A licensed Colorado hemp producer is fighting drug distribution charges in southwest Kansas after a truckload of cannabis destined for California ended up at a shipping center in Liberal.

The man’s Dodge City-based attorney says his client is tied up in a stalemated legal battle that has him confined to Colorado, but which could be cleared up with a simple test that Kansas authorities refuse to allow.

Marijuana is illegal in Kansas, though laws on industrial hemp are changing.

Kansas authorities contend that even if the shipment is industrial hemp, however, it wasn’t legal in Kansas when it was shipped.

So, even if they agree to test the plant, he hasn't decided how to proceed whatever results come back, said Assistant Seward County Attorney Kade Goodwin.

The bust

Eric Jensen was charged in February in Seward County District Court with the distribution of more than 30 kilograms of marijuana. Conviction on the level 1 drug felony carries a minimum 11 ½ years in prison and fine of up to $500,000.

That was after 350 pounds of cannabis bound for a CDB producer in California went to a FedEx distribution center in Liberal, some 130 miles east of where it started, rather than heading west.

“It was a legal product, which was sold to an extractor in California,” said Van Z. Hampton, the attorney representing Jensen. “They assumed, as most people would, that the truck would go west. But they (FedEx) took it to Seward County to a transfer facility.”

Employees there smelled the hemp, assumed it was marijuana and called the Kansas Highway Patrol.

A KHP officer examined the cargo, determined it was marijuana and seized the shipment, which Hampton said is valued at $120,000. Jensen paid some $1,600 to ship.

After the shipment was seized and Jensen charged, he hired Hampton, who is licensed to practice in both Kansas and Colorado.

Testing

Hampton attempted to get to the plants tested to prove they had low levels of tetrahydrocannabinol or THC, which is the chemical in cannabis that gives it psychotropic properties. The dried plant must contain 0.3 percent or less of THC to be classified as hemp and not marijuana.

While laboratories in Kansas can determine if THC is present, there are no criminal labs in the state that can determine THC levels.

Prosecutors and the Kansas Highway Patrol are not willing to release the evidence to an out-of-state laboratory.

Hampton filed a motion in the case to try to force the testing, but the judge declined to consider the motion.

“The judge said ‘I’m not going to hear your motions until the defendant is personally in the courtroom,’” Hampton said.

Jensen, however, successfully fought extradition to Kansas, and won’t appear because there’s a $200,000 bond hanging over him, Hampton said. He can’t leave Colorado, however, because he could be arrested anywhere else on the outstanding Kansas warrant.

“This case and the delay has real consequences for (Jensen),” Hampton said. “In addition to the loss of money and putting his liberty at jeopardy, there are other practical concerns. He was a coach and a bus driver for the high school (in Holly, Colorado). The superintendent sent out a letter that said since he’s charged with this level of felony, he discharged him. He can have no contact with students. That was his second job. He’s a fourth-generation farmer.”

Hampton said officials at the Colorado Bureau of Investigation initially indicated a willingness to do the testing, but have since declined.

“We told them we would let them test it, but what they want to do is send it out of state,” said Goodwin, who is prosecuting the case. “We’re not sending what we claim to be marijuana out of state. There are several legal issues you run into.”

Department of Ag?

Instead, Goodwin said, he spoke with Kansas Department of Agriculture officials late last month, who agreed to consider determining its THC content.

That agency is setting up a new Industrial Hemp Research Program, after the Kansas Legislature last session approved the new program. That after the 2014 Farm Bill included a section allowing universities and state departments of agriculture to begin cultivating industrial hemp for purposes of research.

KDA Public Relations Director Jason Walker said in an email Wednesday that the agency's laboratory does have the ability "to perform THC quantitation on industrial hemp samples," but that it has not agreed to test seized samples for criminal investigations.

"Currently, the scope of our THC quantitation capability is limited to the administrative and regulatory role with the Kansas Industrial Hemp Research Program," Walker stated.

Congress earlier this year, based on a case similar to Jensen’s pending in Idaho, amended federal law to explicitly authorize the interstate shipment of hemp through all states, even those that haven’t authorized its production.

Proponents of hemp argue shipping was already legal, but the amendment clarifies the issue.

“On May 28, the Office of General Counsel for the United States Department of Agriculture issued an opinion that states the mandate against states prohibiting the shipment of hemp expressed in the Ag Improvement Act of 2018 also applies to hemp produced under the 2014 Farm Bill, which includes the hemp in this action,” Hampton said.

That’s because the 2014 farm bill removed nonnarcotic hemp from the federal list of controlled substances.

Goodwin, however, contends the law was not in place when the shipment occurred, so Jensen was not protected by it and broke Kansas law.

Officials with the Kansas Highway Patrol declined comment, noting it was a pending legal action.

Jensen could attempt to obtain a license for the product in Kansas, but it wouldn’t help him because the Kansas program is limited to seed stock for research, not large commercial quantities of hemp.

Hampton said he's also asked Sen. Pat Roberts, R-Kansas, to intervene.

Bad luck?

“Eric and his brother are hemp farmers,” Hampton said. “They’ve been licensed for seven or eight years, and the certificate was renewed in 2014. Their products are under license of the Colorado Department of Agriculture.”

“They thought they were meeting all the requirements, including getting it tested and a getting a certificate of compliance with the 0.3 percent threshold,” Hampton said. “The certificate was enclosed with the shipment, but the highway patrol disregarded it.”

While Hampton could not verify it was the same people, brothers Eric and Ryan Jensen of Holly, Colorado, owned and operated Jensen Farms, which was blamed for a 2011 listeria outbreak on cantaloupe that that killed 33 people and sickened 125 others in 28 states.

The brothers were convicted on misdemeanor charges of introducing adulterated food into the food supply and were placed on five years of probation in 2014. Jensen Farms is no longer registered with the state.