.” In a 2012 petition for reduction in sentence, Montes faulted himself for “the foolish choice to take my case to trial,” when a 10-year plea deal for marijuana trafficking was on the table.

Other defendants took deals for lesser terms. The business’s major marijuana grower, arrested with 1,100 plants at his home, got three years in prison. Two dispensary managers got terms of six months and three months, respectively, while an accountant got a sentence of a year plus a day, and two others got probation.

Montes’ clemency petition argues that he has been a “model inmate,” who has completed 48 units toward a college degree, including coursework in ethics and computer publishing. Scarmazzo’s bid says he earned academic honors while completing an associate’s degree in behavioral science.

By telephone, Scarmazzo said he wants to return to work with at-risk youths “because I feel I can make a connection with them through the experience of all the things that went on in my life, so that I can share how to avoid the pitfalls.”

He said he has no interest in running a pot store – or being a rap star.

“The young activist in me saw it as an opportunity to generate change through music,” he said, reflecting on the video he now sees as a disaster. “It was fuel to the fire. It didn’t help at all.”

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