The Smoke Shop LLC v. United States of America et al
Filing
24
ORDER signed by Judge Rudolph T. Randa on 5/21/2013 DENYING 1 Petition for Return of Seized Property. Petitioner should amend its pleadings within 60 days of the date of this Order. (cc: all counsel)(cb)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE SMOKE SHOP, LLC
Petitioner,
-vsCase No. 12-C-1186
UNITED STATES OF AMERICA and the
UNITED STATES DRUG ENFORCEMENT
AGENCY,
Respondent.
DECISION AND ORDER
On September 13, 2012, the United States Drug Enforcement Agency seized over
$100,000.00 worth of incense products from The Smoke Shop in Delavan, Wisconsin,
claiming that they needed to test the products for the presence of controlled substances.
The owner of The Smoke Shop, David S. Yarmo, initially consented to the seizure under
the assumption that the products would eventually be returned. Several days later, law
enforcement informed Mr. Yarmo that the government would not willingly return the
items that were seized. Accordingly, The Smoke Shop brought the instant action, a
petition for the return of property under Federal Rule of Criminal Procedure 41(g).
The products seized from The Smoke Shop, bulk quantities of brands such as
“Mary Jane Irie,” “Witch Doctor,” and “Mary Jane Primo,” are smokable synthetic
cannabinoids (“SSCs”) that contain substances known as UR-144 and XLR-11. The
government asserts that UR-144 and XLR-11 are analogues of the illegal substance JWH018 and are therefore illegal under the Controlled Substances Analogue Act. Despite this
assertion, the government has yet to file any criminal charges in connection with the
seizure of Mr. Yarmo’s property.
On February 28, 2013, the Court held a hearing where various experts and DEA
employees testified regarding whether UR-144 and XLR-11 are controlled substance
analogues. After the hearing, the parties deposed an additional witness and submitted
briefs on the issue.
In the midst of briefing, the DEA issued a “Notice of Intent” to schedule UR-144,
XLR-11, and a substance known as AKB-48 (not at issue here) pursuant to the temporary
scheduling provisions of the Controlled Substances Act. 21 U.S.C. § 811(h). On May 16,
2013 the DEA issued a final order to temporarily schedule these substances. 21 C.F.R.
Part 1308, Pages 28735-28739. Temporary scheduling lasts for two years, although the
time period can be extended for an additional year if the Attorney General decides to
pursue permanent scheduling. § 811(h)(2). As a result, the items seized from The Smoke
Shop are now illegal and cannot be returned.
The Smoke Shop anticipated this
development and intends to amend its pleadings to state a federal tort claim for
conversion.
If the DEA did not schedule these substances, the Court was going to grant The
Smoke Shop’s petition. As the record in this case demonstrates, the overwhelming weight
of opinion in the scientific community is that the chemical structures of UR-144 and XLR11 are not substantially similar to the chemical structure of JWH-018, and but for the
DEA’s scheduling of these substances, the Court would have ordered the property
-2-
returned.
21 U.S.C. § 802(32)(A)(i) (a “controlled substance analogue” means a
substance “the chemical structure of which is substantially similar to the chemical
structure of a controlled substance in schedule I or II”). The decision to schedule UR-144
and XLR-11 suggests that they were not analogues in the first instance, and now, Mr.
Yarmo must recoup his losses through further litigation against the government. Under
this scenario, it seems unfair for a federal agency to seize the property of a small business
owner and then keep it until it is declared illegal.
The Smoke Shop’s petition for the return of property is DENIED. The Smoke
Shop should amend its pleadings within sixty (60) days of the date of this Order.
Dated at Milwaukee, Wisconsin, this 21st day of May, 2013.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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