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.