Man Seeks Dismissal Of Medical Marijuana Charges, Citing New Federal Protections

January 21, 2015 | Kris Hermes

Matt Ferner, Huffington Post

A Washington man who, like his family, faces years in prison if convicted in a high-profile federal case over growing marijuana, says the feds should drop their case because it conflicts with new medical marijuana protections contained in the recently enacted $1.1 trillion federal spending bill.

In a brief filed last week on behalf of Larry Harvey -- a 71-year-old man who grew marijuana with his family on the property of their rural Washington home, for what they say was their own medical use -- attorney Robert Fischer argues that the federal case against the Harvey family undermines Washington state law by threatening patients with federal prosecution and preventing states from "implementing their own laws." Fischer contends that the federal government is trampling over recently passed Congressional protections for states that have medical marijuana laws in place.

The sprawling federal omnibus spending bill, signed by President Barack Obama in December, was flooded with hundreds of additional provisions -- including a historic measure to prohibit the Department of Justice from using funds to go after state-legal medical marijuana programs. Fischer argues that that provision protects medical marijuana patients like the Harvey family from federal prosecution.

"The law that was signed last month by President Obama was designed precisely for patients like Larry Harvey," said Steph Sherer, executive director for the medical marijuana advocacy group Americans for Safe Access, in a statement. "If this law doesn't stop federal prosecutions like the Kettle Falls Five, nothing likely will."

DOJ spokesman Patrick Rodenbush told The Huffington Post that the department is currently reviewing the language of the bill Fischer cites in his brief. He declined to comment on the brief itself, as the case is ongoing.

The measure in question is meant to "prevent" the federal government from interfering with states "implementing" their own laws regarding medical marijuana. It names the 23 states that have legalized marijuana for medical purposes, including Washington, and lists an additional 11 states that have legalized the use of certain non-psychoactive marijuana-based oils that have been shown to be beneficial in some severe cases of epilepsy.

The federal government has long prohibited the use and sale of marijuana, maintaining that it's one of the "most dangerous" substances available and that it has "no currently accepted medical use." The passage of the omnibus package didn't change any of that, so it's not entirely clear how the protections will work in practice.

But Fischer also had questions about the federal government's stance on the drug in the wake of the omnibus package.

"The basic premise that 'medical marijuana' has no currently accepted medical use at all, is now in conflict with congressional intent in passing the Act, as shown from the record of the floor debates providing reasons for the passage of the Act," Fischer wrote in last week's brief.

The Kettle Falls Five consist of Harvey; his wife, Rhonda; their son, Rolland Gregg; Rolland's wife, Michelle Gregg; and close family friend Jason Zucker. They are all facing federal marijuana charges for growing about 70 cannabis plants at the Harveys' rural home in Kettle Falls, Washington. The five defendants are all state-legal medical marijuana patients, and the family's defense attorneys maintain that their crop was in compliance with state law. Washington legalized medical marijuana in 1998 and recreational marijuana in 2012. Still, marijuana remains illegal under federal law, which classifies it as a Schedule I substance alongside heroin and LSD.

The federal government has charged each of the defendants with multiple felonies, including manufacturing, possession and distribution of marijuana, as well as possessing a firearm in furtherance of drug trafficking.

The family has said the firearms charge is due to the fact that they keep several guns at the house for hunting and defense. But federal prosecutors say the presence of firearms shows the defendants were involved in drug trafficking.

State authorities raided the Harvey home in August 2012, according to court documents. State law enforcers found 74 plants growing near the house. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. State authorities did not press charges or seize anything else.

A week later, federal authorities conducted a more comprehensive raid, seizing the Harveys' remaining marijuana plants along with about five pounds of raw cannabis and some marijuana-infused edibles. The feds also seized a 2007 sedan, several hundred dollars, firearms and some personal belongings.

In 2014, a federal judge ruled that the Kettle Falls Five cannot defend themselves against the charges by arguing their cannabis plants were for medical purposes and legal under state law.

Because the federal government considers cannabis to be illegal, federal courts generally don't allow evidence that the drug may have been used for medical purposes, even in cases where medical marijuana is legal under state law.

Before the raid, Harvey, a recently retired commercial truck driver, ate marijuana-infused cookies to ease symptoms related to gout, chronic pain and inflammation, according to his attorneys. His wife, who has osteoarthritis and has undergone joint and bone surgeries, used medical cannabis to ease her inflammation and pain, the lawyers said. Rolland Gregg and Zucker used medical marijuana to treat back injuries, while Michelle Gregg used cannabis for appetite stimulation due to wasting brought on by a medical condition she hasn't disclosed, attorneys say.

During pre-trial hearings, the five defendants rejected plea deals offered by the prosecution that would have reduced their maximum prison sentences to three years apiece. Without the deals, they each face penalties ranging from 40 years to life in federal prison.

Harvey was recently diagnosed with late-stage pancreatic cancer, and if convicted, he may not survive until the end of such a lengthy prison sentence. The average life expectancy for a patient with metastatic pancreatic cancer is three to six months, according to the Hirshberg Foundation for Pancreatic Cancer Research. Pancreatic cancer has the highest mortality rate of all the major cancers, the foundation says.

A hearing on the motion to dismiss is scheduled for mid-February. If charges aren't dropped, the Harvey trial is expected to begin later that month.



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