USA - Manufacturing Psilocybin Psilocin Sentencing

[Sitbcknchill]

I am looking for manufacturing cases or articles regarding Psilocybin, Psilocin (mushrooms). If posting articles or cases I would like to see them completed with the final outcome (sentencing) as that is what I am interested in the most is to see what kind of time these folks have had to spend behind prison walls. Kind of important so if you know where some articles or information is stashed please be so kind as to point me in the direction or post it. I would like to see United States cases only here. I have browsed through some of what google has but it is hard to find completed stories or cases with final sentencing included.



Thanks...

P.S. positive rep for contributions (however many that may be, can be multiple).

[Synesthesiac]

Does growing count as manufacturing? Or does manufacturing literally mean synthesising it in laboratory conditions out of raw chems?

[Sitbcknchill]

Sorry I did mean growing. The charges apply the same though.

[chillinwill]

Did you want me to post the articles on here because there are about numerous articles here at this website....http://www.mushroomjohn.org/newsusillinois1.htm

There is another case that can be found Here

I will post the text for the 2nd link:

court of appeals of wisconsin
published opinion



Case No.:
2006AP2557-CR

Complete Title of Case:

†Petition for Review filed.

State of Wisconsin,

Plaintiff-Respondent,
v.

Henry E. Routon,

Defendant-Appellant.†





Opinion Filed:
June 21, 2007
Submitted on Briefs:
April 16, 2007
Oral Argument:



JUDGES:
Dykman, Vergeront and Bridge, JJ.
Concurred:

Dissented:



Appellant

ATTORNEYS:
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, asst. state public defender.


Respondent

ATTORNEYS:
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, asst. attorney general, and J.B. Van Hollen, attorney general.

2007 WI App 178

COURT OF APPEALS
DECISION
DATED AND FILED

June 21, 2007

David R. Schanker
Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.




Appeal No.

2006AP2557-CR

Cir. Ct. No. 2005CF797
STATE OF WISCONSIN

IN COURT OF APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Henry E. Routon,

Defendant-Appellant.








APPEAL from a judgment of the circuit court for Dane County: Steven d. ebert, Judge. Affirmed.
Before Dykman, Vergeront and Bridge, JJ.
¶1 VERGERONT, J. Henry E. Routon appeals the circuit court’s judgment convicting him of one count of conspiracy to manufacture psilocybin/psilocin contrary to Wis. Stat. §§ 961.41(1)(g) and (1x) (2005-06).[1] Psilocybin and psilocin are hallucinogenic substances that are produced by psilocybe mushrooms.[2] Routon contends that the evidence presented in the trial to the court was insufficient to prove that he conspired to manufacture psilocybin/psilocin because the evidence showed he made only one sale and the sale was of legal materials—the spores of the psilocybe mushrooms and a grow kit.
¶2 We conclude there is sufficient evidence that Routon knew that the buyer intended to use the spores to illegally manufacture psilocybin/psilocin by growing mushrooms, and that he intended to further, promote, and cooperate in the buyer’s illegal growing of the mushrooms. We further conclude this evidence is sufficient to establish two elements of the charge—that Routon intended that the crime of manufacture of psilocybin/psilocin be committed and that he agreed with at least one other person to commit that crime. Because there is also sufficient evidence that one of the parties to the conspiracy committed an act in furtherance of the manufacturing—which Routon does not dispute—we conclude there is sufficient evidence to prove all three elements of the charge beyond a reasonable doubt. Accordingly, we affirm the judgment of conviction.

BACKGROUND

¶3 The charge against Routon stems from the sale to Special Agent Michelle Smith[3] of nine syringes labeled as containing psilocybe spores and a kit for growing mushrooms. The parties agree that the spores used to cultivate psilocybe mushrooms do not contain psilocybin/psilocin and it is legal under Wisconsin law to possess, sell, or distribute the spores “in and of themselves.” Routon’s mother, Gwendolyn Routon, was also charged with conspiring to manufacture psilocybin/psilocybin, was tried with Routon, and was also convicted. While this appeal challenges only Routon’s conviction, evidence relating to his mother is recounted when relevant.
¶4 In the trial to the court, Agent Smith testified that she and other special agents executed a search warrant on a Dane County residence where they found 100 grams of mushrooms that tested positive for psilocybin and packages of syringes that they believed contained psilocybe spores. In one of the packages the agents found syringes and a packing slip from “Spore Magic/Buzz Magic” which listed four syringes and corresponding prices, plus a handwritten note indicating “+ 1 free.” The packing slip contained the statement: “Customer Message: As Stealth as possible please .”
¶5 Sporemagic.com and Buzzmagic.com are website businesses started and operated by Routon. Agent Smith found websites for sporemagic.com and buzzmagic.com, which we will refer to collectively as the website.[4] The website home page contained links to various other pages, one of which was “microscopy spores.” This page showed a variety of strains of psilocybe mushroom spores that one may order. Another page offered grow kits. There was also a link to an “edibles” page, but, Agent Smith testified, there were no edible mushrooms listed on that page and the relevant page in the exhibit showed none listed.
¶6 The website required the user to agree to a disclaimer before entering. The disclaimer stated that the buyer verifies that he or she is over eighteen years of age, not a resident of California or Georgia,[5] and “will use this site’s product(s) only for microscopy purposes.” The disclaimer also stated: “Products contained herein are provided FOR EDUCATIONAL and INFORMATIONAL PURPOSE ONLY. Nothing contained on this web site shall be constituted as a recommendation to or act upon the commission of any illegal act.” The home page and several other pages contained this notice: “Please note that the cultivation of psilocybe spores is illegal in the USA and in some countries.” On the page that sold grow kits there was a notice that stated: “These kits are to be used for Edible Strains ONLY! Spore Magic will not ship these kits with any other of Microscopy Spore Strains!”
¶7 Certain pages of the website contained literature related to other illegal controlled substances. The website contained links to other sites including smokelegalbuds.com, drinkabsinthe.com, and “Uncle Mike’s Psychedelic Shack,” as well as advertising from “Ya Hooka, the Guide to Marijuana on the Internet.” The page that contained the shipping information stated:
I do not keep any records of orders and I do not keep your address. I shred and burn all orders and addresses. All packages are modest and there is no way someone will know what is in the package unless they open it.
I mark the return address simply as Uncle Mike….
¶8 Using an email address she created for the investigation, Agent Smith sent an email to the address listed on the website that said: “Hi, Which of your spores would you recommend for a home-grow situation? I have no experience with this. Thanks!” She did not receive a response. A few days after sending the email, she sent by mail to the post office box address on the website a handwritten order for nine varieties of psilocybe spores, which were offered at a discount rate of “Buy 6, Get 3 Free,” and an order for a “super mushroom grow kit with fruiting chamber.” At the end of the order request, the agent wrote “I can’t wait to see how good I am at growing these.” She signed the order with a fictitious name, “Charles Hagberg,” and gave as her address a post office box she had obtained for purposes of this investigation.
¶9 About ten days later, Agent Smith received a package of syringes at her post office box, each labeled as containing the psilocybe spores she ordered. That same day she sent an email to the Spore Magic/Buzz Magic address that said, “Hi! I got my package from you today that had the 9 syring[e]s that I ordered, but the grow kit wasn’t there. Is it coming later? How much later? I can’t wait to get started!!!!” She received a response the next day stating: “It was mailed the same day[;] it takes large packages longer to get there. I always mail the syringes separate[.]” A few days later she received a package containing the grow kit she had ordered.[6] The package did not contain instructions on how to grow mushrooms but, Agent Smith testified, “instructions on how to grow these types of mushrooms [are] available on the Internet.”
¶10 Agent Smith testified that she did not attempt to cultivate the spores she received in the syringes and the syringes were never tested to verify that the contents were in fact psilocybe spores. She did not attempt to place any other orders with Spore Magic/Buzz Magic and no one from the website contacted her about making additional purchases.
¶11 The State submitted evidence that Routon’s mother, as well as Routon, was involved in the operation of the business and that his mother’s fingerprints were on some of the items shipped to Agent Smith.
¶12 The State also presented evidence of recorded telephone calls between Routon and his mother while he was being held in the Dane County Jail. In one of the calls, he asked his mother to send his attorney “dead” psilocybe spores because “that’s part of where we’re, if we gotta go to trial, we’re gonna use for defense.”
¶13 The circuit court found that the State had produced sufficient evidence, including reasonable inferences from the evidence, that, beyond a reasonable doubt, Routon and his mother were engaged in a conspiracy to commit the offense of manufacturing psilocybin/psilocin. The court rejected Routon’s argument that more than a single sale to Agent Smith was required in order to establish a conspiracy.
¶14 On the element of intent to commit the offense of manufacturing psilocybin/psilocin, the court found the disclaimers were a sham and a smoke screen because the business had in fact sent both psilocybe spores and a grow kit to Agent Smith and the website did not offer edible mushrooms for sale. The court also found that the nature of the links to other websites, coupled with the absence of links to educational or research sites, and the “stealth” business practices showed intent to commit the manufacturing offense, and that the conversation in which Routon asked his mother to send dead spores was evidence that they had been sending psilocybe spores for the purpose of growing them. The court acknowledged that the State had not proved the spores sent to Agent Smith were actually psilocybe spores and stated that this had given it “the most pause.” However, the court concluded there was sufficient circumstantial evidence to establish intent. Finally, the court found that Routon’s mother had committed an act in furtherance of the conspiracy in sending the spores and the grow kit to the agent.

DISCUSSION

¶15 On appeal, Routon renews his argument that there is insufficient evidence to establish that he intended to commit the crime of manufacturing psilocybin/psilocin and that he had an agreement with Agent Smith to do so. Routon relies primarily on cases from other jurisdictions, which, he asserts, establish that there must be an ongoing relationship between the seller and the buyer sufficient to involve the seller in some way in the buyer’s illegal conduct. Routon asserts that the single sale to Agent Smith is insufficient to establish the requisite intent and agreement, emphasizing that the goods sold Agent Smith—the psilocybe spores and the grow kit—were both legal.
¶16 The State’s position is that there is sufficient evidence that Routon intended that Agent Smith manufacture psilocybin/psilocin and that he and his mother entered into an agreement with her for that purpose. According to the State, the cases on which Routon relies either do not require the result he advocates or are inapplicable when the intended crime is manufacturing an illegal substance rather than distribution.
¶17 In reviewing challenges to the sufficiency of evidence, we give great deference to the trier-of-fact and do not substitute our judgment unless the evidence, viewed most favorably to the verdict, is so lacking in probative value and force that no reasonable fact-finder could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). If more than one inference can reasonably be drawn from the historical facts presented at the trial, we accept the inference drawn by the fact-finder, even if other inferences could be drawn. See State v. Drogsvold, 104 Wis. 2d 247, 256, 311 N.W.2d 243 (Ct. App. 1981). This deferential standard of review “is the same whether the fact-finder is the court or a jury.” State v. Oppermann, 156 Wis. 2d 241, 247, 456 N.W.2d 625 (Ct. App. 1990). However, whether the evidence viewed most favorably to the verdict satisfies the legal elements of the crime constitutes a question of law, which we review de novo.[7] See State v. Cavallari, 214 Wis. 2d 42, 47, 571 N.W.2d 176 (Ct. App. 1997).
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both ….
Thus, there are three elements: (1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy. Wis JI—Criminal 570 (2001); State v. West, 214 Wis. 2d 468, 476, 571 N.W.2d 196 (Ct. App. 1997).
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample, 215 Wis. 2d 487, 501-02, 505, 573 N.W.2d 187 (1998). For this reason, a person can be convicted under § 939.31 even if the other party to the conspiracy is an undercover agent who did not intend to commit the crime. See id. Thus, the fact that Agent Smith did not intend to manufacture psilocybin/psilocin does not preclude a determination that Routon is guilty of conspiracy.
¶20 Routon’s challenge concerns the sufficiency of the evidence to establish the first and second elements; he expressly concedes that the third element is satisfied by the evidence that Routon’s mother’s fingerprints were on the materials sent to Agent Smith.
¶21 The agreement to commit a crime that is necessary for a conspiracy may be demonstrated by circumstantial evidence and need not be express; a tacit understanding of a shared goal is sufficient. Cavallari, 214 Wis. 2d at 51. The intent to commit the crime may be inferred from the person’s conduct. See State v. Hecht, 116 Wis. 2d 605, 626-27, 342 N.W.2d 721 (1984). Although the supreme court in State v. Nutley, 24 Wis. 2d 527, 556, 129 N.W.2d 155 (1964), referred to “a stake in the venture” in describing the intent element, the supreme court has since made clear that a stake in the venture is not a necessary element of the crime of conspiracy. Hecht, 116 Wis. 2d at 627. Evidence of a stake in the venture “may be persuasive of the degree of the party’s involvement” in the crime, but the lack of such evidence “does not absolve one of party to a crime liability [for conspiracy].” Id. See also Sample, 215 Wis. 2d at 504 n.17.
¶22 Wisconsin case law has addressed a sufficiency-of-the-evidence challenge where the conspiracy charge is to distribute a controlled substance. State v. Smith, 189 Wis. 2d 496, 501-04, 525 N.W.2d 264 (1995), establishes that the sale of a small amount consistent with personal use is not sufficient to transform a possession charge against the buyer into a conspiracy to distribute. Rather, the State must prove an agreement between the buyer and seller for further delivery to a third person, and “mere knowledge by the supplier of the purchaser’s intent to further distribute … is not enough.” Cavallari, 214 Wis. 2d at 52 (emphasis original).
¶23 However, Wisconsin case law has not addressed a sufficiency-of-the-evidence challenge in a case in which a person is alleged to be a member of a conspiracy—in particular, a conspiracy to manufacture a controlled substance—based on the person’s sale of goods that are not illegal to sell or possess. Both parties agree that two United States Supreme Court cases—United States v. Falcone, 311 U.S. 205 (1940), and Direct Sales Co. v. United States, 319 U.S. 703 (1943)—provide relevant analyses, although the parties disagree on how those analyses apply in this case.
¶24 The defendants in Falcone, 311 U.S. at 206-7, sold sugar, yeast, or cans to persons who produced illegal distilled spirits. The lower court assumed there was sufficient evidence that the sellers knew these products ultimately were used by the distillers, but concluded that knowledge alone was insufficient to prove the sellers were involved in a conspiracy. Id. at 207. Before the Supreme Court, the government effectively conceded this point and instead contended that one who, with knowledge of a conspiracy to produce illegal distilled spirits, sold materials to a conspirator knowing they would be used in the distilling is himself guilty of a conspiracy. Id. at 207-08. Without addressing the correctness of this new theory, the Court concluded there was insufficient evidence to show the sellers had knowledge of a conspiracy among the distillers. Id. at 208-10.
¶25 The reach of Falcone was the subject of the later case, Direct Sales.The defendant in Direct Sales, 319 U.S. at 704, was a registered drug manufacturer and wholesaler that sold by mail order large quantities of morphine sulfate to a registered physician, who illegally dispensed the drug. Relying on Falcone, the defendant argued there was insufficient evidence of a conspiracy between it and the doctor because its drug sales to the doctor were legal and at most it had knowledge that the doctor was selling the drugs illegally. Id. at 708. The Court stated that this was a misconstruction of Falcone because Falcone did not decide that one who sells to a buyer with knowledge that the buyer will use “the article for an illegal purpose cannot, under any circumstances, be found guilty of conspiracy with the buyer to further his [or her] illegal end.” Id. at 709. Instead, Falcone held that “one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally.” Id. The Court pointed out that the government in Falcone had conceded there was insufficient evidence to establish a conspiracy between the buyer and seller alone; and, although the Falcone Court had accepted that concession, it did not decide whether the concession was well-founded. Id. at 710.
¶26 In analyzing whether there was sufficient evidence to establish a conspiracy between the buyer and the seller in Direct Sales, the Court first discussed some general principles. The Court observed that the “gist” of a conspiracy in this context is the “[seller’s] intent, when given effect by overt act” to “further, promote, and cooperate” in the buyer’s intended illegal use. Id. at 711. In order to establish that intent on the part of the seller, there must be evidence of the seller’s knowledge of the buyer’s intended illegal use and “[that] evidence of knowledge must be clear, not equivocal.” Id. While clear evidence of knowledge is not necessarily sufficient to establish intent, in some cases the evidence that clearly establishes knowledge will also prove intent.[9] Id. at 711-12.
¶27 The Court in Direct Sales elucidated these general principles in the context of discussing the significance of the nature of the products sold: when products are articles of “normal trade,” such as sugar, corn, and cans, more proof is required to show the seller’s knowledge of the buyer’s intended illegal use than when the goods sold are restricted because of their inherent capacity for harm. Id. at 711-12. The Court concluded that the evidence of the restricted nature of the drugs sold, coupled with the evidence of the quantity sold to the doctor, the frequency of sales, the period of time over which it sold to the doctor, and the high pressure, volume discount method of sales, was sufficient to prove not only knowledge and acquiescence, but also “informed and interested cooperation, stimulation, instigation” by the defendant. Id. at 713. The Court also observed that, while a stake in the venture was not essential, it was not irrelevant and the defendant made profits from the doctor’s illegal operations, which the defendant encouraged. Id.
¶28 In Routon’s view, in order to determine whether there is sufficient evidence of both knowledge and intent in this case, we compare the evidence the Court relied on in Direct Sales to the evidence in this case. If we do that, according to Routon, we must conclude the evidence is insufficient. Specifically, Routon points out that the spores and grow kit are legal, unregulated products, and there was only one sale to Agent Smith, not the ongoing sales of large quantities encouraged by the seller’s marketing methods as in Direct Sales. The premise of Routon’s argument is that Direct Sales establishes specific requirements for finding a conspiracy in all types of seller-buyer situations.[10] Like the circuit court, we disagree with this premise. The Court in Direct Sales determined that there was a conspiracy on the facts of that case, applying the general principles regarding knowledge, intent, and the relationship between the two. To the extent a seller-buyer situation is like that in Direct Sales, the evidence the Court considered relevant there to establish a conspiracy provides guidance; to the extent the seller-buyer situation is of a different type, the general principles are helpful but the specific analysis will necessarily involve other kinds of evidence.
¶29 Therefore, we decline to frame our analysis in this case by lining up the evidence here with that in cases that differ in significant ways. Instead, we analyze the evidence in this case to determine whether it is sufficient to prove that Routon and his mother entered into an agreement with Agent Smith to manufacture psilocybin/psilocin, using the general principles discussed in Direct Sales, which both parties agree are pertinent.[11] In that context, we will address Routon’s specific arguments based on a comparison to other cases.
¶30 We first consider the evidence that Routon and/or his mother[12] knew that Agent Smith[13] intended to use the spores to illegally manufacture psilocybin/psilocin. We do not agree with Routon that this evidence was “equivocal.” While it is true that the psilocybe spores are not an illegal product and are not regulated, as the drugs were in Direct Sales, their cultivation is illegal and the website disclaimer indisputably shows that Routon knew this. Even if it is reasonable to infer from the website that there is a market for purchasing psilocybe spores for legal “microscopic” use, there is abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business: (1) the “stealth” comment on the packing slip; (2) the website links referring to mind-altering substances together with the lack of any website links to educational or research sites; (3) the reassurance that packages are modest and orders and addresses of customers are shredded; (4) the sale of grow kits together with the absence of any edible mushroom spores on the website; and (5) Routon’s request to his mother to send some dead spores to his attorney so they could use those as a defense. The evidence is also sufficient to establish that Routon and/or his mother clearly knew that Agent Smith, in particular, wanted to use the spores for the purpose of growing the mushrooms: Agent Smith’s handwritten order, which was filled, said so.
¶31 Routon argues that other evidence, as well as the lack of certain evidence, undermines the inference that either he or his mother had clear knowledge of the buyer’s purpose. We disagree. Routon points to the disclaimers, but the court found these were a “sham” and a “smokescreen” and that is certainly a reasonable inference. Routon next refers to the fact that the email sent to Agent Smith, explaining when the grow kit would arrive, did not specifically state that the spores she had received were psilocybe spores. However, Agent Smith’s email inquiring about the grow kit referred to having received “the 9 syringe[e]s [she] had ordered”; she had ordered psilocybe spores; and the syringes she received were labeled as containing the psilocybe spores she had ordered. Given this evidence, the omission of an express reference to “psilocybe” spores in the Spore Magic/Buzz Magic email does not undermine the strong inference that the person sending the email knew the buyer waiting for the grow kit had ordered and received psilocybe spores.
¶32 Finally, Routon argues that the lack of evidence that the spores sold Agent Smith actually were psilocybe spores weakens any inference from other evidence that Routon knew that the spores would be used for an illegal purpose. However, even without that evidence, it is reasonable to infer that Routon was selling the psilocybe spores he was advertising. The alternative inference—that there was an elaborate scheme to make purchasers think they were buying psilocybe spores when they were not—is far-fetched.
¶33 We conclude there is sufficient evidence that Routon clearly knew that Agent Smith intended to use the spores to illegally manufacture psilocybin/psilocin.
¶34 With respect to intent to further, promote, and cooperate in Agent Smith’s illegal growing of the mushrooms, we conclude the evidence reasonably shows that, knowing that Agent Smith wanted to grow the mushrooms, Routon’s mother sent her the spores and the grow kit without attempting to verify that she was authorized under Wisconsin law to grow them. See Wis. Stat. § 961.01(13) and (19). Indeed, the handwritten order and its contents on non-business stationary in themselves are evidence that Agent Smith was not one of the “practitioners” defined in § 961.01(19) who can lawfully grow the mushrooms. The fact that the packages were not shipped together does not undermine the significance of selling the grow kit: Agent Smith’s email inquiry about the grow kit after receiving the spores and the response show that Routon and/or his mother knew that the same person—Charles Hagberg—had ordered the spores and a grow kit and was now awaiting the arrival of the grow kit to “get started.” Sending the grow kit is thus evidence of furthering and cooperating in Agent Smith’s stated intent to grow the spores into mushrooms.
¶35 The evidence identified supra at paragraph 30 as items (1)-(4) and the evidence that Spore Magic/Buzz Magic had been operating for four years provide a reasonable basis for inferring that the sale of psilocybe spores to persons who Routon and/or his mother knew intended to grow mushrooms is not an isolated sale, but is rather a predominant purpose of the business. In that context, the volume discount for psilocybe spores gives rise to a reasonable inference that Routon is promoting their sale, knowing of the illegal use. The evidence of the announced business practices of shredding records and addresses and sending items in “modest” packages gives rise to a reasonable inference that Routon intends to assist his customers in keeping their illegal activities undetected, which is another means of furthering and cooperating in those activities.
¶36 Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here, of an ongoing business that had the predominant purpose of selling a product for an illegal use. See, e.g., United States v. Berkery, 919 F.2d 817, 821 (2nd Cir. 1990) (evidence that the defendants possessed on a single occasion a large quantity of a chemical whose only known use is to manufacture methamphetamine was not sufficient to show a conspiracy to manufacture methamphetamine because the possession was just as consistent with an intent to distribute to others as with an intent to manufacture, there being no evidence of either connection with an actual manufacturing operation or a pattern of importing the chemical); State v. Maldonado, 114 P.3d 379, 380-83 (N.M. Ct. App. 2005) (evidence that the defendant had sold non-prescription pseudoephedrine on two or three occasions to a person whom he believed used them to manufacture methamphetamine prescriptions and intended to sell some more to that person was insufficient to establish a conspiracy to commit trafficking in methamphetamine by manufacturing);[14] United States v. Blankenship, 970 F.2d 283, 288, 289 (7th Cir. 1992) (defendant’s agreement to rent a house trailer for one day to a person manufacturing methamphetamine, knowing that was the intended use, was not sufficient to prove that he knew about, let alone joined, in “the entire … venture” of the drug ring, which is what the government charged; though he “may have joined, or abetted, a more limited agreement to manufacture a quantity of methamphetamine, … he was not charged with that offense”). Cf. United States v. Bewig, 354 F.3d 731, 736-37 (8th Cir. 2003) (while “a mere sales transaction, standing alone, cannot support a conspiracy conviction,” there was sufficient evidence of conspiracy to distribute pseudoephedrine for the purpose of making illegal narcotics where the defendant managed a shop at a gas station and ordered and sold a disproportionately large quantity of pseudoephedrine, knowing that substance was used to make methamphetamine).
¶37 We do not agree with Routon that the evidence here shows “[a] single, casual transaction.” Although there was only one sale to Agent Smith, the reasonable inference the court drew from the evidence is that Routon marketed and sold psilocybe spores and grow kits to a number of other purchasers as part of his ongoing business. This is important because evidence of an ongoing business may, as here, provide evidence of the seller’s knowledge of the illegal use of the product sold and an intent to further, promote, and cooperate in that illegal use.
¶38 Routon also argues that he had no interest or stake in Agent Smith or any other purchaser growing mushrooms from the psilocybe spores. He cites to cases that discuss conspiracies to distribute illegal substances. See, e.g., United States v. Lechuga, 994 F.2d 346 (7th Cir. 1992); Blankenship, 970 F.2d 283. However, as Routon acknowledges, there is no requirement that there be any stake in the venture. Hecht, 116 Wis. 2d at 627. And there is certainly no requirement that the “fronting” of sales or other involvement characteristic of conspiracies to distribute illegal drugs exist in cases that do not charge a conspiracy to commit that crime. Moreover, we conclude the evidence does provide a basis for reasonably inferring that Routon had an interest or stake in Agent Smith and other purchasers growing mushrooms from the psilocybe spores he sold. While Agent Smith testified that a purchaser can obtain spores from the mushrooms he or she grows, she also acknowledged that people recommend vendors to others whom they know are interested in the same product. It is reasonable to infer that Routon had a financial interest in purchasers, including Agent Smith, growing psilocybe spores with grow kits sold by Spore Magic/Buzz Magic and being satisfied with the results: satisfied purchasers might wish to purchase other varieties of the psilocybe spores that Spore Magic/Buzz Magic offers and would more likely recommend to friends that they, too, purchase from Spore Magic/Buzz Magic.
¶39 In summary, we conclude there is sufficient evidence that Routon knew that Agent Smith intended to use the spores to illegally manufacture psilocybin/psilocin by growing mushrooms and that he intended to further, promote, and cooperate in Agent Smith’s illegal growing of the mushrooms. We further conclude this evidence is sufficient to establish that Routon intended that the crime of manufacture of psilocybin/psilocin be committed and that he and his mother agreed with Agent Smith to commit the that crime. Because there is no dispute that there is also sufficient evidence of an overt act, we conclude there is sufficient evidence to prove all three elements of the charge beyond a reasonable doubt. Accordingly, we affirm the judgment of conviction.
By the Court.—Judgment affirmed.








[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

[2] Wisconsin Stat. § 961.14(4)(r) and (s) list psilocybin and psilocin as hallucinogenic substances. Because it is not necessary on this appeal, we do not distinguish between the two substances, but refer to them as psilocybin/psilocin. The record shows that the mushrooms are called “psilocybe cubensis” mushrooms, but we shorten that to “psilocybe.”

[3] Michelle Smith is employed by the Wisconsin Department of Justice.

[4] Agent Smith testified that sporemagic.com had a link to buzzmagic.com, and that buzzmagic.com was similar in format to sporemagic.com. It is not always clear from her testimony and from the exhibits which website she is referring to, and neither the parties nor the circuit court distinguished between them. Therefore we refer to both as “the website.” We will refer to the business as “Spore Magic/Buzz Magic.”

[5] California and Georgia have restrictions on the sale and/or possession of psilocybe spores. See Cal. Health & Safety Code §§ 11390-11392 (2006), and Ga. Code Ann. §§ 13-16-71 (627) and 13-16-72 (2006).

[6] Agent Smith described the contents of the “grow kit” as follows:
It was a large plastic-lidded tub. There were 12, half-pint size Mason jars that were filled with a brown grain-like substance. Each of the jars had aluminum foil over the top, then the canning lid with four holes punctured in the top, a piece of plastic, and then the jar ring. And there was a bag containing a white substance which the Spore Magic site calls perlite.

[7] The State argues that the de novo standard of review we applied in State v. Cavallari, 214 Wis. 2d 42, 47, 571 N.W.2d 176 (Ct. App. 1997), is inapplicable because “the issue of whether the particular buy-sell agreement constituted a conspiracy to deliver controlled substances depended on statutory interpretation, a question of law.” In Cavallari, we attempted to identify under what circumstances a certain relationship “might ripen into, or constitute, a conspiracy” under Wis. Stat. § 961.41(1x). Id. at 49. Although the underlying crime in Cavallari was the delivery, rather than manufacture, of controlled substances, the legal analysis concerned the same conspiracy statute, § 961.41(1x), at issue in this case. We see no reason why a de novo standard of review is inapplicable here insofar as Routon is challenging whether the facts as found by the circuit court and the reasonable inferences drawn by the circuit court are sufficient to fulfill the statutory elements of the crime.

[8] As we explained in Cavallari, 214 Wis. 2d at 48 n.2, the cross-references in the two statutes pertain to the different penalties that flow from a conspiracy conviction under Wis. Stat. § 961.41(1x) and under Wis. Stat. § 939.31, but the substantive definition of conspiracy is found in § 939.31.

[9] The federal conspiracy statute in Direct Sales Co. v. United States, 319 U.S. 703, 704 n.1 (1943), provided that
[i]f two or more persons conspire either to commit any offense against the United States … and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000 or imprisoned not more than two years, or both.
Unlike Wis. Stat. § 939.31, the federal statute does not separately state as elements intent to commit the crime and an agreement to commit the crime. No doubt for that reason, the Court discussed intent in the context of what constituted an agreement, or a conspiracy, but did not discuss intent to commit the crime as a separate element. Neither party suggests that this makes the Supreme Court’s analysis less useful. Thus, the parties make the apparently reasonable assumption that, if the evidence is sufficient to prove that the defendant agreed with another to commit a crime, that same evidence would also be sufficient to prove that the defendant intended to commit that crime.

[10] Of course, United States v. Falcone, 311 U.S. 205 (1940), and Direct Sales Co., 319 U.S. 703, like the other federal cases cited by Routon that we discuss later in this opinion, are concerned with federal conspiracy statutes. They are not binding on Wisconsin courts in construing and applying Wisconsin statutes, but we consider them to determine their persuasive value. See Humi v. Vlazny, 2006 WI 87, ¶45 n.13, 293 Wis. 2d 169, 716 N.W.2d 807.

[11] Neither party contends that, if there is sufficient evidence of an agreement, we must separately analyze whether Routon intended that the crime be committed. See supra at footnote 9.

[12] Although Routon was confined in the Virginia Department of Corrections at the time of Agent Smith’s order, a reasonable inference from the evidence is that he continued to operate Spore Magic/Buzz Magic with his mother; and Routon does not argue otherwise on appeal. He also does not argue that evidence of knowledge his mother had cannot be attributed to him.

[13] We use “Agent Smith” for ease of reference, recognizing that the more accurate term in this context is “the buyer purporting to be Charles Hagberg,”

[14] The court in State v. Maldonado, 114 P.3d 379, 381 (N.M. Ct. App. 2005), viewed the issue as whether “a defendant whose only involvement is supplying generally available goods or services becomes a co-conspirator merely because he knows that the goods or services he provides may or will be used by another for a criminal purpose[.]” The court expressed doubts whether the legislature intended to include this fact pattern within the conspiracy statute and, applying the rule of lenity, resolved the doubt in favor of the defendant. Id. at 382-83.

Reputation Comments on this post:

Thanks for the info

[old hippie 56]

The legal status of psilocybin mushrooms varies world-wide. Psilocybin and psilocin are listed as Schedule I drugs under the United Nations 1971 Convention on Psychotropic Substances.[1] Schedule I drugs are drugs with a high potential for abuse that have no recognized medical uses. The classification of psilocybin mushrooms as a schedule 1 drug has come under criticism because shrooms are considered soft drugs with a low potential for abuse. Parties to the treaty are required to restrict use of the drug to medical and scientific research under strictly controlled conditions. Most national drug laws have been amended to reflect this convention (for example, the US Psychotropic Substances Act, the UK Misuse of Drugs Act 1971, and the Canadian Controlled Drugs and Substances Act), with possession and use of psilocybin and psilocin being prohibited under almost all circumstances, and often carrying severe legal penalties. Psilocybin (also known as psilocybine) is a psychedelic alkaloid of the tryptamine family, found in psilocybin mushrooms. ... Psilocin,(4-HO-DMT) sometimes called psilocine or psilotsin, is a psychedelic (hallucinogenic) mushroom alkaloid. ... Convention on Psychotropic Substances Opened for signature February 21, 1971 in Vienna Entered into force August 16, 1976 Conditions for entry into force 40 ratifications Parties 175 The Convention on Psychotropic Substances is a United Nations treaty designed to control psychoactive drugs such as amphetamines, barbiturates, and psychedelics. ... The term soft drug is given sometimes to a range of drugs that are supposed to be less harmful than other drugs, called hard drugs. ... The Psychotropic Substances Act of 1978 amended the Controlled Substances Act to ensure compliance with the Convention on Psychotropic Substances. ... The Misuse of Drugs Act 1971 is an Act of Parliament, by which the United Kingdom aims to control the possession and supply of numerous drugs and drug-like substances, as listed under the Act, and to enable international co-operation against illegal drug trafficking. ... The Controlled Drugs and Substances Act is Canadas federal drug control statute. ...


Possession and use of psilocybin mushrooms, including the bluing species of Psilocybe, is therefore prohibited by extension. However, in many national, state, and provincial drug laws, there is a great deal of ambiguity about the legal status of psilocybin mushrooms, as well as a strong element of selective enforcement in some places. The legal status of Psilocybe spores is even more ambiguous, as the spores contain neither psilocybin nor psilocin, and hence are not illegal to sell or possess in many jurisdictions, though many jurisdictions will prosecute under broader laws prohibiting items that are used in drug manufacture. A few jurisdictions (such as the US states of California, Georgia, and Idaho) have specifically prohibited the sale and possession of psilocybin mushroom spores. Cultivation of psilocybin mushrooms is considered drug manufacture in most jurisdictions and is often severely penalized, though some countries and one US state have ruled that growing psilocybin mushrooms does not qualify as "manufacturing" a controlled substance.

Not many cases out there; Here is one that caught my eye:
EUGENE, OREGON – Karin J. Immergut, the United States Attorney for the District of Oregon, announced yesterday's sentencing of KATHLEEN M. GOLDEN, 53, to 30 months' imprisonment to be followed by three years of supervised release. Golden's reporting date to prison is January 17, 2006. Golden, now residing in Ashland, Oregon, had previously entered a plea of guilty for knowingly manufacturing psilocybin mushrooms, a Schedule I controlled substance, and for money laundering. She must also pay a one hundred dollar ($100) fee assessment for each of the two counts that she pled guilty to.

Reputation Comments on this post:

thx

[Synesthesiac]

I think this is a fairly rare occurence. I mean, I very rarely hear about shroom growers getting jail time compared to other substances. Maybe just because fewer people do it. There is one guy I remember from a discussion at the shroomery called Lewis Atley who got 20 years in Iowa, but this was a much publicised case, and its hard to tell if he was being made an exmaple of or whether this is the standard sentence. And he may have got out early, I haven't checked fully.

http://www.hr95.org/Shattered,revu.htm

Shattered Lives conveys a personal rather than an abstract argument against the drug war. Flipping through the pages and confronting the haunting images of people like Lewis Atley, serving 20 years for the "crime" of growing psilocybin mushrooms

http://www.altlaw.org/v1/cases/1360162
And erowid documented his case: http://www.erowid.org/plants/mushroo...oms_law5.shtml

States like florida seem more leniant though: http://www.erowid.org/plants/mushroo...oms_law3.shtml

should be some case reports here too;


http://www.erowid.org/plants/mushroo...ooms_law.shtml

U.S. STATE LAW #
Psilocybin mushrooms are illegal in every state in the United States except Florida (see below).
Specific state laws can be accessed through this state-by-state list. An Overview of case law for several states can be accessed here.

Psilocybin Mushroom spores are legal to possess in every state except California, Georgia, and Idaho. (see details).

Florida #
Florida stands out because of a decision in 1978 in Fiske v Florida by the Florida Supreme Court which ruled that wild-picked psilocybin mushrooms could not be legally considered "containers" of psilocybin and thus would have to be specifically listed in Florida law by the legislature if they meant to make them illegal. Since the Florida legislature has not chosen to change the laws since then, wild Psilocybin mushrooms are presumptively legal to possess in Florida. This does not mean police won't arrest people for possession of even wild mushrooms, but this has been used as a successful defense against such charges.
New Mexico #


New Mexico appeals court ruled on June 14, 2005, that growing psilocybin mushrooms for personal consumption could not be considered "manufacturing a controlled substance" under state law. See Opinion: State of New Mexico vs. David Ray Pratt - June 14 2005

Reputation Comments on this post:

thanks

[Sitbcknchill]

Originally Posted by chillinwill

Did you want me to post the articles on here because there are about numerous articles here at this website....http://www.mushroomjohn.org/newsusillinois1.htm

Yeah I was looking at that site earlier, I am specifically looking for articles that contain the actual sentencing of the individual, those I would like posted here.

There is another case that can be found Here

As far as I can see this does not show sentencing either.

[Police Officer]

Originally Posted by Synesthesiac

Does growing count as manufacturing? Or does manufacturing literally mean synthesising it in laboratory conditions out of raw chems?

Yes. Growing and cultivating is manufacturing. Most states have their laws adopted so growing/cultivating/manufactuing/distributing is all in the same and can be prosecuted the same.

If you are from the US and you tell me what state you are from I can look it up for you.

[Lunar Loops]

Well there's the following link on here, but I'm sure you've already seen that:

http://www.drugs-forum.com/forum/showthread.php?t=319

Here's another link that may throw up some info that will be of use to you:

http://www.clusterbusters.com/legal.html

Reputation Comments on this post:

Wasn't really what I was looking for but thanks for the adding the info here.

[MiMoMo]

Hello there: Here are several articles and a video spliced together following the story of this mushroom enthusiast


One man arrested after State Police investigate "psychedelic mushroom" operation



Submitted photo of Michael Schecter from State Police

Story Created: Aug 26, 2008 at 11:02 PM EST
Story Updated: Aug 27, 2008 at 1:54 PM EST

YORKVILLE, N.Y. (WKTV) - State Police are further investigating what they're calling a psychedelic mushroom growing operation in Yorkville.
The discovery came when officers with the Oneida County Probation Department went to deliver a warrant at 1004 Champlin Avenue Tuesday night.

They say they found several jars containing an unknown chemical, and immediately evacuated everyone who lived in the building. They also ordered evacuations at several other homes surrounding it.
Police say the chemicals found appeared to be used to grow drugs.
The situation was deemed under control at around 4 a.m. Wednesday morning, and residents were allowed back into their homes.
UPDATE (August 27, 2008; 11:42 a.m.): According to New York State Police, they had found the location after arresting Michael Schecter, 33, for a probation violation.

The New York State Police Contaminated Crime Scene Emergency Response Team (CCSERT) and the New York State Police Community Narcotics Enforcement Team (CNET) responded to investigate and process the scene. Chemists secured numerous mason jars, and petri dishes containing possible mushroom spores, and unknown chemicals.
Oneida County Probation arrested Michael A. Schecter for the probation violation. He was processed and secured at Oneida County Correctional Facility. State Police charges are pending the results of laboratory tests on the seized substances.
A small area surrounding this address was evacuated until deemed safe by CCSERT and local Hazmat Teams!

VIDEO here: http://www.mefeedia.com/entry/video-...ille/11126662/


Yorkville drug lab stuns neighbors
By ROCCO LaDUCA
Observer-Dispatch
Posted Aug 27, 2008 @ 11:30 PM
Last update Aug 28, 2008 @ 06:13 AM
YORKVILLE —
After hazardous chemicals and a possible drug-making operation were discovered in a Yorkville apartment Tuesday evening, neighbor Valerie Gates said she’s glad to be moving out of the area. “We have three boys, and it’s just not where we want our kids growing up, with stuff like this going on,” 31-year-old Gates said as movers carried boxes from her apartment. “The badness over in Utica is slowly coming this way, and that’s kind of why we’re moving.”

Gates’ family was among about 10 families who were forced to evacuate their homes for about 10 hours overnight while the New York State Police Contaminated Crime Scene Emergency Response Team cleaned 1004 Champlin Ave. of any hazardous materials.

Around 5:30 p.m. Tuesday, Oneida County probation officers discovered containers filled with unknown chemicals in the second-floor apartment of Michael Shecter. Shecter, 33, had been arrested at the time for violating his probation, state police said. Further investigation revealed the chemicals appeared to be ether, a volatile substance used in the processing of psychedelic mushroom narcotics, state police said. Other materials in the apartment — including roughly 100 mason jars and petri dishes of possible mushroom spores — also were recovered. Until the seized substances are tested, however, their exact nature and purpose in Shecter’s apartment still is unclear, state police said.

“We don’t know if he was growing hallucinogenic mushrooms, but the chemical leads us to believe he was attempting to manufacture some illicit narcotic,” state police Troop D Capt. Frank Coots said. “The amount of, or specific types of, narcotics that may have existed at that apartment is undetermined at this time until further chemical analysis.” Additional charges against Shecter are pending those laboratory results and further investigation by the state police Community Narcotics Enforcement Team, or CNET, Coots said. But current charges against Shecter in Saratoga County, more than 100 miles away, indicate he already has some familiarity with hallucinogenic mushrooms, prosecutors said.

Shecter was free on at least $100,000 bail at the time of Tuesday’s arrest after he was indicted earlier this month in Saratoga County on several charges related to the possession of hallucinogenic mushrooms with the intent to sell, Saratoga County Assistant District Attorney Alan Poremba said Wednesday. Shecter and another co-conspirator were arrested June 5 while Shecter was in the process of receiving 10 pounds of mushrooms from the other individual in the town of Wilton, Poremba said. Tuesday’s Yorkville arrest likely will result in Shecter’s bail being revoked, he said. In the meantime, Saratoga County prosecutors await further information to clarify whether Shecter’s activities in Yorkville are at all linked to his pending drug allegations, Poremba said.

Although Gates was shocked by Tuesday’s discovery in Shecter’s apartment next door, she said nothing surprises her anymore about what goes on around the area, which is a short distance from the West Utica border. But the reality of such a potential danger still is chilling, especially when firefighters told her and her family to leave their home immediately, she said. “My first thought was that he had some type of drug lab that would explode,” Gates said. “There’s a family that lived downstairs from him, and that guy could have killed them if that was the case.”

And that was the possible worst case scenario that immediately concerned state police and Yorkville firefighters who first arrived at the scene, Yorkville Fire Chief Joe Morosco said Wednesday. “We didn’t really know what we had,” Morosco said. “But we knew it was something that wasn’t safe.” The discovery of hazardous materials Tuesday was unlike anything the village has ever seen, Morosco said. Now he’s left wondering what might be going on behind closed doors elsewhere throughout the village, he said. “We’ve been driving past that house for how long now, and we didn’t know that’s going on,” Morosco said. “Now, we’re just waiting for the next time.”

Such potential drug-making operations are rare in suburban areas such as Yorkville, but Tuesday’s incident shows that no area is immune to drug activity, police said. “It just signals that everybody needs to be vigilant against this type of activity in their neighborhood, and they should always be on the lookout for suspicious activity,” state police Troop D public information officer Trooper Jim Simpson said.


Yorkville man pleads guilty to violating probation
By ROCCO LaDUCA
Observer-Dispatch
Posted Oct 03, 2008 @ 12:09 PM
Last update Oct 03, 2008 @ 12:11 PM
UTICA —
A Yorkville man whose apartment contained a possible drug-making operation pleaded guilty to violating his probation Friday in Oneida County Court.

Michael Shecter, 33, admitted that he did not have permission to travel into Otsego County, where he was located at his girlfriend’s residence in late August.

Shecter also acknowledged that he had been arrested in Saratoga County on several charges related to the possession of hallucinogenic mushrooms with the intent to sell, which likewise violates his probation.

Judge Barry M. Donalty is expected to sentence Shecter to 1 to 3 years in prison on Oct. 28.

Shecter, however, still has not been charged related to the variety of unknown chemicals and indications of a possible hallucinogenic mushroom-growing operation that probation officers discovered within his Champlin Avenue apartment in Yorkville.

[Sitbcknchill]

^^ He didn't get sentenced in relation to the crime though. This guy was sentenced for his probation violation.

[MiMoMo]

Originally Posted by Sitbcknchill

^^ He didn't get sentenced in relation to the crime though. This guy was sentenced for his probation violation.

SWIM finds the same frustration in trying to find concluding sentences for alot of drug crimes. They simply are not made public, it seems. Perhaps it is because of 'snitch' deals, cooperation that would be apparent by the sentence severity, or lack of. There is a vested interest in hushing up the outcome, especially if the accused is let back out on the street to continue dealings and inform.

Given the seeming intentional masking of sentence specifics, is it advisable to call the Court and inquire as to an individual's sentencing outcome? No doubt this would attract interest and possibly undue attention. Is it a lawful requirement that sentencing outcomes be made public record and readily accessible?

Anyway, this fellow's plight seemed to be representative of what was looked for. And the eventual sentence obfuscation appears standard operating procedure when enlisting cooperation in further enforcement.