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This photograph was included in an October 2018 lab test provided by lawyer Matthew Kinney. Kinney said the test and photograph is from a sample of the product his client was found with. 

The Colorado man who says he was driving with legal hemp when he was charged last month in Jackson County with selling marijuana will return to court in late October.

Robert Herzberg, a 41-year-old from Red Feather Lakes, was at the state court in Kadoka on Wednesday for his initial appearance and the judge read the charges and scheduled his preliminary hearing for 10 a.m. on Oct. 23, said his defense lawyer Matthew Kinney of Spearfish.

Herzberg is charged with intending to distribute marijuana, possessing more than 10 pounds of the drug, and ingesting marijuana and cocaine, according to his criminal complaint. 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.

A preliminary hearing is a public hearing where a judge listens to both the prosecutor and defense lawyer to decide if there is enough probable cause to continue the case. Preliminary hearings are cancelled if the prosecutor instead arranges for a grand jury, where a jury listens only to the prosecutor to decide if the defendant should be indicted during a closed hearing. 

Herzberg, his lawyer, the man who hired him and the Minnesota Hemp Association all say he was delivering federally legal hemp (hemp with .3 percent or less THC) from Colorado to a CBD oil processing company in Minnesota. They also point to a May memorandum from the U.S. Department of Agriculture that 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.

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

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