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March 20, 2008 - Sacramento Bee (CA)

Pair Get Prison In Pot Case

Judge Hands Out Five-Year Terms, Says It's 'A Terrible Day.'

By Denny Walsh

Return to Drug War News: Don't Miss Archive

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.

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