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Facing 15 Years to Life, Medical Marijuana Grower Testifies Against His Friends

The Kettle Falls Five trial begins with a defection.

CNNCNNHours before the trial in the Kettle Falls Five case began in Spokane last Wednesday, one of the four remaining defendants reached a plea deal with federal prosecutors, agreeing to testify against the other medical marijuana growers. Because of a prior marijuana conviction, Jason Zucker faced anywhere from 15 years to life in prison, so he was under a lot of pressure to cooperate with the government. Under the plea deal, he will serve just 16 months. Yet prosecutors, who have argued that Zucker and the others were growing too much marijuana for their own use and must have been selling some of it, do not seem to have helped their case much by obtaining his testimony.

Taking the stand on Friday, Zucker described how he had agreed to help Larry Harvey, who was recently dropped from the case because he has terminal cancer, and  the three remaining defendants—Larry's wife, Rhonda Lee Firestack-Harvery; her son, Rolland Gregg; and his wife, Michelle—grow marijuana on the Harveys' property in rural northeastern Washington, near Kettle Falls. The defendants, all of whom had doctor's recommendations, say the marijuana was purely for their own medical use, and the number of plants they grew was below Washington's presumptive limit of 15 per patient. They are not allowed to talk about their motivation for growing marijuana in court, since it does not matter under federal law, and the defense was not allowed to ask Zucker about medical use. Still, he did not say anything that contradicted his friends' account. Here is how The Spokesman-Review, Spokane's daily newspaper, summarized Zucker's testimony:

Zucker told jurors he didn't know what the other members of the family did with their portion of the marijuana grown near Colville in 2011. He said he took his 20 to 30 pounds back to Seattle, where he smoked most of it himself and gave the rest to friends and family members. Zucker said he'd smoked weed since he was 17, and burned through roughly an eighth of an ounce per day before quitting two years ago after his indictment. Police found 8 pounds of marijuana remaining from the Colville grow in his Seattle residence when they arrested Zucker in February 2013.

"I know a lot about growing plants, and I'm good at it," said Zucker, when asked by Assistant U.S. Attorney Caitlin Baunsgard why he was initially approached to help the family set up an operation on their property.

Phil Tefleyan, a Washington, D.C., civil rights attorney hired by Rolland Gregg, pressed Zucker on his decision to testify against the family as part of a plea deal inked hours before the trial began Wednesday. He also asked Zucker if he had any evidence the family used the three weapons found on the property—a bolt-action hunting rifle, a 12-gauge shotgun and a Ruger 9 mm pistol—to protect their marijuana, or if he knew they were distributing it to other people.

"I didn't ask," Zucker said. "It wasn't related to my business."

It does not sound like Zucker provided much support for the prosecution's theory that Firestack-Harvey et al., who are charged with distribution as well as cultivation, were in the marijuana business. Prosecutors have presented evidence that the defendants paid people to trim their plants, which is consistent with a commercial operation but does not necessarily show they were selling marijuana. Conspicuously absent is any evidence of actual sales or deliveries. Even without a conviction on the distribution charge, however, the defendants face a five-year mandatory minimum for growing 100 or more plants (assuming the jurors accept the government's argument that plants grown in previous years should be counted toward the total).

The presence of guns in the Harveys' home, although not at all unusual in eastern Washington, potentially doubles that mandatory minimum sentence under a provision aimed at people who possess a firearm "in furtherance of" a drug trafficking crime. That is why Tefleyan asked Zucker whether the Harveys had guns to protect their marijuana crop. But even if that was not their main motivation for owning the guns, those weapons potentially could have been used to ward off marijuana thieves, which might be enough for a conviction.

By admitting that they grew marijuana, regardless of their motivation, Firestack-Harvey and the Greggs are admitting that they committed a federal felony. No references to state law are permitted during the trial, which is why Tefleyan got in trouble for asking a prosecution witness about the difference in price between "black market" and legal marijuana. The jurors surely are aware that marijuana is now legal for recreational as well as medical use in Washington, but that fact is irrelevant under federal law. Nor is the defense allowed to tell jurors that Firestack-Harvey and the Greggs face at least 10 years behind bars if convicted of the cultivation and weapon charges. Hence their only hope of avoiding prison lies with jurors who figure out what is going on and refuse to convict. It only takes one.

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  • R C Dean||

    Going through the list of all the things that the defendants are prohibited from saying, how is this not a kangaroo court?

  • Paul.||

    By the lack of actual kangaroos?

  • Plàya Manhattan.||

    They've all been tried and convicted.

  • WTF||

    How is being denied the right to make a truthful statement in your defense in any way constitutional?

  • ||

    Because fuck you, that's why.

    I know we "joke" about this a lot, but it's really a perfect distillation of the attitude of the government. The government has decided it wants to fuck these people. And it's not going to let something like a constitution get in its way. This is what all governments become.

  • John||

    Yes. Someone in the US Attorney's office decided these people were guilty. Everything else has been just ensuring that end.

  • WTF||

    I know "fuck you that's why", but I was wondering what is the idiotic fig leaf they use to pretend that prohibiting a defendant from making a true statement in their defense is allowable under the constitution? Or do they not even bother?

  • ||

    Ask the lawyers and the judge. They'll explain some tortured bullshit "reasoning". Basically they can do anything they want as long as they come up with some bullshit that is even slightly plausible and they have a complicit judge. Which is most of the time.

  • ||

    I thought their first amendment rights were intact until they are convicted. In fact, I would think this is far and away the most important exercise of first amendment rights that a person use.

  • Justin Hale||

    They need to add a gag to the "lady Justice" along with the blindfold.

  • sarcasmic||

    I think the rationale is that because this is a federal court, and they're being tried under federal law, that state law has no bearing on the facts of the case.

  • Agammamon||

    The reasoning is what is 'relevant'.

    While it sucks here - keep in mind that without this sort of constraint, most trials would be subject to filibusters, going on as long as the defendant could drag them out.

  • Justin Hale||

    No wonder the American citizens are taking the same attitude towards the government.

  • Anonymous Coward||

    Because "Fuck You, That's Why."

    For the non-cynical/non-sarcastic answer, statements made in court are governed by the rules of evidence and the rules of criminal/civil procedure.

    You might be telling all sorts of truths. If they are hearsay, or not in the pleadings, or not made in a timely manner, then you are barred from bringing them up.

  • thom||

    I understand why this is relevant for the prosecutors, judge, hell, even the defense lawyer. After all, they all basically chose to be there. But it seems odd that a defendant is not only forced to defend their life and property, but to do it under somebody else's rules. It's not like they chose the venue.

  • ||

    I am puzzled as to how they can be prevented from saying anything. It is their defense they should formulate it, not the prosecution.

    What is the point of having a trial?

  • sarcasmic||

    What is the point of having a trial?

    Appearances.

  • ||

    Also, isn't the government alleging intent here? The prosecution is allowed to discuss intent, but the defendants cannot?

    This just looks worse the more I look at it.

  • Warren's Strapon||

    Land of the free!

  • Raston Bot||

    a bolt-action hunting rifle, a 12-gauge shotgun and a Ruger 9 mm pistol

    That's the standard three guns that everyone owns. Deer, turkey, self-defense. Who doesn't have these three firearms in their house?

  • Paul.||

    I lack the bolt-action hunting rifle.

  • DJK||

    Can someone explain to me why a bolt action is favored over a good semi-auto rifle? I understand the difference in malfunction potential, but is it really that big a deal? Has anyone honestly ever had that frequent of jams or the like? And if that actually does happen, it's not exactly life or death in most hunting scenarios.

  • R C Dean||

    Bolt actions are typically more accurate.

    As far as reliability goes, most big-game hunting trips offer one (1) shooting opportunity, at most. A failure of your weapon can mean the whole trip is wasted.

  • R C Dean||

    Clicked too soon:

    As a real life example, I was hunting deer awhile back, and forgot to bring the keys to unlock the gun case.

    I decided to poke around until dark anyway. Saw the one and only shooter deer of the trip that day. Went home empty handed.

  • DJK||

    Fair enough re: the reliability. I guess I've never really gone "big game" hunting. The only large animal I ever shot was deer in northern Minnesota, and they're not exactly uncommon in that part of the country.

    As far as accuracy, though, I don't believe it. I've often heard that this is the result of better trigger action on a bolt action. Sounds to me like people are just buying semi-autos with crappy triggers.

  • sarcasmic||

    A quick google claimed that bolt action is more accurate because of better muzzle velocity, being that there's a tighter seal allowing for higher pressure and some energy being used to power the reloading mechanism.

    I still think it's mostly mental. You only got one shot. Make it count.

  • sarcasmic||

    some no

  • Scarecrow Repair||

    The main alleged difference is that a semi-auto has moving parts that can wiggle the barrel a teensy bit before the bullet has departed.

    But I figure that gas port is so close to the muzzle that the time it takes the gas to get down the tube to the piston or bolt itself is comparable to how long it takes the gas to also push th ebullet that last little bit of barrel. If there is a bit of wiggle, I'd like to see some actual proof rather than just supposition and theory.

  • ||

    If you look on youtube there are slowmos of various guns being fired. A particularly bad one is the Ruger Mini-14. You can plainly see the barrel squirming around like a snake. I will see if I can find it and link it.

  • ||

  • Scarecrow Repair||

    But all that shake is after the bullet has left the barrel.

  • sarcasmic||

    I think it's mental. With bolt action it isn't as easy to get in a quick followup shot, so you are more likely to make the first one count.

  • Raston Bot||

    Maybe a little history plus an obsessive focus on a quick, clean kill with one shot.

  • ||

    Here is your answer. It is a bit of a cargo cult, really.

    For greatest accuracy the cartridge needs to seat the shoulder portion of the case tightly and the bullet should extend forward and barely touch the rifling. If the bullet exits the case and there is room enough for it to make a run at the forcing cone it probably will not enter the rifling perfectly straight.

    If you want that you aren't going to get it off of the shelf. You are going to reload your own custom ammo to fit your rifle which you are also going to get a gunsmith to tune for you. Controlled feed, trigger job , etc.

    I shoot a Ruger no.1 as my primary when not hunting in brush and make my own ammo. It is crazy accurate out further than I can see. In fact, the gun is far more accurate than I can shoot even on a good day.

  • ||

    Other type actions that feed the ammo, especially autos, have a slightly looser chamber so that the feeding will be reliable. The extreme case are military guns. They have way-oversized chambers so that it will function even with mud, sand, water, etc in them. You lose accuracy like that, but the military guns make up some of that by having thicker softer brass so that it expands to the larger chamber. (Think you are getting a deal on military brass? You aren't. that shit is a serious pain in the ass to resize, it work hardens and splits sooner too.)

    My close range gun is a winchester 94 in 375 winchester. The only time I miss with it is when the sights are not on target. It is plenty of accuracy for me.

  • Paul.||

    Can someone explain to me why a bolt action is favored over a good semi-auto rifle?

    The semi-auto rifle lacks a sporting purpose. Are you new here?

  • Wasteland Wanderer||

    They're light, relatively cheap, and accurate. With a semi-auto, you can have two of those attributes, but not all three.

  • ||

    My Ruger is a .45

  • WTF||

    My Glock is a .45 and my Sig is a .40 S&W.

  • sarcasmic||

    I lack the long guns, and my pistol is a .38SP.

  • ||

    But what does your husband shoot?

  • sarcasmic||

    Really? My old (serial dates it to around 1950) Model 10 that was likely carried by a cop or a soldier is a chick gun?

  • Paul.||

    The defendants, all of whom had doctor's recommendations, say the marijuana was purely for their own medical use.

    As wrong as this case is by a moral compass, I'm finding it a bit difficult to see an acquittal based on the legal compass.

    I'm just significantly doubting that this group had this big a grow operation for their personal use.

    In regards to Zucker's plea deal, it's possible that they're pointing out that Zucker had so much he had to 'distribute it around', so the rest of the group must have been also?

    I dunno, I'm guessing there's gonna be some long prison terms here. In a state where Marijuana is legal. Funny that.

  • Raston Bot||

    I'm just significantly doubting that this group had this big a grow operation for their personal use.

    If the prosecutor found any corroborating evidence on their computers, etc at seizure, it would've been selectively leaked by now.

  • R C Dean||

    I'm just significantly doubting that this group had this big a grow operation for their personal use.

    They were under the state minimum for a medical grow.

    Remember, the feds are counting any plant they ever grew toward their total, not the number they had at the time of the arrest.

  • Paul.||

    How many plants were they caught with at time of arrest? Wa St. Law only allows 15 plants (per person) in a medical grow operation.

  • Paul.||

    Oh and possession of only 24oz.

  • Rich||

    They were under the state minimum for a medical grow.

    Guilty of "structuring", then.

    *** pounds gavel ***

  • Justin Hale||

    Zucker said he left Kettle Falls with 25 lbs. of MJ, No Way is that within the MedMJ guidlines.

  • ||

    " In a state where Marijuana is legal."

    And were I the governor of that state, I'd have every federal LEO and prosecutor arrested and charged for kidnapping, wrongful imprisonment, and anything else I could think of.

  • ||

    This is a fucking kangaroo court. Why the fuck even bring these charges? Oh right, fuck you that's why.

    I wonder if these people pissed someone off.

  • John||

    I seriously wonder if the US Attorney is on the pay roll of competing growers. That sounds crazy I know. Consider this however. The entire FBI office in Boston acted as an enforcer for the Irish mob against the Italian mob. Why is it so unthinkable that that kind of thing doesn't go on in other places?

  • ||

    I agree that I wouldn't put it past the US Attorney to be on someone's payroll. However, these people in bumfuck nowheresville WA don't seem like a rival that one would sic one's pet US Attorney on. It seems more like they just pissed someone in the government off.

  • John||

    Yeah. My guess is the US attorney doesn't agree with the state law and wants to make sure it doesn't have any effect in his district.

  • John||

    Remember, this is in federal court. That means it is only happening because Obama wants it to. If anyone says Obama is in anyway not awful on the drug war, point to this case and tell them go fuck themselves.

  • WTF||

    shreek will be along any second now to prove you wrong by screaming BOOOOSH!!1!!!!

  • DesigNate||

    I was hoping someone would point that out.

    Fuck Tony, shriek, and every other leftist troll that defends Obama on this.

  • Paul.||

    Hence their only hope of avoiding prison lies with jurors who figure out what is going on and refuse to convict. It only takes one.

    Are we hoping for the same kind of jurors who can watch a video where a pack of cops beat a prone, unarmed man unrecognizable and still acquit?

  • sarcasmic||

    To be fair, those jurors had a pack of those same cops in the audience staring them down.

  • John||

    And if you are a jury that refuses to convict in a case like this, good luck when they audit your taxes and do God knows what else.

  • R C Dean||

    By now, there can't be any live ones.

  • sarcasmic||

    By now, there can't be any live ones.

    aye

  • John||

    No is the answer. There are "missing" and those are basically people who got killed but whose bodies were never found. There might be some who are still there, but those people are no doubt people who deserted and don't want to be found.

  • John||

    This case is why you are nuts to go into the pot business, I don't care what the state law says. Pot is still illegal under federal law. Anyone who grows, possesses or sells it is subject to federal prosecution. Going into the "legal" pot business is putting your freedom at the mercy of the DOJ. You won't spend your life in prison, provided DOJ doesn't decide you should. No thanks.

  • Anonymous Coward||

    Lambs being fattened for the (DEA) slaughter, John.

  • ||

    As long as you aren't seriously competing with some government crony, you'll be ok. Otherwise, the FYTW clause will be invoked.

  • ||

    Follow this entire ordeal back to some point or anther and you will find that someone in a position of power or influence is out to get these people for whatever reason.

  • John||

    Or the local US Attorney doesn't decide he wants to take you down. You are totally at the mercy of the feds. Again, no thanks.

  • Justin Hale||

    John, I'm reminded of that saying, "when the citizens fear the government it's called Tyranny, when the government fears the citizens it's called Freedom".

  • Loki||

    Hence their only hope of avoiding prison lies with jurors who figure out what is going on and refuse to convict.

    IOW they're fucked. I have little faith that the kinds of mouth breathers who get selected for juries will be able to figure out that they're helping the feds railroad people for no good reason.

  • ||

    If we lived in a decent, civilized, and sane society, the jury would just get up and walk out.

  • Agammamon||

    . . . Larry Harvey, who was recently dropped from the case because he has terminal cancer . . .

    Harvey wasn't dropped from the case because he has terminal cancer.

    He was dropped from the case because, having terminal cancer, it was embarrassing to the prosecution to be seen fucking this guy this hard.

    Don't let them control the narrative.

  • ||

    After watching criminal trials and reading about this like this it would be very difficult for me to vote guilty as a juror. I am always going to assume the prosecutor is being deceptive in some way.

    In drug cases as long as no one has been poisoned or killed then I will vote to acquit regardless of what the case against them is.

  • John||

    I just wouldn't do it. Unless the government could show me that the defendants were part of a larger criminal gang such that they were just criminal scumbags who happened to deal dope, fuck them. I would vote to acquit and refuse to change my vote until they either walked or the trial ended in a hung jury.

  • Agammamon||

    Even if they're (allegedly) part of a larger gang/criminal enterprise there's no reason to convict if all the prosecutor has is a distribution charge (no matter how large), even with a weapons enhancer.

  • John||

    yeah there is. They are fucking criminals who if nothing else out threatening other people to keep them off their turf.

    I see your point about possession not being a real crime. I am just unwilling to make an act of civil disobedience like jury nullification to save a gangster. Doing so would have the perverse effect of making jury nullification look like a defense of criminals rather than an indictment of the law.

  • Agammamon||

    The problem here is that you're assuming the prosecutor isn't *lying* about any evidence he has that the guy *is* a criminal.

    If he's got that evidence, let him present it and then judge *that*.

    If all he has is a drug charge, well I'm not going to take his word about the rest - its not like prosecutors are known to be even the slightest bit honest as a class.

    Hell, even if they show that the guy is a hard-core gang-banger, I'll vote guilty on *those* charges and *still* give him a pass on the drug related ones.

  • ||

    Keep in mind that the gangsterism is a Frankenstein's monster, the government being the good doctor. It is the government's doing.

  • ||

    Isn't someone in a gang just exercising their right to assembly? Show me the victim if you want me to convict. Theft, rape, murder, extortion... Something. Anything. Otherwise, I get my chance, finally, to use my FYTW clause on the prosecutor.

  • Justin Hale||

    FYTW,????

  • Notorious G.K.C.||

    I know the courts have OKed such conduct, but how is promising a witness a shortened sentence in exchange for testimony any different from promising a witness a bunch of money in exchange for testimony?

  • Justin Hale||

    No $$$ is exchanged .

  • Alan@.4||

    I could well be wrong re the following but it reads like the government is "assuming" and "presuming" quite a bit here. Re other aspects of this case, it's known as Jury Nullification. It's happened in other cases, and it could happen here to. Don't know if it will though.

  • BrionEd||

    That whole "the whole truth, and nothin' but the truth" thing is just a T.V. line created for people who formed what they think is law knowledge from watching Judge Wapner's People's Court, or some other unreal drama. Reality is, the word "justice" has no place in the U.S. courts. It should be THE guiding principle but, in reality, only eager dupes even bother to pretend anymore that judges are guided by principle. The Law kicks principle's ass.

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