Pot growers face charges -- in state where pot is legal

Jolie Lee, USA Today

Five people are in Washington state are facing marijuana charges -- in a state where marijuana is legal.

The group, called the Kettle Falls 5, will be on trial for growing 68 plants in rural eastern Washington. The trial is set for July 28.

Why are they facing prosecution? Because it's a federal case, and one that could change the legal landscape in states where pot has been legalized.

Prosecutors contend the five were conspiring to manufacture and distribute marijuana. The defendants are also charged with possessing firearms as part of a drug-trafficking crime.

If convicted, they would face a minimum of 10 years in prison.

Despite Department of Justice guidance that people in compliance with state marijuana laws should not face federal prosecution, the legal realities are murkier.

Federal prosecutors can still exercise discretion, leaving open the possibility that people who are following state laws can still be prosecuted for a federal crime.

"It hangs over everybody. It's not just Washington, but Colorado and California and anywhere marijuana sales are happening," said Sam Kamin, director of the Constitutional Rights & Remedies Program at the University of Denver.

Washington state has at least 100,000 medical marijuana users, according to Americans for Safe Access, an organization that advocates cannabis for therapeutic and research use.

In Washington, about 30 growers have received licenses from the state as retail pot shops are set to open in July, according to data from the state's Liquor Control Board, which issues the licenses.

It's unclear if federal prosecutors will pursue cases against these large-scale growers or other individuals who grow pot for their own use.

Joe Harrington, a spokesman for the U.S. Attorney's office for the Eastern District of Washington, said he could not comment on specifics of the case. USA TODAY Network has requested comment from the Justice Department.

Kettle Falls 5 case

Larry Harvey, 70, one of the defendants in the federal case, told USA TODAY Network that he never sold any marijuana -- "not a bit of it" -- and the pot he grew was for personal medical use.

Harvey and the four other defendants, including his wife and his wife's son, said they grew 68 marijuana plants on his 38-acre property in rural eastern Washington. The five patients were sharing resources to grow marijuana plants in a single garden.

Harvey has a bad knee from years of long-haul trucking, and his wife, Rhonda, suffers from arthritis, he said.

The group aroused suspicion from federal authorities after a county sheriff came to Harvey's house in August 2012 to cut down some of his marijuana plants, saying he was not in compliance with the state's 45-plant limit for co-ops. Harvey said he thought he was following the state law, which says individuals can have up to 15 plants.

After the sheriff informed the DEA, federal agents came to Harvey's home and took all of his marijuana plants -- as well as the eight guns he says he used for hunting and protection against wild animals, such as bears and bobcats.

Kamin said it's unclear why these five individuals were singled out. "Maybe it was the guns," he said. "That's one of the puzzles of this case, and why right now."

Threat to other marijuana patients?

In the trial, set to begin July 28, the defendants cannot use medical necessity as a defense, said Bob Fischer, an attorney for one of the defendants.

In the federal court, "it doesn't matter why you grew it. It matters if you grew it or not," Fischer said.

The Kettle Falls 5 aren't the first defendants to face federal charges related to medical marijuana. But their case is unique because individuals usually settle with the federal government since they cannot use a medical marijuana defense in court, said Kari Boiter, Washington coordinator of Americans for Safe Access.

"As far as the court of law, it's set up for these defendants to lose every single time," Boiter said.

Harvey said he was offered to settle as well, but that would mean admitting he committed a federal crime. The repercussions include not being able to have any guns, which he said he needs for food and protection. He also doesn't want to be labeled a felon for the rest of his life.

"I have a hard time with it," he said.

At the same time, he understands the minimum sentence of 10 years would probably be a life sentence for him.

With the trial weeks away, Harvey and his wife aren't sure how to plan for their future.

"Right now, I've been tending winter firewood, but I don't know if I'll be here for the winter," he said.