DOJ Admits It Isn't Legal To Keep Prosecuting Washington State Medical Marijuana Users

The so-called Kettle Falls Five were first charged in 2012.
Rhonda Firestack-Harvey (left), her son, Rolland Gregg, and his ex-wife, Michelle Gregg, have been facing prison time for vio
Rhonda Firestack-Harvey (left), her son, Rolland Gregg, and his ex-wife, Michelle Gregg, have been facing prison time for violating federal marijuana law.

The Department of Justice has agreed with defense lawyers that five Washington state residents ― including members of the same family ― who said they grew and used marijuana for medical reasons had complied with state law and that the U.S. government shouldn’t have pursued federal charges against them.

In a brief filed late Monday in the U.S. Ninth Circuit Court of Appeals, DOJ lawyers acknowledged that the department “was not authorized to spend money on the prosecution of the defendants after December of 2014 because the defendants strictly complied with the Washington state medical marijuana laws.”

The defendants became known as the Kettle Falls Five, because of the region in eastern Washington where they live. Three have been facing prison time, following the death from cancer in 2015 of Larry Harvey ― the patriarch of the family in the case ― and a plea deal taken by family friend Jason Zucker to testify against the other defendants. 

The remaining three were sentenced in 2015. Rhonda Firestack-Harvey, 59, the wife of Larry Harvey, was sentenced to a year and a day in prison. Her son, Rolland Gregg, 35, was given a 33-month prison sentence, and his now ex-wife, Michelle Gregg, 38, was sentenced to a year and a day. All three also were sentenced to three years of probation.

The trio have remained free as they appealed their sentences.

The case received national attention as critics of the federal government’s ban on marijuana blasted the DOJ for prosecuting state-registered medical marijuana growers and patients in a state where pot is legal for both medical and recreational purposes.

“This case has turned the justice system completely on its head,” said Kari Boiter, who became a spokeswoman for the Kettle Falls Five. “Here we have prosecutors admitting that it’s the DOJ who is breaking federal law, not the other way around.”

State authorities raided the Harvey family home in 2012 and found more than 70 marijuana plants growing nearby. The defendants maintained that the marijuana patch complied with state law and the plants were for their own medical use. Washington state legalized marijuana use for medical reasons in 1998 and allows the growing of it for that purpose. The state legalized recreational marijuana use in 2012.

The five were originally charged with distribution of marijuana, conspiracy to distribute, and a violation of firearm laws ― all of which carried harsh prison sentences. Charges were dropped against Larry Harvey because of his terminal illness, and Zucker took his plea deal right the trial started.

In 2015, a jury cleared the three remaining defendants of all the charges except illegal cultivation of marijuana.

Twenty-nine states, the District of Columbia, and the U.S. territories of Guam and Puerto Rico have enacted laws legalizing marijuana growth and use for medical purposes (17 other states have laws allowing limited use of cannabidiol, or CBD, the non-psychoactive ingredient in pot that holds promise for therapeutic use).

Meanwhile, a federal marijuana provision that lawmakers have been renewing since it first passed in 2014, known as the Rohrabacher-Farr amendment, prohibits the DOJ from prosecuting medical marijuana operations that are legal under state laws. In 2016, the ninth circuit appeals court ruled unanimously that the Rohrabacher-Farr amendment blocks federal officials from prosecuting state-legal marijuana operators and patients.

The DOJ lawyers cited that ruling in the brief filed Monday.

“This court determined that [Rohrabacher-Farr] prohibits the Department of Justice from spending funds for the prosecution of individuals who engaged in conduct permitted by the state medical marijuana laws and fully complied with the laws,” the brief said.

That prohibition, the lawyers said, extends to expenditure of DOJ funds even if the prosecution was properly initiated prior to the enactment of the Rohrbacher-Farr provision, the brief said.

Despite the admissions by the  from DOJ, the brief did not recommend charges be dropped against the three defendants. Instead, it urged that further proceedings in the case be bumped back to a federal district court. Still, lawyers for the family are expected to seek the case’s dismissal.

“Let’s not forget that Larry Harvey gave his life fighting for his family’s freedom ― and spent his final months on Earth working to pass the federal law that is cited in the prosecutors’ new motion,” Boiter said. “The federal government can’t give Larry back, but they can start to right this wrong by fully exonerating the surviving defendants, once and for all.”



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