Metropolitan News-Enterprise


Tuesday, November 9, 2010


Page 1


Court Upholds Attorney’s Drug Conspriacy Conviction


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the conviction of a suspended Northern California attorney  and his physician wife for conspiring to manufacture and distribute marijuana.

In a decision by Judge Richard C. Tallman, the panel rejected claims that Dale Schafer of Cool, an unincorporated community near Sacramento, and his wife Marion Fry were misled by local sheriff’s deputies into believing their actions were lawful.

Fry was diagnosed with breast cancer in 1997 and received a recommendation to use marijuana to help alleviate the side effects of the chemotherapy treatments she underwent. Schafer said that he and his wife began cultivating marijuana plants for Fry’s use, but in 1999, they began operating a marijuana recommendation and sales business and growing more plants.

The Drug Enforcement Administration began investigating Schafer and Fry in 2000, and a federal search warrant was executed at Schafer and Fry’s business and home. A federal grand jury subsequently returned an indictment against Schafer and Fry charging them with one count of conspiring to manufacture and distribute marijuana plants, and one count of manufacturing at least 100 plants.

Schafer and Fry filed a motion to dismiss the indictment based on a theory of entrapment by estoppel, claiming that deputies from the El Dorado County Sheriff’s Office told them that their conduct was legal.

In opposition to the motion, the government submitted a declaration by one of the deputies denying Schafer and Fry’s assertions. The government also contended that Schafer and Fry could not have relied on the alleged misrepresentations since they distributed written recommendations to their clients which included a disclaimer that unequivocally stated that marijuana remained illegal under federal law.

Schafer and Fry asked to have an evidentiary hearing for the purpose of resolving the conflict between the factual allegations in their pleadings and those in the deputy’s declaration, but Senior U.S. District Judge Frank C. Damrell of the Eastern District of California denied their request. Damrell also declined to dismiss the case, finding Schafer and Fry had not adequately shown that they relied on any alleged misinformation.

Before trial, the government filed a motion in limine seeking to prevent Schafer and Fry from asserting either a medical necessity defense or an entrapment by estoppel defense and Damrell granted the motion, finding the Supreme Court’s 2001 decision in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483—which expressly foreclosed medical necessity as a defense to manufacturing and distributing marijuana—applied retroactively.

After the jury returned a guilty verdict, Schafer and Fry sought mitigation of their sentences on a theory of sentencing entrapment but Damrell rejected their request because they had not demonstrated the active participation by a law enforcement officer in their production or distribution of marijuana. He then sentenced Schafer and Fry to the statutory minimum term of sixty months imprisonment and the State Bar suspended Shafer’s law license in 2007 as a result of his conviction.

On appeal, Schafer and Fry challenged Damrell’s decision to deny their request for an evidentiary hearing, but Tallman explained the factual disputes presented by the motion to dismiss “directly impacted the validity of Appellants’ defense,” and the district court would have “usurped the role of the jury had it conducted an evidentiary hearing and answered these factual questions.”

Further, in order to succeed on the merits of the motion, Tallman noted Schafer and Fry “would have had to show that they were entitled to an entrapment by estoppel defense as a matter of law.” This they could not do, Tallman said, because the question of whether they “were lulled into believing their marijuana operation was legal and done on the express authorization of agents who could bind the federal government necessitated a credibility determination that fell within the province of the jury.”

Tallman also reasoned that Schafer and Fry also were not wrongfully prevented from presenting entrapment by estoppel defense, even if the deputies had told them their conduct was legal, because they had not been misled.

“[T[he government’s uncontradicted evidence established that Appellants were aware that marijuana was illegal under federal law,” and so Schafer and Fry could not have relied on the deputies’ alleged misrepresentations that their conduct was lawful, he said.

Tallman further opined that Oakland Cannabis applied retroactively since “it was not ‘unforeseeable’ that the Supreme Court would reject the implementation of a defense that had not theretofore been applied” and that Damrell had not abused his discretion in finding Schafer and Fry were not entitled to lesser sentences.

Judges Betty B. Fletcher and Johnnie B. Rawlinson joined Tallman in his decision.

The case is United States v. Schafer, 08-10167.


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