A prosecutor in the marijuana trafficking case against four hemp transporters purportedly told defense attorneys the state would dismiss the matter if samples tested at 0.5 percent THC or less — but charges remain in place despite a federal analysis finding just that.
Assistant District Attorney Michelle Bodine-Keely told defense attorneys “‘that if the THC level of the hemp is 0.5% or less then we would drop the charges against these guys’ and ‘we would release’ the hemp-merchandise,” according to a defense letter hand-delivered last week to the Osage County District Attorney’s Office.
The conversation reportedly included three defense attorneys and took place Jan. 10, the day after four men were arrested by Pawhuska police and the 9-ton shipment was seized during a traffic stop.
Prior to transport, tests performed on 60 samples of the product, grown in Kentucky, were at or under the legal THC limit for hemp of 0.3 percent, according to records provided by the defense.
The Drug Enforcement Administration’s testing of 11 samples showed that eight were above the legal limit. However, the margin of error touched or encompassed the limit on five of those eight samples, meaning only three samples conclusively tested over the threshold.
The highest sample was 0.5 percent, with a margin of error of 0.1 percent.
“I am confused as to why you have changed your position and are continuing with prosecuting men that truly could have not had any knowledge that this small margin of error had occurred,” Tulsa defense attorney Paul Brunton said in the letter.
District Attorney Mike Fisher declined the Tulsa World’s request Monday for an interview about how he is distinguishing between noncompliant hemp and marijuana or whether he considers them one and the same. In staying mum, he cited state ethics rules regarding statements made by prosecutors.
“The law provides mechanisms for challenging, in court, the State’s decision to prosecute this matter,” Fisher said. “As of (Monday morning), no motions have been filed by the defense. If one is filed, we are prepared to address that in a court of law.”
The Brunton law firm represents the two security officers who founded a business that provides protection for hemp shipments. Defense attorneys have expressed concerns that law enforcement chose cannabis samples likely to be higher in THC content than others and that THC concentrations increased as the plant material dried out in the time before testing took place.
Brunton’s letter acknowledges that the 2018 Farm Bill, which legalized hemp at the federal level, is in the early stages of implementation but says Osage County prosecutors are acting in direct opposition to the law’s intent.
The Farm Bill protects the interstate commerce of hemp and prohibits criminal enforcement against hemp growers in violation of it.
The state statute used by the District Attorney’s Office to charge the four men defines marijuana as a “mixture or substance containing a detectable amount of marihuana,” using an alternative spelling.
A marijuana trafficking conviction in Oklahoma carries a prison sentence of 15 years to life.
“(Congress did) not contemplate the harsh punishment you are pursuing against my clients,” Brunton wrote. “On many levels, I do not understand your logic.”
Brunton’s final point of emphasis is that the two security guards had no criminal intent or knowledge of wrongdoing, a requisite for a conviction.
The three samples of hemp conclusively above the legal threshold in the DEA’s tests were from 30 parts per million to 3,000 parts per million in excess. He said the average THC content of Colorado marijuana is 250,000 parts per million.
“You seem to be convinced that my clients were knowingly and nefariously shipping hemp or, from your perspective, what would amount to be the worst quality of marijuana in the United States to Colorado, a state which grows and cultivates some of the most potent strains of marijuana in the world,” Brunton wrote.
Andrew Ross, 29, and his business partner, David Dirksen, 31, posted $20,000 bond each to get out of jail six days after the cargo was seized Jan. 9 on Pawhuska’s Main Street during a stop for an alleged red-light violation.
The tractor-trailer rig’s two drivers — Tadesse Deneke, 51, and Farah Warsame, 33 — were jailed for a month in lieu of $40,000 bail each until prosecutors allowed them to be released on their own recognizance Friday.
The security guards previously told the Tulsa World they chose to drive through northern Oklahoma because they thought it would be the safest route to northern Colorado, given that Oklahoma has a pilot hemp program.