The Federal Government Wants Those Eastern Washington Medical Marijuana Growers in Jail Right Now

Heidi Groover, The Stranger

In a federal courtroom last week, onlookers were silent as a court clerk read a verdict that almost entirely exonerated an Eastern Washington family—the "Kettle Falls Five"—that was facing 10 years in prison for growing marijuana they said was simply for personal, medical use. But the crowd of friends and activists couldn't stay quiet any longer when a federal prosecutor asked the court to detain one of the defendants until her sentencing, scheduled for three months later. A few people gasped. One whispered, "Are you kidding me?"

A jury had just found the three defendants—whom I wrote this feature about—guilty of growing fewer than 100 marijuana plants, but not guilty on the more serious and dangerous charges that carried mandatory minimum prison sentences, including distribution and owning a gun "in furtherance of a drug trafficking crime." Yet the government still wanted to lock them up right away.

The judge wasn't having it. He told the feds to submit the request in writing and he'd deal with it later. Now, the prosecution has done that and is asking the court to lock up all three of the defendants—including Rhonda Harvey, who is caring for her 71-year-old husband as he battles late-stage pancreatic cancer—because they're a flight risk. Prosecutors also claim Harvey wrongly e-mailed a government witness (Jason Zucker, a family friend who had been a defendant until he cut a deal with the government) before the trial began. Harvey and her lawyers say she only e-mailed Zucker's wife—not a violation of the rules—saying she was disappointed he'd taken a plea and would be testifying against the family.

In their response to the government's request, defense attorneys point to the fact that the family has never missed a court date and none of the three have any serious criminal history.

"Defendants in this case," the attorneys write, "show the lowest possible risk of danger to others: no danger at all."

The defense also makes a case it couldn't make in court: that the family's conviction for growing marijuana should not be considered of the same severity as other, larger scale drug crimes because Washington state law allows medical cannabis patients to grow 15 plants each. Since there's no such thing as medical marijuana under federal law, that argument couldn't save the family from a conviction (and lawyers couldn't even use the phrase "medical marijuana" in front of the federal jury). But, if they're lucky, the phrase could help convince the judge to go easy on them during sentencing.

Phil Telfeyan, the lead defense attorney in the case, tells me he's optimistic District Judge Thomas Rice will agree at some point in the next week to let the family stay free until their sentencing June 10.

"I think the prosecution was very surprised by the favorable jury verdict," Telfeyan says, "so at this point they're trying to make a statement and say this is a serious issue these people are serious criminals. They don't have any evidence to support those claims. ... I think the judge will see that."

UPDATE: The feds are out of luck. The judge has decided that the defendants won't be detained until sentencing. (He actually filed that order yesterday, though Telfeyan hadn't heard that when we spoke today.) The judge first released a written ruling yesterday reiterating what he'd said in court—that the family wouldn't be detained based on the government's verbal request—then he released another ruling tonight upholding that same decision in response to the government's written request. Both orders had the same effect: The family is free until sentencing June 10. "If a sentence of incarceration is imposed," the judge writes, "the defendants shall be taken into custody at the time of sentencing."