DEA: If you can’t win by the science, win by changing the rules…

If you are a Star Trek fan, then you will remember Kobayashi Maru scenario.


Wikipedia has a good description for you non-Star Trek fans.

In Star Trek II: The Wrath of Khan, the simulation takes place on a replica of a starship bridge, with the test-taker as captain and other Starfleet members, officers or other cadets, in other key positions. In the scenario of the 2280s, the cadet receives a distress signal stating that the Kobayashi Maru has struck a gravitic mine in the Klingon Neutral Zone and is rapidly losing power, hull integrity and life support. There are no other vessels nearby. The cadet is faced with a decision:

  • Attempt to rescue the Kobayashi Maru’s crew and passengers, which involves violating the Neutral Zone and potentially provoking the Klingons into hostile action or an all-out war; or
  • Abandon the Kobayashi Maru, potentially preventing war but leaving the crew and passengers to die.

If the cadet chooses to save the Kobayashi Maru, the scenario progresses quickly. The bridge officers notify the cadet that they are in violation of the treaty. As the starship enters the Neutral Zone, the communications officer loses contact with the crippled vessel. Klingon starships then appear on an intercept course. Attempts to contact them are met with radio silence; indeed, their only response is to open fire with devastating results. There is no way to win the resulting battle, especially since the computer is allowed to “cheat” to guarantee defeat; the simulation ends with the understanding that the cadet’s ship has been lost with all hands. The objective of the test is not for the cadet to outfight the opponent but rather to test the cadet’s reaction to a no-win situation.

As all good Star Trek fans know, cadet James T. Kirk took the test 3 times, but he doesn’t believe in no-win scenarios, so he figured a way to cheat and win this no-win scenario.

The Smoke Shop v. United States and the Drug Enforcement Agency (Western District of Wisconsin) docketed at  12-C-1186 is how our federal government handles a loss on the science in forensic science.

It seems as if an American business called The Smoke Shop had legally bought and imported compounds known as UR-144 and XLR-11. It was over $100,000.00 in product. That’s big money in anyone’s definition. The owners instituted an action to get their lawful property returned. The government would not give it back claiming that the seized property was an anlogue of the banned substance JWH-018. (For more on analogues, please see our 4-part series on Federal Analog Prosecution and State Analog Prosecution and Defense) Scientists were retained on both sides. The science was vetted heavily with testimony from the government, and primarily the DEA and other independent experts. At the end of the hearing, the Court clearly found that UR-144 and XLR-11 were not analgoues of JWH-018. So, probably seeing the imminent defeat on the science, the government changed the rules so that they could win by naming these substances under the temporary register, and hence making them contraband per se.

Here is the history of the action by the government:

  • The products were seized on September 13, 2012.
  • The Deputy Administrator has  transmitted notice of his intent to place UR-144, XLR11, and AKB48 in  Schedule I on a temporary basis to the Assistant Secretary by letter  dated February 14, 2013.
  • The hearing where the science was presented on February 28, 2013.
  • The Assistant Secretary responded to this  notice by letter dated March 14, 2013 (received by DEA on March 21,  2013), and advised that based on review by the Food and Drug  Administration (FDA), there are currently no investigational new drug  applications or approved new drug applications for UR-144, XLR11, or  AKB48.
  • The Assistant Secretary also stated that HHS has no objection to  the temporary placement of UR-144, XLR11 or AKB48 into Schedule I of  the CSA.
  • DEA has taken into consideration the Assistant Secretary’s  comments. As UR-144, XLR11, and AKB48 are not currently listed in any  schedule under the CSA, and as no exemptions or approvals are in effect  for UR-144, XLR11, and AKB48 under Section 505 of the FD&C Act (21  U.S.C. 355), DEA believes that the conditions of 21 U.S.C. 811(h)(1)  have been satisfied. Any additional comments submitted by the Assistant  Secretary in response to this notification shall also be taken into  consideration before a final order is published.
  • The CFR that was published that made the substances illegal to possess was published on April 11, 2013.
  • This opinion of the Judge was issued on May 21, 2013.

Maybe someone at the DEA is a Star Trek fan.

You can read the full opinion of the federal judge here:

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