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SACRAMENTO, CA -- The countdown to prison has begun for a former medical marijuana doctor and her attorney husband.
A judge this morning gave Marion “Mollie” Fry and Dale Schafer six weeks to surrender themselves to federal custody and begin serving five-year sentences for cultivation.
They are officially scheduled to turn themselves over to U.S. Marshals by 2pm on May 2nd, 2011.
 Fry, a breast cancer survivor, and Schafer, a hemophiliac, both used marijuana for medical purposes under California’s Compassionate Use Act. That state-level law didn’t protect them in federal court, however, and they were therefore not allowed to argue a medical defense to their charges.
Fry and Schafer were convicted at the end of a three-week jury trial in August 2007. They’ve been permitted to remain out of custody ever since, while their case was on appeal.
Now, however, it appears that their fight on the appellate level is all but officially over.
The couple’s attorney Barry Morris announced in court this morning that he was on the verge of filing a writ with the U.S. Supreme Court, but he didn’t attempt to stall the surrender date based on the merits of its arguments. There was virtually no hope of the appeal being heard at that level, he admitted.
“I think my clients would rather get it over with,” Morris said, speaking about the surrender. It was a sentiment Fry and Schafer both echoed to their supporters outside the courtroom.
However, Morris wasn’t ready for his clients to get started on their sentences immediately. He gave an emphatic “no” when the judge asked whether today would be an appropriate day for Fry and Schafer to go into federal custody. That possibility made the couple’s courtroom supporters visibly nervous, but the tension dissolved when the prosecuting attorney readily agreed to the six-week buffer.
In the meantime, Fry and Schafer must prepare to leave behind a busy family life. Their home, which sits on nearly thirty acres of land in the foothills of northern California, is the hub of activity for their live-in adult children and grandchildren. Getting designated to a prison with adequate medical facilities will take the couple far away from this rural haven. Schafer is set to serve his stint at a prison on the east coast, while Fry expects to be incarcerated in Texas. From there, Fry says, she plans to write a series of weekly updates about her incarceration experience.
The mood of resignation and acceptance is a relatively new thing in the couple’s demeanor. Until last fall, Fry and Schafer were optimistic that a higher court would overturn their convictions. Last November, however, was a crucial turning point. That’s when a panel of judges at the 9th Circuit Court dealt a death-blow to the appeal, unanimously rejecting the couple’s argument that the case against them had been a result of entrapment.
The entrapment claims focused on the method prosecutors used to increase the number of marijuana plants Fry and Schafer were charged with cultivating. Although only 34 plants were seized when law enforcement agencies raided the couple’s home in 2001, Fry and Schafer were charged with cultivating over a hundred plants. Prosecutors made up the difference by adding in evidence that the couple had cultivated a similar number of plants during the two years prior to the raid. That evidence came from reports made by local sheriffs who visited Fry and Schafer’s garden for what the couple believed were medical marijuana compliance checks. It was not until after the raid that Fry and Schafer realized the sheriff’s deputies were supplying government agencies with information for a federal investigation.
Nevertheless, the appeals court unanimously denied that this was entrapment. The couple argued that the friendly deputies had declared the marijuana garden to be legal under federal law, but the appellate judges said this wasn’t entrapment because Fry and Schafer hadn’t believed or relied upon such a claim. After all, the appellate court noted, Fry always issued medical marijuana recommendations with the following disclaimer: “cannabis remains illegal under federal law.”
The appeal also argued sentencing entrapment, claiming that yearly approval from the deputies led Fry and Schafer to grow more marijuana and thereby face a harsher punishment than if they had been charged just for the 34 plants that were seized in their raid. Adding in the plants the deputies had observed during their friendly visits in 1999 and 2000 nudged the plant count up towards a hundred, a threshold that triggers a mandatory minimum five-year prison sentence.
If the appellate court believed this was indeed a case of sentencing entrapment, Fry and Schafer might have been eligible for reduced sentences. According to the appeals ruling, however, the couple didn’t have enough evidence of active inducement to grow more marijuana. That is to say, if the deputies had “directed [Fry and Schafer] to grow more marijuana or offered them something in exchange for the production of a higher amount of plants,” the circuit court might have decided differently. Instead, the court ruled, Fry and Schafer’s claims only indicated passive encouragement.
The 9th Circuit Court’s decisions were deeply disappointing for Fry and Schafer, as well as for activists who hoped the appeal would set a precedent on entrapment issues. After it was issued, Fry and Schafer’s journey to prison became mostly a matter of scheduling. And, based on today’s proceedings, it appears as if the timeline has been firmly set.
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Thank You
Schafer Family