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Spokane, Washington  Est. May 19, 1883

Judge rejects ‘Kettle Falls Five’ marijuana defendants’ requests

Larry Harvey sits outside the Thomas S. Foley United States Courthouse on Thursday in Spokane. Harvey has been diagnosed with terminal pancreatic cancer. (Dan Pelle)

A federal judge declined Thursday to throw out the criminal case against the marijuana farmers dubbed the “Kettle Falls Five,” setting up the likelihood of another trial delay two years after charges were filed.

When it commences, it may be the trial of the Kettle Falls Four.

The attorney for Larry Harvey, patriarch of the family now facing federal criminal prosecution for what they say they believe was a legal medical marijuana grow near Colville, said he’s confident the U.S. attorney’s office will drop the charges against the 71-year-old based on his failing health.

Assistant U.S. Attorney Earl Hicks, who’s in charge of prosecuting the case, said Thursday he would seek medical records from Harvey attesting to his diagnosis of terminal pancreatic cancer. Harvey said after the hearing he’d lost 70 pounds and was receiving weekly chemotherapy treatments.

Robert Fischer, Harvey’s attorney, said, “I take Mr. Hicks at his word.”

Despite Fischer’s confidence, Hicks has not issued a formal decision on whether he’ll drop Harvey from the case.

For Harvey’s children, his wife and family friend, however, Hicks continued to argue that a congressional spending bill prohibiting the Department of Justice from conflicting with states’ implementation of their medical marijuana laws should have no effect on their prosecution. Rhonda Lee Firestack-Harvey, Jason Zucker, Rolland Gregg and Michelle Gregg all face marijuana manufacturing and distribution charges, in addition to charges that they were using firearms in furtherance of their drug crimes. Each faces a minimum sentence of 10 years in prison if found guilty.

“They were clearly in violation of the Medical Use of Cannabis Act,” said Hicks, referencing a pay schedule seized from the Harvey’s rural Stevens County home in August 2012 that appears to show the family paying trimmers tens of thousands of dollars to process their plants. Hicks argues that amounts to a for-profit marijuana operation that violates state statutes.

U.S. District Court Judge Thomas Rice disagreed with the defendant’s interpretation of the federal spending bill and ordered the case to move forward. Hicks, before an audience that included several area criminal defense attorneys, U.S. assistant attorneys and U.S. Attorney for Eastern Washington Mike Ormsby, also argued against defense motions that would exclude some testimony from investigators, allow evidence of the medicinal benefits of marijuana to be admitted at trial and delay the federal trial until state prosecutors have tried the case.

Hicks called the last motion “absurd.”

“This court decides state matters all the time,” Hicks told Rice, who’s presiding over the case. “Because it’s marijuana, you can’t decide state matters?”

Rice sided with Hicks on all the issues before the court Thursday, ruling that the federal appropriations bill did “not shield Defendants from federal prosecution.”

If the appellate courts decline to hear the case, Rice has scheduled the trial to begin the week of Feb. 23. Several supporters of the family filled the courtroom Thursday. After the hearing, Harvey, who uses a wheelchair, gave several of them hugs and complimented his wife for holding the family together.

“We thought we were legal, that’s the bottom line,” Harvey said.