California Weed

At last minute, Obama commutes prison sentence of Modesto pot dispensary operator

Luke Scarmazzo, left, and Ricardo Montes, center, formerly owners of the California Healthcare Collective, are seen in a 2008 photo. Their attorney Robert Forkner is at right. Montes has won clemency; Scarmazzo has not.
Luke Scarmazzo, left, and Ricardo Montes, center, formerly owners of the California Healthcare Collective, are seen in a 2008 photo. Their attorney Robert Forkner is at right. Montes has won clemency; Scarmazzo has not. Modesto Bee file

Luke Scarmazzo and Ricardo Montes were high school football teammates who went on to bigger fame, fast riches and federal prison after opening a medical marijuana store in a conservative Central Valley town in the early era of the California cannabis industry.

Now President Barack Obama, as one of his last acts in office, is letting one of the two Modesto dispensary operators go free. The White House announced Thursday that Montes, 37, has been granted clemency. He will be released from prison on May 19 after serving nine years of a 20-year sentence for illegal marijuana distribution and conducting a continuing criminal enterprise.

In their mid-20s, the graduates of Fred C. Beyer high school were reaping $13,000 a month each from an operation that handled nearly $9 million in transactions between late 2005 and 2007. They became renowned for making a weed-celebrating rap video, starring Scarmazzo and uploaded to YouTube. With visible boxes of cash, Scarmazzo, who went by the name “Kraz,” ripped federal marijuana prohibition with flipping fingers and an infamous shout: “F--- the feds!”

In the years since the two were sentenced, marijuana legalization advocates have portrayed the pot entrepreneurs, however bold, as POWs of a failed “war on drugs.” They argued that times have changed, symbolized by Congress denying funding for U.S. drug agents interfering with state medical marijuana laws, as 26 states and Washington, D.C., have legalized marijuana for medical or recreational use.

Two jurors from the 2008 trial wrote letters seeking leniency for the dispensary operators. And Scarmazzo’s daughter, Jasmime, 14, and Montes’ oldest daughter, Nina, 12, had an an online petition imploring Obama to “Free Our Dads!”

But on Jan. 6, Obama denied the request of Scarmazzo, also 37, to commute his sentence of 21 years and 10 months. Then Thursday brought dramatically different news for his business partner.

“I’m just ecstatic for him, so happy. He has three children waiting for him,” said Georgean Arsons, a New Jersey woman who handled Montes’ and Scarmazzo’s clemency appeals. “I believe he is completely deserving. With all of the changes to marijuana charging practices, he would not be charged today if he was doing the same thing.”

Arsons, 74, a retired information technology manager for AT&T and pharmaceutical companies, took up the pair’s case in memory of her son, Roland, who died last year. Sentenced to federal prison in an unrelated marijuana case, he had befriended Scarmazzo while they both were in the Fresno County jail.

She was frustrated that Scarmazzo didn’t get the same result as Montes, who was recently moved from a federal prison in Lompoc to a penitentiary in Atwater, closer to his family in Escalon.

“I’m feeling very perplexed and somewhat bitter that Luke’s name was not on the list of (clemency) grants today,” Arsons said. “His name should have been right there with Ricardo’s. “It is the same law, the same clemency process. He is as deserving as Ricardo.”

In a statement Thursday announcing 330 commutations by Obama, bringing his total to 1,715, the White House said most were granted to right inequities of “unduly long sentences for drug crimes.

“With today’s action, the President has granted more commutations than any president in this nation’s history and has surpassed the number of commutations granted by the past 13 presidents combined,” the statement said. “The President set out to reinvigorate clemency, and he has done just that.”

The White House didn’t provide reasons for Scarmazzo’s denial or Montes’ approval for clemency.

Of the two, Scarmazzo was easily the more flamboyant. In addition to starring in the rap video, he motored around Modesto in a $137,000 Mercedes Coupe.

“I was young and came into more money than we had ever seen before,” Scarmazzo said in phone interview with The Sacramento Bee last month 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.”

Unlike Montes, he had a prior offense: Scarmazzo 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. Scarmazzo said he threw a punch and then bailed out of the melee that was triggered after an egg was thrown at a car.

Robert Forkner, an attorney who represented Montes in the original case, praised Obama for making the “right decision” in freeing Montes.

“My client did not deserve 20 years in prison for operating a medical marijuana dispensary. He had not been in trouble a day in his life before this case,” Forkner said.

In their clemency appeal, Scarmazzo and Montes argued they were prohibited from arguing that they were providing cannabis as medicine under California law because federal rules – under which all marijuana is illegal – prevented such evidence at trials.

They also pointed to a 2013 Justice Department memo, in which federal authorities declared they wouldn’t interfere in states that had legalized marijuana if they had “robust” regulations for marijuana businesses. Such rules didn’t exist in California when Scarmazzo and Montes were running their dispensary, called the California Healthcare Collective, under nebulous state guidelines that merely said people with doctors’ recommendations for medical use could collectively cultivate and share marijuana.

In the December interview, Scarmazzo said the music video was a mistake that badly hurt him at trial when played in court. He said he hoped to be freed to rejoin his daughter and “return to a productive life” working with at-risk youths – not in the pot or music businesses.

If he didn’t get clemency, Scarmazzo said, he hoped Obama would grant relief to Montes, whom he recruited as his partner in running the dispensary.

“Ricardo is like a brother to me, like family. I feel responsible for where he is at personally,” said Scarmazzo, who is eligible for release in 2027. “I love him, and if I could take his time for him and allow him to go home, I would do it in a heartbeat.”

Modesto Bee reporter Rosalio Ahumada contributed to this story.