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Erwin A. "Bud" Sholts, Chairman

 

 

Affidavits

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U.S. Department of Justice
Drug Enforcement Administration
Washington, D.C. 20537


AFFIDAVIT OF CHARLES H. METCALF

I, Charles H. Metcalf, declare and say:
I am a Senior Investigator employed by the Drug Enforcement Administration
(DEA) and am assigned to the DEA Office of Diversion Control, Registration
Section. I have been employed by the DEA since 1985. I am fully familiar
with the facts stated herein.

1. The importation, sterilization, and commercial distribution of
marijuana seed to be used as birdfeed is regulated by the DEA pursuant to
the Controlled Substance Import and Export Act, U.S.C. 952 Et. seq. and 21
C.F.R. 1311. The DEA, and my office in particular, has authority to
license and register importers of marijuana seed to be sterilized,
rendered non-viable and placed into commerce as birdfeed.

2. Pursuant to this authority this office has approved the registration
of Minn-Dak Growers, Ltd. as an importer and distributor of marijuana seeds
to be rendered non-viable and used as birdfeed.

3. Upon the importation of marijuana seed into the United States, the
Customs Department impounds and inspects the seed, and then monitors
transport to approved facilities which render the seeds infertile through
gas and/or temperature.

4. The sterile marijuana seeds are specifically excluded from the
definition of "marijuana" and are not a controlled substance under federal
statute. Public Law 91-153, Section 102 (15).

5. In 1990, approximately sixty (60) tons of marijuana seeds were
imported into the United States with DEA approval to be used as birdfeed. Since
1981 approximately fifty (50) to sixty (60) tons of marijuana seeds have
been imported into the United States annually with DEA approval.

6. My office is unaware of any criminal prosecutions brought against any
individuals for possession and distribution of sterile marijuana seed
birdfeed at any time aside from the charges brought against Mr. Keith S.
Halpern and his clients.

7. The DEA, and my office in particular, is aware that sterile marijuana
seed sold as birdfeed is likely to contain residue and particulate
vegetable matter which will test positive for the presence of THC, the
active ingredient of marijuana.

8. The DEA does not require sterile marijuana seed placed into commerce
as birdfeed to be free of all such residue and particulate matter.

9. The DEA does not consider sterile marijuana seed sold as birdfeed to
be a controlled substance, whether or not it contains residue or particulate
matter which tests positive for the presence of THC.

10. As detailed in the Affidavit of Susan Miller, Forensic Chemist, DEA,
when evaluating material which visually appears to be primarily marijuana
seed, the DEA's determination of whether the material constitutes a
controlled substance must be made by viability testing of the seeds,
rather than separate THC analysis of the residue and particulate matter.

I declare under penalty of perjury, pursuant to 28 U.S.C. 1746, that the
foregoing is true and correct.
Charles H. Metcalf
Senior Investigator
Date: APR 18 1991

U.S. Department of Justice
Drug Enforcement Administration
Washington, D.C. 20537

AFFIDAVIT OF SUSAN MILLER

I, Susan Miller, declare and say:
I am a Forensic Chemist employed by the Drug Enforcement Administration.
1. Forensic Chemists employed by the Drug Enforcement Administration are
required to perform certain specific analytical procedures to quantitate
and identify the unknown evidence samples submitted by law enforcement
personnel. These procedures are specific for each type of substance
analyzed and were developed to prove the identity of the substance as
specified in the Controlled Substance Act, Title 21 Section 802.

2. When presented with evidence that is by visual examination determined
to be mostly seeds, the DEA Forensic Chemist makes the decision to analyze
the evidence following the standard procedure for identification of
marihuana seeds. This procedure consists of a microscopic examination of
the physical characteristics associated with marihuana seeds and a
viability determination. It is recognized by the DEA laboratory system
that the residues associated with marihuana seeds can and most often do,
produce positive THC results using the standard chemical tests for
marihuana. A large quantity of seeds could produce enough residue to have
measurable amounts of plant material. However, when an exhibit has been
determined to be seeds, the residues are not collected and analyzed
separately. The determination of the presence of THC, or the
identification of the physical characteristics of marihuana plant material
by analysis of that material is not the objective. For seed evidence, the
chemist must prove by microscopic examination that the seeds have the
physical characteristics of marihuana seeds, and the chemist must also
prove that the seeds are viable. A sampling of seeds obtained from the
exhibit submitted for analysis must be placed in a suitable container to
promote germination. A 5% viability rate is considered necessary by the
DEA to prove that the sample of seeds is indeed viable. Viability is the
critical aspect of the analysis because the law specifically states that
sterilized seeds incapable of germination are not included in the term
"Marihuana" and are therefore not controlled.

3. Attached is a copy of the current procedure used by the Drug
Enforcement Administration for the analysis of Marihuana. This copy was
taken from "Methods of Analysis" as reprinted by the Bureau of
>Narcotics of Dangerous Drugs, U.S. Department of Justice.

I declare under penalty of perjury, pursuant to28 U.S.C. 1746, that the
foregoing is true and correct.
Susan Miller
Forensic Chemist
Date: APR 11 1991