What Does the Kettle Falls Five Verdict Mean for Pot Prosecutions in Washington?

Larry Harvey says he posted this sign near his family's marijuana grow to indicate to anyone flying overhead that it was a medical grow. It didn't stop the feds from raiding his property. HG

Well, wow, this is not the post I expected to be writing.

Just after 5:30 last night in a federal courthouse in Spokane, a jury acquitted a group of medical marijuana growers on four of the five charges they were facing. The courtroom was nearly full of friends, family, and marijuana advocates—including the first person ever licensed to grow legal, recreational weed in Washington—who all spilled out in front of the courthouse crying and hugging after the verdict was read.

Even though the "Kettle Falls Five" were not perfectly following state medical marijuana laws, their prosecution became a test case of marijuana laws at the federal level (where pot is considered more dangerous than meth) versus state laws in places like Washington, where medical marijuana has been legal since 1998.

At the start, things had not looked good. The family—Larry and Rhonda Harvey, Rhonda’s son Rolland Gregg and his wife Michelle, and family friend Jason Zucker, all of whom had doctor's recommendations for medical marijuana—grew pot. And pot in any amount is federally illegal.

Plus, the government had some legitimate arguments in this case. Zucker, who took an eleventh-hour plea deal and testified against the others, said each person’s share of the harvest was 28 to 30 pounds. That’s a lot of marijuana. To the government, it’s evidence they were selling it. And the defense was at a distinct disadvantage because they couldn’t argue they needed cannabis as medicine. In federal law, there is no such thing as legal medical marijuana.

But then the government responded in what was hard to see as anything other than an effort to make an example out of some sick people in the woods of Eastern Washington.

The U.S. Attorney’s Office combined photos they found of 75 plants grown in 2011 with the 74 live plants they found in 2012 in order to charge the family with growing 100 or more plants. That’s the number that triggers a five-year mandatory minimum prison sentence. This actually made up three of the counts facing the defendants: 1) conspiring to grow and distribute, 2) growing, and 3) distributing. (On Tuesday, the jury found them guilty of growing fewer than 100 plants, but not guilty on charges one and three.)

Then, the feds tacked on another troubling charge: use of a weapon in furtherance of a drug trafficking crime. The Harveys keep multiple guns in their house, which they say are for hunting and protecting their dogs from bears and cougars on their property. (I know this is weird. Guns are terrifying. But they’re common enough in Eastern Washington that having them near a pot grow doesn’t mean you were using them to protect that grow.) It was troubling because it would have added another five-year mandatory minimum.

For the defendants, all of this amounts to the best realistically possible outcome. It was basically impossible to argue they didn’t grow marijuana, thereby breaking federal law, but the other counts were where the real trouble was.

“It’s not a complete win,” said defense attorney Jeffrey Niesen, who represented Rhonda. “But it’s as good as we could have hoped for and still suffered a conviction.”

It means Rhonda can go back to caring for Larry, who was recently dropped from the case after being diagnosed with late-stage pancreatic cancer—at least until her sentencing in June. Larry uses a wheelchair now and couldn’t make it to the courthouse in time for the verdict. “I can’t wait to go tell him,” Rhonda told me afterward.

On the larger question of what this means for federal pot prosecutions in this pro-pot state, the answer is unclear. Many people will read this verdict as a message from Washington citizens that we just won’t allow such fanatical federal prosecutions of something we’ve legalized.

“This sends the hugest message ever to [U.S. Attorney for Eastern Washington] Michael Ormsby, and I hope he’s listening right now,” said Kari Boiter, an advocate with the national group Americans for Safe Access, pausing to wipe tears from her eyes outside the courthouse last night.

What kind of message? “It’s legal,” Boiter said, “and in Washington it has been for 17 years. Can we please stop wasting taxpayer dollars on these types of cases?”

But Ormsby isn’t listening—at least not in the way activists like Boiter want him to. When I caught up with him in the courthouse stairwell just after the verdict was read, Ormsby said nothing about this case would change the way his office goes after people who own guns while they grow pot.

“I still feel very strongly that that’s problematic,” he said. “Guns in the proximity of any substance that’s illegal under the Controlled Substances Act are very problematic.”

The verdict also didn’t seem to phase Earl Hicks, one of Ormsby’s assistant U.S. attorneys who prosecuted this case. After the verdict, Hicks demanded that the court take Rhonda into custody immediately or require her to be subject to electronic home monitoring. District Judge Thomas Rice denied that request, telling Hicks to file it in writing before he’d consider it and freeing the group until their sentencing on June 10.

Rice himself could take the verdict as a signal to have mercy on the family at sentencing, but that’s certainly not guaranteed. Earlier in the day, while I was waiting for the verdict in this case, I sat in on Rice sentencing a man who caused an explosion while making hash oil at his Spokane apartment building last year.

After the defendant apologized for the accident, Rice was swift with a five-year prison sentence and a message: "Drug crimes are not victimless crimes," he told the man he'd just sentenced. Of course, the Kettle Falls Five case is victimless, at least as far as we can tell based on all the evidence presented by both sides over the last week. But all of this is just to say we’re not dealing with a judge who seems to eager to let people convicted with any sort of drug crime off easy.



Even Niesen, one of the defense attorneys celebrating outside the courthouse, was tepid about lasting change.

“This is the current resolution of this case,” said Niesen, who earlier in the day told me he thought the defendants were “horrifically overcharged.”

“Whether or not it will stop the U.S. Attorney from charging other cases similarly,” he said, “I have no idea.”