Hemp or pot: What’s the difference?
Two Colorado brothers whose contaminated cantaloupe killed 33 people across the country and hospitalized scores more in 2011 now face felony drug charges in Kansas.
The brothers say they’re just industrial hemp farmers, growing a crop that’s legal in their state. They’re caught in a legal standoff with Kansas prosecutors who accuse them of shipping marijuana through a state where it’s illegal.
Their case echoes incidents across the country where prosecutors have charged individuals shipping hemp with drug trafficking.
Eric and Ryan Jensen pleaded guilty in federal court in 2013 to causing a nationwide outbreak of listeria-infected cantaloupe through unsanitary conditions at their farm. After being sentenced to home detention and ordered to pay thousands in restitution, they went to work for a hemp farm operated by Eric’s son, Tre.
Hemp production is legal in Colorado with the proper registrations, and the business where they work — Scotty’s Garden LLC — has them.
But a decision to send a package through FedEx once again put the brothers on a collision course with the law.
“We’re still so far in debt from that deal that I don’t know when we’ll ever come out of it,” Eric Jensen said of the cantaloupe case. “Both our reputation tarnished and everything else. We’ve been trying to dig out of it and was kind of hoping my son’s deal with the hemp would kind of help us both to get out of it and we just keep getting deeper and deeper.”
FedEx shipment reported
Around noon on Jan. 3, 2017, a FedEx truck arrived at Jensen’s hemp farm near Holly, a Colorado town of about 768 less than 10 miles from the Kansas border. The FedEx driver would later tell law enforcement that Ryan Jensen used a forklift to load three boxes onto the truck.
Ryan Jensen didn’t respond to a request for comment made through his attorney.
Although the boxes – more than 300 pounds of hemp, Eric Jensen says – were bound for California, the truck first headed to a FedEx warehouse in Liberal, in Seward County, Kan. When the boxes were offloaded later that day, FedEx alerted the Kansas Highway Patrol that the package smelled strongly of marijuana.
Industrial hemp is a strain of cannabis grown to have a very low amount of THC – the chemical that produces the high in marijuana. Hemp has a variety of uses, including paper, clothing, even fuel. Hemp and marijuana often look and smell the same, however.
When Kansas Highway Patrol Lt. Josh Biera arrived at the warehouse that evening, he smelled marijuana as he left his car.
“As I stood next to the boxes, there was an extremely strong odor of marijuana coming from each of the boxes,” Biera said in a sworn affidavit.
The boxes contained Colorado hemp registration paperwork saying the plants had tested under 0.3 percent THC concentration – a requirement under Colorado law. But marijuana is illegal in Kansas, and the state is only now in the very early stages of allowing hemp production.
The Highway Patrol seized the shipment. It was a blow to the Jensens, but the incident faded into the past.
More than two years later, on Jan. 31, 2019, the Seward County Attorney’s Office charged Eric and Ryan Jensen with four drug offenses each, including three felonies. They were accused of distributing marijuana or possessing marijuana with the intent to distribute it.
Kade Goodwin, an assistant county attorney prosecuting the case, said he couldn’t speak to the timing of the charges because he had been with the office only since last fall.
Eric Jensen successfully fought an attempt to extradite him to Kansas. Authorities have not tried to extradite Ryan Jensen.
A sample from the shipment tested positive for THC. But Eric’s attorney, Dodge City lawyer Van Hampton, wants the THC concentration tested. They believe it would test under 0.3 percent.
“We know it has THC in it because it’s hemp. But we want to show the concentration is below the threshold,” said Hampton, who previously was a district court judge.
Hampton said he had arranged for a Denver company to test a sample, but Kansas authorities won’t let one go to an independent lab. He said the Colorado Bureau of Investigation would conduct a test if Kansas requests it, but Kansas hasn’t asked.
And the judge in the case, Seward County District Court Judge Clint Peterson, is refusing to hear a motion to order testing, he said.
“So I’m stuck and I’m thinking this is outrageous,” Hampton said.
Goodwin said he wants the package tested. But the Kansas Department of Agriculture, which has the only lab in Kansas able to run the needed test, “hasn’t been as cooperative as we’d like and we don’t want to ship it off to a third party in another state.”
“I think that’s where Van Hampton’s gripe comes from, that the Kansas Department of Agriculture isn’t willing to test it right away, right now,” Goodwin said.
The state Department of Agriculture acknowledged it has the ability to perform the test but said 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,” Jason Walker, department public relations director, said in a statement.
THC amount critical
Without testing, the case is at a standstill.
Goodwin at first signaled he would likely drop the case if a test showed the THC concentration at 0.3 percent or below.
“Unless something else came up, that’s generally what we think. We’re not going to speak in any absolutes, but that’s been the policy of my office so far,” Goodwin said in an interview Thursday morning.
But about two hours later, he called back, saying he wanted to clarify his comments.
“I just want to make it clear the prosecutor’s office will look at it from all angles and make a determination, but we’re not guaranteeing everything will be dismissed,” Goodwin said.
The Kansas Highway Patrol declined to comment. FedEx didn’t comment.
Across the country, prosecutors are making similar calls about whether to bring charges as industrial hemp is moved through states where it’s illegal. Often, the truck drivers hauling the product end up facing prosecution.
A Colorado man and an Oregon man who transported industrial hemp through Idaho were arrested. They pleaded guilty to felony drug trafficking.
The United States Department of Agriculture released a memo in May saying states may not prohibit the interstate transportation of industrial hemp.
Brandan Davies, a defense attorney in Overland Park who has represented people accused of marijuana offenses, said Kansas law is designed to punish people who sell drugs — not a commercial product.
“This is kind of a real stretch of the law to try to prosecute somebody for having something pass through Kansas that is legal in both of its destinations and quasi-legal here,” Davies said.
Still, Eric Jensen acknowledged some people won’t care about the legal problems he and his brother face after the death and harm caused by their contaminated cantaloupe.
“I’m sure there would be some who are going to think that way,” Jensen said. “My only response is neither one of these situations was an intentional situation.”