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Federal prosecutors acknowledged this week that they did not have the authority to pursue criminal charges in a notorious case against five Eastern Washington medical marijuana growers, known as the Kettle Falls Five, who were complying with state law.

Three of the Kettle Falls Five were convicted in 2015 for growing marijuana. One defendant took a plea deal before trial. Another, Larry Harvey, was dismissed from the case after he was diagnosed with cancer. He died in 2015. The five originally faced distribution and firearms charges, of which they were acquitted.

The three appealed their convictions, and have been out of custody while case lingers in the Ninth Circuit Court of Appeals.

In a brief filed Monday in the Ninth Circuit (see below), U.S. attorneys acknowledge that "the United States was not authorized to spend money on the prosecution of the defendants after December 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," says Frank Cikutovich, the Spokane attorney representing defendant Jason Zucker. "I'm hopeful that as far as these defendants are concerned, they'll see they've wasted enough time and money and forget about them."

Zucker took a plea deal before trial, but the conviction appeal still applies to the charges against him.

Although the case is being touted as an "historic" victory for states' rights to legalize and regulate the cultivation and sale of marijuana, Cikutovich is reserving his celebration.

"It's hard to say what we should anticipate next," Cikutovich says. "But it's good to see their filing. My client, as well as the others, have been saying that the entire time."
It all hinges on a federal budget amendment passed in 2014 that bars the Department of Justice from spending money prosecuting medical marijuana cases in states where it's legal — as long as the growers obey state law.

The Rohrabacher-Blumenauer (formerly Rohrabacher-Farr) Amendment has been included in federal budgets since 2014. However, U.S. Attorney General Jeff Sessions has been vocal about his desire to see the amendment removed.

For the Kettle Falls Five case, that means unless their convictions are vacated, and the charges dismissed, the remaining defendants could live indefinitely under the specter of federal indictment. They will only be protected from prosecution as long as the budget amendment continues to be renewed.

Kari Boiter, a pro-marijuana policy advocate and spokesperson for the defendants, along with Harvey, helped lobby for the amendment, and says the Kettle Falls case was a big reason it passed in 2014.

"They should be asking to vacate these convictions, and drop the case immediately," Boiter says. "The feds have basically said, 'We're the ones who have been breaking the law. And the defendants were complying with the law.'"

Going forward, attorneys for the defendants will ask that the case be dismissed.

Douglas Hiatt, a Seattle attorney who has defended scores of people charged with drug crimes, is not so optimistic.

"I'm super disappointed that these cases aren't getting dismissed and aren't really ending," he says. "If the cases are just stayed, then they can continue to be prosecuted if [the amendment] doesn't get renewed in December. It's incorrect to talk about the War on Drugs like it's over. F—-, it never left."

DOJBriefOctober162017_kettlefallsfive by Mitch Ryals on Scribd