US v. Dyer

• Decision Date: 30 October 1990
• Docket Number: Crim. No. 90-00183-A.
• Citation: 750 F. Supp. 1278
• Parties: UNITED STATES of America v. Randall K. DYER, et al.
• Court: U.S. District Court — Eastern District of Virginia

750 F. Supp. 1278

UNITED STATES of America v. Randall K. DYER, et al.

Crim. No. 90-00183-A.

United States District Court, E.D. Virginia, Alexandria Division.

October 30, 1990.

COPYRIGHT MATERIAL OMITTED

Henry E. Hudson, U.S. Atty., Lawrence J. Leiser, Quincy L. Ollison, Asst. U.S. Attys., Geoffrey R. Brigham, Sp. Asst. U.S. Atty., Alexandria, Va., for the U.S.

John K. Zwerling, Alexandria, Va., for Randall K. Dyer.

Alan H. Yamamoto, Fairfax, Va., for Tobacco Accessories Distributing Co.

John A. Keats, Fairfax, Va., David B. Lamb, Washington, D.C., for Seyed-Ali Mortazavi, Lynn K. Mortazavi and Lynx Enterprises, Inc.

Nina J. Ginsburg, Alexandria, Va., for Page E. Wiencek.

R. Stanley Powell, Alexandria, Va., for RPM Associates, Inc.

Jonathan Shapiro, Alexandria, Va., for William L. Love.

Peter D. Greenspun, Fairfax, Va., for John Burgess Dragon Song, Ltd.

William B. Moffitt, Alexandria, Va., for Robert T. Vaughn.

Drewry Hutcheson, Alexandria, Va., for American Pipe & Tobacco Council.

Joe Wiggs, Alexandria, Va., Henry Asbill, Timothy Junken, L. Barrett Boss, Washington, D.C., for Peter R. Wolfe, Chryssa E. Wolfe and Progressive Plastics, Inc.

Seymour Glanzer, Washington, D.C., for Roger Graham, Barbara M. Graham and Odyssey Glass Corp.

MEMORANDUM OPINION

ELLIS, District Judge.

The government's original 302 Count, sixty-nine-page indictment against alleged drug paraphernalia manufacturers, distributors and retailers, and their trade association represents one of the first criminal prosecutions in the nation under the Mail Order Drug Paraphernalia Act, 21 U.S.C. § 857.¹ Not surprisingly, then, this prosecution raises questions, unresolved in this circuit, concerning the construction and constitutionality of this law. Recorded here is the Court's resolution of these and other issues raised by the parties' pre-trial motions. Specifically, the issues addressed are

(1) whether § 857 includes a scienter requirement and, if so, the nature of that requirement;

(2) whether § 857 is unconstitutionally vague;

(3) Whether § 857 reaches the conduct of drug paraphernalia retailers as alleged in the indictment;

(4) whether portions of the indictment should be dismissed as multiplicious; and

(5) whether the indictment should be dismissed on the ground of grand jury abuse.

I. Factual Background

The indictment is lengthy and detailed. Eighteen defendants are named. They fall generally into four categories. The first three consist of individuals and businesses engaged in the (i) manufacture, (ii) distribution, and (iii) retail sales of "drug paraphernalia."² The fourth category consists of two entities: (1) the American Pipe & Tobacco Council ("APTC"), in effect the defendants' trade association, and (2) Robert T. Vaughn, APTC's executive director and legal adviser. Figure 1 (see Appendix A) identifies the eighteen original defendants and depicts their commercial relationships.

In essence, the indictment can be viewed as made up of five sections. The first, consisting of Count 1, charges all defendants with conspiracy to violate the federal drug paraphernalia laws in violation of 18 U.S.C. § 371. More particularly, the indictment charges that all defendants conspired in two respects: (i) to make use of the postal service and other interstate conveyances, namely United Parcel Service ("UPS"), as part of a scheme to sell drug paraphernalia in violation of § 857(a)(1), and (ii) to offer drug paraphernalia for sale and transportation in interstate commerce in violation of § 857(a)(2). Further, the indictment alleges that defendants used various means to carry out the conspiracy, including the maintenance of APTC as an organization to advise defendants and others on how to continue selling drug paraphernalia in violation of the law.

The second section of the indictment consists of Counts 2 through 149, in which various defendants are charged with using the mails and other interstate conveyances, namely UPS, as part of a scheme to sell drug paraphernalia. Each of the counts in this section relates to a single invoice from a manufacturer to a wholesaler or a retailer concerning some item or items of alleged drug paraphernalia mailed or shipped via UPS. Specifically, Counts 2-29 are invoices of Progressive Plastics, Inc., a manufacturer, concerning the mailing of alleged drug paraphernalia to wholesaler Tobacco Accessories Distributing Company ("Choice Supply"). Counts 30-70 are invoices of the manufacturer Odyssey Glass concerning alleged drug paraphernalia mailed either to wholesaler Choice Supply or to retailer RPM Associates, Inc. (d/b/a Penguin Feather). Counts 71-95 are invoices of the wholesaler Choice Supply concerning alleged drug paraphernalia shipped via UPS to retailer Penguin Feather. Next, Counts 96-127 reflect Choice Supply invoices concerning UPS shipments of alleged drug paraphernalia to Dragon Song, Ltd. Finally, Counts 128-49 relate to Choice Supply invoices of UPS shipments of alleged drug paraphernalia to retailer Octopus Garden, a sole proprietorship of defendant William L. Love.

The third section of the indictment consists of Counts 150-238. In these counts various of the defendants are charged with unlawfully offering drug paraphernalia for sale and transportation in interstate commerce in violation of 21 U.S.C. § 857(a)(2). Here again, each count refers to a single invoice reflecting a sale of alleged drug paraphernalia to one of the three defendant retailers from the wholesaler, Choice Supply.³

In the fourth section of the indictment, consisting of Counts 239-302, various defendants are charged with illegal money laundering or with aiding and abetting such money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 2. Thus, Counts 239-49 charge the manufacturer Odyssey Glass and its two principals, Roger and Barbara Graham, with depositing funds in a financial institution, knowing that such funds represented proceeds from illegal activities, namely violations of § 857(a)(1) and (2). These same counts charge Choice Supply and its principal, Randall Dyer, with aiding and abetting the money laundering. Each count represents a single deposit of a Choice Supply check, and hence each count is a separate money laundering charge and a separate aiding and abetting charge.⁴ Similarly, each of the Counts 250-59 represents a single deposit and hence a separate money laundering charge against the manufacturer Progressive Plastics and its principals, Peter and Chryssa Wolfe, and separate aiding and abetting charges against Choice Supply and Dyer for Counts 250-52 and 254-59 and against Dragon Song and its principal, John Burgess, for Count 253. The remaining counts follow the same pattern. The manufacturer, wholesaler or retailer making deposits of funds derived from alleged violations of § 857(a)(1) or (a)(2) is charged with a separate money laundering count for each deposit. And for each money laundering charge, there is an aiding and abetting charge against the entity that paid the funds.⁵

The fifth and final section of the indictment sets forth the forfeiture allegations relating to the various defendants. In this regard, the Court granted the government's request for bifurcation of the trial. See United States v. Dyer, et al., Crim. No. 90-000183-A (Order dated August 10, 1990).

It now appears that there will be no trial on this indictment. Of the original eighteen defendants, twelve have entered pleas. Defendants Progressive Plastics, Inc. and Peter Wolfe, president and owner of Progressive Plastics, entered pleas of guilty to Count 1 of the indictment charging all defendants with conspiracy to violate § 857. Defendants Odyssey Glass Corporation and Roger and Barbara Graham, president and secretary-treasurer, respectively, of Odyssey Glass, also entered pleas of guilty to Count 1, as did defendants Tobacco Accessories Distributing Company and Randall K. Dyer, its president, RPM Associates, Inc., and its president, Page E. Wiencek, Dragon Song, Ltd. and its president, John Burgess, and William L. Love, sole proprietor of Octopus Garden. Charges against defendants Chryssa Wolfe, Robert T. Vaughn, and American Pipe and Tobacco Council were dismissed on the government's motion. Also, on the government's motion, charges against defendants Seyed-Ali Mortazavi, Lynn K. Mortazavi, and Lynx Enterprises, Inc. were dismissed without prejudice, over the objection of these defendants.

II. Scienter

Scienter is typically central to criminal liability. See Morrissette v. United States, 342 U.S. 246, 250-52, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952). So embedded in the law is this principle that "absent indication of contrary purpose in the language or legislative history of a statute," scienter is presumed to be an element of any federal crime. Liparota v. United States, 471 U.S. 419, 425, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985). On this general principle, the parties agree. Indeed, they do not dispute that § 857 includes some sort of a scienter requirement. What is sharply disputed is the nature of that requirement. Specifically, the parties dispute whether the statute's definition of "drug paraphernalia" as any item "primarily intended or designed" for use with illicit drugs embodies an objective or subjective scienter standard.⁶ 21 U.S.C. § 857(d). Defendants contend that the statute requires proof of a specific mental state with respect to an item before that item constitutes drug paraphernalia. Thus, they contend that the government cannot establish a § 857 violation unless it proves that defendants subjectively intended that an item they offered for sale was to be used with controlled substances or that defendants themselves designed the item for use with illegal drugs. In contrast, the government argues that the scienter requirement is objective: an item is drug paraphernalia if, by virtue of its physical characteristics and/or surrounding circumstances, it is apparent that...