Court denies motion to dismiss case involving CBD intercepted at the airport
Pago Pago, AMERICAN SAMOA — The High Court has denied a motion by private attorney, Marcellus Talaimalo Uiagalelei, to dismiss the government’s case against his client, Togamamao Letuligasenoa, who is charged with one count of unlawful possession of a controlled substance (marijuana).
The court issued its ruling this week.
Letuligasenoa is out on a $2,000 cash bond.
According to the court, the defendant flew into American Samoa from Hawaii via Hawaiian Airlines on Sept.13, 2018. During routine entry screening at the airport, a Customs agent found on and confiscated from Letuligasenoa, two containers of oil known as Cannabidiol (CBD).
According to defendant’s literature, CBD is a chemical derived from marijuana, and “is non-psychoactive, meaning, it won’t get you high.”
A narcotics detective tested the CBD oil and found that it contained Tetrahydrocannabinol (THC), an active ingredient in marijuana.
Subsequently, Letuligasenoa was charged with unlawful possession of marijuana and he has since moved to dismiss the charge, arguing that (1); the statute defining marijuana is unconstitutionally vague as applied to CBD oil; and (2), as ‘oil’ CBD is exempted from the definition of marijuana under A.S.C.A 13.1001 (b).
Uiagalelei said his client is charged for bringing into the territory a bottle of oil containing CBD, which, according to the government, is a compound found in marijuana.
Uiagalelei argues that the statute under which his client is charged, does not consider CBD contraband, and CBD is not considered an ingredient in marijuana.
He said that because this part of the statute is vague, it should be taken out. The defense attorney argues that there was no actual marijuana found in his client's possession, nor is CBD oil an ingredient of marijuana.
Prosecutor Dunn disagrees, saying the statute is clear, and the CBD oil found inside Letuligasenoa’s bags is an ingredient of marijuana.
She said despite the defense claim that there was no actual marijuana found in Letuligasenoa’s possession, it is clear from the investigation that the items found in one of the defendant’s bags at the airport were a compound of the illegal drug.
Dunn argues that CBD oil contains ingredients found in marijuana, and that’s why Letuligasenoa was charged.
She addressed the defense claim regarding local statute and said this is the same statute the federal government is using to deal with illegal drugs, and it’s also the same statute that was adopted by American Samoa, word for word.
According to the court, a penal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so he may act accordingly, and a statute challenged for vagueness “enjoys a presumption of constitutionality.”
The law in the territory is plainly clear: possession of marijuana is illegal, and marijuana includes chemicals derived from its plant, the court points out.
A.S.C.A 13.1001 (h) defines marijuana to mean, “all parts of the plant Cannabis saliva, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,” according to the court.
“Based on the defendant’s science, we consider CBD oil a product manufactured, derived, mixed and prepared from marijuana.”
“By definition, therefore, CBD oil is marijuana, regardless of whether or not it is psychoactive, and unless and until the Fono tells us otherwise. Therefore, the motion is denied.”
Letuligasenoa was a passenger on a HAL flight that arrived Sept. 13, 2018 and Customs agents found vape oil bottles containing a compound found in marijuana inside his bag.
According to Dunn, the scanner alerted to one of the bags, in which 4 pipes (labeled as 7 pipe hi tech, with marijuana leaf pictures inside, also known as the Twisty Glass Blunt), along with two CBD vape oil bottles, were found.
Letuligasenoa was questioned and later told that the items would be held until Customs can clarify their legality. The defendant allegedly told Customs agents that he had brought the item to the territory more than once, and asked why they were holding it, adding that it is legal in Hawaii.