BISMARCK, N.D. - The second co-owner of a Mandan smoke shop has been sentenced to two years in prison for conspiring to sell synthetic marijuana.
South Central District Judge David Reich sentenced Ryan Zueger, 35, to five years in prison with all but two years suspended and five years of supervised probation. One condition of his probation prohibits him from using or possessing any synthetic drug or narcotic, regardless of whether it is a controlled substance under North Dakota law, unless allowed by a probation officer.
The sentence will be stayed until the case can be appealed to the North Dakota Supreme Court, which means Zueger will be on supervised probation but will not serve the prison sentence until an appeal of a suppression motion in the case can be heard by the high court.
A jury convicted Zueger and William Nickel, another co-owner of Big Willies ATP, of Class B felony conspiracy to deliver synthetic cannabinoids in August. Reich dismissed the same charge against Casandra Nickel during the trial.
Reich sentenced William Nickel in October to five years in prison with four years suspended and three years of supervised probation.
On Tuesday, Assistant Attorney General Julie Lawyer said Zueger should get a longer sentence than Nickel because he was the “brains” of the operation. She said he was the one who did the books, the ordering and the research on products to sell in the store, while Nickel interacted with customers.
Nickel and Zueger were charged with possessing synthetic cannabinoids in 2010, shortly after the North Dakota Board of Pharmacy enacted an emergency rule to ban certain synthetic substances. The charges were dismissed by judges who found the public had not been adequately informed about the law that made the substances illegal.
They have continued to sell substances at their Mandan store that Zueger’s defense attorney, Justin Vinje, said “may be on the edge” but are legal under North Dakota law.
In the current case, Casandra Nickel dropped off a package at a Mandan shipping store to have it shipped overnight to West Hollywood, Calif., for $143.55. The owner of the store was suspicious of the contents, and Casandra Nickel initially would not reveal the contents, court documents said. Later, she said the package contained property to be returned.
Law gets involved
The owner of the store told police on Oct. 4 that he has a policy of opening suspicious packages. He opened the box in front of law enforcement officers. They found Ziploc bags containing plastic tubes labeled “Green Cross Private Reserve” with plant material inside. The substance tested positive at the state crime laboratory for JWH-122, one of the many substances made illegal by the North Dakota Board of Pharmacy’s emergency rule in 2010.
Officers spoke to William Nickel and Zueger on Oct. 6. They said a customer had requested a product called Green Cross Private Reserve, and they found a supplier of it. Zueger said he and Nickel sent the company a copy of North Dakota laws, and the company said the substance was legal in North Dakota.
Zueger estimated spending $40,000 to $50,000 on the product through Sept. 21, 2011. Eventually, the company informed Zueger and Nickel that the substance was not legal in North Dakota, and they agreed to send it back for credit.
The package Casandra Nickel was sending to West Hollywood was the store’s supply of Green Cross Private Reserve.
Lawyer said Zueger and Nickel did nothing to warn their customers that the product was not legal but were motivated by “greed.” Vinje said the men were in a rush to get the product back to the supplier after learning it was illegal.
Defense attorneys had tried to suppress evidence from the search of the package, saying it was an illegal search and seizure because the shipping company acted as law enforcement officers in opening the package. Reich denied the suppression motion prior to trial.
The North Dakota Board of Pharmacy enacted an emergency ban on certain substances, including some common synthetic cannabinoids and mephedone, often referred to as “bath salts.” However, many such substances remain legal because of slight differences in their chemical makeup.
North Dakota Attorney General Wayne Stenehjem has announced that his office is drafting legislation to make substances illegal if they have a “core chemical” that’s common to different types of synthetic marijuana or hallucinogens.
The bills will be introduced when the Legislature begins in January. Another strategy Stenehjem has said he is considering is introducing legislation that would outlaw the sale of any substance if the seller knows his or her customer is going to use it to get high.