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3 of Kettle Falls Five pot convictions vacated

In this Feb. 12, 2015, file photo, Larry Harvey is seated in front of, from left to right, Rhonda Lee Firestack-Harvey, Jason Zucker, Rolland Gregg and Michelle Gregg outside the Thomas S. Foley United States Courthouse, in Spokane, Wash. The Justice Department has dropped its case against Harvey, 70, who was charged in a northeastern Washington marijuana grow after he was diagnosed with late-stage pancreatic cancer. Harvey faced federal charges, as did his wife, two other relatives and a family friend, after they were caught growing about 70 pot plants on their rural, mountainous property near Kettle Falls. (Dan Pelle / The Spokesman-Review)
By Jim Camden jimc@spokesman.com(509) 879-7461

Three defendants in a controversial marijuana prosecution that drew nationwide attention had their convictions wiped out today by a federal judge.

Members of what once was called the Kettle Falls Five – Rhonda Lee Firestack-Harvey, Michelle Lynn Gregg and Roland Mark Gregg – had convictions vacated and charges dismissed by U.S. District Judge Thomas Rice.

Bevan Maxey, an attorney for Michelle Gregg, called it “a very gratifying and special moment.”

Federal prosecutors had asked for the dismissal because of “a cloud of Congress’ suspension of funding authority” to continue with an appeal.

The Greggs, Firestack-Harvey, her husband Larry Harvey and a family friend Jason Zucker, were arrested on federal marijuana charges after a pair of raids on a remote farm northwest of Kettle Falls in Stevens County in 2012. At the time, medical marijuana was legal in the state, and the group had doctors’ recommendations to use it for different medical conditions.

They said it was being grown for their own use. But all marijuana was illegal under federal law, and prosecutors contended they were profiting from the drug.

Larry Harvey died of cancer before the trial, and Zucker accepted a plea bargain to be a witness for the prosecution.

Charged with several federal drug violations, the Greggs and Firestack-Harvey were convicted in early 2015 of the least serious charge, of growing more than 50 but fewer than 100 plants. Rice later sentenced Rolland Gregg to 33 months in prison, and Michelle Gregg and Firestack-Harvey to one year and a day.

Their attorneys appealed, and late last year, federal prosecutors told the 9th U.S. Circuit Court of Appeals they couldn’t continue with the case. The reason: Congress pulled money from the Department of Justice budget in 2014 to disallow federal prosecutions in states that had legalized marijuana in 2014, and has continued that restriction. They don’t have the authority to spend money on the case, attorneys told the appeals court.

With the case sent back to Rice, the judge agreed with prosecutors’ motion to dismiss the charges and vacate the conviction, but without prejudice, which means if Congress changes its mind on prosecuting federal marijuana cases in states that have legalized the drug, it could be refiled.

But Phil Telfeyan, executive director of Equal Justice Under Law and an attorney who helped defend the group, said Congress would have to restore funding for those cases in the next six months, or the statute of limitations on the charges will run out.

In his order, Rice said he was making no judgment on “the merit or wisdom” of dismissing the case.

“It remains to be seen whether Congress will continue its fiscal suspension of certain marijuana prosecutions,” Rice said. “The decision whether or not the government could legally (or would) recharge defendants is best left for the day when that possibility occurs.”

The Kettle Falls Five case is having an impact on federal marijuana prosecutions nationwide, Telfeyan said, sending “a signal that the federal government is not unbeatable when people are complying with state laws.”

Maxey said the judge’s order gives the three defendants a chance to go back to lives “as normal as can be expected” and hopes any effort to resurrect the case will be rejected.

“I would hope the government would not spend any more resources on this,” Maxey said.