57,261 ITEMS OF DRUG PARAPHERNALIA, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 89-212 In the Supreme Court of the United States October Term, 1989 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States in Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A16) is reported at 869 F.2d 955. The opinion of the district court (Pet. App. A17-A43) is reported at 705 F. Supp. 1256. JURISDICTION The judgment of the court of appeals was entered on March 14, 1989. A petition for rehearing was denied on May 10, 1989. The petition for a writ of certiorari was filed on August 5, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Mail Order Drug Paraphernalia Control Act, 21 U.S.C. 857 (Supp. V 1987), is void for vagueness. 2. Whether drug paraphernalia, as defined in 21 U.S.C. 857(d) (Supp. V 1987), is subject to civil forfeiture under 19 U.S.C. 1595a (1982 & Supp. V 1987) when it is imported into this country in violation of law. STATEMENT On August 19, 1987, the government instituted this civil forfeiture action pursuant to 19 U.S.C. 1595a (1982 & Supp. V 1987) against three shipments of ceramic pipes, water pipes, and ceramic cigarette holders imported from Japan by petitioner Contempo Products, Inc. The forfeiture complaint alleged that the items were subject to forfeiture because they were unlawful drug paraphernalia under 21 U.S.C. 857 (Supp. V 1987). Following a bench trial, the district court entered a judgment of forfeiture. The court of appeals affirmed. 1. The background of this case is set forth in the opinion of the district court (Pet. App. A19-A24). In early 1987, petitioner Contempo Products, Inc., imported a shipment of ceramic pipes and ceramic cigarette holders manufactured by a Japanese company. The shipment was unloaded in Seattle, Washington, but the items were kept in sealed containers until they reached Nashville, Tennessee, which served as the port of entry. Through the Customs Service's national computer network, Customs agents in Nashville were alerted on February 25, 1987, that the tariff numbers of the items in the shipment indicated that the items might be drug paraphernalia that would be prohibited under the recently enacted Mail Order Drug Paraphernalia Control Act (Drug Paraphernalia Act), 21 U.S.C. 857 (Supp. V 1987). The next day, Customs agents examined the ceramic pipes and cigarette holders in the shipment and sent samples to the Customs Service regional counsel's office in New Orleans, Louisiana. Pet. App. A21. After the Customs agents in Nashville received a copy of the Drug Paraphernalia Act, they went to the offices of the import broker for Contempo and informed him that the shipment of ceramic pipes and cigarette holders was being detained for a determination whether the items were drug paraphernalia. The import broker informed the agents that two additional shipments of similar items were expected to arrive in Nashville shortly, and he provided the agents with invoices for those shipments. The invoices showed that the second shipment contained water pipes and the third shipment contained ceramic pipes and ceramic cigarette holders similar to those being detained from the first shipment. Pet. App. A21-A22. Shortly afterwards, a Customs agent went to a retail store in Nashville operated by Contempo. There, he observed that Contempo sold ceramic pipes and ceramic cigarette holders like those in the shipment being detained, as well as water pipes, scales, mirrors, straws, and razors. The agent concluded that Contempo was operating a "head shop" that sold drug paraphernalia to drug users. Based on his past experience, the agent also concluded that the ceramic pipes, ceramic cigarette holders, and water pipes were used exclusively for introducing controlled substances, particularly marijuana, into the body. Pet. App. A22-A23. On March 19, 1987, after consulting with the regional counsel's office, Customs agents seized the items in the first shipment for forfeiture pursuant to 19 U.S.C. 1595a(c) (Supp. V 1987). The next day, the second shipment containing the water pipes arrived in Nashville; the agents seized that shipment after matching it with the invoice provided by the import broker. Six days later, the third shipment arrived. It contained ceramic pipes and ceramic cigarette holders. The agents seized that shipment after matching it with the invoice from the import broker. All three shipments were later combined into one seizure for purposes of the forfeiture proceedings, and Contempo filed a claim to the seized items. Pet. App. A23-A24. 2. Following a bench trial, the district court held that the three seized shipments of cigarette holders, ceramic pipes, and water pipes were drug paraphernalia as defined by 21 U.S.C. 857 (Supp. V 1987) and were subject to forfeiture pursuant to 19 U.S.C. 1595a (1982 & Supp. V 1987). Pet. App. A35-A43. Based on "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," Pet. App. A29, the court found that the government had "more than met its burden" of establishing probable cause to believe that the items were drug paraphernalia. Id. at A32-A34. The court also found that Contempo "failed to meet its burden of proving that the seized items are not drug paraphernalia," id. at A34, and that "there are minimal, if any, legitimate uses for such items in this community." Id. at A35. The district court noted that the evidence at trial had established that the seized items were "particularly suited to the inhalation of controlled substances and not to the inhalation of tobacco products." Pet. App. A30. The court observed that the bowls in the seized ceramic pipes were too small to hold enough tobacco for the average smoker, but would be suitable for smoking marijuana, which is normally used in smaller quantities than tobacco. In addition, the pipes were equipped with a screen device and a "carburetor" hole in the bowl, features that were suited to smoking marijuana but would not be suitable for smoking tobacco. Ibid. Likewise, the district court found that the ceramic cigarette holders were "particularly suited to smoking marijuana." They were washable, and thus permitted the smoker to wash out the sticky resin left by burning marijuana. They were shaped in a way that made them suitable for holding hand-rolled cigarettes but not convential commercially rolled cigarettes. And they were designed to permit the smoker to consume the entire cigarette, a practice common among marijuana smokers but not common among tobacco smokers. Pet. App. A31. The water pipes were also found to be particularly suited to marijuana smoking. Because marijuana burns better than tobacco, the water serves the purpose of cooling the marijuana smoke, something that is not necessary in the case of tobacco. Moreover, the court noted, because tobacco in this country is cured and processed, it is not so strong as to require water filtering, so the use of water pipes in this country is virtually unknown among tobacco smokers. In addition, the court noted that several of the seized water pipes had more than one opening, so that more than one person could smoke from the pipe at once. That, the court found, was a practice common among marijuana smokers, but not among tobacco smokers. Pet. App. A31. Based on these findings, the district court concluded that "in this country (the three categories of seized items) are intended for use with controlled substances and are drug paraphernalia as defined by 21 U.S.C. Section 857." Id. at A35. Rejecting petitioners' argument that drug paraphernalia is subject to forfeiture only under the criminal forfeiture provisions of 21 U.S.C. 857(c) (Supp. V 1987), the district court also concluded that "the provisions of 19 U.S.C. Section 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. Section 857(a)." Pet. App. A41. The court observed that "(b)oth 21 U.S.C. Section 857 and 19 U.S.C. Section 1595a(c) were enacted as part of the Anti-Drug Abuse Act of 1986," Pet. App. A36, and that "there is no indication that Congress intended the criminal forfeiture provision of 21 U.S.C. Section 857(c) to be the exclusive provision for the forfeiture of drug paraphernalia imported into this country contrary to law." Pet. App. A41. The court also noted that 19 U.S.C. 1595a (1982 & Supp. V 1987) and 21 U.S.C. 857(c) (Supp. V 1987) "compl(e)ment one another" because "(t)he 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." Pet. App. A41. The court accordingly entered a judgment of civil forfeiture pursuant to 19 U.S.C. 1595a (1982 & Supp. V 1987) against the 57,261 items of drug paraphernalia seized in the three shipments. 3. The court of appeals affirmed. Pet. App. A1-A16. The court first rejected petitioners' claim that 21 U.S.C. 857 (Supp. V 1987) was unconstitutionally vague because its definition of drug paraphernalia extended to cover pipes and cigarette holders that could be used in a lawful manner to smoke tobacco. Relying on Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), the court concluded that 21 U.S.C. 857 (Supp. V 1987) "is not invalid on its face" because "(i)t is clear that the federal statute may not be applied under its terms to items intended for innocent use." Pet. App. A4-A5. Since 21 U.S.C. 857(d) (Supp. V 1987) defines drug paraphernalia to include only items "primarily intended or designed for drug use," the court explained that "(t)he statute requires an intent to distribute the items for drug use" and "thus creates a scienter requirement." Pet. App. A5. The court therefore concluded that "(t)he explicit intent requirement saves the statute from this claim of vagueness" because "(i)f the items are not intended for drug use, the statute does not create criminal liability or subject the goods to forfeiture." Ibid. The court of appeals then found that the ceramic pipes, cigarette holders, and water pipes were subject to forfeiture because the evidence at trial established that the importer knew that the items would be used in the drug trade. Noting that the trial was "a battle of experts," the court concluded that the district court "did not err in finding that these items are associated exclusively with the inhalation of drugs in the American drug culture." Pet. App. A7. The court explained that "(p)ossession or importation of a large quantity of such items for distribution, in itself, raises an inference of guilty knowledge." Ibid. The court also observed that Contempo's operation of a retail "head shop" that sold drug gear and equipment was "(t)he most devastating evidence of Contempo's guilty knowledge." Id. at A7-A8. The court therefore found that the district court "made a reasonable inference that Contempo had knowledge that the shipment would be used in the drug trade." Id. at A8. For the reasons stated by the district court, the court of appeals also rejected petitioners' argument that drug paraphernalia is subject to forfeiture only under the criminal forfeiture provisions of 21 U.S.C. 857(c) (Supp. V 1987). Pet. App. A9. Noting that "the purposes of the civil and criminal forfeiture provisions are quite different," the court concluded that 21 U.S.C. 857(c) (Supp. V 1987) and 19 U.S.C. 1595a(c) (Supp. V 1987) "are not mutually exclusive," Pet. App. A10, and that merchandise that was unlawfully imported in violation of the drug paraphernalia statute could properly be forfeited under the general Customs civil forfeiture statute, 19 U.S.C. 1595a(c) (Supp. V 1987). ARGUMENT 1. Petitioners first renew their argument (Pet. 6-13) that the Drug Paraphernalia Act, 21 U.S.C. 857 (Supp. V 1987), is void for vagueness. That contention is plainly without merit. A penal statute must define a 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." Kolender v. Lawson, 461 U.S. 352, 357 (1983). See also Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). The Drug Paraphernalia Act meets that standard. The statute defines "drug paraphernalia" to mean items that are "primarily intended or designed for use" in the process of introducing controlled substances into the human body. 21 U.S.C. 857(d) (Supp. V 1987). The Act then lists 15 examples of items of drug paraphernalia. That list includes "water pipes" and "carburetor pipes," which describe two of the classes of items seized in this case. The statute then provides a series of factors to be used in determining whether an item constitutes drug paraphernalia, including the manner in which the item is displayed for sale and the existence and scope of legitimate uses of the item in the community. 21 U.S.C. 857(e) (Supp. V 1987). Finally, the Act contains a specific exemption for "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." /*/ 21 U.S.C. 857(f)(2) (Supp. V 1987). In light of the specificity of the definition, the listing of examples, the notation of factors that bear on the definitional issue, and the specific exemption of items primarily intended to be used with tobacco products, Section 857(d) is not unconstitutionally vague. If a product is not primarily intended or designed for an illicit use, and particularly if it is primarily intended for use with tobacco products, the item is in no danger of being held to be "drug paraphernalia." The primary design or intended use of an item is normally relatively easy to determine; in this case, for example, the three items were very clearly designed for use with marijuana, and not with tobacco products, as the district court found. It is difficult to imagine how Congress could have been more specific in defining "drug paraphernalia," except to list the prohibited items one by one, a course that would have invited evasion by inventive design as well as encouraging litigation over the definitional limits of each specific class of item. As the court of appeals noted, the Act is further protected from claims of vagueness by the requirement that the affected party intend to distribute the items for drug use in order for the items to be considered drug paraphernalia. It is well settled that "a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. at 499. See also Liparota v. United States, 471 U.S. 419, 427 (1985). As the court of appeals explained, the application of the Drug Paraphernalia Act only to items "primarily intended or designed" for use with drugs creates a scienter requirement because "(t)he person to whom the statute is being applied * * * must have knowledge that there is a strong probability that the items will be used in this way." Pet. App. A5. Because the scienter requirement is an essential part of the determination that particular items are contraband, the Act is not unconstitutionally vague. See United States v. Main Street Distributing Inc., 700 F. Supp. 655, 668-669 (E.D.N.Y. 1988). Cf. Garner v. White, 726 F.2d 1274, 1279 (8th Cir. 1984); Nova Records, Inc. v. Sendak, 706 F.2d 782, 787 (7th Cir. 1983); Levas & Levas v. Village of Antioch, 684 F.2d 446, 452-454 (7th Cir. 1982); Tobacco Accessories & Novelty Craftsmen Merchants Ass'n v. Treen, 681 F.2d 378, 383-385 (5th Cir. 1982). Petitioners appear to contend that the Drug Paraphernalia Act is unconstitutionally vague because the definition of drug paraphernalia is broad enough to cover pipes and cigarette holders that could be used in a lawful manner to smoke tobacco. The fact that a particular item may have both lawful and unlawful uses, however, does not render the Drug Paraphernalia Act unconstitutionally vague, because the statute requires that the items in question be intended for an illicit use. See Levas & Levas v. Village of Antioch, 684 F.2d at 453. As the court of appeals pointed out, "(i)f the items are not intended for drug use, the statute does not create criminal liability or subject the goods to forfeiture." Pet. App. A5. Contrary to petitioners' claim (Pet. 6), the decision of the court of appeals does not conflict with this Court's decision in Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., supra. Instead, as the court of appeals explained, the decision in Hoffman Estates provides strong support for the decision below. In Hoffman Estates, the Court upheld a drug paraphernalia ordinance that made it unlawful to sell items "designed or marketed for use" with illegal drugs. 455 U.S. at 500. That language is almost exactly the same as the definitional language in the statute under review here, which prohibits items "intended or designed for use" with illicit substances. The Court explained in Hoffman Estates that the drug paraphernalia statute at issue there contained both an objective and a subjective element: the item in question either had to be "principally used with illegal drugs by virtue of its objective features" or had to be marketed in a way that "appeals to or encourages illegal drug use." 455 U.S. at 501, 502. The statute in this case is, if anything, even narrower. As the court of appeals noted, a party is liable under the Drug Paraphernalia Act only if the item in question is principally used in connection with illegal drug activity and the party is aware "that there is a strong probabilty that the items will be used in this way." Pet. App. A5. What is more, the district court found in this case (1) that the seized items were designed for illicit use and did not have any legitimate functions, and (2) that the importer was well aware of that fact. Accordingly, Hoffman Estates provides strong support for the judgment of the lower courts in this case. 2. Petitioners also renew their contention (Pet. 14-18) that drug paraphernalia is not subject to forfeiture under 19 U.S.C. 1595a (1982 & Supp. V 1987) because the Drug Paraphernalia Act contains its own forfeiture provision, 21 U.S.C. 857(c) (Supp. V 1987). Ordinarily, when two statutes have overlapping coverage, but 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." Morton v. Mancari, 417 U.S. 535, 551 (1974). There is no such indication of congressional intent with respect to the overlapping application of Sections 857(c) and 1595a. Civil and criminal forfeiture provisions often co-exist as alternative remedies for the same or similar conduct. See One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232 (1972); United States v. Dunn, 802 F.2d 646 (2d Cir. 1986), cert. denied, 480 U.S. 931 (1987). The permissibility of alternative remedies is even clearer here, where the two forfeiture provisions serve very different purposes and have only a limited area of overlap: the general Customs civil forfeiture provision supplements the enforcement of the Customs laws against the importation of contraband, while the criminal forfeiture provision of the Drug Paraphernalia Act helps in the enforcement of the statute that prohibits trafficking in drug paraphernalia. There is no reason that, when both statutes are applicable, the government should not be free to choose between them. The government's decision in this case to proceed under the Customs civil forfeiture statute, rather than the forfeiture provision of the Drug Paraphernalia Act, was therefore, a perfectly permissible choice between two equally available remedies. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney OCTOBER 1989 /*/ Section 857 was recently amended by the Anti-Drug Abuse Act of 1988 to exempt items "traditionally" -- rather than "primarily" -- intended for use with tobacco products. Pub. L. No. 100-690, Tit. VI, Section 6485, 102 Stat. 4384.