Fry & Schafer Released on Bail Pending Appeal

Judge hands out five-year terms, says it's 'a terrible day.'

By Denny Walsh - dwalsh [at] sacbee.com

Published 12:00 am PDT Thursday, March 20, 2008

An El Dorado County couple – a physician and an attorney – were sentenced
Wednesday in Sacramento federal court to five years in prison for conspiring
to grow and distribute marijuana.

U.S. District Judge Frank C. Damrell Jr. said federal law left him with no
choice but to impose on both Dr. Marion "Mollie" Fry and attorney Dale
Schafer the mandatory minimum sentence.

But, to the delight of supporters who packed the courtroom, the judge
allowed the pair to remain free on bail until their appeals have been
decided.

The statutory minimum applied because of the number of plants – at least 100
– found by a jury in August to be the crux of a conspiracy to grow and
distribute pot from their offices in Cool and their home in Greenwood.

The couple went from personal marijuana use – radical breast cancer surgery
in Fry's case, severe back pain and a dangerous form of hemophilia for
Schafer – to supplying the drug to people who came to them with various
ailments.

Fry supplied the physician's recommendation required under California law,
and Schafer advised clients on the legalities of medicinal use. Each
recommendation bore the warning that possession, use or manufacture of
marijuana under any conditions violates federal law.

They insisted they didn't expect trouble from federal narcotics agents
because they were not selling the drug, they were careful to comply with
California's Compassionate Use Act, and what they were doing was encouraged
by El Dorado County narcotics officers.

Assistant U.S. Attorney Anne Pings consistently has argued that Fry and
Schafer were motivated by greed. During the trial Pings presented evidence
that they charged $200 for a recommendation. She also has argued that Fry
and Schafer did not have to face the mandatory five years; they rejected
plea deals calling for far less punishment.

Damrell said that fact troubled him.

"You had the opportunity to resolve this case, but you wanted to soldier on,
knowing that your kid would be left behind," he told the couple.

At a break during the hearing, First Assistant U.S. Attorney Lawrence Brown
confirmed that Fry was offered straight probation in return for a plea. She
didn't accept, Brown said, because the deal would have been based in part on
her serious mental health problems, and she was afraid of the impact that
might have on the state Medical Board, which licenses and regulates
physicians.

Damrell told Fry and Schafer they're martyrs, but he questioned whether
their cause merited such a sacrifice, especially since they have children at
home and help care for a grandchild.

Were it left up to him, the judge said, the punishment would be less. "It is
a sad day, a terrible day," he said.

At the conclusion of a grueling, emotional hearing, Damrell ruled the couple
could remain free on $25,000 bail each pending the outcome of their appeals.

Before imposing the sentences, Damrell told the couple: "At some point, it
seems to me, you lost control of your lives. You let your passion for this
drug and its salutary effects cloud your judgment.

"I'm not saying medical cannabis doesn't have a place in our society,"
Damrell said, "but federal law has not caught up with that notion. … It
seems to me that victimhood and self-aggrandizement took hold. You thought
you were bulletproof."

The judge said Fry especially seemed blinded to persons working for the
couple who were "petty criminals," and that some people who came to them
wanted pot simply to get high.

In granting bail, however, Damrell said the exceptional circumstances of the
case create "serious issues that need to be decided by an appellate court."

One of those, he noted, is the defendants' claim of entrapment.

http://www.sacbee.com/101/story/799453.html

Patient Records Used Against Dr. Fry During Trial
Written by Vanessa Nelson
Dr. Marion “Mollie” Fry and Dale Schafer didn’t set out to be medical cannabis pioneers. When California’s Compassionate Use Act passed in 1996, the couple was concentrating more on family life than statewide politics. Dr. Fry had taken leave from a career in medicine to raise the couple’s five children, and Schafer was an attorney specializing in worker’s compensation claims. Life was quiet and simple, filled with little league, gymnastics practice, and churchgoing. But just three years later, after cannabis helped her through a desperate struggle with cancer, Dr. Fry resumed private practice and quickly became one of the state’s most famous compassionate use physicians.
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But Dr. Fry did more than merely examine patients and write medical recommendations. Operating from offices in the tiny rural town of Cool, she and her husband attempted to help patients with safe and affordable access to cannabis and delivery devices. Evidence presented during trial linked them to sales of glass pipes, starter cannabis plants, hydroponics equipment and the delivery of processed cannabis. Schafer also admitted to acting as a caregiver for select patients in need and growing plants for them at the couple’s country home. It was there that he invited local law enforcement in 1999 and 2000 to look at the few dozen plants he was cultivating and verify their legality. Although the federal government maintains that cannabis is illegal, both the doctor and her husband were confident that their activities were protected under state law, and they were fully comfortable with showing the garden to local law enforcement. “I’m a California doctor and a California citizen, and I was following California law,” Dr. Fry explained simply.

What the doctor and her husband didn’t know was that the sheriff’s department handed their reports right over to federal agents, who had begun investigating the couple in earnest after one of the family houseguests was caught sending cannabis through the United Parcel Service. Following massive aerial surveillance and undercover operations, the couple’s home and offices were raided in September 2001. Although the feds had anticipated a huge growsite, they recovered a paltry 34 cannabis plants that would have hardly made much of a case on their own. Undeterred, the U.S. Attorney simply structured the charges to include the previous two years, allowing federal prosecutors to use the sheriff’s records from the 1999 and 2000 visits. Only by combining the numbers from three separate grow seasons could the government present a total plant count that even approached a hundred.

Although the raid turned up precious few plants, it nonetheless netted several thousand patient records – two dozen file cabinets full of them, for a total that neared six thousand. A legal tug-of-war over these records dominated the courtroom hearings directly following the bust, but the files ultimately stayed in the government’s possession. It was a situation that terrified many of Dr. Fry’s patients as they waited for resolution.

And wait they did, as federal prosecutors bided their time for the ideal opportunity to bring criminal charges against the doctor and her husband. The long-awaited Supreme Court decision in Raich v. Gonzales was finally handed down in June 2005, affirming the right of the federal government to enforce its controlled substance laws in states that had legalized medical cannabis. Right on the heels of this decision, Dr. Fry and Schafer were indicted on federal charges of cultivation as well as conspiracy to cultivate and distribute. They were arrested by surprise and briefly jailed, and upon release were ordered to submit to random drug-testing leading up to trial. The couple waged a battle for court permission to use the prescription drug Marinol, a synthetic form of THC, but a magistrate judge denied the motion by claiming it would interfere with drug testing. The late Dr. Tod Mikuriya was a fierce critic of this ruling, reminding the public that such judges are not qualified to make medical decisions. “They make a pathetic and incorrect assertion that [Marinol] defeats testing for cannabis when a test to differentiate is available from Mahmoud El Sohly at the University of Mississippi and the prosecutor and deputy US attorney lie, omit, and misrepresent,” Dr. Mikuriya said of the written decision. “The side effects of sedation and depression of the medications they are permitted significantly impair their ability to defend themselves.”

As various other pre-trial battles played out, the seized patient files had been virtually forgotten…and predictably so. After all, the precedent set by Conant vs. Walters shielded Dr. Fry from being prosecuted for recommending medical cannabis, protecting the free speech between doctor and patient. The records were therefore irrelevant to her charges, and went without further mention in court until Assistant U.S. Attorney Anne Pings revealed during the readiness conference that she was prepared to use them during trial to attack the validity of Dr. Fry’s practice. Speaking to U.S. District Judge Frank C. Damrell, Jr., the prosecutor claimed that the defense would question the witnesses in such a way that she would be forced to attack the validity of Dr. Fry's practice in order to counter the characterizations. "There will be questions to the witnesses like, 'Did it help you? Didn't you really enjoy being high all the time so that you didn't feel your pain?'" In that case, Pings predicted, she would ask about recommendations being given for things like sore elbows.

Certainly, an attack on the validity of Dr. Fry’s practice had its benefits for the prosecutor, but it also had some definite disadvantages. Without doubt, Pings weighed the pros and cons carefully. Ridiculing Dr. Fry’s recommendations would be difficult to do so without simultaneously reinforcing the medical nature of the case. In this way, the prosecutor risked emphasizing the medical necessity of cannabis to a jury that claimed ignorance on the topic and had been presented virtually no evidence about it.

An attack on Dr. Fry’s practice therefore had perils, and, at first, it appeared to be completely unnecessary for the prosecution. Pings had ample evidence on the charges, and certainly enough to make a substantial showing of guilt without even mentioning the clinic. But everything changed during one pivotal scene near the end of the trial last August, when Schafer took the witness stand. That was the point when Pings came on full-force with her grievances regarding Dr. Fry’s clinic.

By testifying in his own defense, Schafer essentially compelled the prosecutor to show her hand. He was the first witness to speak in any significant depth about his wife’s professional practice and about the evolution of her involvement with medical cannabis. Even though he had barred all evidence of medical necessity, Judge Damrell allowed Schafer to speak about these subjects in order to explain his reasons for cultivating cannabis. This was a double-edged sword for the defense – Schafer would be allowed to talk about medical cannabis in front of the jury, but only when admitting his own guilt.

Nevertheless, Schafer’s testimony marked a dramatic change in the rhetoric of the trial. Up until then, the prosecutor had successfully objected to nearly all the pairings of the words “medical” and “medicine” with mentions of cannabis. Listening to Schafer, however, the jurors got many earfuls of these pairings.

For the defense, Schafer tearfully described his wife’s diagnosis with breast cancer and her resulting struggles with chemotherapy and a double mastectomy. “We were told she had a 30% chance to survive,” Schafer recounted on the stand, gazing across the courtroom at his wife, who was racked by silent but powerful open-mouthed sobs. “We went through four courses of chemotherapy as soon as the wounds healed from the mastectomy.”

After plainly admitting to growing cannabis for Dr. Fry, Schafer hit another point of emotional intensity when explaining why he had decided to begin cultivating. “She puked,” he said of his wife, tears welling up in his eyes again. “She laid on the floor of the shower and puked, and I would have to clean her off and try to feed her.”

Many of the watchers in the gallery had begun crying, and a couple members of the jury appeared to be on the verge of tears as well. The other jurors wore expressions of absorbed concentration and sympathetic concern. In this mood, they heard about how a bald and weak Dr. Fry wasted away during her vigorous cancer therapies, unable to hold any food down. “In 1998, her doctor recommended marijuana,” Schafer recalled. “No other anti-emetics worked, and she was prescribed many anti-emetics. Some were even injectible, I think. None of them worked.”

Unable to secure reliable access to cannabis on the black market, Schafer began to grow the medicine for his wife as her condition quickly improved. He told the jury that he then obtained a doctor’s approval to use cannabis to treat his own maladies, which include hemophilia, hepatitis C, and chronic pain from failed back surgery. Cannabis, according to Schafer, helped him to substantially reduce his intake of a cornucopia of prescription painkillers like Vicodin, synthetic morphine and methadone. Though they were told nothing about state law, the jury did hear a great deal of testimony about the medical use of cannabis under a doctor’s recommendation.

The judge’s rulings kept Pings quiet as Schafer explained his reasons for cultivating, but when he began testifying about splitting his crop with an AIDS patient, the prosecutor drew the line. She successfully objected to the terms “caregiver” and, later, to the use of the word “patient.” After that, the struggle was on. The prosecutor would have to counteract the sympathy garnered by Schafer’s tear-jerking monologue, and she did so by mounting her attack. The cross-examination of Schafer quickly transformed into a campaign to discredit Dr. Fry’s medical practice.

In her campaign, Pings focused on the ages of Dr. Fry’s patients and the conditions for which some of them were issued recommendations. Perhaps for the giggle factor, the prosecutor brought up Dr. Fry’s expert testimony in another case, in which the doctor had stated that cannabis was good for hemorrhoids. In addition to this, Pings acted aghast that the doctor wrote recommendations to treat asthma. The implication, which was never contested, was that smoked cannabis would be especially harmful for asthmatics, and thus, Dr. Fry made her recommendations irresponsibly. Unless the jurors happened to know otherwise, they were quite likely to swallow this idea.

Pings continued the attack by questioning Schafer about a former patient and family acquaintance who had testified for the prosecution earlier in the trial. Pings described this patient as a “kid,” even though he had been 22 years old at the time of his recommendation, and mockingly asked the defendant if he was aware that his wife had issued a recommendation for a “sore elbow.” Schafer, however, was on point. “I was aware that he had osteochondritis, yes,” he said confidently.

Thwarted on that example, Pings went on to suggest that Dr. Fry targeted children through her practice. Schafer testified that he believed his wife wrote recommendations for a few minors, but stressed that this was done with parental consent. The prosecutor responded with a rapid fire of statistics that were allegedly gleaned from an analysis of several thousand patient records seized during the 2001 raid of Dr. Fry’s office and storage facility.

Pings first asked Schafer if he was aware that, as of September 28th, 2001, his wife had written 130 recommendations for people under the age of 20. After the judge overruled the defense’s objection, the prosecutor presented another statistic, asking if 175 of the recommendations had been written for individuals under 25 years of age. The defense repeated its objection on grounds of relevance, and once again the judge overruled it. Next, Pings switched tactics to imply that a significant number of Dr. Fry’s patients were criminally suspect, asking Schafer if he knew that 339 of the recommendations were issued to those who had pending criminal cases or who were on probation. Yet again, the judge allowed the questioning to proceed in spite of objections uttered in unison by the defense attorneys.

These figures were shot off so quickly, and with such a tone of shock, that the jurors could easily have failed to catch that the statistics were ambiguous with regard to the number of legal minors, or persons under 18 years of age. Without a frame of reference, it might also have slipped past the jury that each of the figures quoted was a very small percentage of the total, which was approximately 6,000 patient files. With this knowledge, it’s easy to see that issuing recommendations to persons under 20 years old was actually an exception to the norm in Dr. Fry’s practice. Without this knowledge, however, there was only the sensationalist mirage created by the prosecution.

Pings wasn’t done, however. She had more ammunition against the doctor, and she was prepared to reach as far as she was permitted. Attempting to further show that Dr. Fry targeted youth and drug criminals, the prosecutor began listing some of the songs that were played by the radio stations on which the doctor had advertised her practice.

It was a bizarre stretch of logic, but it was given an air of legitimacy by Pings’s serious and outraged tone of voice. With an atmosphere of high drama, the prosecutor asked Schafer if his wife had advertised on a station that frequently played a song called “Because I Got High.” When Schafer said he didn’t know, Pings hit him again, asking if another of those songs had been “Tweaked” by the band Crystal Method. The prosecution pronounced the song titles and the band names with such a mood of shocking exposure that they superficially sounded like revelations, even where the logic fell short.

Pings continued her attack on the medical practice even after Schafer left the stand. Her next strategy was to use the cross-examination of Dr. Fry’s Physician’s Assistant, Rob Poseley, to advance her campaign. In the picture Pings painted, Dr. Fry came out looking like not much of a doctor at all. The prosecutor’s pointed questioning described a lazy and irresponsible physician whose main function was to casually and occasionally drop into the office to pre-sign stacks of recommendations to be issued later by Poseley. Of course, in Pings’s conception, Dr. Fry might sometimes linger around a little longer than normal to smoke in her office, direct customers to her husband to buy cannabis plants, or even arrange a hand-to-hand sale of processed cannabis.

For some of these claims, the prosecutor relied on evidence from undercover federal agents, one of whom was able to obtain a recommendation from Dr. Fry’s office with only a false report of a back injury and no medical records to back it up. Poseley admitted that a former policy at Dr. Fry’s office was to issue provisional 30-day recommendations when the patient reported severe pain but needed more time to get ahold of records of medical history. While the chart notes for the undercover agent reflect the issuance of a 30-day recommendation, he was nonetheless issued a full, year-long recommendation. Or was he? The defense did an excellent job of raising doubt on this point, guiding Poseley through an explanation that the provisional restriction was attached to the recommendation at the front desk, after which it may have fallen off or been deliberately removed by the agent himself.

The defense attorneys also skillfully cast suspicion on the claims of hand-to-hand sales made or arranged at the doctor’s office. This evidence came mostly from former patients who testified for the prosecution, the star of which was Jeffrey Teshera. The defense was able to show that, on the day Teshera said Dr. Fry arranged from her office to sell him cannabis and then completed the sale in a parking lot, the doctor was actually in the hospital coaching her step-daughter through a complicated childbirth.

More damning, however, was the undercover audio recording of Dr. Fry speaking to a federal agent she believed was a new patient. On the tape, the doctor enthusiastically directs the agent to purchase hydroponics equipment and cannabis plants from her husband’s business. To augment this image, Pings also suggested that the doctor’s office began selling so many pipes and other paraphernalia that it essentially became a head shop fronting as a clinic. And in the back of it all, Dr. Fry was supposedly sitting in her office, smoking cannabis on the job. Poseley, who testified on cross-examination that he sometimes smelled cannabis wafting out of Dr. Fry’s office, completed this picture.

When it came down to it, though, the attacks on Dr. Fry’s practice had little weight on their own. The actual charges against the defendants relied mainly on a parade of highly controversial informants, as well as evidence of cannabis deliveries made by an employee who collected payment in the form of checks made out to Dale Schafer. The accusations regarding Dr. Fry’s practice were completely unrelated to the charges, especially the claims about the age of her patients and the illnesses for which she issued recommendations. Nevertheless, it is quite likely that the negative portrayal of her practice worked against her during the trial. If there was any tendency on the part of the jurors to give Dr. Fry some extra latitude due to her profession or sympathy for her suffering, it was probably eroded by the image of her as an irresponsible physician who targeted children and issued recommendations for laughably minor or inappropriate ailments.

The jurors appeared to have no qualms of conscience about their decisions to convict, nor much time for discussion. Within three hours, they had unanimously found both defendants guilty on a conspiracy charge for manufacturing and distributing over 100 cannabis plants. Both defendants were also convicted on the charge for actual cultivation, although the jury decided that Schafer had cultivated over 100 plants and Dr. Fry had cultivated less than this amount. After hearing the verdict, Judge Damrell assured the jurors that their decision was respected by the community and dismissed them with a great show of gratitude. He then informed the defendants that they would be allowed to remain out of custody until their sentencing hearing, which is scheduled for early 2008.

Given the outcome of this trial, one is left to wonder: are there lessons here for other physicians who approve the use of medical cannabis? The moral of the story, as usual, is up for subjective variation and contradiction. The most simplistic approach would be to conclude that the additional scrutiny placed on these physicians requires them to keep their noses extra clean and their practices completely separate from operations that provide medicine. A substantial number of medical cannabis physicians have publicly advised their colleagues on these points precisely. It’s great advice, but, to employ a cliché, hindsight is 20/20 for Dr. Fry. In today’s legal and political environment, it would be unfair to look back on the way that Dr. Fry operated her clinic and merely write her off as foolish.

First off, we must consider the atmosphere of exuberance that prevailed right after the passage of Proposition 215. In this way, Dr. Fry’s actions can only be properly judged in the context of her time. She was a pioneer, and her efforts were aimed at answering the questions about access that were left wide open by the Compassionate Use Act.

Similarly, Dr. Fry should be viewed with an eye on her geography and the impact it had on her decisions about her practice. In isolated areas with small populations, it’s not uncommon for people to end up wearing many hats. Rural living requires a jack-of-all-trades resourcefulness, and an elevated level of skill at securing access to all of life’s necessities. In such an environment, working in a town where the feed store and the general store made up the majority of commercial activity, it seems natural that this country doctor would be inclined to seek ways to help her patients procure the medicine they needed.

Although her actions may look terribly risky from a contemporary standpoint, Dr. Fry must not be judged without being seen in the context of her condition. She’s not only a doctor, of course, but also a patient…and not just any patient, but a patient who has legitimate reason to believe her life was saved by medical cannabis. As such, Dr. Fry was positioned to comprehend the most complete definition of compassion, and she acted to fulfill and perpetuate it. In this light, belated accusations of foolishness fall short. With these factors put into their proper context, it is excruciatingly easy to justify what she did and to see her as an inspirational figure. Her practice being played against her to win convictions is the thing that is wrong-minded, inappropriate, and undeniably tragic.

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