Victory in the ‘Kettle Falls Five’ Case

A federal judge has vacated the convictions of three people sentenced to prison for growing state-legal medical marijuana in Washington. Judge Thomas O. Rice’s decision yesterday followed prosecutors’ admission that “the United States was not authorized to spend money on the prosecution of the defendants…because the defendants strictly complied with the Washington State medical marijuana laws.”

The prosecutors were alluding to the Rohrbacher-Farr amendment, a provision included in every federal budget since 2014. The amendment states that “none of the funds made available in [the federal budget] to the Department of Justice may be used…to prevent…States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The Department of Justice had originally interpreted the amendment as prohibiting only the prosecution of state officials, thus allowing it to prosecute the trio; the Ninth Circuit repudiated that interpretation of the law in 2016.

The three defendants—Rhonda Lee Firestack-Harvey, Michelle Lynn Gregg, and Roland Mark Gregg—were indicted in 2013. Along with two other defendants, they were widely known as the “Kettle Falls Five.” For the last five years, the government has relentlessly sought to send the three to prison on a host of drug trafficking charges. (The other two defendants, Jason Zucker and Lee Harvey, were no longer parties to the case by the time of the trial. Prosecutors dropped charges against Harvey due to his terminal pancreatic cancer, and Zucker took an 11th-hour plea deal and testified against his former co-defendants.)

In March 2015, a jury acquitted the three of all but one of the charges they faced. They were convicted of producing 74 cannabis plants. (In accordance with the judge’s pretrial ruling, the jury had not been told that the plants were intended for medicinal use.) The trio was subsequently sentenced to prison terms ranging from 12 to 33 months. In October 2015, the three filed an appeal arguing, among other things, that the Rohrbacher-Farr amendment barred their prosecution. The government ultimately agreed and asked the judge to dismiss the case. The growers’ attorney, Phil Telfeyan, says prosecutors told him they were unable to adequately counter his legal arguments.

The defendants are not entirely out of the woods yet. Despite the defense’s request that the court prevent the government from reopening the case for any reason, the dismissal was granted “without prejudice.” That means the feds can recharge them within six months if the Rohrbacher-Farr amendment is repealed.