Former deep-sea diver Matthew Zugsberger was seriously injured while working on a pipeline for an oil company. That accident left him with damaged vertebrae, a pronounced limp, nausea and chronic pain, which he treated with physician-approved marijuana in compliance with California’s medical use laws. In December 2008, security personnel at Sacramento International Airport discovered some three pounds of marijuana in Zugsberger’s possession while he was attempting to board a flight to Louisiana. Zugsberger was hit with criminal charges as a result, but just weeks before his trial began, the California Supreme Court threw out legislated quantity limits for medical marijuana patients in the state. This meant that Zugsberger’s defense would rely entirely on demonstrating what quantities were related to his personal medical needs.

When he went to trial in March 2010, Zugsberger submitted a letter from his recommending physician saying that three pounds was an appropriate amount for his possession. Zugsberger also told jurors how he intended to use the marijuana that was stashed in his luggage at the Sacramento airport – he was going to fly it to a master chef in New Orleans who had agreed to put it into medical marijuana edibles that Zugsberger would then transport back to California for his own use.

The jury, however, simply didn’t buy the story and concluded that Zugsberger had more marijuana than necessary for the two-week trip. After a near-deadlock and substantial confusion over their deliberation instructions, jurors eventually acquitted Zugsberger of possession with the attempt to sell, but convicted him on a charge of simple possession and on the illegal transport of marijuana. He received a sentence of 120 days in jail.

Last updated March 29, 2001 by Vanessa Nelson for www.medicalmarijuanaofamerica.com (now defunct).


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Patient Convicted, Incarcerated for Toting Medical Marijuana to Airport
by Vanessa Nelson  
Wednesday, 10 March 2010

Trial Sets Murky Precedent in California Court

SACRAMENTO, CA -- After three days of deliberation and one false start, a jury returned a mixed verdict for the medical marijuana patient who took three pounds of pot to the Sacramento International Airport in December 2008.

Matthew Zugsberger, 34, was taken into custody directly after learning that the jury convicted him on the unlawful possession and transportation of marijuana but acquitted him on possession with the intent to sell.

This conclusion represented the jurors’ second attempt to issue a decision in the case.  Earlier in the day, they turned in verdicts that the judge rejected because they were incompatible with his instructions on procedure.

The flub did nothing to inspire confidence in the jury.

“They didn’t make a decision based on the facts,” Zugsberger said of the panel. 

Those facts, he noted, included a letter from his physician verifying that three pounds was an appropriate quantity for him to possess for personal use.  And Zugsberger contends that this determination should have been all that was necessary for a not guilty verdict, since the California Supreme Court threw out legislated quantity limits for medical marijuana in the case of People v. Kelly earlier this year.  Many observers considered Zugsberger’s trial to be the first visible test case for the newly-modified law.

The jurors, however, believed they had more discretion in the matter.  If rushed hallway interviews are any indication, the jury apparently disregarded Zugsberger’s story about the way he intended to use those three pounds of marijuana and instead focused on whether he possessed more than he would need for the intended duration of his trip.

At trial, Zugsberger testified that he intended to take his stash to a chef in Louisiana so that she could put it into various foods like ice cream and pasta dishes for him to ingest. 

Zugsberger also described the back injury he sustained while working as a deep-sea diver and the quantities of marijuana he required to adequately treat the resulting symptoms.  He said he preferred eating marijuana because it produced stronger effects in combating his bodily pain, but this method requires greater quantities of marijuana than needed for smoking.  As a result, Zugsberger testified, he could consume up to a quarter-pound of marijuana on a bad day.  Many of his assertions were backed up by the defense’s expert witness, Chris Conrad, who testified that Zugsberger’s quantities were appropriate dosages under the circumstances.

The prosecutor, of course, had a whole different take.  According to Deputy District Attorney Satnam Rattu, Zugsberger’s marijuana had been intended for sale, and therefore it was possessed and transported illegally.  Rattu insisted that Zugsberger was taking the pot to Louisiana simply because he could get a higher price for it there, but in the end there was little of substance to back up the accusation.

With no proof of intended sales, Rattu’s case looked thin.  Sure, he had the marijuana that had been seized from Zugsberger’s luggage and pants during the search at the airport.  However, the prosecutor had none of the evidence that’s commonly used to support such charges: pay-owe sheets or list of customers, packaging or weighing equipment, admissions from the defendant, or evidence from an undercover operation.  Without any of these things, Rattu was left to attack the believability of Zugsberger’s story, the reasonability of the quantity and the credibility of the defense’s expert witness.

In doing so, Rattu asked many of the questions that have perplexed those watching the case.  Some of those inquiries were theoretical: wouldn’t it have been easier to fly the chef in, rather than transport the marijuana to Louisiana and then transport the finished food products back?  Zugsberger replied that the chef in question, who is his ex-wife, couldn’t travel because she was in training and working through an externship program.  Other questions from the prosecutor were procedural, such as how Zugsberger planned to transport gallons of pot ice cream back to California by airplane.  Using a cooler, the defendant told him.  Rattu wondered if this was allowed for commercial airline passengers, but Zugsberger assured him that it was – people do it all the time with fish in an ice chest, he explained.  In the end, the prosecutor left the determination up to the jury, but reminded them in his closing statements about how difficult it is just to bring a small bottle of shampoo on a commercial flight. 

Although it was not discussed in depth, Rattu also let the jury know that there was a prior case in which Zugsberger had been arrested for transporting several pounds of marijuana.  However, the jurors did not learn about the most interesting detail of that case: that police in Washington state had been ordered to return some eleven pounds of seized marijuana to Zugsberger and his girlfriend at its conclusion.  Instead, only a few suggestive questions on the matter were allowed in during cross-examination, when the prosecutor claimed that the defendant’s testimony opened the door to such inquiries.

Rattu was less subtle about the quantity necessary for Zugsberger’s medical needs.  The prosecutor pointed out that Dr. Milan Hopkins, the physician who approved Zugsberger’s medical marijuana use, had issued blanket recommendations of up to five pounds of per year for all of his patients.  And how credible was Dr. Hopkins, anyway?  His office was an “Alternative Medi-Spa” that did facials and laser hair removal, the prosecutor repeatedly reminded the jury.

Furthermore, Rattu suggested that Zugsberger was lying about preferring to eat marijuana rather than smoke it.  After all, the prosecutor speculated, why would someone want to treat their nausea by trying to hold down a bunch of pasta and ice cream?  That was illogical, according to Rattu, and he concluded that Zugsberger was exaggerating his use of edibles in order to artificially inflate the quantity of marijuana he supposedly needed. 

As the prosecutor put it, if Zugsberger smoked pot far more than he ate it, then three pounds was a completely unreasonable amount for him to have at one time.  Backing up Rattu was his star witness, narcotics expert Detective Lannom, who testified that three pounds would be more than a year and a half’s supply for Zugsberger.  Lannom’s calculations were based on joints weighing 0.2 grams that were smoked steadily at the rate of one every two hours. 

It was difficult to rectify Lannom’s largely random assumption with Zugsberger’s own testimony about the quantities he consumed and his preferred method of ingestion.  Even when it came to the most personal kind of arithmetic, the prosecution and the defense appeared to be working in two separate realities.

Although Rattu was careful to say that he wasn’t contesting Zugsberger’s status as a medical marijuana patient, the prosecutor did draw battle lines over the defendant’s medical record and whether he really had a cancer diagnosis.  The matter was questionably relevant, since Zugsberger’s medical marijuana recommendation was for a well-documented back injury, but Rattu pursued it nonetheless.

This battle developed after Zugsberger provoked expressions of concern from jurors as they watched him vomit conspicuously into the courtroom trashcan at the end of the first day of trial.   Following that incident, it seemed crucial for the prosecutor to suggest to the jury that the defendant was likely to exaggerate certain details in order to win sympathy, and the cancer controversy appeared to be the perfect thing for that.  Rattu ended up calling a sheriff’s officer as a rebuttal witness for the sole purpose of testifying that Zugsberger once said he was a terminally ill cancer patient. 

In the end, the whole issue came down to two different interpretations for what makes a cancer diagnosis.  According to Zugsberger, an oncologist had told him that he had melanoma in his back, but he never had a biopsy and couldn’t afford any cancer treatments.  Rattu maintained his hard line that cancer wasn’t cancer until a biopsy confirms it, and he sharply refused the defendant’s offer to take his shirt off and show the protrusive growths on his back. 

Rattu also raised eyebrows with another battle tactic, using humorous cartoons to demean the defense’s expert witness.  When Chris Conrad was on the stand, the prosecutor read some of the more bold and unusual quotes from the witness’s writings, hoping to either shake his composure or discredit him as a nut.  One of these quotes was a statement in which Conrad compared the injustice of marijuana prohibition to the injustice of slavery, but the witness merely nodded affably and acknowledged his position during the cross examination.  The prosecutor also focused on an essay in which Conrad identified a common set of principles and practices amongst religions that use marijuana as a sacrament, suggesting that it meant that Conrad was some sort of pot evangelist. 

But Rattu waited until closing arguments before delivering his most colorful jabs at Conrad.  At that point, he joked to the jurors that Conrad was a marijuana superhero and put a cartoon depiction of such a superhero up on the courtroom projectors for their viewing pleasure.  The stunt elicited some chuckles, but it also illuminated the emptiness of the prosecutor’s case.  During his closing argument, which is the crucial last chance put a spin on the facts before the jury deliberates, Rattu had little to work with.  When the case lacks actual evidence, it all depends on the character and believability of the witnesses…and the clever deployment of cartoon gags, as it turns out.

This was the sort of case that leaves a lot up in the air, and the length of the jury deliberations reflected that reality.  After the first few hours, Zugsberger got a boost when he learned that the jurors had requested to see the actual language of California’s medical marijuana law.  Fulfilling this request took a bit of scrambling on the part of the court – the text they turned up had apparently not been amended to reflect the People v. Kelly decision and the quantity limits had to be removed before it was ready to go before the jurors.  Still, there was no sign that this cleared things up for them, since deliberations stretched across two more days.

Talk of deadlock finally surfaced yesterday morning, and by noon the jurors announced themselves to be hopelessly deadlocked on one count and ready to hand in a verdict on the other count.  When they gave Judge Roland Candee their verdict forms, however, he ended up handing the papers right back.  The jury had not followed his instructions for deliberating, the judge said.  The count of possession had been spilt into two charges of varying severity, and jurors were only supposed to consider the lesser offense if they found Zugsberger not guilty on the greater offense.  However, jurors had tried to turn in a verdict for the lesser offense while remaining deadlocked on the greater offense.  This got them sent straight back to the jury room for further deliberation.

About three hours later, the jurors were ready for the second try at submitting their verdicts.  And, perhaps for the purposes of making a simple fix to the incompatibility of their findings, they were no longer deadlocked.  As such, they had found the defendant not guilty of the greater possession charge…and if Zugsberger breathed a sigh of relief at hearing that news, it was quickly cut short by the realization that this decision was made so that the guilty verdict on the lesser possession charge could remain standing.  The guilty verdict on the transportation count finished the announcements, and as the jurors silently filed out of the courtroom, Zugsberger was left to sit with a fate that had instantly transformed. 

The only question left was whether he would be taken to the county jail or allowed to remain out of custody, but there was little opportunity to wonder.  Predictably, the prosecutor urged a remand on the grounds that a felony conviction is a serious offense.  Defense attorney Grant Pegg countered by citing Zugsberger’s good attendance record at his court hearings and the need for him to be out of custody to prepare for his sentencing.  Judge Candee noted that there are special circumstances that allow a defendant to remain out of custody after being found guilty of a felony.  However, he concluded, “The Court doesn’t believe any of those are in line.” 

Matt Zugsberger and his girlfriend Felischia waiting for the verdict outside the courtroom. Photo by Vanessa Nelson.With that, the bailiff quickly prepped Zugsberger for transport while his sobbing girlfriend was ushered out into the hallway.  Later, Pegg emerged from the courtroom to give her a handful of possessions that Zugsberger wouldn’t be taking to jail, including his tie and a few small bills of currency.  These were the remains of Zugsberger’s old fate, mementos of freedom.  On April 8th, at his scheduled sentencing, he will get an idea of how long it may be before he can reclaim them.

The effects of the trial go beyond the incarceration of one man, however.  Calling the verdict a disappointment, Pegg said, “This case is the first to interpret the Kelly decision, so it is going to be heavily monitored.”  

And what is that interpretation?  That even without generalized numerical guideposts, jurors will continue to do their own assessments of a patient’s medical needs and make determinations that often seem arbitrary when viewed from outside the deliberating room.  So, how much is too much medical marijuana now?  No one’s quite sure, really, except to say that the jurors will know it when they see it.

Originally published at www.medicalmarijuanaofamerica.com (now defunct).