Smoke Shop, LLC v. U.S. & the U.S. Drug Enforcement Admin., Case No. 12–C–1186.
| Decision Date | 21 May 2013 |
| Docket Number | Case No. 12–C–1186. |
| Parties | THE SMOKE SHOP, LLC, Petitioner, v. UNITED STATES of America and the United States Drug Enforcement Administration, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
OPINION TEXT STARTS HERE
Bridget A. Zerner, John J.E. Markham, II, Markham & Read, Boston, MA, for Petitioner.
Erica N. O'Neil, Laura Schulteis Kwaterski, Michael J. Chmelar, United States Department of Justice, Milwaukee, WI, for Respondents.
DECISION AND ORDER
On September 13, 2012, the United States Drug Enforcement Administration 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 JWH–018 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 () 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. §...
To continue reading
Request your trial
-
Smoke Shop, LLC v. United States
...instance, and now, Mr. Yarmo must recoup his losses through further litigation against the government.” The Smoke Shop, LLC v. United States, 949 F.Supp.2d 877, 879 (E.D.Wis.2013). Accordingly, the court suggested that Smoke Shop amend its pleadings to effect this “further litigation.” Smok......
-
United States v. Long, CR 13–30028–RAL.
...support of his argument that XLR–11 is not substantially similar as a matter of law to JWH–018 is The Smoke Shop, LLC v. United States, 949 F.Supp.2d 877 (E.D.Wis.2013), in which a district court stated “the overwhelming weight of opinion in the scientific community is that the chemical str......
-
United States v. Long, CR 13–30028–RAL.
...cites for support of his argument that XLR–11 is not substantially similar as a matter of law to JWH–018 is The Smoke Shop, LLC v. United States, 949 F.Supp.2d 877 (E.D.Wis.2013), in which a district court stated “the overwhelming weight of opinion in the scientific community is that the ch......
-
United States v. Bays, CRIMINAL ACTION NO. 3:13-CR-0357-B
...between twochemicals from being substantially similar. Def.'s Mot. to Excl. Van Linn 6-7; see also The Smoke Shop, LLC v. United States, 949 F. Supp. 2d 877, 879 (E.D. Wisc. 2013) "[T]he overwhelming weight of opinion in the scientific community is that the chemical structure of UR-144 and ......