ASA in the News

Heidi Groover, The Stranger

After nearly four days of questioning witnesses and showing dozens of photos and videos, lawyers in the case of the so-called "Kettle Falls Five" made their closing arguments Monday afternoon. The government will get one more chance this morning to rebut the defense’s arguments and then the case will be handed over to the jury.

This is the widely watched case that I just wrote this feature about—an Eastern Washington court showdown that's pitting Washington State laws allowing medical marijuana against black-and-white federal drug laws that classify pot as more dangerous than drugs like cocaine and meth.

The basic facts of the case are this:

A group of five medical marijuana patients—Rhonda and Larry Harvey, Rhonda’s son Rolland Gregg and his wife Michelle, and their family friend Jason Zucker—grew 74 plants on the Harveys’ property two hours northwest of Spokane. (Just three of them remain defendants in the case now, since the government dropped the charges against Larry, who’s battling late-stage cancer, and cut a deal with Zucker.)

While state law limits patient collectives to 45 plants, it also allows individual patients to grow 15 plants, so the the defendants say they thought they were allowed a total of 75 plants (five people times 15 plants each). In August of 2012, sheriff’s office detectives raided the home, cut them down to the 45 plants allowed, and left, only to turn the case over to the DEA, which led its own raid a week later.

Whether you believe the family’s medical use claims or not, the federal government has barreled in with a response that seems, to put it mildly, disproportionate in an age of evolving laws and public opinion on pot.

Federal attorneys have combined photos of plants the Harveys grew in 2011 with the plants they found when officers raided in 2012 to charge them with growing 100 or more plants, triggering a five-year mandatory minimum prison sentence if they're convicted. They’ve also charged everyone in the group with possessing weapons in “furtherance of a drug trafficking crime,” tacking on another five years if they’re convicted. The Feds also say the family distributed the marijuana, while the defense argues it was entirely for personal use.

Echoing his argument from his opening statement, defense attorney Phil Telfeyan yesterday told the jury that this case is about an “overzealous, unjustified prosecution by the federal government.”

For the Feds, it’s simpler than that. “Growing marijuana—under federal law—is illegal,” Assistant US Attorney Earl Hicks told the jury.

In its closing argument, the government spent most of its allotted one hour summarizing its claims against the family: that they “conspired” together to grow the plants on a concealed part of their property in order to keep them under the radar of law enforcement, split up the harvest evenly, and then set out to each sell part or all of their 30-pound share.

In the meantime, they guarded their profits with guns, the government alleges, and Rhonda maintained a “drug-involved premise[s]" by allowing all this to happen on the property and storing pot in the house. The Feds point to the five-foot-tall bushy indica plants the family was growing, records showing they paid people to help trim the crop, and one-pound bags of labeled marijuana they found in the home as evidence they were not just growing for personal use, but distributing to others. Also evidence the family must have been making money from the operation, the Feds argue, is the fact that Rhonda was retired and Rolland works at a nonprofit where his business partner testified he only makes about $24,000 a year, yet they paid for trimming help and infrastructure like water pumps at the grow. (The defense argues that Zucker, who testified that he spent $10,000 on the grow, was responsible for those costs.)

In some ways, it’s a difficult argument to rebut—especially in federal court, where the phrase "medical marijuana" can't even be used because there's no such thing in the eyes of the Feds. The family doesn’t contest that they were growing pot. And federal law says even one marijuana plant is illegal. It also seems clear the group worked together—or, in the government’s terms, “conspired”—to grow the plants.

But convincing the jury the family actually distributed the marijuana will be more difficult. The Feds introduced no records or witnesses to show that any of the five sold pot. Even Zucker, who was there on the Feds’ behalf, said he never asked the others what they were going to do with their share. Essentially, the government is counting on the jury to decide the amount of pot they grew was simply too much for personal use.

To the defense, that’s nothing more than speculation—certainly not enough to prove the distribution charge beyond a reasonable doubt. Telfeyan framed his rebuttal to that argument using a big blue Rubbermaid-like bin officers found full of processed bud and trim in the Harvey house. If the family was really selling all this weed, Telfeyan told the jury, “Instead of a blue bin with eight pounds of marijuana, [the government] should show you a blue bin with millions of dollars.”

Telfeyan continued: “All of the evidence is consistent with simple possession for personal use.” And that—simple possession—is not one of the five charges the family is facing.

“You’re not a cog in the machine of the federal government,” Telfeyan told the jury on Monday. Later, he continued: “You can stand up and say, ’No. The evidence isn’t there.’”

The jury’s decision is expected late Tuesday afternoon or, more likely, Wednesday.