Couple found guilty in pot case
August 16, 2007
Denny Walsh, Sacramento Bee
An El Dorado County couple who insist they treat marijuana only as a medicine, but who ran afoul of the federal government's zero tolerance for the drug, were found guilty Thursday by a Sacramento jury of conspiring to grow and distribute marijuana.
It took the jury less than three hours on the 10th day of trial to convict Marion P. "Mollie" Fry, a physician, and her attorney husband, Dale C. Schafer, of a conspiracy to distribute and grow at least 100 plants.
The jury also found them guilty of manufacturing marijuana. In Schafer's case, the panel found he had manufactured at least 100 plants.
Fry, 51, and Schafer, 53, are scheduled to be sentenced Nov. 26. They each face a minimum of five years in prison.
A grand jury indictment, returned more than two years ago, says the conspiracy continued from Aug. 1, 1999, to the day narcotics officers raided the couples' Greenwood home and Cool offices -- Sept. 28, 2001.
In his closing argument, Schafer's attorney, J. Tony Serra, acknowledged his client grew marijuana on his property, but not with Fry and not 100 plants. The five-year mandatory minimum was triggered for both defendants by the 100-plant finding.
"He admits he grew," Serra said of his client. "He doesn't expect to walk out of here without a conviction."
Even though medical necessity is not a defense to federal marijuana charges, U.S. District Judge Frank C. Damrell Jr. allowed Schafer to tell the jury much of the back story of the couple's involvement with the drug.
"He has a right to explain why he did what he did," the judge ruled.
Fry was diagnosed with breast cancer in late 1997 and, following radical surgery, began chemotherapy, Schafer related. After other remedies failed to counter the ill effects of the treatment, Schafer began growing marijuana for Fry's use, he testified.
In 1999, Schafer said, he expanded his crop, giving half to an AIDS patient and keeping half for Fry and himself. He started using marijuana that year for his hemophilia and back problems, he testified.
It was also in 1999, according to Schafer, that he gave up his law practice and began the Medical Research Center in Cool, where he counseled people on the state laws governing marijuana and Fry wrote recommendations that, under California law, allowed recipients to use the drug as medicine.
But Assistant U.S. Attorney Anne Pings argued strongly to the jury in her closing that the center was nothing more than a front for the couple's lucrative distribution of marijuana and kits for customers who wanted to grow it themselves.
"They grew, they distributed, they're guilty," she told the jury.
Pings said the records seized from the Cool offices showed the fees for Fry's recommendations alone totaled between $750,000 and $1 million during the two years and two months of the conspiracy.
But Serra and Fry attorney Laurence Lichter were adamant that their clients are advocates of marijuana only as a way to help sick people. They could make more money pursuing the professions for which they were trained, according to the defense attorneys.
"It was almost like a calling," Serra argued. "What they were doing, from their perspective, was good."
In his testimony, Schafer tried to insulate Fry from the charges with testimony that she had nothing to do with growing the plants and making the harvested crop available to people.
But Pings played for the jury part of a tape of a surreptitiously recorded conversation in February 2001 between Fry and an undercover officer posing as a would-be patient, in which Fry made some damaging statements.
If he chose to grow his own marijuana, Fry told the agent, "we can provide you with clones, we can provide you with lights, we can provide you with nutrients, we can provide you with everything you need."
"We do have a unit that is roughly $400," she said. One of her employees would install the unit, she assured the agent.
"So, we're just basically acting as the middle man and we just take 10 percent for processing it," she added.
But Pings produced an equipment price list seized during the search that she said shows a 70 percent markup on each item sold by the couple.
"And then whenever you need clones," Fry told the agent, "you just call us up. And if we don't have any, we can start rooting them right then because we've always got a system to make clones."
Contrary to Schafer's testimony, she also said she helped one of their former employees care for the plants, but he was so incompetent "I lost an entire crop."
Serra told the jury that the recording, while it was the centerpiece of the government's case, "is a red herring and it's worth nothing."
He said Fry is a "zealot" about the healing powers of marijuana and "she overstates."
Lichter noted "one small part of one visit" by an undercover officer was incriminating. He said it is fair to assume that none of the other undercover visits to the center and audio and video tapes made by investigators was useful to the prosecutors, since they did not present them to the jury.
Serra urged the jury to be mindful of the "political bias of the prosecution," a reference to the federal government's policy of pursuing people who claim they grow, use and distribute marijuana only to alleviate their ills and those of others.
Outside the presence of the jury, Damrell chided both Serra and Lichter for what the judge perceived as the defense lawyers' suggestions during closing arguments that the jurors ignore the law.