The Feds Say: Don't You Dare Call Marijuana Medicine

The Justice Department prosecutes medical marijuana patients while tolerating commercial cannabis.


Sean Green grows marijuana at 1919 East Francis Avenue in Spokane, about six miles from the courthouse where the federal government plans to try Larry Harvey, a 70-year-old retired truck driver, for growing marijuana. Green's operation is a lot bigger than Harvey's: up to 21,000 square feet of plant canopy, compared to the 45 plants that the Drug Enforcement Administration (DEA) found on Harvey's property  in a rural area of northeastern Washington about 10 miles from Kettle Falls. The difference in scale makes sense, because Green is growing pot for Washington's newly legal recreational market, while Harvey and four other medical marijuana users were growing it for their own consumption. Both kinds of cultivation are allowed under Washington law, and both are prohibited under federal law. Yet Green's future as a cannabis entrepreneur looks bright, while Harvey and his co-defendants face prison sentences ranging from 10 years to life.

The case of the Kettle Falls Five highlights the gap between policy and practice in the Obama administration's approach to medical marijuana as well as puzzling inconsistencies in the prosecution choices of Michael Ormsby, the U.S. attorney for the Eastern District of Washington. Since 2009 the Justice Department has been saying that prosecuting patients who use marijuana in compliance with state law "is unlikely to be an efficient use of limited federal resources." Last August the department extended this policy of prosecutorial forbearance to state-licensed suppliers of recreational marijuana, saying it will not interfere with legalization in Washington or Colorado as long as the markets are properly regulated. While Ormsby seems to have gotten the second memo, he seems to have missed the first one. "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."

The Harvey trial, which was originally scheduled to start last week, has been postponed until July 28, at which point at least some of Spokane's eight state-licensed pot shops should be open for business, selling marijuana grown by state-licensed producers like Sean Green. It will be a surreal juxtaposition. The judge overseeing the Kettle Falls Five case recently ruled that the defendants may not so much as mention the reason they were growing marijuana, which under federal law does not matter. Meanwhile, on their way home from the courthouse, jurors will be able to buy pot from openly operating businesses licensed by the state of Washington, approved by the city of Spokane, and tolerated by the federal government.

The seeds of this bizarre situation were planted in July 2012, when the Stevens County Sheriff's Office received a tip from the Civil Air Patrol that someone was growing marijuana near the Colville Airport. A few weeks later, Sgt. Brad Manke flew over the area and spotted about 70 marijuana plants. Based on that evidence, the sheriff's office obtained a search warrant for the property, which it served on August 9. Rhonda Firestack-Harvey, Larry's wife, told the officers that she, her husband,  their son, their daughter-in-law, and a family friend were using the marijuana  to treat various conditions, including gout, osteoarthritis, wasting syndrome, and chronic pain from severe back injuries. All five have medical recommendations, which under a ballot initiative approved in 1998 gives them an affirmative defense against possession and cultivation charges.

The 74 plants found by the sheriff's office were within the limits set by Washington law, which allows each patient to grow up to 15 plants. But the sheriff's deputies, after consulting with local prosecutors, decided to apply the limit set by a 2011 law that gives patients immunity from arrest (as opposed to an affirmative defense) for "collective gardens" as long as they grow a total of no more than 45 plants. The deputies therefore confiscated 29 plants and left.

But that was not the end of it. A week later the deputies were back, this time with DEA Special Agent Sam Keiser, serving a federal search warrant. Keiser seized the remaining 45 plants, about five pounds of pot, and a freezer full of cannabis-infused butter, cookies, and teas.

In a 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." One of the lawyers, Douglas Hiatt, sat down with Ormsby in November 2012 to explain that Larry, Rhonda, and the others were legitimate patients complying with state law—just the sort of people the Justice Department had indicated it would not be prosecuting. Hiatt brought along a medical marijuana expert who had reviewed the patients' records: Greg Carter, medical director of St. Luke's Rehabilitation Institute in Spokane. "They have a perfectly valid state defense," says Hiatt, and "there's no evidence they ever sold an iota of anything to anybody."

That meeting did not deter Ormsby from indicting the five medical marijuana users a few months later. The latest version of the indictment charges all five 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 and Rhonda are also charged with maintaining drug-involved premises (i.e., their home). Although the sheriff's deputies found just 74 marijuana plants and the DEA seized just 45, the indictment alleges that the defendants grew 100 or more, based on evidence of a previous harvest. That triggers a five-year mandatory minimum sentence. 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." The two mandatory minimums mean the Kettle Falls Five face at least 10 years in prison. The maximum sentence for four of them is 40 years, and Jason Zucker, the family friend, could get life because of a prior marijuana conviction.

Hiatt, who is not currently representing any of the defendants but consults with their lawyers, says the indictment illustrates a broader problem in eastern Washington, which has always been less hospitable to medical marijuana than the western side of the state. "It's open war here on medical marijuana patients," he says. "When local law enforcement sees a marijuana grow, and there's a gun there—which in eastern Washington there almost always is—they give the DEA a call." He describes a case in Yakima where the local sheriff inspected a medical marijuana user's garden, ostensibly to make sure he was complying with state law. According to Hiatt, "The sheriff tells him, 'Yeah, you're in compliance, but I have to let the DEA know.' He doesn't have to let the DEA know. There is no such duty. They are basically depriving people of their state rights. They are just trampling on democracy. This state, through a democratic initiative, said, 'We want people to have this defense.'"

Since that defense is not available in federal court, Harvey et al.'s only chance to avoid prison seems to be convincing the jury to ignore the law, which will be tricky. Last week U.S. District Judge Fred Van Sickle granted the prosecution's request that he "prohibit the defendants from eliciting testimony concerning their motives, justifications, or beliefs as to why the marijuana was being cultivated at the residence in question." Prosecutors argued, and Van Sickle agreed, that "any evidence of medical purposes as well as the Defendants' belief that they were lawfully engaged in marijuana cultivation is inadmissible." The judge explained that allowing such evidence, even to rebut the government's allegation of a conspiracy to distribute marijuana, would be too risky, since it "could confuse the jury with respect to whether compliance with the state [Medical Use of Cannabis Act] is a defense" or even "tempt the jury to disregard federal law."

Hiding the facts from the jury, of course, may create a different sort of confusion. "If a trial is a search for the truth," says Hiatt, "this is a very perverted form of trial. We are telling the jury they can't consider the truth. Justice is not possible without truth."

There may be ways to hint at the truth without violating Van Sickle's order. "You may not be able to say 'medical,'" Hiatt suggests, "but you can sit there and look at the jury and say, 'I was growing this for personal use. This was for me and the other people to use.'" But if the government argues that there was too much pot for personal use, the defendants won't be allowed to explain why they were consuming more than recreational users generally do, except perhaps in response to a direct question from the prosecution, which will strive to avoid any such invitation.

Assuming the jurors figure out why the defendants were growing pot (which is entirely possible in a state that has allowed cultivation and possession of marijuana for medical use since 1998), will they have the guts to ignore the judge's admonition that they must follow the law exactly as he explains it to them? "There's a lot of pressure on the jury not to do that," says Hiatt. "He's virtually telling them to convict." Still, he says, "that's the only hope they've got, that the people understand what's going on and stand up for them."

This article originally appeared at Forbes.

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  1. First of all, Obama's a liar. So is Holder. Secondly, prosecutors are going to get those (for some reason) easy, resume-padding convictions/pleas while they can.

    1. But Obama is still worthy to receive our Praises! Blessed is He, the Holy One of ACORN.

      Holder is a prophet of Obama, and we must never criticize him.

  2. the Stevens County Sheriff's Office received a tip from the Civil Air Patrol that someone was growing marijuana near the Colville Airport.

    The tips are the most suspicious things in these stories.

  3. Is it just me or does Michael Ormsby have an extremely punchable face? (Looking at the Forbes article). Also, I'm sure the judge has one as well.

  4. Late again with the morning links?

    1. They were in 24/7 briefly, now they're 404

  5. "I was growing this for personal use. This was for me and the other people to use. Oh, yeah, I have condition X and pot helps me feel better."

    You don't have to make the connection.

  6. Those people definitely look like the kind of dangerous criminals I want the Feds to mercilessly pursue. You see, they look like friendly even neighborly folks. DON'T LET THAT FOOL YOU. They are thought criminals who refuse to obey and take orders. Do you want to live next door to such monsters?

    1. Exactly -- they're obviously dangerous, because they own real estate the government could seize. They must be destroyed!

  7. In 1914, the federal government had exactly the same amount of supremacy over states that they do today in 2014. And despite that fact, they had to ratify the 18th amendment to be able to nationally prohibit the drinking of alcohol. If they hadn't, the national ban would have been struck down by the courts as unconstitutional.

    The 18th amendment was wholly repealed by the 21st amendment, returning the nation (with one exception) to where it was in terms of the legality of national prohibition in 1914. That exception is that if a state has a law prohibiting an intoxicant, the federal government is allowed to interdict smuggling, arrest smugglers, try and convict them on federal charges.

    The 21st amendment actually only mentions liquor -- the feds stretched the authority to all intoxicants, but the laws based on the 21st amendment, such as the Controlled Substances Act, all rely on those state prohibitions in order to be constitutional.

    As soon as any state legalized any of those prohibited intoxicants in any way, the constitutionality of the Act evaporated. At least as far as Washington is concerned, there is no federal law prohibiting marijuana.

  8. Another option, rather than going for jury nullification, is for the Five to challenge the constitutionality of the federal laws they are being prosecuted for breaking.

    After all, if the feds had the constitutional authority to nationally prohibit a substance and override state laws to do so, they could have done so in 1918 without needing to pass and ratify the 18th amendment.

    They had exactly the same amount of supremacy over state laws then as they do now, and the relevant parts of the constitution are the same now as when the 18th amendment was wholly repealed.

  9. "Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?"

    "No ... the judge will not allow me."

    1. Yours is perhaps the best comment I've seen in awhile. The court has stacked the deck and has the nerve to say they provide a fair game. That isn't justice, instead it's turned the court into a group of lawless thugs who harm others because they don't like others smoking pot.

      If it took a constitutional amendment to prohibit alcohol, why is pot illegal? The "court" has determined those who got alcholol prohibited, didn't need a constitutional amendment to do it. In other words, the SCOTUS determined the Constitution doesn't protect our freedom and we can only do what is permitted.

  10. Somebody needs to leaflet that courthouse with juror rights pamphlets. Given the horrible response of the plutocrats to popular demand, we must change their laws by refusing to convict. The key is to remains silent about your knowledge of jurors' rights, and to not be bullied by the judge's insistence that you make your decision based upon the bogus laws. Do it very quietly, but very firmly!

  11. Firstname nailed it.
    Was it Shakespeare who penned "The Law is an Ass"? He was right, and these plutocrats are the Assholes right in the middle of the Ass.

  12. Does anyone know what would happen if, during testimony, on of the defendants looked at the jury and said, "Look, the judge won't allow me to say this, but it was for medical use". Yes, they'd no doubt be charged with contempt of court (though any rational person would hold that court in contempt), but what else?

  13. Again, if you where one of the over 60 people who joined the cause Calling 4 Cannabis yesterday, please rejoin!! It was inexplicably canceled in the middle of last night. Please let's get our momentum back and get our members, and more back on this movement!

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