Petition for Writ of Certiorari — 57,261 Items of Drug Paraphernalia et al., Contempo Products, Inc., by and through its president, Richard K. Rowland v. United States of America
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No. 89 - 2 t Supreme Court, U.S. |
IN THE |
+1 gern F. SPANIOL, JR.
Supreme Court of the United Séfee—
ee ea
October Term, 1989
57,261 ITEMS OF DRUG PARAPHERNALIA, et al.,
Petitioners,
CONTEMPO PRODUCTS, INC., by and through its
president, Richard K. Rowland,
Claimant-Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
ROBERT T. VAUGHN, Counsel of Record
926 Stahlman Building
211 Union Street
Nashville, Tennessee 37201
(615) 242-2550
LARRY D. Woops
Woops AND Woops
121 17th Avenue South
Nashville, Tennessee 37203
(615) 259-4366
Counsel for Petitioners
THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647
ee
i
QUESTIONS PRESENTED
The Mail Order Drug Paraphernalia Control Act of —
1986 is being applied against innocent merchants around
the country, putting many of them out of business. The
law is now being extensively challenged, and decisions
are conflicting both with precedent established by this
Court as well as with ec:h other. This case presents the
following questions for review:
1. Whether the Mail Order Drug Paraphernalia
Control Act, 21 U.S.C. §857, has been applied
unconstitutionally in violation of Due Process
requirements of the Constitution.
2. Whether the mandatory requirement of a
criminal conviction, set forth as a condition precedent to
property seizure in the Mail Order Drug Paraphernalia
Control Act, can be ignored by the United States
Government.
LIST OF ALL PARTIES
Petitioners herein, Appellants in Case Number 88-
5320 below, are 57,261 Items of Drug Paraphernalia and
Contempo Products, Inc., by and through its president
Richard K. Rowland. Respondent herein, Appellee in
Case Number 88-5320 below, is the United States of
America.
TABLE OF CONTENTS
QUESTIONS PRESENTED ..................5.
LIST OF ALL PARTIES.................000055
TABLE OF AUTHORITIES
RUE Sas essence ccccncesccscceccs
A ee
STATUTES INVOLVED.................00008:
STATEMENT OF THE CASE ..................
REASONS FOR GRANTING THE WRIT........
I,
Il.
III.
THE JUDGMENT OF THE SIXTH
CIRCUIT DIRECTLY CONFLICTS WITH
THE PRIOR JUDGMENT OF THIS
COURT IN HOFFMAN ESTATES. ........
THE QUESTIONS PRESENTED ARE OF
SUBSTANTIAL IMPORTANCE, THE
RESOLUTION OF WHICH WILL HAVE
NATIONWIDE IMPACT ................
THE DECISION OF THE SIXTH CIRCUIT
IS CLEARLY IN ERROR AND SHOULD
BBE FRR V MRED ov ccc ces cccnccccccccecs
A. The Definition Of “Drug Paraphernalia’”’
As All Items “Designed For Use”
With Controlled Substances Is
Unconstitutionally Vague As _ Applied
EE SEMe ech anh Gu gacatacaceandceces
1. The Standards Defining The Void-For-
Vagueness Doctrine And The Manner Of
Their Application Have Been Set Forth
By The Sixth Circuit And This Court...
oeeeevreereeeeeeeseeee eee
Oo +» BO WN
8
iv
2. The Definition Of Drug Paraphernalia As
Items ‘Designed For Use” With
Controlled Substances Is
Unconstitutionally Vague When Applied
To Items Based, Not On Structural
Characteristics, But Instead On The
Intent Of The Seller Or _ User,
Particularly When No Use Has Been
Made Of The Items ..................
(a) The phrase ‘designed for use’’ refers
to an item’s objective, structural
Characteristics. .... ccc ccc cceees
(b) The Supreme Court upheld the facial
constitutionality of the phrase
“designed for use’ because it
theoretically could be applied to
items solely usable with drugs based
on structural characteristics.......
(c) The phrase “designed for use” is
unconstitutionally vague when ~
applied to the seized items herein ..
(d) The items seized in_ the instant
action have lawful uses and are not
per se designed for illegal use......
10
10
10
ll
12
B. The Sixth Circuit Erred In Failing To Find
A Criminal Conviction As A Condition
Precedent To Forfeiture ................
1. A Specific Provision Must Be Given
Preference Over A More General One...
2. The Court Below Failed To Consider This
ee a. wan nn tnebeseet ss
3. Section 857(c) Applies Specifically To
4.
Drug Paraphernalia, While Section
1595a(c) Applies Generally To Any
Merchandise ........... Seer
A
Forfeiture Provisions Requiring
Conviction Are Not Uncommon........
5. Cases Decided Under The National
Prohibition Act Confirm The Sixth
oe als seu Lai
PINE 64 0 rd e's bio os cued eGasdewsetee
APPENDIX:
Appendix A. United States v. 57,261 Items of
Drug Paraphervalia, etc., 869 F.2d 955 (6th Cir.
BE Seon a reac cs ee bee 44.00cbReORNeres ss Al
Appendix B. United States v. 57,261 Items of
Drug Paraphernalia, 705 F. Supp. 1256 (M.D.
(©: OVC TOPOL rebar Tray) cf. ere Al7
Appendix C. Mail Order Drug Paraphernalia
Control Act, 21 U.S.C. §857, enacted as
Subtitle O of Title I of the Anti-Drug Abuse
Act of 1986, P.L. 99-570, 100 Stat. 3207 (1986). A44
Appendix D. 19 U.S.C. §1595a.... 6.6... ee ee eee A48
Appendix E. Brief of Amici Curiae, The American
Pipe and Accessory League and The National
Association of Tobacco Distributors, Inc. ..... A50
Appendix F. Transcript of the District Court,
August 31 - September 12, 1987, Case No. 3-
87-0656 (selected pages) ............50e ee eee All4
Appendix G. Mail Order Drug Paraphernalia
Control Act: Hearings on H.R. 1625 Before the
House Subcommittee on Crime of the
Committee on the Judiciary, House of
Representatives, 99th Cong., 2d Sess. (May 8,
1986) (selected pages) .............0 eee eeees A206
vii
TABLE OF AUTHORITIES
Cases:
Baker v. State, 343 So. 2d 622, cert. denied, 348 So.
Ns oo. cays Oeceee baa 6 bh oe 18
Blackshear v. State, 521 P.2d 1320 (Oregon
Sines Kees be ED 6 4b wee os ea wah Oo eR ce 18
Busic v. United States, 446 U.S. 398 (1980) .. . 7,15,17,19
Colautti v. Franklin, 439 U.S. 379 (1979) .......... 9
Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir.
FNL TS TE TT Te TERE CRO TCC TT Perr ere 9
Grayned v. City of Rockford, 408 U.S. 104
GE sth ROOM bles eeiakin aly ears 8 bn oie e's i)
Indiana v. McCray, Case No. A1586-875 (Municipal
Ct. Marion County, Ind., June 8, 1987}.......... 13
International Maven, Inc. v. McCauley, 687 F. Supp.
300 (U.S. Ct. of International Trade 1988) ....... 14
Lanzetta v. New Jersey, 306 U.S. 451 (1939)....... 9
Metropoiitan Detroit Area Hospital Services, Inc. v.
United States, 634 F.2d 330 (6th Cir. 1980), cert.
denied, 450 U.S. 1031 (1981) .................. 15,17
One Lot Emerald Cut Stones v. United States, 409
EE ERT CR ee Se, ae 16.17
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.
PER Sho kednn cSR daw a Nak been eee dees 9
Papachristou v. City of Jacksonville, 405 U.S. 156
ENG CSS kb 5k heas wd Sbiene ks wks beaveeba <
viii
Record Revolution No. 6, Inc. v. City of Parma, 638
F.2d 916 (6th Cir. 1980), vacated and remanded,
456 U.S. 968 (1982), on remand, 709 F.2d 534 (6th
GR ER ceninraid's voce andens ¢g0s en Redeeae ee 9
Joseph E. Seagram & Sons, Inc. v. Hostetter, 384
if S * SPT Terere rire er re kT ee ll
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). . 9
Shipman v. DuPre, 73 S.E.2d 716 (South Carolina
eee or ee rer ee ery. 18
Singleton v. Commonwealth, 208 S.W.2d 325
SE Da vckccccccetecccsecavesseccen 18
Smith v. Goguen, 415 U.S. 566 (1974). ............ 9
State v. Rossitto, 331 A.2d 385 (Del. 1974) ........ 17
United States v. Dunn, 802 F.2d 646 (2d Cir. 1986),
cert. denied, 480 U.S. 931, 107 S.Ct. 1568
Doc. ci iitcennnn bite echknukee tanh daanen 16,17
United States v. One Reo Speed Wagon (1927), 9 PA
D & C 265 (Federal District Court) ............. 18
United States v. Southern Agency Co., 66 F.2d 336
NX. RR Pee re rere Pere Tree 18
United States v. Wagner, 435 F. Supp. 850 (1978)... 18
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982). ............ passim
Winters v. New York, 333 U.S. 507 (1948)......... 9
United States Codes:
18 U.S.C. $§111, 545 and 924(c) ...............5. 15,16
19 U.S.C. $§1595a(c) and 1497.......... 3,5,6,9,14,16,17
21 U.S.C. §§40, 853, 857 and 881...... 3,5,6,8,9,14,16,17
26 U.S.C. §501(cM3) and (e)...... 0.0... cece eee ee 15
PPM Go av nis ccaccswacckadessus 18
No.
IN THE
Supreme Court of the United States
October Term, 1989
57,261 ITEMS OF DRUG PARAPHERNALIA, et al,
Petitioners,
CONTEMPO PRODUCTS, INC., by and through
its president, Richard K. Rowland,
Claimant-Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit
OPINION BELOW
The opinion of the United States Court of Appeals
fo: the Sixth Circuit has been officially reported at 869
F.2d 955 (6th Cir. 1989), rehearing denied May 10, 1989.
The opinion is in Appendix A.
The opinion of the United States District Court for
the Middle District of Tennessee has been officially
reported at 705 F. Supp. 1256. The opinion is in
Appendix B.
2
JURISDICTION
The Court of Appeals for the Sixth Circuit (‘Sixth
Circuit’’) filed its judgment on March 14, 1989. On May
10, 1989, the Sixth Circuit denied a Petition for
Rehearing En Banc. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. §1254(1).
3
STATUTES INVOLVED
1. The Mail Order Drug Paraphernalia Control Act,
21 U.S.C. §857 (‘Section 857’), is set forth in
Appendix C.
2. 19 U.S.C. §1595a(c) (“Section 1595a’’) is set forth
in Appendix D.
4
STATEMENT OF THE CASE
In this action, United States Government Customs
agents seized from a merchant, Contempo Products, Inc.,
three types of items: water pipes, ceramic (clay) pipes
and cigarette holders. The Government claimed that said
items constituted drug paraphernalia as defined by the
Mail Order Drug Paraphernalia Control Act (‘Drug
Paraphernalia Act”). All the seized items were in their
original packaging; none had yet been used or
distributed to stores. Unrebutted evidence at trial
established that all three types of products typically are
distributed to and sold by legitimate tobacco and
tobacco-related accessory businesses in traditional
tobacco stores around the country.’
None of the seized-items are “‘principally used with
illegal drugs by virtue of their objective features.”’ For
example, the Government’s own witnesses testified at
the trial below that the seized water pipes would not be
of interest to marijuana smokers without substantial
adaptation. To make one usable for drugs, a drug user
first would have to break off the existing wooden bowl,
then drill or cut a knob off of the bottom of a lamp, thread
the knob from the lamp to match the threads on the water
'These businesses include: United States Tobacco Corporation, a
Fortune 500 company which is a leading pipe and tobacco accessory
manufacturer and importer and the largest manufacturer of moist
smokeless tobacco; CAO Meerschaum Pipe Company, the nation’s
largest meerschaum pipe importer and distributor; Lane Limited, the
largest distributor of bulk pipe tobacco in the United States and of
the Dunhill lines of pipes, tobacco and accessories; numerous Tinder
Box International retail stores, the nation’s largest chain of retail
tobacco stores; and Van Der Want Pijpenfabrieken, the world’s oldest
pipemaker. See Brief of Amici Curiae, The American Pipe and
Accessory League and The National Association of Tobacco
Distributors, Inc. (“Amici Curiae’) at pages 1-2, 8 and citations
therein, Appendix (‘‘App.’’) E hereto.
? Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 501 (1982).
5
pipe, and finally solder on a metal bow! in place of the
wooden one.* Without undertaking those substantial
efforts to change the objective features of the pipes, the
pipes would be usable to smoke tobacco but not to
smoke controlled substances.*‘
This case presents two important issues. The first is
whether a merchant who purchases or sells ceramic
pipes, water pipes and cigarette holders, all of which
have objective features making them usable by third
parties with legal tobacco products, may be subjected to
civil forfeiture and criminal prosecution. Since U.S.
Customs agents seized items which are not “principally
used with illegal drugs by virtue of [their] objective
features,” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc, 455 U.S. 489, 501 (1982)
(“Hoffman Estates”), the Act has been applied
unconstitutionally in the instant case, in violation of the
standards announced by this Court in Hoffman Estates.
The second issue is whether the blackletter law that
a specific statute. controls over a general one may be
abrogated in circumstances’ involving drug
paraphernalia. In the instant action, a general seizure
provision (Section 1595a(c)), rather than the seizure
provision applying specifically to drug paraphernalia
(Section 857(c)), was used impermissibly to seize
supposed drug paraphernalia because the Government
would have been unable to satisfy the stricter standards
imposed under the sires drug paraphernalia seizure
provision.
* Transcript (‘‘Tr.’’) of heiiiie in the District Court, August 31 -
September 2 and November 12, 1987. Case No. 3-87-0656 at 123-24,
153-54, attached hereto as App. F.
‘Tr. at 85, 134-35, 153, 160-61, 174-75, 177-79, 248, 252, 262, 281,
470-71, 489-90; Mail Order Drug Paraphernalia Control Act: Hearings
on H.R. 1625 Before the House Subcommittee on Crime of the
Committee on the Judiciary, House of Representatives, 99th Cong.,
2d Sess. (May 8, 1986), at 122-23 (hereinafter ‘‘Hearings’’), attached
hereto as App. G.
6
REASONS FOR GRANTING THE WRIT
I. THE JUDGMENT OF THE SIXTH CIRCUIT
DIRECTLY CONFLICTS WITH THE PRIOR
JUDGMENT OF THIS COURT IN HOFFMAN
ESTATES.
The Supreme Court in Hoffman Estates upheld the
constitutionality of a drug paraphernalia ordinance which
applied to items “designed ... for use’ with controlled
substances. 455 U.S. at 500. The Court determined that
the ‘‘designed for use standard was not
unconstitutionally vague on its face so long as it was }
applied to items “principally used with illegal drugs by —
virtue of [their] objective features, i.e., features designed
by the manufacturer.” 455 U.S. at 501. The “phrase
refers to structural characteristics of an item,” id., and
cannot be made to depend on the “‘intent of the retailer
or manufacturer.” Jd.
The Supreme Court further warned that the
‘designed for use’’ language does “contain ambiguities,”’
455 U.S. at 502, which could rise to the level of
constitutional defects if not carefully limited as required
by the Court. However, the Sixth Circuit failed to heed
the warning of this Court. The court below expressly
held that the “‘designed for use” language in Section 857
could be applied based on the intent of the seller or
manufacturer, rather than on the structural features of
the item. E.g., 869 F.2d at 957-59. By so ruling, the
Sixth Circuit opinion directly conflicts with this Court’s
decision in Hoffman Estates.
Moreover, the Sixth Circuit held that the general
seizure provision of Section 1595a(c) could be applied to
drug paraphernalia, despite the existence of a narrow
seizure provision, Section 857(c), which specifically
7
applies to drug paraphernalia. 869 F.2d at 954. Such
ruling conflicts with long-standing precedent that a
specific statute controls over a general one. E.g., Busic v.
United States, 446 U.S. 398, 410 (1980).
Il. THE QUESTIONS PRESENTED ARE OF
SUBSTANTIAL IMPORTANCE, THE
RESOLUTION OF WHICH WILL HAVE
NATIONWIDE IMPACT.
The instant action involves a challenge to a federal
paraphernalia statute which is being used on a regular
basis to seize lawful items from innocent merchants all
over the country.
As is explained in the Brief of Amici Curiae (App. E),
legitimate tobacco and _ tobacco-related accessory
businesses are at risk of criminal prosecution and
property seizure. The law as applied by Customs herein
and as interpreted by the Sixth Circuit below is so vague
that it fails to provide fair notice of the persons covered
and the conduct proscribed. The lack of clear standards
leaves ‘‘legitimate”’ businesses and individuals open to
arbitrary, erratic, and discriminatory arrests,
prosecutions, convictions, and property seizures.
One of the primary problems with the law is that
there are few, if any, items which are designed for use
with controlled substances based on their structural
characteristics. Water pipes, ceramic pipes and cigarette
holders, those items seized in this case, are produced,
sold, imported and exported by traditional, legitimate
merchants for use with tobacco, not drugs.' Yet the Drug
*E.g., United States Tobacco Corporation, which is without question
a weal-established manufacturer of legitimate and generally accepted
tobacco products, has imported water pipes identical to those seized.
Tr. 172. Many Tinder Box retail tobacco stores sell water pipes
similar to those seized. Tr. 176. See also Hearings at 135 (Statement
of L. Page Maccubbin, owner of the nationally known Earthworks
tobacconists).
8
Paraphernalia Act puts virtually every “‘legitimate’’,
traditional pipe and tobacco accessory business in
serious jeopardy.°®
This Court previously has recognized the importance
of issues presented by statutes and ordinances banning
“drug paraphernalia,” having determined Hoffman
Estates seven years ago. A resolution of the conflict
between this Court’s opinion in Hoffman Estates and the
Sixth Circuit’s opinion below will have a substantial
impact upon merchants in states across the nation.
III. THE DECISION OF THE SIXTH CIRCUIT IS
CLEARLY IN ERROR AND SHOULD BE
REVERSED.
A. The Definition Of ‘Drug Paraphernalia” As All
Items “Designed For Use’ With Controlled
Substances Is Unconstitutionally Vague As
Applied Herein.
Section 857 defines ‘‘tirug paraphernalia,” ii part, as
any item which is “designed for use’’ with controlled
substances. As defined by the Sixth Circuit and applied
herein, that phrase is unconstitutionally vague.
1. The Standards Defining The Void-For-Vagueness
Doctrine And The Manner Of Their Application
Have Been Set Forth By The Sixth Circuit And This
Court.
The Sixth Circuit has previously set forth the well-
established standards defining the void-for-vagueness
doctrine:
The void-for-vagueness doctrine commands any
statute to give persons of common intelligence fair
notice of the persons covered and the conduct
* E.g., Hearings at 119, 121, 126, 159, 163.
._
proscribed. Colautti v. Franklin, 439 U.S. 379, 390-
391 ... (1979). Fundamental fairness, as well as a
proper regard for preventing the deterrence of
constitutionally protected conduct, requires that
persons not be compelled to guess at their own peril
the meaning and application of a statute. Grayned v.
City of Rockford, 408 U.S. 104, 108 ... (1972);
Lanzetta v. New Jersey, 306 U.S. 451, 453 ...
(1939). Ascertainable standards of guilt are
imperative in order to protect against arbitrary,
erratic, and discriminatory arrests, prosecutions and
convictions. Papachristou v. City of Jacksonville,
405 U.S. 156, 172 ... (1972); Winters v. New York,
333 U.S. 507, 515 ... (1948). Unless the statute
itself prescribes sufficiently precise standards, basic
policy decisions are impermissibiy delegated to the
personal predilections of the police, prosecutors and
juries. Smith v. Goguen, 415 U.S. at 575 ... (1974);
Grayned v. City of Rockford, 408 U.S. at 108 ....
‘‘Legislators may not so abdicate their
responsibilities for setting the standards of the
criminal law.” 415 U.S. at 575...
Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d
916, 927 (6th Cir. 1980), vacated and remanded, 456 U.S.
968 (1982), on remand, 709 F.2d 534 (6th Cir. 1983). The
United States Supreme Court in Hoffman Estates
confirmed the vitality of those standards governing
vagueness challenges. 455 U.S. at 498 (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972)).
Section 857 is a criminal statute carrying stiff
penalties,’ and Section 1595a(c) is a ‘“quasi-criminal”’
forfeiture provision® which has a serious “‘prohibitory and
" Penalties are imprisonment for no more than three years and a fine
of no more than $100,000, Section 857(b), coupled with forfeiture of
property, Section 857(c).
* E.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700
(1965) (‘‘a forfeiture proceeding is quasi-criminal in character’’); Fleuti
v. Rosenberg, 302 F.2d 652, 655 (9th Cir. 1962). See also Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 492-93 (1985) (stating that a
quasi-criminal law requires constitutional ‘‘protection normally
applicable oniy to criminal proceedings’’).
10
stigmatizing effect/.]'’* Accordingly, the void-for-
vagueness standards cited above apply herein and
require ‘‘a relatively strict test.’”°
2. The Definition Of Drug Paraphernalia As Items
‘Designed For Use’’ With Controlled Substances Is
Unconstitutionally Vague When Applied To Items
Based, Not On Structural Characteristics, But
Instead On The Intent Of The Seller Or User,
Particularly When No Use Has Been Made Of The
Items.
(a) The phrase ‘designed for use” refers to an item’s
objective, structural characteristics.
The Supreme Court in Hoffman Estates ruled that
the phrase “designed for use’ “refers to structural
characteristics of an item.’’'' Under this definition, ‘drug
paraphernalia” consists of those items “per se fashioned
for use with drugs,’’"? and “‘necessarily designed for use
with cannabis or illegal drugs’ by virtue of their
physical characteristics.
(b) The Supreme Court upheld the facial
constitutionality of the phrase ‘designed for use”’
because it theoretically could be applied to items
solely usable with drugs based on structural
characteristics.
The Supreme Court in Hoffman Estates recognized
that the “designed for use’ language ‘‘contains|s]
ambiguities,” 455 U.S. at 502) 504," and conceded that
* Hoffmann Estates, 455 U.S. at 499 n. 16.
10 Td. ‘
'' 455 U.S. at 501.
27d at 501 n.19 (quoting with approval the Brief for Appellee
therein).
'S Td. at 501 n.18.
“The Supreme Court found it “significant” that the Village of
Hoffman Estates ‘‘primarily relied on the ‘marketing’ aspect of the
standard, which does not require the more ambiguous item-by-item
analysis of whether paraphernalia are ‘designed for’ illegal drug use.”
Id. at 504.
11
“specific future application ... may engender concrete
problems of constitutional dimension.’’'* However, the
Supreme Court nonetheless upheld that definition
against a facial vagueness attack because the law
theoretically could be applied to items with only illegal
uses based on their structural characteristics.
In fact, the licensing guidelines incorporated into the
Hoffman Estates regulation included a list of items
considered to be “per se” drug paraphernalia. ‘The
guidelines refer to ‘paper of colorful design’ and to other
specific items as conclusively ‘designed’ or not ‘designed’
for illegal use.’’’* Since the Hoffman Estates regulation
applied, at least, to certain specifically designated, easily
identifiable items, ‘no issue of fair warning” existed."
Given this definition of the phrase ‘‘designed for
use,” it is easy to understand why the Supreme Court
held it constitutional on its face. Certainly a law may
flatly prohibit clearly designated, easily identifiable
items, such as cocaine, having only illegal uses based on
structural characteristics. By defining ‘‘drug
paraphernalia’’ based on an _ item’s objective
characteristics, the definition is not unconstituticnally
vague on its face. However, the fatal vagueness in the
definition appears, as in the instant acticn, when the law
is applied to items which do not have objective
characteristics making them drug items.
(c) The phrase ‘‘designed for use’ is
unconstitutionally vague when applied to the
seized items herein.
In the instant action, the Government has attempted
to apply the Drug Paraphernalia Act to items which are
not per se ‘‘drug paraphernalia” but instead have many
'* Id. at 504 (quoting Joseph E. Seagram & Sons, Inc. v. Hostetter,
384 U.S. 35, 52 (1966)).
'* Td. at 500-501.
Id. at 501.
12
lawful uses. Rather than relying on objective
characteristics of the items, the Government was forced
to look to the subjective intent of the distributor, based
largely upon the ambiance in one of the many stores
carrying the seized items.
James Knapp, United States Deputy Assistant
Attorney General, a witness for the Government in the
Congressional hearings on the Drug Paraphernalia Act,
and Timothy Hardin, a witness for the Government in
the hearing before the district court below, testified to
the vagueness of the law as it applies to items which are
not structurally “drug items.’’ Mr. Knapp stated:
[The Drug Paraphernalia Act} is too broad in scope.
It attempts to cover paraphernalia items like
spoons, straws and roach clips, as well as any other
items primarily intended or designed for use in
connection with drugs."*
Similarly, Timothy Hardin testified that the Drug
Paraphernalia Act is ‘‘too vague’’ because it
encompasses virtually any pipe sold in traditional
tobacco stores.
(d) The items seized in the instant action have lawful
uses and are not per se designed for illegal use.
Unlike the ordinance in Hoffman Estates, the Drug
Paraphernalia Act does not. list items which are
‘““necessarily”’ and “conclusively” drug paraphernalia per
se.'* The record herein is replete with evidence that the
items seized by the Government have lawful uses.
'*Hearings at 54. Similarly, Jack E. Swagerty, Assistant Chief
Inspector for the U.S. Postal Service, expressed his concern about the
breadth and vagueness of the definition of drug paraphernalia. Jd. at
61.
'* See Hearings at 15.
13
The district court below itself recognized that the
seized items were not per se drug paraphernalia based on
structural characteristics:
These items are not ... like cocaine. They are not
like heroin, something you can just put your finger
on, per se, and say it’s ... mala in se ... something
evil, wicked, in and of themselves. They are items
conceivabiy could have a legitimate use.”
Consider, for example, the seized water pipes.
Because water pipes filter the harmful tars and nicotine
from tobacco, they are becoming popular with tobacco
smokers concerned about the health risks of smoking.
The Government witnesses even admitted that, because
the seized water pipes had wooden bowls, they would not
be of interest to drug users without substantial
structural changes.”' Accordingly, the seized water pipes
were not drug paraphernalia based upon ‘features
designed by the manufacturer’ but rather only after
substantial structural changes by the end-user.
If the importer, manufacturer or seller of the seized
water pipes can be held liable under the Drug
Paraphernalia Act, then Brooks Brothers could be liable
for selling belts because belts can be and have been
adapted for use with controlled substances,” and any
seller of lawful shotguns could be arrested, since it is a
simple matter to change a lawful shotgun into an illegal
sawed-off shotgun.”
* Tr. 596.
" E.g., Tr. 123, 153-54. *
* 455 U.S. at 501.
* Eg. Tr. 154-55.
** In declaring unconstitutional the definition of ‘drug paraphernalia”’
as items “‘designed” for use with drugs, the court in Indiana v.
McCray, Case No. A1586-875 (Municipal Ct. Marion County, Ind.,
June 8, 1987) (copy attached to App. E) stated:
(Footnote continued on following page.)
14
B. The Sixth Circuit Erred In Failing To Find A
Criminal Conviction As A Condition Precedent To
Forfeiture.
Both Sections 857 and 1595a contain forfeiture
provisions. Section 1595a(c) is a general section providing
“broad seizure authority for any merchandise imported
contrary to law.” 705 F. Supp. at 1266 (emphasis in
original).”*> On the other hand, Section 857(c) is a narrow
forfeiture provision applying specifically to seizure of
drug paraphernalia ‘‘upon conviction of a violation of 21
U.S.C. §857(a).”” Id.
While the district court below expressly recognized
that Section 1595a(c) is a general forfeiture provision and
Section 857(c) is a specific forfeiture provision, it and the
Court of Appeals failed to apply blackletter law under
which the more specific Section 857(c) should exclusively
apply to seizure of ‘drug paraphernalia’. Accordingly,
the Sixth Circuit mistakenly ruled that the Government
could choose to ignore Section 857(c) and instead proceed
under Section 1595a(c).
1. A Specific Provision Must Be Given Preference Over
A More General One.
It is blackletter law that a specific statute controls
over a general one. This Court has so held.
(Footnote continued from preceding page.)
IC 35-47-5-4 prohibits dealing in sawed off shotguns. It is well
known in law enforcement circles that single shot shotguns of
cetain gauges are favorite subjects to be transformed into these
forbidden weapons. If the logic of the State in the instant case,
... were to be followed, then the dealers of these particular size
and type of shotguns would be held liable for the future illegal
acts of third parties.
*® See, e.g., International Maven, Inc. v. McCauley, 687 F. Supp. 300
(U.S. Ct. of International Trade 1988) (government used Section
1595a(c) to seize English Leather toiletries).
15
Consider, for example, Busic v. United States, 446
U.S. 398 (1980). In that case, the defendants were
convicted of armed assault on federal officers under 18
U.S.C. $111. That statute also provided for enhanced
punishment when the assaulter used a deadly weapon.
Rather than use 18 U.S.C. §111, however, the
government sought to have the defendants sentenced
instead under the enhancement provision of 18 U.S.C.
§924(c), a more general statute authorizing the
imposition of enhanced penalties on defendants who use
firearms while committing any federal felony.
The Supreme Court refused to allow the government
to choose between statutes. Instead, this Court held that
‘“‘a more specific statute will be given precedence over a
more general one,” id. at 406, and determined that the
defendants could be sentenced only under the more
specific 18 U.S.C. §111. Jd. at 410.
The Sixth Circuit has recognized the same basic rule:
It is an elementary rule of statutory
construction that a specific provision controls when
the same subject matter is addressed by a more
general provision.
Metropolitan Detroit Area Hospital Services, Inc. v.
United States, 634 F.2d 330, 334 (6th Cir. 1980), cert.
denied, 450 U.S. 1031 (1981). In that case, the plaintiff, a
cooperative hospital organization, sought tax exempt
status under 26 U.S.C. §501(c)(3), which broadly grants a
tax exemption to any organization meeting certain
qualifications. The court ruled that the plaintiff could not
choose to invoke $501(c)(3) when a more specific
provision (26 U.S.C. §501(e)) provided tax exempt status
(under certain conditions) specifically to cooperative
hospital organizations such as the plaintiff.
The law is clear: a specific provision must take
precedence over a more general one.
16
2. The Court Below Failed To Consider This Basic Rule
Of Law.
The court below failed to address or consider the
basic principles discussed above. Instead, the court relied
upon two cases, One Lot Emerald Cut Stones v. United
States, 409 U.S. 232 (1972), and United States v. Dunn,
802 F.2d 646 (2d Cir. 1986), cert. denied, 480 U.S. 931,
107 S.Ct. 1568 (1987), for the proposition that the
Government was free to choose to exercise the general
forfeiture provision of Section 1595a(c) while ignoring the
specific forfeiture provision of Section 857(c). The two
cases relied upon by the court below are wholly
inapposite herein.
The court cited both cases for the proposition that,
in cases involving ‘‘civil and criminal forfeiture
provisions which apply to the same acts,’ the
‘Government may choose” which to apply. However,
those cases have nothing to do with the instant action
because both involved equally specific statutes, not
competing general and specific statutes. Accordingly, the
basic principle that ‘‘a specific provision controls when
the same subject matter is addressed by a more general
provision,” controlling in this case, is not pertinent to
the cases cited by the court below.
For example, in One Lot of Emerald Cut Stones v.
United States, the Court held that an acquittal under 18
U.S.C. §545 did not bar a civil forfeiture under 19 U.S.C.
§1497. Both statutes were equally specific, designed to
sanction the same activity: that is, bringing merchandise
into the country without declaring them.” In that case,
one statute did not apply generally to any merchandise
while the other applied specifically to jewelry, therefore
presenting a completely different situation than that
herein.
7° 409 U.S. at 237.
Me —
17
Similarly, the two statutes at issue in United States
v. Dunn also were equally specific. 21 U.S.C. §§853 and
881 both provided for forfeiture of funds used in drug-
related transactions. In that case, one statute did not
permit forfeiture of funds specifically in drug-related
transactions while the other generally permitted
forfeiture of funds in any unlawful transactions. Again,
United States v. Dunn is completely distinct from this
action.
3. Section 857(c) Applies Specifically To Drug
Paraphernalia, While Section 1595a(c) Applies
Generally To Any Merchandise.
Unlike the situations in One Lot of Emerald Cut
Stones v. United States and United States v. Dunn, in
the instant action the Government seeks to seize ‘‘drug
paraphernalia’’ under a general forfeiture provision which
expressly applies to any merchandise imported contrary
to any law, while ignoring the narrow forfeiture provision
which specifically applies to seizure of ‘drug
paraphernalia”’ imported in violation of Section 857. The
Government’s rationale is obvious: by using Section
1595a(c) rather than Section 857(c), it can avoid the
difficult task of gaining a conviction by proof beyond a
reasonable doubt under Section 857. However, under the
basic blackletter principles set forth in Busic v. United
States and Metropolitan Detroit Area Hospital Services,
Inc. v. United States, the Government does not have an
option; the narrow forfeiture provision must take
precedence.
4. Forfeiture Provisions Requiring Conviction Are Not
Uncommon.
Numerous state statutes have found a criminal
conviction prerequisite to a civil forfeiture, including
State v. Rossitto, 331 A.2d 385 (held a criminal
18
conviction prerequisite to the forfeiture of alleged
gambling paraphernalia), Baker v. State, 343 So. 2d 622,
cert. denied, 348 So. 2d 953 (trial court ordered to return
- seized money when defendants were not found guilty on
the criminal charge), Singleton v..Commonwealth, 208
S.W.2d 325 (Kentucky 1948) (State not entitled to sell
vehicle without a valid conviction), Blackshear v. State,
521 P.2d 1320 (Oregon 1974) (conviction of a person
arrested for transporting narcotics was held to be an
essential precondition for the forfeiture of the
vehicle involved), and Shipman v. DuPre, 73 S.E.2d 716
(South Carolina 1952) (conviction of boat owner for
trolling for shrimp without a license was found to be a
condition precedent to the confiscation and sale of the
boat). See also U.S. v. Wagner, 435 F. Supp. 850 (1978).
5. Cases Decided Under The Nationa! Prohibition Act
Confirm The Sixth Circuit’s Error.
The clearest example of the correct interpretation of
this type of legislation is found under the repealed
National Prohibition Act, previously found at 27 U.S.C.
§40. The relevant code section provided “The court upon
conviction of the person so arrested shall order the liquor
destroyed ...” (Emphasis added).
In numerous reported cases under the National
Prohibition Act, a criminal conviction was impracticable
due to the escape of the accused. The government, left
holding seized merchandise, was prohibited from seeking
forfeiture under 21 U.S.C. §40 and thereby attempted
forfeiture under other statutes which did not require a
previous conviction. These attempts on the part of the
government to use other general forfeiture statutes,
including internal revenue laws, were held invalid. See
United States v. Southern Agency Co., 66 F.2d 336 (10th
Cir. 1933) and United States v. One Reo Speed Wagon
(1927),9 PAD &C 265 (Federal District Court).
19
CONCLUSION
The judgment of the Sixth Circuit directly conflicts
with the decision of this Court in Hoffman Estates and
ignores basic blackletter law as set forth in Busic uv.
United States. The questions presented herein are of
substantial importance, the resolution of which will have
nationwide impact. Moreover, the opinion of the Sixth
Circuit is plainly in error. For these reasons, this Court
should grant Contempo’s Petition for Certiorari.
Respectfully submitted,
ROBERT T. VAUGHN, Counsel of Record
926 Stahlman Building
211 Union Street
Nashville, Tennessee 37201
(615) 242-2550
LARRY D. Woops
WoopDs AND Woops
121 17th Avenue So. -
Nashville, Tennessee 37203
(615) 259-4366
Attorneys for Petitioners
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APPENDIX A
Opinion of the Court of Appeals
for the Sixth Circuit
(Filed March 14, 1989)
Nos. 88-5320/87-6018
UNITED STATES COURT OF APPEALS
For the Sixth Circuit
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
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 Probucts, INC., )
Plaintiff-Appellee,
Vv.
RALPH WHITESIDE and BILL CRANE
(87-6018),
Defendants-Appellants. J
On APPEAL from the
United States District
Court for the Middle
District of Tennessee
On APPEAL from the
United States District
Court for the Middle
District of Tennessee
A2
Before: MERRIT, 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. §1595a(c) (“merchandise .. .
introduced in United States contrary to law ... may be
seized and forfeited’’), in combination with §857(a) of the
1986 statute making it ‘unlawful for any person ... to
import or export drug paraphernalia.” 21 U.S.C. $857(a).'
The government did not use the remedy of criminal
forfeiture provided in §857(c) of the drug paraphernalia
statute.
E.
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, §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 §$857(d).
‘See Appendix for the full text of the drug paraphernalia statute.
AT EO ere
o LE ROM 0A aE LIMA PAE EN MELONS A 6 hn Naa ty
A3
3. Even if §857 is constitutional, and even if
the shipments in question constitute “drug”
paraphernalia subject to forfeiture, §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
§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 (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 lawiul uses, then it is complaining
of vagueness. We find that claim unpersuasive in
this pre-enforcement 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, 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
A4
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, 124-125 (1978).
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 (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.
455 U.S. 497 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 (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
A5
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 §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
§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.
A6
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 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. §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. §1341; and travel in interstate
commerce ‘‘with intent to’’ do certain illegal acts, 18
.S.C. §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).
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.
A7
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, No. 3-87-0565, slip op. at 18 (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.”’ Jd.
at 12. Contempo does not appear to dispute the
qualifications of the witnesses to testify as experts on
this subject.
The five witnesses detailed a number of factors
which make the items unsuitable for smoking regular
tobacco but suitable for smoking marijuana: for example,
the extremely small bowls of the ceramic pipes equipped
with metal screens and “carburetor holes’’ in the bowl;
the conical shape of the cigarette holders which permits
hand-rolled cigarettes to be entirely consumed; and
multiple holes in the water pipes allowing more than one
person to smoke at the same time. They also testified
that marijuana smokers follow the custom of using these
items, but regular tobacco smokers do not.
The record demonstrates that the Court did not err
in finding that these items are associated exclusively
with the inhalation of drugs in the American drug
culture. Possession or importation of a large quantity of
such items for distribution, in itself, raises an inference
of guilty knowledge. The most devastating evidence of
A8
Contempo’s guilty knowledge, however, came when Mr.
Owensby, a knowledgeable expert, testified from
personal observation about the items sold in Contempo’s
retail store in Nashville. The store sold ‘‘coke spoons,”
“coke vials,” “coke straws,” and substances known to be
used primarily for cutting and diluting cocaine, as well as
many other items associated with the use of drugs. The
District Court concluded that Contempo’s retail outlet
was a “head shop” which sold drug gear and equipment.
From all of these circumstances, the Court made a
reasonable inference that Contempo had knowledge that
the shipment would be used in the drug trade.
Thus, the statute on its face, and as applied, is valid;
the evidence is sufficient; the District Court correctly
interpreted the element of intent found in $857(d); and
we find no reason to set aside the judgment of civil
forfeiture entered by the District Court on these
grounds.
C. Exclusivity of the Forfeiture Provision of §857(c)
Contempo’s last argument is that $857(c), providing
for “‘seizure and forfeiture upon the conviction of a
person”’ for an offense under $857(a) (emphasis added), is
the exclusive method of forfeiture of drug paraphernalia.
Contempo makes no argument that there were
procedural defects in the civil forfeiture proceeding, or
that the burden of persuasion was allocated improperly.
Although the parties advise us that there is no case
authority or legislative history on the specific issue of
whether §857(c) preempts the application of $1595a(c) to
imported drug gear, application of the general rule to
this issue poses no difficulty. Judge Higgins’ analysis is
correct:
A9
One of the most basic rules of statutory
construction is that where two statutes are capable
of co-existence, it is the duty of the courts, absent a
clearly expressed Congressional intention to the
contrary, to regard each as effective. Ruckelhaus v.
Monsanto Co., 467 U.S. 986, 104 S. Ct. 2862, 81 L.
Ed.2d 815. Neither 19 U.S.C. §1595a(c) nor 21
U.S.C. $857(c) contain any explicit limitation with
respect to the other....
The courts have recognized that civil and
criminal forfeiture provisions which apply to the
same acts can co-exist as alternative sanctions. One
Lot of Stones v. United States, 409 U.S. 232, 93 S.
Ct. 489, 34 L. Ed.2d 438 (1972) and United States v.
Dunn, 802 F.2d 646 (2d Cir. 1986). In cases where
Congress had provided both a criminal and civil
sanction, the courts have held that the Government
may choose which of those sanctions it may seek to
impose. In One Lot of Stones v. United States,
supra, the Supreme Court permitted the
Government to seek forfeiture of one lot of emerald
cut stones pursuant to 19 U.S.C. $1947, which
provided for the civil forfeiture of undeclared items,
even though the claimant had been indicted, tried
and acquitted of charges of violating 18 U.S.C.
§1545, the criminal forfeiture provision for
undeclared items, which contained its own criminal
forfeiture provision. The Court held that Congress
may impose both criminal and civil sanctions
respecting the same act or omission and allowed the
Government to seek civil forfeiture even after it had
failed to meet its burden of proof in its efforts to
pursue a criminal conviction and a criminal
forfeiture.
United States v. 57,261 Items of Drug Paraphernalia, 21-
23.
Al0
Moreover, we note that the purposes of the civil and
the criminal forfeiture provisions are quite different. The
customs forfeiture statute aims to prevent the
importation of goods deemed to be unlawful, and, we
believe, incorporates by reference $857 and its definition
of drug paraphernalia. It is well established that the full
panoply of Fourth Amendment protections does not
apply to imports inspected at the border. Almeida-
Sanchez v. United States, 413 U.S. 266 (1973). Once drug
paraphernalia have entered the country, of course, their
owners have all the procedura) protections of the
criminal forfeiture statute, backed up by the full force of
the Fourth Amendment. But the existence of those more
ample protections within the United States does not
foreclose Congress from deciding that it will impose a
less protective forfeiture scheme at the border. Further,
there is no reason for applying less protective seizure
and forfeiture rules to imported drug gear than to any
other unlawfully imported goods. It would be anomalous
for imported cars which do not meet our exhaust or
safety requirements to be subject to civil forfeiture but
for imported drug gear to be subject to the more
stringent criminal provisions reserved for domestic
goods.
Thus, the two statutory forfeiture remedies are rot
mutually exclusive. Accordingly, the judgment of the
District Court in No. 88-5320 is affirmed.
Il.
The second case on appeal, No. 87-6018, was brought
by Contempo against the government agents who seized
the shipments. Contempo brought the case after the
physical seizure of the goods but before the government
actually filed its forfeiture action in court. Contempo
sought an injunction against the seizure and damages
against the agents.
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All
The only question before us on this appeal concerns
qualified immunity from liability for damages: are the
agents entitled to qualified immunity because in
effecting the seizure they did not violate ‘‘clearly
established law’’ under the principles set out in Harlow
v. Fitzgerald, 457 U.S. 800 (1982), Mitchell v. Forsyth,
472 U.S. 511 (1985), and Anderson v. Creighton,
US. 107 S. Ct. 3034 (1987)?
Uncertain of the facts and the law applicable to the
new drug paraphernalia statute, Judge Higgins declined
to rule on the pleadings on the qualified immunity issue.
He apparently wanted to hear more facts and to
postpone a definitive ruling on qualified immunity until
after he had heard the government’s forfeiture action.
Government counsel took an immediate Anderson uv.
Creighton interlocutory appeal on behalf of its agents
from the court order declining to rule on the pleadings on
the qualified immunity issue.
The case is in a different posture before us on appeal
than it was before Judge Higgins. We now have the
benefit of his rulings and of our ruling on the merits on
the government’s forfeiture action. The facts are known.
Neither Judge Higgins nor this court has found any
illegality in the seizure and forfeiture of the shipments.
We have upheld the constitutionality of $857. We have
agreed with the District Court’s application of $857 to
the facts of the case. We have agreed that the civil
forfeiture provisions of §1595a may be used to effectuate
the seizure and forfeiture of imported drug paraphernalia
and that criminal forfeiture under $857 is not the
exclusive procedure for such items.
No purpose would now be served by a remand to the
District Court for application of the doctrine of qualified
immunity. It is obvious at this stage that the doctrine
Al2
applies to protect the agents from damages because we
have found that they not only did not violate a ‘‘clearly
established law’’—they violated no law at all. They acted
properly under a constitutional statute to effuctuate a
civil forfeiture under the customs statute.
Accordingly, in light of our ruling in No. 88-5320, the
order in No. 87-6018 on qualified immunity is reversed
and the case remanded with instructions to dismiss the
claim against the defendants for damages.
Al13
Appendix
§857. Use of Postal Service for sale of drug
paraphernalia
(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.
(b) Penalties
Anyone convicted of an offense under subsection (a)
of this section shall be imprisoned for not more than
three years and fined not more than $100,000.
(c) Seizure and forfeiture
Any drug paraphernalia involved in any violation of
subsection (a) of this section shall be subject to seizure
and forfeiture upon the conviction of a person for such
violation. Any such paraphernalia shall be delivered to
the Administrator of General Services, General Services
Administration, who may order such paraphernalia
destroyed or may authorize its use for law enforcement
or educational purposes by Federal, State, or local
authorities.
Al4
(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). [21 U.S.C.A. $801 et seq.]
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 [sic] 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;
Ald
(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.
Al6
_(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
primarily intended for use with tobacco products,
including any pipe, paper, or accessory.
ER
“OS. 2 torh vane tara cemichd BD PEARS Bre LE
———aOOooo eae:
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APPENDIX B
Memorandum and Order of the
UNITED STATES DISTRICT COURT
(Dated March 11, 1988)
No. 3-87-0656.
UNITED STATES DISTRICT COURT
M.D. Tennessee,
Nashville Division.
UNITED STATES OF AMERICA,
v.
57,261 ITEMS OF DRUG PARAPHERNALIA.
United States brought action seeking forfeiture for
three shipments consisting of over 57,000 cigarette
holders, ceramic pipes and water pipes. The District
Court, Higgins, J., held that: (1) three shipments
contained “drug paraphernalia’ and were therefore
subject to civil forfeiture, and (2) three shipments were
subject to seizure under general civi! forfeiture statute
despite claim that criminal forfeiture statute for drug
paraphernalia provided exclusive method for forfeiture.
Items condemned and forfeited.
l. Forfeitures
In rem civil forfeiture proceeding, pursuant to
general forfeiture statute, Government must prove that
there is probable cause to believe that items in question
are subject to forfeiture under that provision, and burden
Al8
then shifts to claimant who must prove that items are
not subject to forfeiture; showing of probable cause is
made if there is reasonable ground, supported by less
than prima facie evidence but more than mere suspicion,
for belief that items are subject to forfeiture. Tariff Act
of 1930, §596(c), as amended, 19 U.S.C.A. §1595a(c).
2. Drugs and Narcotics
Three shipments consisting of over 57,000 cigarette
holders, ceramic pipes, and water pipes were “drug
paraphernalia’ and therefore subject to civil forfeiture;
Government provided substantial convincing evidence
that primary use for items contained in shipments was to
introduce controlled substances into body. Tariff Act of
1930, §596(c), as amended, 19 U.S.C.A. §$1595a(c); Anti-
Drug Abuse Act of 1986, §1822, 21 U.S.C.A. $857.
3. Drugs and Narcotics
Three shipments consisting of over 57,000 items of
drug paraphernalia were subject to seizure under general
civil forfeiture statute, which allows forfeiture of any
merchandise which is introduced or is attempted to be
introduced into United States contrary to law, despite
claim that criminal forfeiture statute for drug
paraphernalia provided exclusive method for forfeiture.
Tariff Act of 1930, §596(c), as amended, 19 U.S.C.A.
§$1595a(c); Anti-Drug Abuse Act of 1986, $1822, 21
U.S.C.A. §857.
Joe B. Brown, U.S. Atty., Harold B. McDonough,
Asst. U.S. Atty., Nashville, Tenn., for plaintiff.
Robert T. Vaughn, Larry D. Woods, Nashville,
Tenn., for defendant. '
| :
5
;
a
4
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MEMORANDUM
HiGGIns, District Judge.
On April 15, 1987, Contempo Products, Inc.,
(Contempo) filed civil action No. 3-87-0292 against Ralph
Whiteside, Bill Crane and the Department of the
Treasury, Customs Service of the United States of
America (the Customs Service). Contempo alleged that
Mr. Whiteside, Mr. Crane, and the Customs Service
seized Contempo’s property, three shipments of ceramic
cigarette holders, ceramic pipes and water pipes, in
violation of Contempo’s due process rights. Contempo
simultaneously filed a motion for a_ preliminary
injunction. Jurisdiction was alleged on the basis of 28
U.S.C. $1331.
On April 27, 1987, Mr. Whiteside, Mr. Crane and the
Customs Service filed a motion to dismiss, challenging
the subject matter jurisdiction, in personam jurisdiction
and sufficiency of process and alleging a failure to state
a claim. Then, on April 30, 1987, the plaintiff filed an
amendment to the complaint, adding the United States
as a party defendant and alleging jurisdiction on the
basis of the Tucker Act, 28 U.S.C. §$1346(a) and the All
Writs Act, 18 U.S.C. §1651. On May 21, 1987, a hearing
was held on the motion to dismiss. At that time,
Contempo’s counsel dismissed all claims against the
Customs Service, leaving the two individual customs
agents and the United States as defendants in civil
action No. 3-87-0292. On June 18, 1987, the Court
entered an order denying the motion to dismiss. On the
same day, the Court entered an order consolidating the
preliminary injunction for hearing with the trial on the
merits.
A20
On July 13, 1987, Mr. Crane and Mr. Whiteside filed
a motion to dismiss the individual defendants on the
ground of qualified immunity. On August 19, 1987, the
Court entered an order denying that motion.
Also, on August 19, 1987, the United States (the
Government) filed the action before this Court, civil
action No. 3-87-0656, United States of America v. 57,261
Items of Drug Paraphernalia, Including Ceramic Pipes,
Holders and Water Pipes, for forfeiture of the
merchandise, which is also the subject of civil action No.
3-87-0292, i.e., the three shipments of ceramic cigarette
holders, ceramic pipes and water pipes which were
imperted by Contempo and later seized by the
Government.
On August 26, 1987, the defendants in civil action
No. 3-87-0292 filed a motion to dismiss or stay the trial
of that action until judgment was entered in this action.
Then, on August 27, 1987, Mr. Whiteside and Mr. Crane
filed a notice of appeal from the order entered in civil
action No. 3-87-0292, denying their motion to dismiss on
the basis of qualified immunity. They also filed a motion
to stay further proceedings against them in civil action
No. 3-87-0292, while their appeal was pending.
A hearing on the motion to stay the trial of civil
action No. 3-87-0292 was held on August 28, 1987. At
the hearing, the attorneys agreed to stay civil action No.
3-87-0292 and to proceed to trial on this forfeiture action,
No. 3-87-0656. This action was tried on August 31, 1987,
September 1, 1987, and September 3, 1987, without the
intervention of a jury.
For the reasons set forth in this memorandum, the
Court finds that the three seized shipments of cigarette
holders, ceramic pipes and water pipes are drug
paraphernalia as defined by 21 U.S.C. §857. The Court
A21
further finds that these ceramic cigarette holders,
ceramic pipes and water pipes were properly seized
pursuant to 19 U.S.C. §1595a(c). Therefore, the
defendant, 57,261 items of drug paraphernalia, is
condemned and forfeited to the Government.
I,
In eurly 1987, a shipment of ceramic pipes and
ceramic cigarette holders, manufactured by the Niki
Glass Company, Inc., of Japan, was imported into the
United States by Contempo. Although the shipment was
unloaded at the port of Seattle, Washington, the items
were kept in sealed containers until they reached
Nashville, Tennessee, which served as the port of entry.
On February 25, 1987, Customs agents in Nashville
were alerted by the Customs Service national computer
that items with the tariff number of the items imported
by Contempo might be prohibited items of drug
paraphernalia as defined by 21 U.S.C. $857, a provision
of the Anti-Drug Abuse Act of 1986."
On February 26, 1987, Customs agents in Nashville
examined the ceramic pipes and ceramic cigarette holders
which made up the initial shipment imported by
Contempo. Samples of those items were sent to the
Customs Service Regional Counsel’s Office in New
Orleans, Louisiana. On March 2, 1987, Customs agents
in Nashville received a copy of the Anti-Drug Abuse Act
of 1986. Then, on March 5, 1987, Customs agents went
to the offices of Mr. V. Alexander, the import broker for
Contempo, and informed him that the shipment of
ceramic pipes and cigarette holders was being detained
while a determination was made as to whether these
' P.L. 99-570. 100 Stat. 3207 (1986).
A22
items were drug paraphernalia imported in violation of
the Anti-Drug Abuse Act. At that time, the Customs
agents were informed that two additional imported
shipments of similar items were expected to arrive in
Nashville shortly. The import broker provided the agents
with copies of the invoices for the two subsequent
shipments. The invoices showed that one of those
shipments consisted of water pipes imported from Japan,
while the other shipment consisted of ceramic water
pipes and ceramic cigarette holders and was similar to
the shipment which had already arrived.
Customs special agent Jerry Owensby, who had ten
years’ experience as an agent for the Drug Enforcement
Administration, was sent to observe the environment in
which Contempo sold the detained items. Mr. Owensby
went to Contempo’s offices on McNally Drive in
Nashville, Tennessee, and was told by the receptionist
that he could not examine the products in their
showroom because he was not a retail dealer but that he
could visit Contempo’s retail store, Jean Marie’s,’? on
Elliston Place in Nashville. Mr. Owensby proceeded to
visit and observe the Elliston place store. He then
reported his observations to Mr. Ralph Whiteside, the
Port Director for U.S. Customs, Nashville.
* The name for this store has since been changed to the Elliston Place
Pipe and Tobacco Shop. The ownership of the shop, however, has not
changed. At trial, Mr. Rowland testified that Contempo did not own
this retail store. The evidence showed, however, that Mr. Rowland
was the president of both Contempo and the retail store and that the
other officers of the retail store were also associated with Contempo.
In addition, the evidence showed that Contempo and the retail store
were both owned by trusts which had the same settlor and the same
trustee. In light of these facts and the fact that Mr. Owensby was
informed by a Contempo employee that the store was Contempo’s
retail outlet, the Court will consider the store as if it were
Contempo’s retail store. In addition, because the store has changed
names during the course of events leading to this action, the Court
will, for the purposes of clarity, refer to the shop as Contempo’s retail
store.
A23
Agent Owensby reported that he saw a plastic
marijuana plant in the _ receptionist’s office at
Contempo’s offices. He also reported that Contempo’s
retail store sold many products, such as the ceramic
pipes and cigarette holders which were contained in the
shipment, as well as water pipes, scales, mirrors, straws
and razors, which he believed were intended for use with
controlled substances. Mr. Owensby told Mr. Whiteside
that Contempo’s retail store appeared to be a “head’”’
shop, a store which sells drug paraphernalia to drug
users. Mr. Owensby also informed Mr. Whiteside that, in
his opinion, based on his experience in drug law
enforcement, the ceramic pipes, ceramic cigarette holders
and water pipes were used exclusively for introducing
controlled substances, particularly marijuana, into the
body.
On March 18, 1987, Mr. Whiteside during a
telephone conversation with Attorney Mary Cupp, from
the Regional Counsel’s Office, and Attorney Joe Taranto,
a Fines, Penalties and Forfeitures Officer, also from the
Regional Counsel’s Office, discussed whether the
shipments should be seized. He was advised by Ms.
Cupp and Mr. Taranto that the items in the shipments
did qualify as drug paraphernalia and that they could be
seized and forfeited. The Regional Counsel’s Office
advised Mr. Whiteside that he should proceed to seize
and forfeit the shipments pursuant to 19 U.S.C.
$1595a(c), another provision of the Anti-Drug Abuse Act
of 1986.
Mr. Whiteside considered the information that he
had received from Ms. Cupp, Mr. Taranto, Mr. Owensby
and others and decided to commence forfeiture
proceedings.
A24
On March 19, 1982, the items in the first shipment
were seized and forfeiture proceedings were commenced.
On that date, Mr. Whiteside sent notice to the V.
Alexander Company that the shipment was being seized.
The second shipment which contained water pipes
arrived on March 20, 1987. Mr. Whiteside sent agents to
inspect the shipment and instructed them that if the
shipment matched the invoice furnished by the import
broker, the shipment was to be seized for forfeiture. The
shipment did match the invoice, and the agents seized
the second shipment on March 20, 1987.
The third shipment, which contained ceramic pipes
and ceramic cigarette holders identical to those contained
in the first shipment, arrived on March 26, 1987. Again,
Mr. Whiteside sent Customs agents to inspect the
shipment and instructed them that if the contents mated
the invoices furnished to them by the V. Alexander
Company, the shipment was to be seized for forfeiture
proceedings. The contents of the shipment matched the
invoice, and the agents seized the third shipment on
March 26, 1987.
All three shipments were combined into one seizure
for the purposes of the forfeiture proceedings, which
were commenced by the Customs Regional Office in New
Orleans, Louisiana. Contempo was notified of the seizure
by the Customs Office and filed a claim to the seized’
property. The proceedings for forfeiture were then
commenced in this Court.
-_——__
A25
II.
Contempo contends that the ceramic cigarette
holders, ceramic pipes and water pipes are not drug
paraphernalia as defined by 21 U.S.C. §857, which
provides:
(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.
(b) Penalties
_Anyone convicted of any offense under
subsection (a) of this section shall be imprisoned for
not more than three years and fined not more than
$100,000.
(c) Seizure and forfeiture
Any drug paraphernalia involved in any
violation of subsection (a) of this section shall be
subject to seizure and forfeiture upon the conviction
of a person for such violation. Any such
paraphernalia shall be delivered to the
Administrator of General Services, General Services
Administration, who may order such paraphernalia
destroyed or may authorize its use for law
enforcement or educational purposes by Federal,
State, or local authorities.
A26
(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). [21 U.S.C.A.
$801 et seq.] 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 marijuana 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;
oe
A27
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chiller;
(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
(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
primarily intended for use with tobacco products,
including any pipe, paper, or accessory.
Contempo attempted to establish through its
witnesses, Mr. Benjamin Rapaport, an expert on tobacco
use and tobacco smoking devices, Mr. Takefumi Niki, the
President of Niki Glass Co., Ltd., and Mr. Richard
Rowland, the President of Contempo that the items in
the three seized shipments are primarily intended for use
with tobaccco and are, therefore, exempt from the
provisions of 21 U.S.C. §857 in accordance with 21
U.S.C. §857(f). Mr. Rapaport testified that ceramic pipes,
ceramic cigarette holders and water pipes, like those
contained in the seized shipments, are devices which
have been used throughout history for smoking tobacco
products. Mr. Rapaport also testified that these items
are part of a new trend in the tobacco industry; he stated
that the water pipes are becoming popular because they
provide the least hazardous means of tobacco inhalation
and that the smaii ceramic pipes are becoming popular
among women and people who wish to smoke less. Mr.
Rapaport also stated that such items are sometimes
purchased by collectors of smoking devices, a hobby
which he says is becoming more common. Mr. Rapaport
further noted that items similar to the ceramic cigarette
holders, ceramic pipes and water pipes in the shipments
are displayed at the Retail Tobacco Dealers Association
trade shows. Finally, Mr. Rapaport opined that the
ceramic cigarette holders, ceramic pipes and water pipes,
are primarily intended for use with tobacco.
A29
Mr. Niki, the President of the company that
manufactures the ceramic pipes and ceramic cigarette
holders contained in the seized shipments, testified that
he manufactured these items for use with tobacco. Mr.
Richard Rowland then testified that Contempo imports
the ceramic cigarette holders, ceramic pipes and water
pipes for use with tobacco. He pointed out that these
items are, in fact, marketed with descriptive literature
which expressly states that they are intended for use
with tobacco products. He further testified that
Contempo’s Elliston Place retail store carries these
products for use with tobacco products, such as natural
tobacco. Mr. Rowland also testified that the products
sold by the Elliston Place retail store that Mr. Owensby
identified as drug paraphernalia were sold for use with
legitimate products such as snuff, natural tobacco, and
vitamins, and were not sold for use with controlled
substances.
The Government, however, provided substantial and
convincing evidence that the primary use, in this
country, for items like the ceramic cigarette holders,
ceramic pipes and water pipes contained in the seized
shipments is to introduce controlled substances into the
body. Mr. William Hopkins, a former New York City
policeman with experience in undercover work, who has
participated in research conducted in New York City
about the methods of using controlled substances, Mr.
Howard Morris, an agent for the Tennessee Bureau of
Investigation who specializes in the investigation of
narcotics cases, and Mr. Phillip Taylor, a police officer
with the Metropolitan Nashville Police Department who
specializes in narcotics investigations, all testified that
they had seen items like the seized items used frequently
and exclusively for the purpose of inhaling controlled
A30
substances, primarily marijuana. All three of these
experts opined that these items were intended for the
purpose of inhaling controlled substances.
In addition, Mr. Hopkins, Mr. Morris, Mr. Taylor,
Mr. Owensby and Mr. Tim Harden, a_ tobacconist,
testified that there are numerous factors which make the
items in this case particularly suited to the inhalation of
controlled substances and not to the inhalation of
tobacco products. The bowls in the seized ceramic pipes
are very small and will not hold enough tobacco to
satisfy the average tobacco smoker. However, much
smaller amounts of marijuana are needed to obtain the
desired results of smoking marijuana. Therefore, these
ceramic pipes are suitable for the average marijuana
smoker. In addition, the pipes are easily washable and
will permit a marijuana smoker to wash out the dark,
sticky residue which is generated when marijuana ‘is
smoked. Furthermore, the pipes are equipped with a
metal screen which permits marijuana to be smoked
without being drawn into the mouth of the person
smoking it. Mr. Tim Harden, the tobacconist, testified
that a metal screen such as those in these ceramic pipes,
would not be conducive to smoking tobacco products
because it would cause condensation and create a wet
smoke, and because it would make the already small
- bowl even smaller. Finally, some of the ceramic pipes
have a hole in the bowl with a removable rubber stopper.
That hole, known in the street vernacular as a carburetor
hole, permits a marijuana smoker to inhale and fill his
lungs with the marijuana smoke. The carburetor hole is
not useful to tobacco smokers because the tobacco
smoker does not seek to fill his lungs the way a
marijuana smoker does.
A3l
According to these witnesses, the ceramic cigarette
holders are also particularly suited to smoking
marijuana. They are easily washable to permit the
marijuana smoker to wash away the sticky resin left by
burning marijuana. Moreover, they are conical in shape
and are, therefore, particularly useful for holding hand-
rolled cigarettes, a form in which marijuana is frequently
consumed, but are not useful for holding conventional
commercially-rolled cigarettes, a form in which tobacco is
frequent consumed. Finally, the cigarette holders permit
the smoker to consume the entire cigarette, a practice
common among marijuana smokers because of the cost
of marijuana, but which is not common among tobacco
smokers. Items such as these, which permit a marijuana
smoker to smoke a marijuana cigarette which has
become too small to hold, are described in the street
vernacular as roach clips.
Finally, these witnesses also testified that the water
pipes are also particularly suited for smoking marijuana.
Marijuana burns much better than tobacco, and the
water cools the marijuana smoke. Although water pipes
are used for smoking tobacco in other countries, they are
not used for smoking tobacco in the United States
because tobacco in this country is cured and processed
and is, therefore, not so strong as to require filtering. In
addition, several of the water pipes confiscated had more
than one opening to allow more than one person to
smoke the burning substance at the same time. This is a
practice common among marijuana smokers, but not
among tobacco smokers. Mr. Hopkins and Mr. Harden
did concede that the water pipes in the seized shipments
have wooden bowls which are more suitable for tobacco
than marijuana, but testified that these bowls are easily
exchanged for bowls of other substances.
. t
A32
At trial, Mr. Owensby also testified about his site
visit to Contempo’s Elliston Place retail store. Mr.
Owensby testified that, in addition to tobacco products
and tobacco pipes, the retail store sold water pipes, small
ceramic pipes, ceramic cigarette holders, roach clips,
pornographic pipes, hashish pipes, straws, razor blades,
cocaine vials, cocaine spoons and scales. Mr. Owensby
conceded that some of the items were displayed with
literature indicating that they were manufactured for use
with tobacco and snuff but testified that, in his
experience, all these items are associated with the drug
culture and are used in conjunction with controlled
substances. Mr. Owensby further testified that he
believed that most of the items sold by the retail store
were drug paraphernalia. Mr. Morris, who had visited the
Elliston Place retail store on a number of occasions als
testified that, in his opinion, the retail store is a “head”
shop selling drug paraphernalia, such as roach clips,
cocaine spoons, cocaine vials, cocaine mirrors and cocaine
kits.
[1] In an in rem civil forfeiture proceeding, pursuant
to 19 U.S.C. §1595a, the Government must prove that
there is probable cause to believe that the items in
question are subject to forfeiture under that provision.
The burden then shifts to the claimant who must prove
that the items are not subject to forfeiture. United
States v. “Monkey,” 725 F.2d 1007, 1010 (5th Cir. 1984).
A showing of probable cause is made if ‘there is a
reasonable ground, supported by less than prima facie
evidence but more than mere suspicion, for the belief
that the items are subject to forfeiture. Id.
[2] In this case, the Government is required to show
probable cause for its belief that the items in question
are drug paraphernalia. The Court finds that the
A33
Government more than met its burden. In making the
determination to seize the ceramic pipes and the ceramic
cigarette holders for the purpose of forfeiture, Mr.
Whiteside had the benefit of (1) 21 U.S.C. §857, which
specifically names ceramic pipes and roach clips as
possible items of drug paraphernalia, (2) the advice of
attorneys with the Customs Service who had examined
the ceramic pipes and ceramic cigarette holders and
determined that they were drug paraphernalia, (3) the
opinions of agents, including Mr. Owensby, familiar with
drug use and drug paraphernalia, who had examined the
ceramic pipes and ceramic cigarette holders and opined
that they were drug paraphernalia and (4) the opinion of
Mr. Owensby, who had visited Contempo’s office and
Contempe’s retail store, and opined that the items
contained in the three shipments were sold in a ‘‘head”’
shop.
The decision to seize the shipments was made on
March 18, 1986, two days before the shipment of water
pipes arrived in Nashville, on March 20, 1986. Therefore,
the decision to seize the water pipes was made before the
Customs officials had seen and inspected those pipes.
However, in making the decision to seize the water pipes,
Mr. Whiteside had (1) the benefit of 21 U.S.C. §857,
which specifically names water pipes as a possible item
of drug paraphernalia, (2) the opinion of Mr. Owensby,
who had visited Contempo’s offices and Contempo’s
retail store, and opined that the items contained in these
shipments were sold at a ‘“‘head”’ shop and (3) the opinion
of Mr. Owensby that some of the items sold in
Contempo’s retail store, including the water pipes, were
drug paraphernalia.
The Court concludes that the Government had much
more than a mere suspicion that all three of the items,
the ceramic pipes, ceramic cigarette holders, and water
A34
pipes, were drug paraphernalia_and had more than
sufficient probable cause to initiate these forfeiture
proceedings.
The Court further finds that the claimant had failed
to meet its burden of proving that the seized items are
not drug paraphernalia. Mr. Rapaport provided
information about the history and traditional uses of
these items, about their collectability, about their
suitability for tobacco, and about their potential uses.
However, Mr. Rapaport provided no substantial or
convincing evidence to refute the testimony of numerous
expert Government witnesses that in their experience, in
this country, these items are used primarily for the
inhalation of controlled substances. This is also true of
Mr. Niki’s testimony. Although Mr. Niki testified that
he manufactures the ceramic pipes and cigarette holders
for use with tobacco and that in Japan such items are
used for smoking tobacco, Mr. Niki had no knowledge of
how such products are used in this country. The Court
gives little credit to Mr. Rowland’s | self-serving
testimony.’ However, even Mr. Rowland, while testifying
that he imported these products for use with tobacco and
that these products were suitable for use with tobacco,
failed to provide any credible evidence to refute the
Government’s contention that in today’s society these
products are used solely for inhaling controlled
substances.
*The Court notes that Mr. Rowland testified that he had no
knowledge that Manitol, a baby laxative, which was sold in
Contempo’s retail store, is used as a cutting agent for cocaine.
However, Mr. Morris, a governmental witness, testified that Manitol
is commonly used for diluting cocaine. In addition, Mr. Rowland did
not offer any testimony that would explain why Contempo’s retail
store, which Mr. Rowland contends is a legitimate tobacco shop,
offered Manitol for sale. Moreover, the Court cannot conceive of any
logical reason for a tobacco store to carry a baby laxative such as
Manitol. Therefore, the Court finds that Mr. Rowland’s credibility is
suspect.
A35
The Court has considered all the relevant criteria set
forth in 21 U.S.C. $857(e), including the descriptive
material included with the seized items, the manner in
which the items were displayed for sale at Contempo’s
retail store, the fact that Contempo’s retail store sold
legitimate tobacco products, the scope of the legitimate
uses of the items in the community, and the expert
testimony concerning the items’ use, in determining
whether these items are drug paraphernalia as defined by
21 U.S.C. §857. The Court finds that the proof
overwhelmingly establishes that the primary use, in this
community, for ceramic pipes, ceramic cigarette holders
and water pipes like those in the seized shipments is to
introduce controlled substances into the body. The Court
further finds that there are minimal, if any, legitimate
uses for such items in this community. The Court
concludes, therefore, that in this country these items are
intended for use with controlled substances and are drug
paraphernalia as defined by 21 U.S.C. §857.
Ill.
[3] Contempo further contends that even if these ~
items are drug paraphernalia as defined by 21 U.S.C.
§857, the shipments are not subject to seizure under 19
U.S.C. §1595a(c), a general civil forfeiture provision,
because 21 U.S.C. §857 contains its own criminal
forfeiture provision, 21 U.S.C. §857(c). 19 U.S.C.
§1595a(c) provides:
(c) Any merchandise that is introduced or
attempted to be introduced into the United States
contrary to law (other than in violation of section
1592 of this title) may be seized and forfeited.
While 21 U.S.C. $857 provides:
(c) Seizure and forfeiture
A36
Any drug paraphernalia involved in any
violation of subsection (a) of this section shall be
subject to seizure and forfeiture upon the conviction
of a person for such violation. Any such
paraphernalia shall be delivered to _ the
Administrator of General Services, General Services
Administration, who may order such paraphernalia
destroyed or may authorize its use for law
_ @nforcement or educational purposes by Federal,
State, or local authorities.
Contempo argues that 21 U.S.C. §857 provides the
exclusive method for the forfeiture of items which are
imported into this country in violation of 21 U.S.C.
§857(a).
Both 21 U.S.C. §857 and 19 U.S.C. §1595a(c) were
enacted as part of the Anti-Drug Abuse Act of 1986. The
Anti-Drug Abuse Act of 1986 is an omnibus bill and,
therefore, there is little legislative history which deals
specifically with either of the provisions at issue in this
case. However, it is clear that Congress intended to
enact a comprehensive law, designed to strike at drug
use through all available means. Mr. Quillen, a
Representative from Tennessee, described the bill as
follows:
HS®: 5484, the Omnibus Drug Enforcement,
Education and Control Act of 1986, is a
comprehersive bipartisan response to the severe
substance and drug abuse problem which afflicts our
country...
The bill provides new funds and new weapons
for the war on substunce and drug abuse and drug
related crime. It is a major step forward in our
national effort to turn the tide against the drug-
A37
pushers and drug traffickers who have for years
flooded the country and sold them at great profit to
corrupt, injure and kill our people.
- This bill is a tough bill. I believe it signals the
beginning of a forceful counteroffensive against the
drug underworld and this is a counteroffensive we
must win...
Drug dealers, drug traffickers, drug users,
beware. This Congress means business and the
passage of this measure and this rule will bring all
the efforts of this Federal Government into play to
do what muet be done to save lives and to eradicate
this cancer which is growing and growing upon us.
(emphasis added)
H.R. 5484, 99th Cong., 2nd Sess., 132 Cong. Rec. H6520
(1986). One of the weapons which the Congress relies
upon in its war against drugs is the U.S. Customs
Service. As Mr. Quillen expresses, one of the highlights
of the bill is that it ‘strengthens the U.S. Customs drug
enforcement capability.”’ Id.
The legislative history makes it clear that Congress
also intended to level an attack on the drug
paraphernalia industry. Mr. Levine, a Representative
from California, who introduced the amendment, which
became codified as 21 U.S.C. $857, stated:
The drug~ paraphernalia industry both glamorizes
the use of illegal drugs and contributes to the
problem of drug abuse...
The open sale of drug paraphernalia misleads
many young Americans to believe that drugs are
acceptable to use. Advertisements in catalogs
touting the paraphernalia ignore the _ serious
consequences of drug abuse-health risks, addiction,
A38
progression to stronger drugs—and instead sell the
idea that drug use is a normal and acceptable
activity. A further danger, again especially for
young people is the idea that if drug paraphernalia
can be openly sold ... then society is not serious
about enforcing drug laws, that the health risks are
not really so great and that the legal consequences
are not serious.
H.R. 5484, 99th Cong. 2d Sess. 132 Cong. Rec. H6656
(1986). Mr. Rockefeller, a Senator from West Virginia,
also discussed the problem of the sale of drug
paraphernalia:
To the extent that we are unsuccessful in
interdicting the supply of drugs, we have to make
the distribution and sale of them as difficult as
possible and one of the gaping holes in the existing
law is that, ironically, as local ordinances have
succeeded in shutting down ‘“‘head shops’’—that is
those stores in which drug paraphernalia is sold—it
has remained possible for those who wish to
maintain their profit in the sale of these items to do
so by shipping their products interstate, even using
the mails to do so. This legislation contains as one
of its important points the fact that it was very
closely adapted to the model act adopted by the
Drug Enforcement Administration, a mail order
drug paraphernalia control act, which will outlaw the
sale and shipment of drug paraphernalia, these
items which will enhance or aid in the use of
dangerous controlled substances.
S. 2878, 99th Cong., 2nd Sess., 132 Cong. Rec. S13758
(1986).
A39
The Congress which enacted the provisions of the
Anti-Drug Abuse Act of 1986 clearly intended to use all
available methods to crack down on drug-related
business, including the drug paraphernalia business. The
U.S. Customs Service provided Congress with a valuable
- tool to use in pressing its war against drugs. Congress
apparently recognized the usefulness of this tool and —
enacted provisions which utilized the forfeiture powers of
the U.S. Customs Service. Two of the provisions which
provided for forfeiture were the general provision of 19
U.S.C. $1595a(c) and the specific — of 21 U.S.C.
§857/(c).
One of the most basic rules of statutory construction
is that where two statutes are capable of co-existence, it
is the duty of the courts, absent a clearly expressed
Congressional intention to the contrary, to regard each
as effective. Ruckelshaus v. Monsanto Co., 467 U.S. 986,
104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). Neither 19 U.S.C.
§1595a(c) nor 21 U.S.C. §857(c) contain any explicit
| limitation with respect to the other. 19 U.S.C. §1595a(c)
provides broad seizure authority for any merchandise
imported contrary to law. Its only limitation concerns
violations of 19 U.S.C. $1592. By comparison, 21 U.S.C.
§857 contains a criminal penalty provision which includes
forfeiture. This provision requires forfeiture upon a
conviction of a violation of 21 U.S.C. §857(a). However, it
does not contain any language making its provisions the
exclusive remedy. Although the statute does not
specifically provide for forfeiture unrelated to criminal - -
action, it does not exclude the possibility of a separate
and individual civil forfeiture.
The courts have recognized that civil and criminal
forfeiture provisions which apply to the same acts can
) co-exist as alternative sanctions. One Lot Emerald Cut
Ss Canc tS ee
ee
A40
Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34
L.Ed.2d 438 (1972) and United States v. Dunn, 802 F.2d
646 (2d Cir. 1986). In cases where Congress had provided
both a criminal and civil sanction, the courts have held
that the Government may choose which of those
sanctions it may seek to impose. In One Lot Emerald
Cut Stones v. United States, supra, the Supreme Court
permitted the Government to seek forfeiture of one lot of
emerald cut stones pursuant to 19 U.S.C. $1497, which
provided for the civil forfeiture of undeclared items, even
though the claimant had been indicted, tried and
acquitted of charges of violating 18 U.S.C. $545, the
criminal forfeiture provision for undeclared items, which
contained its own criminal forfeiture provision. The
Court held that Congress may impose both criminal and
civil sanctions respecting the same act or omission and
allowed the Government to seek civil forfeiture even
after it had failed to meet its burden of proof in its
efforts to pursue a criminal conviction and a criminal
forfeiture.
In United States v. Dunn, supra, the Second Circuit
considered the relationship between civil and criminal
forfeiture provisions. In that case, Mr. Dunn was
brought to trial on the charge of possessing cocaine with
intent to distribute. The United States had applied for
the criminal forfeiture of two sums of currency—$4,000
and $28;500—which had allegedly been tendered by Mr.
Dunn to Drug Enforcement Administration agents. Mr.
Dunn was convicted and the jury found that the $4,000
was subject to forfeiture but that the $28,500 was not.
Mr. Dunn filed a motion for a new trial which was
granted by the District Court and affirmed by the
Appellate Court. While the order granting a new trial
was being appealed, the Government instituted civil
forfeiture proceedings against the sum of $28,500
eta
a ita IE TINS te ens gen
A41
pursuant to 21 U.S.C. §881. Mr. Dunn moved to enjoin
such action. The District Court granted Mr. Dunn’s
motion for a permanent injunction. The Government
appealed and the Appellate Court reversed the District
Court. The Appellate Court found that it was not the
intent of Congress that the remedies of criminal and civil
forfeiture be mutually exclusive and permitted the
government to pursue a civil forfeiture.
In this case, there is no indication that Congress
intended the criminal forfeiture provision of 21 U.S.C.
§857(c) to be the exclusive provision for the forfeiture of
drug paraphernalia imported into this country contrary
to law. The civil forfeiture provision of 21 U.S.C.
§1595a(c) does not conflict with the criminal forfeiture
provision of 21 U.S.C. $857(c). In fact, these provisions
compliment one another. The provisions permit the U.S.
Customs Service to use both civil and criminal forfeiture
powers to combat the influx of drugs, and those items
which encourage and enhance drug use, into this
country.
The Court concludes that the provisions of 19 U.S.C.
$1595a(c), which provide for the forfeiture of any
merchandise that is introduced or attempted to be
introduced into the United States contrary to law, is
applicable to drug paraphernalia, as defined by 21 U.S.C.
$857, introduced into this country in violation of 21
U.S.C. $857(a). The Court has already determined that
the seized items are drug paraphernalia, as defined by 21
U.S.C. §857. Therefore, the Court finds that these items
were properly seized in accordance with 19 U.S.C.
$1595a(c). These 57,261 items of drug paraphernalia are
hereby condemned and forfeited to the United States of
America.
A42
IV.
Contempo also raises several constitutional claims.
First, in its Answer, Contempo contends that the
government instituted these forfeiture proceedings under
an unconstitutional statute as alleged in Contempo
Products, Inc. v. Ralph Whiteside, et al, Civil Action No.
3-87-0292. As stated above, Civil Action No. 3-87-0292 is
a separate action which was stayed by the agreement of
the parties. The Court rejects Contempo’s attempt to
incorporate by reference the allegations made in Civil
Action No. 3-87-0292 in its answer in this separate
action. Therefore, the Court will not address the issue of
the alleged unconstitutionality of the statutes at issue,
21 U.S.C. §857 and 19 U.S.C. §1595(a).
Second, in its Answer, Contempo contends that the
substantive federal statutes are unconsitutional because
the plaintiff has not followed the proper forfeiture
procedure. The issue of whether the plaintiff followed the
proper procedure in instituting this civil in rem forfeiture
proceeding is a matter of statutory construction and
does not give rise to a constitutional claim. The issue of
statutory construction has already been addressed.
Finally, in its Post-trial Brief, the defendant has
made hypothetical arguments concerning’ the
unconstitutionality of 21 U.S.C. §857 and 19 U.S.C.
§1595a(c) as applied to a hypothetical retailer. The Court
finds it unnecessary to address constitutional challenges
based on hypothetical situations which are not pertinent
to this action.
For the reasons stated above, the Court need not
address the constitutional challenges raised by
Contempo.
An appropriate order will be entered.
ee
ee ee
Sanh Rib ArT ARRONT IE At dae mde Rea Ati
A43
ORDER
In accordance with the memorandum
contemporaneously filed, the Court finds in favor the
plaintiff and against the defendant. Accordingly, the
defendant, 57,261 items of drug paraphernalia, including
ceramic pipes, holders and water pipes, is hereby
condemned and forfeited to the United States of America
and shall be delivered into the possession of the District
Director of Customs, New Orleans, Louisiana, for
disposition according to law.
It is so ORDERED.
A44
APPENDIX C
21 U.S.C. §857
§857. Use of Postal Service for sale of drug
paraphernalia
(a) Unlawfulness
It is unlawful for any person—
(1) to make use cf 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.
(b) Penalties
Anyone convicted of an offense under subsection (a)
of this section shall be imprisoned for not more than
three years and fined not more than $100,000.
(c) Seizure and forfeiture
Any drug paraphernalia involved in any violation of
subsection (a) of this section shall be subject to seizure
and forfeiture upon the conviction of a person for such
violation. Any such paraphernalia shall be delivered to
the Administrator of General Services, General Services
Administration, who may order such paraphernalia
destroyed or may authorize its use for law enforcement
or educational purposes by Federal, State, or loéal
authorities.
(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,
On relate,
A45
compounding, converting, concealing, producing,
processing, preparing, injecting, ingesting, inhaling, or
otherwise introducing inte the human body a controlled
substance, possession of which is unlawful under the
Controlled Substances Act (title II of Public Law 91-
513). [21 U.S.C.A. §861 et seq.] 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.
A46
(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
A47
(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.
" (Pub.L. 99-570, Title I, $1822, Oct. 27, 1986, 100 Stat.
3207-51; Pub.L. 100-690, Title VI, §6485, Nov. 18, 1988,
102 Stat. 4384.)
— i
A48
APPENDIX D
19 U.S.C. $1595a
§ 1595a. Forfeitures; penalty for aiding unlawful
importation
(a) Except as specified in the proviso to section
1594 of this title, every vessel, vehicle, animal, aircraft,
or other thing used in, to aid in, or to facilitate, by
obtaining information or in any other way, the
importation, bringing in, unlading, landing, removal,
concealing, harboring, or subsequent transportation of
any article which is being or has been introduced, or
attempted to be introduced, into the United States
contrary to law, whether upon such vessel, vehicle,
animal, aircraft, or other thing or otherwise, shall be
seized and forfeited together with its tackle, apparel,
furniture, harness, or equipment.
(b) Every person who directs, assists financially or
otherwise, or is in any way concerned in any unlawful
activity mentioned in the preceding subsection shall be
liable to a penalty equal to the value of the article or
articles introduced or attempted to be introduced.
June 17, 1930, c. 497, Title IV, § 596, as added Sept. 1,
1954, c. 1213. Title V, § 502, 68 Stat. 1140.
A49
AMENDED
§1595a. Forfeitures; penalty for aiding unlawful
importation
(a) Except as specified in subsection (b) or (c) of
section 1594 of this title, every vessel, vehicle, animal,
aircraft, or other thing used in, to aid in, or to facilitate,
by obtaining information or in any way, the importation,
bringing in, unlading, landing, removal, concealing,
harboring, or subsequent transportation of any article
which is being or has been introduced, or attempted to
be introduced, into the United States contrary to law,
whether upon such vessel, vehicle, animal, aircraft or
other thing or otherwise, may be seized and forfeited
together with its tackle, apparel, furniture, harness, or
equipment.
[See main volume for text of (b/]
(c) Any merchandise that is introduced or
attempted to be introduced into the United States
contrary to law (other than in violation of section 1592 of
this title) may be seized and forfeited.
(As amended Oct. 27, 1986, Pub.L. 99-570, Title III,
§ 3123, 100 Stat. 3207-87.)
A50
APPENDIX E
Brief of Amici Curiae, The American Pipe and
Accessory League and The National Association of
Tobacco Distributors, Inc.
No. 88-5320
UNITED STATES COURT OF APPEALS
FoR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
57,261 ITEMS OF DRUG PARAPHERNALIA,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIEF OF AMICI CURIAE,
THE AMERICAN PIPE AND ACCESSORY LEAGUE
AND THE NATIONAL ASSOCIATION OF
TOBACCO DISTRIBUTORS, INC., IN
SUPPORT OF APPELLANT
ARMOND D. BuUDISH
800 National City
East Sixth Building
Cleveland, Ohio 44114
(216) 621-0150
Attorney for Amici Curiae American
Pipe and Accessory League and
The National Association of
Tobacco Distributors, Inc.
Of Counsel:
HAHN LOESER & PARKS
A5l
TABLE OF CONTENTS
Page
TAR Oe Pe ee oo vc cctecccccccvces vii
Se ES ae 50 oie ¥ bos a 0's BEN so 000% 1
A. STATEMENT OF INTEREST OF AMICI
B.
C.
D.
ES ee ee Se ee
HISTORY OF “DRUG PARAPHERNALIA’”’
DECISIONS OF THIS CIRCUIT...........
COMPARISON OF THE OHIO
ORDINANCES AND THE DRUG
PARAPHERNALIA ACT .................
STATEMENT OF FACTS ................
Bs EE Bas 0 6ab0.0 #640 W ti00 610 8
sedan nenb eve eee ee
(b) Ceramic (Clay) Pipes:................
III, Bink sw kic cece secrcess
2. Legitimate Sellers vs. Head Shops .......
SS et ee ret PET eee Teer ee
I.
THE DEFINITION OF ‘‘DRUG
PARAPHERNALIA” AS ALL ITEMS
“PRIMARILY DESIGNED FOR’ USE”
_WITH CONTROLLED SUBSTANCES IS
UNCONSTITUTIONALLY VAGUE..........
A. The Standards Defining The Void-
For-Vagueness Doctrine And The Manner
Of Their Application Were Correctly
Set Forth By This Court .................
16
A52
B. The Definition Of Drug Pdraphernalia
As Items ‘Primarily Designed For
Use” With Controlled Substances Is
Unconstitutionally Vague As Applied To
Items Not Designed Solely For Drug
1. The phrase ‘‘designed for use”
refers to an item’s objective,
structural characteristics..............
2. The Supreme Court upheld the facial
constitutionality of the phrase
“designed for use’ because it
theoretically could be applied to
items solely usable with drugs .........
3. The phrase ‘‘designed for use”
is unconstitutionally vague when
applied to the seized items
DOO oS. ia cadkicns oi heenee ee eases
a. The “designed for use’ language
cannot constitutionally be applied
to items having lawful uses.........
b. The items seized in the
instant action have at least some
lawful uses and are not per se
designed for illegal use.............
THE LIST OF “LOGICALLY RELEVANT
FACTORS” IS UNCONSTITUTIONAL ......
—X-—The ‘Legitimate Supplier’ Factor Is
Unconstitutionally Vague................
18
18
18
19
20
A53 see
B. The Remaining ‘Logically Relevant
Factors’’ Unconstitutionally Permit
Criminal Conviction And Seizure
Of Property Based Upon Guilt By
III. THE LIST OF EXAMPLES OF POSSIBLE
DRUG PARAPHERNALIA HAS BEEN
APPLIED UNCONSTITUTIONALLY ......
IV. THE OFFENSE PROVISION OF THE
ACT IS UNCONSTITUTIONALLY
WR IE oo bobo ccc cence caeee
A. The District Court Parma Decision
Clearly Held That A Knowledge
Requirement Was Necessary For The
Law To Withstand Constitutional
B. The Lack Of Any Knowledge Requirement
In Section 857 Renders the Drug
Paraphernalia Act Unconstitutional.......
V. SEIZURE OF “DRUG PARAPHERNALIA”
UNDER SECTION 1595a‘c) IS
Ee
A. Proof ‘‘Beyond A Reasonable Doubt’’
Is Required To Avoid Vagueness.........
B. Section 1595a(c), As Applied To
“Drug Paraphernalia,’ Is Unconstitutional —
VI. THE FORFEITURE PROVISION OF
SECTION 857(c), NOT SECTION 1595a(c),
SHOULD HAVE BEEN APPLIED .........
A. A Specific Provision Must Be Given
Preference Over A More General
26
28
30
30
33
36
A54
B. The Court Below Failed To Consider
This Basic Rule Of Law..............+--
C. Section 857(c) Applies Specifically
To Drug Paraphernalia, While Section
1595a(c) Applies Generally To Any
Meroe . ooo cicc sce crecccccccceces
D. Congress Did Not Intend That Section
1595a(c) Would Apply To Forfeiture
Of Drug Paraphernalia.............--+--
Teo GE i ee ere ee
NY
CERTIFICATE OF SERVICE ..........-.++++--
38
39
HS Aa eT NM I ah te ot
Sp CCAR Tate A e
A55
TABLE OF AUTHORITIES
Page
Busic v. United States, 446 U.S. 398 (1980)....... 37,39,
42,43
Colautti v. Franklin, 439 U.S. 379 (1979) .......... 17
County Court of Ulster County v. Allen, 442
I oe PE o's a tlee 26
Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962) ... 17
Grayned v. City of Rockford, 408 U.S. 104 (1972) .. 17,25
Hammontree v. Phelps, 605 F.2d 1371 (5th Cir. 1979) 26
Indiana v. McCray, Case No. A1586-875 (Municipal
Ct. Marion County, Ind., June 8, 1979).......... 23
International Maven, Inc. v. McCauley, 678 F. Supp.
300 (U.S. Ct. of International Trade 1988)........ 36
Joseph E. Seagram & Sons, Inc. v. Hostetter,
AGA s b tienc hs eens ene enue 19
Knoedler v. Roxbury Township, 485 F. Supp. 990
ee ee ee ee ee 32
Kolender v. Lawson, 461 U.S. 352 (1983) .......... 43
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ....... 17
McKinney v. Kentucky, No. 84-Ca-1172-DG (Ct.
we Fe rr re rer er reer er eee 23
Metropolitan Detroit Area Hospital Services, Inc. v.
United States, 634 F.2d 330 (6th Cir.
MME tree hehe ick saan hk edee hanes eis cos 37,39,
42,43
One Lot Emerald Cut Stones v. United States, 409
a sr ee eee puma ee 38
A56
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.
ger ys re ee 17
Papachristou v. City of Jacksonville, 405 US.
SO CR ac clk 06 ke Wes Nt we eee ee eee 17
Record Revolution No. 6, Inc. v. City of Parma,
Ohio, 492 F. Supp. 1157 (N.D. Ohio 1980),
rev'd, 638 F.2d 916 (6th Cir. 1980),
vacated and remanded, 452 U.S. 1013
(1981), on remand decision at 638
F.2d 916, reinstated, vacated and
remanded, 456 U.S. 968 (1982), on
remand, 709 F.2d 534 (6th Cir. 1983).......... passim
Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.
| Perera nr te re en 27
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).. 17
Smith v. Goguen, 415 U.S. (1974) ...........2000- 17
United States v. Dunn, 802 F.2d 646 (2d Cir.
RO soc ods 0 ve 6nd ae eeeee ee eee 38,39
United States v. Stephens, 569 F.2d 1372 (5th Cir.
rn Ay mere ree 34
Village of Hoffman Estates v. Flinside, Hoffman
Estates, Inc., 455 U.S. 489 (1982)............... 22
Winters v. New York, 333 U.S. 507 (1948) ......... 17
ere ee.
ee ae rks
cette Galati Gas
el SEANAD PAA at
A57
INTRODUCTION
A. STATEMENT OF INTEREST OF AMICI
CURIAE.
This Brief is presented on behalf of the American
Pipe and Accessory League (““APAL”), a not-for-profit
corporation comprised of over 700 tobacco, pipe and
related accessory producers, importers, exporters,
distributors and retailers, and The National Association
of Tobacco Distributors, Inc. (‘‘NATD”), a not-for-profit
corporation with about 500 members that sell cigarettes,
tobacco and related accessories.
APAL members include United States Tobacco
Corporation, a Fortune 500 company which is a leading
pipe and tobacco accessory manufacturer and importer
and the largest manufacturer of moist smokeless
tobacco; CAO Meerschaum Pipe Company, the nation’s
largest meerschaum pipe importer and distributor;' Lane
Limited, the largest distributor of bulk pipe tobacco in
the United_States and of the Dunhill lines of pipes,
tobacco and accessories;*> numerous Tinder Box
International retail stores, part of the nation’s largest
chain of retail tobacco stores;* and Van Der Want
Pijpenfabrieken, the world’s oldest pipemaker.‘
The NATD has been conducting business for over
fifty years. Of the $13.2 billion in yearly sales by
wholesale distributors of cigarettes, tobacco and related
‘Transcript of hearing in the court below, August 31-September 2
and November 12, 1987, Case No. 3-87-0656, at 246 (hereinafter
ey
* Tr. 473.
* re. 876:
*See Mail Order Drug Paraphernalia Control Act: Hearings on H.R.
1625 Before the House Subcommittee on Crime of the Committee on
the Judiciary, House of Representatives, 99th Cong., 2d Sess. 174
(May 8, 1986) (hereinafter ‘‘Hearings’’).
[1]
[2]
A58
accessories, NATD members’ sales comprise more than
70% of the total, or over $9 billion annually.
The Mail Order Drug Paraphernalia Control Act‘ (the
“Drug Paraphernalia Act’’), at issue in this action, is
aimed at so-called “drug paraphernalia,’ sold in so-called
“head shops.” APAL and NATD members do not
manufacture, sell, import, or export ‘drug
paraphernalia” or any items for drug use; APAL and
NATD members do not operate “head shops.” The
APAL and NATD strongly oppose drug use.
Then why are the APAL and NATD concerned
about the Drug Paraphernalia Act? The Act puts all
APAL and NATD members at risk of criminal
prosecution and property seizure. The law is so vague
that it fails to provide fair notice of the persons covered
and the conduct proscribed. The lack of clear standarus
leaves “‘legitimate’’ businesses and individuals open to
arbitrary, erratic, and discriminatory rrests,,
prosecutions, convictions, and property seizures.
One of the primary problems with the law is that
there are few, if any, items which are designed solely for
use with controlled substances. Water pipes, ceramic
pipes and cigarette holders, those items seized in this
case, are produced, sold, imported and exported by
APAL and NATD members* for use with tobacco, not
drugs. Yet the Drug Paraphernalia Act puts virtually
every ‘“legitimate’’, traditional pipe and _ tobacco
accessory business in serious jeopardy.’
’ Codified at 21 U.S.C. §857, enacted as Subtitle O of Title I of the
Anti-Drug Abuse Act of 1986, P.L. 99-570, 100 Stat. 3207 (1986).
*E.G., United States Tobacco Corporation, which is without question
a well-established manufacturer of legitimate and generally accepted
tobacco products, has imported water pipes similar to those seized.
Tr. 172. Many Tinder Box retail tobacco stores sell water pipes
similar to those seized. Tr. 176. See also Hearings at 135 (Statement
of L. Page Maccubbin, owner of the nationally known Earthworks
tobacconists). .
"E.g., Hearings at 119, 121, 126, 159, 163 —- of L. Page
Maccubbin).
a
For that reason, APAL and NATD are appearing as [3]
amici curiae in support of the Plaintiff/Appellant. Amici
submit that the analysis contained in their brief will
provide a different perspective on the issues herein and
will not be merely repetitive of the issues addressed in
Appellant’s brief.
B. HISTORY OF “DRUG PARAPHERNALIA”
DECISIONS OF THIS CIRCUIT.
This is not the first time courts in this Circuit have
been asked to rule on the constitutionality of so-called
“drug paraphernalia” laws.
In 1980, the United States District Court for the
Northern District of Ohio (Manos, J.) considered a
challenge to ‘drug paraphernalia” ordinances adopted by
the cities of Parma, Lakewood and North Olmsted, Ohio
(the ‘Ohio Ordinances’). The District Court upheld the
constitutionality of the Ohio Ordinances, but only after
carefully limiting their operation. Record Revolution No.
6, Inc. v. City of Parma, Ohio, 492 F. Supp. 1157 (N.D.
Ohio 1980), rev'd, 638 F.2d 916 (6th Cir. 1980), vacated
and remanded, 452 U.S. 1013 (1981), on remand decision
at 638 F. 2d 916 reinstated, vacated and remanded, 458
U.S. 968 (1982), on remand, 709 F. 2d 534 (6th Cir. 1983)
(affirming district court’s original opinion) (the “District
Court Parma Decision”’).
On appeal, this Court reversed the District Court
} Parma Decision and held the Ohio Ordinances
unconstitutional on their face. The Court determined,
: inter alia, that the definition of “drug paraphernalia’ and
the description of the offenses rendered the law void-for-
vagueness. Record Revolution No. 6, Inc. v. City of
Parma, 638 F. 2d 916 (6th Cir. 1980), vacated and
remanded, 458 U.S. 968 (1982), on remand, 709 F.2d 534
(6th Cir. 1983) (the ‘Sixth Circuit Parma Decision’’).
Sa Pha Ae LNT pleas AAR HIE SF reimaim Ave
[4]
A60
Following this Court’s Parma Decision, the United
States Supreme Court decided Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489
(1982) (“‘Hoffman Estates’), and vacated and remanded
the Sixth Circuit Parma Decision for ‘further
consideration in light of’’ Hoffman Estates. See Record
Revolution No. 6 v. City of Parma, Ohio, 709 F. 2d 534,
535 (6th Cir. 1983). Hoffman Estates made it impossible
in most cases to challenge a law for facial vagueness,
holding that a facial vagueness challenge may only
succeed “if the enactment is impermissibly vague in all
of its applications.’’ Hoffman Estates, 455 U.S. at 495
(emphasis added).
In light of Hoffman Estates, this Court “‘reluctantly”’
determined that it could no longer sustain a facial
vagueness challenge to the Ohio Ordinances. 709 F. 2d at
536. ‘“‘We reach this conclusion recognizing that we
are faced solely with pre-enforcement facial challenges to
the constitutionality’’ of the Ohio Ordinances. Jd.
“At the same time, this Court affirmed the District
Court Parma Decision. The Court made special note of
the ‘‘carefully-drawn limitations which the district court -
placed upon the operations of these statutes,’”’ id, and
warned that, at the least, ‘‘[t]hese boundaries are not to
be overstepped.” id. (emphasis added). The District Court
Parma Decision presently is the law of this Circuit.
This Court’s concerns over the cdnstitutional
infirmities of the Ohio Ordinances have now been
realized in the Government’s application of the almost
identical Drug Paraphernalia Act. Even the Court’s
admonition that the strict boundaries set forth in the
District. Court Parma Decision ‘are not to be
overstepped” has been ignored and the ‘boundaries’’
have been violated in numerous respects. Accordingly,
the decision of the court below should be reversed and
the Drug Paraphernalia Act should be declared
unconstitutionally vague as applied.
A61
C. COMPARISON OF THE OHIO ORDINANCES [5]
AND THE DRUG PARAPHERNALIA ACT.
A review of the Ohio Ordinances and the Drug
Paraphernalia Act reveals that, in almost all pertinent
) respects, the laws are identical. The following chart
demonstrates the close similarities.
1. Definition of drug paraphernalia.
Ohio Ordinances: All items ‘‘used, intended for
use or designed for use’’ with
controlled substances.*®
ee
Drug Paraphernalia ‘
Act: All items “primarily intended
or designed for use’ with
controlled substances.’
<9 O -ak owe
2. List of items which may be drug paraphernalia.
Ohio Ordinances: Items listed in Section
620.01(dd)(1)(L), including
| ‘‘metal, wooden, acrylic,
{ glass, stone, plastic, or
ceramic pipes;’’ ‘‘water
pipes;’’ ‘“‘roach _ clips;’’
‘‘carburetor pipes;’’
“chillums”’ and “‘bongs.”’’*
Drug Paraphernalia
Act: Items listed. in 21 U.S.C.
§857(d), including “metal,
wooden, acrylic, glass, stone,
: plastic, or ceramic pipes;”
4 ‘“‘water pipes;” “roach clips;”’
‘‘carburetor pipes;’’
“chillums;” and “‘bongs.’’”"
* Codified Ordinance 620.01(dd)(1), quoted in the Sixth Circuit Parma
_ Decision 638 F.2d at 939.
* Section 857(d).
'* Codified Ordinance 620.01(dd)(1)(L), 638 F.2d at 939.
"' Section 857(d).
A62
[6] 3. List of factors to consider in determining whether
an item constitutes drug paraphernalia.
Chio Ordinances:
Drug Paraphernalia
Act:
4. Offense.
Ohio Ordinances:
Factors listed in
620.01(dd)(2), including
“instructions, oral or written,
provided with the object
concerning its use’’; ‘‘national
and local advertising
concerning its use”; and
‘“‘whether the owner, or
anyone in control of the
object, is a_ legitimate
supplier of like or related
items to the community.’’”
Factors listed in 21 U.S.C.
$857(e), including
“instructions, oral or written,
included with the item
concerning its use’’; ‘‘national
and local advertising
concerning its use; and
‘‘whether the owner, or
anyone in control of the item,
is a legitimate supplier of like
or related items to the
community.’’."*
Illegal, inter alia, to use,
deliver, sell or manufacture
drug paraphernalia ‘‘knowing,
or under circumstances where
'? Codified Ordinance 620.01(da)(2), 638 F.2d at 939-40.
'S Section 857(e).
one reasonably should know,”
that the item would be used
with controlled substances."*
Drug Paraphernalia
Act: Illegal, inter alia, to sell, offer
for sale, transport, import or
export drug paraphernalia.'*
The reason both laws are so much alike is that both [7]
are closely based on the Model Drug Paraphernalia Act
drafted by the Drug Enforcement Administration of the
United States Department of Justice.'* Because the laws
are so similar, the Sixth Circuit Parma Decision is
instructive, and the District Court Parma Decision,
affirmed by this Court, is controlling.
sere hatha ine NA i IG hel
D. STATEMENT OF FACTS.
The District Court Parma Decision recognized the
difficulty in defining ‘‘drug paraphernalia’ because
“nearly every item that is used with illegal narcotics also
has a more customary and innocent use.’’’’ This Court
concurred in that finding, recognizing that, ‘“The type of
object that can become, or be used as, drug
paraphernalia is limited only by the imagination of the
; user.”"* So-called “drug paraphernalia” consists of
“everyday items that have a myriad of innocent, lawful
and beneficial uses’’’® and which “lack ... any design
. characteristics that distinguish lawful purposes from
unlawful purposes.’’”*
'* Codified Ordinance 620.04(a) and (b), 638 F.2d at 940.
'* Section 857/(a).
‘ '* Sixth Circuit Parma Decision, 638 F. 2d at 919; Hearings at 15
: (Statement of Congressman Mel Levine).
'’ District Court Parma Decision, 492 F.Supp. at 1166.
‘* Sixth Circuit Parma Decision, 638 F.2d at 30.
'* Td. at 928.
*° Id. at 930.
[8]
A64
The experts for the Department of the Treasury,
Customs Service of the United States (the
“Government’”’) and Contempo Products, Inc.
(‘‘Contempo”’), the claimant herein, agreed that virtually
any lawful item, including belt buckles, lamps, walking
sticks and electrician’s alligator clips, can be used or
adapted for use with controlled substances.** Moreover,
every one of the items listed in Section 857(d) as possible
“drug paraphernalia” can also be used lawfully.” Fc~
example, any type of traditional pipe can be (and
probably has been) used to smoke tobacco or controlled
substances.”*
In the instant action, the Government seized three
types of items: water pipes, ceramic (clay) pipes and
cigarette holders. All three of the seized items are
displayed at the annual trade show of the Retail Tobacco
Dealers Association (“RTDA’),* an association of
‘legitimate’ manufacturers, wholesalers, dealers, and
distributors of tobacco and_ tobacco-related
acccessories—‘‘pure tobacconists.”** Only lawful items
intended for use with tobacco may be displayed at the
RTDA show.”* Moreover, all three of the seized items are
sold in ‘“‘traditional’’ tobacco stores around the country.”
*! E.g., Tr. 154-155, 171, 191, 196, 277, 390.
2 “(T]he listed items [as examples of possible drug paraphernalia]
have many lawful uses’’ and “could serve only as an example of
possible forms of drug paraphernalia.’’ Sixth Circuit Parma Decision,
638 F.2d at 132.
3 F.G., Tr. 154, 171, 191, 196, 277; Hearings at 124 (Statement of L.
Page Maccubbin).
* E.g., Tr. 172, 189, 461-62; Memorandum Opinion of the court below,
March 10, 1988 (‘Memorandum Opinion’’) at 11.
6 Eg, Tr. 172, 465.
* E.g., Tr. 189-90, 465-66.
7 E.g., Tr. 190, 264, 461.
—_
A65
While it is clear that none of the items are
exclusively usable with controlled substances by virtue
of any design characteristics, the trial saw a battle of
experts and witnesses testifying about the primary uses
and intended uses of these items.
1. Seized Items.
(a) Water Pipes.
Witnesses for both Contempo”* and_ the
Government” testified that the seized water pipes were
primarily intended for use with tobacco, not drugs.
As described in a study by the National Cancer
Institute for the federal government, water pipes provide
the safest means to smoke tobacco; the water filters out
many of the tars and nicotine harmful to one’s health.**
Water pipes are also popular collector’s items."
According to the Government’s own witnesses,, the
seized water pipes would not be of interest to marijuana
smokers without substantial adaptation.** The drug user
must break off the existing wooden bowl, drill or cut a
knob off of the bottom of a lamp, thread, the knob from
the lamp to match the threads on the water pipe, and
then solder on a metal bow! in place of the wooden one.**
* Eg, Tr. 175, 177-79.
*E.g., Tr. 85, 153, 248, 252, 262, 281, 470; Hearings at 119
(Staternent of L. Page Maccubin).
% F.g., Tr. 160-61, 174-75, 178-79, 471, 489-90; Defendant’s Exhibit 9:
Hearings at 122 (Statement of L. Page Maccubin); Memorandum
Opinion at 10.
*' E.g., Tr. 134-35, 186, 252, 584; Hearings at 123 (Statement of L.
Page Maccubin); Memorandum Opinion at 10.
* Eg, Tr. 123-24.
[9}
[10]
be A66
(b) Ceramic (Clay) Pipes.
The seized ceramic pipes are primarily intended and
designed for use with tobacco.* The President of the
company which manufactured these pipes, Takefumi
Niki, testified concerning their design for, and intended
use with, tobacco.” =
The small bowl permits only about five minutes of
tobacco smoking and so is ideal for people who want only
a short smoke, such as when trying to cut down or in
between acts of a play.** In addition, the seized pipes are
collector’s items*’ and may be used to smoke various
herbs.*
The Government’s witnesses indicated that pipes
intended for use with marijuana generally are made from
non-porous material,*® and it is clear that the seized pipes
are made from clay and are porous.** The screens are
innocent and prevent a smoker from drawing bits of
charred tobacco into his/her mouth.‘' The holes permit
the smoker to control the draw and to clean the pipe
easily and were necessary to the manufacturing
process.“
** E.g., Tr. 179.
*§ F.g., Tr. 224-43; Memorandum Opinion at 11.
* E.g., Tr. 180-81, 184, 204-205, 208, 492; Hearings at 124 (Statement
of L. Page Maccubin); Memorandum Opinion at 10.
7 E.g., Tr. 186, 274-75.
% Eg. Tr. 267-68.
* E.g., Tr. 113.
“ E.g., Tr. 183, 204, 207-208, 240-41, 243.
“ E.g., Tr. 188, 209, 493.
* E.g., Tr. 210, 225-26, 228, 492.
A67
(c) Cigarette Holders.
The seized cigarette holders are primarily intended
and designed for use with tobacco.“* They are commonly
sold in “traditional” tobacco stores,“ and are very useful
to keep the tobacco smells and stains off the smokers’
fingers.“* Any cigarette, regardless of what is in the
cigarette, can be held in one of these holders.** The
seized cigarette holders are smaller than the old “‘movie-
star’ types, making them more convenient to use.‘
Moreover, they may also be used as_ keychains,
necklaces, tie holders, or worry stones.“* The cigarette
holders are patented under the law of the United
States.“
2. Legitimate Sellers vs. Head Shops.
The Government’s agents conceded that the same
items may be legal if sold in a “‘legitimate’’ store but
illegal if sold in a less “respectable’’ or “traditional”
establishment. For example, Mr. Hopkins, one of the
Government’s witnesses, stated that it would be “highly
possibie” that a water pipe could be used lawfully, and
whether it was “drug paraphernalia’ depended on how it
was sold and/or used.*' Using McDonald’s coffee stirrers
to illustrate, Mr. Hopkins said that the sstirrers
themselves were legal but, when sold in “head shops”
* Eg, Tr. 190, 193.
“ E.g., Tr. 189-90.
‘S E.g., Tr. 494-95.
“Eg. Tr. 211, 214.
E.g., Tr. 345.
“* E.g., Tr. 479-80, 499; Defendant’s Exhibit 1.
* E.g., Tr. 190, 496; Defendant’s Exhibit 30.
Tr. 135.
Tr. Id.
(11)
[12]
[13]
A68
and used to measure drugs, became illegal drug
paraphernalia.” Similarly, Mr. Hopkins testified that,
although they could be used with tobacco, cigarette
rolling papers are “primarily intended for use with
marijuana”.** Yet he would not flatly call it drug
paraphernalia,“ because ‘cigarette rolling papers are
sold in legal tobacco shops.’’** Again, he said whether
cigarette rolling papers are drug paraphernalia depends
on whether they are sold “in legal tobacco stores” or
‘“‘head shops’’.**
In the instant action, the Government did not seize
items based upon any inherent design characteristics. In
fact, with respect to the water pipes, their physical
characteristics could not have played any role in the
Government’s decision that they were ‘drug
paraphernalia”, since the Government decided to seize
them even before seeing them.’ To determine whether
the items were “drug paraphernalia’, the Government
looked at the “‘logically relevant factors” listed in Section
857(e), and in particular, the Government relied most
heavily on the factor in Section 857(e)(5), “‘whether the
owner, or anyone in control of the item, is a legitimate
supplier.”
Before seizing any items, the Government sent
agents to visit Contempo’s office to try to determine its
“legitimacy’’.** Unfortunately, Contempo is just an
82 Id.
Tr. 155.
“Tr. 156.
55 Tq.
Ee. abe.
‘'The decision that all the items, including the water pipes, were
“drug paraphernalia” was made on March 18, 1987, yet the water
pipes did not even arrive in the United States until two days later,
March 20, 1987. Memorandum Opinion at 6; Tr. 36, 37, 83, 295.
** E.g., Tr. 16, 20; Memorandum Opinion at 4-5.
A69
importer and its address is basically just a warehouse,
not particularly helpful in determining the importer’s
“‘legitimacy”’.** However, the agents did state they they
saw a “plastic replica of a marijuana plant’’ near a
secretary's desk, which affected their view of Contempo’s
“legitimacy’’.*° While Contempo vigorously denied that
any secretary had a plastic marijuana plant,*’ and while
the court below initially stated that such testimony
would not affect his decision,“* in fact the court took
specific note of that testimony in his written opinion."
The agents apparently were told by a receptionist at
Contempo that some of Contempo’s items were sold at a
store named Elliston Place Pipe and Tobacco Shop.“
After viewing the Elliston Place Pipe and Tobacco Shop,
they decided that the store appeared to be a “head
shop.,”’ not a “‘legitimate”’ store.**
They made that appraisal despite the fact that the
items soid at the Elliston Place Shop were displayed and
marketed for use with Tobacco, not drugs.** The fact that
the Elliston Place Pipe Tobacco Shop was, in their view,
a ‘‘head shop” was admittedly one of the key factors in
the Government’s determination to seize Contempo’s
items and in the court’s decision to approve the seizure."’
*° E.g., Tr. 20-21.
* E.g., Tr. 22, 312.
*' E.g., Tr. 506-508.
* E.g., Tr. 604-605.
** E.g., Memorandum Opinion at 5, 16.
“ E.g., Tr. 16, 21. Elliston Place Pipe and Tobacco Shop was formerly
named Jean Marie’s. Memorandum Opinion at 5 n.2.
** E.g., Memorandum Opinion at 5-6, 14-15; Tr. 17, 321, 357, 368.
* E.g., Tr. 359, 512-14, 517-19, 521, 523-24; Memorandum Opinion at
11, 14, 17.
* E.g., Tr. 25, 298, 321, 357; Memorandum Opinion at 16, 17-18.
[14]
[15]
A70
The Government agents did nothing to determine
whether Elliston Place was owned by Contempo.” In
fact, Elliston Place is not owned by Contempo” and
Contempo has no control over how Elliston Place
markets its products and to whom that store sells its
goods.”°
Moreover, Contempo sells to 120 distributors
throughout the world, who in turn sell to many more
retailers." Contempo expressly markets to distributors
its products for use with tobacco; it neither markets nor
sells to retailers or consumers.” There is no evidence in
the record that the seized items would have ended up at
Elliston Place as opposed to one of the hundreds of other
stores around the country carrying Contempo’s products.
Contempo’s “intended use’’ for the seized items cannot
be determined by looking at the saies marketing of those
items by any one retailer.
Finally, it should be noted that Cano Ozgener, owner
of the CAO Meerschaum Pipe Company, the nation’s
largest meerschaum pipe importer and distributor,
described Contempo as a legitimate business importing
items for tobacco, not drug, use.”
ARGUMENT
In the instant action, the Government seized certain
items being imported into the United States. The
Government made the seizure under 19 U.S.C. $1595a(c)
** E.g., Tr. 298, 448-49.
* E.g., Tr. 509-10.
” E.g., Tr. 300, 301.
" E.g., Tr. 499-500.
” E.g., Tr. 300, 489-90, 492, 497-99, 501; Defendant’s Exhibits 12 and
13; Memorandum Opinion at 11.
”* E.g., Tr. 473, 480.
A71
(“Section 1595a’’), which applies to “any merchandise
that is introuced or attempted to be introduced into the
United States contrary to law.” The law which the
Government claimed was violated was the Drug
Paraphernalia Act, 21 U.S.C. §857 (‘Section 857’’). The
court below approved the Government’s seizure.
Section 857, as applied herein, fails to pass
constitutional muster in several respects. As is discussed
below, the definition of “drug paraphernalia’’, in part, as
items “primarily ... designed” for use with controlled
substances, is unconstitutionally vague as applied to
items with lawful as well as unlawful uses. The “‘logically
relevant factors’’ which courts are encouraged to use,
and which the court below relied upon, to determine
whether an item is ‘drug paraphernalia’ are
unconstitutionally vague and impermissibly permit guilt
by association. Perhaps most important, the offense
provision of Section 857, making illegal the importation
of ‘‘drug paraphernalia’’ without the essential knowledge
requirement, cannot withstand constitutional challenge.
Despite the fact that Contempo vigorously argued
the unconstitutionality of the law in the court below, the |
court inexplicably refused to consider those
constitutional arguments! Memorandum Opinion at 24-
25. In fact, the Memorandum Opinion of the court below
is remarkably without any reference whatsoever to the
District Court Parma Decision or to the Sixth Circuit
Parma Decision. The court below failed to understand
that it had to consider the constitutionality of the Act
because it could not uphold the Government’s seizure
under an unconstitutional law.
The constitutionality of the Drug Paraphernalia Act [16]
could only be upheld if- the law was applied within
“carefully drawn limitations’’ and strict ‘‘boundaries”’
A72
defined by the District Court Parma Decision. Had the
court below considered Contempo’s_ constitutional
arguments, it would necessarily have determined that
these “‘boundaries’”’ have been overstepped.
The use of Section 1595a(c) to make the seizure was
also impermissible. By failing to require proof ‘‘beyond a
reasonable doubt,’’ Section 1595a(c) as applied to
seizures of so-called ‘‘drug paraphernalia’ is
unconstitutional.
Finally, this Court need not even reach the
constitutional issues presented herein to invalidate the
seizure. Section 1595a(c) cannot be used to seize items
imported in violation of Section 857 in any event,
because Section 857 contains its own seizure and
forfeiture provision which precludes application of
Section 1595a(c) in the instant action.
For any and all of these reasons, the decision of the
district court below should be reversed.
I. THE DEFINITION OF “DRUG
PARAPHERNALIA’ AS ALL ITEMS
“PRIMARILY DESIGNED FOR USE” WITH
CONTROLLED SUBSTANCES Is
UNCONSTITUTIONALLY VAGUE.
Section 857 defines “drug paraphernalia,’’ in part, as
any item of ‘‘any kind which is primarily . . . designed for
use” with controlled substances. As this Court has
previously determined, that phrase is unconstitutionally —
vague.
A73
A. The Standards Defining The Void-For-Vagueness
Doctrine And The Manner Of Their Application
Were Correctly Set Forth By This Court.
This Court has previously set forth the well-
established standards defining the void-for-vagueness
doctrine;
The void-for-vagueness doctrine commands rw d [17]
statute to give persons of common intelligence fair
notice of the persons covered and the conduct
proscribed. Colautti v. Franklin, 439 U.S. 379, 390-
391 ... (1979). Fundamental fairness, as well as a
proper regard for preventing the deterrence of
constitutionally protected conduct, requires that
persons not be compelled to guess at their own peril
the meaning and application of a statute. Grayned v.
City of Rockford, 408 U.S. 104, 108 ... (1972);
Lanzetta v. New Jersey, 306 U.S. 451, 453 ...
(1939). Ascertainable standards of guilt are
imperative in order to protect against arbitrary,
erratic, and discriminatory arrests, prosecutions and
convictions. Papachristou v. City of Jacksonville,
405 U.S. 156, 172 ... (1972}; Winters v. New York,
333 U.S. 507, 515 ... (1948). Unless the statute
itself prescribes sufficiently precise standards, basic
policy decisions are impermissibly delegated to the
personal predilections of the police, prosecutors and
juries. Smith v. Goguen, 415 U.S. at 575 ... (1974);
Grayned v. City of Rockford, 408 U.S. at 108 ....
“Legislators may not so abdicate their
responsibilities for setting the standards of the
criminal law.”’ 415 U.S. at 575...
Sixth Circuit Parma Decision, 638 F.2d at $27. The
United States Supreme Court in Hoffman Estates
confirmed the vitality of those standards governing
vagueness challenges. 455 U.S. at 498 (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108-109 (1972)).
* See also District Court Parma Decision, 492 F. Supp. at 1164-66.
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Section 857 is_a criminal statute carrying stiff
penalties,”"> and Section 1595a(c) is a ‘‘quasi-criminal’’
forfeiture provision” which has a serious “prohibitory
and stigmatizing effect{.]’"’ Accordingly, the void-for-
vagueness standards cited above apply herein and
require ‘‘a relatively strict test.’’”*
B. The Definition Of Drug Paraphernalia As Items
“Primarily Designed For Use’ With Controlled
Substances Is Unconstitutionally Vague As
Applied To Items Not Designed Soiely For Drug
, Use.
1. The phrase ‘designed for use’ refers to an
item's objective, structural characteristics.
The Supreme Court in Hoffman Estates ruled that
the phrase “designed for use’ “refers to structural
characteristics of an item.’ Under this definition, ‘drug
paraphernalia” consists of those items ‘‘per se fashioned
for use with drugs,’"*® and “‘necessarily designed for use
with cannabis or illegal drugs’®' by virtue of their
physical characteristics.
"> Penalties are imprisonment for no more than three years and a fine
of no more than $100,000, Section 857(b), coupled with forfeiture of
property, Section 857(c).
* E.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700
(1965) (‘‘a forfeiture proceeding is quasi-criminal in character’’); Fleuti
v. Rosenberg, 302 F.2d 652, 655 (9th Cir. 1962). See also Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 492-93 (1985) (stating that a
quasi-criminal law requires constitutional “‘protection normally
applicable only to criminal proceedings’’).
” Hoffman Estates, 455 U.S. at 499 n. 16.
78 Td.
** 455 U.S. at 501.
*Jd. at 501 n.19 (quoting with approval the Brief for Appellee
therein).
"Td. at 501 n.18.
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This Court, in the Sixth Circuit Parma Decision,
similarly determined that the phrase “designed for use”’
refers to objective characteristics of an item, discussing
the definition in terms of ‘unique design
characteristics.’
2. The Supreme -Court upheld the facial
constitutionality of the phrase ‘designed for
use’’ because it theoretically could be applied to
items solely usable with drugs.
The Supreme Court in Hoffman Estates recognized
that the “designed for use” language ‘‘contains[s]
ambiguities,’’ 455 U.S. at 502, 504,"* and conceded that
“specific future applications ... may engender concrete
problems of constitutional dimension.’ However, the
Supreme Court nonetheless upheld that definition
against a facial vagueness attack because the iaw
theoretically could be applied to items with only illegal
uses. ;
In fact, the licensing guidelines incorporated into the
Hoffman Estates regulation included a list of items
considered to be ‘“‘per se’ drug paraphernalia. ‘The
guidelines refer to ‘paper of colorful design’ and to other
specific items as conclusively ‘designed’ or not ‘designed’
for illegal use.’’** Since the Hoffman Estates regulation
applied, at leasi, to certain specifically designated, easily
identifiable items, ‘‘no issue of fair warning’’ existed."*
* 638 F.2d at 930-31.
“The Supreme Court found it “significant” that the Village of
Hoffman Estates “primarily relied on the ‘marketing’ aspect of the
standard, which does not require the more ambiguous item-by-itam
analysis of whether paraphernalia are ‘designed for’ illegal drug use.”
Id. at 504.
“Id. at 504 (quoting Joseph E. Seagram & Sons, Inc. v. Hostetter,
384 U.S. 35, 52 (1966)).
** Id. at 500-501. bape
** 7d. at 501.
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Given this definition of the phrase ‘designed for
use,” it is easy to understand why the Supreme Court
held it constitutional on its face. Certainly a law may
flatly prohibit clearly designated, easily identifiable
items, such as cocaine, having only illegal uses. Such a
law would allow a “person of ordinary intelligence a
reasonable opportunity to know what is prohibited.”
Sixth Circuit Parma Decision, 492 F. Supp. at 1164. By
defining ‘‘drug paraphernalia’’ as items with
characteristics making them solely usable with drugs,
the definition is not unconstitutionally vague in every
possible application. However, the fatal vagueness in the
definition appears, as in the instant action, when the law
is applied to items which may be used lawfully.
3. The phrase ‘designed for use’ is
unconstitutionally vague when applied to the
seized items herein.
In the instant action, the Government has attempted
to apply the Drug Paraphernalia Act to items which are
not per se “drug paraphernalia’ but instead have both
lawful and unlawful uses. In fact, the language of the
Drug Paraphernalia Act by its own terms encompasses
items not exclusively designed for use with drugs.*’ As
this Court previously held, the “designed for use’
language, when applied to items with lawful and
unlawful uses, is unconstitutionally vague.
a. The “designed for use’’ language cannot
constitutionally be applied to items having
lawful uses.
In the Sixth Circuit Parma Decision, this Court
pinpointed the vagueness problem inherent in the
“designed for use” language:
*’ Section 857(d) defines drug paraphernalia as all items ‘‘primarily
intended or designed”’ for use with controlled substances.
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The major ambiguity in defining drug
paraphernalia in terms of the “design’’ of items is
the lack of any design characteristics that
lawful purposes from unlawful purposes.
ae + ee ob
is limited only by the
rae Bo of the user.
638 F.2d at 930. As soon as the “designed for use’
language is applied to items with at least some lawful
uses, the unconstitutional vagueness of the law becomes
inescapable:
[T]he ordinances would apply to items which are not
solely designed to be drug paraphernalia. Vagueness
enters in our case once the ordinances begin to
define drug paraphernalia in terms of the primary
adaption or dominant purpose of the design. Then
the definition begins to depend upon the ingenuity
or purpose of the purchaser rather than the seller
and upon the current practices of the clandestine
society of drug users.
Id. at 930.
As a result, the Drug Paraphernalia Act presents
traditional ‘“‘legitimate’’ importers, manufacturers and
sellers of pipes and tobacco accessories with the
intolerable risk of criminal prosecution and seizure of
their inventory without any criminal intent or knowledge
of the end use of items. James Knapp, United States
Deputy Assistant Attorney General, a witness for the
Government in the Congressional hearings on the Drug
Paraphernalia Act, and Timothy Hardin a witness for the _
Government in the hearing before the court below,
testified to the vagueness of the law as it applies to
items with at least some legitimate uses. Mr. Knapp
stated:
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[The Drug Paraphernalia Act] is too broad in scope.
It attempts to cover paraphernalia items like
spoons, straws and roach clips, as well as any other
_ items primarily intended or designed for use in
connection with drugs.
Similarly, Timothy Hardin testified that the Drug
Paraphernalia Act is ‘too vague’ because it
encompasses virtually any pipe sold in traditional
tobacco stores.*®
This Court posed the right question when it asked:
If the manufacturer intended that a chamber pipe be
used for ingesting hashish, and the purchaser so
uses the chamber pipe, do the ordinances permit the
seller, who lacks such intent, and did not use the
chamber pipe himself to ingest hashish, to be
arrested, prosecuted or convicted on the basis of the
manufacturer’s intent and the purchaser’s use?
Sixth Circuit Parma Decision, 638 F.2d at 928. The
Court also provided the right answer, concluding that
“(t]he phrase ‘designed for use’ is vague and overbroad.”’
Id. at 930. i
b. The items seized in the instant action have at
least some lawful uses and are not per se
designed for illegal use.
Unlike the ordinance in Hoffman Estates, the Drug
Paraphernalia Act does not list items which are
“necessarily” and ‘“‘conclusively”’ drug paraphernalia per
** Hearings at 54 (Testimony of Hon. Charles B. Rangel). Similarly,
Jack E. Swagerty, Assistant Chief Inspector for the U.S. Postal
Service, expressed his concern about the breadth and vagueness of
the definition of drug paraphernalia. Jd. at 61.
eer ere ee ee
ee eee —
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se.*° The record herein is replete with evidence that the
items seized by the Government have at least some
unlawful uses."
These items are not ... like cocaine. They are not
like heroin, something you can just put your finger
on, per se, and say it’s ... mala in se ... something
evil, wicked, in and of themselves. They are items
conceivably could have a legitimate use.
Memorandum Opinion at 596.”
Consider, for example, the seized water pipes.
Because water pipes filter the harmful tars and nicotine
from tobacco, they are becoming popular with tobacco
smokers concerned about the health risks of smoking. In
fact, the Government conceded that the seized water
pipes were not designed ‘only for marijuana.” Tr. 617.
The Government witnesses even admitted that, because
the seized water pipes had wooden bowls, they would not
be of interest to drug users without substantial
adaptation by them.** In other words, water pipes
become ‘‘drug paraphernalia’ because of the “ingenuity
or purpose of the purchaser rather than the seller and
upon the current practices of the clandestine society of
drug users’’—the very problem pointed out by this Court
in the Sixth Circuit Parma Decision.”
*° See Hearings at 15. Section 857(d), which contains a list of items
which may be “drug paraphernalia’, is virtually identical to
subsection (L) of the Ohio Ordinances. This Court determined that the
listed items ‘‘have many lawful uses’’ and “could serve only as an
example of possible forms of drug paraphernalia.”” Sixth Circuit
Parma Decision, 638 F.2d at 932. ‘‘Interpreting the listed items as
drug paraphernalia per se would clearly make the ordinances vague
and overbroad.” Jd.
*' See Statement of Facts, supra.
*? While the court below found that the ‘‘primary”’ use for the seized
items was with controlled substances, the court did not conclude that
these items are solely usable with drugs. E.g., Memorandum Opizion
at 11, 17-18.
** E.g., Tr. 123, 153-54; see Memorandum Opinion at 14.
** Sixth Circuit Parma Decision, 638 F. 2d at 930.
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If the importer, manufacturer or seller of the seized
water pipes can be held liable under the Drug
Paraphernalia Act, then Brooks Brothers could be liable
for selling belts because belts can be and have been
adapted for use with controlled substances,** and any
seller of lawful shotguns could be arrested, since it is a
simple matter to change a lawful shotgun into an illegal
sawed-off shotgun.”
Since the “designed for use’ language is being
applied to items which are not solely designed for use
with controlled substances, the law must be declared
unconstitutional.*’ Otherwise, a “legitimate” importer or
manufacturer could be arrested, prosecuted, and
convicted and could have its inventory seized simply for
failing to guess the intended use of these items by a
purchaser or the marketing strategy of a retailer.
© Eg., Tr. 154-55.
** In declaring unconstitutional the definition of ‘‘drug paraphernalia’’
as items ‘designed’ for use with drugs, the court in Indiana v.
McCray, Case No. A1586-875 (Municipal Ct. Marion County, Ind.,
June 8, 1987) (copy attached hereto) stated:
IC 35-47-5-4 prohibits dealing in sawed off shotguns. It is well
known in law enforcement circles that single shot shotguns of
certain gauges are favorite subjects to be transformed into these
forbidden weapons. if the logic of the State in the instant case,
... were to be followed, then the dealers of these particular size
and type of shotguns would be held liable for the future illegal
acts of third parties.
*? See also McKinney v. Kentucky, No. 84-Ca-1172-DG (Ct. App. Dec.
15, 1985) (copy attached hereto). In fact, Congress never intended
that the Drug Paraphernalia Act would apply to items with both
lawful and unlawful uses. For example, Congressman Mel Levine, who
introduced the Act, stated: ‘‘We simply can’t include dual use items
or instruments which happen to be convertible into drug
paraphernalia.’’ Hearings at 17.
i sacnr rm site Ho
ree Fy
ey See
A81
Il. THE LIST OF “LOGICALLY RELEVANT
FACTORS” IS UNCONSTITUTIONAL.
Because the law does not outlaw only items which
are per se “drug paraphernalia” based on their design
characteristics, Congress included a list * of “logically
relevant factors’* which law enforcement officers,
judges and juries ‘“‘may use to determine whether an
object is ‘drug paraphernalia.” Rather than enhancing
the clarity of the law, however, the factors themselves
are unconstitutional.
,
A. The ‘Legitimate Supplier’’ Factor Is
Unconstitutionally Vague.
The factor listed in Section 857(e)(5) is
unconstitutionally vague. Section 857(e)(5) provides:
In determining whether an item constitutes drug
paraphernalia, in addition to all other logically
relevant factors, the following may be considered:
(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. ...
(Emphasis added.) Under the law of this Circuit, that
provision is unconstitutionally vague. The District Court
Parma Decision correctly explained:
[T]he reference to “‘legitimate’’ suppliers creates a
danger of arbitrary and discriminatory enforcement.
See Grayned v. City of Rockford, supra. Because the
provisions of this Ordinance apply to all who use,
** Section 857(e). The list in Section 857(e) is largely the same as the
list in the Ohio Ordinances. See District Court Parma Decision, 492
F. Supp. at 1170-71.
** Sixth Circuit Parma Decision, 638 F.2d at 933.
'* District Court Parma Decision, 492 F. Supp. at 1171.
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distribute or advertise even an innocent item with
the requisite intent, the term “legitimate’’ supplier
is imprecise ad misleading.
492 F.Supp. at 1171. This Court agreed with the
determination that the “legitimate supplier’ factor “‘is
both vague and overbroad’ and affirmed that ruling,'®
making it the unequivocal law of this Circuit.
While the District Court Parma Decision excised the
“legitimate supplier” factor, the district court below did
just the opposite, relying heavily on it. The Government
specifically offered its witnesses to provide evidence
about the “legitimate supplier’ factor.'** Repeatedly, the
Court cited to government testimony that the seized
goods were sold in an illegitimate “head shop,” not a
“legitimate store,”’ to justify the decision that the seized
items were ‘‘drug paraphernalia.’’'*
The use by the district court below of the ‘‘legitimate
supplier’ factor illustrates the serious threat posed to
‘legitimate’ manufacturers and sellers of pipes and
tobacco accessories identical to those seized. Police,
prosecutors, judges and juries are encouraged
subjectively to decide whether a supplier is “legitimate,”
without any explicit standards to guide them. Law-
abiding business people, including APAL and NATD
members, can be dragged into court and their inventories
can be seized arbitrarily and discriminatorily.
Since the district court below relied upon a provision
which has specifically been declared unconstitutional in
this Circuit, the decision of the district court below must
be reversed.
1! Sixth Circuit Parma Decision, 638 F.2d at 933 n.24.
2 709 F.2d at 536.
103 F.g., Tr. 105.
1 P.g., Tr. 602-603; Memorandum Opinion at 5-6, 14, 15, 16.
A83
B. The Remaining “Logically Relevant Factors”
Unconstitutionally Permit Criminal Conviction
And Seizure Of Property Based Upon Guilt
By Association.
Far from clarifying the meaning of ‘drug
paraphernalia,”’ several of the other “‘logically relevant
factors” also create addi
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