Posters 'N' Things, Ltd. v. United States

Decision Date23 May 1994
Docket NumberNo. 92-903.,92-903.
Citation511 U.S. 513
PartiesPOSTERS `N' THINGS, LTD., et al. v. UNITED STATES
CourtU.S. Supreme Court

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J.,and Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 527.

Alfredo Parrish argued the cause for petitioners. With him on the brief was Elizabeth Kruidenier.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Robert A. Long, Jr., and Joel M. Gershowitz.

Justice Blackmun, delivered the opinion of the Court.

In this case we must address the scienter requirement of the Mail Order Drug Paraphernalia Control Act, Pub. L. 99— 570, Tit. I, § 1822, 100 Stat. 3207-51, formerly codified, as amended, at 21 U. S. C. § 857, and the question whether the Act is unconstitutionally vague as applied to petitioners.

I

In 1977, petitioner Lana Christine Acty formed petitioner Posters `N' Things, Ltd. (Posters), an Iowa corporation. The corporation operated three businesses, a diet-aid store, an art gallery, and a general merchandise outlet originally called "Forbidden Fruit," but later renamed "World Wide Imports." Law enforcement authorities received complaints that the merchandise outlet was selling drug paraphernalia. Other officers investigating drug cases found drug diluents (chemicals used to "cut" or dilute illegal drugs) and other drug paraphernalia that had been purchased from Forbidden Fruit.

In March 1990, officers executed warrants to search petitioners' business premises and Acty's residence. They seized various items, including pipes, bongs,1 scales, roach clips,2 and drug diluents including mannitol and inositol. The officers also seized cash, business records, and catalogs and advertisements describing products sold by petitioners. The advertisements offered for sale such products as "Coke Kits," "Free Base Kits,"3 and diluents sold under the names "PseudoCaine" and "Procaine."

Indictments on a number of charges relating to the sale of drug paraphernalia eventually were returned against petitioners and George Michael Moore, Acty's husband. A joint trial took place before a jury in the United States District Court for the Southern District of Iowa.

Petitioners were convicted of using an interstate conveyance as part of a scheme to sell drug paraphernalia, in violation of former 21 U. S. C. § 857(a)(1), and of conspiring to commit that offense, in violation of 18 U. S. C. § 371. Petitioner Acty also was convicted of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U. S. C. § 841(a)(1); investing income derived from a drug offense, in violation of 21 U. S. C. § 854; money laundering, in violation of 18 U. S. C. § 1956(a)(1); and engaging in monetary transactions with the proceeds of unlawful activity, in violation of 18 U. S. C. § 1957. Acty was sentenced to imprisonment for 108 months, to be followed by a 5-year term of supervised release, and was fined $150,000. Posters was fined $75,000.

The United States Court of Appeals for the Eighth Circuit affirmed the convictions. 969 F. 2d 652 (1992). Because of an apparent conflict among the Courts of Appeals as to the nature of the scienter requirement of former 21 U. S. C. § 857,4 we granted certiorari. 507 U. S. 971 (1993).

II

Congress enacted the Mail Order Drug Paraphernalia Control Act as part of the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207. As originally enacted, and as applicable in this case, the statute, 21 U. S. C. § 857(a),5 provides:

"It is unlawful for any person—

"(1) to make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia;
"(2) to offer for sale and transportation in interstate or foreign commerce drug paraphernalia; or

"(3) to import or export drug paraphernalia." Section 857(b) provides that anyone convicted under the statute shall be imprisoned for not more than three years and fined not more than $100,000.

A

Section 857(a) does not contain an express scienter requirement. Some courts, however, have located a scienter requirement in the statute's definitional provision, § 857(d), which defines the term "drug paraphernalia" as "any equipment, product, or material of any kind which is primarily intended or designed for use" with illegal drugs.6 Petitioners argue that the term "primarily intended" in this provision establishes a subjective-intent requirement on the part of the defendant. We disagree, and instead adopt the Government's position that § 857(d) establishes objective standards for determining what constitutes drug paraphernalia.

Section 857(d) identifies two categories of drug paraphernalia: items "primarily intended . . . for use" with controlled substances and items "designed for use" with such substances. This Court's decision in Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 500 (1982), governs the "designed for use" prong of § 857(d). In that case, the Court considered an ordinance requiring a license for the sale of items "designed or marketed for use with illegal cannabis or drugs," and concluded that the alternative "designed . . . for use" standard referred to "the design of the manufacturer, not the intent of the retailer or customer." Id., at 501. An item is "designed for use," this Court explained, if it "is principally used with illegal drugs by virtue of its objective features, i. e., features designed by the manufacturer." Ibid.

The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the "designed for use" standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F. 2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F. 2d 1564, 1567 (CA2 1992), cert. denied, 507 U. S. 921 (1993). Accordingly, the "designed for use" element of § 857(d) does not establish a scienter requirement with respect to sellers such as petitioners.

The "primarily intended . . . for use" language of § 857(d) presents a more difficult problem. The language might be understood to refer to the state of mind of the defendant (here, the seller), and thus to require an intent on the part of the defendant that the items at issue be used with drugs. Some Courts of Appeals have adopted this construction, see Mishra, 979 F. 2d, at 307; United States v. Murphy, 977 F. 2d 503, 506 (CA10 1992); Schneiderman, 968 F. 2d, at 1567; United States v. 57,261 Items of Drug Paraphernalia, 869 F. 2d 955, 957 (CA6), cert. denied, 493 U. S. 933 (1989), and this Court in Hoffman Estates interpreted the arguably parallel phrase "marketed for use" as describing "a retailer's intentional display and marketing of merchandise," 455 U. S., at 502, and thus requiring scienter. On the other hand, there is greater ambiguity in the phrase "primarily intended. . . for use" than in the phrase "marketed for use." The term "primarily intended" could refer to the intent of nondefendants, including manufacturers, distributors, retailers, buyers, or users. Several considerations lead us to conclude that "primarily intended . . . for use" refers to a product's likely use rather than to the defendant's state of mind.

First, the structure of the statute supports an objective interpretation of the "primarily intended . . . for use" standard. Section 857(d) states that drug paraphernalia "includes items primarily intended or designed for use in" consuming specified illegal drugs, "such as . . . ," followed by a list of 15 items constituting per se drug paraphernalia. The inclusion of the "primarily intended" term along with the "designed for use" term in the introduction to the list of per se paraphernalia suggests that at least some of the per se items could be "primarily intended" for use with illegal drugs irrespective of a particular defendant's intent—that is, as an objective matter. Moreover, § 857(e) lists eight objective factors that may be considered "in addition to all other logically relevant factors" in "determining whether an item constitutes drug paraphernalia."7 These factors generally focus on the actual use of the item in the community. Congress did not include among the listed factors a defendant's statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the Drug Enforcement Administration's Model Drug Paraphernalia Act, on which § 857 was based,8 includes among the relevant factors "statements by an owner . . . concerning the object's use" and "direct or circumstantial evidence of the intent of an owner . . . to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act."9

An objective construction of the definitional provision also finds support in § 857(f), which establishes an exemption for items "traditionally intended for use with tobacco products." 10 An item's "traditional" use is not based on the subjective intent of a particular defendant. In 1988, Congress added the word "traditionally" in place of "primarily" in the § 857(f) exemption in order to "clarify" the meaning of the exemption. Pub. L. 100-690, Tit. VI, § 6485, 102 Stat. 4384. Congress' characterization of the amendment as merely "clarifying" the law suggests that the original phrase—"primarily intended"—was...

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