Feds Prosecute Medical Marijuana Users in Washington City Where Cannabusinesses Openly Operate

Americans for Safe AccessAmericans for Safe AccessTwo months ago, the Washington State Liquor Control Board gave Sean Green, CEO of Kouchlock Productions, a license to grow up to 21,000 square feet of marijuana for the state's newly legal recreational market. Green, who already owns two medical marijuana dispensaries in Spokane, is growing those plants in a building about six miles from the office of Michael Ormsby, the U.S. attorney for the Eastern District of Washington. Green does not seem worried, and Ormsby has shown no interest in shutting him down. Yet next week at the federal courthouse in Spokane, Ormsby's office will go to trial in a case involving a much smaller cannabis garden, seeking to put five medical marijuana users behind bars for terms ranging from 10 years to life.

In August 2012, three months before Washington voters approved I-502, which legalized marijuana for recreational use and enabled Green to expand his business, the Drug Enforcement Administration (DEA) raided the home of Larry Harvey, a 70-year-old retired truck driver, and his 55-year-old wife, Rhonda Firestack-Harvey, who live in a rural area of northeastern Washington about 10 miles from Kettle Falls. The DEA found 45 marijuana plants, about five pounds of pot, and a freezer full of cannabis-infused butter, cookies, and teas. The Harveys say the cannabis was intended for medical use by them, their 33-year-old son, Rolland Gregg; his 35-year-old wife, Michelle; and a 38-year-old family friend, Jason Zucker. All five have medical recommendations, which under Washington law gives them an affirmative defense against possession and cultivation charges.

That defense applies to cultivation of up to 15 plants and possession of up to 24 ounces per patient, and defendants can argue that more is medically appropriate. In a February 26 letter to Attorney General Eric Holder, the Harveys' lawyers say the amounts seized by the DEA were consistent with typical medical use. "Considering one to two ounces are needed to make a pound of butter," they write, "it's easy to understand how a cookie at night and some tea in the morning could quickly diminish one's supply. The point being, of course, that there would be no cannabis left over to sell or distribute because these patients needed all of it and then some to properly treat their medical conditions," which include gout, osteoarthritis, chronic pain from severe back injuries, and wasting syndrome. There is no evidence that any of the marijuana raised on the Harveys' property was exchanged for money.

None of that matters under federal law, as the judge overseeing the case confirmed yesterday, ruling that the defendants may not mention medical use or the state law allowing it during their trial. But those factors should matter under the policy of prosecutorial restraint announced by the Obama administration. Since 2009 the Justice Department has been saying that "prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources." In a memo issued last August, Deputy Attorney General James Cole reiterated that policy of forbearance and extended it to state-licensed suppliers of recreational marijuana, provided their operations do not implicate "federal enforcement priorities."

Despite those promises to leave patients alone, Ormsby has charged each of the "Kettle Falls Five" (as local news outlets call them) with four felonies: conspiracy to manufacture and distribute marijuana, manufacture of marijuana, distribution of marijuana, and possession of a firearm in furtherance of a drug trafficking crime. Larry Harvey and Rhonda Firestack-Harvey are also charged with maintaining drug-involved premises (i.e., their home). Although only 45 marijuana plants were found, the indictment alleges that the defendants grew 100 or more, based on evidence of a previous harvest. That triggers a five-year mandatory minimum. So does the firearm charge, which is based on the Harveys' possession of a pistol, a rifle, and a shotgun in an isolated area of Washington where they hunt for food and where, according to their lawyers, they have "encountered black bears, cougars and coyotes at their front door on several occasions."

Those two mandatory minimums mean the Kettle Falls Five face at least 10 years in prison. The Huffington Post's Matt Ferner reports that "their maximum sentences range from up to 40 years to life." In their letter to Holder, the Harvey family's lawyers note how bizarre these draconian penalties seem in the current legal and political context. "Here you have a single family facing a combined 60 years in mandatory minimum sentences for medical marijuana in the same state that plans to allow cannabis distribution on a scale unlike anyone has seen before," they write. "In the very city where the Harvey family is set to stand trial, an ordinance was recently passed to establish groundbreaking licensing requirements for aspiring entrepreneurs in the existing medical marijuana field, as well as those planning to enter the emerging I-502 marketplace."

The lawyers also note that Ormsby's approach to medical marijuana contrasts with that of Jenny Durkan, the U.S. attorney for the Western District of Washington. "Where defendants in Eastern Washington are being systematically deprived of a defense due to the charging decisions of the USAO," they say, "similarly situated individuals in Western Washington have been given a green light of sorts, with the United States Attorney for Western Washington yet to charge a single case where a valid medical marijuana defense would apply in state court." All of this disparate treatment, they say, amounts to "an equal protection problem of epic proportions."

The Kettle Falls Five case also contradicts repeated assurances from President Obama, Holder, and Cole that the Justice Department is not interested in targeting patients who comply with state law. "This case is another glaring example of what's wrong with the federal policy on cannabis," says Kari Boiter of Americans for Safe Access. "If the Justice Department can continue to aggressively prosecute individual patients without any consequences from the White House, none of these DOJ memos are worth the paper they're printed on."

Douglas Hiatt, a lawyer advising the defense team, agrees. "It's open war here on medical marijuana patients," he says. "What about 'clear and unambiguous compliance with state law'? They're not supposed to be doing that. Those memos don't mean anything."

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  • Hyperion||

    Rhonda Firestack. I can't even...

  • Hyperion||

    What, I've got it. An all girl rock band:

    Rhonda Firestack and the Kettle Falls Five.

  • susan221||

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  • Paul.||

    You wanna be depressed?

    Here's the top, above-the-fold headlines on the Seattle Times:

    Report: Climate-change effects are apparent in NW

    Proposed Redmond mosque faces opposition over growth

    Feds sweep 25 states in synthetic drug crackdown

    Danny Westneat: Take ‘No child’ school testing and shove it

    FYI Guy: 5 areas where working poor, well-paid techies overlap

    Depressed now?

  • ||

    No, because I already know how fucking worthless the media are and what their moronic priorities actually are (and it isn't liberty or justice, that's for fucking sure).

  • Invisible Finger||

    No. Most newspapers are insolvent because of this drivel.

  • Hyperion||

    what's wrong with the federal policy on cannabis

    What's wrong with the federal policy on cannabis is that one exists.

  • sarcasmic||

    the defendants may not mention medical use or the state law allowing it during their trial

    That's fucked up.

  • R C Dean||

    I don't understand on how any restriction on the defendant's defense is constitutional, myself.

    Those rubberstamps must be awful heavy, if they need twelve jurors to lift one for the judge.

  • sarcasmic||

    Must be the pesky FYTW clause.

  • Grand Moff Serious Man||

    I don't understand on how any restriction on the defendant's defense is constitutional, myself.

    BFYTW? I sincerely hope there was one person in the jury pool that managed to explain nullification during jury selection.

    Obviously such a person would immediately be ejected, but how many jurors don't even know they can do that?

  • Hyperion||

    So, if you say the magical word 'nullification', that is an automatic out? How is that legal? Is nullification illegal, or is it not?

  • Zeb||

    That varies quite a bit among states.

  • Paul.||

    So, if you say the magical word 'nullification', that is an automatic out

    I would guess. there's a lot of words you can say which are automatic outs.

    I remember YEARS ago I was (and I can't explain why, but I was) catching Rush Limbaugh (shrike bait!) and he was telling an anecdote about one of his producers who got called for jury duty.

    Limbaugh said to his producer, "Just tell them you work for me, it'll be an automatic out."

    Sure enough, during jury selection the defense attorney looked down at the sheet when he got to Limbaugh's producer, tore the sheet up and said, "I'm not even going to talk to you, you're out."

    What people don't realize is that both sides of the case, prosecution and defense can reject a jury on almost anything, up to and including the way you cut your hair.

  • Grand Moff Serious Man||

    Jurors can be dismissed for any reason by the prosecutor, defense attorney, or the judge. Or at least that is how it is in California.

    I had jury duty a few months ago and the judge alluded to, but did not explicitly mention, nufflification when he warned the jury pool that they had to follow his instruction on how to apply the law to the letter because, in his words, 'deciding which laws we want to follow would lead to a tyranny'.

  • sarcasmic||

    'deciding which laws we want to follow would lead to a tyranny'.

    That's ironic, considering that jury nullification is the last defense against tyranny.

  • Hyperion||

    To the ruling class, tyranny is when the people fight back, and win. It happened once, a few hundred years ago, and they don't want any more of that shit.

  • Notorious G.K.C.||

    'deciding which laws we want to follow would lead to a tyranny'.

    Physician, heal thyself!

    I bet jurors have a better record than judges when it comes to following the law.

  • OneOut||

    There seems to be some aspect of entrapment here. Not being a lawyer I don't know if it applies from a legal perspective of course.

    It's like they were enticed to do it to ease their condition(s) and then when they did it, with that assurance, they were arrested and are being prosecuted ?

    I doubt these people have enough money to effectively fight the US Government. Some of the pro MJ legalization groups need to support these people.

  • Dweebston||

    What chance is there the defense can deliver a practical primer on jury nullification in closing, instead?

  • ||

    Yeah, I really don't understand why something that is directly relevant to the defense is inadmissible. I'm sympathetic to the idea that a law exists, and it's the juries job to decide if someone broke it, and that's all. But when there are two conflicting laws, not being able to mention the conflict seems absurdly petty.

  • Jaybirdmojo||

    "Do you solemnly swear to tell The Truth, The Whole Truth, And Nothing But The Truth?"

    "I am under orders from the Judge to not."

  • R C Dean||

    That would be priceless.

    "I do, except for the fact that this was all legal medical marijuana, which the judge has forbidden me to testify about."

    I guarantee every single juror will be wide awake after you say that.

  • ||

    That sounds like a guaranteed contempt finding, but it would be awfully funny.

  • Almanian!||

    THIS WHOLE COURT IS OUT OF ORDER!

  • R C Dean||

    I'd like to see the contempt ruling based on the witness telling the truth.

  • Afterwords||

    "Do you solemnly swear to tell The Truth, The Whole Truth, And Nothing But The Truth?"
    "I am under orders from the Judge to not."

    Love it. I wonder if the audience could wear shirts saying "It was for medical use." If the judge tosses them from the court, that would get press attention, and the jury would surely notice...

  • Hyperion||

    What the fuck kind of monster could vote to send these people to prison? The fact that there are still people like that in society, tells me that some of us aren't that far evolved from monkeys, yet.

  • Homple||

    Apologize to the monkeys for that slander.

  • Hyperion||

    I apologize to the monkeys ... hangs head in shame ...

  • Zeb||

    Monkeys send people (or monkeys, I guess) to prison?

  • sarcasmic||

  • Eggs Benedict Cumberbund||

    Classic

  • destor23||

    I don't get this either. Juries seem to not really take the responsibility of sending people to prison all that seriously. Or, people blindly follow what they perceive to be "the rules" and are compliant with authority figures as a kind of default mode. If people were braver and more thoughtful we would have a much smaller prison population.

  • sarcasmic||

    I really don't understand why something that is directly relevant to the defense is inadmissible.

    It's almost as if the judge has decided that he'll accept nothing less than a guilty verdict.

  • ||

    Can the judge go the other way and allow the defense to talk about the state medical marijuana laws, or are his hands tied by some Latin legalese?

  • sarcasmic||

  • Hyperion||

    What if the jury just right out says, 'we won't convict these people, no matter what'? Do they throw them into a cage also?

  • sarcasmic||

    Mistrial.

  • R C Dean||

    If the jury says that, maybe a mistrial.

    If they play it smart, keep their yaps shut and just return a not guilty verdict, its a done deal.

  • Afterwords||

    At this point, when you see how the jury gets railroaded with instructions like "if they had plants, they're guilty, and you MUST find them guilty" and with the defense so hamstrung, I bet the most we can hope for is a hung jury. Hoping at least a few jurors will fight the good fight against unjust laws.
    But in that neck of the woods, it's anybody's guess as to how they voted on the 520 initiative.

  • Homple||

    The drug warriors do this stuff to stay in practice, keep funded, and remind the rest of us they're still around.

  • kinnath||

    I've reached the point where I would like to see a few court houses get retired.

    https://www.youtube.com/watch?v=nyepdtx_UI4

  • R C Dean||

    In case anyone is wondering, Michael Ormsby, the U.S. attorney for the Eastern District, is an Obama appointee.

  • kinnath||

    I can see the appeal this kind of case must have for the extremely ambitious types that populate the US Attorney's office. The "criminals" are breaking federal law in the open, so it is dirt simple to prove it. And then the Federal judge will block any rational defense from the "criminals" because fed law trumps state law. It's a can-not-lose way to pad your statistics. Too bad the evil rethuglicans Chicago Machine controls the executive branch.

  • Robert||

    So what? What jury in Wash. St. now is ever going to convict them? Or not award them their property back?

  • Hyperion||

    The way it sounds like the courts can hand select a jury on which way they think they will vote, it's very likely that they can find enough drug warrior types to stuff a jury.

  • Robert||

    Both sides get to toss jurors. But besides, nobody can really predict what a juror's going to do; it's voodoo jury selection.

  • Christophe||

    Jury made of cops and their relatives.

  • R C Dean||

    I would say the odds of an acquittal are very low.

    It takes some titanium balls to disregard what a federal judge tells you. IF he tells them that state law is totally irrelevant, and their verdict is strictly about whether the defendant possesed pot in violation of federal law, these people are all going away.

  • Robert||

    Nah. The jurors are all going to think, whether they like the guy down the block with a mj store or not, that he's no better than these people in being allowed to produce commercial amounts of pot.

  • OneOut||

    Yeah, so what ?

    They can always rent an apartment after signing over their home to the attorneys to keep from going to prison for the rest of (some) of their lives.

  • PapayaSF||

    Ernest Borgnine lives!

  • ||

    I would think that voir dire would be a bitch for the prosecution. Trying to find people that don't smoke weed. But at pointed out above, people don't have the balls to disregard a federal judge.

  • ||

    HELLO, AS A FAMILY WHO IS CURRENTLY IN THE FEDERAL PRISON SYSTEM DUE TO MEDICAL MARIJUANA. I HAVE A FEW SUGGESTION TO THIS FAMILY:

    1. Newspaper Post article are vital!!! Thank you for attempting to tell the story of this family. Only way to stop this from happening to other and help this family is newspapers writing articles.

    2. Paper to help them, I beg you: Do an article on JURY NULLIFICATION.

    3. HARVEY FAMILY: PLEASE ATTEMPT IN YOUR STATE TO GET THE KNOWLEDGE OF JURY NULLIFICATION TO THE LOCAL AND STATE NEWSPAPERS. IT IS YOUR OWNLY HOPE!!!

    4. We have had this occurring to us since 2010. Law in Michigan passed in 2008. We have two family members in prison. We ONLY leased a building that was divided out to six different care givers. They labeled my conservative husband of 38 years a: DRUG KING PIN. He is in Butner Low Prison until February of 2016. One of our sons, Lance is in Morgantown, WV.

    5. There are more of us average, trusting Americans who are in prison for medical marijuana than you realize. You can not know the horrors the DEA WILL

    Put an American through until you are in the system. That is when you realize as an American you have no power.

  • ||

    First: Anyone who post negative about medical marijuana on your post are DEA Agents whom jobs are to: Read and comment negatively about people on these sites.

    Second: Do not think your emails, Facebook, phone is not tapped; if you are a person speaking up for medical marijuana. ALL PHONES, COMPUTERS, ETC… TAPPED.

    Third: Average American citizens must start protesting more on these situations. For there is no defense in Federal Courts.

    Study Federal Court: You will see the Prosecutors in Federal Court have a 95% CONVICTION RATE!!!!

    NO COURT IN AMERICA SHOULD HAVE A 95% CONVICTION RATE.

    Fourth: Jury Nullification must be shouted from roof tops for Americans to know they have this legal right to nullify the indictments.

    Five: Prosecutors, Judges receive a "point system" for each person they put into Federal Prison. This "point system" adds up to thousands upon thousands of "bonus money" for them each year.

    Six: State DEA Agents and Prosecutors answer to no-one within state. They write the statement on what is sent to Washington D.C. DEA Leaders. Like labeling my conservative, never broken the law husband: A DRUG KING PIN.

    Seven: Prison are not Federal Luxury places. Food comes in boxes labeled: Not fit for human consumption. Yet, it is what prisoners have to eat.

    Seven: LOSE ANY CONCEPT YOU HAVE ON FEDERAL PRISON BEING A EASY PRISON SENTENCE. IT IS HORRIBLE!!!t

  • Federale||

    And they say marijuana use does not cause paranoia. We are watching you, your every step, your every utterance.

  • Federale||

    LOL, I guess this just proves the Harvard study was correct, pot use lowers your IQ. No one believes that they need marijuana for medical use. There is no medical use for marijuana unless they are all suffering from AIDS wasting.

  • Vulgar Madman||

    What do you blame your low IQ on?

  • Vulgar Madman||

    What do you blame your low IQ on?

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