Jurors Can't Know Pot Growers Are Patients

Federal prosecutors are determined to hide the truth when they try the Kettle Falls Five.


Imagine you are a juror in the federal trial of five people charged with growing and distributing marijuana in northeastern Washington. The prosecution cannot present any direct evidence that the defendants sold marijuana to anyone, and the defendants say they were growing all 74 plants for their own personal use. A bit of arithmetic reveals that the total number of plants comes to just under 15 per defendant, which happens to be the presumptive limit for patients under Washington's medical marijuana law. Yet no one says anything about medical marijuana during the trial.

What you don't realize is that the defense attorneys have been forbidden to discuss their clients' reliance on Washington's law, since federal law bans marijuana for all purposes. You also do not realize that each of the defendants faces at least 10 years in federal prison, because their lawyers are not allowed to talk about that either. And despite your suspicion that the defendants were growing marijuana for medical use, you are told that your job is to determine whether they violated federal law, which they undeniably did.

That is the situation jurors will confront when they sit down to hear the evidence against the Kettle Falls Five, whose trial is scheduled to begin on February 23 in Spokane. Larry Harvey and his co-defendants—his wife, Rhonda Firestack-Harvey; Rhonda's son, Rolland Gregg; his wife, Michelle Gregg; and a family friend, Jason Zucker—are gambling that at least one juror will figure out what is really going on and vote for acquittal in the interest of justice, federal law be damned. That is their only hope of avoiding prison unless a federal judge agrees with defense attorneys that the prosecution is barred by a spending restriction Congress enacted last month or the feds suddenly decide to drop a case they have doggedly and inexplicably pursued since August 2012.

On the face of it, the Kettle Falls Five case defies Justice Department policy. Since 2009 the DOJ 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." Deputy Attorney General James Cole confirmed that policy in an August 2013 memo that extended the department's forbearance to state-licensed suppliers of recreational marijuana, provided their activities do not implicate "federal enforcement priorities." As a result of this policy, businesses growing far more than 74 plants operate openly throughout Washington, including the very city where Harvey et al. are to be tried, without federal interference.

That situation makes the feds' persistent pursuit of the Kettle Falls Five all the more puzzling. By federal standards, this would be a small-time case even if the defendants were supplying the black market, and there is no real evidence that they were—no customers, no deliveries, no undercover buys, no neighbors reporting suspicious visitors. All five have medical conditions that their doctors said could be treated with marijuana, including gout, osteoarthritis, wasting syndrome, and chronic pain from severe back injuries. They made no attempt to hide their plants, which they grew outside the Harveys' house in a garden marked by flags bearing the green-cross symbol for medical marijuana. They clearly strove to stay within the state's presumptive limit of 15 plants per patient, although Washington's law would have allowed them to argue that more was medically necessary.

Harvey et al.'s lawyers, in a February 2014 letter to Attorney General Eric Holder, said Michael Ormsby, the U.S. attorney for the Eastern District of Washington, was unimpressed by the evidence of medical use. "In a meeting with the United States Attorney in late 2012," they wrote, "a member of the defense team went to painstaking lengths to explain the exact nature of the defendants' medical marijuana usage. A dual-board-certified doctor who is internationally recognized as being an expert witness on cannabis as medicine described in detail how the amount and various forms of marijuana seized [are] clearly indicative of patient consumption. Unfortunately, the USAO insists on proceeding with this unnecessary indictment at great expense to taxpayers and against the DOJ's direct orders."

In framing that indictment, prosecutors made sure the defendants would qualify for prison sentences of at least 10 years. Speculating about previous harvests, they charged Harvey et al. with growing a total of at least 100 plants, which triggers a five-year mandatory minimum. They also noted that the Harveys, like many people in eastern Washington, had guns in their house, which according to the government means the defendants possessed firearms "in furtherance of" a drug trafficking crime. That qualifies them for another five years, and the two sentences must be served consecutively. Three other charges in the indictment—conspiracy to grow marijuana, distribution of marijuana, and "maintaining a place…for the purpose of manufacturing, distributing, and using marijuana"—could make the defendants' sentences even longer.

Although it seems mindlessly vindictive, such charge stacking is standard operating procedure for prosecutors after a defendant turns down a plea deal. Last year Harvey et al. rejected a deal that would have guaranteed them sentences of no more than three years. "The family is convinced that they haven't done anything wrong," says Phil Telfeyan, a lawyer who represents Rolland Gregg, "so pleading guilty to any federal felony is out of the question. They are good, law-abiding citizens. Why would they go to prison for a year, or even a month?"

The original indictment included an additional count of possessing marijuana with the intent to distribute it, but prosecutors dropped that charge, possibly because raising the issue of intent would have invited rebuttal testimony about medical use. "They removed that charge so they could hide from the jury the medical marijuana [recommendations] that all five of these individuals had," Telfeyan says. "I think the DOJ was worried that when you have an intent-to-distribute charge, motive becomes relevant: Why were these people growing marijuana? They don't want the jury to hear the truth."

Despite repeated assurances from Holder and Cole that they are not interested in targeting medical marijuana users, prosecutors seem determined to see the case through, unswayed even by the news that Larry Harvey has been diagnosed with terminal pancreatic cancer. "You've got a family that's dealing with something very, very difficult in their lives, and they also are facing minimum 10-year prison sentences for doing something that is not illegal under state law," says Telfeyan. "DOJ enforcement priorities at the top level should set guidance, but on the ground individual prosecutors end up having a ton of discretion."

Assuming there is no last-minute change of heart at Ormsby's office, U.S. District Judge Thomas Rice still can prevent a trial if he decides a new congressional edict requires that result. The omnibus appropriations bill enacted by Congress last month includes a rider that tells the Justice Department it may not spend money to "prevent" states from "implementing" their medical marijuana laws. One could argue that the Kettle Falls Five case does not have that effect, since it does not stop Washington from making medical exceptions to its own marijuana laws. But in motions for dismissal filed last month, lawyers for the defendants argue that prosecutions like this one prevent Washington from fully implementing its law.

"Prosecuting persons who may be operating in compliance with state medical marijuana laws prevents states from implementing their own laws in at least three ways," writes Robert Fischer, a federal public defender who represents Larry Harvey. Fischer argues that such prosecutions create uncertainty about whether patients will be able to obtain their medicine, "take away Washington's authority to determine for itself whether someone is in compliance with its laws," and deny the medical value that Congress acknowledged by approving the spending restriction. Fischer also notes that during the House debate over the rider both supporters and opponents said it would bar prosecution of patients who grow marijuana for their own medical use.

Even if federal prosecutors doubt that Harvey et al. were complying with state law, Telfeyan argues in a separate motion, it is not their job to make that call. Congress has told the Justice Department it must let Washington implement its medical marijuana law, which necessarily includes determining who is complying with it. "DOJ's attempt to decide which Washington businesses and citizens violate state law and which do not inserts the federal government into the business of interpreting state law, resulting in disastrous consequences for the authority of local communities," he writes. "Such interpretation of state law by the DOJ is exactly what Congress has prevented in Section 538 of the Appropriations Act."

In a response filed last Thursday, prosecutors argue that Harvey et al. exceeded Washington's limits on "collective gardens," which are allowed no more than 45 plants under a 2011 provision explicitly authorizing such operations "for the purpose of producing, processing, transporting, and delivering cannabis for medical use." But the Harveys never claimed to be relying on that provision; instead they looked to the affirmative defense that patients have had for home cultivation since 1999, when Washington's medical marijuana initiative took effect. The default limit for that is 15 plants per patient.

Even if we assume that five patients growing plants together in one place must comply with the rules for a collective garden (which is not what the law says), that does not mean federal prosecution is appropriate. After deputies from the Stevens County Sheriff's Department found 74 plants on the Harveys' property in August 2012, they consulted with the local prosecuting attorney, who advised them to treat the grow as a collective garden. The deputies therefore confiscated 29 plants, bringing the total down to 45, which they had been advised was the legal limit. They did not arrest the Harveys, who have never faced local charges. As far as local officials were concerned, they were now complying with state law, and that was that. The feds took a different view. According to Fischer and Telfeyan, this is precisely the sort of second-guessing that Congress sought to prevent by telling the Justice Department not to interfere with state medical marijuana laws.

Telfeyan is not very hopeful that Judge Rice—who worked in the office that is prosecuting the Kettle Falls Five from 1987, the year after he graduated from law school, until he was appointed to the federal bench in 2012—will be sympathetic to the argument that the medical marijuana rider compels the Justice Department to drop the case. Assuming the trial proceeds as planned next month, Telfeyan says, "I am hoping that jurors will notice something's not right here"—that they will wonder, whenever Rice stops the defense from eliciting testimony about the defendants' motivation for growing marijuana, "Why are defense attorneys being cut off?"

Even if jurors surmise what is going on, that does not necessarily mean they will vote to acquit. Polling shoppers at a local mall, Telfeyan found that many thought prosecuting marijuana growers was "ridiculous," especially given the current reality of a state-licensed, federally tolerated cannabis industry. But most of the people he buttonholed said they would nevertheless feel obligated as federal jurors to vote "guilty" if the defendants had in fact grown marijuana. Then again, Telfeyan says, "we actually need just one juror to feel convinced they should vote 'not guilty.' If the jury is hung in this case, the DOJ is going to have a really hard time justifying a retrial."

This article originally appeared at

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  1. I'm a Scientist with a strong interest in Cancer research. The evidence of the value of Marijuana as a life saving medicine is now so strong that the need to remove Marijuana from Schedule 1 has become a moral imperative.

    This weekend over 3,000 Americans will die, in pain, of Cancer. Every day after that, 1,500 more Americans will die, after suffering horribly, from it. Every single minute another American dies of Cancer. Every American Cancer patient deserves the right to have safe, legal, and economical access to Medical Marijuana. Every single one.

    Americans who need Medical Marijuana shouldn't be used as "Political Footballs" Please call the Whitehouse comment line at (202) 456-1111 and ask that the President take immediate action to remove Marijuana from Schedule 1 so American Physicians in all 50 states can prescribe it. Go to -- there are two petitions you can sign electronically there, one to take Marijuana off of Schedule 1, the other to legalize it completely.

    1. Marijuana as a life saving medicine

      Citation needed. Pain relief yes, but I have yet to see Cancer heralded as a 'life saving' drug re: cancer or anything else.

      1. I hate that marijuana legalization has been co-opted by the anti-science brigade. Marijuana isn't magic, it's justr a fucking plant. It ?may? have awesome properties, but how about we refrain from calling it Jesus until we have some evidence, mmkay?

        These morons are giving the drug warriors ammunition.

        1. This. When people argue that marijuana is a panacea and a miracle cure, and it turns out not to be, drug warriors will just say, "See? Your promises turned out not to be true. What else did you lie to the public about?"

        2. Agreed. It's like chiropractors claiming regular adjustment prevents the common cold. I'm sure chiropractics has its uses but don't sell it as a cure all. It makes you look dishonest or crazy.

      2. My understanding, which is limited, is that the big deal for AIDS and cancer patients is that marijuanna reduces pain with the side-effect of increased appetite. Getting patients to eat after chemo and such is literally a life saver since they can waste away.

        Again, no expert.

    2. Please call the Whitehouse comment line at (202) 456-1111 and ask that the President take immediate action to remove Marijuana from Schedule 1

      Your heart's in the right place, but calling up the teleprompter in chief to ask him to stop exercising a usurped power is utterly futile.

      Maybe you forgot how that motherfucker snickered when he was asked about the petition on his "" website to stop persecuting medical marijuana patients.

      The only way to end the drug war is to make it more costly for the congress to support it than to end it.


  2. The War on Drugs is evil. Full stop.

  3. Who's the "Marijuana will save 500K people from dying of cancer" troll? Michael Hihn?

    1. Nah, not douchey enough to be Hihn.

    2. You mean the scientist? He's a scientist you can't question him!

      1. In fact, he's a Scientist with a capital "S".


        1. The Science is settled!

  4. They didn't find 100 plants on site, therefore they fail to meet the minimum evidentiary requirement for the charge applied. Not Guilty.

  5. Another problem with the WoD: federal override of state law.

    A question for the resident lawyers. How does FEDGOV justify prosecuting a "crime" that has nothing to do with interstate commerce? Is it just FYTW?

    1. Well, it's a Wickard crime, so yes. (Their self-production of marijuana steals from the banned interstate market, where the feds are able to steal real cash...)

      1. Yeah, they're fucked. The jury is almost certainly filled with sheep.

        A (now former) acquaintance was on a federal jury. She described one of the cases and the jury instructions, apparently about a gun case. She glossed over the part where the Feds could get involved, explaining, "well, the gun was made in a different state, so it includes interstate commerce." Never spoke to her again.

        1. In her defense, the interstate portion of the crime was decided before the jury ever got the case as it was an undisputed fact. The judge determined the feds had jurisdiction and the defense wouldn't be allowed to bring up the issue during trial.

          When you asked, she probably just repeated some stipulated fact she didn't question (and which the defense wasn't allowed to question). The vast majority of people have no idea what federal jurisdiction means an how it's been abused -- and it's extremely unlikely that a juror will make it through the selection process that knows.

          Should we blame jurors for not being properly educated in the crimes they're sitting in judgment of or the system that purposefully keeps them ignorant.

      2. Plus roads. Use of roads, which connect to other roads that cross state lines, to transport plants or seeds or shovels used for production constitutes interstate commerce (the legal term is "instrumentality").

  6. Telfeyan is not very hopeful that Judge Rice?who worked in the office that is prosecuting the Kettle Falls Five from 1987, the year after he graduated from law school, until he was appointed to the federal bench in 2012?will be sympathetic to the argument that the medical marijuana rider compels the Justice Department to drop the case.

    This seems a bit fishy. Of course the prosecution would want a judge sympathetic to their case (as would the defense), but this sounds as if the judge and prosecutor are certainly of the same page, if not working together.

    ... a case they have doggedly and inexplicably pursued since August 2012.

    So the judge was still in the prosecutors office in the same year (not necessarily at the same time) as this case was begun. Is this not a good reason for the judge to recuse himself?

    1. But drugs are evil! We must stop them at any cost! Even if we look like a bunch of morons when these people are languishing in prison while the rest of the country legalizes MJ!

    2. judges are just prosecutors in a black dress.

    3. How could having a judge hearing cases from an office he worked in for 25 years possibly pass the smell test?

  7. OT: I'm not sure if Reason missed this particular anniversary of a few days ago

    On this day, but twenty five years earlier, on January 30th of 1990 the first McDonalds eatery opened in Moscow. It was also the first one in the whole country - in the Soviet Union. They say they were holding talks with Soviet officials about opening this venture for over 20 years - since 1976. Also, they offered 51% ownership of the venture to the Soviet state. Then, on the first day, they were expecting 1,000 people to come to the new place. How many people actually came to taste American food? 30,000 people arrived on the first day, making it the largest restaurant launch worldwide, ever. Thanks to Russian blogger Sergey we've got over 30 photos from this event, where the line of people was a few miles long! Let's see inside:

    1. The news footage from that was quite funny. People eating part of their burger, then carefully wrapping up the rest to take home for later.

      I'm surprised this didn't get more coverage, what with the Putin-is-the-new-Stalin motif in fashion recently.

    2. Looking at the pictures of the lines, my first thought was "They're Soviets, they're used to queueing."

  8. Jury nullification. The law is fundamentally unjust, so just let 'em walk.

    1. At my last job I got jury duty and told HR. The lady said she could write me a letter to get out of it. I told her I just need the day off to go. She was shocked I didn't want to get out of it. Cases like this is why I didn't want out.

    2. At a grand juror selection I attended, the prosecutor asked the pool of prospective jurors series of questions whereby a 'yes' answer would remove a person from the jury pool and silence would be taken as a 'no' answer by all of us. They gave us a brief lecture about the contempt charges they'd hit us with if answered untruthfully.

      His very last question to the group, was whether or not any of us had a philosophical reservation about the drug war that would make us unwilling to indict drug offenders, if so we needed to tell him then and there. No one spoke up and implicit threat was made to any potential nullifiers in the room like myself.

  9. I cant believe people get so excited over some stupid football game.

    1. You're just upset because you lost 20 Bitcoin going against New England.

  10. I hope there's at least one juror who is familiar with jury nullification.

  11. What these guys need is a lawyer at the end of his career, perhaps with terminal cancer - in short, someone who doesn't care about the consequences of upsetting the judge, and who is clever enough to get the needed information to the jury.

  12. federal law bans marijuana for all purposes

    I am really sick of this stupid fucking canard. There is NO CONSTITUTIONAL AUTHORITY for the federal government to ban any drug at all. It took an amendment to ban alcohol, and that amendment has been repealed. There is not, and has never been any authority to ban any other drug. Any act of congress purporting to do so is not a law at all, it is an act of usurpation.


    1. To make it worse, marijuana isn't a drug. It's a fucking plant. Seriously, they have banned a plant.

      Think how ridiculous this is. Somebody can come and take you and lock you in a cage for having a certain plant growing on your property.

      Just fucking asinine...

    2. Correct. The Tenth amendment said so. [Unfortunately abolished by some black robed clowns in Wickard v Filburn]...

  13. I'm no lawyer. Could some informed person enlighten me as to what would happen if one of the accused stated in court that they were medical marijuana users growing strictly for their own use, in compliance with state law?

    The judge couldn't very well sanction the attorneys if one of the accused just blurted this out. He/she could tell the jurors to disregard the statement, and could perhaps hold the blurter in contempt of court, but given what the defendants are facing, that doesn't seem like much reason to keep quiet about this.

    1. As long as the judge doesn't think the lawyer put them up to it.

      "Counselor, control your clients!"

    2. It could very well spark a mistrial. The defense attornies could face disciplinary measures. A mistrial wouldnt neccessarily benefit the defense given what is surely an inordinate financial burden.

    3. Definitely contempt and jail time if the attorney does it; possibly for the defendant it he does it.

      At the very least, the judge will instruct the jury to disregard the testimony/argument and strike it from the record. Or can declare a mistrial.

      1. So the judge declares a mistrial. And what happens during the next trial? Same thing.

    4. Bramblyspam says:" what would happen if one of the accused stated in court that they were medical marijuana users"
      Judge could: instruct jurors to disregard statement; or if judge thinks that statement is to prejudicial could declare a mistrial; or prosecution could move for a mistrial.

      FYI: New Hampshire is the ONLY state where (under state law) jury instructions can include an instruction that jurors have the right and power to nullify/disregard any law that they think if applied to the case at hand would produce an unjust/unconstitutional result.

      New Hampshire State Motto Live Free or Die

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

    "The judge has forbidden me from doing so as telling the whole truth will prejudice the jury in my favor."

    1. Ooh, that would be good. If a defendant stated outright that the judge was gagging him and not letting the jury know what was going on, the judge would throw a tantrum that would make national news.


  16. Despite repeated assurances from Holder and Cole that they are not interested in targeting medical marijuana users, prosecutors seem determined to see the case through, unswayed even by the news that Larry Harvey has been diagnosed with terminal pancreatic cancer.

    Good thing the state has monopolized criminal justice services. This is totally the best humanity can hope for; a monopoly producer, monopoly interpreter and monopoly enforcer of law which I guess makes it the best idea anyone has ever had about the dispensation of justice. No sir, there's no room for improvement upon that model...

  17. "Imagine you are a juror in the federal trial of five people charged with growing and distributing marijuana..."


  18. They should update the sixth amendment.

    "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury "

    How about this?

    "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public kabuki dance, by a jury assured to be ignorant of any facts the State does not want them to know."

  19. How is this judge not violating the defendants' First Amendments with "prior restraint"? He is stripping them of First Amendment rights by preventing them from stating that they are following Washington state's medical marijuana laws. A courtroom is the very place you need 1st, 4th & 5th amendment rights. I don't know what the case law is on this, but it is just one more FYTY.

    I like Jaybirdmojo's reply to the court oath. And this is why we need fully informed juries.

    We need some defendants to sit on the witness stand and state they are following state law, re: laws on medical marijauna. When the judge tells the jury to disregard such statements, the defendants should say "Why are you violating my First Amendment rights in a court of law?"

  20. Judge: "Do you solemnly swear to tell the whole truth and nothing but the truth?"

    Defendant: "No ... your honor will not allow me to."

    1. Justice should always pursue the truth, not attempt to hide it for political and economic measures.

  21. What the Feds are doing is obscene,I have yet to hear of any evidence that these people were selling MJ. When these people go to the witness stand and swear to tell the truth the whole truth and nothing but the truth they should say " You won't let me tell the whole truth".

  22. Naturally. How can you enforce a damned lie when the jurors know the truth? Another federal kangaroo court railroad job. Despicable. Atrocious.

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