San Francisco DA Will Retry Juzbasic Case
Jurors In First Case Uneasy About Juzbasic's Earnings
By Ann Harrison
Posted on cannabisreport.com
The San Francisco District Attorney's office said this week that it will retry marijuana possession and distribution charges against Tom "The Nurse" Juzbasic who runs a medical cannabis bicycle delivery service in the city. The new trial is set to begin April 7.
Juzbasic was arrested in June 2003 after he sold a quarter ounce of marijuana to undercover San Francisco police Inspector John Keane for $100. If convicted, Juzbasic could face up to three years in state prison.
A long-time medical cannabis activist, Juzbasic says he's been arrested seven times on charges of marijuana possession, possession for sale and cultivation, and had ten prior cases dismissed in state court. He asserts that San Francisco police regularly disregard the city's tradition of tolerance for medical cannabis and intends to set a legal precedent. On this latest charge, Jusbasic refused to plea bargain and instead appeared in court over sixty times making his one of the longest running marijuana cases in recent San Francisco history.
Juzbasic's first four-day jury trial in this case ended with a mistrial February 28thafter a member of the jury refused to deliberate. But reactions to the evidence presented at the trail offers a rare view into what San Francisco juries consider acceptable boundaries for medical cannabis providers under Prop 215, California's 1996 Compassionate Use Act.
Although Juzbasic's jury had not yet taken a formal vote on whether to convict him, a show of hands requested by Judge Thomas J. Mellon Jr. indicated that all but one of the jurors would have voted to convict Juzbasic on a marijuana sales charge. All but two jurors indicated that they would have found him guilty on a second charge of possessing marijuana for sale.
The juror who refused to deliberate, a man who identified himself as Larry Duncan, voted not to convict Juzbasic on both counts but declined to comment further on the case. "He's a brave man," said Juzbasic. "He stood up to eleven human beings."
The lack of unanimous agreement on the jury illustrates how difficult it is for prosecutors to get convictions for marijuana charges in San Francisco where voters overwhelmingly support medical cannabis. But conversations with jurors after the verdict also revealed a deep uneasiness with the amount of money Juzbasic was alleged to have made while selling cannabis and skepticism about his methods for verifying patients and whether he met the legal criteria as a medical marijuana caregiver.
"As the case went on I got really frustrated with him because I felt like here is an activist doing such great work but it seemed like a betrayal of the community that he was advocating for," said juror number nine who, like the other jurors, refused to give her name. "He used [medical cannabis] as a defense for what had become really a profit making business."
Juzbasic said the money he made selling medical cannabis covered his expenses as permitted under Prop. 215. He denied that he was profiteering and said if he had indeed raked in so much cash, why was he represented in the case by the San Francisco Public Defender's office? "It was a fair jury but the issue was very complicated and the law is very complicated," said Juzbasic. "Based on my interpretation of the law I was within normal limits."
Prosecutor Richard B. Hechler from the San Francisco District Attorneys office didn't see it that way. Hechler spent four days hammering away at Juzbasic's earnings assisted by the defendant's detailed financial records and personal diaries that were seized by police.
"There are not a number of prosecutions from our office of cases involving sales of marijuana let alone cases involving the sales of marijuana with a medical aspect to it," said Hechler told jurors after the trial. "In my opinion this was an egregious case."
So what's the evidence of medical cannabis profiteering that convinced ten to eleven jurors that Juzbasic broke the law?
Did Juzbasic Sell To Non-Patients?
Hechler argued that the Juzbasic case was not about the right of patients to use medical cannabis. He said it was about a marijuana seller who got greedy and expanded his customer base so quickly he didn't know who he was selling to.
According to Hechler, Juzbasic set out to attract large numbers of buyers who were not required to produce written proof that they were patients. He noted that Juzbasic set up a web site for his delivery service and advertised on Craig's List. Once a buyer acquired Juzbasic's business card or pager number, as Inspector Keane did, Hechler argued that anyone could simply call Juzbasic for a marijuana delivery.
To support his argument, Hechler read an entry from Juzbasic's diary in which he refers to cannabis sales as "tags." "This is the first real tag where I don't know who the person is or where I met them. That means my e-biz is going where I want it to," read Hechler.
Juzbasic testified that when patients contact him they provided the phone number of the physician who recommended medical cannabis. Juzbasic pointed out that as a licensed vocational nurse, he is permitted to verify a patient's status by phone.
Once he calls their doctor to verify a bona fid medical cannabis patient, Juzbasic said he gives patients his business card with a pager number that they can use to arrange deliveries. When arrested, Jusbasic had about 200 grams of cannabis in his backpack that he said was within the legal limit of eight ounces per patient.
Hechler argued that Juzbasic used the oral verification loophole to sell marijuana to people without asking to see a medical cannabis patient ID card or their physician's recommendation - as required by many medical cannabis dispensaries. "He was taking advantage of the system because he was a nurse," said Hechler
All three of Juzbasic's patients, who testified in court for the defense, said that Juzbasic never asked them to show a medical cannabis ID card or a doctor's recommendation. But Juzbasic argued that patients were not required under the law to show their ID cards or their recommendation to purchase cannabis. He said he verified every patient that he provided medical cannabis to and kept these patient records on the hard drive of his computer.
"I'm not on trial for my business practices," says Juzbasic. "Maybe I made a mistake in the verification process but that's not the crime here. The crime is did I knowingly sell marijuana to John Keane."
Mel Santos, Juzbasic's public defender, said Juzbasic's sale to Keane was a mistake and suggested that Juzbasic was entrapped. "The crime is that Tom made a mistake thinking Inspector Keane is a patient," said Santos.
"Would a fairly reasonable person sell marijuana to an undercover agent?" asked Juzbasic after the trail. "A fairly reasonable person wouldn't do that unless they were tricked or coerced."
There was some question during the trial as to whether Keane displayed Juzbasic's business card when he purchased cannabis from him as Juzbasic said he did. Keane testified that he had Juzbasic's business card on him when he made the buy, but did not show it.
In the end, jurors said it didn't make any difference whether Keane displayed Juzbasic's business card or not. "To me it was a red herring in the case," said one juror.
Other jurors said Juzbasic's card system was "negligent" and that he acted with "reckless disregard." But they said they were not sure whether his patient verification protocol meant he was guilty. They said they made that decision based on his earnings.
Did Juzbasic Make Too Much Money?
During the trial, Hechler presented to the jury excerpts from Juzbasic's monthly planner and his diaries in an attempt to prove that Juzbasic was a profiteer.
"This case is about that man's greed and his desire to make a profit," said Hechler. The prosecutor produced Juzbasic's detailed financial records indicating that Juzbasic made $37,500 in net profits between January and May of 2003. "What the defendant is trying to hide behind is the medical marijuana program," Hechler told the jury.
Santos argued that the District Attorney's office was attempting to smear Juzbasic as a greedy person but that there was no evidence that he had sold to minors or to college students. "This prosecutor is misrepresenting Tom who acted with good intent trying to provide medical marijuana to qualified patients," said Santos.
According to Juzbasic's records, his medical cannabis delivery business grew quickly. Hechler read off entries from Juzbasic's monthly planner for 2003 indicating that Juzbasic accrued $7,900 in net profits in January 2003, $5,780 in February, $7,435 in March, $8,705 in April, and $9,205 in May. Hechler emphasized that during that time, Juzbasic also recorded the purchases of a new laptop, a 36" flat screen TV and a dental payment of $2,000.
According to his ledger, Juzbasic made up to $600 a day in cannabis sales which he referred to as "tags." Hechler read off Juzbasic's diary entry for March 5 2003 in which he wrote, "poor tag day but made Q." Juzbasic testified that "Q" meant that he purchased a quarter pound of cannabis.
But one juror said Hechler missed a notation on the ledger that he and other jurors plainly saw when displayed. It read "Q=$150.""Once we saw that we knew that meant quota and we instantly knew he was lying on the stand," said the juror.
Juzbasic testified that charged 20 percent markup on the cannabis he delivered. But he said caregivers are permitted by law to recoup their costs and compensate themselves. He added that he pays $1,400 a month in rent to live in Oakland which he says is a typical expense in the Bay area.
"They alleged that I made $37,000 in a five month period working eight hours a day, seven days a week minus the week I went to Hawaii," said Juzbasic. "That's sixty-four hours a week at thirty dollars an hour. In 2003 I made twenty-five or twenty-six dollars an hour as a nurse. So in this job I was making just four more dollars an hour."
Santos noted that the law is vague has to how much a medical cannabis provider can make to reimburse themselves for their costs. "He can pay himself for his services," said Santos. "Is he extravagant in making money hand over fist, I think not."
The jurors did not agree. They said Juzbasic's ledger indicated that he was making substantial profits off his cannabis sales.
"That was absolutely compelling," said one juror. "All of us were just stunned by the money except for Larry who said it was just enough to cover his operational expenses. It was just a very difficult point to dispute."
Hechler also emphasized phrases that Juzbasic had written in his planner including, "my next customer is my best customer" and "there are only three things that make money on the Internet, sex, drugs and rock and roll and rock and roll didn't work."
Jurors said that the language Juzbasic used in his diaries and his planner suggested that he dehumanized his patients. "There was never any compassion or compassionary words used to describe people," said juror number one. "They were referred to as tags or customers."
During closing arguments, Hechler charged that Juzbasic's delivery service operated outside medical cannabis regulations and he urged the jury not to be swayed by their potential support for medical cannabis. "The trouble with you is the trouble with me, have two good eyes but I still don't see," Hechler told the jury quoting a well-known Grateful Dead lyric. "Follow the law!"
After they were discharged, jurors said they supported medical cannabis and felt uneasy being selected to sit on a jury where they might have to convict a medical cannabis provider. "I really wanted to give him the benefit of the doubt," said juror number one. "My whole sense of the trial that I really walked away with is that he probably started out with fabulous intentions. Those three patients who came in, I'm sure he has a great relationship with them, but he got too big."
Defining A Primary Caregiver
Juzbasic's patients who testified on his behalf praised his work. Dylan Taylor, who said he met Juzbasic on Craig's List in 2002, said Juzbasic provided him cannabis to ease the side effects of his chemotherapy and stomach upset from his HIV medications. Another patient named Fareedah Shabazz said she had wasted to just fifty pounds with a stomach ailment before she started getting cannabis from Juzbasic and San Francisco dispensaries.
"The medicine they were giving me was not helping and he made the situation better,"said Shabazz who now weighs 98 pounds. "It not only gives me an appetite, it takes the pain away."
Clark Sullivan, another Juzbasic patient, testified that he received cannabis brownies from Juzbasic to treat his depression. "He is someone who looks after my physical needs, eating, medicine, he monitors my blood pressure and pulse, I trust him," said Sullivan.
While jurors said they were sympathetic to the patients and did not doubt that cannabis provided relief, they had difficulty understanding how Juzbasic acted as their primary caregiver.
"Where are the doctors that he contacted for confirmation?," asked juror number nine. "There were no patients who came forward who really emphasized that primary caregiver role."
Hechler argued that Juzbasic did not have a medical cannabis caregiver card issued by the San Francisco Department of Public Health and had not consistently assumed responsibility for the housing, health or safety of his patients as required under Prop. 215.
"If you don't play by those rules, then the medical marijuana program is not working," said Hechler. "He's just doing it on the fly, and not trying to comply with regulations, he's just selling dope and making coin."
Juzbasic asserted that he did regularly provide food for his patients and tended to their health and safety. "For someone to accuse a 19-year vocational nurse who has a license and have the state say they are not a caregiver, I will equate that with Schwarzenegger saying that nurses are nothing but a special interest group," said Juzbasic. "I'm not a special interest group, I want to see the medical marijuana laws followed in this state."
Jurors said they had an unfinished discussion about what constituted a primary caregiver and complained that the protocol for determining whether Juzbasic met that criteria was too vague. But they pointed out that Juzbasic recorded in his diary that he took over the tags or customers of another delivery service. Jurors said they couldn't understand how Juzbasic could be a primary caregiver to somebody else's patients.
"I think it’s a stretch to say that he was a primary caregiver for many of his clients," said juror number nine who said the definition of caregiver should be closer to that of a primary care physician.
"We talked about the word "consistently" quite often and we just couldn’t come to the conclusion that he consistently cared for everyone in his roster," said another juror.
Hechler asked jurors what kind of proof they wanted to see that a cannabis provider met the definition of "primary caregiver" under the law. "The definition is quite difficult because each one of us probably understands that definition differently," said juror number one.
While jurors said they had not yet agreed on what constituted a primary caregiver, they did agree that Juzbasic's courtroom demeanor hurt his case. Juzbasic was clearly angered by testimony from police and by Hechler's questioning in court. "I'm so sick of being arrested and having all my medicine taken away from me," said Juzbasic on the witness stand.
While Juzbasic is determined to oppose his arrests his tactics don't always work. Inspector Keane testified that just before Juzbasic was arrested for selling him marijuana, Keane complimented him on the SFPD t-shirt he was wearing and Juzbasic replied. "I wear it so the cops don't fuck with me."
Jurors said Juzbasic's testimony and histrionics in the courtroom damaged his credibility and suggested that he was badly prepared by his attorney. "He was the worst witness for the defense," said one juror. "He was much more likable towards the end than in the beginning, but he was uncooperative and evasive and snarky."
"He hurt himself more than anyone hurt him," said another juror.
"I don’t' want to be a whipping boy out of all of this," countered Juzbasic. "I'm not the Al Capone of marijuana as they're making me out to be."
The Case Continues
While Juzbasic argues that he never made as much money as Al Capone, he acknowledged that prosecutors will likely pursue him on tax evasion charges as they did against the famous gangster. "If the city can't win a criminal trial here, they will pass it over for a federal tax evasion investigation," said Juzbasic.
In the meantime, prosecutors have to pick another jury. Jurors in Juzbasic's first trial criticized Hechler for allowing Duncan to serve on the jury because they said Duncan stated clearly during jury selection that he would never convict Juzbasic.
"In the voir dire questions you could have seen this," said juror number one to Hechler. "He never said that he could set aside his prejudice and convict someone. He said Tom had to be 100 percent guilty, that reasonable doubt was not good enough for him."
Jurors also criticized Santos, the defense attorney, for failing to introduce more records about Juzbasic's patients. Many medical cannabis providers are hesitant to keep patient records because they fear the information will be used against them by federal prosecutors or will violate their patient's medical privacy.
But jurors said that the physical evidence in the case was limited to incriminating financial records and patients records would have helped establish Juzbasic's role as primary caregiver. One juror noted that if they had documentation of Juzbasic's expenses it would have been easier to determine whether he was indeed making a profit.
"If he had records on the hard drive of his computer where are those records?" asked juror number nine. "If those things were pertinent to the defense than why weren't they brought?"
Some jurors said witnesses called by the prosecution and the defense actually benefited the other side. Jurors said the testimony offered by medical cannabis expert Chris Conrad helped them understand how medical cannabis was provided to patients. They said Conrad's assertion that dispensaries charged $85 to $100 for a quarter of an ounce of cannabis in 2003 and $100 to $115 for high quality cannabis was especially interesting. But one juror said that this information made him doubt Juzbasic's claim that his price of $100 for a quarter of an ounce was a discounted rate that he could offer because he had little overhead.
Some jurors also had mixed feeling about the testimony offered by four San Francisco police officers involved in Juzbasic's arrest. During their testimony, officers voiced deep skepticism about the validity of medical cannabis similar to the views members of the SFPD narcotics unit have expressed for years.
"In my opinion, people use it as an excuse to sell marijuana," said Officer Ricardo Valdez, who served as a backup officer during Inspector Keane's undercover buy.
"I think there is a terrific amount of marijuana sales in the guise of medical marijuana that is for pure profit," said Officer David Martinovich who said he and his fellow officers had arrested many people with medical cannabis patient ID cards for reselling marijuana