News Release
FOR IMMEDIATE RELEASE
November 8, 2010
Contact: Casey McEnry
Number: 415-436-7994

Ninth Circuit Affirms Convictions of Doctor-Lawyer Couple for Growing and Selling Marijuana

NOV 08 -- SACRAMENTO, Calif. — United States Attorney Benjamin B. Wagner and Drug Enforcement Administration Special Agent in Charge Anthony D. Williams, announced today that the United States Court of Appeals for the Ninth Circuit affirmed the convictions and sentences of Marion P. Fry, 52, and her husband Dale C. Schafer, 54, both of Cool, Calif.

On August 16, 2007, a federal jury found the defendants guilty of conspiracy to sell marijuana, to grow more than 100 marijuana plants, and to sell more than 100 marijuana plants. In March 2008, United States District Judge Frank C. Damrell Jr. sentenced Fry and Schafer to the mandatory minimum sentence of five years in federal prison. The defendants were allowed to post bail pending their appeal.

On appeal, the defendants argued that the DEA and the U.S. Attorney’s office should not be permitted to arrest and prosecute them under federal law because the local sheriff’s deputies were aware of their activities and had discussions with them about the state’s so-called “medical” marijuana law. The defendants argued in their appeal that the failure of the deputies to arrest them earlier led them to believe their conduct was legal under federal law. The Court of Appeals agreed with the district court in Sacramento in finding that the defendants knew their conduct was illegal.

The Ninth Circuit court, which heard argument on this case on August 31, 2010, in San Francisco, also rejected the defendants’ claims that the district court judge in Sacramento had erred in not allowing them to present a claim to the jury that they were uncertain about whether federal law allowed them to grow and sell marijuana if it were for alleged medical reasons. The Court of Appeals, like the district court, rejected the argument based on the fact that the medical recommendation forms sold by Dr. Fry were clearly imprinted with the sentence “Cannabis remains illegal under federal law.”

U.S. Attorney Ben Wagner noted, “In rejecting that claim, the Court of Appeals applied the precedent of the Supreme Court and reaffirmed that the federal law is separate and distinct from the state law and does not permit the manufacture or distribution of marijuana - end of story.”

The evidence presented at trial showed that from 1999 until the end of 2001, the defendants sold marijuana from their office in Cool to persons acquiring, for a fee, recommendations from Dr. Fry for use of marijuana. These recommendations enabled the holder to avoid arrest under California’s medicinal marijuana law, Proposition 215. The proposition provides a legal defense to state (not federal) criminal charges when marijuana is possessed for treatment of a serious medical condition. Evidence introduced at trial, however, showed that Fry sold these recommendations to people for diagnoses such as asthma, alcoholism, and sore elbow. On cross-examination, Schafer admitted that by 2001, the couple had made between $750,000 and $1 million selling these recommendations to more than 5,000 customers.

The DEA investigation began in 2001 when United Parcel Service (UPS) intercepted eight parcels of marijuana that the defendants were shipping to customers. It was revealed at trial that payments for marijuana deliveries would be made by check, payable to the “Law Office of Dale C. Schafer” which were deposited into the law office bank account.

When DEA agents executed the search warrant at the defendants’ house, they seized more than 30 plants and large quantities of dried and harvested marijuana. They also located an underground bunker outfitted with lights and fans to grow marijuana, a multicar garage converted into an indoor hydroponic growing facility, a customized indoor drying room, and plants growing in a greenhouse and an outdoor garden area. The trial exhibits included photos of Schafer and minor children harvesting marijuana plants from this garden area and “trimming” marijuana bud inside the residence.

This case was the product of long-term investigations by the Drug Enforcement Administration and the El Dorado County Sheriff’s Office. Assistant United States Attorneys Anne Pings and Sean C. Flynn prosecuted the case. Assistant U.S. Attorney Pings argued the case before the Ninth Circuit Court of Appeals.

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