The opinion of the court was delivered by: Brieant, Chief Judge.
By an indictment filed on April 5, 1990, defendant Richard
Milani, Jr. is charged with one count of "Establishment of
Manufacturing Operations" in violation of 21 U.S.C. § 856.
Specifically defendant is charged with knowingly and
intentionally making available an apartment for the "purpose of
distributing and using" cocaine and with managing and
controlling the basement apartment of his father's home at
Holmes, New York and making it available for the purpose of
"storing, distributing and using" cocaine. Defendant moves to
dismiss the indictment, challenging the constitutionality of
21 U.S.C. § 856 on two grounds: (1) the statute is facially
unconstitutional because the terms "using" and "storing" are
impermissibly vague; and (2) the terms "using" and "storing"
are impermissibly vague as applied to defendant.
The statute, in pertinent part, reads:
Establishment of manufacturing operations
(a) Except as authorized by this title, it shall
be unlawful to —
(1) knowingly open or maintain any place for the
purpose of manufacturing, distributing, or using
any controlled substance;
(2) manage or control any building, room, or
enclosure, either as an owner, lessee, agent,
employee, or mortgagee, and knowingly and
intentionally rent, lease, or make available for
use, with or without compensation, the building,
room, or enclosure for the purpose of unlawfully
manufacturing, storing, distributing, or using a
Defendant argues that the statute does not give adequate
notice of the conduct being proscribed as illegal and permits
arbitrary and discriminatory enforcement. In the absence of a
plenary trial record this Court is unable to rule on whether
the statute is impermissibly vague as applied to defendant.
Surely it is not void on its face.
This statute, while enacted recently, follows a time-honored
tradition, and is analogous to penal statutes such as those
criminalizing the conduct of landlords of houses of
prostitution, e.g. New York Penal Law § 230.40:
A person is guilty of permitting prostitution
when, having possession or control of a premises
which he knows are being used for prostitution
purposes, he fails to make reasonable effort to
halt or abate such use.
This New York statute, in its present and earlier forms, has
endured for more than a century. Its facial constitutionality
has long been assumed, as was so held in a recent case.
People v. Gilmore, 120 Misc.2d 741, 468 N.Y.S.2d 965 (City
Ct.Mt. Vernon 1983). Similarly, during National Prohibition it
was a federal crime, with knowledge, to "suffer" a room, house,
building, boat vehicle, structure or place to be "occupied or
used" for the unlawful "manufacture or sale" of liquor. See c.
85 Title II § 21 of the National Prohibition Act, too verbose
to be quoted in full herein. In a generation not involved in
the so-called War on Drugs, and highly attuned to individual
rights, especially concerning liquor, the facial
constitutionality of this provision was never questioned.
The use of such common English words such as "manufacturing",
"using", storing" or "distributing" in proscribing conduct is