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Defendants Who Knew Federal Law Made Cannabis Illegal Were Not Misled by Sheriff Who Assured Them That Their Marijuana Grow Was Legal.

The Ninth Circuit Court of Appeals affirmed a judgment holding that defendants who knew that under federal law that cannabis remained illegal, and could not be prescribed by physicians, were not misled by county sheriff’s deputies who purportedly assured them that their marijuana grow operation was legal under federal law. Dale Shafer, an attorney, and Marion Fry, a physician were a married couple who operated a medical marijuana dispensary in California. The operation began after Fry was diagnosed with a condition for which marijuana was recommended to alleviate side effects of treatment. Shafer began cultivating marijuana for Fry’s use and informed the county sheriff of his operations. Sheriff’s deputies visited the operation many times and inspected the plants, even after the cultivation extended beyond personal use amounts and developed into a business.


Shafer and Fry were eventually indicted federally for conspiracy to manufacture and distribute marijuana plants. They moved to dismiss the indictment on the grounds that an entrapment-by-estoppel defense precluded their prosecution. The government opposed contending that Shafer and Fry had not relied on representations by a federal official or an authorized agent of the government. The government further contended that Shafer and Fry had given written recommendations to their patients which included a disclaimer that marijuana remained illegal under federal law; thus, they knew that federal law made their operation illegal. The district precluded an entrapment-by-estoppel defense and the jury convicted them both. On appeal, they contended that their theory of entrapment-by- estoppel was improperly dismissed. The court of appeals affirmed based on Shafer and Fry’s knowledge of federal law.

This case is United States v. Shafer, 9th Cir.; November 8. 2010; 08-10167

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