ASA in the News

Kate Prengaman, Yakima Herald-Republic

When federal drug enforcement agents ordered him at gunpoint onto his knees in front of his barn last fall, Dean Holcomb was shocked.

Yes, he had 38 marijuana plants growing on his small farm, located southeast of White Swan. But he also had three medical marijuana licenses from the state of Washington allowing him to legally grow up to 45 plants, taped in the window for law enforcement to see.

But state law doesn’t matter to federal authorities, and Holcomb, 58, heads to prison later this month to serve a six-month sentence after he took a plea agreement.

The irony that he’s heading to prison for marijuana possession just as stores around the state began selling legal recreational marijuana is not lost on Holcomb.

“My state turned a good citizen into a criminal,” Holcomb said. “And they took my money to do it.”

Pot remains illegal under federal law, though the Obama administration is allowing Washington and Colorado to proceed with legalizing recreational marijuana, and the U.S. House just voted to block federal agents from seizing state-legal medical marijuana.

U.S. Attorney’s Offices have broad discretion to prosecute marijuana cases, and the tipping point in some jurisdictions is whether medical marijuana growers have guns.

The U.S. Attorney’s Office in Seattle, which oversees prosecutions in Western Washington, has shown little interest in going after medical marijuana growers and users. Not so with the U.S. Attorney’s Office in Spokane, which prosecutes cases east of the Cascades.

Holcomb is not alone.

At least four other cases have been filed recently in Eastern Washington’s federal courts. One involves Kettle Falls family members who will go on trial later this month, possibly facing a decade or more in prison. In another case, a Union Gap man was sentenced two weeks ago to 30 months in prison. Defense attorneys contacted for this story said there are at least two other similar cases from the Yakima area pending in federal court.

“The thing they seem to have in common is there is always a firearm somewhere,” said attorney Jeff Steinborn of Seattle. “If you are growing pot in your garage and there’s a gun in your bedroom, they can charge you. But is that what Congress intended?”

In federal court, defendants effectively have no means for defense because they are not allowed to present evidence that they were operating within state law or growing for personal medical use, said Douglas Hiatt, a Seattle attorney who specializes in medical marijuana cases.

“The federal government’s not supposed to be dragging little folks into federal court,” Hiatt said. “The DEA and the U.S. Attorney’s Office are depriving Washington citizens of the defense (legal medical use) that Washington citizens wanted them to have.”

Hiatt added that he’s seen more medical marijuana cases filed since U.S. Attorney Michael Ormsby was appointed to the Eastern District of Washington in 2010.

State-specific data is not available, but the national medical marijuana advocacy group Americans for Safe Access says that the U.S. Justice Department prosecuted 243 patients in the past 17 years, at a cost of $68 million. California and Washington, where medical marijuana has been legal for years, have the highest number of federal raids and prosecutions among the 23 states that allow use of medical marijuana, said Kris Hermes, a spokesman for Americans for Safe Access.

Washingtonians voted to legalize medical use of marijuana in 1998. In 2008, after concerns about the legality of dispensaries, the Legislature created the “grow-your-own” system many patients in the state use.

Holcomb’s case is complicated by the fact that his property is within the boundaries of the Yakama Nation reservation, a sovereign nation independent from state laws, but with a patchwork of privately owned and tribal land.

All marijuana remains illegal on the reservation under tribal and federal laws, said Jodie Underwood, a spokeswoman for the federal Drug Enforcement Administration, which conducted the raid last fall after a request from tribal police.

But tribal police are not the only ones calling the DEA about medical marijuana gardens, said Yakima attorney Greg Scott. The combination of growing marijuana and owning guns can look like drug dealing, and local law enforcement officers may opt to call in the DEA.

That’s what happened to Scott’s client, a 34-year-old who lost an arm in a snowmobile accident and uses marijuana to manage pain. Curtis Roberts’ home was raided by federal agents in June 2013 after Union Gap police alerted the DEA that Roberts had a medical marijuana garden and owned several guns, Scott said, even though everything was in compliance with state law.

“It’s not an isolated case,” Scott said. “It’s a trap. We’ve got a Second Amendment right to bear arms, and nobody ever tells me that if I am also using medical marijuana I have committed a felony.”

Under federal law, it is illegal for a drug user to possess a firearm, even if the gun was legally purchased, creating the potential for conflict between state-legal marijuana and Second Amendment rights.

Assistant U.S. Attorney Joe Harrington in Spokane said that if guns are involved in a marijuana investigation, federal prosecutors are more likely to pursue the case. He had no comment about whether his office pursues marijuana cases more aggressively than the U.S. attorney for Western Washington.

A spokesman for the Seattle office, Assistant U.S. Attorney Todd Greenberg, said he was not aware of any prosecutions of individual medical marijuana patients in recent years in Western Washington.

Kari Boiter, Washington coordinator for Americans for Safe Access, said she’s concerned about store owners or growers licensed under the state’s new recreational market in Eastern Washington facing federal prosecution, especially if they own guns.

“I’m not supposed to say this and rain on everyone’s parade, but I am worried for people,” Boiter said. “In Montana, the U.S. attorney was viciously opposed to marijuana and used guns as an excuse to prosecute people ... even though the state licensed and regulated dispensaries.”

A farmer and construction worker, Holcomb grew marijuana for himself and two others on the small ranch he owned. He also leased adjacent land from the tribe to raise corn, hay and livestock, while taking contractor jobs as they came along. After the raid, he had to give up his leased farmland, sell his property and his livestock, and he lost a construction job at the Yakima Training Center because he’d been charged with a felony.

After decades of hard work, he says he has nerve damage in his foot from a torn Achilles tendon and herniated disks in his back, but Holcomb said he hates taking pain pills. Although marijuana controlled his pain without the same side effects, he was initially skeptical of growing it through the state’s medical grow-your-own system.

“I was afraid to do it, but after watching other farmers do it and not get in trouble, I decided to try it,” Holcomb said.

Before getting started in 2010, Holcomb said he called Yakima County Sheriff’s Office and the Yakama Nation Tribal Police to verify that he could legally grow medical marijuana on private land.

But in 2013, tribal police contacted the DEA about Holcomb’s marijuana and requested its assistance, Underwood said.

Tribal police did not return requests for comment on this story.

On Sept. 24, federal agents and tribal police rushed onto Holcomb’s property, guns drawn, he said. He was surprised that tribal police participated in the raid, even pointing a gun at him while he was down on his knees.

He was growing on private land and paying taxes to Yakima County, so he thought he was subject to state law, not tribal jurisdiction.

The Yakama Nation began publicly stating its opposition to the state’s recreational marijuana legalization about a month after the raid, including its willingness to call in federal agents to crack down on grows.

Underwood said “agents located and seized 38 marijuana trees, of which a majority were approximately 8 feet tall and 5 feet wide. Agents also located and seized over 186 ounces of processed marijuana.”

That’s more than twice as much processed marijuana as is legal to possess under the state’s medical system. But Holcomb said what the agents called his “processed” marijuana had just been picked and was not dry yet, therefore heavier than what the usable product would be.

Details like this — what counts as processed marijuana, whether baby plants started for the next season count toward the per-person limit of 15 plants, how the legal limit can be adjusted for patients who demonstrate greater need — are unclear in the state’s medical marijuana law, which leads to confusion for patients and law enforcement, said Alison Holcomb, director of the state ACLU’s drug reform project and lead author of the state’s recreational marijuana law. She’s not related to Dean Holcomb.

In 2009, the Department of Justice said it would not prosecute cases where medical marijuana users were in clear compliance with state law, but Alison Holcomb said she believes Washington’s medical marijuana law “is such a mess that it’s difficult for patients to have any assurances that they won’t be targeted by federal prosecution.”

On the other hand, the participants in the state’s new, highly regulated legal recreational market are unlikely to risk federal prosecution, she said, because the compliance with state law is more clear.

But Boiter said if the confusing state’s law were the problem, she wouldn’t see such a disparity in prosecution between Eastern and Western Washington. She believes the U.S. attorney has too much power to decide who to prosecute and worries that recreational growers and store owners on the east side of the state who own guns could face federal felony charges just like the medical growers.

In addition to the marijuana, agents confiscated three guns off Dean Holcomb’s property. A lifelong hunter who also carried a pistol for protection on the remote part of the reservation where he lived, Holcomb said he never thought twice about having guns on the property.

But for local law enforcement, the presence of guns and relatively large marijuana gardens can suggest that someone might be taking advantage of the state’s medical system to deal in marijuana illegally.

Such was the case with the arrest of Union Gap resident Curtis Roberts.

“If there are concerns about if this is actual medical marijuana or someone dealing under the cover of a medical marijuana card, we may decide to refer the case to the DEA,” said Union Gap police Chief Greg Cobb.

According to court documents, Union Gap officers called the DEA about Roberts after he told the officers that he had processed marijuana and a pistol in a backpack.

Roberts had actually called police to his Union Gap home in June 2013; he and his girlfriend were drunk and fighting and she had gotten aggressive, according to his attorney.

Assuming that everything was legal, Roberts showed the officers his plants and the marijuana cards for himself and two others for whom he was growing.

The officers left, but soon after, DEA agents crashed through his door and confiscated the plants, three guns and the growing equipment.

Cobb said he could not comment on a specific case, but he said he believes his officers make appropriate decisions about when to pass an investigation along to the DEA.

“We do know that if it appears that someone is taking advantage of the spirit of the law, it’s much more efficient for us to refer that to the DEA,” Cobb said. “Simply referring the case doesn’t mean they will indict.”

But defense attorneys say they’ve seen prosecutions become more common in Eastern Washington.

“We’ve had medical marijuana for a long time. Mostly, the feds were not interested in cases with less than 100 plants,” Scott said. “What I see recently is situations where they are going after people for much less than 100 plants if they can find any kind of weapon involved.”

Yakima County Sheriff Ken Irwin said while guns can be a factor, his office generally only refers high-volume cases to the DEA, such as a garden with 100 or more plants.

Harrington, the assistant U.S. attorney in Spokane, said his office follows Department of Justice guidelines in deciding whether to prosecute marijuana cases. One of the eight priorities is cases where firearms are used in the cultivation and distribution of marijuana.

What qualifies a gun as “involved” depends on the facts of each case, Harrington said. A hunting rifle locked in a gun case, unlikely. A permitted concealed-carry pistol, more likely.

“Bottom line is we are following the DOJ policy memo and there’s a lot of different factors involved,” Harrington said. “We look at cases when firearms are involved; in some of them we prosecute, others are dismissed. It’s all fact-specific to the investigation.”

In Roberts’ case, the charges for being a drug user in possession of firearms potentially added decades to a mandatory minimum sentence.

“With no criminal history, he (was) looking at 55 years on just the gun charges,” Scott said. “ ... If this (went) to trial, I would (have been) prohibited from mentioning to the jury that he has a legitimate medical use. He has to take the plea.”

Roberts was sentenced to 30 months in prison after taking a deal to plead guilty to being a drug user in possession of a firearm.

Dean Holcomb took a plea agreement, too. He was initially charged with a felony for the manufacture of marijuana and for being a drug user in possession of firearms, but his attorney got the gun charges dropped and he pleaded guilty to a misdemeanor marijuana possession charge.

On his attorney’s advice, Holcomb waited until after his sentencing to tell the media about his case. But the Kettle Falls family heading to trial later this month have taken their story to anyone who would listen, including Congress.

Retired truck driver Larry Harvey, 70, and his wife, Rhonda Firestack-Harvey, 55, say they grew marijuana for themselves, two other family members and a friend, for a variety of medical conditions, including gout and chronic pain.

Federal agents confiscated 68 plants and several guns from the rural property, about 80 miles north of Spokane, and they now face mandatory minimum sentences of 10 years in prison.

In a letter to U.S. Attorney General Eric Holder in February, attorneys representing the family argued that federal prosecutors should not have so much discretion to pursue cases against medical marijuana patients.

“While the U.S. Attorney for Eastern Washington is zealously pursuing cases involving as little as 15 plants, his counterpart in Western Washington has taken a ‘hands off’ approach, allowing a commercial industry to develop,” they wrote. “This creates an equal protection problem of epic proportions.”

“This is a public policy problem,” said Boiter, of Americans for Safe Access. “It shouldn’t be these patients on the hook to sort out these laws.”

The bill that passed the U.S. House last month would prevent DEA raids on those individuals or businesses complying with the laws of their states, but if it ultimately becomes law, it will be too late for Holcomb. He is still angry with the state and considering his legal options.

“Washington state should not be issuing these permits if this can happen,” Holcomb said. “They just destroyed my life.”