Left Behind by Clemency

Jane Scarmazzo isn’t positive when her younger son started smoking pot, but she knows for sure how she found out about it.

Luke was in his early 20s, a few years out of high school and working with his father Nick Scarmazzo — a union carpenter — on bridges and overpasses in the San Francisco Bay Area.

One day her husband called and said that Luke had started suffering stomach cramps and vomiting blood while out on a worksite — the classic tells of a stomach ulcer.

As so many stories like this go, Luke soon discovered that smoking marijuana helped his condition — helped remarkably: the cramps stopped completely and he stopped spitting up blood.

And this is where his story diverges from the usual script. Because Scarmazzo didn’t just use cannabis as medicine, he decided to make cannabis medicine his business.

He and Ricardo Montes, a close friend from high school, rented a commercial space, acquired a business license and started Modesto’s very first medical marijuana dispensary: California Healthcare Collective.

By 2006, the dispensary had recorded $9 million in sales. It’s a fraction of what dispensaries make in the age of investments from equity firms today. Even then, it was almost pathetically small time compared to the $27 million a year The Compassionate Collective of Alameda (later raided in 2007) took in the same year.

But for Scarmazzo and Montes, it was more than enough. Not yet old enough to rent cars, the duo was making six figures a year and driving around town in expensive Mercedes.

Conservative city officials quickly passed a law to prevent any more marijuana clubs, and tried but failed to revoke the business license they’d issued to CHC — they were furious.

“He was a visionary before his time,” Jane Scarmazzo said. “But he was young and foolish and kind of flaunted it — and they had it in for him.”

She said she knows why her son was busted by federal drug agents, and not by the local city officials who had been trying without success to find a legitimate reason to take his business license away. She believes it’s the same reason why her son, a nonviolent drug offender, lost his clemency appeal — despite then-president Obama’s repeated admissions that federal drug laws are too punitive, his acknowledgement that it’s past time for marijuana to be legal and his record setting number of pardons and commutations for drug sentences.

“It was that video,” she said.

F*ck the Feds

Suddenly flush with money from selling marijuana, Scarmazzo — rapping under the moniker “Kraz” — paid more than six figures to have a five-minute, formulaic but slickly produced “gangsta rap” video professionally produced and uploaded to YouTube.

By any standard, it’s tame stuff: Scarmazzo in a limo flanked by bodyguards; stuffing stacks of bills from a counting machine into cardboard boxes; surrounded by dancing women — by all accounts, total fantasy braggadocio.

But then there’s the fatal rhyme, the one that Scarmazzo and his family are certain sealed his fate: “go ahead and light you the joint and kick up your legs and put your middle finger in the air and yell ‘f*ck the feds!”

On the morning his daughter turned 4, Luke was awakened by what he later described as “men in black military fatigues with machine guns.”

It was the feds — and there wasn’t any question what had set them off. After Scarmazzo left the house in handcuffs, someone spray painted a message on one of the walls.

Jane Scarmazzo said that it read, “who’s f*cked now?”

Cannabis Kingpins?

Federal charges filed against medical-marijuana providers who are not in violation of state law — in this case, not even accused of breaking state law — is rare enough. It’s happened only a handful of times in California history. When convicted (and a federal charge is very hard to beat, so they usually are) most defendants receive a sentence of five years or less.

But Scarmazzo and Montes were charged with running a “continuing criminal enterprise” under a criminal statute created in 1970 along with the RICO Act. Both laws were crafted specifically to punish organized crime and carry a mandatory minimum of 20 years to life.

At Scarmazzo’s trial, the video took center stage.

Insisting that it had nothing to do with what he was accused of doing, Scarmazzo apologized, repented and tried to distance himself from the video. But prosecutors played it for the jury multiple times in order to convince them of CHC’s criminal intent.

Unable to use California state law as a defense in federal court, or even speak about the medical nature of CHC’s business, the pair were found guilty in May, 2008. They both received their mandatory 20 years to life terms — a penalty that shocked jurors later claimed they didn’t know applied to the case.

Jasmine Scarmazzo was 5 years old when her father was convicted. During the trial and before he went to prison, the pair were inseparable. They went on frequent “daddy-daughter” dates to the mall or the movies.

She said every childhood memory of her father involves an ankle monitor.

“That was a really good time for me and him to spend so much time together,” she said. “But I knew something was going on.”

When the verdict was announced, Jasmine was in the courtroom.

She remembers shocked and confused faces, followed by a lot of crying once the meaning of a sentence more than 200 months sank in.

“I was thinking in my head, ‘that was forever, I’m never gonna see my dad again,’” she said.

Within a week of conviction, two remorseful former jurors signed a petition asking for a new trial. They said the Justice Department had led them to believe Scarmazzo and Montes’ punishment would be minimal.

That petition was rejected, and the founders of CHC both went to separate prisons. Montes went to a facility in the Central Valley, not far from his family in Modesto. Scarmazzo (perhaps still reaping the repercussions of “the video”) was sent to a prison in Lompoc, California — a five-hour drive away from his family.

Almost nine years later, the treatment remains unusual. To date, the pair are the only medical-marijuana providers in America sentenced under the mafia-busting criminal enterprise statute.

Through his clemency advocate, Georgean Arsons, Scarmazzo declined to comment to Cannabis Now, citing a desire not to hurt the chances of clemency for Montes, who does not appear in the video.

Montes was ultimately granted clemency by then-president Obama. He did not extend this clemency to Scarmazzo.

With the rejection went the Scarmazzos’ last best hope at an early release.

When the clemency rejection came down, Jasmine found out via an email from her father.

“I didn’t even know what to say,” she said. “I wanted to believe it was a joke.”

Luke’s mother was crushed.

“I did a lot of crying. I couldn’t’ talk to anyone else for the rest of the day. I was very depressed. It’s been a terrible, hard week,” Jane Scarmazzo said. “We were very hopeful, and [Obama] just blew that out of the water.”

Now, with her father in prison for almost nine of her 14 years on earth, Jasmine talks with the airy vocabulary of a high-school freshman, but there’s a gravity, a world-weariness of someone far older. She’s grown up fast.

“That’s all I’ve been looking forward to for years: clemency, clemency, clemency,” Jasmine said. “The quickest he could come home was the end of my freshman year, so I kind of set that as a date in my head. When it came to the clemency being denied, it was like, ‘What? He was supposed to come home to me in four months.’”

She didn’t cry — she couldn’t.

“Nine years of my dad being gone, I’ve done so much crying over that. I didn’t really have time for crying anymore,” she said. “I need to make the next move.”

Luke’s father said he thinks Luke didn’t realize the magnitude of the charges — he thought the worst that would happen was going to jail for a year or two for running the dispensary.

“People get away with murder and get 10 to 12 years,” Nick Scarmazzo said. “He did something that’s legal now and gets 22? Rapists and murderers are doing less time than he is. It’s ridiculous. Such a waste.”

Nick said life is hard for the whole family without his son.

“There’s always an empty spot,” he said. “It’s like we’ve lost a loved one early or unexpectedly. It’s hard to explain. I’ve told people it’s almost like he’s dead — but he’s not, because we can still talk to him. It’s like he’s just not here.”

Originally published in Issue 25 of Cannabis Now. LEARN MORE

TELL US, do you think Scarmazzo should have been granted clemency?