U.S. v. Schneiderman, 1109

Decision Date09 July 1992
Docket NumberD,No. 1109,1109
PartiesUNITED STATES of America, Appellant, v. Jerry SCHNEIDERMAN, Jerry Ranallo, Larry Butler and Insertion Advertising Corp., Appellees. ocket 91-1695.
CourtU.S. Court of Appeals — Second Circuit

Seth C. Farber, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D. New York, Michele Hirshman, Katherine A. Bostick, Asst. U.S. Attys., of counsel), for appellant.

Joshua L. Dratel, New York City (Gerald B. Lefcourt, P.C., of counsel), for appellee Jerry Ranallo.

Richard Ware Levitt, New York City, for appellee Jerry Schneiderman and Insertion Advertising Corp.

Diarmuid White, New York City (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for appellee Larry Butler.

Before: LUMBARD, NEWMAN, and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

The government appeals from an order of the District Court for the Southern District of New York, Robert W. Sweet, Judge, which dismissed a fourteen-count indictment charging violations of the Mail Order Drug Paraphernalia Control Act, 21 U.S.C. § 857, 1 based on a determination that the statute is unconstitutionally vague. Because we conclude that § 857 includes a scienter requirement, it is not unconstitutional, either on its face or as applied to defendants. Accordingly, the order of dismissal is reversed and the case is remanded.

On August 22, 1990, the government obtained warrants to search the offices of Insertion Advertising and Central City Restaurant Supply Co., both located at 132 West 24th Street in Manhattan, to search the apartment of their owner, Jerry Schneiderman, and to seize three bank accounts. The warrants were based on affidavits of U.S. Customs Special Service Agent Peter Arnone who stated he had probable cause to believe Insertion Advertising and Central City were violating drug paraphernalia and money laundering laws. In the search that followed, government agents seized a large number of dual purpose objects, including rolling papers, stash cans, roach clips, mannitol, hemostats, glassine envelopes, amber glass containers and caps, nitrous oxide containers, balloons and various scales. 2 None of the objects are themselves illegal, but all can be used in illegal activities.

On October 5, 1990, a grand jury returned a fourteen-count indictment against the defendants. Five counts charged them with violating 21 U.S.C. § 857(a)(1) by "unlawfully, willfully and knowingly" making use of interstate conveyances as part of a scheme to sell drug paraphernalia. Six counts further charged them with "unlawfully, willfully and knowingly" offering drug paraphernalia for sale and transportation in interstate commerce in violation of 21 U.S.C. § 857(a)(2). The indictment also included two money laundering counts and a conspiracy count.

Defendants moved to suppress all the seized objects as the fruit of illegal searches and to dismiss the indictment on the ground that 21 U.S.C. § 857 was unconstitutionally vague as applied to them. On October 29, 1991, Judge Sweet denied the motion to suppress but dismissed the indictment because he concluded § 857 was unconstitutionally vague. Since he believed the statute does not require scienter, Judge Sweet found the average person could not determine whether any given item qualified as paraphernalia for purposes of the statute. Therefore, those dealing in such articles were not given sufficient notice of proscribed conduct to meet the requirements of due process. Finding the provision unconstitutional, Judge Sweet dismissed the indictment. 777 F.Supp. 258. This appeal followed.

The government challenges the determination that § 857 is unconstitutionally vague. The Supreme Court has repeatedly held that "the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea." Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979). In fact, the inclusion of an intent provision will often save an otherwise vague statute. See Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).

I. Scienter

We first consider whether § 857 includes a scienter element, and then, if so, the content of that element. Federal courts have long held that imposition of criminal liability usually requires a finding of mental culpability. See Morissette v. United States, 342 U.S. 246, 250-52, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952). "Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854 (1978); see also Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985) ("[T]he failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.").

We believe that Congress intended to include a scienter provision in § 857. The key language is contained in subsection 857(d), which defines "drug paraphernalia" to include only those items "primarily intended or designed for use" with illegal drugs. This phrase serves two purposes: it circumscribes the category of items a defendant may be punished for distributing, and it also strongly implies that some mental state is required. We agree with other courts construing this language to require scienter. See United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955, 957 (6th Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. 3520 Brighton Boulevard, 785 F.Supp. 141, 143 (D.Colo.1992); United States v. Main Street Distributing Inc., 700 F.Supp. 655, 666 (E.D.N.Y.1988).

In ruling that § 857 does not require scienter, Judge Sweet relied on differences between § 857 and the DEA Model Drug Paraphernalia Act on which it was patterned. The Model Act contains an explicit scienter requirement, one framed in terms of knowledge, either actual or constructive. It punishes a person who delivers drug paraphernalia "knowing, or under the circumstances where one reasonably should know, that it will be used" with illegal drugs. Model Act, art. II, § C (1979). This phrasing does not appear in § 857.

We recently relied on differences between § 857 and the Model Act as an aid in classifying the items covered by § 857. See United States v. Hong-Liang Lin, 962 F.2d 251, 256-57 (2d Cir.1992) (omission of cocaine vials, listed in Model Act, indicates that § 857 does not cover such items). It does not follow, however, that such a comparison should determine whether § 857 requires scienter. The absence from § 857 of the Model Act language does not override the presumption in favor of requiring scienter, especially in light of other textual support suggesting that Congress intended that § 857 include a scienter element.

Since the scienter standard is not explicitly set forth but only implied by the wording of the definitional section, it is not surprising that the content of the element is somewhat uncertain. The uncertainty arises both from the different meanings of the word "intent" in criminal statutes and from the special complication in this statute that the phrase "primarily intended or designed for use" serves the dual purpose of defining the item and implying a scienter requirement.

Fortunately, the legislative history of § 857 offers some guidance. During hearings on the bill that became § 857, Representative McCollum questioned Representative Levine, the sponsor of the bill, about the intent language. After recognizing that the phrase "designed for use" was clearly very narrow, Representative McCollum asked for clarification of "primarily intended for the use." Acknowledging that scienter was necessary, Representative Levine stated that the government would be required to prove "intent on the part of the defendant in a particular trial" to obtain a conviction under the "primarily intended" standard. Mail Order Drug Paraphernalia Control Act: Hearings on H.R. 1625 Before the Subcomm. on Crime of the House Comm. of the Judiciary, 99th Cong., 2d Sess. 19-21 (1986).

Accordingly, we find that "primarily intended" refers only to the subjective intent of the person charged with dealing in the proscribed articles. Intent here, however, refers only to knowledge about likely consequences. To show a defendant "primarily intended" to sell drug paraphernalia, the government need not show that the items would necessarily be used in connection with illegal drugs, but it must prove that the defendant knew there was a strong probability the items would be so used. See 57,261 Items of Drug Paraphernalia, 869 F.2d at 957 ("The person to whom the statute is being applied ... must have knowledge that there is a strong probability that the items will be used" with illegal drugs.); 3520 Brighton Boulevard, 785 F.Supp. at 143 ("[T]he only person whose intent is relevant for purposes of prosecution under this statute is that of the defendant on trial."); Main Street Distributing Inc., 700 F.Supp. at 666 (The statute focuses on "a defendant's use of the mails ... to facilitate transactions involving items that a defendant has designed or intends for use as drug paraphernalia ... regardless of what an ultimate purchaser contemplates or what the defendant knows in that regard.").

The second category of items covered by § 857 are those items "designed for use" with illegal drugs. Under this standard, a product qualifies as paraphernalia if it is "principally used with illegal drugs by virtue of its objective features." Hoffman Estates, 455 U.S. at 501, 102 S.Ct. at 1195 ("designed for use" is determined by the design of the manufacturer, not the intent of the retailer or customer); see also United...

To continue reading

Request your trial
38 cases
  • Loper v. New York City Police Dept.
    • United States
    • U.S. District Court — Southern District of New York
    • September 30, 1992
    ...is a critical element of a criminal offense. See United States v. Schneiderman, 777 F.Supp. 258, 266-68 (S.D.N.Y.1991), rev'd, 968 F.2d 1564 (2d Cir.1992). The Defendants also argue that these statutes cannot account for the myriad ways someone may engage in panhandling. To the extent such ......
  • U.S. v. Spy Factory, Inc., S1 95 cr 737 (SS).
    • United States
    • U.S. District Court — Southern District of New York
    • January 8, 1997
    ...has explained that "[i]n fact, the inclusion of an intent provision will often save an otherwise vague statute." United States v. Schneiderman, 968 F.2d 1564 (2d Cir.1992) ("The Supreme Court has repeatedly held that the constitutionality of a vague statutory standard is closely related to ......
  • Pinnock v. International House of Pancakes
    • United States
    • U.S. District Court — Southern District of California
    • November 8, 1993
    ...and interpretations may provide sufficient clarification for statutes that might otherwise be deemed vague. United States v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993); see, e.g., Hoffman Estates, 455 U.S. at 502, 504,......
  • Ahern v. City of Syracuse
    • United States
    • U.S. District Court — Northern District of New York
    • January 13, 2006
    ...what is prohibited' and then consider whether the law `provide[s] explicit standards for those who apply [it].'" United States v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir.1992) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)) (some alterations ......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial Exploitation of Mens Rea Confusion, at Common Law and Under the Model Penal Code
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 18-2, December 2001
    • Invalid date
    ...States v. Mishra, 979 F.2d 301 (3d Cir. 1992); United States v. Murphy, 977 F.2d 503 (10th Cir. 1992); United States v. Schneiderman, 968 F.2d 1564 (10th Cir. 1992); United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955 (6th Cir. 1989). [32]. See 511 U.S. at 516. [33]. See id. a......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT