U.S. v. Hong-Liang Lin
| Decision Date | 01 May 1992 |
| Docket Number | No. 250,HONG-LIANG,D,250 |
| Citation | 962 F.2d 251 |
| Parties | UNITED STATES of America, Appellee, v.LIN, Defendant-Appellant. ocket 91-1297. |
| Court | U.S. Court of Appeals — Second Circuit |
David Samel, White Plains, N.Y., for defendant-appellant.
Patricia E. Notopoulos, Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., Emily Berger, Asst. U.S. Atty., of counsel), for appellee.
Before: KEARSE, PRATT, and McLAUGHLIN, Circuit Judges.
Drug dealers are not the only "entrepreneurs" who profit from the sale of illegal narcotics in this country. In addition to the drug traders, a burgeoning sub-industry of merchants peddle drug paraphernalia that serves to facilitate and promote the use of illegal drugs. As part of its overall legislative assault on drug use, congress enacted the Mail Order Drug Paraphernalia Control Act, Pub.L. No. 99-570, §§ 1821-23, 100 Stat. 3207-51 (1986) (codified at 21 U.S.C. § 857 (1988)) ["Paraphernalia Act"], repealed and reenacted by Crime Control Act of 1990, Pub.L. No. 101-647, § 2401, 104 Stat. 4789, 4858-59 (Nov. 29, 1990) (codified at 21 U.S.C. § 863), which targets this particular appendage to the activities of the illegal drug trade. Today, we must consider whether congress intended the Paraphernalia Act to extend so far as to cover the manufacture and sale of containers and other packages used to hold illegal drugs.
Significantly for this appeal, and as will be discussed later in this opinion, congress repealed the Paraphernalia Act in November 1990. It then incorporated those sections that had previously been designated as the Paraphernalia Act into the Controlled Substances Act. See Crime Control Act of 1990 § 2401(b). Because Hong-Liang Lin engaged in the conduct for which he was indicted before this congressional action, we need only decide whether the small plastic containers, or "crack vials", manufactured by him were prohibited by the pre-November 1990 version of the act. We conclude that in August 1990, when the government indicted him, the Paraphernalia Act did not criminalize the manufacture or sale of the plastic vials Lin produced, and because the judiciary cannot make criminal what congress failed to proscribe, we reverse and remand with a direction to dismiss the indictment.
Lin appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Reena Raggi, Judge, after a jury trial, in which he was convicted of violating the Paraphernalia Act. See 21 U.S.C. § 857(a)(1) (1988). On appeal Lin claims, primarily, that crack vials and other plastic containers were not within the scope of the Paraphernalia Act's then prohibitions. Lin also argues that the act is unconstitutionally vague, but, because we reverse Lin's conviction on nonconstitutional grounds, we need not reach the constitutional issue. See United States v. Leon, 766 F.2d 77, 78 (2d Cir.1985) ().
We note that, shortly after oral argument in this case, the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, found the Mail Order Drug Paraphernalia Control Act to be void for vagueness in a ruling currently on appeal to this court. See United States v. Schneiderman, 777 F.Supp. 258 (S.D.N.Y.1991), appeal docketed, No. 91-1695 (2d Cir. Dec. 5, 1991).
An immigrant from China, Lin arrived in the United States in 1986. He decided to go into plastics. From 1988 until his arrest, Lin was affiliated with three different companies that specialized in the manufacture of plastic objects. In 1990, he joined his third plastics company, the H.W.D.L.C. Corporation.
At H.W.D.L.C., Lin obtained manufacturing equipment that included, inter alia, a plastic injection molding machine. This device produces a wide range of plastic objects by melting solid plastic into a malleable liquid that is injected into a metal mold and then resolidified to produce the desired object. Lin's use of the interstate mails to purchase this and other machines from companies outside of New York State, as well as his successful efforts to secure a lease through the mails for a building to house H.W.D.L.C., formed the basis for this indictment and conviction for a scheme to sell drug paraphernalia.
The salesman who instructed Lin in the use of the manufacturing equipment testified that he thought Lin used the machines to produce "medical products". The government, however, believed otherwise. Suspecting that H.W.D.L.C. produced vials designed to hold the cocaine derivative known as crack, several United States Customs Service agents, armed with search warrants, raided the premises at 203D Fehr Way and 216B Fehr Way in Brentwood, Long Island in July 1990. At these locations a government agent testified at trial, they found, among other things, several boxes, each filled with thousands of small plastic vials.
The government arrested Lin and obtained a one-count indictment on August 8, 1990, charging that he had violated the Paraphernalia Act, which makes it 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.
21 U.S.C. § 857(a) (1988). On December 6, 1990, the government filed a superseding indictment charging that Lin "knowingly and willfully [made] use of an interstate conveyance as part of a scheme to sell drug paraphernalia." See 21 U.S.C. § 857(a)(1) (1988). Although no bill of particulars was requested and no pretrial motions were made, the government at trial particularized its case by arguing that in obtaining the plastic molding machines and the factory lease, and in using them to assist him in the production of crack vials, Lin had used the interstate mails to operate a business that was part of a scheme to sell drug paraphernalia.
After a four day trial, the jury found Lin guilty. Judge Raggi sentenced him to 27 months' imprisonment, followed by 12 months' supervised release, and a special assessment of $50. Since the government is entitled to every favorable inference in our review of the evidence, see United States v. Gaviria, 805 F.2d 1108, 1116 (2d Cir.1986), cert. denied, 481 U.S. 1031, 107 S.Ct. 1960, 95 L.Ed.2d 531 (1987), for purposes of this appeal we treat the plastic vials manufactured by Lin as "crack vials".
On appeal, Lin principally argues that the act simply did not proscribe the production of his crack vials. For the reasons that follow, we conclude that congress did not intend to include crack vials, or other forms of packaging, in the version of the act under which Lin was indicted and convicted. We therefore reverse the judgment of conviction and direct the court below to dismiss the indictment.
In assessing the reach of a criminal statute like the one we are called upon to construe today, we "must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids." Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985). In embarking upon this interpretive venture, we note that the Supreme Court has preferred a strict construction of penal laws in deference to congress's sole authority to define federal crimes and to enact statutes prohibiting such conduct. Id.
We first consider the language of the act itself. Hughey v. United States, 495 U.S. 411, 415, 110 S.Ct. 1979, 1982, 109 L.Ed.2d 408 (1990); see also United States v. Yip, 930 F.2d 142, 147 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 197, 116 L.Ed.2d 157 (1991).
To be sure, defining drug paraphernalia is not easy. There are many everyday products, such as pipes, razor blades, mirrors, and spoons, that, in the hands of a drug user, can be used to facilitate the processing and consumption of controlled substances. Developing a list of devices to be classified as drug paraphernalia, without intruding into the regulation of innocent products and activities, is a task that severely challenges any lawmaker. See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ().
Addressing this problem in the Paraphernalia Act, congress combined an expansive general definition of paraphernalia with a list of illustrative products that are prohibited. The clause entitled " 'Drug paraphernalia' defined" described drug paraphernalia as
any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the Controlled Substances Act * * *. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body * * *.
21 U.S.C. § 857(d) (1988).
However, this broad definition does not readily reach Lin's crack vials. The common meanings of the gerunds used in this clause--"manufacturing", "compounding", "converting", "concealing", "producing", "processing", "preparing", "injecting", "ingesting", "inhaling", and "introducing"--do not suggest items designed to contain or package illegal drugs. Even the inclusion of products intended to "conceal[ ]" illegal drugs is not relevant where, as here, the clear plastic vials manufactured by Lin...
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