The Trial of Mollie Fry, MD

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The Trial of Mollie Fry, MD

Counterpunch

Sat, 01 Sep 2007
by Fred Gardner

<span class=postbigbold>Federal Jury Convicts Pro-Cannabis Doctor</span>

After a 10-day trial, it took a federal jury in Sacramento less than three hours August 16 to find Marion "Mollie" Fry, MD, and her husband, attorney Dale Schafer, guilty of conspiracy to grow and distribute marijuana. Schafer was represented by Tony Serra, Fry by Lawrence Lichter. The lawyers' eloquence was no substitute for an admissible defense.

Schafer, 53, acknowledges that he grew cannabis -initially for his wife and himself, and then for some of her patients. He had intended to argue that he did so on the advice of counsel after a 1999 ruling by the 9th Circuit Court of Appeals made "medical necessity" a possible defense for marijuana distribution. But the U.S. Supreme Court overruled the 9th Circuit, and Judge Frank Damrell forbade Fry and Schafer from citing their once-possibly-valid belief that "medical necessity" justified marijuana production and sales.

Their only remaining hope was that a juror might disapprove of the war on drugs and vote not to convict on principle. Everyone in the jury pool who said they'd heard of California's medical marijuana law got dismissed. Seven women and five men were seated. Two were people of color. One was a paralegal employed by a public defender's office. The defendants and their well-wishers kept hoping, scanning faces for a glint of support.

Opening arguments hadn't concluded before Damrell instructed the jury that any references to "medical" anything were irrelevant under federal law. He also told them that -contrary to what the defendants were saying on Christine Craft's radio show-they absolutely had to abide by his instructions.

Your correspondent fantasized about making an opening statement, too:<blockquote>What could possibly have possessed Mollie Fry and Dale Schafer, a successful doctor and lawyer, to grow marijuana and distribute it to her patients? Money isn't a plausible motive. They were successful professionals whose lifestyle was modest; they had no need to supplement their income. So how did they lose perspective and take this outrageous, absurd risk?

A belief in God.

Mollie Fry's office is in a town called Cool but she is the opposite of cool. She hugs you as if you were a most intimate friend and tells you everything she's feeling. She emotes and dramatizes. She cries readily and profusely. She talks about what God wants and what God might do. God is justice and justice must prevail. Her God talk and her marijuana talk are in the same key and intertwine; the sacred herb, the healing herb, she makes no distinction. She goes all the way. She goes too far. She opens up her home to people in need. She takes in strays. She's probably the most empathetic psychiatrist in California. She has suffered and she doesn't want to see other people suffer. In her 40s she was diagnosed with breast cancer, which had killed her mother, who was also a psychiatrist, in her 40s. Mollie had both breasts removed. She attributes her survival to God. If she was involved in distributing marijuana to patients it was in the same spirit that she issued them approvals -doing God's work, reducing human suffering. But the belief that she was doing God's work is literally delusional. Shouldn't a sincere belief in a just God qualify Fry and Schafer for an insanity defense?</blockquote>Damrell put off sentencing until Nov. 26, for which the defendants were grateful. They both face five-year minimums. A key question is whether they'll be allowed to remain free on bail while they appeal their conviction.

<span class=postbold>Conflicts of Interest 'R' Us</span>

Conflict of interest is inherent in corporate medicine and cannot be reversed by superficial reforms -especially reforms involving voluntary compliance on the part of likely miscreants. For example, a study published in the Journal of the American Medical Association July 25 concludes that padded hip protectors fail to prevent fractures in the elderly. Three of the authors didn't inform JAMA that they had taken money from manufacturers of bone-strengthening drugs (whose sales might decline if padded hip protectors were shown to work). JAMA adopted a stricter disclosure policy in 2006 but doesn't consult a database to confirm that authors are being forthcoming about their links to industry. Lindsey Tanner of the Associated Press discovered the conflict.

A Laguna Beach cosmetic dermatologist named Arnold Klein who injects the rich and famous with Botox -a "pioneer in the field," according to a Wall St. Journal piece August 29- has urged the FDA to reconsider its approval of a product called ArteFill, a mixture of calf colleagen and tiny plastic beads that fills wrinkles permanently. Klein and six other celebrity dermatologists warned the FDA in July that ArteFill "may pose immediate, debilitating and disfiguring health risks."

Indeed it may. It definitely poses immediate, debilitating financial risks to the Botox-injectors whose patients have to come back for touch-ups two or three times a year. "Dr. Klein has past and current ties to ArteFill competitors," Rhonda L. Rundle reveals in her WSJ piece. "From 2000 until last April, Dr. Klein worked for Allergan Inc., which sells Botox and Juvederm, and since 2004 he has been a consultant to Restylane maker Medicis Pharmaceuticals Corp. Dr Klein, who made $250,000 a year from Allergan for several years, says such ties 'have nothing to do whatsoever' with his concerns about ArteFill. 'I refuse to see the field of soft-tissue augmentation destroyed,' he says of his motivation.

Patients in the U.S. must wait 26 days to have a possibly cancerous mole evaluated whereas the wait to get a Botox shot for wrinkles is eight days, according to a study by UCSF dermatologist Jack Resneck and colleagues published by the Journal of the American Academy of Dermatologists in August. The cosmetic treatments tend to be easier and more lucrative for the dermatologists, who must wait for reimbursement by insurance companies when they provide medical treatment. An apologist for the skewed system, professor Alexa Kimball of Harvard Medical School, told the New York Times, "The study shows that the Botox needs of the United States are being met. If dermatologists stopped providing cosmetic care, it would not necessarily have an impact on medical dermatology patients." Especially if the doctors used the freed-up time to play golf instead of treating patients with medical needs.

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Pair get prison in pot case

<span class=postbigbold>Judge hands out five-year terms, says it's 'a terrible day.'</span>

The Sacramento Bee
By Denny Walsh - dwalsh@sacbee.com
Published 12:00 am PDT Thursday, March 20, 2008


An El Dorado County couple – a physician and an attorney – were sentenced Wednesday in Sacramento federal court to five years in prison for conspiring to grow and distribute marijuana.

U.S. District Judge Frank C. Damrell Jr. said federal law left him with no choice but to impose on both Dr. Marion "Mollie" Fry and attorney Dale Schafer the mandatory minimum sentence.

But, to the delight of supporters who packed the courtroom, the judge allowed the pair to remain free on bail until their appeals have been decided.

The statutory minimum applied because of the number of plants – at least 100 – found by a jury in August to be the crux of a conspiracy to grow and distribute pot from their offices in Cool and their home in Greenwood.

The couple went from personal marijuana use – radical breast cancer surgery in Fry's case, severe back pain and a dangerous form of hemophilia for Schafer – to supplying the drug to people who came to them with various ailments.

Fry supplied the physician's recommendation required under California law, and Schafer advised clients on the legalities of medicinal use. Each recommendation bore the warning that possession, use or manufacture of marijuana under any conditions violates federal law.

They insisted they didn't expect trouble from federal narcotics agents because they were not selling the drug, they were careful to comply with California's Compassionate Use Act, and what they were doing was encouraged by El Dorado County narcotics officers.

Assistant U.S. Attorney Anne Pings consistently has argued that Fry and Schafer were motivated by greed. During the trial Pings presented evidence that they charged $200 for a recommendation. She also has argued that Fry and Schafer did not have to face the mandatory five years; they rejected plea deals calling for far less punishment.

Damrell said that fact troubled him.

"You had the opportunity to resolve this case, but you wanted to soldier on, knowing that your kid would be left behind," he told the couple.

At a break during the hearing, First Assistant U.S. Attorney Lawrence Brown confirmed that Fry was offered straight probation in return for a plea. She didn't accept, Brown said, because the deal would have been based in part on her serious mental health problems, and she was afraid of the impact that might have on the state Medical Board, which licenses and regulates physicians.

Damrell told Fry and Schafer they're martyrs, but he questioned whether their cause merited such a sacrifice, especially since they have children at home and help care for a grandchild.

Were it left up to him, the judge said, the punishment would be less. "It is a sad day, a terrible day," he said.

At the conclusion of a grueling, emotional hearing, Damrell ruled the couple could remain free on $25,000 bail each pending the outcome of their appeals.

Before imposing the sentences, Damrell told the couple: "At some point, it seems to me, you lost control of your lives. You let your passion for this drug and its salutary effects cloud your judgment.

"I'm not saying medical cannabis doesn't have a place in our society," Damrell said, "but federal law has not caught up with that notion. … It seems to me that victimhood and self-aggrandizement took hold. You thought you were bulletproof."

The judge said Fry especially seemed blinded to persons working for the couple who were "petty criminals," and that some people who came to them wanted pot simply to get high.

In granting bail, however, Damrell said the exceptional circumstances of the case create "serious issues that need to be decided by an appellate court."

One of those, he noted, is the defendants' claim of entrapment.

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News Release [print-friendly version]
FOR IMMEDIATE RELEASE
March 20, 2008
Contact: Casey McEnry
Number: 415-436-7994

<span class=postbigbold>California Doctor-Lawyer Couple Get Five Years For Growing and Selling Marijuana</span>

U.S. DEA

MAR 20 -- (Sacramento, CA) - United States Attorney McGregor W. Scott and Drug Enforcement Administration Assistant Special Agent in Charge Gordon Taylor, announced that Dr. MARION P. FRY, 50, a medical doctor, and DALE C. SCHAFER, 52, a lawyer, husband and wife, of Cool, California, were each sentenced on March 19, 2008, by United States District Judge Frank C. Damrell, Jr. to 60 months in federal prison. On August 16, 2007, a federal jury found the defendants guilty of conspiracy to sell marijuana, to grow over 100 marijuana plants, and to sell over 100 marijuana plants.

This case was the product of long-term investigations by the Drug Enforcement Administration (DEA) and the El Dorado County Sheriff’s Office.

According to Assistant United States Attorney Anne Pings, who prosecuted the case, Judge Damrell, in sentencing the defendant, stated that he took “no pleasure in imposing sentence,” remarking on the congressionally mandated five-year sentence. The court observed that with their “passion for the drug … their judgment got clouded” and their “self-aggrandizement took over.” The evidence presented at trial showed that from 1999 until the end of 2001, when the DEA served a judicially authorized search warrant at their residential property, the defendants sold dried marijuana and marijuana plants from their office in Cool to persons acquiring recommendations from Dr. FRY for use of marijuana, for a fee. 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 recommendation statements to people for diagnoses such as asthma, alcoholism, and sore elbow. On cross-examination, SCHAFER admitted that by 2001, the couple had made approximately $750,000 to $1,000,000 selling these recommendation statements to over 5,000 customers who had visited their office in Cool. It was to these customers the defendants sold dried marijuana in plastic bags and as marijuana plants. Some of the customers testified at trial the hand-to-hand sales took place in the fire station parking lot near their office. Other customers signed up at the office for home delivery of dried marijuana or plants. The couple also employed a delivery man who drove to customers’ homes and delivered bags of marijuana and marijuana plants.

“The federal ban on growing and selling marijuana is without equivocation. The defendants were fully aware of this federal prohibition, yet proceeded to openly sell marijuana from their business in El Dorado County. Today’s sentencing—mandated by Congress—is the consequence of their decision to flagrantly violate federal law” stated United States Attorney McGregor Scott.

The DEA investigation began in 2001 when eight parcels of marijuana the defendants were shipping to customers were intercepted. It was revealed at trial that payment 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. At trial, several witnesses testified that after buying a recommendation paper from FRY at the defendants’ office in Cool, or other locations where the defendants held “workshops” or “clinics,” they then purchased marijuana directly from the defendants, their delivery man, or SCHAFER’s adult son. One witness testified that after buying a recommendation paper, SCHAFER’s adult daughter, who posed as a “paralegal” at the office, telephoned her and informed her that they were selling marijuana and asked if she wanted to place an order. SCHAFER’s adult son later delivered the marijuana to the witness’s home. The son told the witness to make the check payable to his father’s law office so that if there were any questions later, they could claim the check was for legal services.

During the trial, the prosecution played an audiotape of FRY offering to sell four plants and indoor growing lights to an undercover officer for $400. In the tape she is also heard encouraging the undercover officer to buy marijuana plants and lights from her instead of going to another supplier, saying that the other establishment was “staked out by narcs.” The government’s evidence also included a recording made by an undercover officer who called the defendants’ office and was told that he could buy small marijuana plants for $5 a piece. When they executed the search warrant at the defendants’ house, the DEA agents seized over 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 multi-car 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 the couple’s minor children harvesting marijuana plants from this garden area and “trimming” marijuana bud inside the residence.

The court released the defendants on bail pending their anticipated appeal to the Ninth Circuit Court of Appeals. As a condition of her release, the court prohibited Dr. FRY from directly or indirectly recommending “medicinal” marijuana.