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U.S. v. SCHNEIDERMAN

October 29, 1991

UNITED STATES OF AMERICA,
v.
JERRY SCHNEIDERMAN, JERRY RANALLO, LARRY BUTLER AND INSERTION ADVERTISING CORP., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Defendants Jerry Schneiderman ("Schneiderman"), Jerry Ranallo ("Ranallo"), Larry Butler ("Butler") and Insertion Advertising Corp. ("Insertion Advertising") have been charged in a fourteen count indictment with selling and conspiring to sell drug paraphernalia through the services of an interstate conveyance under 21 U.S.C. § 857 and with laundering and conspiring to launder the proceeds of such sales under 18 U.S.C. § 1956 and 1957.

The defendants have moved to suppress all evidence seized pursuant to search warrants issued on August 20, 1990, to dismiss the drug paraphernalia charges on grounds that § 857 is unconstitutionally vague, and to dismiss the money laundering charges on grounds that the statute is not violated by their conduct or that it is unconstitutionally vague as applied to their conduct. For the reasons stated below, the motion to suppress is denied. The motion to declare § 857 unconstitutional is granted, and the charges against the defendants are dismissed. The constitutionality of § 1956 and § 1957 is not addressed.

I. The Statute

The statute giving rise to the indictment and the warrants at issue is 21 U.S.C. § 857. It was enacted in 1986 as part of the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207, in an attempt to stem the flow of drug paraphernalia sales. Hearings Before the Subcomm. on Crime of the House Comm. of the Judiciary on H.R. 1625, 99th Cong., 2d Sess. 16-17 (1986) [hereinafter Hearings] (statement of Rep. Levine). It was proposed to "help in the effort to end drug abuse by reemphasizing that society continues to oppose any glamorization or acceptance of dangerous drug use." Id. at 18.

Section 857 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;

(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 education purposes by
  Federal, State, or local 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, compounding, converting,
  concealing, producing, processing, preparing,
  injecting, ingesting, inhaling, or otherwise
  introducing into the human body a controlled
  substance, possession of which is unlawful under
  the Controlled Substances Act (title II of Public
  Law 91-513). It includes items primarily intended
  or designed for use in ingesting, inhaling, or
  otherwise introducing marijuana, cocaine,
  hashish, hashish oil, PCP, or amphetamines into
  the human body, such as —
    (1) metal, wooden, acrylic, glass, stone,
    plastic, or ceramic pipes with or without
    screens, permanent screens, hashish heads, or
    punctured metal bowls;

(2) water pipes;

(3) carburetion tubes and devices;

(4) smoking and carburetion masks;

    (5) roach clips: meaning objects used to hold
    burning material, such as a marihuana
    cigarette, that has become too small or too
    short to be held in the hand;
    (6) miniature spoons with level capacities of
    one-tenth cubic centimeter or less;

(7) chamber pipes;

(8) carburetor pipes;

(9) electric pipes;

(10) air-driven pipes;

(11) chillums;

(12) bongs;

(13) ice pipes or chillers;

(14) wired cigarette papers; or

(15) cocaine freebase kits.

  (e) Matters considered in determination of what
  constitutes drug paraphernalia
    In determining whether an item constitutes drug
  paraphernalia, in addition to all other logically
  relevant factors, the following may be
  considered:
    (1) instructions, oral or written, provided
    with the item concerning its use;
    (2) descriptive materials accompanying the item
    which explain or depict its use;
    (3) national and local advertising concerning
    its use;
    (4) the manner in which the item is displayed
    for sale;
    (5) whether the owner, or anyone in control of
    the item, is a legitimate supplier of like or
    related items to the community, such as a
    licensed distributor or dealer of tobacco
    products;
    (6) direct or circumstantial evidence of the
    ratio of sales of the item(s) to the total
    sales ...

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