Judge denies dismissal of marijuana case against ‘Kettle Falls Five’

UPDATE: Judge Thomas O. Rice has denied the motion to dismiss the criminal case against the Kettle Falls Five, setting up a likely appeal. You can read Rice’s motion at the bottom of this story. Original story follows: The trial for the quintet of marijuana farmers dubbed the “Kettle Falls Five” seems destined for another delay. When it commences, it may be the trial of the Kettle Falls Four. The attorney for Larry Harvey, patriarch of the family now facing federal criminal prosecution for what they believe was a legal medical marijuana grow near Colville, said he’s confident the U.S. Attorney’s Office will drop the charges against the 71-year-old based on his failing health. “I take Mr. Hicks at his word,” said Robert Fischer, Harvey’s attorney, referring to Earl Hicks, the U.S. Assistant Attorney in charge of prosecution of the case. Hicks said Thursday he would seek medical records from Harvey attesting to his diagnosis of terminal pancreatic cancer. Harvey said after the hearing he’d lost 70 pounds and was receiving weekly chemotherapy treatments. Despite Fischer’s confidence, Hicks had not issued a formal decision Thursday whether he’d drop Harvey from the case. For Harvey’s children, his wife and family friend, however, Hicks continued to argue that a Congressional spending bill prohibiting the Department of Justice from conflicting with state’s implementation of their medical marijuana laws should have no effect on their prosecution. Rhonda Lee Firestack-Harvey, Jason Zucker, Rolland Gregg and Michelle Gregg all face marijuana manufacturing and distribution charges, in addition to charges they were using firearms in furtherance of their drug crimes. Each faces a minimum sentence of 10 years in prison if found guilty, based on sentencing minimums. “They were clearly in violation of the Medical Use of Cannabis Act,” said Hicks, referencing a pay schedule seized from the Harvey’s rural Stevens County home in August 2012 that seems to show the family paying trimmers tens of thousands of dollars to process their plants. Hicks, and the U.S. Attorney’s Office of Eastern Washington, argues that amounts to a for-profit marijuana operation that violates state statutes. Hicks, before an audience that included several area criminal defense attorneys, U.S. assistant attorneys and U.S. Attorney for Eastern Washington Mike Ormsby, also argued against defense motions before the Feb. 23 trial that would exclude some testimony from investigators, allow evidence of the medicinal benefits of marijuana to be admitted at trial and stay the federal trial until state prosecutors have tried the case. Hicks called the last motion “absurd.” “This court decides state matters all the time,” Hicks told U.S. District Court Judge Thomas O. Rice, who’s presiding over the case. “Because it’s marijuana, you can’t decide state matters?” Defense attorneys indicated that if Rice denies their motion to throw out the trial, they’ll take it to appellate courts and seek to stay the trial once more. The initial indictment in the case was handed down by a grand jury in February 2013 and has been delayed multiple times. They spoke openly after the trial about filing an immediate appeal if Rice denied their argument. If the appellate court declines to hear the case, Rice has scheduled the trial to begin the week of Feb. 23. Other trials may push the date slightly. Fourteen jurors will be selected, including two alternates. Several supporters of the family filled the courtroom Thursday. After the case, a wheelchair-bound Harvey gave several of them hugs and complimented his wife for holding the family together through what he called a struggle. “We thought we were legal, that’s the bottom line,” Harvey said. “We didn’t think we was doing anything wrong.” Read Rice’s order below:

Judge Rice's order denying dismissal of case against Kettle Falls Five