Judge: Medical Pot Patients Will Stand Trial in State Where the Drug's Legal Obama appointee says congressional measure is irrelevant to high-profile Kettle Falls Five case

February 13, 2015 | Kris Hermes

Steven Nelson, U.S. News & World Report

A judge in Washington state has ruled a measure approved by Congress to end federal prosecutions of medical marijuana patients does not benefit four family members and a friend who say they grew the drug for medicinal purposes.

The so-called Kettle Falls Five will stand trial later this month, U.S. District Judge Thomas O. Rice ruled Thursday. If convicted on all charges, the defendants each face a mandatory minimum of 10 years in prison.

The defendants were arrested in August 2012 – months before Washington residents voted to legalize marijuana for recreational use – for tending a garden that roughly complied with the state's medical pot law, passed in 1998. All had qualifying conditions to use and grow marijuana, but federal prosecutors say the amount being grown exceeded their need and accused the group of drug trafficking.

Larry Harvey, 71, is the public face of the defendants, visiting the District of Columbia last year to lobby for legislation he and patient advocates hoped would shield his family from prosecution. Harvey's wife, their son, daughter-in-law and a family friend face identical charges.

The congressional measure, pushed by Reps. Sam Farr, D-Calif., and Dana Rohrabacher, R-Calif., came in the form of a budget amendment, or "rider," that passed the House of Representatives in a 219-189 vote in May. It was incorporated into a large spending bill President Barack Obama signed into law in December.

The amendment says the Department of Justice – which includes federal prosecutors and the Drug Enforcement Administration – cannot spend funds to prevent states “from implementing their own State laws that authorize use, distribution, possession, or cultivation of medical marijuana.”

On Thursday defense attorneys attempted to persuade Judge Rice, an Obama appointee who worked more than two decades as a prosecutor in the office pursuing the case, that he should dismiss charges in light of the spending prohibition. Rice disagreed, citing the specific parameters of state law, dashing defendants' best hope for a quick end to the case.

“[W]hile this Court acknowledges the plain language of the rider prevents the Department of Justice from using its 2015 fiscal year funds in a manner that interferes with certain conduct sanctioned by state medical marijuana laws, this Court declines to extend its limited language to further modify or limit the reach of federal prosecutorial authority,” he wrote.

At trial, defendants won’t be allowed to discuss the same state law parsed in Rice’s ruling or tell jurors the reason they grew the plants. During a hearing in June, Judge Fred Van Sickle, who stepped off the case in December, forbade discussion of the state’s medical marijuana law. “There is no right to present irrelevant evidence,” Assistant U.S. Attorney Caitlin Baunsgard told Van Sickle. “These things are not relevant and they would confuse the jury,” he agreed. Rice upheld that decision Thursday.

Defense attorneys are asking the U.S. Court of Appeals for the 9th Circuit to step in, but it’s unclear if that’s likely to happen.

Farr, who stood beside Harvey near the steps of the Capitol in May as he candidly spoke about how pot cookies eased his gout pain, tells U.S. News he’s upset that the case is headed to trial.

Technically, Farr’s office says, the amendment could not prevent the prosecution because continuing federal cases can’t be vetoed by spending bills.

But, Farr says, “the spirit of Rohrabacher-Farr was perfectly clear” and authorities should have acted accordingly.

“Congress voted to stop the federal prosecution of medical marijuana patients,” he says. “It’s a waste of taxpayer dollars and needlessly destroys lives.”

Rohrabacher says he’s pleased Rice recognized the congressional intent to shield people complying with state laws, but says he feels the case needs to be dropped.

“I think there is a humanitarian element to what we’re doing and a common sense element,” Rohrabacher says. “It makes no sense to have a mandatory minimum placed on the heads of people who are engaged in an activity that the Congress and many others have indicated a willingness to make legal throughout most of the country.”

The medical marijuana advocacy group Americans for Safe Access has worked closely with the defendants, and Kari Boiter, a legislative analyst with the group who has been intimately involved in the case, says it’s time for Obama to step in.

“At this point, President Obama should be weighing in because it’s very clear the Department of Justice will not rein themselves in,” she says. “If his Department of Justice is not willing to do what they have been told, he needs to get that under control.”

If the case goes to trial as expected, Boiter worries Judge Rice will continue to side with his former colleagues in the prosecutors office. “I don’t think that bodes well for what we’re going to see at trial,” she says.



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