POST CATEGORY: Access, Northwest, Profiles

Kettle Falls 5 face legal showdown with feds

May 11, 2014 | WES ABNEY

A year before voters legalized it, the feds raided a legal patient grow, ignored paperwork, convinced a judge for a warrant on trumped up charges and called it a day hurling phrases like 'decade-long-sentence' at legal patients in Kettle Falls, Washington.

kettlefalls5-image.jpg
Five medical Cannabis patients
in Washington are facing over 65 years in prison for growing medicine legally under state law.

The Kettle Falls 5, as they have been dubbed, serve as a direct contradiction of the Obama administration's insistence that they “are not prosecuting individual patients at this time.”

It all started with a civilian air patrol flyover in the summer of 2012. The patrols are considered routine in areas known for growing Cannabis outdoors; helicopters and planes fly low with spotters looking for plants.

About 90 minutes outside of Spokane, Larry Harvey, 70, and his wife, Rhonda Firestack-Harvey, 55, own 33 acres in a remote area near Kettle Falls. They were growing with Firestack-Harvey’s son, Rolland Gregg, his wife and three others who have asked not to be named. They had seven current authorizations for medical Cannabis on the property, as of August 2012, and kept their plant counts within legal limits. They had also prepared for the air patrol, painting a sheet of plywood with a giant green cross and placing it next to the outdoor garden on the edge of their property. It's the northeast corner of Washington. 

In states such as California, where outdoor growing is both prevalent and tolerated, the green cross is known to be a symbol clearly visible from the air. But the day the air patrol flew over, the sign was ignored. They passed their discovery of the grow information to the local sheriff's department. The authorities filed for a search warrant, ignoring evidence that it was a medical grow in the affidavit  before raiding the house on Aug. 9, 2012.

They placed Firestack-Harvey under arrest after she indicated that the grow was medicinal. Then they seized 29 plants, cash, legal firearms and other personal assets while leaving 45 plants on the property. The group thought that was a signal that they were still OK under state law, and the local Stevens County prosecutor appeared to agree. According to records, no charges were filed relating to the grow in state court.

Then a strange thing happened. One week later, Drug Enforcement Agency agents knocked on their door. The grow was cut down, vehicles and motorcycles were seized, along with anything else of potential value under asset forfeiture actions. Again, search warrant affidavits showed that the medical legality was not mentioned, and the judge who signed the warrant believed it was a black market illegal grow.

During the next year, as Washington's voters chose to legalize Cannabis, the case was dormant. Then, in February 2013, five of the seven who were connected with the grow were indicted and charged in federal court with six felonies each: conspiracy to manufacture and distribute marijuana, manufacture of marijuana, possession with intent to distribute marijuana, distribution of marijuana, possession of a firearm in furtherance of a drug trafficking crime and maintaining a drug-involved premises.

kettlefalls5-quote.jpgThey all are facing mandatory minimum sentences of 10 years with the potential for life in prison.

For Gregg, the experience has been a nightmare that he cannot wake up from.

“We thought we were following state law,” he said in a phone interview before the April 22 pretrial hearing. “We never imagined this could happen.”

The case went to a pretrial hearing April 22 in the courtroom of Judge Fred Van Sickle at the Thomas S. Foley U.S. Courthouse in Spokane. The five defendants presented motions regarding the issues with the search warrants, which had merit for a Franks Hearing, which would have investigated the information used on the search warrant in further detail. The motions clearly got under the skin of Assistant U.S. Attorney Earl Hicks, who exploded in the courtroom with a rant.

This reporter was in the courtroom to record Hicks' diatribe.

“I have one question for you. Where are we right now? Federal court! Federal law says you can't grow pot,” Hicks yelled, looking across the courtroom. “Under federal law you could be arrested for growing two plants ... Under federal law it doesn't matter that they had [MMJ authorizations]. It's a violation of federal law.”

But he wasn't done yet.

“I have chosen, right here as a federal prosecutor, to prosecute them. This is just as much a firearms case as it is a marijuana case. It is the lawlessness of the MMJ community that has led to this ... and this federal prosecutor right here will not tolerate firearms at a marijuana grow. We will vigorously prosecute them and anyone else with a firearm [legal or not] at a marijuana grow.”

In the end all motions were denied, and the case has moved forward for trial scheduled to begin May 12. Defendant Larry Harvey spoke to the media after the pretrial hearing, echoing similar sentiments as Rolland.

"We were growing a few pot plants up there just for our own consumption and along comes the law," Harvey said to local news station KXLY. "We thought we were legal, as far as the state is concerned we were legal," Harvey said. "But the federal, we didn't understand that at all."

This is all because of disparity between federal and state laws, said Seattle attorney Douglas Hiatt, who has consulted on the case.

“If I walk into federal court to defend a case like this and I mention medical Cannabis laws, they will tell me to shut up or they'll put me in jail,” Hiatt explained. “I am tired of patients being prosecuted under federal law. This case is a perfect example of the proof that at any time a U.S. attorney can take you into court, and you can't even raise a medical defense. There's no justice if you can't tell the truth.”

While many patients and recreational users alike have been lulled into complacency since Cannabis was “legalized” in Washington, Hiatt wants everyone to be aware of what can really happen.

“If you are a MMJ patient in Eastern Washington and you have an interaction with local law enforcement and you have a gun, it can and will turn into a situation where the feds come and get you. Now don't get me wrong. I hate guns, but if I lived in that part of the state with bears and cougars in my backyard I would want a gun too. This whole situation is a tremendous misuse of federal power.”

Any patient growing in Washington should be aware of this case, and the potential for further federal actions.  It has become the all to clear reality for Gregg.

“My experience has taught me that no matter where a person grows, the feds and local law enforcement will seize your assets and divide the proceeds. I learned there is an equitable sharing program that pays local and state law enforcement for busting medical marijuana patients and providers, making it extremely profitable for local cops to cooperate with the feds. All five of us defendants have joined forces to fight this together, but the government keeps offering plea deals, trying to break us down. Right now, going to trial is the best way to defend ourselves.”

Still, he hasn't lost his faith in medical Cannabis.

“It hasn’t really changed my perspective on medical marijuana, but I no longer trust the federal government.”

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