A Stunning Overreach from the DEA Is Playing Out in Eastern Washington In Federal Court, There’s No Such Thing as Medical Marijuana—So a Rural Family of Medical Marijuana Patients Is Being Treated Like Drug Traffickers

One August morning in 2012, armed state and federal officers knocked on Rhonda Firestack-Harvey's door, rifled through her house, and yanked pot plants from the ground. Now she and her family are facing the prospect of many years in prison. Daniel Fishel

Before Rhonda Firestack-Harvey was part of a nationally watched court case that could change the course of the federal drug war, she lived quietly with her husband in their modest double-wide mobile home two hours northwest of Spokane.

Rhonda suffers from carpal tunnel and osteoarthritis. In 2011, she got a doctor’s recommendation to use marijuana for her achy joints. Her husband, Larry, also got medical authorization to use marijuana to treat pain caused by gout. Washington State was one of the very first states to approve medical marijuana, way back in 1998, and under state law, medical marijuana patients are allowed to grow their own medicine. When Rhonda and Larry started a grow on their property, Larry posted a sign with a green cross on it near the plants, hoping it would communicate to anyone flying over that this was a medical grow, not a criminal operation.

But in the trial under way right now in a federal courthouse in Spokane, as a jury was looking at an aerial image of the grow—an area “smaller than a tennis court,” as CNN puts it—defense attorneys were not allowed to point out Larry’s sign in the yard. It was a tiny white spot in the corner of the photograph. Nor were they allowed to say what was on the sign.

That wasn’t the only odd silence. In this courtroom, defense attorneys aren’t even allowed to utter the words “medical marijuana.” In a federal courthouse, the only thing that matters is federal law. And federal law says marijuana is a Schedule I drug, considered more dangerous than meth.

“You will apply the law as I give it to you,” US District Court judge Thomas Rice told the jury, “whether you like the law or not.”

Rhonda, her husband Larry, Rhonda’s son Rolland Gregg, Rolland’s wife Michelle, and a family friend named Jason Zucker were all charged with drug crimes in 2013. The charges included growing and distributing marijuana and owning guns “in furtherance of a drug trafficking crime.” Combining photos they found of plants from 2011 and the 74 live plants they found in 2012, the government claims the family grew 100 or more plants, meaning that, if convicted, they’ll face five-year mandatory minimum prison sentences. The guns will add another five years on top of that.

Rhonda and Larry were also charged with maintaining “drug-involved premise[s].” All five of these people were authorized to use marijuana for medical purposes, and under state law, each of them was allowed to have 15 plants, but only 45 total if they were growing as a collective.

The Harveys had never grown marijuana before, and that’s where Zucker came in. Zucker lives in Seattle and is an experienced grower. He also has three marijuana-related convictions, including a felony for possession with intent to distribute. Throughout the two years the family grew pot near the tiny town of Kettle Falls, Washington, Zucker would make occasional trips across the state to help tend and harvest the plants. Rolland and Michelle, who also live in Western Washington, would come over, too, under the verbal agreement that the five would split their crop evenly.

One hot August morning in 2012, Rhonda answered the door for nine armed state and federal officers and stood by as they rifled through her house and yanked pot plants from the ground. The family had come to the attention of local law enforcement when a Civil Air Patrol pilot spotted the grow, so county detectives got a warrant, raided, and pulled out 29 plants, bringing the crop down to the state limit of 45 for a collective. But before they went to the property, those local officers had told a Spokane-based DEA agent it looked large enough to be a federal case, so the DEA agent went along for the raid. A week later, that agent served a warrant of his own—a federal warrant, meaning every single plant was a target.

During both raids, officers found multiple guns the family says were for hunting and protection. (After all, they live in the middle of nowhere.) A rifle, a shotgun, and a pistol found near the marijuana are now the crux of the government’s case. That’s because, for all the supposed leeway the Feds have given states like Washington in pursuing their legalization experiments, weapons near drug operations are a “bright red line.” Those were the words used by Michael Ormsby, the US Attorney for Eastern Washington, when I interviewed him about this issue last year. (He declined to talk specifically about this case.) The existence of the guns allows the Feds to portray the family as drug traffickers—scheming cartel operators armed with guns to protect their cash crop. That’s especially troubling considering that the family’s actual defense, their status as medical marijuana patients, is inadmissible in court.

Rhonda was sitting quietly in a windowless courtroom between two lawyers last week, her jaw set and her fate unclear. Her lawyer, and the lawyers representing her son and daughter-in-law, were doing their best to make their case in spite of being legally prohibited from making their case. Instead, the lawyers painted the family as honest and hardworking, calling them “salt of the earth people.” Obviously, they couldn’t say what they wanted to say, what Rhonda wishes she could shout at the jury: The plants were for medical use. Washington State has a medical marijuana law.

Complicating things for Rhonda and her family, right before the trial started, Zucker turned on the group. Given his prior marijuana convictions, he was looking at as much as 40 years in prison, the defense lawyers say. Zucker also has a wife and a young daughter. In exchange for just 16 months in prison (even less with good behavior), he agreed to testify against the others.

Also, days before the trial, charges were dropped against Larry, Rhonda’s 71-year-old husband, who has been diagnosed with late-stage pancreatic cancer. His medical condition has confined him to a wheelchair and could kill him before the leaves turn this fall. He’s now spending what are likely his last days being wheeled into a courtroom to watch his wife and primary caregiver struggle to defend herself. He has been weighing whether to take the stand in her defense. The defense recently requested that if he does testify, the court authorize audio or video recording of his testimony in case he dies before there’s an appeal. The judge denied the request, saying any future courts would have to rely on a transcript.

If it weren’t so depressing, this case would almost look like a farce, watching the family’s defense attorneys try to defend them but being muzzled, given the family’s true defense. Attorney Phil Telfeyan is reduced to making statements to the jury like “This case is about two things. First it’s about a family… Second it’s about an overzealous prosecution by the federal government.”

As for the loaded guns in the house, this is just a fact of life in Eastern Washington, especially in the more rural areas outside Spokane, like where the Harveys live. Guns are normal here. A lawyer who often represents marijuana users likes to joke to reporters that it’s against the law not to have a gun in this part of the state. The 53 potential jurors summoned for this case were primarily churchgoers and NRA members. Just one woman spoke against gun ownership altogether.

Still, the family’s chances don’t look good. While the Feds may not win in a court of public opinion—where recent polls show 77 percent of Americans think marijuana has legitimate medical uses and 52 percent think it should be legalized altogether—they have the upper hand here in the courtroom. It is not hard to prove this family grew marijuana or that doing so is against federal law.

At one point last Friday, day three of the trial, after the jury had left for a 15-minute break, Assistant US Attorney Caitlin Baunsgard bolted up from her chair. She’d zeroed in on a two-inch green ribbon with a red cross on it that Rolland Gregg had pinned to his purple sweater. “It’s clearly indicative of what it’s trying to convey to the jury,” she told the judge.

Whether the jury would even see the small pin was unclear. It was also unclear whether they would know it might symbolize medical marijuana. But the federal prosecutors are fanatic about not reminding the jury about the existence of medical marijuana, much less its long history in the state where this courtroom is located. Baunsgard asked the judge to require Rolland to take off his pin, but the judge didn’t make a decision immediately. The court recessed, and the family used the break to strategize about where the pin came from, arguing—despite the obvious—that it represented Larry’s fight against cancer.

Eventually, the judge sided with the prosecution and ordered Rolland to remove the pin. In the process, the judge said, “That was going to be my next question: Does it have anything to do with medical marijuana? Because cancer patients are often known to use medical marijuana.”

It was maddening to hear the judge say that—acknowledging not only marijuana’s medical value but also one of its most common and defensible uses—while at the same time refusing to let the jury hear it.

Many of the onlookers are medical marijuana activists, and they all know what that pin means. They know the untold story it represents. The two women from DOPE Magazine who sometimes grip crystals as they watch the proceedings know what it means. When the judge saw two onlookers, a man and a woman, wearing red hooded sweatshirts that said “Save Medical Cannabis,” he ordered them to take them off or turn them inside out. He also made an audience member wearing a green ribbon with a red cross on it take it off. When one of the people in the sweatshirts protested that they were “exercising our First Amendment right,” the judge replied, “You don’t have a First Amendment right in this courtroom in front of this jury… You are not to telegraph to this jury any message… We’re not here to express our First Amendment rights in front of this jury.” If they wore their sweatshirts again, he said, they would be held in contempt.

The case is being followed closely by the marijuana advocacy community and is making national headlines. A conviction of this family, known as the Kettle Falls Five, could spark outrage among a whole range of people, from state’s rights supporters to gun rights activists to lefty pot activists, but federal pot policy is unlikely to change anytime soon.

An acquittal, or even the judge being willing to sidestep mandatory minimums and deliver a lesser sentence, could be monumental. That could send a message to federal prosecutors that these cases aren’t worth going after, or at least signal that some portion of the public’s shifting perspective on pot has made it into the courtroom.

On Friday afternoon, Jason Zucker took the stand. He is both the prosecution’s best argument and the closest the defense can get to showing the jury what’s really at stake.

Zucker detailed how he grew 75 small plants from seeds and clones in his basement, the trips he made back and forth from Seattle to Eastern Washington to help plant and care for them, and the 28 pounds of bud he took home at the end of the growing season. He sipped water from a Styrofoam cup, avoiding eye contact with those at the defense table.

In the argument over whether the group “conspired” to grow and sell cannabis, the defense claims the lack of a written agreement means the Feds have no proof of a conspiracy. The prosecutor asked Zucker why they never signed a formal contract like that.

“I don’t know,” Zucker said. “I guess we trusted each other.”

But Zucker also said the group never discussed selling the pot and that he smoked most of his on his own or shared it with friends.

In an attempt to discredit him because of the pressure he’s under to help the prosecution, Telfeyan, the defense attorney, repeatedly returned to the lengthy jail sentence Zucker could have faced. In the same moment, Telfeyan was giving the jury a sense of what a “guilty” verdict could mean for those who still have charges against them.

Telfeyan asked Zucker: Isn’t it true that the combination of the drug charges, the guns, and Zucker’s record could add up to anywhere between 10 and 40 years?

Yes.

And he’s been in jail before for his last felony, right?

Yes.

And isn’t it fair to say that being incarcerated is an “awful experience”?

Yes.

On the way back into the courtroom after a lunch break one day, Sam Keiser, the DEA agent who led the raids, lugged a bulky blue bin full of one-pound bags of pot he took from the Harveys’ property.

Kris Hermes, a medical marijuana advocate who’s been doing media relations work on behalf of the family, sighed as he watched Keiser maneuver the bin through the courtroom doors. Hermes has worked on marijuana advocacy for more than a decade. He is an upbeat guy, but the defendants’ prospects in this case are bleak. Hermes said he’s “never seen a patient who was tried in federal court be acquitted by a jury.” But he is hopeful that someday, eventually, change will come.

Watching Keiser lug around the seized marijuana, Hermes said to him, “One day you won’t have to do this anymore.”

Keiser stared at Hermes blankly for a minute, and then continued into the courtroom, where the war on drugs rages on.

Shortly after this was published, Larry decided not to testify and lawyers on both sides made their closing statements.

Shortly after that, the jury returned with a verdict: Not guilty on four of the five charges.