The "Kettle Falls Five" accused by federal prosecutors of growing marijuana in rural Washington state. From back left: Rhonda Lee Firestack-Harvey, Jason Zucker, Rolland Gregg and Michelle Gregg stand with Larry Harvey outside the Thomas S. Foley United States Courthouse on Feb. 12, 2015, in Spokane, Wash. (Dan Pelle, The Spokesman-Review)

Feds now say they shouldn’t have spent tax dollars to prosecute Washington medical marijuana growers

SPOKANE, Wash. — The convictions of some Washington residents for growing marijuana near the town of Kettle Falls may soon be erased.

That’s after federal prosecutors acknowledged that they shouldn’t have spent money on the trial of the so-called Kettle Falls Five in 2015, or on the appeals since.

That acknowledgement came more than two years after prosecutors convinced a federal judge that they had the authority to try the medical marijuana growers, The Spokesman-Review reported Thursday.

But Assistant U.S. Attorney Earl Hicks said Wednesday that federal law has changed in regards to spending and asked that the case be returned to the trial judge for further proceedings.

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Hicks filed documents with the 9th U.S. Circuit Court of Appeals this week that said recent rulings on other medical marijuana cases have convinced him that the Spokane office didn’t have authority to spend money on the 2015 trial or on the pending appeals.

A defense attorney said he plans to file a motion soon to dismiss the convictions.

“This really feels like vindication,” said defense attorney Phil Telfeyan of Washington, D.C., who represents Rolland Gregg.

“Unbelievable,” said Frank Cikutovich, a Spokane attorney who represents defendant Jason Zucker.

Zucker took a plea deal on the eve of the trial. But Zucker’s plea agreement said that anything that happens in the appeal of the other defendants would apply to him, Cikutovich said.

Congress in late 2014 cut off funds for federal prosecution of people who were growing and using medical marijuana in states where that was legal. That restriction has been renewed in every subsequent budget.

At that time, the five defendants — Larry Harvey; his wife Rhonda Firestack-Harvey; their son Rolland Gregg and his wife Michelle; and family friend Zucker — were awaiting trial on charges stemming from a 2011 raid on the Harvey’s farm near Kettle Falls. Federal and local agents seized marijuana plants and firearms on the property.

In a case that drew nationwide attention, the federal government charged them with growing and trafficking in marijuana and added firearms charges that would have extended their sentences.

The defendants contended that the marijuana plants were allowed by state law and that the guns were used for hunting.

Prosecutors in Spokane continued to press the case even after the cutoff of federal funds for prosecution in 2014.

Larry Harvey was dismissed from the case just before trial because he had terminal pancreatic cancer, and has since died. Zucker made his plea agreement just before trial and was sentenced to 16 months.

U.S. District Court Judge Thomas Rice would not allow any reference that Washington had legalized medical marijuana during the trial for the remaining three defendants. The jury convicted Firestack-Harvey and the Greggs of growing between 50 and 100 marijuana plants, and dismissed the other charges.

Rolland Gregg was sentenced to 33 months in prison and the two women to 13 months each. They remained free on bond pending appeal.

Information from: The Spokesman-Review