DEA Special Agent Brian Keefe had sat at the prosecution’s table during the entire trial, right at the side of Assistant U.S. Attorney Anne Pings. He served as the prosecutor’s little helper at all times, wheeling carts of evidence around, escorting witnesses in and out of the courtroom, and assisting with document retrieval. ‘Little helper’ was of course a figure of speech – on the contrary, Keefe had an impressive build, his height given additional severity by his shaved bald head and robust physique. The agent even maintained what might be called an air of intimidation, which held strong until the moment he took the stand and opened his mouth. At that point, it was quickly revealed that Keefe had a high nasal voice full of sniffles that made him sound rather like a kindergartener. As was soon demonstrated, the agent’s range of vocabulary and consistency of recall were similarly undeveloped.
In spite of these shortcomings, the first portion of Keefe’s testimony was undeniably engrossing…but this was probably due to the fact that he was not actually speaking. Instead, the court listened to a surveillance tape he had recorded of another agent posing as a customer for Mollie Fry and Dale Schafer. It was just one of many undercover stings where officers misrepresented their medical histories and forged documents in hopes of obtaining a medical marijuana recommendation from Fry.
Brian Keefe sketch by Peter Keyes
This time, the undercover agent was successful, and he was given his recommendation on February 15th, 2001. Audience members exchanged knowing glances when they heard that detail of the operation. Its numerical date is 2/15, which corresponds with the proposition number of the initiative that legalized medical marijuana in California. Since the passage of the law, activist groups have staged Medical Marijuana Week on February 15th of each year. Given the increasing awareness of this event and its meaning, those observing the Fry/Schafer case were left to wonder whether it was random that the most significant sting of the medical practice occurred on that particular date.
The big undercover operation was certainly planned, after all, and the infiltrating officer was John Landahl a.k.a. John Elmore. On his hidden wire, he transmitted audio of his conversations back to the receiving station where Keefe recorded it. The portion of that recording that was played for the jury began with Landahl informing Fry that he wanted to be able to grow his own marijuana. The agents had studied their subjects well – it turned out to be the perfect bait.
Fry practically squealed with approval on the gritty audio recording. “That’s what we encourage people to do – grow your own,” she said pleasantly. “My husband has a business – actually, it’s a service – where we’re trying to help people set up tiny little co-ops,” she explained. The goal was to stay small enough to avoid a federal bust, but still be able to produce an adequate supply of low-cost medicine.
But there were pitfalls, of course, and one of the difficulties was safely obtaining growing materials. “Do not go to Greenfire,” Fry warned sternly on the tape. “Greenfire is staked out by the narcs. They take down your license number, then wait two months and raid you.” It was a spiel that might have sounded paranoid were it not an objective description of the procedures used during a very real and very invasive law enforcement sting at that establishment.
In addition, Fry told Landahl to be careful about infestation. She detailed the procedures of her own grow operation, admitting that she had four cultivation areas at her home: a room for mother plants and a room for clones, as well as inside and outside grow areas for budding plants. Guarding against cross-infection between rooms was crucial, according to Fry, but even the highest degree of vigilance is no guarantee of success. Describing her own ordeal, she told the undercover officer about a down-on-his-luck friend she hired to tend her plants…only to later discover his ineptitude when he allowed spider-mites to destroy her entire crop of 45 plants. “They had their claws in the leaves, there were webs all over the place, they had gone all yellow,” Fry said of her lost plants. “It was awful.”
“We want to get the price of marijuana down to $100 a pound.” That was a challenge, the doctor admitted – she said she had tried to grow for 45 people, but ran out in three months and was only able to get the cost down to $80 per ounce. There were shortcuts to try, however, and she suggested purchasing a $400 grow kit from her husband’s service. It came with all necessary equipment, including clones, as well as consultation from a customizing expert named Sam, who Fry described as “so incredibly awesome.” Another cost-cutting method was obtaining a discount from your electricity provider, citing medical marijuana cultivation as the reason for the price break. Fry bragged that she had personally just negotiated a 15% discount from Pacific Gas & Electric.
Dr. Mollie Fry
“That’s great!” the undercover officer said in a gush of exuberance right before the tape cut off. The selection had largely been Fry’s monologue, but Landahl managed to get in an occasional bit of cheerleading. The tape itself revealed nothing of the agent’s cover story, nor did it demonstrate any facts about the visit. In his cross-examination, however, defense attorney Tony Serra got right to work filling in the blanks.
The defense attorney asked first about the background story the agent had invented for his undercover work on this operation. “The cover story was the DEA agent was a pot patient with ailments who was seeking a marijuana recommendation and wanted to use marijuana for his ailments?”
“He was from WENET, not the DEA,” Keefe responded, referencing a joint agency task force called the Western El Dorado Narcotics Enforcement Team.
The defense attorney got more to the point. “But this wasn’t true, was it? He was not a prospective patient?”
“No,” Keefe admitted.
“And he didn’t have these ailments?” Serra questioned.
At this point, however, the witness maintained that he didn’t know, forcing the defense attorney to get more specific. “But he didn’t intend to use marijuana medically for these ailments?” Serra asked.
“No,” Keefe said.
“And that’s lawful,” Serra summarized. “These agents can lie to their targets, and they can do that?”
Keefe agreed, “Yes, they can.”
Serra went on. “And when Dr. Fry says, ‘I lost my whole crop – I lost 45 plants,’ did you—”
“Objection!” Pings interrupted. “Your honor, it speaks for itself.”
Judge Damrell looked down from his bench. “It says what it says – she lost all 45 plants.”
“I want to know his professional take,” Serra explained. “Did you go up and count the dead plants that day?”
Keefe said that he had not done so, but the defense attorney kept pursuing the subject. “She said it’s a service, and they’re losing money by doing it,” Serra referenced back to the audio recording, “Did you do anything to ascertain whether that was untrue that day?”
“No,” Keefe responded. “I don’t recall.”
Serra then directed Keefe’s attention to the recommendation that had been obtained by the undercover agent. Made out to the alias John Elmore, the recommendation was signed by the agent below a few lines that Serra pointed out to the witness. “Look at that sentence: ‘I declare the above to be true and correct under the penalty of perjury.’” The defense attorney used a loud declaratory voice when reading the sentence, then lowered it for his next question. “He perjured himself, but he’s immune, so he can do that?”
The idea discreetly implied was that, at any time, a law enforcement officer could be legally perjuring himself…even the agent who was giving testimony at that very moment. It was a nuance that might have escaped the jury’s attention, were it not for Serra’s masterful linguistic emphasis.
“Yes,” Keefe responded simply.
Serra smiled, “No further questions, your honor.”
The cross-examination was now in the hands of defense attorney Laurence Lichter, who first questioned the witness on the mechanisms responsible for the poor quality and accelerated recording speed on the audio exhibit. Keefe denied technical difficulties, but admitted the recording was not representative of real-time sound. “This is sped up, isn’t it?” the defense attorney asked. “Dr. Fry and Dale Schafer don’t normally sound like Chipmunks, do they?”
“No,” Keefe admitted. “That’s adjusted.”
After that, Lichter picked up right where Serra left off and colored in a few of his colleague’s more subtle implications. “Does an officer get any training on when it’s okay to commit perjury and when it’s not?”
Keefe said he didn’t know.
Dale Schafer
Lichter went deeper. “Did the timing of the raid have anything to do with Mr. Schafer’s campaign for D.A.?”
“Yes,” Keefe admitted plainly.
“Was there a personal interest in Schafer running for D.A.?” the defense attorney inquired.
Now, Keefe began to back off and deny. “No,” he insisted.
“Then why raid then?” Lichter asked, referring to the fact that the search warrant was served just prior to the election.
Keefe’s response was vague. “Because she said they were cleaning out the house.”
The defense attorney questioned the agent about who and what he was referring to, and Keefe revealed that he was referencing a comment made by Heather Schafer during an undercover operation by agent John Nolan.
“Was that your only evidence of that?” Lichter asked.
“Of the removal of plants, yes,” Keefe clarified.
“Did you have a bias against Mr. Schafer one way or another with regard to federal law on marijuana?” Lichter attempted.
“Objection,” Pings interjected. “There’s no bias.”
The judge agreed with the prosecutor. “Counsel, you know that’s improper.”
Lichter tried again, substituting the name of the defendant this time. “Did you have a bias against Dr. Fry one way or another with regard to federal law on marijuana?”
The judge broke in this time, exasperated. “Mr. Lichter, you know my rulings on this, but you proceed anyway.” Judge Damrell seemed get more agitated as he spoke, as though saying the words reminded him of his anger. “This is contemptuous conduct!”
“No further questions,” Lichter said. As he was returning to the defense table, he muttered the aside, “I can’t ask any of my questions.”
This only infuriated Judge Damrell further. “You can ask any question you want, as long as it’s proper, but that was inappropriate,” the judge lectured. “I am following the law as best I can. I have made rulings on this and I am following them, and I expect you to do the same, without whining.”
Laurence Lichter
“It was for the record, your honor,” Lichter said, explaining his side comment.
“No it wasn’t,” Judge Damrell insisted. “It was a complaint.” As may be expected in such situations, the judge had the last word on the subject, and the proceedings moved on to address other matters.
Pings next questioned Keefe on the genesis of his involvement in the investigation of Fry and Schafer. The agent testified that he became part of the investigation on January 12th, 2001, when the security office in Rocklin, CA, seized seven UPS packages containing marijuana and he booked the evidence into custody. The origins of his involvement established, the prosecutor quickly moved on to discuss interviews Keefe had conducted with Fry’s former patients.
As soon as this questioning began, however, it ran into problems. It turned out that Keefe had a very poor memory of the results of these interviews, and was all too willing to put confident guesses in the place of fact.
Pings first confirmed that Keefe interviewed Jody Bollinger on June 28th, 2004, and then asked if Bollinger had identified the photo of a man who sold her marijuana. The agent answered that this was true, and said with assurance that the picture that was identified had been of Michael Harvey. Growing slightly uncomfortable, Pings reminded her witness that he was being asked about his interview with Bollinger, but Keefe simply repeated the answer he had previously given. Harvey, he insisted, was the suspect Bollinger had identified as the seller of marijuana. Pings was forced to ask her witness if he needed to review documentation in order to refresh his memory. Keefe timidly consented and began a lengthy perusal of written reports.
Lichter broke in with an objection, “I think it’s clear the question was about Ms. Bollinger.”
Judge Damrell lifted his gaze to the attorney. “What’s your objection, counsel?”
“Asked and answered,” Lichter suggested.
The judge huffed a quick denial. “Overruled.”
The miscellaneous shuffling and coughing noises of a quiet courtroom dominated for the next few minutes. Finally, Keefe looked up from the papers, and it seemed that everything was ready to proceed.
“Do you believe you were mistaken?” Pings asked. Once the witness agreed that he had been in the wrong with his previous answer, the prosecutor went on to correct the error. “Whose photo did you show to Ms. Bollinger?”
Keefe had only a blank look in response – an inferior reward for the patience Pings was struggling to sustain. “Just a minute, please,” he offered before delving back into the documents that still sat on the stand in front of him.
The clock continued to tick away the remaining time of the afternoon session, but the agent just flipped through page after page without any sign of enlightenment or clarification. This time, it was Serra who broke the silence. “I object on 403, your honor,” he declared with a smile. “Too much time.”
The resulting laughter did a bit to erode the boredom, but even Pings began to get a little antsy as Keefe continued to lose himself in the paperwork. The prosecutor continued to try to direct him to a more accurate answer, offering other reports until finally the agent indicated his readiness. When asked again about whose photo had been identified by Bollinger, he replied with a far different name than before. “Jeremy Schafer,” he responded, giving the name of the defendants’ oldest son.
Extracting this small piece of information had been awkwardly laborious, and it appeared that it was going to become a trend when Pings asked about the results of the next interview. “May I have something to refresh my memory?” he requested.
As the agent put his sloped nose back into his papers, Serra raised his objection again. “This is undue consumption of time,” he put forth.
It wasn’t humorous this time, and not meant to be. Even the judge had grown weary enough to attempt circumventing this portion of the examination. “How many more of these questions will you have, counsel?” he asked with a tone of annoyance.
“Hopefully not many,” Pings responded. It was not just a pleasantry or an excuse – the prosecutor sounded like she really meant it.
The judge sighed, and the pattern of long lapses between answers continued. Keefe finally gave a correct account of Harvey being identified by an interviewee, after which Pings decided to leave off further inquiries on this subject and move on to questions about the locations of several seized items.
Serra, however, was quick to return to the matter in his cross-examination. In fact, the defense attorney had some serious criticisms about the procedures used by the agent in his interviews, and he voiced them with due gravity. First, however, he established Keefe’s inexperience – the agent, it was revealed, had less than two years of DEA experience under his belt at the time he began investigating the defendants.
“Therefore, in 2001, you were a neophyte,” Serra declared.
Keefe was lost, “I don’t understand that term.”
“You were a little bit green,” the defense attorney offered a string of definitions. “You were a young, budding DEA agent.”
“I was a junior officer,” Keefe said simply. He then gave a short account of the progression of his career since then, which concluded with a description of transfer to New York and his current position there.
Serra accepted the characterization, but pried a little further into the agent’s understanding of DEA policy at the beginning of his employment. “Didn’t the DEA, in your tenure out here, have policies with regard—”
“Objection,” Pings cut in.
Serra paid the prosecutor no mind and completed his question without a pause. “—to state legal marijuana?” The question was finished without giving the prosecutor even the acknowledgement of hesitation.
“Objection, your honor!” Pings repeated with insistence, outrage in her voice.
Serra was not a man to be interrupted, and he didn’t even wait for the judge’s response before he rephrased. “Wasn’t it the DEA policy in 2001—”
“Objection, your honor – relevance!” Pings shouted over the defense attorney, frantic that he was pushing forward with such brute force. “May we approach?”
But the prosecutor was met with Serra’s firm opposition yet again. “No!” he said, boldly defiant.
“Finish the question, and then we’ll have a sidebar,” Judge Damrell ordered.
“I’m sure we will, because we always seem to—”
This time, it was the judge who interrupted. “Just ask the question, Mr. Serra!”
The defense attorney complied, resuming with his inquiry. “Wasn’t it the DEA policy in 2001 that if the grow was under a hundred plants, you guys wouldn’t be involved?” As soon as it was uttered, the parties were whisked away to the predicted sidebar conference, during which the matter was noticeably obliterated.
Tony Serra
Serra faced the witness again, looking every bit his cheerful, resilient self. “Moving on to another subject,” he said, “You showed to both Ms. Bollinger and Mr Langley a single photograph to obtain an identification?”
“Yes,” Keefe answered.
“Do you know what a photo spread is?” the defense attorney asked. However, he simply went on to define the term himself, characterizing it as the procedure of presenting multiple photographs of a similar subject and then having the witness try to ascertain the perpetrator by memory.
“That’s correct,” Keefe affirmed.
“And haven’t you been taught that to present a single photo is considered unduly suggestive and prohibited by law?!” Serra concluded in his triumphant, accusatory tone.
“Objection, your honor!” Pings said, her urgency renewed.
The defense attorney amended the question before the judge could make his ruling. “That to do so is not appropriate,” Serra rephrased his inquiry about the practice of showing a single photo to interviewees.
“Not to my knowledge, no,” Keefe said.
Following the agent’s testimony on the interviews, the prosecutor moved on to the livelier portion of the afternoon – the presentation of the physical evidence.
While the jury was on break, carts and carts of materials were wheeled into the courtroom. The procession consisted mostly of boxes, but several large lighting fixtures and dusty hoods were also conspicuous. As the carts were unloaded, the defense was given the opportunity to witness the opening of the boxes and examine the evidence prior to testimony about it. Lawyers on both sides followed the lead of the officers and snapped on latex gloves for the exhumation, and the defendants shuffled over to the prosecution’s side to get a glimpse of items they hadn’t seen in six years.
Of course, Fry and Schafer were not the only ones peering in for a look. Courtroom observers, held back only by a thigh-high wooden gate, flocked over to the edge of the barricade to get a peek into the mysterious boxes. Eyes bright like kids on Christmas, the crowd leaned forward from the front row of seats and watched with eager amazement.
Pings was troubled by the intense observation. “This isn’t about you,” she hissed to the two conspicuously nosey onlookers in front of her. Turning to the Marshals guarding the doorway, she pled for some intervention. “Can you, uh, get them away…?” But the Marshals just smiled – no one raised a finger to get the pesky spectators out of the prosecutor’s hair. It appeared that she would have to cope with the scrutiny, unaided.
In the meantime, the defendants combed through bag after bag of green leafy substance and marveled at the bulk. “Did you guys dry this?” Fry asked Keefe incredulously. “We didn’t have this much stuff at our house.”
Schafer hushed his wife promptly. “Shhhh – we’ll get our chance,” he assured her.
When defense was satisfied, the jurors were summoned to the courtroom and the testimony about the physical evidence began. One must hope that the visual stimulation was enough to hold their attention, as the testimony itself was rather dull. Keefe gave long lists confirming the identity of each exhibit, verifying the location where it was seized and declaring that DEA lab testing revealed the plant material was marijuana. A series of Ziploc bags were held up for the view of the jury, and boxes containing loose vegetation were tilted forward for a view within.
DEA Special Agent John Nolan was enlisted for the job of lifting the light hoods to the eye level of the jury. The strapping narc strained at the weight, wincing as he heaved it up. “I didn’t know I was going to be doing manual labor,” he muttered comically as he returned to his seat and reclaimed his suit jacket.
A slideshow of interesting photographs followed, all of them portraying evidence that was taken on the day of the raid. One scene was from the living room of the Fry/Schafer home, and it depicted four paper grocery bags sitting on the floor next to a sofa. Keefe testified that the bags contained marijuana, but they did not appear full in the least. Two of them looked crumpled over in collapse, and one of them had a couple sticks poking out haphazardly over the top of the bag.
Another picture showed a large plant mass that Keefe claimed was discovered in the master bedroom of the residence. The picture was such a close-up that the plant filled most of the shot and there was little in the background to use as a point of reference for determining scale.
“You wouldn’t call this a tree, would you?” Pings asked her witness.
“No,” Keefe replied, gazing up at the screen.
“Why not?” the prosecutor prodded.
“There’s no real central rooting system,” Keefe explained. “This is a large marijuana branch.”
Ample contrast came in the display of Government Exhibit 180, a profoundly pathetic display of plant cuttings that had been placed optimistically in rock wool cubes. Pings asked the witness whether these were clones with roots, but Keefe told her that he didn’t know. To the eye, these cuttings were no more than a series of tiny sticks, weathered and largely bare. The fortunate few had a miniscule, shriveled leaf still clinging on for hope, but most were bent over at the top in a quite dejected posture. It was one of the bleakest images of marijuana cultivation that this author has ever encountered.
The defense also had concerns relating to this exhibit, and Serra took the lead with cross-examining on this matter. “You know that these items are not plants, right?” Serra said, gesturing at the photo displayed on the screen. The agent seemed to hesitate, but Serra was happy to clarify. “No root, no plant – fair?”
“Yes,” Keefe said, “but I didn’t know that at the time.”
“Do you know that now?” the defense attorney asked. The agent verified that he did have such knowledge.
Serra drove his point home one more time, giving it extra dramatic emphasis this time. “And they were dead as doornails when you seized them, right?” the defense attorney gave the assessment, only to encounter another pause from Keefe. “They’re dead cuttings?” Serra tried again.
The agent responded with a denial, and so the defense attorney went back into definitions again. “These are cuttings?” He received an affirmation from the witness. “And ‘dead’ means ‘not alive.’ And ‘alive’ means ‘has roots.’ Fair?”
“Yes,” Keefe gave in. “I know that now.”
As for the agent’s further knowledge abut marijuana cultivation, Serra was unable to extract much more. Keefe testified that he wasn’t really sure whether stems and stalks were a usable part of the plant, and had to be talked through the analysis. “Maybe you can use them in twine or hemp clothing or paper,” Serra mused, “but stems and stalks are not marijuana products that are smoked or eaten, right?” Keefe eventually came around and agreed.
The agent also pled clueless about the ratio of wet to dry plant weight, a concept that had to be explained to him initially. “I have no idea what the breakdown is,” Keefe shrugged, going on to deny any particular knowledge about fungus and pesticides. It was a state of claimed ignorance that seemed measureless, but Serra tested its depth nonetheless. The defense attorney concluding his questioning by asking Keefe about his understanding of the phenomenon of the ‘contact high.’
“You sat in close proximity to the marijuana exhibits,” Serra noted, looking over at the boxes and bags of plant material still sitting in the courtroom. “Did you, like your predecessor John Nolan, experience what I’ll call a contact high?”
“I wore gloves when I contacted it,” Keefe explained. If he was playing dumb, it was quite an act, and audience members rolled their eyes at the comment.
“Do you understand what’s meant by a contact high?” The defense attorney had good reason to doubt the agent’s comprehension.
“Yes,” he responded.
“So you understand that it has a very significant subjective component?” Serra spoke slowly, but Keefe still didn’t understand the terminology. Since the defense attorney couldn’t seem to lay off the four-syllable words, communication with the DEA officer was becoming impossible.
“Huh?” Keefe could barely articulate.
“That you manifest the symptoms of intoxication,” Serra attempted to explain. “That it’s an empathetic response you can’t control.”
“Objection,” Pings broke in, claiming that the defense counsel was testifying.
“I’m trying to ask a question, “ Serra maintained.
“That’s the idea,” Judge Damrell said snippily. “You ask questions, he answers. You don’t make speeches.”
If they wanted questions, then Serra would give them questions. He turned back to the witness with renewed enthusiasm. “You don’t, as you sit up there on the stand, feel more aesthetically oriented?”
The witness denied such an experience.
“You don’t feel more spiritually oriented, do you?” Serra asked, lilting his voice to near histrionics.
“No,” Keefe said simply.
“And you don’t, say, feel more compassion for brotherhood or sisterhood?” the defense attorney was getting into his true element now, the thespian in him shining.
“Not with respect to marijuana, no,” was the agent’s curious response.
“Objection,” Pings shot out, trying to stifle laughter. With the whole courtroom in excited giggles, it was impossible to choke down all effects of the mirth, but the prosecutor made a valiant effort nonetheless.
The defense attorney, of course, kept going. “And you don’t feel more creative, do you?”
“No,” Keefe replied, his body language betraying his discomfort.
Pings tried an objection again, but the courtroom was in an uproar that only Serra could control. And control it he did, bringing the line of questioning to a perfect finale.
With a tone of ceremony, Serra bellowed the proclamation, “I pronounce you un-stoned!”
It was as good a place as any to end the cross-examination, but, oddly enough, the comically dramatic diagnosis also turned out to be the end of the prosecution’s case in chief. Although Pings had initially lined up over a dozen witnesses for the case, the length of Paul Maggy’s testimony had led to dismayed speculation about the trial stretching into September. Feeling that he would be breaking a promise, the judge dreaded telling the jurors that the time-line for the trial would be extended, and had been making repeated anxious inquiries about the status of the scheduling. In a moment of amity, however, the prosecution and the defense came together to make a list of agreements – the defense would stipulate to a series of facts that would eliminate the need for all further government witnesses. When Anne Pings announced the decision, the moment had the atmosphere of presenting a surprise gift to the judge.
Soaring on the rare moment of benevolence, Serra asked Judge Damrell to officially praise the attorneys for speeding up the trial. It was a move he hoped would balance the repeated blame on the defense for slowing the trial down. “I hope you will publicly congratulate the attorneys for accelerating the process,” Serra asked the judge with a bow of his head.
Pings, however, made it clear that she wanted full credit for the surprise gift. “Well, congratulate those who contributed to accelerating the process,” she said, amending Serra’s request.
The goodwill between the two sides was apparently lacking in strength or permanence, but it had nonetheless accomplished its intended job. Judge Damrell was pleased by the early close of the prosecution’s case, and the jurors went home for their second weekend break with smiles on their faces.
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