8,000 Days to Emancipation by POW Luke Scarmazzo

posted Jan 28, 2013, 12:57 AM by The Editor   [ updated Jan 28, 2013, 12:58 AM ]
This essay was written in spring 2011, live from United States Penitentiary Lompoc, when Luke was serving year three of his thirty-year prison sentence.  Luke Scarmazzo will be incarcerated until the year 2027 for operating a legal CA medical marijuana dispensary.

As school children we are all taught that you are innocent until proven guilty but any good defense attorney will tell you that the American justice system operates on exactly the opposite premise. Before one word of argument is spoken, the defendant starts out surrounded by a cloud of guilt and  has to fight both tooth and nail to dispel this prejudice; the rules of the courtroom are slanted heavily in favor of the prosecution.

Also, to make matters worse, if a defendant does not accept the plea deal a prosecutor offers and instead chooses to exercise his right to a jury trial, and then loses, the judge frequently will sentence them to the maximum penalty under the law for challenging the Government’s authority. In short, the court system is a game you rarely want to roll the dice in because the losses can often times be unendurable.

Considering these commonly known, repugnant facts about our legal justice system, although I was innocent of the assault charges that landed me in jail, I accepted a plea bargain and was released after two years time served.

At about this time I ran into an old friend who was working at a medical cannabis dispensary in Oakland, California called “The Third Floor.” He repeatedly urged me to come by and check out his job. I was a medical cannabis patient already and already traveling to the Bay Area to obtain my medicine, so I said I would stop by to see him.

His building was located in the busy downtown area. I found parking, pushed through the front entrance, climbed a narrow stairway.  What I saw forever changed my life!

I entered a long wooden-walled room with rather dim lighting crowded wall-to-wall with people. In the far corner, a glass counter stood with over twenty different kinds of cannabis displayed in it. These many types almost seemed to glow with a light green luster. The room’s entire left side was dedicated specifically to a display of starter plants and to my immediate right was a table area where one could medicate and relax. As the next hour passed, I witnessed hundreds of people come and go from the counter. I could not believe what I was seeing; it was mesmerizing. I knew immediately that I wanted to start a dispensary in Modesto, my hometown.

Two primary motivating factors played into my decision. One, it appeared to be an extremely good way to make a living and two, there were many patients in the Central Valley who, like me, had to travel a hundred miles or more to get their prescribed cannabis.  With these thoughts in mind, I approached my good friend Ricardo Montes with my ideas. 

Ricardo had been in an automobile accident a year earlier and had received a formidable five figure settlement. I knew he wanted to invest his money in a promising business venture and I needed the capital; hence, we made excellent partners. We leased a building in a busy strip mall, completed the remodeling and renovations and opened for business in February the next year.

Our first day of business as “California Healthcare Collective” (CHC) was rather uneventful.   We were not very busy and by closing time we were satisfied with the turnout, but unimpressed. Then, the next day, the headline of the front page of the newspaper read, “Pot Dispensary in Modesto.” When I arrived at work the next morning, there was a line of people waiting at the door. The line was so long that it looked as if a blockbuster movie was premiering inside of our building.

From that point on, our business grew exponentially each week. We decided it would be wise to implement our own self-regulation. Our security personnel rigorously examined the state identification card of each patient. Our receptionist contacted the physician’s office to verify every doctor’s recommendation. We cut the state cannabis limit in half and dispensed only four ounces at a time. We also sought legal assistance from attorney Robert Raich.  Mr. Raich is an authority on the distribution of medical cannabis and advised us how to operate a legitimate, legal dispensary. His interpretation of the law is that cannabis is a medicine and therefore exempt from taxation. Many dispensaries followed this legal interpretation at the time. Ricardo and I, however, disagreed with this position and decided that it was prudent to pay taxes until a definite ruling was made on the issue.

We thought that satisfied everyone. The community supported us and the patients praised CHC.  We followed state-enacted law but members of the Modesto City Council, supported by the Police Department, thought otherwise. They immediately started proceedings to ban dispensaries within the city limits. Their intentions were to zone CHC out of existence. We hired a land-use attorney and met with the City Council many times.  On each occasion, the outpouring of community support was overwhelming. The Council members sensed that they were fighting a losing battle and finally, after months of litigation, conceded. We were exhilarated. CHC could continue to operate without interference and resume serving the collective’s patients.

Our triumph, however, was short-lived. Twenty-four hours before our  final meeting with the City Council, they called the federal Drug Enforcement Agency (DEA) and had us arrested. The DEA can, at any time, raid any of the thousands of legal dispensaries that are currently operating even if they are in full compliance with state laws.  According to the Department of Justice, which oversees the DEA, any cannabis use is illegal and state laws legalizing its medical use mean nothing.

The day we were arrested also happened to be my daughter Jasmine’s fourth birthday. She and her mother, DeVina, were waiting for me at a hotel in Disneyland. I was scheduled to catch the noon flight to Los Angeles. I never made that flight. I never showed up for her birthday party. Unbeknownst to my wife and daughter, men in black military fatigues had stormed our home with machine guns, ripped me out of bed at barrel-point and arrested me.

Kathleen Servatius was the federal prosecutor assigned to our case.  She was a tall, slender older woman with short hair and dark, deep set eyes that leveled a piercing gaze. She also had a reputation for ruthless ambition. As I would soon learn, good trial attorneys are not always concerned with justice as much as they are with creating persuading arguments. Routinely, the victor at a trial is on the side that told the most compelling story. Ms. Servatius charged us with a drug kingpin crime called conducting a Continuing Criminal Enterprise (CCE.) This charge is almost always reserved for international drug lords and cartel leaders. To be convicted of this offense one has to have committed three or more federal drug felonies over a definable period of time while supervising five or more people, or in other words, be a business that routinely documented its legitimate sales of cannabis. The penalty for this crime is a mandatory minimum of twenty years in prison with a maximum of life. We were unnerved by this flagrant charge and the prospect of such an intimidating sentence but we knew we had followed California law completely and committed no crime. Weighing these thoughts and considering my prior experience surrendering my rights to the government, we decided to go to trial, confident that a reasonable jury would see through the government’s façade regarding the charge. The prosecutor offered us a ten year plea deal, but we refused to capitulate and admit that abiding by state law was wrongdoing.

This seems like a good point in this narration to publicize that prior to opening the dispensary, during its operation, and after its dissolution, I wrote and recorded hip hop music. One month before we were arrested, my recording label released my debut album along with an accompanying video called “Business Man.” On that video, I uttered the phrase, “Fuck the Feds.” The lyrics were written in response to the frustration I felt with the Bush Administration’s opposition to medicinal cannabis and their over-taxation of the working class.

During the trial, the judge did not permit us to present a defense that we were a state approved dispensary. The judge claimed state law has no applicability in a federal court. The government accused us of being drug kingpins.  In our defense, we could not mention  the words “medical cannabis” or  “state law” or the judge would  declare a mistrial. Our attorneys fought and remonstrated with the judge and prosecutor to allow us to explain the circumstances of our actions but each time we were met with a stiff rejection. Ms. Servatius, against our objections, played the music video during her closing argument. Again we argued that the video was artistic expression and had no relevance in a courtroom but these protests also fell upon deaf judicial ears.  Because of these “witch trial” rules, Ricardo and I were both found guilty by the jury and later, sentenced by the judge to over twenty years in prison.

With good behavior, my release date is April 25, 2027. After trial, the jury discovered how much time we were to receive and they were appalled. They could not believe, as most Americans cannot, that we were going to be imprisoned for over two decades for legally dispensing cannabis. They beseeched the judge to dismiss their verdict but the judge was unmoved. Several of the jurors filed affidavits with the court recanting their verdicts. This is one of a number of issues we raised on appeal in the 9th Circuit Court of Appeals. We felt sure the appellate panel would correct this injustice and overturn our egregious sentences. I was certain we would return home and be reunited with our families. I was wrong.

I had just gotten back from working all day in the prison commissary warehouse and I was anxious to return to the semi-privacy of my cold, cramped cell when I noticed my name on the mail distribution list. I picked up my mail from the  officer’s station and saw that there was a letter from my brother, Nick. I eagerly opened it. The first line of the letter read: “Bro, sorry to hear about the news.”

I thought to myself, “What news?” He wrote how he had read in that morning’s newspaper that the 9th Circuit had affirmed our convictions. I was devastated. My attorney had not even contacted me with the news. I felt as I had when I heard the judge’s gavel slam and the guilty verdict read aloud, but much worse. This feeling has much more permanence and finality. Like a heavy mallet, this thought hammers me that the next twenty years of my life could likely pass within these dreary, interchangeable prison cages filled with tormented souls.

Before, I was Luke Scarmazzo: business owner, musical artist, father, husband, brother, son. But now I am just federal inmate number 63131-097. I have been condemned to wander this desert of solitude until I am a gray, old man. In spite of this, the rain still falls, my spirit remains restless and my heart’s purpose beats strong. I will never give up hope that one day I will feel the warm sunshine upon my face, smell the sweet fragrance of freedom and hear Jasmine’s voice softly whisper, “Welcome home, Daddy.”

Luke Scarmazzo will be incarcerated until the year 2027 for operating a legal CA medical marijuana dispensary.  Write to Luke at:

Luke Scarmazzo, #63131-097
USP Lompoc
3901 Klein Road
Lompoc, CA 93436