Federal Prosecutors Reverse Stance on Kettle Falls Five Case in Washington State, But Don’t Ask for Dismissal

The Washington state medical-marijuana growers known as the Kettle Falls Five scored an unexpected victory on October 18. After years of legal battles in a case that pitted state laws against federal prohibition, Justice Department attorneys conceded that they didn’t have the authority to prosecute the defendants.

The admission confirms what the growers’ attorneys had been arguing for years: That the Rohrabacher-Farr amendment to the federal appropriations bill, first passed in 2014, prohibited the Department of Justice from using federal funds to target state-legal medical-marijuana activities.

Three of the five defendants—from Kettle Falls, a small town in northeast Washington about 30 miles south of the Canadian border—were convicted in 2015 on federal charges of growing and trafficking marijuana. One of the five, Larry Harvey, passed away from cancer that same year. (He was excused from the case due to his illness.) The fifth defendant, Jason Zucker, took a plea deal for a 16-month sentence in exchange for his testimony against the other three—Rolland Gregg, Michelle Gregg, and Rhonda Firestack-Harvey. Rolland Gregg was sentenced to 33 months in prison, while Michelle Gregg and Firestack-Harvey received 13 months each. They had recommendations for medical marijuana under the state’s program. The defendants have remained free while they appeal their sentences.

In a motion filed with the Ninth Circuit U.S. Court of Appeals , Justice Department lawyers requested that the case be remanded to a lower court, acknowledging that they were “not authorized to spend money on the prosecution of the defendants after December of 2014 because the defendants strictly complied with the Washington State medical marijuana laws.”

«I’m shocked that the government is agreeing with us, especially in light of who is in charge right now,» Frank Cikutovich, Zucker’s lawyer, told the Spokane weekly Inlander. Attorney General Jeff Sessions has asked Congress to do away with the Rohrabacher-Farr protections.

Meanwhile, some cannabis advocates are wondering why the U.S. attorneys asked for the case to be remanded to a lower court, rather than simply dismissing the case. Their theory: That prosecutors are waiting for medical-marijuana protections to lapse, allowing them to continue with the case. The prosecutor in the case, Assistant U.S. Attorney Earl Hicks, told the Washington Examiner that there was no such “ploy.”

Other Ninth Circuit rulings in medical-marijuana cases helped the Kettle Falls Five. When the Justice Department tried to argue that Rohrabacher-Farr only protected states from prosecution and not individuals, the court responded, “we are not persuaded.” “If the federal government prosecutes such individuals, it has prevented the state… from implementing their [medical marijuana] laws,” it said in a 2016 decision.

These victories in federal court are welcome news for medical-marijuana advocates. But they also stand on tenuous ground: Congress must renew the Rohrabacher-Farr amendment every year (It has been renamed Roharabacker-Blumenauer.) This September, a House committee blocked the amendment from a vote. Pro-cannabis lawmakers are continuing to fight for the amendment, as well as introducing legislation that offers a more long-term solution to federal protection of state laws.