HELENA — Federal prosecutors unlawfully obtained an indictment against a Missoula medical marijuana provider's accountant by using statements she made when she was immune from prosecution, a judge has ruled.
U.S. District Judge Dana Christensen threw out the indictment against Lisa Fleming on Tuesday. Christensen left room for prosecutors from the U.S. Attorney's Office to refile the charges, but it was not immediately clear Wednesday whether they planned to do so.
Fleming was the accountant for Jason Washington, a former Montana Grizzlies quarterback who ran Big Sky Health until his arrest last year in a federal crackdown on large medical marijuana providers.
Prosecutors say Washington ran a drug-trafficking ring that distributed marijuana across Western Montana, sold more than he was allowed to under the state's medical marijuana law and bought and sold the drug in transactions with other providers.
They accuse Fleming of helping Washington launder money, falsify records and once purchasing marijuana for him.
Washington and Fleming pleaded not guilty. Their five co-defendants have all made plea deals with the government.
Christensen denied a similar request by Washington to dismiss the charges against him because prosecutors presented the grand jury with statements they obtained after granting him immunity.
But the judge issued a sealed order that includes the immunized statements by both defendants that can't be used in the criminal proceedings against Washington. Christensen wrote that he sealed the order to prevent potential jurors from seeing those statements.
Washington's trial is scheduled for Dec. 10. If it goes forward, Washington will be only the second medical marijuana provider to stand trial as a result of the long-running crackdown on large medical marijuana operations that has netted dozens of providers.
The first, Chris Williams of Helena, was convicted of eight drug and gun charges and faces a possible prison term of 80 years or more when he is sentenced in January.
Washington's attorneys said in a court filing supported by Fleming's lawyer that prosecutors offered Washington immunity in November 2011 for his statements made in an interview in which they had hoped to work out a resolution to the case without a trial.
But when his attorneys reviewed the grand jury transcript, they found a Drug Enforcement Agency special agent used what he said during that session.
Prosecutors acknowledged the grand jury that returned the original indictment was "briefly exposed to a general description of the immunized statements of Washington and Fleming."
But that error was fixed by obtaining a second indictment from a different grand jury in proceedings that did not include those statements, Assistant U.S. Attorney Tara Elliott said in court filings.
The attorneys for Fleming and Washington did not return calls for comment, nor did the U.S. Attorney's Office.