He was a ‘poor schmuck’ who thought he was selling legal synthetic marijuana to keep a Goodwin, South Dakota, bar open.
That’s how an attorney for 40-year-old Jason Toben described his client in front of the South Dakota Supreme Court Tuesday as he argued to have Toben’s synthetic drug convictions overturned.
An attorney with the South Dakota Attorney General’s Office described the Deuel County man differently.
“He has smoked this previously. He knew it made him high. He’s tried to make synthetic marijuana in the past. This is not somebody who is this poor little guy trying to make some money,” Assistant South Dakota Attorney General Bethanna Feist said.
South Dakota’s five justices heard the arguments in a Black Hills State University auditorium in front of a crowd of high school students who lawmakers were trying to protect when they made synthetic marijuana illegal last year.
Toben is serving a nine-year prison sentence for selling illegal synthetic drugs to undercover agents on March 6, 2012. The legislature banned the substances on February 26, 2012.
Prosecutors say Toben and Phil Plunkett, the owner of the Chicago Avenue Bar in Goodwin, South Dakota, made more money selling synthetic drugs than they did selling alcohol or food and they were going to do everything they could to keep selling it even after the legislature banned certain chemical substances.
“That’s how they were keeping this bar alive, so they were going to do what they needed to do to skirt the law,” Feist argued.
Toben and Plunkett had switched distributors thinking that the synthetic marijuana they were getting wouldn’t contain the illegal substances. Toben’s attorney says the packaging on the drugs also led them to believe they were still legal.
“The only people who knew this stuff was illegal were the police officers and the chemists and they wouldn’t tell my client,” Toben’s attorney, Steve Miller, argued.
Miller went on to argue to the justices that agents wanted to see if Toben would ‘hang himself’ by selling the drugs to them during an undercover operation days after the legislature passed a ban.
“You’ve got this poor schmuck who is serving nine years for four felonies for conduct that three days earlier was legal and the police knew it and didn’t stop him,” Miller said.
Miller says the jury was not properly instructed when it was told that ‘knowingly’ possessing a drug ‘does not require knowledge of the unlawfulness of the act or omission,’ and that’s why he wants the convictions overturned.
“There’s something wrong with sending someone to prison for knowing possession of a controlled substance without requiring them to know what they possess,” Miller said.
But the Attorney General’s Office argues that the ‘poor schmuck’ who is serving time for the crime right now ‘stuck his head in the sand’ about the legality of the drugs he was selling and is now pleading ignorance to get around the law once again.
“He is only going to the person he wants answers from. He is not seeking an independent outside resource. He’s getting an answer from his drug dealer who is trying to sell synthetic marijuana to make money,” Feist said.
The five justices are considering the arguments and will make a final ruling at a later date.