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Pot distribution charges dropped against man transporting hemp through state

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A bud from the plant found inside a Colorado man's vehicle after he was stopped in South Dakota.

The most serious marijuana charges have been dropped against a Colorado man who said he was delivering hemp when he was arrested in July in Jackson County.

Robert Herzberg, a 41-year-old from Red Feather Lakes, pleaded guilty Wednesday at the state court in Kadoka to charges of ingesting marijuana and cocaine, defense lawyer Matt Kinney told the Journal. Lab tests found he had the drugs in his system. 

As part of a plea deal, Daniel Van Gorp, Jackson County state's attorney, dropped charges of possessing more than 10 pounds of marijuana and intending to distribute it. Herzberg would have faced up to 30 years in prison if convicted on those charges. 

"He knew he was in the right all along in transporting the hemp," Kinney said of his client. 

Herzberg could be sentenced to up to one year in jail for ingesting marijuana. Cocaine ingestion is a Class 5 felony eligible for presumptive probation, which means the judge must order probation unless he finds that an aggravating factor exists. If an aggravating factor is found, Herzberg could be sentenced to five years in prison. 

Kinney, who is based in Spearfish, said he plans to ask the judge for a suspended imposition of sentence, which Herzberg qualifies for since he's never been convicted of a felony. With that sentence, Herzberg would be sentenced to probation and if he completes probation, his convictions will be sealed from the public and he won't be labeled as a felon.

Van Gorp did not immediately return messages asking what sentence he will request. 

Kinney said his client should have never been charged with the marijuana possession and distribution charges because testing provided by Herzberg and ordered by Van Gorp both show he was carrying a federally legal product. 

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, defined as hemp with .3 percent or less Delta 9-THC.

Kinney provided the Journal with an October 2018 lab test ordered by the Colorado seller that says the product has .29 percent Delta 9-THC. Plant samples submitted by the state to a private lab said the Delta 9-THC ranged from .18 to .25 percent.

"The guidelines do require the state to permit interstate transportation of hemp," Gov. Kristi Noem said in a previous news release

"A lot of this case had to do with law enforcement not being sure with how to proceed," Kinney said. "They should always air on the side of caution rather than arresting first and asking questions later." 

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 near Kadoka 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 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.

Noem vetoed a hemp bill last year and says while she's still personally against legalization of hemp production, she would consider signing a bill if it meets "four guardrails” to provide for enforcement, regulation, transportation permitting and funding. But the governor and legislators are divided on whether a proposed hemp law would adequately cover funding

Even if the bill fails and hemp production remains in illegal in South Dakota, Kinney said, law enforcement needs to be trained to identify federally legal hemp so people like Herzberg aren't charged again.

"I hope this kind of case does not make its way into the courts again," he said. "The state needs to come up to speed to determine whether this product is legally being transported just like any other commodity" and "we need to be compliant with the federal laws." 

Herzberg is scheduled for sentencing at 9 a.m. on May 13. 

— Contact Arielle Zionts at

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