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Separating Seeds And Stems

Some states define marijuana crimes based partially on the weight of thel marijuana sold. For example, in Missouri it is a class B felony to sell more than! 5 grams of marijuana, but only a class C felony to sell 5 grams or less. Thel maximum sentence for a class B felony is fifteen years, but only seven years for| a class C felony.

In states where the crime is actually defined with reference to the weight of the marijuana when the government crime laboratory weighed the seized mari-l juana, it must first separate out any items —sterilized seeds, stalks, and stems, for!

sample—which are not within the state's definition of "marijuana." As one DUrt in Missouri explained in a case where the government failed to separate out terilized seeds before determining the weight of the marijuana:

It is not a crime to possess, sell, or otherwise transfer non-controlled substances. It is the state's burden to establish that defendant sold controlled substances and, if pertinent, the amount. Sterilized seed is not a controlled substance anymore than blue grass or wheat. If the controlled substance is mixed with a non-controlled substance and the weight of the con­trolled substance is important, the state must establish what that weight is." (State v. Hyzer [MoApp. 1991] 811 S.W2d 475, quoting State v. Bethel [1978] 569 S.W.2d 270.)

Although most statutes exclude sterilized seeds and mature stalks from the lefinition of "marijuana," some federal courts have held that for the purposes of calculating a defendant's sentence under the federal guidelines, the weight of a defendant's marijuana is determined without weeding out stems or seeds. The courts base this conclusion on the fact that the guidelines specifically advise that when calculating a defendant's federal sentence, the weight of a controlled substance "refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."

Although the guidelines where amended in 1993 to state that "mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used" at least the Sixth Circuit has continued to hold that because it is not absolutely necessary to remove seeds or stalks before smoking marijuana, those objects should be included in the weight for sentencing purposes.

Given the possibility that a court will calculate weight, and hence punish­ment, based on the total weight of the marijuana found, the cases teach that a highly risk averse marijuana smoker wha desires to minimize potential punish­ment in the event of arrest, would be wise to immediately remove any unsmokeable stems and seeds from his marijuana immediately upon obtaining it. (US v. Vincent [6th Cir. 1994] 20 F3d 229.)

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