The Colorado man who claimed he was delivering hemp to Minnesota after his arrest in South Dakota was indicted on drug charges after his haul was tested for THC.
Robert Herzberg, a 41-year-old from Red Feather Lakes, was indicted Sept. 26 by a Jackson County grand jury on charges of intending to distribute marijuana, possessing more than 10 pounds of the drug, and ingesting marijuana and cocaine, court records show.
If found guilty, he could be sentenced to up to 15 years in prison on the possession and distribution charges, five years for the cocaine ingestion charge, and one year for marijuana ingestion.
Herzberg told a state trooper he was delivering 300 pounds of hemp from Colorado to Minneapolis when he was pulled over July 16 on Interstate 90 for driving 86 mph in an 80 mph zone, according to police reports. He was arrested after the trooper found "two large white sacks that contained a green leafy substance that looked and smelled like raw marijuana" and field tested positive for the drug.
The Minnesota Hemp Association and the Colorado man who hired Herzberg to deliver the product both told the Journal that Herzberg was delivering hemp, not marijuana, to a CBD-oil processing company in Minnesota.
New photographs uploaded to the public court records system by the prosecution show two massive white sacks in the back of a white vehicle filled with a dry, dark-green plant. There's also a close-up photograph of a plant bud.
The prosecution filed results from the state lab that show Herzberg tested positive for THC — the main psychoactive compound in marijuana — and cocaine. It also filed the results from six plant samples tested by Fouser Environmental Services, a private lab in Kentucky.
No amount of THC is legal under South Dakota law but a May memorandum from the U.S. Department of Agriculture says the 2018 Farm Bill says while states and tribal nations can make it illegal to produce hemp, they can't block the transportation of federally legal hemp (hemp with .3 percent or less THC).
The Kentucky lab test says the "Max THC" in the samples ranged from .31 to .51 while the amount of Delta 9-THC ranged from .18 to .25 percent when tested on Sept. 3.
Matthew Kinney, Herzberg's Spearfish-based defense attorney, provided the Journal with an October 2018 lab test ordered by the Colorado seller that says the product has .29 percent Delta 9-THC. The results do not mention Max THC.
Daniel Van Gorp, Jackson County state's attorney, said in an email that he is looking at the Max THC level and that Delta 9-THC is a form or kind of THC.
Kinney said he plans to speak with experts who can explain the reliability of THC tests, the difference between Max and Delta 9 THC, and whether the amount of THC in a plant can increase over time.
"There's a lot of questions I'll have for a person who is scientifically versed in this," he said.
But even if the scientists say the plant contains more than .3 percent THC, Kinney said, "it's not in the same realm as what the street knows what marijuana to be."
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"You can't get high from this stuff" unless you were to smoke the entire giant bag, he said. "It would be unlike any other case that is usually before the courts for trying to distribute street marijuana."
Kinney said the prosecution would also have to prove that Herzberg knew the plant was marijuana.
"My client thought everything was legal," that he was taking hemp to be processed into CBD oil, he said.
Herzberg's arrest and charges is the latest incident illustrating how South Dakota's marijuana, hemp and CBD oil laws are distinct from many other states and can cause confusion about which products are legal.
Attorney General Jason Ravnsborg argues all hemp and CBD-oil products are illegal in South Dakota, while some state's attorneys, including Pennington County prosecutor Mark Vargo, say hemp-derived CBD oil is legal as long as it has no THC.
Vargo decided not to press charges after local police seized hemp-derived CBD oil containing THC from a Rapid City health-food store in May, saying it would be hard to prove the store knew the products had THC in them.
State lawmakers studied the potential risks and benefits of industrial hemp this summer after Gov. Kristi Noem vetoed a bill in March that would have legalized the product in South Dakota, which is one of three states (plus the District of Columbia) that doesn't allow hemp cultivation, according to the National Conference of State Legislatures.
Noem outlined her stance on marijuana, hemp and CBD oil when she was at the Care Campus in Rapid City last week.
She said she would support medical marijuana if it goes through the FDA process but is against recreational use. She said industrial hemp isn't as profitable as corn, wheat or soybeans when grown in an outdoor field — what's more profitable is growing hemp in a greenhouse for CBD oil.
"If we are going to be growing hemp, how do we enforce our laws when it comes to marijuana laws? How do we tell the difference between hemp and marijuana because we can't today, our law enforcement officers can't," Noem said. "If we really want to have our farmers to have a tool at a new crop, then the Legislature should be debating legalizing CBD oil, not just hemp, because that's really the crop that they're talking about and that needs to be regulated."
Noem said she's concerned about passing laws or programs related to hemp and CBD oil that could make it easier to legalize recreational marijuana.
"I've never met anybody who got smarter or made better decisions by smoking dope. So I just don't want to be the governor that opens the door and makes it easier for us to legalize marijuana in South Dakota," she said.
Herzberg, who is out of jail on a $5,000 bond, is scheduled for a 9 a.m. arraignment on Nov. 6 at the state court in Kadoka.