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Legal References

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

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