U.S. v. Posters N Things Ltd, 91-2426

• Decision Date: 17 August 1992
• Docket Number: No. 91-2426,91-2429 and 91-2432,91-2426
• Citation: 969 F.2d 652
• Parties: UNITED STATES of America, Appellee, v. POSTERS 'N' THINGS LTD, an Iowa Corporation d/b/a World Wide Imports, d/b/a Forbidden Fruit, d/b/a Acty-Moore Gallery, Appellant. UNITED STATES of America, Appellee, v. Lana Christine ACTY, a/k/a Chris Acty, Appellant. UNITED STATES of America, Appellant, v. Lana Christine ACTY, a/k/a Chris Acty, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 652

969 F.2d 652

61 USLW 2079

UNITED STATES of America, Appellee, v. POSTERS 'N' THINGS LTD, an Iowa Corporation d/b/a World Wide

Imports, d/b/a Forbidden Fruit, d/b/a Acty-Moore

Gallery, Appellant.

UNITED STATES of America, Appellee, v. Lana Christine ACTY, a/k/a Chris Acty, Appellant.

UNITED STATES of America, Appellant, v. Lana Christine ACTY, a/k/a Chris Acty, Appellee.

No. 91-2426, 91-2429 and 91-2432.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 9, 1991.

Decided July 13, 1992.

Rehearing and Rehearing En Banc Denied Aug. 17, 1992.

John R. Sandre, Des Moines, Iowa, for Posters 'N' Things.

Robert T. Vaughn, Nashville, Tenn., for Acty.

Kevin E. Vanderschel and Lester A. Paff, Des Moines, Iowa, for appellee.

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BEAM, Circuit Judge.

Posters N' Things, Ltd. ("Posters") and Lana Christine Acty were convicted of a variety of offenses related to the sale of drug paraphernalia. Posters and Acty appeal from their convictions, claiming that 21 U.S.C. § 857, prohibiting the sale of drug paraphernalia in foreign or interstate commerce, is unconstitutional. Acty also appeals on the ground that there is insufficient evidence to support her convictions for laundering monetary instruments and for aiding and abetting the manufacture and distribution of cocaine. The government cross-appeals claiming, among other points, that the district court, on the aiding and abetting count, erred by failing to sentence Acty to the mandatory minimum years of imprisonment required by 21 U.S.C. § 841(b). The government also claims that the district court erred by departing below the guideline-specified sentencing range. We affirm the district court in all respects.

I. DISCUSSION

Posters, which was formed by Acty in 1977, operated three businesses: a diet aid store, an art gallery, and "Forbidden Fruit" (renamed "World Wide Imports"), a merchandise store. Posters and Acty came under investigation after law enforcement officers received complaints that the merchandise store was selling drug paraphernalia and after officers working on other drug-related cases discovered drug paraphernalia and drug diluents purchased from Forbidden Fruit.

Following an investigation, law enforcement officers executed search warrants in March 1990 for the merchandise store, the art gallery, and the residence of Acty and her husband, George Michael Moore. As a result of these searches, officers confiscated, among other items, various business and financial records, drug paraphernalia (e.g., pipes, bongs, scales, roach clips, cocaine mirrors), cash, chemicals used to dilute cocaine (e.g., Mannitol, Inositol, and Lidocaine), and catalogs and other advertisements from Forbidden Fruit's suppliers and from Forbidden Fruit itself. Posters and Acty (and Moore) were eventually indicted on a number of charges and a joint jury trial was held in December 1990. ¹

Following the trial, the jury found Acty and Posters guilty of use of interstate conveyance to transport drug paraphernalia, in violation of 21 U.S.C. § 857(a)(1) (two counts for each defendant), and conspiring to use an interstate conveyance to sell drug paraphernalia, in violation of 18 U.S.C. § 371 and 21 U.S.C. § 857(a)(1) (two counts for Acty; one count for Posters). Acty alone was also found guilty of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; investment of income derived from a violation of 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 854; laundering of monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(A); conspiring to launder monetary instruments, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1956(a); and engaging in monetary transactions with proceeds of unlawful activity, in violation of 18 U.S.C. § 1957 and 18 U.S.C. § 2 (two counts).

At sentencing, the district court fined Posters $75,000 and sentenced Acty to 108 months in prison on each count of conviction, to be served concurrently. In sentencing Acty, the district court departed from the guidelines by not grouping the offense level for the aiding and abetting count with the other counts, on the basis that Acty's case was "essentially a drug paraphernalia and money laundering case, not a case of aiding and abetting." Acty's Judgment at 5.

Posters, Acty, and the government appeal from the judgments of the district court. Posters and Acty claim that the drug paraphernalia statute, 21 U.S.C. § 857(a)(1), is unconstitutional for vagueness. Acty also claims that her convictions for aiding and abetting the distribution of cocaine and for laundering monetary instruments are not supported by sufficient evidence. The government claims that the district court erred by not sentencing Acty to the mandatory minimum sentence of ten years' imprisonment required by 21 U.S.C. § 841(b) for the aiding and abetting count, and by departing from the guideline-specified sentence on the aiding and abetting count.

II. DISCUSSION

A. Constitutionality of 21 U.S.C. § 857.

Section 857 of Title 21 of the United States Code was enacted by Congress as part of the Anti-Drug Abuse Act of 1986. Section 857--which was repealed in 1990 and recodified with a slightly broader scope at 21 U.S.C. § 863--made it unlawful to sell drug paraphernalia in interstate or foreign commerce. Section 857 provided, in part:

(a) Unlawfulness

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.

. . . . .

(d) Definition of "drug paraphernalia"

The term "drug paraphernalia" means 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 in violation of the Controlled Substances Act (title II of Public Law 91-513). 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, such as--

(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(2) water pipes;

(3) carburetion tubes and devices;

(4) smoking and carburetion masks;

(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;

(7) chamber pipes;

(8) carburetor pipes;

(9) electric pipes;

(10) air-driven pipes;

(11) chillums;

(12) bongs;

(13) ice pipes or chillers;

(14) wired cigarette papers; or

(15) cocaine freebase kits.

(e) Matters considered in determination of what constitutes drug paraphernalia:

In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:

(1) instructions, oral or written, provided with the item concerning its use;

(2) descriptive materials accompanying the item which explain or depict its use;

(3) national and local advertising concerning its use;

(4) the manner in which the item is displayed for sale;

(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;

(7) the existence and scope of legitimate uses of the item in the community; and

(8) expert testimony concerning its use.

(f) Exemptions

This section shall not apply to--

(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or

(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

21 U.S.C. § 857.

1. Scienter

We begin our analysis of Posters and Acty's constitutional challenge to section 857 by considering their claim that section 857 violates the Due Process Clause of the Fifth Amendment because it does not contain an express, subjective scienter or knowledge requirement. According to Posters and Acty, the language of section 857 and its legislative history demonstrate that section 857 is a strict liability criminal statute, and, therefore, it is unconstitutional because strict liability criminal statutes are only permitted for regulatory offenses or for offenses with small or monetary penalties. We disagree that section 857 violates due process and we hold that section 857 contains an objective scienter requirement.

There are a number of federal court opinions on section 857 and its scienter requirement. These cases can be summarized in three categories. First, there are a group of decisions that hold a subjective-type scienter must be read into section 857. In other words, the government must prove at trial that a defendant (such as Acty) intended that the items she offered for sale would be used with controlled substances or that she herself designed the items for use with controlled substances. See, e.g. United States v. Main Street Distributing, 700 F.Supp. 655, 666 (E.D.N.Y.1988) (The government is "required to prove at trial that [a defendant] either designed the items listed in the indictment for use with controlled substances or intended them to be for drug use"); cf...