their manufacturer's or ultimate end-user's designs. It does
not relate to the defendant's state of mind; under the terms
of § 857, the defendant has only to have sold such objects. The
definitional language never shifts the focus onto the
defendant's scienter. See also Franza v. Carey, 518 F. Supp. 324,
339 (S.D.N.Y. 1981) (under Model Act, "seller's intent
that an item be used for a drug-related purpose defines drug
paraphernalia while his actual or constructive knowledge that
the sale or potential sale will facilitate illegal drug use
defines the offense").
Section 857 is therefore a strict liability offense. The
defendant's mens rea is not analyzed. Instead, one looks at
whether a person who designed an object had a drug-related
purpose or whether an end-user can use it in a drug-related
activity. That an object may have legitimate uses is only a
factor to consider when determining whether that object is
drug paraphernalia, and not when determining the defendant's
Due Process permits the imposition of strict criminal
liability. However, this allowance is narrow, generally
limited to statutes and offenses that are regulatory in
nature. Morissette, 342 U.S. at 260, 72 S.Ct. at 248; cf.
Hoffman Estates, 455 U.S. at 504, 102 S.Ct. at 1196. Section
857's nature is criminal. It does not attempt to license sales
of paraphernalia, it penalizes them. It carries a penalty of
not more than three years imprisonment and a $100,000 fine.
Moreover, violating its terms can serve as a predicate offense
for other crimes, including the money laundering charges
alleged here, furthering the statute's criminal nature and the
penalty that may be imposed. See, e.g.,
18 U.S.C. § 1956(c)(7)(D).
Hoffman Estates is also distinguishable. There, the Supreme
Court found a scienter requirement in a civil licensing
regulation's definition of drug paraphernalia. That regulation
applied to objects "designed or marketed for use" with drugs.
455 U.S. at 506, 102 S.Ct. at 1197. In a pre-enforcement facial
challenge brought by a retailer, the Court found that its
definition "requires scienter, since a retailer could scarcely
`market' items `for' a particular use without intending that
use." Id. at 502, 102 S.Ct. at 1195; see also Levas & Levas,
684 F.2d at 454-56 (pre-enforcement facial challenge to
ordinance imposing fine of $500 for sale of drug paraphernalia
The legislation here is a criminal statute, and the
challenge is being made post-enforcement. Section 857 does not
include the "marketed for use" language the Supreme Court
found acceptable, but instead targets objects "primarily
intended or designed for use" with drugs. The Supreme Court
itself found that "designed for use" did "contain
ambiguities," 455 U.S. at 502, 102 S.Ct. at 1195, and that its
focus is on the manufacturer of the objects, id. at 501 n. 19,
102 S.Ct. at 1195 n. 19. A stricter examination of this
criminal statute must be performed. Here, there is no
unambiguous intent language and no language that requires the
present defendants' intent to be analyzed.
The Court therefore finds that 21 U.S.C. § 857 is a strict
liability offense that is criminal in nature.
"[T]he void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement. . . . [T]he more
important aspect of the vagueness doctrine `is not the actual
notice, but the other principal element of the doctrine
— the requirement that a legislature establish minimal
guidelines to govern law enforcement.'" Kolender v. Lawson,
461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)
(quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242,
1247, 39 L.Ed.2d 605 (1974); citations omitted).
Defendants' vagueness challenge centers on the statute's
definition of drug paraphernalia. They argue that the phrase
"primarily intended or designed for use" is vague as applied
to their conduct and that
the list of fifteen examples and the eight factors to consider
when making a determination of whether an object is drug
paraphernalia do not save the definition.*fn4
The gist of the problem is that the word "primarily" changes
the focus of the determination. The phrase is not defined
further. Instead, the statute presents a number of factors to
consider in making a determination. The list of objects,
though, provides little guidance. Most seem to be pipes of one
sort or another, including "bongs,"*fn5 "chillums,"*fn6 and
"metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes." See also Hearings, supra, at 118-26 (statement of L.
Maccubbin). In fact, any type of pipe imaginable is included in
the list. Nor is the list exclusive, for the Government
contends that items not specifically listed may also be
considered paraphernalia under the rest of § 857(d), such as
The statute's focus is not placed on any objective factor,
but on the purposes of potential users or designers. To divine
what these purposes may be in a particular case, the statute
suggests examining a number of factors. These include
advertising, instructions concerning an object's use, whether
a defendant is a licensed distributor of tobacco products, and
the scope of legitimate uses for an object in the community.
21 U.S.C. § 857(e). If a decisionmaker is still uncertain,
"expert testimony concerning [an object's] use" may be
considered. Id. § 857(e)(8).
However, none of these factors aids the average person in
determining whether particular conduct falls within the
statute's terms. Its vagueness instead allows it to serve as
a tool of arbitrary enforcement.
An example illustrates why this is so. At oral argument, the
Government produced a pocket scale sold by the defendants. The
scale is calibrated in grams on one side, ounces on the other.
The Government submitted that the scale was an example of
"hard core" drug paraphernalia.*fn7 The defense has since
submitted a number of these scales, as well as a recent
article from the New York Times trumpeting their handy use as
postal scales. Postal Scale Grips, Weighs, Then Stores
Practically Anywhere, N.Y. Times, Aug. 3, 1991.
To use the device as a postal scale, one takes an envelope
and its contents, places it all inside an alligator clip,
suspends the device from one's finger and reads the weight
using the calibrated markings. Then the appropriate postage is
placed on the envelope, and it can be sent on its way.
To use the device as drug paraphernalia, one takes an
envelope and its contents, places it all inside an alligator
clip, suspends the device from one's finger and reads the
weight using the calibrated markings. Then one charges the
appropriate price for the contraband. Or one can simply remove
the alligator clip and use it as a roach clip.*fn8
Similar illustrations are easily imagined using pipes,
baggies, tobacco papers, stash cans, paper clips, spoons,
straws, razor blades, etc. See also U.S. Int'l Trade Comm.,
Report on Investigation No. 322-277, at 18-19. Many objects
that fall within the statute's terms have dual purposes.
Differentiating between purposes is at best guesswork, and the
statute's broad language
offers no guidance. The concerns about this very language
initially led both the Department of Justice and the Postal
Service to oppose it. See Hearings, supra, at 54 (statement of
J. Knapp, Deputy Ass't Attorney General, U.S. Dep't of
Justice); id. at 61 (statement of J. Swagerty, Ass't Chief
Inspector, U.S. Postal Inspection Service). The statute
attempts to cure this problem by exempting those people who are
authorized to distribute such items or those items that are
"traditionally intended for use with tobacco products."
21 U.S.C. § 857(f). However, the exemption is much more limited in
scope than the statute's reach.*fn9
The defendants' conduct further illustrates the infirmity.
They sought to avoid illegal or controversial products to the
point of refusing to sell certain products and of sending
their customers fliers informing them of the impending
illegality of one of their products. Yet even after what
appears to have been a conscious effort at compliance, they
find themselves in a "trap for the wary as well as the
unwary." Gentile v. State Bar of Nevada, ___ U.S. ___, ___, 111
S.Ct. 2720, 2732, 115 L.Ed.2d 888 (1991).
The inclusion of a scienter requirement often will save an
otherwise vague statute. Hoffman Estates, 455 U.S. at 499, 102
S.Ct. at 1193. Additionally, the rule of lenity may save an
ambiguous statute by narrowly construing it. Liparota, 471 U.S.
at 427, 105 S.Ct. at 2089. However, there is no scienter
standard in § 857 that applies to a defendant's conduct and,
even if under a lenient construction the statute is limited to
"hard core" paraphernalia, its application is still vague, as
set forth above.
Once again on this issue, Hoffman Estates is distinguishable.
The drug paraphernalia ordinance upheld there in a
pre-enforcement challenge was regulatory in nature. It imposed
a fine of $10 to $500 for selling drug paraphernalia without a
license or for otherwise violating its terms.*fn10 Drug
paraphernalia was defined as any item "designed or marketed for
use" with drugs. The Supreme Court found the "designed . . .
for use" standard marginally clear. It was bolstered by
"marketed for use," which "described a retailer's intentional
display and marketing of merchandise," thus providing scienter.
See 455 U.S. at 499-503, 102 S.Ct. at 1193-96.
Section 857 is a criminal statute. A greater degree of
specificity is required. Id. at 498, 102 S.Ct. at 1193. While
"designed for use" may be marginally acceptable in a regulatory
context, it is unacceptable in a criminal one. Moreover, § 857
lacks the language providing scienter for specific defendants
that the regulation in Hoffman Estates had. Instead, here the
issue is how some unknown person intends to use the object.
That a defendant, as here, is located at some mid-point in the
commerce stream is irrelevant. The addition of the word
"primarily" does not add guidance; it moves the analysis away
from the definite to the nebulous.
The statute also encourages arbitrary enforcement. The
Government contends that at trial it will show through the
various factors listed in § 857(e) that the objects at issue
are drug paraphernalia. No doubt this will consist mostly of
expert testimony concerning their use, advertising, and sales,
as permitted by § 857(e)(8). No doubt, the defendants will put
on their own experts who will testify in opposition to the
Government's experts. Whether or not criminal guilt has been
established may well be determined solely upon expert
Such a result breeds arbitrary prosecutions and inconsistent
results. If a particular enforcement agent on a particular day
sees a particular merchant selling a scale
or pipe, and at that moment believes the scale or pipe to be
paraphernalia, an arrest will be made, "making easy the
roundup of so-called undesirables." Papachristou v. City of
Jacksonville, 405 U.S. 156, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d
110 (1972). It will be up to the court to step inside the net
to determine whether that day's object, under that day's
circumstances, with the guidance of present day experts, is
indeed paraphernalia. Under such circumstances, the statute is
nothing more than "a convenient tool for `harsh and
discriminatory enforcement by . . . prosecuting officials,
against particular groups deemed to merit their displeasure.'"
Id. at 170, 92 S.Ct. at 847 (quoting Thornhill v. Alabama,
310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940)).
The perils of strict liability and arbitrariness are
particularly acute when, as here, a post hoc, ad hoc
determination must be made. Colautti v. Franklin, 439 U.S. 379,
395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979). Although drugs
and drug merchandizing wreak terrible costs on our society, and
Congress may do what it can to address these problems, the
Constitution does prescribe limits. Here, the limits imposed by
the Fifth Amendment's Due Process clause are breached. Section
857 is ambiguous and lacks a scienter requirement. It fails to
provide fair warning and to prevent arbitrary prosecutions.
Moreover, "this is not a case where further precision in the
statutory language is either impossible or impractical,"
Kolender, 461 U.S. at 361, 103 S.Ct. at 1860, for the Model
Statute provides a valid alternative. See, e.g., Levas & Levas,
684 F.2d 446. 21 U.S.C. § 857 is unconstitutional. The counts
in the indictment charging the defendants with selling and
conspiring to sell drug paraphernalia are therefore dismissed.
V. Money Laundering
Defendants also challenge the application of the Money
Laundering Control Act, 18 U.S.C. § 1956, 1957, to their
behavior and its constitutionality. However, the two money
laundering counts are based solely on the alleged violations of
the drug paraphernalia statute. 21 U.S.C. § 857(a). Since this
opinion holds that § 857 is unconstitutional, these contentions
will not be addressed. The money laundering counts against the
defendants are dismissed in view of the dismissal of the
underlying § 857 counts.
For the reasons stated above, defendants motion to suppress
is denied. Defendants motion declaring 21 U.S.C. § 857
unconstitutional is granted, and the indictment against the
It is so ordered.