Pubdate: Sun, 11 May 2014
Source: Spokesman-Review (Spokane, WA)
Copyright: 2014 The Spokesman-Review
Contact:  http://www.spokesman.com/
Details: http://www.mapinc.org/media/417
Author: Jim Camden

'KETTLE FALLS 5' CASE TESTS MARIJUANA LAWS

State-licensed defendants face harsh federal charges

Washington state's permissive marijuana laws have been on a collision 
course with the federal government's total ban for years.

That collision could occur this summer in a Spokane courtroom as the 
federal government seeks convictions and stiff mandatory prison terms 
against the members of an Eastern Washington medical marijuana 
cooperative being called the Kettle Falls 5.

Marijuana advocates familiar with the case say a conviction would 
have serious implications statewide, not just for medical users but 
for the new recreational marijuana industry being licensed by the 
state to grow, process and sell the drug all over Washington.

The five defendants won't be allowed to argue they were obeying state 
laws on medical marijuana, or even mention it to the jury, U.S. 
District Judge Fred Van Sickle ruled last week, citing several 
precedents. That raises the prospect that if federal drug officials 
decide to arrest recreational marijuana growers, they also won't be 
able to claim they were following state laws as a defense.

And federal officials won't need aerial searches, like the one that 
turned up the Kettle Falls 5 garden, to find recreational marijuana 
grows. The locations will be listed on public documents filed with 
the state Liquor Control Board.

Top Justice Department officials have said the federal government 
will refrain from prosecutions in states that have legalized some 
form of marijuana, providing those operations are not involved in any 
of eight key activities such as selling to minors, using a 
state-sanctioned marijuana operation as a cover for other illegal 
activity, funneling money to organized crime or moving drugs across 
state lines. They also want to keep violence and guns out of 
marijuana operations and keep them off federal lands.

The Kettle Falls 5 defendants say they weren't involved in any of the 
eight activities federal officials have flagged. Yet they are charged 
with multiple drug felonies, including two that carry mandatory 
sentences totaling 10 years.

Officials from the U.S. attorney's office in Spokane and the Justice 
Department declined to comment because the case is ongoing and the 
jury trial was to start Monday until a last-minute continuance on 
Friday moved the trial to July 28. Current and former prosecutors say 
the silence puts them at a disadvantage because information could 
come out in trial that casts the case in a different light.

Defense attorneys were guarded in their comments, too, although Doug 
Hiatt, a Seattle attorney who handled some early legal negotiations 
for the defendants, was blunt in his assessment.

"This is the most misguided federal prosecution I've ever seen," said 
Hiatt, who has been active in reforming the state's marijuana laws. 
"It reeks of 'Reefer Madness.' "

Two raids, results

When Rhonda Firestack-Harvey heard a knock on the door of her rural 
Stevens County home in August 2012, she thought some friends had come 
to float the nearby river. She opened the door and saw eight law 
enforcement agents in Kevlar vests, displaying a warrant.

Firestack-Harvey was surprised but not particularly worried, even 
though about 70 marijuana plants were growing on a remote part of 
their 34 acres. She and her husband, Larry Harvey; her son; her 
daughter-in-law; and a friend all had recommendations from doctors to 
use the marijuana to treat a variety of medical conditions and were 
growing the plants in a collective garden they believed met state law.

They weren't selling the drug or giving it to people outside their 
group. They were far from schools, parks, libraries or other places 
where children might gather.

The other three members of the collective garden live in the Seattle 
area and weren't there. Harvey was out of town. The agents said 
marijuana had been seen growing on the property; when they came in, 
one said he smelled marijuana. Firestack-Harvey showed the medical 
authorization papers to the officers, who were mostly from local 
agencies but included one officer from the U.S. Drug Enforcement 
Agency. They had a state warrant so they called the Stevens County 
prosecutor's office for guidance. They were told the collective had 
more plants than the state Medical Use of Cannabis Act allows.

The recommendations said each patient could have as many as 15 
plants. But another part of the law says a collective garden is 
limited to 45 plants total. The officers took some plants, leaving 45.

Eight days later, when Firestack-Harvey was again alone in the house, 
there was another knock on the door, and again the officers were 
outside. There were two big differences, she recalled. They were 
wearing DEA jackets, and they had a federal warrant.

"I was in shock," she said. "I didn't know what was going on. I 
thought, 'These are all the same guys.' "

This time, officers seized the remaining plants, plus some loose 
marijuana and "edibles" containing the drug, some hunting rifles, 
shotguns and handguns in the house, about $500 in cash in her 
underwear drawer she was saving for a trip to Mexico, two motorcycles 
and an all-terrain vehicle.

But they didn't arrest Firestack-Harvey at the time.

'Legitimate' patients

Larry Harvey, a 70-year-old retired long-haul truck driver with a bad 
knee, high blood pressure and painful swelling from gout, describes 
himself and his wife as "country bumpkins" about marijuana. At 55, 
she's a retired hairdresser with degenerative discs, arthritis and 
osteoporosis. Both get relief from their medical problems by eating 
baked goods with marijuana or using the drug in teas or oils. They 
don't smoke it. Both say they don't have any criminal convictions; 
Harvey admits to a few traffic tickets, Firestack-Harvey said her 
record is even clear of that.

"We never gave it a thought that we were illegal," Harvey said.

As proof, Harvey describes the sign he made for the growing field, 
which is on the side of a nearby mountain away from the country road 
where they live, 9 miles north of Colville. On a 4-by-8 piece of 
plywood he painted a green cross in a white circle, the symbol for 
medical marijuana, so it could be seen from the air.

Federal court documents say the Kettle Falls 5's collective garden 
was spotted from the air in a Civil Air Patrol search by an officer 
trained to identify marijuana.

Firestack-Harvey's son Rolland Gregg; his wife, Michelle; and the 
Greggs' friend Jason Zucker, who are part of the collective garden 
although they live on the other side of the state, also have a range 
of medical problems alleviated by marijuana.

Dr. Greg Carter, medical director of St. Luke's Rehabilitation 
Institute in Spokane, reviewed the medical records of all five after 
the raid. Over the last 15 years, Carter has done extensive research 
on medical marijuana and currently has a grant from the state 
attorney general's office to educate physicians, nurses and other 
medical personnel about the drug's uses.

"I think these patients were legitimate," Carter said recently. "They 
are pretty normal people. We're not talking about thugs."

While the number of plants growing at the time of the first raid may 
seem like a lot, he added, it's not an unusual amount for patients 
who use it for edible products, tinctures or liniments, rather than 
smoking. The group only grew marijuana outside, so in northeastern 
Washington they had a relatively short growing season to produce 
enough for the entire year.

Carter said he told that to Mike Ormsby, U.S. attorney for Eastern 
Washington, at a meeting he attended with Hiatt more than a year ago. 
Medical marijuana growers have had good success presenting similar 
arguments in state courts, Carter said.

It didn't stop federal officials from taking the case to a grand 
jury, obtaining an indictment and charging all five with a series of 
felonies. They were arrested in March 2013, about the time Harvey 
said he thought the whole thing was going to go away.

No jury nullification

Carter probably won't be able to offer his opinions to the jury. 
Although the Kettle Falls 5 are charged with growing more than 100 
plants over time, a felony that carries with it a mandatory minimum 
of five years, they won't be able to say the large number is because 
of their medical marijuana collective.

Van Sickle, the trial judge, said the Kettle Falls 5 can't rely on a 
mistaken belief that state law protected them against federal 
prosecution. The federal government only has to prove they had the 
marijuana, not that they knew it was illegal.

If they take the stand, they can't tell the jury they had the 
marijuana for medical use, not for sale. Suggesting they were 
following state law and thus shouldn't be convicted under federal law 
"would be plainly improper ... unfairly prejudicial to the United 
States and confusing to jurors," Van Sickle said. It could "tempt the 
jury to disregard federal law."

That means there is no defense in federal court, Carter said. "Why 
even bother to have a trial?"

The five also face a mandatory five years extra in prison if 
convicted of "possession of a firearm in furtherance of a drug 
trafficking crime." Agents did seize eight firearms, including a 
black-powder rifle and a .22 that Harvey says doesn't work, but the 
guns had nothing to do with the garden, he contends.

"We live 9 miles out of town on the side of a mountain," he said, and 
the guns are for hunting and protection from the bears, cougars and 
coyotes that sometimes come as close as the front steps.

Most rational way?

Six months after the Kettle Falls 5 were arrested, Deputy U.S. 
Attorney General James Cole issued a memo saying federal enforcement 
in states like Washington that have legalized marijuana for certain 
uses would concentrate on the eight priorities and "address the most 
significant threats in the most effective, consistent and rational way."

Attorneys for the Kettle Falls 5 say they have written U.S. Attorney 
General Eric Holder, essentially asking how this case squares with 
the Cole memo and other previous memos or statements to Congress. 
They haven't received a reply.

Last week, as lawyers were settling details like whether the 
defendants could raise state laws on medical marijuana during the 
trial, Harvey was in Washington, D.C., talking to some members of 
Congress threatening to bar the Justice Department from spending any 
money on medical marijuana prosecutions. Legislation could be 
introduced as an amendment to a major appropriations bill later this year.
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MAP posted-by: Jay Bergstrom