Pubdate: Wed, 04 Mar 2015
Source: Stranger, The (Seattle, WA)
Copyright: 2015 The Stranger
Contact:  http://www.thestranger.com/
Details: http://www.mapinc.org/media/2241
Author: Heidi Groover

A STUNNING OVERREACH FROM THE DEA IS PLAYING OUT IN EASTERN WASHINGTON

In Federal Court, There's No Such Thing as Medical Marijuana-So a 
Rural Family of Medical Marijuana Patients Is Being Treated Like Drug 
Traffickers

Before Rhonda Firestack-Harvey was part of a nationally watched court 
case that could change the course of the federal drug war, she lived 
quietly with her husband in their modest double-wide mobile home two 
hours northwest of Spokane.

Rhonda suffers from carpal tunnel and osteoarthritis. In 2011, she 
got a doctor's recommendation to use marijuana for her achy joints. 
Her husband, Larry, also got medical authorization to use marijuana 
to treat pain caused by gout. Washington State was one of the very 
first states to approve medical marijuana, way back in 1998, and 
under state law, medical marijuana patients are allowed to grow their 
own medicine. When Rhonda and Larry started a grow on their property, 
Larry posted a sign with a green cross on it near the plants, hoping 
it would communicate to anyone flying over that this was a medical 
grow, not a criminal operation.

But in the trial under way right now in a federal courthouse in 
Spokane, as a jury was looking at an aerial image of the grow-an area 
"smaller than a tennis court," as CNN puts it-defense attorneys were 
not allowed to point out Larry's sign in the yard. It was a tiny 
white spot in the corner of the photograph. Nor were they allowed to 
say what was on the sign.

That wasn't the only odd silence. In this courtroom, defense 
attorneys aren't even allowed to utter the words "medical marijuana." 
In a federal courthouse, the only thing that matters is federal law. 
And federal law says marijuana is a Schedule I drug, considered more 
dangerous than meth.

"You will apply the law as I give it to you," US District Court judge 
Thomas Rice told the jury, "whether you like the law or not."

Rhonda, her husband Larry, Rhonda's son Rolland Gregg, Rolland's wife 
Michelle, and a family friend named Jason Zucker were all charged 
with drug crimes in 2013. The charges included growing and 
distributing marijuana and owning guns "in furtherance of a drug 
trafficking crime." Combining photos they found of plants from 2011 
and the 74 live plants they found in 2012, the government claims the 
family grew 100 or more plants, meaning that, if convicted, they'll 
face five-year mandatory minimum prison sentences. The guns will add 
another five years on top of that.

Rhonda and Larry were also charged with maintaining "drug-involved 
premise[s]." All five of these people were authorized to use 
marijuana for medical purposes, and under state law, each of them was 
allowed to have 15 plants, but only 45 total if they were growing as 
a collective.

The Harveys had never grown marijuana before, and that's where Zucker 
came in. Zucker lives in Seattle and is an experienced grower. He 
also has three marijuana-related convictions, including a felony for 
possession with intent to distribute. Throughout the two years the 
family grew pot near the tiny town of Kettle Falls, Washington, 
Zucker would make occasional trips across the state to help tend and 
harvest the plants. Rolland and Michelle, who also live in Western 
Washington, would come over, too, under the verbal agreement that the 
five would split their crop evenly.

One hot August morning in 2012, Rhonda answered the door for nine 
armed state and federal officers and stood by as they rifled through 
her house and yanked pot plants from the ground. The family had come 
to the attention of local law enforcement when a Civil Air Patrol 
pilot spotted the grow, so county detectives got a warrant, raided, 
and pulled out 29 plants, bringing the crop down to the state limit 
of 45 for a collective. But before they went to the property, those 
local officers had told a Spokane-based DEA agent it looked large 
enough to be a federal case, so the DEA agent went along for the 
raid. A week later, that agent served a warrant of his own-a federal 
warrant, meaning every single plant was a target.

During both raids, officers found multiple guns the family says were 
for hunting and protection. (After all, they live in the middle of 
nowhere.) A rifle, a shotgun, and a pistol found near the marijuana 
are now the crux of the government's case. That's because, for all 
the supposed leeway the Feds have given states like Washington in 
pursuing their legalization experiments, weapons near drug operations 
are a "bright red line." Those were the words used by Michael Ormsby, 
the US Attorney for Eastern Washington, when I interviewed him about 
this issue last year. (He declined to talk specifically about this 
case.) The existence of the guns allows the Feds to portray the 
family as drug traffickers-scheming cartel operators armed with guns 
to protect their cash crop. That's especially troubling considering 
that the family's actual defense, their status as medical marijuana 
patients, is inadmissible in court.

Rhonda was sitting quietly in a windowless courtroom between two 
lawyers last week, her jaw set and her fate unclear. Her lawyer, and 
the lawyers representing her son and daughter-in-law, were doing 
their best to make their case in spite of being legally prohibited 
from making their case. Instead, the lawyers painted the family as 
honest and hardworking, calling them "salt of the earth people." 
Obviously, they couldn't say what they wanted to say, what Rhonda 
wishes she could shout at the jury: The plants were for medical use. 
Washington State has a medical marijuana law.

Complicating things for Rhonda and her family, right before the trial 
started, Zucker turned on the group. Given his prior marijuana 
convictions, he was looking at as much as 40 years in prison, the 
defense lawyers say. Zucker also has a wife and a young daughter. In 
exchange for just 16 months in prison (even less with good behavior), 
he agreed to testify against the others.

Also, days before the trial, charges were dropped against Larry, 
Rhonda's 71-year-old husband, who has been diagnosed with late-stage 
pancreatic cancer. His medical condition has confined him to a 
wheelchair and could kill him before the leaves turn this fall. He's 
now spending what are likely his last days being wheeled into a 
courtroom to watch his wife and primary caregiver struggle to defend 
herself. He has been weighing whether to take the stand in her 
defense. The defense recently requested that if he does testify, the 
court authorize audio or video recording of his testimony in case he 
dies before there's an appeal. The judge denied the request, saying 
any future courts would have to rely on a transcript.

If it weren't so depressing, this case would almost look like a 
farce, watching the family's defense attorneys try to defend them but 
being muzzled, given the family's true defense. Attorney Phil 
Telfeyan is reduced to making statements to the jury like "This case 
is about two things. First it's about a family... Second it's about 
an overzealous prosecution by the federal government."

As for the loaded guns in the house, this is just a fact of life in 
Eastern Washington, especially in the more rural areas outside 
Spokane, like where the Harveys live. Guns are normal here. A lawyer 
who often represents marijuana users likes to joke to reporters that 
it's against the law not to have a gun in this part of the state. The 
53 potential jurors summoned for this case were primarily churchgoers 
and NRA members. Just one woman spoke against gun ownership altogether.

Still, the family's chances don't look good. While the Feds may not 
win in a court of public opinion-where recent polls show 77 percent 
of Americans think marijuana has legitimate medical uses and 52 
percent think it should be legalized altogether-they have the upper 
hand here in the courtroom. It is not hard to prove this family grew 
marijuana or that doing so is against federal law.

At one point last Friday, day three of the trial, after the jury had 
left for a 15-minute break, Assistant US Attorney Caitlin Baunsgard 
bolted up from her chair. She'd zeroed in on a two-inch green ribbon 
with a red cross on it that Rolland Gregg had pinned to his purple 
sweater. "It's clearly indicative of what it's trying to convey to 
the jury," she told the judge.

Whether the jury would even see the small pin was unclear. It was 
also unclear whether they would know it might symbolize medical 
marijuana. But the federal prosecutors are fanatic about not 
reminding the jury about the existence of medical marijuana, much 
less its long history in the state where this courtroom is located. 
Baunsgard asked the judge to require Rolland to take off his pin, but 
the judge didn't make a decision immediately. The court recessed, and 
the family used the break to strategize about where the pin came 
from, arguing-despite the obvious-that it represented Larry's fight 
against cancer.

Eventually, the judge sided with the prosecution and ordered Rolland 
to remove the pin. In the process, the judge said, "That was going to 
be my next question: Does it have anything to do with medical 
marijuana? Because cancer patients are often known to use medical marijuana."

It was maddening to hear the judge say that-acknowledging not only 
marijuana's medical value but also one of its most common and 
defensible uses-while at the same time refusing to let the jury hear it.

Many of the onlookers are medical marijuana activists, and they all 
know what that pin means. They know the untold story it represents. 
The two women from DOPE Magazine who sometimes grip crystals as they 
watch the proceedings know what it means. When the judge saw two 
onlookers, a man and a woman, wearing red hooded sweatshirts that 
said "Save Medical Cannabis," he ordered them to take them off or 
turn them inside out. He also made an audience member wearing a green 
ribbon with a red cross on it take it off. When one of the people in 
the sweatshirts protested that they were "exercising our First 
Amendment right," the judge replied, "You don't have a First 
Amendment right in this courtroom in front of this jury... You are 
not to telegraph to this jury any message... We're not here to 
express our First Amendment rights in front of this jury." If they 
wore their sweatshirts again, he said, they would be held in contempt.

The case is being followed closely by the marijuana advocacy 
community and is making national headlines. A conviction of this 
family, known as the Kettle Falls Five, could spark outrage among a 
whole range of people, from state's rights supporters to gun rights 
activists to lefty pot activists, but federal pot policy is unlikely 
to change anytime soon.

An acquittal, or even the judge being willing to sidestep mandatory 
minimums and deliver a lesser sentence, could be monumental. That 
could send a message to federal prosecutors that these cases aren't 
worth going after, or at least signal that some portion of the 
public's shifting perspective on pot has made it into the courtroom.

On Friday afternoon, Jason Zucker took the stand. He is both the 
prosecution's best argument and the closest the defense can get to 
showing the jury what's really at stake.

Zucker detailed how he grew 75 small plants from seeds and clones in 
his basement, the trips he made back and forth from Seattle to 
Eastern Washington to help plant and care for them, and the 28 pounds 
of bud he took home at the end of the growing season. He sipped water 
from a Styrofoam cup, avoiding eye contact with those at the defense table.

In the argument over whether the group "conspired" to grow and sell 
cannabis, the defense claims the lack of a written agreement means 
the Feds have no proof of a conspiracy. The prosecutor asked Zucker 
why they never signed a formal contract like that.

"I don't know," Zucker said. "I guess we trusted each other."

But Zucker also said the group never discussed selling the pot and 
that he smoked most of his on his own or shared it with friends.

In an attempt to discredit him because of the pressure he's under to 
help the prosecution, Telfeyan, the defense attorney, repeatedly 
returned to the lengthy jail sentence Zucker could have faced. In the 
same moment, Telfeyan was giving the jury a sense of what a "guilty" 
verdict could mean for those who still have charges against them.

Telfeyan asked Zucker: Isn't it true that the combination of the drug 
charges, the guns, and Zucker's record could add up to anywhere 
between 10 and 40 years?

Yes.

And he's been in jail before for his last felony, right?

Yes.

And isn't it fair to say that being incarcerated is an "awful experience"?

Yes.

On the way back into the courtroom after a lunch break one day, Sam 
Keiser, the DEA agent who led the raids, lugged a bulky blue bin full 
of one-pound bags of pot he took from the Harveys' property.

Kris Hermes, a medical marijuana advocate who's been doing media 
relations work on behalf of the family, sighed as he watched Keiser 
maneuver the bin through the courtroom doors. Hermes has worked on 
marijuana advocacy for more than a decade. He is an upbeat guy, but 
the defendants' prospects in this case are bleak. Hermes said he's 
"never seen a patient who was tried in federal court be acquitted by 
a jury." But he is hopeful that someday, eventually, change will come.

Watching Keiser lug around the seized marijuana, Hermes said to him, 
"One day you won't have to do this anymore."

Keiser stared at Hermes blankly for a minute, and then continued into 
the courtroom, where the war on drugs rages on.

Shortly after this was published, Larry decided not to testify and 
lawyers on both sides made their closing statements.

Shortly after that, the jury returned with a verdict: Not guilty on 
four of the five charges.
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MAP posted-by: Jay Bergstrom