Why Even a Pro-Pot Vote in Congress Couldn't Save the Kettle Falls Five

Heidi Groover, The Stranger

Back in December, there was huge medical marijuana news out of Washington, DC: Congress had passed a federal spending bill that included a section barring the Department of Justice from spending any of the new money to prevent states with medical marijuana "from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

In response, Rolling Stone declared: “Congress Ends Medical Marijuana Prohibition with Spending Bill Provision.”

Similarly, the Los Angeles Times quoted Bill Piper, a lobbyist with the Drug Policy Alliance, saying, "The war on medical marijuana is over."

Great news, right? The Feds are done going after medical cannabis patients and growers! (Something Washington voters decided we should stop doing way back in 1998!)

Not quite.

In fact, the limitations of this bill—which is, I realize, something, and I guess we’re supposed to congratulate Congress on doing anything these days?—are now playing out in a federal courthouse in Eastern Washington. Like, as I type these very words from that very courthouse.

The so-called “Kettle Falls Five” (whom I just wrote about here) are a group of medical marijuana patients who were growing 74 plants a couple hours outside Spokane. County law enforcement handed the case over to the DEA, and now the Feds are claiming the family grew too much for personal use and therefore must have sold it. The government also claims there were three guns in the house, which the family says are for hunting. The Feds say the guns were owned “in furtherance of” a drug-trafficking crime. If the three remaining Kettle Falls defendants are convicted and the judge imposes the applicable mandatory minimum sentences, they could each go to prison for 10 years.

Some facts about the family’s use of the pot are in dispute—the Feds say they sold some; they say they didn’t—but no one argues any of the five didn’t have a doctor’s authorization. Yet, because they're being charged in federal court, a judge decided months ago they’re not allowed to mention marijuana’s medical uses.

Last year, in the midst of the case, Lee Harvey, the patriarch of the family who’s now battling late-stage pancreatic cancer, went to DC with the national advocacy group Americans for Safe Access to lobby lawmakers on the spending bill that ended up passing and getting all those headlines. But now, the legislation is doing nothing to save his family from a federal pot conviction.

The defense tried to argue last month that Congress’s spending bill should get these charges dismissed because the bill had changed the landscape of this whole argument at a federal level, where there’s no such thing as legal marijuana, medical or otherwise.

“Never before had the phrase ‘medical marijuana’ appeared in any federal statute,” defense attorney Phil Telfeyan wrote in a request that the court drop the charges. “Suddenly, not only has Congress recognized the concept of ‘medical marijuana,’ but it has also explicitly endorsed the medical value of marijuana and prohibited federal prosecutions in states where medical marijuana is legal.”

But US district judge Thomas Rice wasn’t having it. He gave two primary reasons when he denied the motion to dismiss the case.

First, the group's 74 plants exceeded the state law allowance of 45 plants in a collective, and the Feds argue—although they presented little concrete evidence of it in court last week—that they sold some of what all those plants produced. (The family claims they thought they were each allowed the individual limit of 15 plants, and 15 times five is 75.)

Second, Rice wrote, the bill relates to spending 2015 money. This grow was raided in 2012, the family was arrested in 2013, and the latest indictment was filed in 2014. So, even if the court accepted some big shift in federal policy, it doesn’t apply to this case.

Since that ruling, the two California representatives who introduced the measure into the larger spending bill, Democrat Sam Farr and Republican Dana Rohrabacher, have continued to speak out against the continued prosecution of this case. Just a week and a half before the case started in the federal courthouse in Spokane, they told US News and World Report the bill’s spirit was clear.

“Congress voted to stop the federal prosecution of medical marijuana patients,” Farr told US News and World Report. “It’s a waste of taxpayer dollars and needlessly destroys lives.”

For his part, Rohrabacher said: “I think there is a humanitarian element to what we’re doing and a common sense element. It makes no sense to have a mandatory minimum placed on the heads of people who are engaged in an activity that the Congress and many others have indicated a willingness to make legal throughout most of the country.”