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Spokane, Washington  Est. May 19, 1883
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News >  Marijuana

Kettle Falls Five dispute potential drug sentence

Federal prosecutors want three members of a family that grew medical marijuana on their property near Kettle Falls, Washington, to spend more than five years in prison.

But the defendants, known in national headlines as the Kettle Falls Five, dispute almost all the facts the U.S. attorney’s office used in calculating that potential sentence and are asking the judge to simply impose probation. The disagreement sets up a showdown in a Spokane courtroom as early as next month that could have big implications on future prosecution of marijuana-related crimes nationwide.

Rhonda Firestack-Harvey, Rolland Gregg and Michelle Gregg were convicted in March by a federal jury of growing between 50 and 100 marijuana plants on the 33-acre family plot, which was searched by investigators in August 2012. Since that time, Washington has established a recreational marijuana market worth more than $200 million, and the Legislature has brokered a deal to bring the state’s long-standing medical marijuana industry under the same regulatory umbrella.

The defendants had written permission from licensed medical professionals in Washington to possess up to 15 marijuana plants for various ailments. But that fact was not introduced at a five-day trial that saw all but a single charge against them thrown out because growing and possessing marijuana continues to be a crime under federal laws. The patriarch of the family, Larry Harvey, was excused from the case when he was diagnosed with terminal pancreatic cancer late last year. Family friend Jason Zucker, who was originally a defendant, took an 11th-hour plea deal and testified for the prosecution at trial.

In court filings, the defendants accuse the U.S. attorney’s office of punishing them for criminal charges that were tossed by the jury and miscalculating the amount of marijuana they were growing. The parties also dispute whether the trio has taken responsibility for their actions, with the prosecution arguing the need to hold a trial shows the family has not acknowledged they broke the law.

Phil Telfeyan, a Washington, D.C., civil rights attorney retained by Rolland Gregg, said the family was originally indicted for growing more than 100 plants and would have pleaded guilty if they were correctly charged for the amount of the drug they were producing.

“Had the family only been prosecuted for what they actually did – growing 68 marijuana plants in 2012 – they likely would have negotiated an early plea deal that included no prison time,” Telfeyan wrote. “Such an outcome would have saved everybody the pain of prosecution and would have saved the federal government all the time and resources spent prosecuting this case.”

Here’s a quick rundown of the major facts of the case:

What do the parties disagree on?

Federal prison sentences are based on an offense level calculated by the U.S. Probation Office. The sides disagree about what that level should be.

Prosecutors continue to argue for sentencing enhancements based on the discovery of guns in the Firestack-Harvey household. The family says the weapons – a rifle, a shotgun and a pistol – were used for hunting, not protecting their marijuana, and that the jury threw out this charge at trial. The enhancement adds more than a year to the prison sentence requested by prosecutors. The family says the guns should not be considered at sentencing.

Prosecutors say the family has not accepted responsibility for breaking the law, adding more time to their sentences. The family responded with letters, contained in the court record, that say they’ve told the federal government everything about their criminal activity and were acting in compliance with Washington medical marijuana laws.

Firestack-Harvey and the Greggs say they were minimal participants in the scheme to grow the marijuana. Rolland Gregg writes in his letter than Zucker “did the lion’s share” of the work, and that he only watered the crops once or twice.

What do the parties agree on?

The family has never disputed they grew marijuana, just that they grew less than the amount alleged by the government. Prosecutors say the family should be held accountable for 86.3 kilograms of the drug, based on records kept on a computer in the home. The defense says the number should be closer to 64 kilograms, based on the number of plants seized by investigators in 2012. The lower number would equate to a lesser prison sentence, based on federal guidelines.

Both sides agree that the members of the family have no criminal history.

What’s at stake?

The defendants say their continued prosecution conflicts with directives from the Justice Department. They cite the so-called “Cole memo,” a document issued by U.S. Deputy Attorney General James M. Cole in August 2013 that is meant to be a guideline for prosecution of marijuana-related crimes. Cole writes that prosecution should be limited to cases where the drug is made available to minors, or tied to gangs or violence.

A long prison sentence could cast doubt in some circles about how closely U.S. attorney’s offices are following that directive, based on the facts of the case. U.S. Attorney Mike Ormsby said after the guilty verdict in March that there are “very few” marijuana cases pending in the district and applauded the jury for “doing its job.”

What’s next?

The sentencing hearing for Firestack-Harvey and the Greggs is scheduled for June 10. None of the defendants are in custody. Telfeyan has asked for more time to review the trial transcript before that hearing takes place, and the government hasn’t objected, meaning the hearing could be pushed back. Zucker, who pleaded guilty to manufacturing more than 100 marijuana plants, faces a potential prison sentence of 63 months to 78 months. He is scheduled to be sentenced July 24.

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