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MADISON, WI - An Internet sale of materials that are legal to possess may nevertheless form the basis for a criminal prosecution of the seller for conspiracy to manufacture a controlled substance, the Court of Appeals held yesterday. The Court of Appeals' decision affirmed the Dane County Circuit Court's judgment of conviction of Henry E. Routon.


Over the Internet, Henry Routon sold psilocybin spores and a "grow kit" (which are legal to possess in Wisconsin) to undercover Department of Justice -- Division of Criminal Investigation Special Agent Michelle Smith. As part of the transaction, the agent, acting under a fictitious name, expressed to Routon by email a desire to manufacture hallucinogenic mushrooms. It is illegal to manufacture hallucinogenic mushrooms in Wisconsin.


The Court of Appeals found sufficient evidence to uphold Routon's conspiracy to manufacture a controlled substance conviction based on several considerations. They include:


  • the representations that Routon made on his website, which included secrecy promises and the absence of edible mushrooms for sale;
  • the ongoing nature of Routon's Internet business;
  • the discrete packaging of the materials;
  • an e-mail exchange with the undercover buyer;
  • and Routon's failure to make any attempt to verify that the buyer was a medical or research practitioner who could grow such mushrooms legally.


The Court of Appeals distinguished the crime of conspiracy to illegally manufacture a controlled substance, which requires only one person to complete the intended crime, from the crime of conspiracy to distribute a controlled substance, which requires two people to complete the intended crime.


Attorney General J.B. Van Hollen praised the Court of Appeals' decision. "I am very pleased that the Court of Appeals affirmed this conviction," Van Hollen said. "The use of the Internet to commit drug crimes is a growing problem. The Department of Justice is committed to investigating and prosecuting these cases, and I congratulate the investigators and prosecutors for their work on this matter."


A copy of the decision can be found at


Former Dane County Assistant District Attorney Jason Hanson prosecuted the case, and Assistant Attorney General James M. Freimuth represented the State on appeal.