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A bud from the plant found inside a Colorado man's vehicle when he was stopped in South Dakota. Prosecutors say he planned to sell marijuana but he says he was delivering legal hemp to Minnesota. 

The Colorado man who said he was delivering hemp to Minnesota after his July arrest in South Dakota pleaded not guilty Wednesday morning to four drug charges, his lawyer said. 

Robert Herzberg, a 41-year-old from Red Feather Lakes, pleaded not guilty at the state court in Kadoka to charges of intending to distribute marijuana, possessing more than 10 pounds of the drug, and ingesting marijuana and cocaine. 

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 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 told the Journal that Herzberg was delivering hemp, not marijuana, to a CBD-oil processing company in Minnesota. South Dakota, Idaho and Mississippi are the only states that ban hemp cultivation, according to the National Conference of State Legislatures. Cultivation is also illegal in Washington, D.C. 

Herzberg tested positive for THC — the main psychoactive compound in marijuana — and cocaine, according to test results from the state lab. Six plant samples were submitted by the state to Fouser Environmental Services, a private lab in Kentucky, and the Sept. 3 results say the "Max THC" ranged from .31 to .51 while the amount of "Delta 9-THC" ranged from .18 to .25 percent. 

Matthew Kinney, Herzberg's Spearfish-based defense attorney, previously 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.

No amount of THC is legal under South Dakota law, but the Oct. 31 U.S. draft hemp guidelines and a May memorandum from the U.S. Department of Agriculture says while states and tribal nations can make it illegal to produce hemp, they can't block the transportation of federally legal hemp, which the documents define as hemp with .3 percent or less Delta 9-THC.

"The guidelines do require the state to permit interstate transportation of hemp," Gov. Kristi Noem said in a Tuesday news release responding to the USDA draft hemp guidelines. "My team is working to ensure we have proper procedures in place so this doesn’t become something that weakens our drug laws."

Daniel Van Gorp, Jackson County state's attorney, previously told the Journal that he's looking at the Max THC level and that Delta 9-THC is a form or kind of THC. He did not immediately respond to an email and voicemail Wednesday asking to explain how he thinks Herzberg can be prosecuted on the marijuana charges given the federal hemp definition and guidelines. 

Kinney said he learned the Kentucky lab calculated the Max THC percentage by multiplying the percentage of THC Acid by .877 and adding that number to the Delta 9-THC percentage. 

"There is some dissension among scientists and legal scholars about which score to use," the Max or Delta 9-THC level, but I will argue that the federal definition of THC should be used in this case, Kinney said. 

Herzberg, who is out of jail on a $5,000 bond, is scheduled to return to court for a non-evidentiary motions hearing at 9 a.m. on Feb. 5. 

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— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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