ASA in the News

Katie Rucke, MintPress News

Next month, five Washington state residents are expected to be tried in federal court for cultivation and possession of marijuana, a substance that is completely legal in their state.

Though the federally prohibited substance has been legal for medicinal use in Washington state since 1998, marijuana’s illegal status at a federal level prevents medical marijuana patients from arguing they were following state law or from using a medical defense. This discrepancy between state law and federal law has prompted medical marijuana advocacy groups such as Americans for Safe Access to turn attention to the Obama administration’s arguably blatant disregard for the rights of medical marijuana patients.

Named after the rural town where federal agents raided the home of two co-defendants, the Kettle Falls 5 case will try five people in violation of the Controlled Substances Act on May 12.

The co-defendants include: Larry Harvey, 70, who suffers from numerous ailments including heart disease, severe gout, high blood pressure and insomnia; his wife, Rhonda Firestack-Harvey, 55, who suffers from conditions including chronic back pain, osteoarthritis, depression and anxiety; Firestack-Harvey’s son, Rolland Gregg, who has suffered from chronic pain since he broke his neck and back in a snowboarding accident in January 2000, as well as irritable bowel syndrome and ulcers since childhood; Gregg’s wife, Michelle, who suffers from an eating disorder; and family friend Jason Zucker, who has suffered from chronic back pain since he crushed his vertebrae in a snowboarding accident in February 2000.

Harvey and his family had 44 premature cannabis plants on their 34-acre property when their home was raided by the Drug Enforcement Administration in August 2012. The raid came about three months before residents in the state voted to legalize recreational use of marijuana and about a week after local law enforcement had searched the property and forced the family to cut down more than 20 plants.

Though the Harvey’s home is located about 10 miles from the nearest town, the plants were kept out of the view of passersby. A helicopter spotted the plants that were being grown outside of a greenhouse during a routine flyover. Since it’s hard to tell from the air whether a garden is being cultivated for medicinal use, law enforcement was called in to investigate.

During the raid, the feds found 44 premature marijuana plants — a legal amount under the state’s medical marijuana program — as well as roughly 5 pounds of raw cannabis, a freezer full of marijuana-infused butter, cookies and tea, and firearms. The DEA confiscated all of those items as well as the family’s 2007 Saturn Vue and $700 in cash.

All five co-defendants were indicted in February 2013 and charged with six felonies each: conspiracy to manufacture and distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; distribution of marijuana; possession of a firearm in furtherance of a drug trafficking crime; and maintaining a drug-involved premises.

As a Feb. 26, 2014 joint letter from the co-defendants’ attorneys to U.S. Attorney General Eric Holder points out, “This is not the kind of spectacular haul that the DEA is typically called in for. Just the opposite, the evidence seized is consistent with the type of strict medical dosage that occurs with a doctor’s supervision.”

In the letter, the attorneys urge Holder to provide equal treatment for patients under the law and argue that U.S. Attorneys shouldn’t be able to have varied stances on whether or not to prosecute patients.

The letter also notes the differences between Michael Ormsby, the U.S. Attorney for the Eastern District of Washington, where Kettle Falls is located, and the U.S. Attorney for the Western District of Washington, Jenny Durkan. It says Ormsby is “zealously pursuing cases involving as little as 15 plants,” while Durkan has opted to not prosecute these cases in order to allow a commercial industry to develop.

Harsh punishments send a strong message

Prosecutors in the Kettle Falls 5 case have asked for each defendant to be charged with a minimum of 10 years in prison. Holder, however, has pushed for an overhaul of the mandatory minimum sentences for nonviolent drug crimes in recent months to ease overcrowding at U.S. prisons.

The minimum 10-year figure comes from a minimum five-year sentence for each person’s involvement in allegedly growing more than 100 plants at one time and a five-year sentence for the guns, which were reportedly nowhere near the cultivation garden.

When it comes to the number of plants, Kris Hermes, media liaison for Americans for Safe Access, told MintPress News that the number is based on “flimsy evidence.” He says the feds are aggregating plant counts from previous years in order to get a more aggressive sentence for the defendants. While the feds will likely hint that the 100-plus plant count was a violation of state law, Hermes said the prosecution is unlikely to use that as part of their case, since doing so would allow the defendants to use a medical marijuana or state law defense during the trial, which would severely hurt the feds’ case.

As for the gun charges, Hermes says that since Harvey retired from his job as a commercial truck driver, social security checks have become a primary source of income. Facing tight finances, Harvey would hunt wild game in order to feed his family — something he hasn’t been able to do since the raid.

The guns were also on the premises to protect Harvey and his wife from not only human intruders, but also wild animals found in the mountainous rural area such as black bears, cougars and coyotes. These concerns, Hermes says, contribute to the reason why guns are so common in this part of the state.

Keeping in line with the Harvey’s push to be as resourceful as possible, the family opted to grow their own medicine in a four-by-eight-foot garden that was marked with a green cross to indicate a medical marijuana supply. All five also had their medical marijuana patient cards posted near the grow site, as per state law.

Equal treatment under the law

Medical marijuana has been legal in the state for about 15 years and recreational use recently also became legal. There have been several memoranda issued from the U.S. Department of Justice on how U.S. Attorneys are supposed to respect state legalization laws.

“As recently as August 29, 2013 in a memorandum from Deputy Attorney General James Cole, the DOJ reiterated that individuals in compliance with state marijuana laws will not be subject to federal prosecution,” the joint letter to Holder points out.

“A similar policy has been in effect since October 19, 2009 when then Deputy Attorney General David Ogden first issued instruction on this topic. Mr. Cole later released a statement in June 2011 that was intended to clarify the original Ogden memo. If the [U.S. Attorney’s Office] applies the standards set forth in any of these DOJ directives, the Harvey et al. indictment would be summarily dismissed.”

But not all U.S. Attorneys agree with a hands-off approach when it comes to medical marijuana use in states where the substance has been legalized. Unfortunately for the Kettle Falls 5, the U.S. Attorney for the Eastern District of Washington, Michael Ormsby, is one of those who appears to believe prohibition is a good thing.

According to Washington State Americans for Safe Access Coordinator Kari Boiter, not everyone at the federal level is giving up on prohibition, probably because they are afraid legalization would make their jobs redundant. As a result, some like Ormsby are “viciously prosecuting these cases,” she says, making these memos basically worthless when it comes to protecting patients.

“If the Justice Department can continue to aggressively prosecute individual patients without any consequences from the White House, none of these DOJ memos are worth the paper they’re printed on,” Boiter said.

Hermes agreed with Boiter that the Obama administration has failed patients despite releasing several public statements in recent years promising that individuals and sick Americans in states where marijuana has been legalized for medical use, recreational use or both, would not have to worry about being raided.

“There couldn’t be a federal case that contradicts the Obama administration’s policy on medical marijuana any more clearly than this case,” Hermes said. “It’s outrageous that the federal government sees fit to millions of taxpayer dollars to go after and aggressively prosecute individuals who are sick and in compliance with state law.”

Hermes said it’s not clear whether this raid was an effort headed by Ormsby or part of the Obama administration’s unwritten marijuana policy, but either way, he says, aggressive attacks on medical marijuana patients have to stop.

Boiter further explained that Assistant U.S Attorney Earl Hicks has said in court that he intentionally chooses to prosecute medical marijuana patients who he perceives to be members of a lawless pro-marijuana community. Hicks also stressed that he would prosecute someone in possession of even just one plant, according to Boiter.

What’s next?

On April 22, a pre-trial hearing was held in Spokane, Wash., where about a dozen motions were filed by the co-defendants in order to dismiss and suppress evidence. U.S. District Judge Fred Van Sickle didn’t immediately rule on any of the motions. As of press time, he still hadn’t released his decisions on any of the motions.

Since the 2012 raid, all five co-defendants have been denied access to their alternative medicine and will continue to have to go without until the trial concludes. Hermes said that Harvey, in particular, has suffered from being denied access to medical marijuana and encountered “irreversible bodily harm” — a permanent foot disfigurement — during a 17-day period in jail because of his gout.

Though Boiter says there are other medicines these five can take for their medical conditions, she said she knows from personal experience that narcotics and sleeping pills don’t work as well as marijuana for everyone. She said she suffered immensely when her access to medical marijuana was taken away.

Depending on how Judge Van Sickle rules, the case against the Kettle Falls 5 could be strengthened or weakened. Given that Boiter says there are at least three other cases currently against medical marijuana patients in the state, how the court handles this case will likely be a good indicator for whether the medical marijuana community should continue to worry about being federally prosecuted for possessing a substance that is legal in 21 states and Washington, D.C.