State v. Routon
736 N.W.2d 530, 2007 WI App 178, 304 Wis. 2d 480 (2007)
Rule of Law:
A seller of legal goods can be convicted of conspiracy to commit an illegal act if there is clear evidence of the seller's knowledge of the buyer's illegal intent and the seller acts to further, promote, and cooperate in that illegal use, even if the goods themselves are legal and the transaction is a single sale conducted within the context of an ongoing business designed to facilitate such illegal use.
Facts:
- Henry Routon started and operated websites, Sporemagic.com and Buzzmagic.com, which offered various strains of psilocybe mushroom spores and grow kits for sale.
- The websites included disclaimers stating products were for 'microscopy purposes only' and that cultivation was illegal, but also contained links to sites about illegal controlled substances, advertised 'stealth' shipping, and assured customers that records would be shredded.
- Special Agent Michelle Smith sent an email to Routon's business, asking for recommendations for a 'home-grow situation' because she had 'no experience with this.'
- Agent Smith then mailed a handwritten order to Routon's business for nine varieties of psilocybe spores and a 'super mushroom grow kit with fruiting chamber,' adding, 'I can't wait to see how good I am at growing these.'
- Agent Smith received a package of syringes labeled as containing the psilocybe spores she ordered.
- Agent Smith emailed Routon's business inquiring about the missing grow kit, stating, 'I can't wait to get started!!!!'
- Routon's business responded, confirming the grow kit was mailed separately and explaining that large packages take longer to arrive.
- Agent Smith subsequently received a package containing the grow kit she had ordered.
- While in jail, Henry Routon asked his mother to send his attorney 'dead' psilocybe spores to use for his defense if they went to trial.
Procedural Posture:
- Special Agent Michelle Smith conducted an investigation into the online businesses Sporemagic.com and Buzzmagic.com.
- Agents executed a search warrant on a Dane County residence where they found psilocybe mushrooms and packages of syringes believed to contain psilocybe spores with a packing slip from Spore Magic/Buzz Magic.
- Henry Routon and his mother, Gwendolyn Routon, were charged with one count of conspiracy to manufacture psilocybin/psilocin.
- Henry Routon and Gwendolyn Routon were tried together in a circuit court (trial to the court).
- The circuit court found Henry Routon guilty, concluding there was sufficient evidence that he and his mother were engaged in a conspiracy to manufacture psilocybin/psilocin beyond a reasonable doubt.
- Henry Routon appealed the circuit court's judgment of conviction to the Wisconsin Court of Appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is the sale of legal psilocybe mushroom spores and a grow kit, coupled with circumstantial evidence of an ongoing business actively promoting their illegal cultivation, sufficient to convict a seller of conspiracy to manufacture psilocybin/psilocin, even when the transaction is a single sale to an undercover agent?
Opinions:
Majority - VERGERONT, J.
Yes, the evidence was sufficient to prove Henry Routon conspired to manufacture psilocybin/psilocin because there was clear evidence that he knew Agent Smith intended to use the spores to illegally grow mushrooms and he intended to further, promote, and cooperate in that illegal activity. The court affirmed the conviction, establishing that all three elements of conspiracy under Wis. Stat. § 939.31 were met: (1) Routon's intent that the crime of manufacturing psilocybin/psilocin be committed, (2) an agreement between Routon (and his mother) and Agent Smith to commit that crime, and (3) an overt act (sending the spores and grow kit) in furtherance. The court drew heavily on the principles from Direct Sales Co. v. United States, which clarified that while mere knowledge of a buyer's illegal purpose is insufficient, clear evidence of such knowledge, combined with actions demonstrating an intent to "further, promote, and cooperate" in the buyer's illegal end, can establish conspiracy. The court found that Routon's business practices—including the 'stealth' shipping message, website links to illicit substances without educational counterparts, promises to shred records, the sale of grow kits without offering edible mushroom spores, and Routon's later request for 'dead' spores for his defense—constituted abundant circumstantial evidence that he marketed psilocybe spores primarily to individuals intending illegal cultivation. Furthermore, Agent Smith's explicit statements in her order and emails that she wanted to 'grow' and 'get started' provided direct evidence of Routon's knowledge of her specific illegal intent. The court rejected Routon's argument that disclaimers negated intent, finding them to be a 'sham' and a 'smokescreen.' It also distinguished the case from others involving single, casual transactions by emphasizing that Routon operated an ongoing business whose predominant purpose was to facilitate illegal use, demonstrating an intent to promote sales, even for a single transaction. The court also concluded that Routon had a financial 'stake in the venture,' as satisfied customers would likely make repeat purchases and refer others, thereby encouraging further illegal activity.
Analysis:
This case significantly clarifies that a conspiracy conviction can be sustained even when the goods sold are legal and the transaction is a single interaction, provided there is clear, circumstantial evidence that the seller knew of and intended to further the buyer's illegal use. It expands the interpretation of 'agreement' in conspiracy by emphasizing the seller's intent and active promotion of an illegal purpose, distinguishing it from mere knowledge or a casual sale. The ruling highlights how a pattern of business practices, even with disclaimers, can establish the requisite intent and agreement for conspiracy, particularly in the context of manufacturing illegal substances. This case provides important guidance for prosecuting individuals who facilitate illegal activities through the sale of otherwise legal precursor materials or equipment.
