The complicated bill Congress passed to fund the federal government through 2015 may prove the saving grace of the Stevens County marijuana farmers dubbed the “Kettle Falls Five.”
The U.S. attorney prosecuting the case says the five were violating Washington’s medical marijuana laws when drug enforcement agents seized 75 marijuana plants, guns and business records from the family’s property near Colville in August 2012.
But the defendants say federal lawmakers barred prosecutors from pursuing charges against them by signing the bill funding the government. That bill, whichfunded most agencies of the government through September, included a measure saying public money can’t be spent to prevent states from implementing their own laws on medical marijuana.
The five are married couple Rhonda Lee Firestack-Harvey and Larry Harvey; their adult children Rolland Gregg and Michelle Gregg; and family friend Jason Lee Zucker. They all say they had medical cards from doctors to use cannabis for the treatment of different medical conditions.
The defendants say their continued prosecution threatens the future of the medical marijuana system in Washington.
Harvey’s attorney asked U.S. District Court Judge Thomas O. Rice to throw out the charges against the group, or at least bar prosecutors from pursuing charges unless Congress changes its mind. A hearing on the motion is scheduled for Thursday in Spokane.
The U.S. attorney’s office for Eastern Washington, which has come under fire from marijuana advocacy groups for pursuing what they call frivolous criminal charges that carry stiff mandatory jail sentences, declined to comment on the case last week, citing the ongoing legal proceedings. But court documents filed by Assistant U.S. Attorney Earl Hicks make the case that the Kettle Falls Five were operating a for-profit marijuana enterprise – a no-no under the state’s medical marijuana law.
“It appears from a review of all these records that the defendants possessed more than 72 ounces at one time and that they sold some of this marijuana to people who were not part of any collective garden,” Hicks writes in the briefing, referring to spreadsheets seized by federal agents in the August 2012 raid. State medical marijuana law strictly forbids sales of marijuana to anyone outside a collective garden once it is established and limits the amount each member can grow. By violating these laws, the family becomes open to federal prosecution under the Controlled Substances Act, Hicks says.
The argument that the defendants were operating a legal garden under state law is one that jurors in the case won’t hear in the courtroom. U.S. District Court Judge Fred Van Sickle ruled in May that introducing evidence at trial about the state’s medical marijuana laws would be confusing to jurors, who are supposed to rule on whether the group violated the federal law that continues to outlaw marijuana. Van Sickle was replaced on the case by Rice in November without an explanation in the court record.
Phil Telfeyan, a Washington, D.C., civil rights attorney representing Rolland Gregg, has asked Rice to reconsider that order, also in light of Congress’ actions in December. Telfeyan says Congress’ action equates to an “explicit” endorsement of “the medical value of marijuana.” However, the Controlled Substances Act continues to classify marijuana as having no medical value.
Rep. Cathy McMorris Rodgers, a Republican with strong ties to Kettle Falls, voted in favor of the spending package, despite her stance opposing the legalization of marijuana. In a prepared statement through a spokesperson, McMorris Rodgers said her vote in favor of the spending bill was to ensure federal money for regional projects, rather than a policy position on marijuana.
“As Eastern Washington’s voice in Congress, I voted to responsibly fund a government that addresses top priorities for our region, including national security, veterans’ health, and investment in local transportation projects,” the statement reads. It does not address the potential ramifications of the medical marijuana provision in the law.
The case has produced no legal arguments referencing Washington’s recreational marijuana system. But the continued prosecution and stiff potential penalties – each of the defendants faces charges that carry a five-year minimum federal prison sentence because of the drugs and firearms – has marijuana advocates in the state on notice.
“Personally, I find it very strange that one federal prosecutor would go after a small family and another would ignore all the commercial operations on the West Side of the state,” said Kevin Oliver, executive director of the Washington branch of the National Organization for the Reform of Marijuana Laws. Oliver is referring to larger farms in Western Washington that provide the drug to a bigger pool of people for profit.
Robert Fischer, the attorney for Larry Harvey, filed a response to prosecutors this week saying their position eliminates the ability for medical marijuana dispensaries to claim protection under state laws, which could end both the recreational and medicinal pot systems.
Jeffrey Niesen, the Spokane attorney representing Rhonda Lee Firestack-Harvey, said last week he and his colleagues would appeal if they lose.
That would put the question to a panel of U.S. 9th Circuit Court judges.
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