Medical Marijuana Growers Escape Mandatory Minimums

Jurors reject four out of five charges against the remaining Kettle Falls Five defendants.



Yesterday a jury acquitted the three remaining defendants in the Kettle Falls Five case of all but one federal drug charge, giving them the best result that could reasonably have been expected, short of a hung jury or outright nullification. Rhonda Lee Firestack-Harvey was convicted, along with her son, Rolland Gregg, and daughter-in-law, Michelle Gregg, of growing more than 50 but fewer than 100 marijuana plants on property that she and her husband, Larry Harvey, own in rural northeastern Washington. There were 74 plants in the outdoor garden, shared by the Harveys, the Greggs, and a family friend, Jason Zucker, all of whom have doctor's recommendations to use marijuana for symptom relief. The jurors, who deliberated for about eight hours, rejected the government's attempt to count plants grown in previous years as part of the same cultivation charge, which would have raised the total above 100, the threshold for a five-year mandatory minimum sentence. They also rejected the claim, based on guns owned by the Harveys, that the defendants possessed firearms "in furtherance of" a drug trafficking crime, a charge that carries an additional five-year mandatory minimum.

Firestack-Harvey and the Greggs were not allowed to tell the jury why they were growing marijuana, since that is irrelevant under federal law. Although the total number of plants was within Washington's presumptive limit of 15 per patient, federal prosecutors argued that it was more than the defendants could possibly have consumed on their own. The government said they must have been selling the surplus, but it had almost no evidence to support that claim, which presumably is why the jury acquitted Firestack-Harvey and the Greggs of distribution and a related conspiracy charge. It also acquitted Firestack-Harvey of maintaining a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana.

"The jury has confirmed what we knew all along," said Phil Telfeyan, Rolland Gregg's lawyer. "This was a family doing nothing more than growing medical marijuana for themselves." Jeff Niesen, Firestack-Harvey's lawyer, called the outcome a "bittersweet" victory. "It's not a complete win," he told the Spokane Spokesman-Review. "But it's the best we could have hoped for with a criminal conviction."

Sentencing on the cultivation charge is scheduled for June 10. Under federal sentencing guidelines, 74 plants would be treated like 7.4 kilograms of marijuana, which corresponds to a "base offense level" of 12. The recommended sentencing range for someone with no criminal history at that level is 10 to 16 months, but U.S. District Judge Thomas Rice can depart from that range if he thinks it's appropriate. At sentencing, unlike during the trial, Firestack-Harvey and the Greggs can seek lenience by describing the medical conditions they were treating with marijuana. "Now we get to tell our truth," Firestack-Harvey told The Stranger's Heidi Groover.

Jason Zucker, who faced a potential 15-year mandatory minimum because of a prior marijuana conviction, agreed to testify for the prosecution and in exchange got a sentence of 16 months. Prosecutors dropped Larry Harvey from the case because he has Stage IV pancreatic cancer.

"The jury's verdict in this case sends a strong rebuke to the federal government," Telfeyan said. "Stop messing around with what medical patients and these states are doing."

NEXT: A. Barton Hinkle on Begging and the First Amendment

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  1. Who do the prosecutors brag about this to? Who looks at this conviction and then says “attaboy”? Who looks at this resume and says “huh, you put these people away… yeah, we want someone like you on our team”?

    1. Other prosecutors?

    2. Voters when they run for AG or governor? With vague numbers about how many drug dealers they got convicted. Or maybe to bosses who need convictions under their belt when they run for higher office.

    3. Their bosses at the DoJ?

    4. This is what I have been seeing a lot of lately. Completely innocent people (in terms of mens rea) who are CLEARLY not Tony Montana being threatened with MASSIVE jail time by prosecutors who , apparently, have no problem ruining a random law-abiding citizen’s life. Remember the single mom who was being prosecuted FULLY by New Jersey for carrying there because she didn’t know because she lived in PA? OR the OTHER guy in New Jersey who was carrying a 250-year old antique and was arrested by 4 deputies?!?
      What the fuck is wrong with these prosecutors? Does anyone ever say to them “Why are you going after these people? They are NOT criminals!”

      1. Laws against things are a lot easier to enforce and prosecute than laws against actions. Murder — you have to gather all sorts of forensic evidence and tie it together in some coherent story. Drugs — just show the drugs and say who had it.

        And Federal murder prosecutions are pretty rare. It’s usually left to the states. Same for all real crime. The feds only get in on the victimless stuff where property is evil.

        If your reviews and promotions were based entirely on number of convictions, which would you chase?

    5. They are sociopaths with zero empathy. They don’t need to brag to anyone to feel good about winning and gaining more power over the misery and suffering they cause to others.

  2. OK, maybe I’m missing something, could someone who is more familiar with the federal drug statutes tell me:

    If they’re charged with trafficking, and the issue is whether they have the intent to traffic based on how much dope they had, then how can they *not* defend themselves by saying they had some other purpose in growing the weed?

    1. Exactly

      1. The probative value is outweighed by predjudicial impact on prosecution.

        “Your honor, we’ll never get a conviction if they can claim to be old, sick people growing it for medicine.”

    2. Affirmative defenses are only for agents of the state.

    3. Because the judge told them not to.

      And due process is a bad joke in this country.

      That’s why.

      You can be sure the judge is pissed about this verdict, and I would expect it to throw the book at them in sentencing.

      1. Shit, I was just thinking that they had a good chance of getting off light. After reading your comment though, I now think I wasn’t considering all the facts.

        There is no wrath like a statist scorned….

    4. Because FYTW.

      1. BFYTW

        This. Always this. They do it because they can.

    5. Because giving some of it to other people is the same as trafficking, legally.

  3. Prosecutors dropped Larry Harvey from the case because he has Stage IV pancreatic cancer.
    Uh, that irrelevant under federal law. SOFT ON CRIME.

    1. What’s pathetic is I guarantee Harvey wasn’t dropped from the case for humanitarian reasons but rather evidentiary ones. The last thing the feds wanted was a clearly sick man agreeing to testify and the jurors connecting the dots.

    2. There goes the promotion.
      No one wants a prosecutor that goes soft over a little cancer.

  4. “The defendants were not allowed to tell the jury why they were growing marijuana, since that is irrelevant under federal law.”

    “So, Agent Smith, what makes you so certain the defendants intended to traffic?”

    If you can’t rebut his response with facts, seems to me that speaks to the Sixth Amendment right to confront witnesses–at the very least.

    1. Yes you would think that the state would have to provide some evidence that they actually “trafficked” the dope. Did they find at least one snitch who was willing to perjure himself and claim he bought it from them?

      Or did the judge allow the state to claim that the trafficking was between the defendants?

      1. Possession above some arbitrary amount is by itself considered to be proof of trafficking. Good thing they had a jury trial, because a judge would have considered the drugs to be all the evidence needed for a trafficking conviction.

        1. It’s truly amazing how thoroughly the drug war has corrupted jurisprudence.

          Now that the drug war is ending, we’re going to have to undo ALL of this shit.

          It’s like the end of Jim Crow–but maybe bigger since it isn’t mostly confined to the South.

          And maybe harder since nobody’s seriously considering ‘end the drug war’ legislation comparable to the Civil Rights Act.

  5. the government’s attempt to count plants grown in previous years as part of the same cultivation charge, which would have raised the total above 100, the threshold for a five-year mandatory minimum sentence.

    Public Servants. Taking one for the team. The Heroes. Making the streets safe. Call things by their proper names: Sadists.

  6. God dammit reason, fix your fucking website already.

  7. How convenient for agents of the state that defendants are barred from defending themselves with the facts of the case. It’s not good enough that the have the brutal power of the state behind them at all times, they insist that the little guys they fight be bound and gagged in the arena.

  8. I wish a debilitating disease which defies “conventional” medicine on all these federal lower-than-scum. I’m surprised they declined to prosecute the guy with stage 4 cancer, seems right up their alley.

    1. I have no doubt the decision to allow him to die outside of a cage was a very contentious one within the prosecutor’s office.

  9. A White House aide accidentally jostled President Obama’s elbow. “Pardon me,” she said. “No,” the president replied.

  10. I thought there wasn’t any $$ in the federal budget for this kind of nonsense…If there is any justice these people should be free to go,but I fear that the feds are going to be looking for something they can point to as a justification for this expenditure.

  11. I’ve made $64,000 so far this year working online and I’m a full time student. I’m using an online business opportunity I heard about and I’ve made such great money. It’s really user friendly and I’m just so happy that I found out about it. Heres what I’ve been doing,,,,,

  12. The first amendment says CONGRESS shall not . . . . the judiciary is free to limit speech in courtrooms without restraint. Ironic, isn’t it? When a citizen is under attack by the State is when he is forbidden to make arguments against the State’s case. I’ve never heard of an exception. Surely somewhere a legislature has attempted to alter rules of evidence – the law was probably thrown out by the Supreme Court of that state.

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