Pubdate: Sun, 13 Jul 2014
Source: Yakima Herald-Republic (WA)
Copyright: 2014 Yakima Herald-Republic
Contact: http://special.yakimaherald.com/submit/
Website: http://www.yakimaherald.com/home/
Details: http://www.mapinc.org/media/511
Author: Kate Prengarman

MEDICAL POT USERS WITH GUNS TARGET OF DEA RAIDS

Dean Holcomb sits in his Yakima motel room June 27, 2014. Holcomb has
been living off and on in motel rooms since he had to sell his home
following a raid by law enforcement agents and their seizure of
medical marijuna plants from his Lower Valley farm. Holcomb, 58, was
convicted of a misdemeanor marijuna possession and will spend six
months in prison. He must report to authorities July 3, 2014. (GORDON
KING/Yakima Herald-Republic)

Rows of marijuana plants grow at Dean Holcomb's farm in the Lower Valley
in August, 2013. The plants, which were intended for medical marijuana
use, were seized by federal agents Sept. 24, 2013. (Photo by Dean
Holcomb)This cellphone photo shows law enforcement agents hauling off a
truckload of marijuana plants from Dean Holcomb's Lower Valley farm on
Sept. 24, 2014. (Photo by Dean Holcomb)Dean Holcomb sits in his Yakima
motel room June 27, 2014. Holcomb has been living off and on in motel
rooms since he had to sell his home following a raid by law enforcement
agents and their seizure of medical marijuna plants from his Lower
Valley farm. Holcomb, 58, was convicted of a misdemeanor marijuna
possession and will spend six months in prison. He must report to
authorities July 3, 2014. (GORDON KING/Yakima Herald-Republic)In this
Thursday, May 8, 2014 photo, from left, Larry Harvey, Rhonda
Firestack-Harvey, and Rolland Gregg stand in the plaza in front of the
federal courthouse in Spokane, Wash. The three are charged with growing
marijuana at a remote farm near Kettle Falls, Wash. Each face mandatory
minimum sentences of at least 10 years in prison after they were caught
growing about 70 pot plants on their rural, mountainous property.
Medical marijuana advocates have cried foul, arguing the prosecution
violates Department of Justice policies announced by Attorney General
Eric Holder last year that nonviolent, small-time drug offenders
shouldn't face lengthy prison sentences. (AP Photo/Nicholas K. Geranios)
Phone: 509-577-7674
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By Kate Prengaman / Yakima Herald-Republic

Related Information Federal involvement In 2013, in response to states
legalizing marijuana, the Department of Justice announced that it
would continue to let local law enforcement handle most small-scale
marijuana cases and prioritize federal enforcement activities that
prevent:

1. Distribution to minors

2. Gangs, cartels and criminals from profiting

3. Distribution into states where it remains illegal

4. Use as a cover for other illegal trafficking

5. Violence and the use of firearms in cultivation and
distribution

6. Drugged driving and other public health concerns

7. Growing on public lands

8. Possession or use on federal property

YAKIMA, Wash. - When federal drug enforcement agents ordered him at
gunpoint onto his knees in front of his barn last fall, Dean Holcomb
was shocked.

Yes, he had 38 marijuana plants growing on his small farm, located
southeast of White Swan. But he also had three medical marijuana
licenses from the state of Washington allowing him to legally grow up
to 45 plants, taped in the window for law enforcement to see.

But state law doesn't matter to federal authorities, and Holcomb, 58,
heads to prison later this month to serve a six-month sentence after
he took a plea agreement.

The irony that he's heading to prison for marijuana possession just as
stores around the state began selling legal recreational marijuana is
not lost on Holcomb.

"My state turned a good citizen into a criminal," Holcomb said. "And
they took my money to do it."

Pot remains illegal under federal law, though the Obama administration
is allowing Washington and Colorado to proceed with legalizing
recreational marijuana, and the U.S. House just voted to block federal
agents from seizing state-legal medical marijuana.

U.S. Attorney's Offices have broad discretion to prosecute marijuana
cases, and the tipping point in some jurisdictions is whether medical
marijuana growers have guns.

The U.S. Attorney's Office in Seattle, which oversees prosecutions in
Western Washington, has shown little interest in going after medical
marijuana growers and users. Not so with the U.S. Attorney's Office in
Spokane, which prosecutes cases east of the Cascades.

Holcomb is not alone.

At least four other cases have been filed recently in Eastern
Washington's federal courts. One involves Kettle Falls family members
who will go on trial later this month, possibly facing a decade or
more in prison. In another case, a Union Gap man was sentenced two
weeks ago to 30 months in prison. Defense attorneys contacted for this
story said there are at least two other similar cases from the Yakima
area pending in federal court.

"The thing they seem to have in common is there is always a firearm
somewhere," said attorney Jeff Steinborn of Seattle. "If you are
growing pot in your garage and there's a gun in your bedroom, they can
charge you. But is that what Congress intended?"

In federal court, defendants effectively have no means for defense
because they are not allowed to present evidence that they were
operating within state law or growing for personal medical use, said
Douglas Hiatt, a Seattle attorney who specializes in medical marijuana
cases.

"The federal government's not supposed to be dragging little folks
into federal court," Hiatt said. "The DEA and the U.S. Attorney's
Office are depriving Washington citizens of the defense (legal medical
use) that Washington citizens wanted them to have."

Hiatt added that he's seen more medical marijuana cases filed since
U.S. Attorney Michael Ormsby was appointed to the Eastern District of
Washington in 2010.

State-specific data is not available, but the national medical
marijuana advocacy group Americans for Safe Access says that the U.S.
Justice Department prosecuted 243 patients in the past 17 years, at a
cost of $68 million. California and Washington, where medical
marijuana has been legal for years, have the highest number of federal
raids and prosecutions among the 23 states that allow use of medical
marijuana, said Kris Hermes, a spokesman for Americans for Safe Access.

Washingtonians voted to legalize medical use of marijuana in 1998. In
2008, after concerns about the legality of dispensaries, the
Legislature created the "grow-your-own" system many patients in the
state use.

Holcomb's case is complicated by the fact that his property is within
the boundaries of the Yakama Nation reservation, a sovereign nation
independent from state laws, but with a patchwork of privately owned
and tribal land.

All marijuana remains illegal on the reservation under tribal and
federal laws, said Jodie Underwood, a spokeswoman for the federal Drug
Enforcement Administration, which conducted the raid last fall after a
request from tribal police.

But tribal police are not the only ones calling the DEA about medical
marijuana gardens, said Yakima attorney Greg Scott. The combination of
growing marijuana and owning guns can look like drug dealing, and
local law enforcement officers may opt to call in the DEA.

That's what happened to Scott's client, a 34-year-old who lost an arm
in a snowmobile accident and uses marijuana to manage pain. Curtis
Roberts' home was raided by federal agents in June 2013 after Union
Gap police alerted the DEA that Roberts had a medical marijuana garden
and owned several guns, Scott said, even though everything was in
compliance with state law.

"It's not an isolated case," Scott said. "It's a trap. We've got a
Second Amendment right to bear arms, and nobody ever tells me that if
I am also using medical marijuana I have committed a felony."

Under federal law, it is illegal for a drug user to possess a firearm,
even if the gun was legally purchased, creating the potential for
conflict between state-legal marijuana and Second Amendment rights.

Assistant U.S. Attorney Joe Harrington in Spokane said that if guns
are involved in a marijuana investigation, federal prosecutors are
more likely to pursue the case. He had no comment about whether his
office pursues marijuana cases more aggressively than the U.S.
attorney for Western Washington.

A spokesman for the Seattle office, Assistant U.S. Attorney Todd
Greenberg, said he was not aware of any prosecutions of individual
medical marijuana patients in recent years in Western Washington.

Kari Boiter, Washington coordinator for Americans for Safe Access,
said she's concerned about store owners or growers licensed under the
state's new recreational market in Eastern Washington facing federal
prosecution, especially if they own guns.

"I'm not supposed to say this and rain on everyone's parade, but I am
worried for people," Boiter said. "In Montana, the U.S. attorney was
viciously opposed to marijuana and used guns as an excuse to prosecute
people ... even though the state licensed and regulated
dispensaries."

A farmer and construction worker, Holcomb grew marijuana for himself
and two others on the small ranch he owned. He also leased adjacent
land from the tribe to raise corn, hay and livestock, while taking
contractor jobs as they came along. After the raid, he had to give up
his leased farmland, sell his property and his livestock, and he lost
a construction job at the Yakima Training Center because he'd been
charged with a felony.

After decades of hard work, he says he has nerve damage in his foot
from a torn Achilles tendon and herniated disks in his back, but
Holcomb said he hates taking pain pills. Although marijuana controlled
his pain without the same side effects, he was initially skeptical of
growing it through the state's medical grow-your-own system.

"I was afraid to do it, but after watching other farmers do it and not
get in trouble, I decided to try it," Holcomb said.

Before getting started in 2010, Holcomb said he called Yakima County
Sheriff's Office and the Yakama Nation Tribal Police to verify that he
could legally grow medical marijuana on private land.

But in 2013, tribal police contacted the DEA about Holcomb's marijuana
and requested its assistance, Underwood said.

Tribal police did not return requests for comment on this
story.

On Sept. 24, federal agents and tribal police rushed onto Holcomb's
property, guns drawn, he said. He was surprised that tribal police
participated in the raid, even pointing a gun at him while he was down
on his knees.

He was growing on private land and paying taxes to Yakima County, so
he thought he was subject to state law, not tribal
jurisdiction.

The Yakama Nation began publicly stating its opposition to the state's
recreational marijuana legalization about a month after the raid,
including its willingness to call in federal agents to crack down on
grows.

Underwood said "agents located and seized 38 marijuana trees, of which
a majority were approximately 8 feet tall and 5 feet wide. Agents also
located and seized over 186 ounces of processed marijuana."

That's more than twice as much processed marijuana as is legal to
possess under the state's medical system. But Holcomb said what the
agents called his "processed" marijuana had just been picked and was
not dry yet, therefore heavier than what the usable product would be.

Details like this - what counts as processed marijuana, whether baby
plants started for the next season count toward the per-person limit
of 15 plants, how the legal limit can be adjusted for patients who
demonstrate greater need - are unclear in the state's medical
marijuana law, which leads to confusion for patients and law
enforcement, said Alison Holcomb, director of the state ACLU's drug
reform project and lead author of the state's recreational marijuana
law. She's not related to Dean Holcomb.

In 2009, the Department of Justice said it would not prosecute cases
where medical marijuana users were in clear compliance with state law,
but Alison Holcomb said she believes Washington's medical marijuana
law "is such a mess that it's difficult for patients to have any
assurances that they won't be targeted by federal prosecution."

On the other hand, the participants in the state's new, highly
regulated legal recreational market are unlikely to risk federal
prosecution, she said, because the compliance with state law is more
clear.

But Boiter said if the confusing state's law were the problem, she
wouldn't see such a disparity in prosecution between Eastern and
Western Washington. She believes the U.S. attorney has too much power
to decide who to prosecute and worries that recreational growers and
store owners on the east side of the state who own guns could face
federal felony charges just like the medical growers.

In addition to the marijuana, agents confiscated three guns off Dean
Holcomb's property. A lifelong hunter who also carried a pistol for
protection on the remote part of the reservation where he lived,
Holcomb said he never thought twice about having guns on the property.

But for local law enforcement, the presence of guns and relatively
large marijuana gardens can suggest that someone might be taking
advantage of the state's medical system to deal in marijuana illegally.

Such was the case with the arrest of Union Gap resident Curtis
Roberts.

"If there are concerns about if this is actual medical marijuana or
someone dealing under the cover of a medical marijuana card, we may
decide to refer the case to the DEA," said Union Gap police Chief Greg
Cobb.

According to court documents, Union Gap officers called the DEA about
Roberts after he told the officers that he had processed marijuana and
a pistol in a backpack.

Roberts had actually called police to his Union Gap home in June 2013;
he and his girlfriend were drunk and fighting and she had gotten
aggressive, according to his attorney.

Assuming that everything was legal, Roberts showed the officers his
plants and the marijuana cards for himself and two others for whom he
was growing.

The officers left, but soon after, DEA agents crashed through his door
and confiscated the plants, three guns and the growing equipment.

Cobb said he could not comment on a specific case, but he said he
believes his officers make appropriate decisions about when to pass an
investigation along to the DEA.

"We do know that if it appears that someone is taking advantage of the
spirit of the law, it's much more efficient for us to refer that to
the DEA," Cobb said. "Simply referring the case doesn't mean they will
indict."

But defense attorneys say they've seen prosecutions become more common
in Eastern Washington.

"We've had medical marijuana for a long time. Mostly, the feds were
not interested in cases with less than 100 plants," Scott said. "What
I see recently is situations where they are going after people for
much less than 100 plants if they can find any kind of weapon involved."

Yakima County Sheriff Ken Irwin said while guns can be a factor, his
office generally only refers high-volume cases to the DEA, such as a
garden with 100 or more plants.

Harrington, the assistant U.S. attorney in Spokane, said his office
follows Department of Justice guidelines in deciding whether to
prosecute marijuana cases. One of the eight priorities is cases where
firearms are used in the cultivation and distribution of marijuana.

What qualifies a gun as "involved" depends on the facts of each case,
Harrington said. A hunting rifle locked in a gun case, unlikely. A
permitted concealed-carry pistol, more likely.

"Bottom line is we are following the DOJ policy memo and there's a lot
of different factors involved," Harrington said. "We look at cases
when firearms are involved; in some of them we prosecute, others are
dismissed. It's all fact-specific to the investigation."

In Roberts' case, the charges for being a drug user in possession of
firearms potentially added decades to a mandatory minimum sentence.

"With no criminal history, he (was) looking at 55 years on just the
gun charges," Scott said. " ... If this (went) to trial, I would (have
been) prohibited from mentioning to the jury that he has a legitimate
medical use. He has to take the plea."

Roberts was sentenced to 30 months in prison after taking a deal to
plead guilty to being a drug user in possession of a firearm.

Dean Holcomb took a plea agreement, too. He was initially charged with
a felony for the manufacture of marijuana and for being a drug user in
possession of firearms, but his attorney got the gun charges dropped
and he pleaded guilty to a misdemeanor marijuana possession charge.

On his attorney's advice, Holcomb waited until after his sentencing to
tell the media about his case. But the Kettle Falls family heading to
trial later this month have taken their story to anyone who would
listen, including Congress.

Retired truck driver Larry Harvey, 70, and his wife, Rhonda
Firestack-Harvey, 55, say they grew marijuana for themselves, two
other family members and a friend, for a variety of medical
conditions, including gout and chronic pain.

Federal agents confiscated 68 plants and several guns from the rural
property, about 80 miles north of Spokane, and they now face mandatory
minimum sentences of 10 years in prison.

In a letter to U.S. Attorney General Eric Holder in February,
attorneys representing the family argued that federal prosecutors
should not have so much discretion to pursue cases against medical
marijuana patients.

"While the U.S. Attorney for Eastern Washington is zealously pursuing
cases involving as little as 15 plants, his counterpart in Western
Washington has taken a 'hands off' approach, allowing a commercial
industry to develop," they wrote. "This creates an equal protection
problem of epic proportions."

"This is a public policy problem," said Boiter, of Americans for Safe
Access. "It shouldn't be these patients on the hook to sort out these
laws."

The bill that passed the U.S. House last month would prevent DEA raids
on those individuals or businesses complying with the laws of their
states, but if it ultimately becomes law, it will be too late for
Holcomb. He is still angry with the state and considering his legal
options.

"Washington state should not be issuing these permits if this can
happen," Holcomb said. "They just destroyed my life." 
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