Federal Judge Says No To Washington Family's Medical Marijuana Defense

05/06/2014 09:47 pm ET | Updated May 06, 2014
Harvey family

A federal judge won't allow a family of a medical marijuana patients from Washington state to defend themselves against drug trafficking charges by arguing their pot plants were for medical purposes.

U.S. District Judge Fred Van Sickle of the Eastern District of Washington on Tuesday rejected the planned medical marijuana defense of Larry Harvey, 70, his wife Rhonda Firestack-Harvey, 55, and three others facing trial next week, saying they could not argue that growing marijuana was for medical purposes and legal under Washington state law.

"The intent of the defendants is not relevant to the issues," Van Sickle said. "There's this concept of reliance on state law and the like. That's not relevant either."

Because the federal government considers marijuana illegal, federal courts generally don't allow evidence that the drug may have been used for medical purposes, even when medical marijuana is legal under a state's law, as it is in Washington. The Harveys, their son, Rolland Gregg, 33; Gregg's wife Michelle, 35; and family friend Jason Zucker, 38, sought to describe their doctor-recommended medical marijuana cultivation at their upcoming trial on federal drug charges.

"You can tell a portion of the truth, just a bit of the truth and only the truth they want you to tell," said Kari Boiter, the Washington state coordinator for the medical marijuana advocacy group Americans for Safe Access, who accompanied Larry Harvey at Tuesday's hearing. "Forget 'the truth, the whole truth, and nothing but the truth,'" Boiter added.

The group claims they were growing 74 medical marijuana plants for their personal use at the Harveys' rural home near Kettle Falls, Washington. Defense attorneys said the pot patch complied with state law.

Nevertheless, the federal government has charged each with six felonies, including manufacturing, possession and distribution of marijuana, as well as possessing a firearm in furtherance of drug trafficking.

The family kept numerous firearms at the home, in the wilderness of northeast Washington state, near the U.S.-Canadian border, for hunting and defense, their lawyers said. They have encountered black bears, cougars and coyotes at their front door on several occasions, according to the lawyers.

"It doesn't matter that we used the shotgun to hunt turkeys and the hunting rifle for deer," Rhonda Harvey said in a statement to the media last week.

Federal prosecutors say the presence of firearms shows the defendants were involved in drug trafficking.

Defense attorneys argue that the defendants were not "perceived to be violent in any way" and that the guns had nothing to do with the cultivation of medical cannabis.

The home was raided by state authorities on Aug. 9, 2012, according to court documents. State law enforcers found 74 plants growing near the home. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. State authorities did not press charges or seize anything else.

A week later, federal authorities conducted a more comprehensive raid, seizing the Harveys' remaining marijuana plants, as well as about five pounds of raw cannabis and some marijuana-infused edibles from the freezer. The feds also seized a 2007 sedan, several hundred dollars, firearms and some personal belongings.

"This is not the kind of spectacular haul that the DEA is typically called in for," the family's attorneys wrote in a letter to Attorney General Eric Holder in February, urging him to reconsider the charges. "Just the opposite, the evidence seized is consistent with the type of strict medical dosage that occurs with a doctor's supervision."

Washington legalized medical marijuana in 1998 and recreational marijuana in 2012. Still, federal law classifies marijuana a Schedule I substance "with no currently accepted medical use."

Michael Ormsby, the U.S. attorney for the region, filed a court motion last week requesting "any evidence of medical purposes as well as the defendants' belief that they were lawfully engaged in marijuana cultivation" be inadmissible at trial. Ormsby argued that the family's purpose for growing marijuana is not the issue. Rather, he said, the "knowing or intentional manufacturing of marijuana" is what matters.

Defense attorneys argue that there is an "equal justice disparity" created by federal drug laws that contradict state laws.

"Here you have a single family facing a combined 60 years in mandatory minimum sentences for medical marijuana in the same state that plans to allow cannabis distribution on a scale unlike anyone has seen before," the defense attorneys wrote to Holder.

In August, Deputy Attorney General James Cole issued guidelines for all U.S. attorneys, saying it's "not an efficient use of federal resources to focus [medical marijuana] enforcement efforts on seriously ill individuals." Cole's memo also outlined what the federal government still regards as prosecution priorities, including "preventing violence and the use of firearms in the cultivation and distribution of marijuana."

Larry Harvey, a recently retired commercial truck driver of 30 years, ate marijuana-infused cookies to ease symptoms related to gout, chronic pain and inflammation, according to his attorneys. Rhonda Harvey suffers from osteoarthritis and has undergone joint and bone surgeries. Medical cannabis eased her inflammation and pain, the lawyers said. Rolland Gregg and Zucker used medical marijuana to treat back injuries. Michelle Gregg used cannabis for appetite stimulation due to wasting brought on by a medical condition she hasn't disclosed.

In March, Holder announced support for sentencing reform that would reduce prison time for some nonviolent drug crimes. Last week, a White House official told Yahoo News that President Barack Obama may grant clemency to "hundreds and perhaps thousands" of people who have been jailed for nonviolent offenses.

Harvey family lawyers argue that the defendants were "clearly abiding by the rest of the priorities laid out in the latest Cole memo" and the U.S. attorney should therefore drop the charges.

Last week, during pretrial hearings, the five defendants rejected plea deals offered by the prosecution that would have reduced their maximum prison sentences to three years. Without the deals, they each face maximum penalties that range up to 40 years to life in federal prison.

Also on HuffPost:

  • 1 Former President Bill Clinton
    AP
  • Bill "Didn't Inhale" Clinton has supported decriminalizing marijuana for more than a decade and more recently has spoken out against the war on drugs.

    “I think that most small amounts of marijuana have been decriminalized in some places, and should be," he said back in 2000 in an interview with Rolling Stone. "We really need a re-examination of our entire policy on imprisonment.”

    He's since spoken about the issue of marijuana and drug prohibition a number of times. Last year, he appeared in the documentary, "Breaking the Taboo," where he argued that the war on drugs has been a failure.
  • 2 Sen. Rand Paul (R-Ky.)
    AP
  • Paul exhibited his libertarian tendencies earlier this year when he explained that he'd favor reforming marijuana laws to either decriminalize or reduce penalties for possession.

    “I don't want to promote that but I also don't want to put people in jail who make a mistake," Paul said. "There are a lot of young people who do this and then later on in their twenties they grow up and get married and they quit doing things like this. I don't want to put them in jail and ruin their lives."

  • 3 Former Rep. Ron Paul (R-Texas)
  • As a congressman, Paul took his opposition to marijuana and drug prohibition a step farther than his son has so far. He supported a number of bills that would have removed the plant from its current status as a Schedule I substance under federal law, where it is considered alongside heroin and PCP. Because his history on the topic is so expansive, just take a look at the video to the left for a selection of his comments.
  • 4 Evangelist Pat Robertson
    AP
  • While the 83-year-old Robertson may say a lot of things that make him sound like a kooky old man, he's also made a few remarks to endear himself to marijuana advocates.

    "I really believe we should treat marijuana the way we treat beverage alcohol," Robertson said in an interview with The New York Times in 2012. "I've never used marijuana and I don't intend to, but it's just one of those things that I think: this war on drugs just hasn't succeeded."

    Robertson has made similar remarks on his "700 Club" show before, but the Times, like many others, perhaps felt they must have misheard him.
  • 5 New York City Mayor Michael Bloomberg
    Getty Images
  • In a state of the city address earlier this year, Bloomberg made it clear that he supported a promise by New York Gov. Andrew Cuomo (D) to push marijuana decriminalization. "I support Governor Cuomo's proposal to make possession of small amounts of marijuana a violation, rather than a misdemeanor, and we'll work to help him pass it." A similar effort specific to NYC has made some progress, but faces an unclear path forward with New York lawmakers.
  • 6 Actor Bryan Cranston
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  • Some may think of Cranston as more of a meth guy thanks to Walter White, his character on AMC's hit show "Breaking Bad," but in real life he's spoken out against current pot laws, suggesting that recreational marijuana use isn't a big deal -- and shouldn't be treated like it.

    “[T]o me, marijuana is no different than wine," he said in an interview with High Times. "It's a drug of choice. It's meant to alter your current state -- and that's not a bad thing. It's ridiculous that marijuana is still illegal. We're still fighting for it ... It comes down to individual decision-making. There are millions of people who smoke pot on a social basis and don't become criminals. So stop with that argument -- it doesn't work.”

    [H/T Marijuana Majority]
  • 7 Former New Mexico Gov. Gary Johnson (R)
    AP
  • Unlike many politicians, Johnson, a Libertarian presidential candidate in 2012, has unabashedly admitted using marijuana. But beyond his personal history with pot, he's been an outspoken advocate for legalizing and taxing it.

    From his campaign platform:

    "By managing marijuana like alcohol and tobacco - regulating, taxing and enforcing its lawful use - America will be better off. The billions saved on marijuana interdiction, along with the billions captured as legal revenue, can be redirected against the individuals committing real crimes against society."
  • 8 Author Stephen King
    Getty Images
  • King hasn't been shy about advocating for a legal marijuana industry that could give easy access to recreational users and revenue to the states.

    “Marijuana should not only be legal, I think it should be a cottage industry," he said in an interview with High Times. "My wife says, and I agree with her, that what would be really great for Maine would be to legalize dope completely and set up dope stores the way that there are state-run liquor stores.”

    [H/T Marijuana Majority]
  • 9 Rep. Dana Rohrabacher (R-Calif.)
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  • Rohrabacher was a co-sponsor of the 2013 "Respect State Marijuana Laws Act," which seeks to protect marijuana users or businesses acting legally according to state marijuana laws from being prosecuted under the federal Controlled Substances Act.

    While marijuana has been made legal for various uses in a number of states, the Obama administration continues to enforce federal laws across the nation. This has led to numerous raids of marijuana-based businesses, as well as prosecutions of growers and other people involved in pot.

  • 10 Rep. Don Young (R-Alaska)
    AP
  • Young was also a co-sponsor of the 2013 "Respect State Marijuana Laws Act."
  • 11 Rep. Justin Amash (R-Mich.)
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  • Amash was also a co-sponsor of the "Respect State Marijuana Laws Act."
  • 12 Glenn Beck
    AP
  • Back in 2009, when Beck had a Fox News show, he suggested that marijuana legalization could be a worthwhile solution to raging drug violence on the nation's border with Mexico.

    "I think it's about time we legalize marijuana," he said. "We have to make a choice in this country. We either put people who are smoking marijuana behind bars or we legalize it, but this little game we're playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border."
  • 13 Billionaire Richard Branson
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  • From an op-ed by Branson arguing for an end to the war on drugs:

    "Decriminalization does not result in increased drug use. Portugal's 10 year experiment shows clearly that enough is enough. It is time to end the war on drugs worldwide. We must stop criminalising drug users. Health and treatment should be offered to drug users - not prison. Bad drugs policies affect literally hundreds of thousands of individuals and communities across the world. We need to provide medical help to those that have problematic use - not criminal retribution."
  • 14 GOP Mega-Donor David Koch
    AP
  • Koch may have funneled countless dollars to conservative candidates who oppose reforming marijuana laws, but back in 1980, when he was the vice presidential candidate for the Libertarian Party, he suggested that it was "ridiculous" to consider people who smoked pot "criminals."
  • 15 Texas Gov. Rick Perry (R)
    Getty Images
  • In 2010, Perry told Jon Stewart that he believed in a federalist approach to marijuana laws -- that is, to allow states to determine their own approach and to tell the federal government to butt out. He's since suggested he'd be willing to support decriminalizing possession of small amounts of marijuana.
  • 16 Comedy Central's Jon Stewart
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  • Stewart has made a habit of taking down politicians who exhibit an uncompromising stance on marijuana prohibition. In 2012, Stewart took New Jersey Gov. Chris Christie (R) to task for vetoing a marijuana decriminalization bill.

    “Alright, as much as I disagree, I don’t think marijuana should be illegal, but it is illegal on the federal level," Stewart began. "Christie is a former prosecutor, a man of conviction, of principle, doesn’t believe that the state should supersede federal law."

    The praise in the second sentence is a good sign that Stewart is about to shred Christie. Watch the rest of his takedown above.
  • 17 Actor Jack Nicholson
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  • In an interview with the UK's Daily Mail in 2011, Nicholson said that he personally still used marijuana, before making the case for ending the prohibition on pot as well as other drugs.

    "I don't tend to say this publicly, but we can see it's a curative thing. The narcotics industry is also enormous. It funds terrorism and - this is a huge problem in America - fuels the foreign gangs," he said. "More than 85 percent of men incarcerated in America are on drug-related offences. It costs $40,000 a year for every prisoner. If they were really serious about the economy there would be a sensible discussion about legalization."
  • 18 Former Utah Gov. Jon Huntsman (R)
    AP
  • In a 2013 American Conservative op-ed chock full of moderate Republican views, Huntsman snuck in a call to "applaud states that lead on reforming drug policy."

    While Obama and his administration have responded to state marijuana reforms by saying they must enforce federal laws against marijuana, the president has the power to reschedule the drug, which would allow federal authorities to shift resources away from a prohibitive approach.
  • 19 Former Alaska Gov. Sarah Palin (R)
    AP
  • Palin spoke out on marijuana in 2010, saying she didn't support legalizing it but also calling it a "minimal problem" for the nation.

    "However, I think we need to prioritize our law enforcement efforts," Palin said. "If somebody's gonna smoke a joint in their house and not do anybody any harm, then perhaps there are other things our cops should be looking at to engage in and try to clean up some of the other problems we have in society." While Obama has spoken repeatedly about not being interested in prosecuting small-time marijuana users, he hasn't done anything to prevent them from being busted by law enforcement in states where the drug is still illegal.
  • 20 Comedian Jimmy Kimmel
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  • Kimmel notably took a shot at Obama while serving as host of the 2012 White House Correspondents Dinner, questioning a continued marijuana crackdown under the president's administration. He then went on to say that the issue of its continued illegality was a serious political concern for many Americans.

    (Check out the video above.)
  • 21 Former President Jimmy Carter
    Getty Images
  • Carter hasn't minced words in expressing his opposition to harsh marijuana and drug prohibition policies.

    In 2012, the former president said he was fine with state legalization efforts, though he himself doesn't necessary support legalizing the drug.

    “As president 35 years ago I called for decriminalizing -- but not legalizing -- the possession of marijuana,” Carter said. “Since then, U.S. drug policies have been very horrible to our own country because of an explosion in prison populations.”
  • 22 Former Virginia Attorney General Ken Cuccinelli
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  • A staunch conservative who failed in a run for the U.S. Senate last year, Cuccinelli suggested in 2013 that he was "evolving" on marijuana legalization, and that he supported the rights of states to determine their own pot laws.

    "I don't have a problem with states experimenting with this sort of thing I think that's the role of states," Cuccinelli said, according to Ryan Nobles of WWBT.
  • 23 Columnist Dan Savage
    AP
  • Savage slammed Obama for perpetuating the war on drugs while on HBO's "Real Time With Bill Maher" in 2009.

    “The proof will be in the policy. The war on drugs has gotten a really bad rap, when you ask people if they support the war on drugs they say no ... [Obama's] budget once again has the same old drug warrior policy ... I reject the assumption that everybody who is using drugs needs treatment or is an addict and needs to get arrested ... Not all drug use is abuse.”

    He's kept up the fight for drug policy reform since.

    [H/T Marijuana Majority]
  • 24 MSNBC's Al Sharpton
    Getty Images
  • Sharpton has repeatedly spoken out in favor of reforming drug laws. In 2011, he suggested that the nation had wasted trillions of dollars in an ill-fated effort that had weighed particularly heavily on the African American community.

    “We've been fighting the war on drugs since the '60s. And guess what? Trillions of dollars later, we are losing," Sharpton said during a segment on MSNBC. "When you look at the disparities in sentencing drug offenders, hasn't this kind of injustice undermined the legitimacy of our criminal justice system?”

    [H/T Marijuana Majority]
  • 25 Former Rep. Tom Tancredo (R-Colo.)
    AP
  • Tancredo came out aggressively in favor of reforming marijuana laws in 2010, telling the Colorado Independent that the correct path forward was "Legalize it. Regulate it. Tax it."

    Tancredo continued, “The arguments against marijuana today are the same as the arguments against liquor years ago.”

    Years later, the former congressman agreed to smoke pot on camera with a documentary filmmaker, a deal that he later backed out of.

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