‘Kettle Falls Five’ outcome may mean changes for federal drug prosecutions

March 07, 2015 | Kris Hermes

Kip Hill, Spokesman-Review

At least one interested onlooker at this week’s federal trial of self-proclaimed medical marijuana growers from Stevens County believes it’s unlikely federal prosecutors will pursue similar charges again.

“My belief is, unless it’s an extremely unique factual case, we will not be seeing these types of cases in federal courts any longer,” said Roger Peven, who has defended federal criminal cases in the area for three decades and was once head of the Federal Defenders Office in Eastern Washington and Idaho.

Peven observed several days of the trial of the so-called “Kettle Falls Five” in a downtown federal courtroom. Others nationwide followed the daily proceedings of the case, which was seen as an indication of how dogged federal authorities would be in pursuing criminal charges against marijuana growers in states that had decriminalized aspects of the industry.

Jurors rendered a guilty verdict Tuesday for Rhonda Firestack-Harvey, Rolland Gregg and Michelle Gregg on just one charge – manufacture of between 50 and 100 marijuana plants. An attorney for the group, Phil Telfeyan, said that decision negates a minimum five-year prison sentence, which only kicks in if they’re found guilty of growing more than 100 plants. Still, the sentencing range allows for up to 20 years in prison, which has prompted the U.S. Attorney’s Office for Eastern Washington to seek the trio’s imprisonment prior to a sentencing hearing, tentatively scheduled for June.

U.S. District Court Judge Thomas Rice has yet to rule on that request.

The lead defendant, patriarch Larry Harvey, was dropped from the case after being diagnosed with terminal pancreatic cancer. The fifth defendant, Jason Zucker, pleaded guilty just before the trial was to begin to growing more than 100 plants and testified for the prosecution. He faces a potential 16-month prison sentence.

The case drew statewide and national attention, in part because the five defendants had argued they were abiding by state medical marijuana laws when federal and state authorities seized between 70 and 75 plants from the family’s property northeast of Kettle Falls in August 2012. Pro-marijuana advocates called the federal prosecution frivolous, excessive and illegal. They cite directives from the Justice Department issued in August 2013 and a congressional spending bill passed in December that barred federal dollars from being used “to prevent … states from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

After the verdict was read, Americans for Safe Access, which advocates for more relaxed medical marijuana laws, issued a stern rebuke of the U.S. Attorney’s Office in Eastern Washington for its prosecution of the case.

“This should signal to the Department of Justice that prosecutions such as the Kettle Falls Five are a waste of time and money and, if anything, should be left to state courts,” wrote Kris Hermes, a spokesman for the group, in a prepared statement.

Spokespersons for the U.S. attorney’s offices in both Eastern and Western Washington pointed to the August 2013 Justice Department instructions when questioned this week on what facts they’re looking for in prosecuting marijuana cases. The so-called “Cole memo,” named for the deputy attorney general who wrote the directives, lists distribution to young people, distribution across state lines, operations skirting state laws and ties to gangs or guns as reasons federal authorities must step in and prosecute marijuana businesses.

The Kettle Falls group argued none of those guidelines applied to their operation. They persuaded jurors to throw out a firearms charge against them by saying the guns in the home were for hunting and personal protection, not to protect their pot.

Local businesses operating under state laws regulating the recreational marijuana market say they’re unconcerned by the Kettle Falls verdict, because they’re operating within strict legal guidelines from the state.

“As long as the retailers, or even the producers and processors for that matter, operate within the guidelines, my understanding is the federal authorities will sit back and wait,” said Sam Calvert, owner of Green Star Cannabis on Division Street.

The Kettle Falls verdict comes as Spokane County marijuana retailers eclipsed the $2 million mark in sales for the first time last month, continuing an upward sales trend that has held true since legal shops began opening in July.

Kevin Oliver, a Spokane marijuana grower who also sits on the board of directors for the National Organization for the Reform of Marijuana Laws, also said he’s not concerned by the verdict. This in spite of the fact that the largest producers authorized under state law can be growing thousands of plants, as opposed to the dozens the Kettle Falls Five may be jailed for.

Oliver questioned why federal authorities focused on the Harvey property, when larger businesses are operating in a legal gray area statewide.

“It didn’t close any doors for those medical operations, currently operating at the edge of the law,” Oliver said of the trial outcome. “I think those guys are still liable.”

The Kettle Falls group was also acquitted of charges related to distribution of the plants. Federal prosecutors offered no evidence of any drug sale at trial, only saying that the number of plants indicated “distribution levels” of cultivation through testimony by Drug Enforcement agents. Zucker, testifying for the prosecution, could not say whether the family ever sold or gave away marijuana.

Both Calvert and Oliver said the ideal situation would be for Congress to reschedule marijuana under the Controlled Substances Act, where it is currently classified in the same category as heroin, peyote and LSD. Such a classification would give business owners in Washington more comfort than the favorable verdict of one jury in a single criminal case.

“I think they’re going to correct all that; it’s just a matter of time,” Calvert said.

Defense attorney Peven used the popular metaphor of a “drug war” to give his opinion of the effect the Kettle Falls case could have on future criminal prosecutions.

“I was watching a show, that old Ken Burns documentary on the Civil War, about the last soldier killed in that war,” he said. “I hope these are the last soldiers killed in this aspect of the war on drugs.”



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