An El Dorado County doctor and her attorney husband lost a bid to a federal appeals court in San Francisco today to overturn their convictions and five-year sentences for growing what they said was medical marijuana.
Mollie Fry and Dale Schafer were convicted in federal court in Sacramento in 2007 of conspiring to grow more than 100 marijuana plants and cultivating marijuana.
They had begun growing marijuana for use in alleviating the side effects of chemotherapy for Fry’s breast cancer, and later expanded their operation to selling kits of seeds and plants to other people.
Fry and Schafer live in Greenwood and have offices in Cool in El Dorado County.
The five-year sentences given to them by U.S. District Judge Frank Damrell were the minimum required by federal law.
The couple argued before the 9th U.S. Circuit Court of Appeals that they should have been allowed to claim they were entrapped by two county sheriff’s officials who allegedly told them their medical marijuana operation was legal.
The use of medical marijuana by seriously ill patients with a doctor’s recommendation is legal under California law but is a crime under federal law.
Fry and Schafer alleged that sheriff’s Detective Robert Ashworth and Sgt. Timothy McNulty told them their marijuana grow was legitimate.
Federal prosecutors contended the officers had not said the cultivation was legal and were not working for the federal government.
A three-judge panel of the appeals court rejected the couple’s entrapment argument, saying the pair knew that marijuana use violates federal law.
Marijuana recommendation forms issued to patients by the couple’s business “clearly stated that ‘cannabis remains illegal under federal law,'” the court said.
Barry Morris, a lawyer for Fry, said the couple will appeal to an expanded panel of the appeals court and to the Supreme Court if necessary.
“They were led to believe what they were doing was legal,” Morris said.
Fry and Schafer have been allowed to remain free while pursuing their appeal.
Julia Cheever, Bay City News