The massive truckload of industrial hemp or illegal marijuana seized by authorities in Pawhuska may make it to Colorado after all — but not to its original destination with the purchasers.
Defense Attorney Matt Lyons on Thursday said federal testing has been completed on 11 samples, with only two found to be marginally over the legal THC limit and outside of the test’s margins of error.
So the Osage County District Attorney’s Office will send the truck to Colorado for THC testing of the entire 9 tons of cannabis in relation to hemp’s three-tenths of 1 percent legal limit, he said. The lowest level of THC in medicinal marijuana is 15 percent, Lyons said, which is nowhere near the one-half of 1 percent of THC found in the most potent test sample.
Lyons said the shipment doesn’t contain any black market marijuana, which he said is what prosecutors told him was their initial cause for concern.
“They are trying to call this marijuana, when it’s clear to the rest of the sane world that it’s not,” he said.
Additionally, federal and state laws provide support for handling the situation outside of criminal court. But the unresolved situation has exposed how unprepared Oklahoma — and probably other states — is for legal industrial hemp.
Federal law bars criminal enforcement of hemp growers found to be in violation, and the state only imposes civil fines or penalties, according to a Tulsa World review of relevant laws. Transport personnel don’t appear to be addressed as far as violations in either set of laws.
“Why is this (still) being criminally prosecuted?” Lyons said. “Is this because you made the mistake of prosecuting them before the tests were done?”
First Assistant District Attorney Michelle Bodine-Keely on Thursday declined to comment. She had said she thought the office might issue a news release Thursday, but it didn’t materialize.
Andrew Ross, 29, and business partner David Dirksen, 31, spent almost a week in jail after law enforcement seized the cargo Jan. 9 on Main Street in Pawhuska during a stop for a traffic violation.
Ross and Dirksen, who were providing security for the shipment, each posted a $40,000 bond on Jan. 15. That same day prosecutors had charged them with aggravated trafficking of marijuana — which carries a sentence of 15 years to life in prison.
Also charged with drug trafficking were the tractor-trailer rig’s two drivers — Tadesse Deneke, 51, and Farah Warsame, 33. Deneke and Warsame have been unable to secure bonds and remain jailed.
The pair were subcontracted by Patriot Shield Security, the business formed by Ross, Dirksen and two other veterans. All four defendants live in different states.
Trevor Reynolds, a Tulsa attorney for the shipment’s two drivers, questioned whether federal authorities will properly test the nearly 18,000-pound shipment.
Reynolds said THC contents in cannabis aren’t uniform, in contrast to a block of methamphetamine. He said defense attorneys have concern that authorities may have chosen plant samples that were more apt to have higher THC concentrations than the average of the whole shipment.
“I think Osage County has painted themselves into a corner a little bit,” Reynolds said. “I am fairly certain that unless the (THC content) tests at 1.0 percent or higher, the U.S. government is not going to be interested in it.”
Federal and Oklahoma hemp laws appear to support that supposition.
The Agriculture Improvement Act of 2018 — better known as the 2018 Farm Bill — became federal law in December and removed hemp from the Controlled Substances Act. It provides protection for the interstate commerce of hemp, not allowing prohibition of its transport or shipment.
The measure states that a hemp producer who negligently violates a state or tribal plan “shall not as a result of that violation be subject to any criminal enforcement action” by federal, tribal, state or local governments.
If a state or tribal government determines the violation is from a “culpable mental state greater than negligence” then the violator must be immediately reported to the attorney general and chief law enforcement officer of the state or Native American tribe.
Oklahoma’s industrial hemp pilot program also addresses growers who violate the three-tenths of one percent federal limit on THC.
If the average of test samples exceeds three-tenths of a percent but is equal to or less than 1.0 percent, then the crop from the growing area in question will be destroyed with no additional fines or penalties. If a sample exceeds 1.0 percent, then the crops in question will be destroyed and the state may impose additional fines or penalties.