Living on the side of a mountain nine miles north of the eastern Washington town of Colville, Larry Harvey and Rhonda Firestack-Harvey grow and hunt as much of their food as possible. They can and freeze produce from their huge vegetable garden and process venison in the “sausage kitchen” in their barn.
The 70-year-old Harvey says avoiding processed foods alleviates his gout, an acute form of arthritis related to diet. It also makes economic sense. A retired truck driver with no pension, Harvey says he and his wife live off his Social Security income of $1,200 a month.
So when Harvey and his wife started using marijuana to relieve certain ailments—gout and a knee injury in his case, a degenerative disc disease and arthritis of the feet and hands in hers—they say they naturally decided to grow their own.
“We went up on the hill and planted,” recalls Harvey. “I made a plywood sign with a big green cross on it so that if a plane flew over they could see it was a medical-marijuana grow.”
The couple says the grow was not only for them but also for a family friend and some relatives, including Firestack-Harvey’s son, who had back problems from a ski accident, and his wife, who had an eating disorder and found that the munchies induced by pot helped. The younger couple, Rolland and Michelle Gregg, live in Kirkland, where maintaining a pot garden wasn’t as easy.
Harvey says he and his wife had been to a naturopath, who provided them with a medical-marijuana authorization as well as a sheet explaining that the state allows each patient to maintain 15 plants. Since the couple was growing for seven people, they figured that some 70 plants would be well within the legal limit.
What they didn’t realize, Harvey says, is that the state’s complicated medical-marijuana law has another provision establishing a 45-plant limit for “collective gardens” (although, as with the individual 15-plant limit, defendants can argue in court that they need more). What they also didn’t realize is that running afoul of the state could be the least of their worries. They could be in far, far more trouble should the federal government come down on them.
Despite longstanding medical-marijuana laws in numerous states and despite Washington’s and Colorado’s recent legalization of recreational pot, the federal government maintains that growing, using, and distributing marijuana for any reason at all is illegal. U.S. Attorney General Eric Holder has indicated with several memos that he will give states some leeway to experiment with legalization laws. But, contrary to general impression, the memos also give discretion to individual U.S. attorneys to prosecute cases as they see fit.
U.S. Attorney for Eastern Washington Michael Ormsby apparently sees fit to throw the book at people growing even relatively small amounts of marijuana. In a trial that starts on Monday, Harvey, his wife, the Greggs, and friend Jason Zucker are facing five marijuana-related charges in federal court that could potentially send them to prison for decades. Among the charges are drug trafficking and possession of firearms in furtherance of the same, despite the defendants’ insistence that they were growing for their own use and that multiple guns found on the Firestack-Harvey premises were used for hunting and scaring off bears and other wildlife that roam their 34-acre patch of the mountains.
Reached by phone, Ormsby, an Obama appointee, declined to talk about this case or his policies on marijuana in general. In pretrial hearings last month, Assistant U.S. Attorney Earl Hicks was reportedly more voluble. He said he was “fed up with the lawlessness of the marijuana community” and within his rights to prosecute for as little as “one plant” of marijuana, according to Kari Boiter, who was there as the state chapter coordinator of the advocacy group Americans for Safe Access and an ally of Harvey and his wife.
Whether Ormsby’s office will really prosecute for one plant remains to be seen, but another current case shows it will do so for as few as 15. Seattle attorney Jeffrey Steinborn says he is defending an eastern Washington medical-marijuana patient who grew that many plants in accordance with state law. “It’s like the federal government in eastern Washington is an occupying army,” says Steinborn, who notes that such prosecutions are not happening in western Washington.
What gives these prosecutions a surreal quality is that they are happening at the exact same time that the state is handing out its first licenses to people who really do intend to “traffick” marijuana. On May 2, the Liquor Control Board announced the winners of its lottery for retail licenses. They include 18 marijuana entrepreneurs in Spokane County, where Ormsby works. So why did he target an aging and ailing couple on a remote homestead?
“I think they just stumbled upon it,” says Spokane attorney Jeffrey Niesen, who is representing Firestack-Harvey.
According to documents filed in the case, the Civil Air Patrol, an auxiliary of the Air Force, spotted the grow during a flyover of the area on July 11, 2012. About a month later, Stevens County Sheriff’s deputies and a DEA agent executed a state search warrant. Firestack-Harvey, the only one home at the time, presented four medical-marijuana authorizations for herself, Larry, her son, and her daughter-in-law.
Authorities claim she also said that the marijuana was “taken to the west side of the state” where she and her husband “hoped to start a business of making marijuana-based food products.” Harvey says his wife said no such thing, and that they had no commercial dealings with anyone in western Washington or anywhere.
Regardless, the officers didn’t arrest her. They told her she had too many plants for a collective garden and chopped down roughly 25 of them, leaving the allowed 45. Then, they left.
A week later, the officers came back with a federal search warrant. This time they chopped down all the plants and destroyed the processed marijuana in the house, including frozen pot-infused butter that Firestack-Harvey would make in the crockpot. Still, the officers made no arrest.
Six months passed before the feds came back once more. “There were five carloads of cops,” recalls Harvey, who was home alone this time. His wife was in Alaska, where she is enrolled as a member of the Tlingit Indian tribe. Carrying assault rifles, the officers put Harvey in handcuffs and took him to jail, where he spent the next 17 days—some of them, he says, in great pain given his ailments and lack of access to medication. Subsequent arrests followed.
Prosecutors recently offered the defendants plea deals with prison time ranging from six to 20 months, according to attorney Douglas Phelps, who is representing Rolland Gregg. They turned the deals down. “My client believes he did nothing wrong,” Phelps explains.
Harvey adds that a felony on his record would also deprive him of the ability to own guns and hunt. “It would take away my livelihood,” he says. That’s apart from the safety of him and his wife: “The bears are out of hibernation now, and when they first come out, they’re hungry.”
Yet a ruling this week means that “it’s going to be a very hard case to defend,” Phelps allows. On Tuesday, U.S. District Court Judge Fred Van Sickle held that defense attorneys are not allowed to bring in any testimony about medical marijuana on the grounds that it is not relevant to federal law. That means that the defendants cannot counter the charge that they were selling marijuana by showing that they were doing something else—something legal under state law—with it.
“You have a situation where you cannot have the truth presented in federal court,” says attorney Douglas Hiatt, who did some early legal work on the case.
While the attorneys were arguing that issue on a conference call, Harvey was in Washington, D.C., with Boiter, meeting with Congressional staff. Many tend to assume that marijuana prosecutions have stopped, or if not, that they target people who have really done something wrong, says Boiter. Meeting Harvey—whose gout took a turn for the worse in prison, and who has been going around D.C. in a wheelchair—disabuses them of that notion, she says.
“I was surprised,” says U.S. Rep. Sam Farr, a California Democrat, of his reaction on hearing about Harvey. Using limited resources on such a case “seems foolish and makes the government look bad.”
On Wednesday, Farr joined Harvey, Boiter, and Rep. Paul Broun, a Georgia Republican, for a press conference. They talked about the eastern Washington case and called attention to a bipartisan budget-bill amendment the representatives are pushing that would prohibit federal funding from being spent on medical-marijuana cases in states that have passed legalization laws.
That amendment, however, would not protect the new recreational-pot entrepreneurs of Washington and Colorado. “I think those people are at great risk,” says attorney Niesen. “If a prosecutor gets a feather up his butt, those people will be shut down in a day.”