By Darren Smith, Weekend Contributor
Nearly a year and a half ago we featured a story describing the plight of the “Kettle Falls Five” who were arrested by the federal Drug Enforcement Agency on charges relating to marijuana cultivation and firearms violations. I am reprinting here portions of my previous article which has many details of the original case. Now, three of these defendants were sentenced to federal prison.
The confusion as to what constitutes lawful medical marijuana grows with federal deference and ten year punishments for doing so, the United States Department of Justice prosecuted five rural Eastern Washington residents accused of growing seventy-four medical marijuana plants in a private collective. Washington State is a Medical Marijuana State. The accused include a seventy year old man who states he uses the medicine to treat pain from a job related injury, his wife for her arthritis, and their son. The patriarch of the family, the accused Larry Harvey, had the charges dropped but has since died of cancer.
While state law at the time permitted the cultivation of up to forty-five plants, federal law prohibits any cultivation. Originally confusion of the numbers of plants that might be permissible under state law (in aggregate) should take into consideration that multiple individuals had separate grows and this led to a misunderstanding. While the Spokane County Sheriff’s Office told the accused to remove those plants in excess of the amounts allowed, the DEA later arrived and raided their farms.
What compounds the severity for these five individuals is that within the thirty-three acre property, two of the defendants’ residence had inside several firearms, including rifles which are used by the family to hunt and for protection from wild animals. Firearms are very common in residences in rural Eastern Washington. Yet, the firearms in relation to the marijuana grow add an additional five year minimum sentence, adding to the defendants’ minimum of ten years imprisonment, something the senior defendant claimed to be a “death sentence.”
What is rather extraordinary in this effort by the department of justice, despite guidelines in not allocating resources to prosecute medical marijuana patients, the defendants claim it was a misunderstanding of Washington’s medical marijuana laws that caused them to go from legal users to being potentially imprisoned for ten years. Many viewed this case as necessitating jury nullification.
At the federal trial, the defendants were not permitted to mention that medical treatment was the reason for these grows, though it was allowed during closing arguments.
Federal prosecutors alleged the five were conspiring to manufacture and distribute marijuana and possession of firearms in relation to drug trafficking. The defendants deny they intended to distribute the marijuana and claim they grow the marijuana for their own usage. They faced a minimum of ten years imprisonment if convicted on all charges. Though the prosecution attempted to convince the jury that one hundred plants were being grown, and therefore necessitating a greater penalty, the jury did not agree yet found them however guilty in the growing of less than one hundred.
According to Americans for Safe Access, a group that advocates cannabis for medicinal and research use, 100,000 Washingtonians use medical marijuana. Presently there are about thirty state licensed retail marijuana growers who are permitted under state law to grow thousands of plants for distribution to eventually several hundred licensed marijuana retailers.
But there has been irregular enforcement and ambiguity with regard to the federal Drug Enforcement Agency and the Office of the US Attorney. The office posted guidelines in August of 2013 listing priorities and what resources the federal government would consider in whether to prosecute marijuana grows or uses. A copy of this guideline can be found HERE
Within this memorandum one of the guidelines seems to be permissive on this incident:
The Department’s previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it is likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.
The memorandum does not confer any rights or defenses, according to its wording, but purports itself to be a guide to prosecutions and delegation of federal resources.
The underlying incident that brought about this prosecution, reportedly ready for trial in June, allegedly happened in August of 2012 when a sheriff’s deputy arrived at the home of 70 year old Larry Harvey to cut down SOME of his marijuana plants, telling the patients state law only allows forty five plants among a collective grow. The plants originally were alleged to have been sixty eight in number. Mr. Harvey stated he believed he was in compliance because under Washington’s Medical Marijuana Laws, a medical marijuana patient is permitted to grow fifteen plants themselves and among the five of them, they should have been permitted to grow seventy five plants.
Apparently, the sheriff’s office then notified the federal DEA which then arrived at Larry’s home, seized his marijuana plants along with eight of his firearms.
Essentially Larry was put into this jeopardy of his freedom because of numbers. According to Washington Law he could not have more than forty five plants in one collective but if he had instead divided the garden into three areas, perhaps leasing the land to the other defendants, he would have been in compliance. But, since he was allegedly out of compliance the DEA went after them. If the deputy in this case would have recognized this was simply a misinterpretation of the law, according to Larry, a teachable moment might have corrected the matter. Why the DEA was called is unknown. But along with this alleged numbers game, the DEA drew in to the firearms issue to rack up another potential five year penalty. There is a strong possibility the government will seize their farmland.
Here are the sentences of the remaining defendants as handed down by U.S. District Court Judge Thomas Rice:
- Rhonda Firestack-Harvey, One year and one day in federal prison
- Rolland Gregg, Thirty-three months imprisonment
- Michelle Gregg, One year and one day imprisonment
Scapegoats of the empire
By Darren Smith
US Department of Justice
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