People Are Getting Busted for Growing 'Legal' Weed in Washington

There’s a sign welcoming visitors to a tiny town in northeastern Washington. It reads “Kettle Falls: 1599 Friendly People and One Grouch.” The small Columbia River city with a per capita income of $13,614 boasts of “excitement on the edge of wilderness,” according to its website.

Lately, much of that excitement has come in the form of DEA agents raiding property and federal investigators snooping around the general store for evidence of drug trafficking.

At the center of the sweep are 70-year-old Larry Harvey and his family, who garnered national attention recently after getting a slew of felony trafficking charges for growing marijuana on their property, despite having doctor-assigned medical marijuana papers. But the legally owned hunting rifles Harvey kept at home are the reason why federal prosecutors are seeking trumped-up charges and years in prison.

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“At night, we have bears that quite often come down,” Harvey told VICE News, explaining why everyone has guns at home in rural Stevens county, “And this time of year they’re hungry. I’ve got a picture of one of my dogs with his nose all tore up from a bear. One shot in the air and they’re gone.”

The “Kettle Falls Five” trial, as it is known, has been postponed until July 28. But it’s not the only confusing case of its kind. There are several just like it in Eastern Washington: medical marijuana patients who happen to own guns, being slapped with heightened federal felony charges based on weapons connected to drug trafficking.

If there’s one thing that links all of the eastern Washington federal pot cases, in fact, it’s US Code 924(c), which sets mandatory minimums based on the amount of weapons found in drug cases. The first firearm found in relation to a drug trafficking charge adds an additional 5-10 years to a sentence. After that, each additional gun adds 25 years.

VICE News spoke with attorneys in Seattle, Yakima, and Spokane who cited several cases in which a firearms clause was being used to increase sentencing for medical marijuana patients by as much as 60 years. On top of that, all of the cases are being pursued in federal court, as it’s unlikely they’d have any legal ground to stand on in state court given state laws.

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In federal court, evidence rules completely ban defendants and their lawyers from even mentioning the words “medical marijuana.” That means that even while under oath, defendants like Harvey aren’t allowed to explain that they were growing pot for medical reasons, nor that they thought they were within the law since they are licensed patients.

“You can’t force someone to basically lie in court,” Spokane attorney Douglas Hiatt told VICE News, “The evidence rule should not be able to trump the truth, that a guy was growing marijuana for medical reasons. The jury should be able to hear the truth.”

In 2012, a bipartisan group of legislators tried, unsuccessfully, to pass the Truth in Trials Act, which would have allowed defendants to talk about medical marijuana in court.

Here’s why this baffles nearly everyone who reads about it — Washington State legalized recreational pot last fall. Before that, medical marijuana had been legal for another 16 years. On top of that, nearly everyone in the woodsy, lumberjack-ridden rural Pacific Northwest owns at least one gun, and Washington is an “open carry” state, meaning you can walk around downtown Spokane, for instance, with a rifle slung across your chest and no one will give it a second look.

Seattle attorney Jeff Steinborn jokingly told VICE News, “It’s against the law to live in eastern Washington without a firearm.”

So why are federal prosecutors in the Spokane US Attorney’s office working with the DEA, and spending taxpayer dollars, to railroad people like Larry Harvey into prison when they think they are complying with the law?

Washington state has two US Attorneys assigned to prosecute federal crimes, one in Seattle and the other in Spokane. VICE News called the Spokane office, headed by US Attorney Mike Ormsby, and was told by a communications officer that the office is simply following DoJ guidance as set forth in an August 2013 memo by Deputy Attorney General James Cole. The Cole memo is confusing at best: it both expresses a mandate to avoid the use of federal resources for small amounts of marijuana possession, and lists a bunch of secondary reasons to bust people for pot. Included in that list is a priority toward “preventing violence and the use of firearms in the cultivation and distribution of marijuana.”

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The Justice Department can’t seem to make up its mind when it comes to state laws that legalized pot. In conflicting statements going back to 2009, White House and DoJ spokespeople, and President Obama, have alternately said, “federal resources should not be used to circumvent state laws,” and “Use your prosecutorial discretion… to go after things that are really doing folks damage.”

VICE News contacted the Justice Department to try and clarify its position on prosecuting legalized medical marijuana, but did not receive a response.

Lawyers in the area say federal prosecutors are just trying to trump up charges and make examples out of a few people so they can rid eastern Washington of weed.

Yakima-based attorney Gregory Scott told VICE News that eastern Washington is conservative and about as different from Seattle as possible when it comes to medical marijuana: “There’s not a single dispensary in Yakima. Nowhere in Eastern Washington will you find such a dispensary, and if there is one, it is very, very underground. A lot of places have taken the position that they are going to ban the sale of marijuana, period.”

“The city council of Yakima is saying that it’s better to let the cartels and the illegal dealers have the money,” Scott said.

Scott is currently representing Curtis Roberts, a 34-year-old victim of a snowmobile accident that left him with such severe nerve pain his right arm needed to be amputated at the shoulder. Roberts, who lives in Union Gap (pop. 6,047), got a medical marijuana card and grew about 30 pot plants in his yard to supply himself and two friends who were also patients.

“I had to grow it,” Roberts told VICE News. “Over here there aren’t really any dispensaries so you don’t have any other option. You could buy off the street but you don’t know what you’re getting. I was interested in something with lower THC and more medical use.”

“There’s people that probably shouldn’t have their medical card, but I had a pretty legitimate reason,” said Roberts. “I tried prescription drugs and everything had a side effect. This didn’t have a side effect. It doesn’t keep you awake.”

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Though Roberts had dutifully obtained legal papers and permits for both his medical marijuana grow and his rifles, he was still charged with drug manufacturing and use of firearms for drug trafficking after the DEA crashed through his door with a battering ram.

Roberts had three guns at home. With no criminal record, and all of the papers needed to prove he was following state law, he immediately faced a minimum of 60 years in prison — a life sentence. He says he had “no choice” but to take a plea deal, and is now looking at 46-57 months based on federal sentencing guidelines.

Earlier this week, Roberts discovered his girlfriend of several years is pregnant: “I’m hoping for something less than 12 months, so that at least I can be here when the baby comes.”

If he does serve over 12 months in jail on a felony charge, Roberts will automatically lose his disability benefits and have to reapply — which he says took him over three years the first time.

“I don’t see myself as a criminal or that I did anything criminal. And if I took the trial and was convicted, I’d be gone for the rest of my life,” Roberts said. “I don’t see how the crime fits the punishment. It’s still hard to wrap my mind around what’s happening.”

Follow Mary Emily O’Hara on Twitter: @maryemilyohara