U.S. v. 57,261 Items of Drug Paraphernalia

• Decision Date: 10 May 1989
• Docket Number: 87-6018,Nos. 88-5320,s. 88-5320
• Citation: 869 F.2d 955
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 57,261 ITEMS OF DRUG PARAPHERNALIA, etc., (88-5320), Defendant, Contempo Products, Inc., by and through its president Richard K. Rowland (88- 5320), Claimant-Appellant. CONTEMPO PRODUCTS, INC., Plaintiff-Appellee, v. Ralph WHITESIDE and Bill Crane (87-6018), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 955

869 F.2d 955

UNITED STATES of America, Plaintiff-Appellee, v. 57,261 ITEMS OF DRUG PARAPHERNALIA, etc., (88-5320), Defendant, Contempo Products, Inc., by and through its president

Richard K. Rowland (88- 5320), Claimant-Appellant.

CONTEMPO PRODUCTS, INC., Plaintiff-Appellee, v. Ralph WHITESIDE and Bill Crane (87-6018), Defendants-Appellants.

Nos. 88-5320, 87-6018.

United States Court of Appeals Sixth Circuit.

Argued Oct. 18, 1988.

Decided March 14, 1989.

Rehearing and Rehearing En Banc Denied May 10, 1989.

Joe B. Brown, U.S. Atty., Nashville, Tenn., Harold B. McDonough, Jr. (argued), Nashville, Tenn., for defendants-appellants.

Larry D. Woods (argued), Woods and Woods, and Robert Thomas Vaughn (argued), Nashville, Tenn., for plaintiffs-appellees.

Before MERRITT, MARTIN and MILBURN, Circuit Judges.

MERRITT, Circuit Judge.

The two "drug paraphernalia" cases before us on appeal arise from government seizure of shipments of a large quantity of ceramic pipes, water pipes and cigarette holders brought into the United States from Japan by Contempo Products, Inc. Customs agents, working with the DEA, seized these items in Nashville prior to delivery to Contempo in early 1987. They made the seizure under the remedial provisions for civil forfeiture found in the customs statute, 19 U.S.C. Sec. 1595a(c) ("merchandise ... introduced in United States contrary to law ... may be seized and forfeited"), in combination with Sec. 857(a) of the 1986 statute making it "unlawful for any person ... to import or export drug paraphernalia." 21 U.S.C. Sec. 857(a). ¹ The government did not use the remedy of criminal forfeiture provided in Sec. 857(c) of the drug paraphernalia statute.

I.

In No. 88-5320, a civil forfeiture action under the customs statute, Contempo's contentions are as follows:

1. Section 857 is unconstitutionally vague, or overbroad, because it can be extended, and in this case is being extended, to tobacco pipes used for innocent smoking of regular tobacco.

2. Even if constitutional, Sec. 857 was misapplied on the facts by District Judge Higgins because the ceramic products shipped into the country were not "primarily intended or designed for use in ... introducing into the human body a controlled substance," as defined by Sec. 857(d).

3. Even if Sec. 857 is constitutional, and even if the shipments in question constitute "drug paraphernalia" subject to forfeiture, Sec. 857(c) of the 1986 statute, a specific criminal forfeiture section, provides the government's only forfeiture remedy and by implication prevents the use of the civil in rem forfeiture remedy for imported articles found in Sec. 1595a(c) of the customs statute.

We find none of these three arguments persuasive.

A. Constitutionality

The Supreme Court has upheld against the same kind of constitutional challenge a similar local ordinance outlawing drug paraphernalia. In Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Court held:

Flipside also argues that the ordinance is "overbroad" because it could extend to "innocent" and "lawful" uses of items as well as uses with illegal drugs. Brief for Appellee 10, 33-35. This argument seems to confuse vagueness and overbreadth doctrines. If Flipside is objecting that it cannot determine whether the ordinance regulates items with some lawful uses, then it is complaining of vagueness. We find that claim unpersuasive in this preenforcement facial challenge. See infra, at 497-504 . If Flipside is objecting that the ordinance would inhibit innocent uses of items found to be covered by the ordinance The hostility of some lower courts to drug paraphernalia laws--and particularly to those regulating the sale of items that have many innocent uses, see, e.g., [Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates ] 639 F.2d 373, 381-383 ( [7th Cir.] 1981); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928 (CA6 1980), vacated and remanded, 451 U.S. 1013 [101 S.Ct. 2998, 69 L.Ed.2d 384] (1981)--may reflect a belief that these measures are ineffective in stemming illegal drug use. This perceived defect, however, is not a defect of clarity. In the unlikely event that a state court construed this ordinance as prohibiting the sale of all pipes, of whatever description, then a seller of corncob pipes could not complain that the law is unduly vague. He could, of course, object that the law was not intended to cover such items.

it is complaining of denial of substantive due process. The latter claim obviously lacks merit. A retailer's right to sell smoking accessories, and a purchaser's right to buy and use them, are entitled only to minimal due process protection. Here, the village presented evidence of illegal drug use in the community. App. 37. Regulation of items that have some lawful as well as unlawful uses is not an irrational means of discouraging drug use. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25, [98 S.Ct. 2207, 2213-14, 57 L.Ed.2d 91] (1978).

455 U.S. at 497 n. 9, 102 S.Ct. at 1192 n. 9. The case of Record Revolution No. 6, Inc. v. City of Parma, Ohio, 638 F.2d 916 (6th Cir.1980) (invalidating on vagueness grounds a similar local ordinance), relied upon heavily by Contempo and amici, the American Pipe League and the National Association of Tobacco Distributors, is no longer good law after Hoffman. The Supreme Court in the above quotation specifically rejected our decision in Record Revolution. The Court has now vacated that decision also. See 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982), on remand, 709 F.2d 534 (6th Cir.1983).

The Hoffman case is squarely on point. Like the ordinance at issue in Hoffman, the statute at issue here is not invalid on its face. It is clear that the federal statute may not be applied under its terms to items intended for innocent use. The statute requires intent. It does not leave open the question of whether the statute criminalizes innocent use, as Contempo and amici seem to argue. The explicit intent requirement saves the statute from this claim of vagueness.

Under the terms of Sec. 857(d), the 1986 statute may only be applied to items "primarily intended or designed" for drug use. The statute requires an intent to distribute the items for drug use. The person to whom the statute is being applied, here the importer, must have knowledge that there is a strong probability that the items will be used in this way. The statute thus creates a scienter requirement. If the items are not intended for drug use, the statute does not create criminal liability or subject the goods to forfeiture.

Our reading the statute to impose a knowledge requirement is the same reading as that given to the model drug paraphernalia act drafted for enactment by state and local governments, on which the federal act was based. See, e.g., Levas and Levas v. Village of Antioch, Ill., 684 F.2d 446, 450 (7th Cir.1982) (guilty knowledge requirement contained in model act); Tobacco Accessories and Novelty Craftsmen Merchants Ass'n of Louisiana v. Treen, 681 F.2d 378, 383-85 (5th Cir.1982) (same). See also Judge Raggi's recent opinion upholding Sec. 857 against a similar vagueness challenge, United States v. Main Street Distributing, Inc., 700 F.Supp. 655 (E.D.N.Y.1988). Like automobiles, boats and airplanes subject to forfeiture when used in the drug trade, drug paraphernalia become subject to forfeiture when the knowledge or intent element is present.

Contempo and amici seem to rely on the following argument: the act of possessing goods capable of both culpable and innocent uses may not be made unlawful, and subject the goods to forfeiture, until It is important to insist, however, that the requisite element of intent must be clearly demonstrated by the proof in the case when a statute makes the lawfulness of a preliminary step or possessory act turn on a particular state of mind. We turn, therefore, to Judge Higgins' findings of fact.

the goods are actually used unlawfully. Since it is conceivable that the goods may in the end be used lawfully by some, the law may not make the lawfulness of possession turn on the possessor's knowledge of their likely future use. This argument does not reflect the current state of the law. Many acts otherwise lawful are made unlawful on the basis of the actor's state of mind regarding future conduct--for example, possession of a firearm with intent to facilitate commission of unlawful acts, 18 U.S.C. Sec. 231 (transporting firearm "having reason to know" it will be used in civil disorder); use of the mails with intent to defraud, 18 U.S.C. Sec. 1341; and travel in interstate commerce "with intent to" do certain illegal acts, 18 U.S.C. Sec. 1952. The Constitution permits the law to criminalize otherwise lawful steps which are preliminary to the commission of a crime, using intent as the distinguishing element, rather than wait for the completed crime, just as the common law criminalized attempts and certain otherwise innocent possessory acts. See Clark & Marshall, Crimes 202-17, 455 (1958); Fletcher, Rethinking Criminal Law 197-205 (1978) (discussing possession offenses that turn on the actor's state of mind).

B. Application of the Statute to the Facts

In a comprehensive opinion concisely reciting the evidence witness by witness, Judge Higgins found that "in this country these items are intended for use with controlled substances." United States v. 57,261 Items of Drug Paraphernalia, 705 F.Supp. 1256, 1264 (M.D.Tenn.1988).

The trial was a battle of experts. Ten witnesses testified. Judge Higgins based his findings on the testimony of four narcotics enforcement officials and a civilian expert in tobacco products. They testified that the ceramic pipes, cigarette holders and water pipes are "used frequently and exclusively for the purpose of inhaling controlled substances, primarily marijuana." Id. at 1262. Contempo does not appear to...