Five Years For What Crime?

by Fred Gardner, May 12, 2011

Dale Schafer & Mollie Fry, courtesy StoptheDrugWar.org & Sharon Letts

Marian “Mollie” Fry, MD, and her husband Dale Schafer, an attorney, turned themselves to U.S. marshals Monday, May 2. They were taken to the Sacramento County jail, where they are awaiting transfer to federal prisons. They have begun serving five-year terms —ostensibly for the crime of Cannabis cultivation (growing plants), but actually for the crime of political organizing (educating people).

Mollie Fry is a founding member of the Society of Cannabis Clinicians, the group organized by Tod Mikuriya, MD, in 2000 to enable doctors entering the field to share and publish findings and observations — and defend themselves against persecution. Law enforcement at the state and federal levels had loudly opposed Proposition 215, the measure enacted by voters in 1996, and has curtailed its implementation ever since.

Fry, 54, is a breast cancer survivor. She will be going to the Federal Correctional Institution in Dublin, which is in visiting distance for the kids and grandkids. Schafer, who turns 57 this month, will be sent Taft, near Bakersfield. His looming concern is medical care — he's a hemophiliac with severely painful, blood-swollen joints, and is currently taking high doses of morphine and other analgesics.

I asked Dale how he was going to be spending his last week-end of freedom. He said, “Hugging my family.”

Mollie and Dale raised five kids who are now grown-ups — Heather, 35, and Jeremy, 34, from Dale's first marriage, and Jeffrey, 24, Carol, 20, and Tyler, 18, from their union. Heather and Jeremy have kids, 10 and 11. Carol is going to have a baby in October. The extended family, minus mama and papa — which is what the grandkids call Mollie and Dale — will be together in the house in the foothills west of Auburn.

“We've got to keep paying the bills while our parents are gone,” says Heather. “The government took all their savings, everything but the house.” An insurance policy has been paying the mortgage ($3,500/month) since 2007, when Mollie stopped practicing due to disability. Dale doesn't think the company will use her imprisonment as an excuse to stop paying, but he lined up a lawyer just in case.

Jeffrey has gone to work for the CannaCare dispensary in Sacramento, and feels grateful to have a job. Jeremy is going to be traveling with a country-jazz band. “They've got a big bus and gigs lined up throughout the south,” according to Dale. “He can't get wait to hit the road. I told him, 'If that's your dream, man, jump on it and do it. If you don't do it right now…”

* * *

Mollie Fry says proudly that there have been doctors in her family since the Civil War. Her mother, a research psychiatrist, died of breast cancer at age 42. Mollie, then 13, started using cannabis to deal with her grief. It didn't impair her academically. She graduated from UC Irvine School of Medicine in 1985 and did an internship at UC Davis in psychiatry. She switched to family practice when she began practicing in Lodi in '87. It wasn't until 1999 that she became a cannabis consultant — a decision stemming from her own illness.

In December, 1997, an exploratory procedure (which Mollie had insisted on against the advice of an oncologist) revealed a malignancy that had spread to three lymph nodes. Her breasts were removed and she underwent extensive radiation treatment. She used cannabis to deal with the nausea and anxiety. “It was hard to get,” Dale says, which is why he grew a few plants in their garden in the summer of '98.

Dale had observed the medical use of marijuana first-hand when he was in the Navy, a lanky 19-year old assigned to Oak Knoll Hospital. He has indelible memories of assisting surgeons trying to “perfect” the stumps of sailors whose limbs had been amputated en route from Vietnam. “People who were in radiation therapy would go down the back hallway to smoke,” he remembered. “We knew that it was the only thing that helped.”

Dale worked in Kaiser emergency rooms to put himself through college and law school. “I wasn't naïve, I knew that marijuana had medical benefits,” he says, “But it wasn't until Mollie got cancer that I really started digging into what Prop 215 was all about.”

It's difficult to picture now — now that doctors willing to issue cannabis recommendations are advertising in the media — but when Prop 215 passed there was only one physician proclaiming his willingness to approve cannabis use for conditions other than AIDS or cancer: Tod Mikuriya, a Berkeley-based psychiatrist. As of 1999 the number was not in double digits, although demand was enormous. Most pot smokers were embarrassed or afraid to ask their regular doctors for letters of approval, and most doctors were unwilling to write them. Some were afraid of getting in trouble with the medical board or the DEA and jeopardizing their livelihoods. Others were too conscientious to recommend use of a medicine they had learned nothing about in medical school and couldn't discuss in terms of proper dosage, side effects, etc..

Bobby Eisenberg, an acquaintance whose son played on a Little League team that Dale coached, put him in touch with Tod. “Mollie called him and he invited us to visit him.” Dale recounted. “We saw his office, then visited him at home. I started reading everything I could find on medical marijuana because I wanted to know how to advise people to do it right. And the cops wouldn't tell me. Nobody will tell you to this day how to do it right. That's the problem. They want you go to go out and fuck up and then come and arrest you. Every other law that the government passes, they tell you how to make it work. They won't tell you. They want to keep it that way, they want everybody to be afraid, to be afraid that if there's a slight change, they could go down.”

In the summer of '99, Dale and Mollie opened adjoining offices in a small foothills town called Cool. She did Cannabis consultations, he advised patients of their rights. They were growing 20 plants on their property when two El Dorado County Sheriff's deputies paid a visit. The next day, Dale says,

“Mollie called the head narcotics detective, Tim McNulty. She told him, 'Don't waste your money snooping around. I've had cancer, I'm growing pot, and we want to talk to you about it. Get up here.'

“McNulty came to the house and I took him up to the garden. I used to represent cops. I thought they trusted me. I talk their language pretty well. He took a look at our paperwork and said it looked fine. He even said I was a good grower! But he made a request that Mollie wasn't willing to grant. He said, 'You should help us separate the 18-year-old skateboarders from the people with cancer.' Mollie said 'I'm a doctor, not a cop. I'm willing to see people and determine if they're qualified. I'll do my job, you do yours.'“

Dale and Mollie felt confident that their medical/legal practices were appropriate under Prop 215. In addition to seeing patients in Cool, they leased space in Oakland and Lake Tahoe to conduct one-day-a-week clinics (again following Mikuriya's practice model). In Tahoe they met a young couple, Paul Maggy and Tracy Coggins, who came to work for them as office managers. Maggy was facing a cultivation charge from a 900-plant grow — which is not something Mollie and Dale held against him. During the seven months he would work for them, Maggy helped them grow marijuana (they grew 43 plants in 2000) and in distributing the surplus to patients of Mollie's.

In this period Mollie encountered Attorney General Bill Lockyer at a VFW fundraiser and told him about her practice. “Lockyer said 'Okay, go for it,'“ according to Mollie, “'but be low-key.' He said something to imply, not that I should hide, but that I should be discreet. Maybe that was the word he used… But the problem was, I had staff and office rents, and how do you let patients know that you're available without advertising?”

Dale arranged a meeting with Dave De Alba, the senior assistant AG whom Lockyer had put in charge of medical marijuana cases, trying to confirm that Mollie's procedures were legal under state law. The only thing DeAlba advised doing differently, Dale says, was “stay the hell away from Tod. He said that Tod is targeted, and that Tod is a problem. We ignored that, of course, because we liked and respected Tod.”

As for federal law, Dale was relying on a 1999 ruling by the 9th Circuit Court of Appeals in the U.S. v. Oakland Cannabis Buyers Co-op case that made “medical necessity” a possible defense for marijuana distribution. Dale says he told the deputies who inspected his grow in 2000 and again in 2001 that any surplus would go patients, and they told him that as long as the plant total was below 100, the feds would not take notice.

In July of 2001 Dale —increasingly convinced that marijuana was safe and effective medicine— announced that he was running for District Attorney of El Dorado County. In September the DEA raided his property, confiscating 34 plants and 6,000 patients' files. In November he got 15% of the vote for DA.

Mollie recalls the raid:

“I was going to bed with a migraine headache and they came running up my driveway with their guns in their riot uniforms. I opened my arms and said, 'I entirely submit. You are welcome in my home.' And they still forced me to the ground and handcuffed me for two hours. My hands turned white. I was so cold, my hands were shaking... So they moved me into the trailer. Then I had to change our granddaughter's shitty diaper while in handcuffs. I couldn't quite wipe... I said to the agent, 'It's so hard having five children and a baby to take care of and cancer...' And she looked at me and said, 'You have cancer?' And I go, 'Of course I have cancer, why the hell do you think I'm doing this?

“Not even the staff that raided me and was abusing me knew the truth.”

Neither Mollie nor Dale was indicted then, but the DEA notified Fry that her prescription-writing privileges would be revoked because “It is inconsistent with the public interest for a DEA registered practitioner to live in a residence wherein large quantities of a controlled substance are being stored, cultivated, manufactured and/or processed for distribution and/or sale. In addition, it is inconsistent with the public interest for a DEA registered practitioner to be engaged in the illegal sale of a Schedule I controlled substance such as marijuana at the practioner's registered location.”

It wasn't until June 22, 2005 —two weeks after the U.S. Supreme Court ruled in the Raich case that an individual's right to use marijuana as medicine under California law was superseded by the federal prohibition — that Fry and Schafer were indicted. The charge was conspiracy to grow ("manufacture") and distribute marijuana between August '99 and September '01. Because they had grown more than 100 plants in this period, they were facing five-year mandatory minimums. Dale says he was completely blindsided by the feds basing their charges on a cumulative three-year total.

The US attorney offered a deal that would have meant 18 months in prison for Schafer and no prison time for Fry. “But if she couldn't practice and I was gone,” Dale says, “we would have gone bankrupt and lost the house. So we said 'Thanks but no thanks.'“

A 10-day trial was held in August 2007. Schafer was represented by Tony Serra, Fry by Laurence Lichter. Opening arguments hadn't concluded before Judge Frank Damrell instructed the jury that any references to the medical use of marijuana were irrelevant under federal law, and that they absolutely had to abide by his instructions. Damrell also forbade the defense from citing their belief that “medical necessity” on the part of patients justified marijuana production and sales. (In 2003 the U.S. Supreme Court had overruled the 9th Circuit's recognition of “medical necessity” as a defense in the Oakland CBC case.)

Paul Maggy was the star prosecution witness. He had gone to prison in connection with his earlier grow op, and been released after serving 13 months of a five-year term in exchange for his testimony. Maggy swore that on behalf of Mollie and Dale he had sold processed marijuana, clones, and “starter kits” consisting of lights, plant nutrients and clones.

According to Bobby Eisenberg, whose account of the trial is trustworthy, “Several patients were brought in to testify that they'd purchased their marijuana from Dr. Fry or her staff. Jody Bollinger testified that she purchased a half ounce of medicine from Mike Harvey with a check made out to Schafer for $40. Keep in mind the going rate for a half ounce of bud is closer to $200. Harvey testified that some patients received their medical marijuana for free; in some cases they paid only $10 delivery charge.

“Another patient, Jeff Teshera, a convicted robber, got leniency for testifying that Fry examined him on Nov. 30, 1999, and that she and Heather Schafer then sold him marijuana. It turned out that Heather Schafer had given birth to her daughter on Nov. 29 and that Mollie was with her at UC Davis on the 30th, all day. Dr. Fry had her Physician's assistant, Rob Poseley, working in clinic on the 30th and he testified that he, and not Dr. Fry, had examined Teshera. No marijuana was sold.

“El Dorado County sheriff's deputy Bob Ashworth told the jury that he had deceived Fry and Schafer for over a year and a half leading them to believe that everything they were doing was legal under state law and safe, given federal policies. He observed their marijuana gardens in 1999, counting 20 plants and in 2000 when he counted 43 plants. He spoke with Schafer on the phone numerous times, right up until a few days before the raid on September 28, 2001, with assurances that everything was fine. It turned out that El Dorado County deputies were working hand in hand with the DEA and the prosecutor to entrap Fry and Schafer throughout the investigation.

“Jacob DuCharme had been employed by Fry and Schafer just after Paul Maggy had been hired. Jake wanted to testify that he and his wife had been unwilling to work for Fry and Schafer because Maggy and his girlfriend, Coggins, were up to no good. The DuCharmes knew that Maggy and Coggins were out to sell marijuana to Fry's patients without Fry's knowledge. DuCharme was silenced by prosecution objections. He never got to say that Fry and Schafer had gone to great lengths to insure that everyone in the office understood and upheld the law in California. The jury never heard the truth.”

The Real Crime

Why did federal prosecutors add up plant counts from three years of cultivation to push the total over 100? Why were they so bent on making Mollie Fry and Dale Schafer face mandatory-minimum sentences? Why were Mollie and Dale a much more important target than Maggy, the freed informer, who had grown 900 plants and had numerous other offenses on his record?

Because unlike Maggy, Mollie and Dale were political organizers.

Anybody who joins a movement or a party has been organized by another person or persons. Being organized (in the sense I mean it) is not the same as being moved by a speech or a leaflet (no matter how briliiant the orator or writer). It involves a closer, more direct connection. There's always a person who confirms your inclination to throw in with the group, or convinces you by example or explanation that the cause is in your interests. That's what Mollie Fry and other MDs following Mikuriya's leadership did with their patients — they organized them. They did more than define the patient's pain (emotional and/or physical) in medical terms, they enabled the patient to tell the truth about their illegal drug use, i.e., their subversive behavior.

Mollie Fry and her colleagues have helped organize hundreds of thousands of legal medical marijuana users in California. This was the insight of Phil Denney, MD, a neighbor of Mollie's. A brief conversation with her at the mailbox in 1999 led Denney to get into the field, too.

Fred Gardner is the editor of O'Shaughnessy's, the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com.

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