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Spokane, Washington  Est. May 19, 1883

U.S. didn’t have authority to try Kettle Falls Five for medical pot

Rhonda Lee Firestack-Harvey, left, Jason Zucker, Rolland Gregg and Michelle Gregg stand with Larry Harvey outside the Thomas S. Foley United States Courthouse on Thursday, Feb. 12, 2015, in Spokane, Wash. A federal judge will decide whether the criminal case against the Kettle Falls Five will take place later this month. (Dan Pelle / The Spokesman-Review)

The convictions of four Washington residents for growing marijuana near Kettle Falls may soon be erased after federal prosecutors in Spokane say they shouldn’t have spent money on the trial and can’t continue to spend any on the appeal.

More than two years after prosecutors twice convinced a federal judge they had the authority to try the medical marijuana growers who came to be known as the Kettle Falls Five, they now agree with defense attorneys that they did not.

“The law changed,” Assistant U.S. Attorney Earl Hicks said Wednesday. “The United States follows the law and we really can’t comment further. It’s still an active case.”

Hicks told the 9th Circuit Court of Appeals this week that its recent rulings on other medical marijuana cases have convinced him that after Congress cut off federal funding in 2014 for prosecuting medical marijuana patients in states where the drug was legal, the U.S. attorney’s office in Spokane didn’t have the authority to spend money on the 2015 trial. They also aren’t authorized now to spend money on the appeal.

“This really feels like vindication,” said Phil Telfeyan, an attorney for Washington, D.C.-based Equal Justice Under Law, who represents defendant Rolland Gregg. He will file a motion for the appeals court to dismiss the convictions in the coming days.

“Wow! Unbelievable,” said Frank Cikutovich, a Spokane attorney who represents Jason Zucker, a defendant who took a plea deal on the eve of the trial and pleaded guilty.

But Zucker’s plea agreement contains a provision that anything that happens in the appeal of the other defendants would apply to him, so if their convictions are voided, his should be, also, Cikutovich said.

As part of a federal budget deal in December 2014, Congress cut off funds for federal prosecution of people who are growing and using medical marijuana in states where that is legal, providing they are following state laws. The Kettle Falls Five case was mentioned in a letter from the bill’s sponsors to then-Attorney General Eric Holder as a reason for cutting off the funds, Telfeyan said. That restriction has been renewed in every budget since.

At the time, Rhonda Firestack-Harvey, her husband Larry Harvey, their son Rolland Gregg, his wife Michelle Gregg, and Zucker, a family friend, were awaiting trial on charges from a 2011 raid on the Harveys’ farm outside of Kettle Falls. Although all had recommendations from medical professionals to use marijuana for various conditions, local law enforcement and the Drug Enforcement Administration seized marijuana plants from the property as well as some firearms.

The federal government charged them with growing and trafficking in marijuana, and added firearms charges that would have extended their sentences. The defendants argued they had the number of plants allowed under state law, and the guns were used for hunting.

After Congress added that provision to the budget bill in 2014, attorneys for the Kettle Falls Five moved for a dismissal, but Hicks argued against it and U.S. District Judge Thomas Rice agreed with Hicks.

Larry Harvey, who was suffering from terminal pancreatic cancer, was later dismissed from the case about a week before the trial. Zucker, who had a previous felony conviction and was facing extensive jail time, took a plea deal just before the trial started.

Rice would not allow any reference to the fact that Washington had legalized medical marijuana during the trial. After five days of testimony, the jury convicted Firestack-Harvey and the Greggs of growing between 50 and 100 marijuana plants but found them not guilty on the other charges. At the time, state law allowed a medical marijuana patient to grow up to 15 plants, and the government said they seized about 75 plants, which would be within the limit under state law for five people.

In sentencing Zucker to 16 months in July 2015, Rice rejected the idea of a medical marijuana defense. “There is no such thing as medical marijuana. There is no such thing in federal law,” the judge was quoted as saying in The Spokesman-Review account of that hearing.

Before the other three were sentenced later that year, defense attorneys again argued that Rice shouldn’t jail them because Congress had cut off federal funds for medical marijuana prosecutions in states where it is legal. Prosecutors argued against that, and Rice sentenced Rolland Gregg to 33 months in prison, and Firestack-Harvey and Michelle Gregg to 13 months each. But he allowed them to remain free on bond pending the appeal.

In a recent brief for the appeal, defense attorneys cited a 2016 case in which the 9th Circuit ruled the budget restriction prohibits the Justice Department from spending money to prosecute medical marijuana cases if the person is following state law, even if the arrest was made before the budget passed in 2014. A 2017 ruling by the appeals court said that prohibition extends to spending federal money on an appeal of a medical marijuana conviction in a state where the drug is legal.

Because of those two new rulings, Hicks told the 9th Circuit the Kettle Falls case should go back to Rice for further proceedings.

“The purpose of this motion is to acknowledge that the United States was not authorized to spend money on the prosecution of the defendants after December of 2014 because the defendants strictly complied with the Washington State medical marijuana laws,” Hicks wrote.

Telfeyan said he’ll ask for the convictions to be dismissed based on those appeals court rulings. The final decision will be up to the judge, but unless Congress changes its mind and reinstates federal money for medical marijuana prosecutions, federal prosecutors won’t be arguing against it.

In the meantime, the defendants are “ecstatic,” Telfeyan said. “Having the strain of a federal prosecution over your head … it really can derail your life.”