The so-called Kettle Falls Five continue to face possible prison time

Steven Nelson, U.S. News & World Report

Attorney General Eric Holder swooped into Spokane, Washington, without public notice Friday to visit with federal prosecutors, but his trip didn’t immediately benefit a group of indicted medical marijuana patients nicknamed the Kettle Falls Five.

The U.S. Attorney's Office for the Eastern District of Washington, based in Spokane, is not backing down in its multiple-felony case against four family members and a friend who tended a rural marijuana garden for what they say was personal medical use.

The case, easily the highest-profile prosecution involving medical marijuana this year, is nearing trial as federal lawmakers consider cutting the purse strings for such enforcement.
Prosecutors argued Monday during a conference call with federal Judge Fred Van Sickle and defense attorneys that the defendants should not be allowed to tell jurors the marijuana was for medical use.

“There is no right to present irrelevant evidence,” Assistant U.S. Attorney Caitlin Baunsgard said, dismissing the applicability of state medical marijuana law to federal charges. “Medical marijuana is not a defense.”

“What they were doing was illegal under federal law,” Assistant U.S. Attorney Earl Hicks said. He also cast doubt about the defendants’ "false and phony claim that it was for medical purposes.”

Van Sickle said he agreed with prosecutors and was unlikely to reconsider his May decision barring that defense. “These things are not relevant and they would confuse the jury,” he said. Van Sickle said he would review other defense arguments, including that the prosecution amounts to selective enforcement.

Holder's visit to Spokane received minimal press attention. But marijuana advocates excitedly buzzed about it weeks in advance, hoping he would give prosecutors a tongue-lashing.

It's unclear if he spoke about medical marijuana or the case with prosecutors. Spokespeople for the Department of Justice and the U.S. attorney's office did not respond to requests for comment.

The Kettle Falls Five prosecution appears to fly in the face of 2009 guidance from Holder's Department of Justice that prosecutors should avoid going after medical marijuana patients.

It also comes as Holder's department allows Colorado and Washington to unfurl regulated and taxed recreational marijuana markets.

The Kettle Falls Five face several felony charges, including firearms charges that come with a five-year mandatory minimum sentence. The defendants say their gun ownership was unrelated to the marijuana. Holder advised prosecutors to avoid mandatory minimum sentences for nonviolent drug crimes in August.

Though medical marijuana and collective gardens with up to 45 plants were legalized under Washington state law following a 1998 voter initiative, the drug remains illegal under federal law.

Homeowner Larry Harvey, 70, has been the public face of the defendants. During a May 7 press conference in the District of Columbia alongside Reps. Paul Broun, R-Ga., and Sam Farr, D-Calif., he told reporters his wife cooked pot-laced cookies to help with his gout symptoms.

Harvey, a co-defendant alongside his wife, a son and daughter-in-law, and a family friend – all of whom have conditions that qualify them for medical pot under state law – was lobbying Congress to pass legislation to block the Drug Enforcement Administration and federal prosecutors from going after medical marijuana in states that allow it.

The House of Representatives voted 219-189 on May 30 in favor of a spending bill amendment that would do just that. A Senate version of the amendment is being sponsored by Sens. Rand Paul, R-Ky., and Cory Booker, D-N.J.

The DEA raided Harvey’s home in August 2012 after state officials visited and removed some plants, but did not make arrests or file charges. The DEA seized 44 plants and about 5 pounds of marijuana, along with edibles, a car, cash, an all-terrain vehicle and legally owned guns.

Citing seized photographs from a year earlier, prosecutors charged the defendants with growing more than 100 plants, increasing possible penalties. Defense attorneys argued Monday the two years were improperly coupled, but prosecutors argued that was proper. Each of the defendants refused plea deals earlier this year that could have resulted in three years in prison.