On Friday the three remaining defendants in the Kettle Falls Five marijuana case, which involves Washington residents who grew their own medicine in a state that allowed them to do so, were sentenced to federal prison.
Rolland Gregg got 33 months—more than two and a half years—while his mother, Rhonda Firestack-Harvey, and his wife, Michelle Gregg, each received a one-year sentence. Those terms are much shorter than the potential sentences they faced when their trial started in March, which included a 10-year mandatory minimum. But any prison time at all for growing 70 or so marijuana plants would be anomalous in a state where hundreds of state-licensed businesses, serving recreational consumers as well as patients, openly grow and sell much larger amounts.
Federal prosecutors contended that the Greggs and Firestack-Harvey—together with her husband, Larry Harvey, who died of pancreatic cancer last August, and a family friend, Jason Zucker, who pleaded guilty just before the trial in exchange for a 16-month sentence—were growing marijuana for distribution. But there was little evidence of that. The five of them openly grew their plants outside the home that Rhonda and Larry shared in northeastern Washington, on a plot marked by a sign bearing a large green cross that was visible from the air.
They all had doctor's letters recommending marijuana for the treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Their plant total was below Washington's presumptive limit of 15 per patient, and prosecutors could not cite a single sale by what they described as a criminal enterprise or any evidence of large illicit profits.
The defense was not allowed to tell the jurors why Gregg et al. were growing marijuana, since federal law makes no distinction between medical and recreational use. But several jurors said during voir dire that they had read press reports about the case, all of which mentioned the medical angle, and by the end of the trial anyone who was paying attention would have figured out what was going on. Presumably that is why the jury acquitted the defendants of almost all the charges against them.
The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys' hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana.
The one remaining charge—cultivation of more than 50 but fewer than 100 plants—did not carry a mandatory minimum penalty, leaving U.S. District Judge Thomas Rice wide lattitude in sentencing.
The defense asked for probation, while the prosecution recommended 41 to 51 months. Rice, who worked for 25 years in the U.S. attorney's office that brought the Kettle Falls Five case, settled on terms in between. The defendants remain free pending their appeals.
U.S. Attorney Michael Ormsby's interest in this case was puzzling from the beginning, especially given the relatively small number of plants involved, and seemed to contradict a Justice Department policy that says prosecuting medical marijuana patients who comply with state law is generally not a good use of federal resources. Continued pursuit of the case also seemed to violate a spending rider aimed at stopping federal interference with state medical marijuana laws.
Before the rider was approved last year, the DOJ warned that it would have a dramatic impact on federal cultivation and distribution cases; after it was approved, the department suddenly decided it had no impact at all. Rice rejected the argument that the rider compelled Ormsby to drop the Kettle Falls Five case, which is one of the possible grounds for appeal.
By Jacob Sullum - Reason/Oct. 4, 2015
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