Washington state’s permissive marijuana laws have been on a collision course with the federal government’s total ban for years.
That collision could occur this summer in a Spokane courtroom as the federal government seeks convictions and stiff mandatory prison terms against the members of an Eastern Washington medical marijuana cooperative being called the Kettle Falls 5.
Marijuana advocates familiar with the case say a conviction would have serious implications statewide, not just for medical users but for the new recreational marijuana industry being licensed by the state to grow, process and sell the drug all over Washington.
The five defendants won’t be allowed to argue they were obeying state laws on medical marijuana, or even mention it to the jury, U.S. District Judge Fred Van Sickle ruled last week, citing several precedents. That raises the prospect that if federal drug officials decide to arrest recreational marijuana growers, they also won’t be able to claim they were following state laws as a defense.
And federal officials won’t need aerial searches, like the one that turned up the Kettle Falls 5 garden, to find recreational marijuana grows. The locations will be listed on public documents filed with the state Liquor Control Board.
Top Justice Department officials have said the federal government will refrain from prosecutions in states that have legalized some form of marijuana, providing those operations are not involved in any of eight key activities such as selling to minors, using a state-sanctioned marijuana operation as a cover for other illegal activity, funneling money to organized crime or moving drugs across state lines. They also want to keep violence and guns out of marijuana operations and keep them off federal lands.
The Kettle Falls 5 defendants say they weren’t involved in any of the eight activities federal officials have flagged. Yet they are charged with multiple drug felonies, including two that carry mandatory sentences totaling 10 years.
Officials from the U.S. attorney’s office in Spokane and the Justice Department declined to comment because the case is ongoing and the jury trial was to start Monday until a last-minute continuance on Friday moved the trial to July 28. Current and former prosecutors say the silence puts them at a disadvantage because information could come out in trial that casts the case in a different light.
Defense attorneys were guarded in their comments, too, although Doug Hiatt, a Seattle attorney who handled some early legal negotiations for the defendants, was blunt in his assessment.
“This is the most misguided federal prosecution I’ve ever seen,” said Hiatt, who has been active in reforming the state’s marijuana laws. “It reeks of ‘Reefer Madness.’ ”
Two raids, results
When Rhonda Firestack-Harvey heard a knock on the door of her rural Stevens County home in August 2012, she thought some friends had come to float the nearby river. She opened the door and saw eight law enforcement agents in Kevlar vests, displaying a warrant.
Firestack-Harvey was surprised but not particularly worried, even though about 70 marijuana plants were growing on a remote part of their 34 acres. She and her husband, Larry Harvey; her son; her daughter-in-law; and a friend all had recommendations from doctors to use the marijuana to treat a variety of medical conditions and were growing the plants in a collective garden they believed met state law.
They weren’t selling the drug or giving it to people outside their group. They were far from schools, parks, libraries or other places where children might gather.
The other three members of the collective garden live in the Seattle area and weren’t there. Harvey was out of town. The agents said marijuana had been seen growing on the property; when they came in, one said he smelled marijuana. Firestack-Harvey showed the medical authorization papers to the officers, who were mostly from local agencies but included one officer from the U.S. Drug Enforcement Agency. They had a state warrant so they called the Stevens County prosecutor’s office for guidance. They were told the collective had more plants than the state Medical Use of Cannabis Act allows.
The recommendations said each patient could have as many as 15 plants. But another part of the law says a collective garden is limited to 45 plants total. The officers took some plants, leaving 45.
Eight days later, when Firestack-Harvey was again alone in the house, there was another knock on the door, and again the officers were outside. There were two big differences, she recalled. They were wearing DEA jackets, and they had a federal warrant.
“I was in shock,” she said. “I didn’t know what was going on. I thought, ‘These are all the same guys.’ ”
This time, officers seized the remaining plants, plus some loose marijuana and “edibles” containing the drug, some hunting rifles, shotguns and handguns in the house, about $500 in cash in her underwear drawer she was saving for a trip to Mexico, two motorcycles and an all-terrain vehicle.
But they didn’t arrest Firestack-Harvey at the time.
Larry Harvey, a 70-year-old retired long-haul truck driver with a bad knee, high blood pressure and painful swelling from gout, describes himself and his wife as “country bumpkins” about marijuana. At 55, she’s a retired hairdresser with degenerative discs, arthritis and osteoporosis. Both get relief from their medical problems by eating baked goods with marijuana or using the drug in teas or oils. They don’t smoke it. Both say they don’t have any criminal convictions; Harvey admits to a few traffic tickets, Firestack-Harvey said her record is even clear of that.
“We never gave it a thought that we were illegal,” Harvey said.
As proof, Harvey describes the sign he made for the growing field, which is on the side of a nearby mountain away from the country road where they live, 9 miles north of Colville. On a 4-by-8 piece of plywood he painted a green cross in a white circle, the symbol for medical marijuana, so it could be seen from the air.
Federal court documents say the Kettle Falls 5’s collective garden was spotted from the air in a Civil Air Patrol search by an officer trained to identify marijuana.
Firestack-Harvey’s son Rolland Gregg; his wife, Michelle; and the Greggs’ friend Jason Zucker, who are part of the collective garden although they live on the other side of the state, also have a range of medical problems alleviated by marijuana.
Dr. Greg Carter, medical director of St. Luke’s Rehabilitation Institute in Spokane, reviewed the medical records of all five after the raid. Over the last 15 years, Carter has done extensive research on medical marijuana and currently has a grant from the state attorney general’s office to educate physicians, nurses and other medical personnel about the drug’s uses.
“I think these patients were legitimate,” Carter said recently. “They are pretty normal people. We’re not talking about thugs.”
While the number of plants growing at the time of the first raid may seem like a lot, he added, it’s not an unusual amount for patients who use it for edible products, tinctures or liniments, rather than smoking. The group only grew marijuana outside, so in northeastern Washington they had a relatively short growing season to produce enough for the entire year.
Carter said he told that to Mike Ormsby, U.S. attorney for Eastern Washington, at a meeting he attended with Hiatt more than a year ago. Medical marijuana growers have had good success presenting similar arguments in state courts, Carter said.
It didn’t stop federal officials from taking the case to a grand jury, obtaining an indictment and charging all five with a series of felonies. They were arrested in March 2013, about the time Harvey said he thought the whole thing was going to go away.
No jury nullification
Carter probably won’t be able to offer his opinions to the jury. Although the Kettle Falls 5 are charged with growing more than 100 plants over time, a felony that carries with it a mandatory minimum of five years, they won’t be able to say the large number is because of their medical marijuana collective.
Van Sickle, the trial judge, said the Kettle Falls 5 can’t rely on a mistaken belief that state law protected them against federal prosecution. The federal government only has to prove they had the marijuana, not that they knew it was illegal.
If they take the stand, they can’t tell the jury they had the marijuana for medical use, not for sale. Suggesting they were following state law and thus shouldn’t be convicted under federal law “would be plainly improper … unfairly prejudicial to the United States and confusing to jurors,” Van Sickle said. It could “tempt the jury to disregard federal law.”
That means there is no defense in federal court, Carter said. “Why even bother to have a trial?”
The five also face a mandatory five years extra in prison if convicted of “possession of a firearm in furtherance of a drug trafficking crime.” Agents did seize eight firearms, including a black-powder rifle and a .22 that Harvey says doesn’t work, but the guns had nothing to do with the garden, he contends.
“We live 9 miles out of town on the side of a mountain,” he said, and the guns are for hunting and protection from the bears, cougars and coyotes that sometimes come as close as the front steps.
Most rational way?
Six months after the Kettle Falls 5 were arrested, Deputy U.S. Attorney General James Cole issued a memo saying federal enforcement in states like Washington that have legalized marijuana for certain uses would concentrate on the eight priorities and “address the most significant threats in the most effective, consistent and rational way.”
Attorneys for the Kettle Falls 5 say they have written U.S. Attorney General Eric Holder, essentially asking how this case squares with the Cole memo and other previous memos or statements to Congress. They haven’t received a reply.
Last week, as lawyers were settling details like whether the defendants could raise state laws on medical marijuana during the trial, Harvey was in Washington, D.C., talking to some members of Congress threatening to bar the Justice Department from spending any money on medical marijuana prosecutions. Legislation could be introduced as an amendment to a major appropriations bill later this year.