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Medical Marijuana Growers in Washington Face Prison

Three of the Kettle Falls Five are scheduled to be sentenced this week.

During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced on Thursday.

Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey's home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced this week, the U.S. Attorney's Office for the Eastern District of Washington charged Firestack-Harvey's husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor's letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history.

Although no one was supposed to talk about medical marijuana during the trial, the prosecution kept stumbling onto that taboo subject, because it was clearly relevant to the question of where all the pot went, which was central to the case. Even with Zucker's help, prosecutors had no direct evidence of distribution. They were therefore forced to argue that the defendants must have been selling marijuana because they were growing too much for their own personal consumption.

The government counted 74 plants. According to the defense, the feds double-counted some plants with two stalks emerging from the same root structure. The defendants' lawyers say the correct number is 68. Either way, the total was below Washington's presumptive limit of 15 plants per patient. Testifying for the defense, Jeremy Kaufman, a cannabis consultant, said the number of plants found on the Harveys' property did not seem excessive, especially since only a small part of each plant is usable and may be consumed in the form of extracts, edibles, and juice. Kaufman mentioned that he himself grows 150 plants for his own use. On cross-examination, Assistant U.S. Attorney Earl Hicks asked how on earth Kaufman managed to consume that much cannabis, and Kaufman explained that he used it to relieve the symptoms of several medical conditions.

Whoops. Meghan Ridley, who covered the trial for Dope magazine, noted that Hicks "was forced to stumble and retract questioning on numerous occasions during the cross and reexaminations" of Kaufman. "It was humorous to see the prosecutor having to cut himself off and not ask the obvious questions," recalls Phil Telfeyan, Rolland Gregg's lawyer.

Still, the defendants' motivation for growing marijuana was hardly a secret. Not only did Hicks inadvertently elicit testimony about medical use, but several jurors said during voir dire that they had read press reports about the case, all of which mentioned that the defendants had doctor's recommendations. When a friend of Rolland Gregg's who testified for the defense mentioned that both of them had broken their backs, Hicks objected, which prompted U.S. District Judge Thomas Rice to agree, in front of the jurors, that "none of the medical issues" should be discussed. Finally, a visibly ailing Larry Harvey was in the courtroom for much of the trial.

In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. "They all saw what was going on," Telfeyan says. "They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use."

The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys' hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge—cultivation of more than 50 but fewer than 100 plants—does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs. He can even consider the reason they were growing marijuana.

"But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today," the defense says in a sentencing memo filed last week. "Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration."

The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months, based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012. To give you a sense of how realistic the government's assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure "flies in the face of both empirical reality and legal precedent," since "numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana." At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce "1000 kilograms per plant." I assume that's a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.

The prosecution's insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.

Even if some of the defendants' marijuana was diverted to recreational users—an allegation that the government did not come close to proving—this would be a small-time operation. "Federal prosecutors appear to have a practice of only charging cases that would meet the mandatory minimum provisions for growing over 100 plants or over 1,000 plants," the defense attorneys note. Furthermore, the Justice Department has indicated that prosecuting people who grow marijuana in compliance with state law is not a good use of federal resources unless the operations implicate one of eight "enforcement priorities," none of which is involved in this case.

That policy applies to recreational as well as medical marijuana. In fact, U.S. Attorney Michael Ormsby is trying to send Firestack-Harvey and the Greggs to prison for growing about 70 plants while giving a pass to much larger operations serving Washington's newly legal recreational market. "It seems like every week there's a new cannabis conference of some sort, about the recreational market," says Rolland Gregg. "As we watch that and are facing sentencing, it's pretty ironic." The defense attorneys point out that "hundreds if not thousands of individuals across Washington are committing the same offense without even the prospect of jail time, not because they are stealthily evading federal authorities, but because the federal prosecutors as a matter of policy are choosing not to prosecute them."

Ormsby's dogged pursuit of this case also seems inconsistent with a congressional directive prohibiting the Justice Department from spending money to block implementation of state medical marijuana laws. That measure was included in the omnibus spending bill enacted in December. In an April 8 letter to then-Attorney General Eric Holder, the measure's sponsors, Reps. Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.),  emphasized that "the purpose of our amendment was to prevent the Department from wasting its limited law enforcement resources on prosecutions and asset forfeiture actions against medical marijuana patients and providers, including businesses that operate legally under state law." They urged Holder to "bring your Department back into compliance with federal law by ceasing marijuana prosecutions and forfeiture actions against those acting in accordance with state medical marijuana laws."  This week the House of Representatives voted to renew the Rohrabacher-Farr Amendment for another fiscal year.

Judge Rice, who rejected a defense motion arguing that the rider compelled Ormsby to drop the case, does not seem inclined to think the prosecution is a waste of Justice Department resources. Before his appointment to the federal bench in 2012, he worked for 25 years in the office that Ormsby now heads. "He was the criminal chief and the first assistant U.S. attorney in that office," Telfeyan says, "so he is very sympathetic [to the argument] that these DOJ-issued memos are not binding and don't prevent U.S. attorney's offices from prosecuting any federal crimes that they want."

That does not necessarily mean Rice will agree to put Firestack-Harvey and the Greggs in prison for three or four years. "We've got a letter-writing campaign," says Rolland Gregg, "and we made it pretty easy for people to send a letter to the judge by just filling out their information on the website, and it automatically creates a PDF. We've gotten over 1,000 letters in support, and we're continuing to try to raise awareness of what's happening."

Although I have been writing about this case since last May, what's happening is still not clear to me. It seems the most plausible explanation is that Ormsby thought the case was bigger than it was and is reluctant to admit his mistake. Prosecutorial pride is no friend to justice.

Update: Sentencing of Firestack-Harvey and the Greggs has been rescheduled for October 2.

This article originally appeared at Forbes.com.

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  • PM||

    Although I have been writing about this case since last May, what's happening is still not clear to me.

    As a working hypothesis, I'd say federal prosecutor wants to make sure all of the plebs know to stay in their place and respect his authoritah.

  • Charles Easterly||

    The goal seems more about punishing people than enforcing actual law, so I am inclined to agree with you PM.

  • Cyto||

    Federal prosecutors have a particular mentality. They don't think in terms of justice - they think in terms of winning cases. Having spoken with a few friends with the job over the years it has become apparent that once they are on the case, they are like a dog with a bone. They will not give an inch as they gnaw on that thing. They'll use every ounce of creativity they have to get as many charges piled on, using any creative legal reasoning they can dream up.

    This mindset, combined with congress' love of ever-increasing mandatory sentences allows them to stack up 50 year minimum sentence possibilities and then graciously offer a plea deal for 3 years on a minor assault case.

    I never heard one of them talking about defendants in human terms. They really do talk like a TV cop show, colloquially calling them scumbags, etc. Instead of "This guy Perkins got caught skimming cash" it was alway "this scumbag got caught skimming cash".

    One group I talk with is mostly higher-ranking police officers plus this one Federal prosecutor. Even the cops recoil in horror at the prosecutor's callous attitude.

  • bacchys||

    The law industry is the most corrupt in the Republic, and prosecutors are the worst of the lot.

  • RBS||

    It's remarkable that the people prosecuting marijuana "crimes" almost always have a "science fictional" notion of how marijuana actually works. I remember when I was clerking at the prosecutor's office they had this huge, game changing drug bust that in reality was just a handful of bikers with maybe 6 or 7 or so plants and some pills.

  • Bo Cara Esq.||

    It's always interesting to watch the many, many ostensible libertarians here who in immigration threads condemn moves like Obama's directed non-enforcement of those federal immigration laws act all up in arms over a prosecutor taking the lines about 'national sovereignty' and 'the law is the law' they toss out seriously in cases like this one. Gives some credence to the oft heard charge (that I always thought lazy) that libertarians are just Republicans who aren't old and think pot is OK.

  • ||

    One of these things is not like the other.

  • Bo Cara Esq.||

    Really? It's interesting that the justifications for action are so similar then ('the law is the law, and they're breaking it'; 'national sovereignty!', etc).

  • sarcasmic||

    Poor Bo is analogy-challenged.

  • Bo Cara Esq.||

    Perhaps an analogy proficient person such as yourself could point out where its inapt then? I'll wait.

  • sarcasmic||

    ...

  • bacchys||

    The analogy is dead on. You might argue the harm of illegal immigration is greater then recreational and medical marijuana production and use, but that's really just a policy difference.

    The other difference is that Obama *could* simply drip marijuana off the drug schedules or lower them to where this kind of action by his corrupt, unethical DAs couldn't happen. But those are differences in kind, just of degree.

    The President has broad discretion in how he is to "faithfully" execute the laws. In fact, other than Congress and the impeachment power there is no check other than himself on determinations to prosecute someone like an illegal immigrant or medical marijuana producer. I'm including deportment in that "prosecute."

  • sarcasmic||

    See Slocum's response below.

  • Slocum||

    The difference is that states do not control immigration policy but they are the main locus of criminal law -- the federal government not only has no business enforcing pot laws in states where it is legal, the federal government really has no business *having* pot laws to enforce. (I say this, BTW, as one of those 'open borders' libertarians who would like to see a great deal more immigration than we now have)

  • macsnafu||

    "Gives some credence to the oft heard charge (that I always thought lazy) that libertarians are just Republicans who aren't old and think pot is OK."

    It's not clear if you are applying this to *all* libertarians, or just the "ostensible" ones who are against immigration. Because I believe more libertarians than not are for open immigration.

  • straffinrun||

    This Firestack-Harvey character sounds like trouble.

  • Inigo M.||

    This prosecutor deserves the Javert award for his dogged and obsessive pursuit of innocents. Is it too much to hope that once he realizes he hounded a nice family who committed no crime (even by drug warrior standards) his shame will cause him to jump off a bridge?

  • ||

    Unfortunately, yes.

  • Bo Cara Esq.||

    "who committed no crime (even by drug warrior standards)"

    But they have committed a crime. Unfortunately, regardless of what state or local laws on the subject, there's federal law on the books too. And these laws can't just be waived by the executive deciding not to enforce them, you know.

  • Bo Cara Esq.||

  • Loki||

    Federal prosecutors have no shame. Otherwise they wouldn't have chosen to be federal prosecutors.

  • Charles Easterly||

    "Many prohibitionists often like to say that the government is simply going after the bad guys and not medical marijuana patients.

    However, in this case, you had the federal government raiding the homes of medical marijuana patients who were abiding by state law and causing harm to no one. After three years of hell and court dates, all the government has to show for it is one measly cultivation charge. Maybe now, the government will think twice before harassing innocent people."

    Dream happy dreams, Mr. Sumner.

    http://www.mjinews.com/tag/rho.....ck-harvey/

  • straffinrun||

    Maybe not.

  • Cyto||

    Think twice. That's funny stuff. Heh.... twice! Yeah, that's what the take-home is from this case for the DOJ.

    I think the judge signalled his propensity for lenience when he disallowed any testimony about medical conditions or medical marijuana when it was particularly germane to the case (in terms of "why would you have this amount of marijuana"). Somehow I don't think he's likely to say "they've been through enough" as much as he's likely to say "I realize you skated on all of the real charges here, so I'm going to make sure you get a penalty more in line with your real crimes".

    I think there take-home will be "prosecute anyone you like, you'll get a friendly hearing from this judge!"

  • Rich||

    Firestack-Harvey and the Greggs

    Awesome band name.

  • Eggs Benedict Cumberbund||

    This is the money quote:

    the federal prosecutors as a matter of policy are choosing not to prosecute them."

    Gov by fiat, whim, etc. Progressive bullshit at its finest.

  • Rich||

    The government counted 74 plants. According to the defense, the feds double-counted some plants with two stalks emerging from the same root structure. The defendants' lawyers say the correct number is 68. Either way, the total was below Washington's presumptive limit of 15 plants per patient. ... The one remaining charge—cultivation of more than 50 but fewer than 100 plants—does not carry a mandatory minimum penalty ..."But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today"

    This "number of plants" bullshit is just ridiculous.

  • Florida Man||

    Come on Rich, this is common sense. It's like tomatoes. Every tomato on a vine is a separate plant. Like every leg on a dog is a separate dog. Sheesh.

  • Rich||

    You call *that* "common sense"? Every *seed* is a separate plant!

  • Florida Man||

    Hung upon my own retard.
    *hangs head in shame*

  • Rich||

    And why does anyone *need* more than one tomato plant?

  • Florida Man||

    Capresi salads?

  • gaoxiaen||

    Spaghetti sauce?

  • Eman||

    im a medical mj patient in Massachusetts and, long story, some cops found my six plants (still havent opened dispensaries after three years which is kinda shameful) which is one under the legal limit, but they still cut em down and charged me anyhow. my hearing is tomorrow, so hopefully the charges will just get tossed, but i had been growing those girls for like 3 months, so that's a lot of time and a fair amount of effort (and a little bit of money) down the drain. im so glad I live in a free country

  • Eman||

    and, based on personal experience (which i know is anecdotal, fuck you), trying to limit the amount of usable weed by plant count is absurd. you can "screen of green" one plant to produce just as much as ANY amount of individual plants.

  • straffinrun||

    Good luck tomorrow. Been there.

  • DEG||

    Good luck

  • John C. Randolph||

    If I were ever charged the way the Greggs have been, I would damned sure tell the jury that it was for medical purposes, and if the judge didn't like it, he could declare mistrials until he drops dead.

    I would also tell the jury that there is NO constitutional authority for marijuana prohibition, so any act of congress purporting to do so is not a law at all, but an act of usurpation.

    Fuck that judge and his goddamned kangaroo court.

    -jcr

  • Loki||

    It seems the most plausible explanation is that Ormsby thought the case was bigger than it was and is reluctant to admit his mistake.

    Actually I think it may also be likely that at least one of them pissed off someone in the federal prosecutors office and this is a revenge prosecution.

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  • John C. Randolph||

    One of these days, I want to hear a defendant ask a judge, with the jury within earshot, "Are you going to let me make my argument, or are you done pretending that this is a court of law, you motherfucking government shyster?"

    -jcr

  • Stevecsd||

    By preventing the defendants from presenting & bringing up the issue that they were following state law the judge is violating their First Amendment rights. This is censorship by the government. I wish one of these defendants would pursue this issue. When a defendant in Federal court brings up the issue of following state medical marijuana laws or in Washington & Colorado, recreational use laws and the judge says you can’t discuss that, the defendants need to object on the grounds that the judge is violating their First Amendment rights. Then they can appeal at the appellate level. Let the federal prosecutor & federal judge defend their violation of the defendant’s free speech rights.

  • Tionico||

    also be sure to bring up the Tenth Ammendment that clearly puts this issue outside the jurisdiction of FedGov. Art 1 Sectin V!!! names the few and specific area of responsibility given to FedGov, and what we do/do not put into our bodies is NOT amongst them. Thus that authority is reserved to the states, or to the people. The State of Washington, through the clearly expressed voice/will of her people have determined that FedGov's uncostitutioinal rules on that subject are not binding within Washignton State.

    Thejudge, in refusing to allow any such testimony, violated their civil liberties under the Constitutioin.

  • Stevecsd||

    By preventing the defendants from presenting & bringing up the issue that they were following state law the judge is violating their First Amendment rights. This is censorship by the government. I wish one of these defendants would pursue this issue. When a defendant in Federal court brings up the issue of following state medical marijuana laws or in Washington & Colorado, recreational use laws and the judge says you can’t discuss that, the defendants need to object on the grounds that the judge is violating their First Amendment rights. Then they can appeal at the appellate level. Let the federal prosecutor & federal judge defend their violation of the defendant’s free speech rights.

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  • Tionico||

    where was the county sheriff at the time of the bust? HE is the chief law enforcement officer in his county, and should have interposed. Seems if the sentence is severe (more than a month or so of jail tme) an appeal might be in order. Too bad the jury did not do ALL of their job well... they should have acquitted on every count on the basis that the federal law is nt binding upon states that have nullified it, such as Washington. The Constitution makes no provision for FedGov to have any control over what we do or do not put into our bodies. Tose issues are reserved to the states, or to the people, and in the case of Washington, the State, by the clear voice of her peoiple, have cleary retained that right.

  • gaoxiaen||

    So, the judge basically ruled that the defendants could not use an affirmative defense?

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