United States of America v. Search of Music City Marketing , Inc.

16 United States v. Search of Music City
Marketing
No. 99-5260
(6th Cir. 1992), this Court recognized entrapment by estoppel
as a defense to criminal prosecution. Because the government
has not begun any criminal prosecution of Music City, this
defense is not yet appropriate. Under Rule 41(e), the
g o v e r n m e n t n e e d n o t r e t u r n t h e s e i z e d
contraband—regardless of any prior representations regarding
the legality of the items.
IV.
For the foregoing reasons, we AFFIRM the district court’s
denial of Music City’s Fed. R. Crim. P. 41(e) motion for the
return of its property.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0164P (6th Cir.)
File Name: 00a0164p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Appellee,
v.
S EARCH OF M USIC C ITY
M ARKETING , INC.,
Appellant.
;>

1
No. 99-5260
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 98-03096—Thomas A. Higgins, District Judge.
Argued: March 7, 2000
Decided and Filed: May 12, 2000
Before: MARTIN, Chief Judge; KENNEDY and
SUHRHEINRICH, Circuit Judges.
_________________
COUNSEL
ARGUED: Alfred H. Knight, WILLIS & KNIGHT,
Nashville, Tennessee, for Appellant. Harold B. McDonough,
Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: Alfred H. Knight,
Alan D. Johnson, WILLIS & KNIGHT, Nashville, Tennessee,

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2 United States v. Search of Music City
Marketing
No. 99-5260
Hal D. Hardin, LAW OFFICES OF HAL D. HARDIN,
Nashville, Tennessee, for Appellant. Harold B. McDonough,
Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. In June of 1998 United States
Customs Agents executed a warrant to search the premises of
Music City Marketing (“Music City”) for drug paraphernalia;
seizing various merchandise that they believed qualified as
such in the process. Music City filed a motion in the district
court for the return of the seized property pursuant to Fed. R.
Crim. P. 41(e). After conducting a hearing, the court found
the majority of the seized items were drug paraphernalia and
thus contraband. As a result, the court denied plaintiff’s
motion with respect to those items. Music City appealed,
arguing: (1) that the definition of drug paraphernalia
contained in 21 U.S.C. § 863 was unconstitutionally vague as
applied to the seized items; and (2) that based on prior
representations made by United States Customs Officers, it
was a violation of due process for the government to seize the
items at issue. For the following reasons we affirm the district
court’s holding that the merchandise was drug paraphernalia
that as contraband could not be returned to Music City.
I.
In 1989, approximately nine years prior to the seizure at
issue, United States Customs Officers searched the warehouse
used by Music City and its subsidiary Contempo Tobacco
Products, Inc., seizing several truck loads of what was
determined to be drug paraphernalia. Music City engaged in
settlement negotiations with the United States, initially
proposing that the government acknowledge that all of the
merchandise not seized from the warehouse could be legally
sold. The government declined, and Music City entered into
No. 99-5260 United States v. Search of Music City
Marketing
15
with drugs in the community. The court found that Music
City had put on no credible evidence refuting the
government’s contention that the snuff dispensers were used
primarily to administer drugs. With respect to the scales, the
court noted that while they were multi-use items, they were
housed in a warehouse containing other drug paraphernalia.
Based on this evidence, the court concluded that the items at
issue were primarily intended or designed for use with
controlled substances. Under these circumstances we cannot
say that the district court erred in arriving at this conclusion.
C.f. 57, 261 Items of Drug Paraphernalia, 869 F.2d at 958–59
(evaluating the evidence considered by the district court and
concluding the court had not erred in concluding that the
items at issue qualified as drug paraphernalia and thus were
properly subject to civil forfeiture under the Customs Statute).
III.
Music City also argues that based on the government’s
actions during the seizure of Music City’s inventory in 1989,
as a matter of due process it could not pronounce the items
seized in 1998 to be drug paraphernalia. Music City places
great weight on the fact that after Customs agents seized
items from its warehouse in 1989, the government left behind
items that were essentially identical to items seized in 1998.
Music City also alleges that some Customs agents made
statements implying that items remaining in Music City’s
inventory after the 1989 seizure could legally be sold, at least
in the Middle District of Tennessee. Further, Music City
points out that a list of prohibited items was attached to its
plea agreement and that none of these items were present in
1998. Finally, Music City notes that for three years after
entering into the plea agreement it sent catalogs containing
items seized in 1998 to the Customs office.
Based on these facts, Music City asserts that the criminal
doctrine of entrapment by estoppel should prevent the
government from categorizing the seized items as drug
paraphernalia. In United States v. Levin, 973 F.2d 463, 468

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14 United States v. Search of Music City
Marketing
No. 99-5260
challenge the district court’s factual finding that the pipes and
other items at issue qualified as drug paraphernalia under the
statute. To the extent that Music City has made this
argument, we affirm the district court.
After conducting a two day evidentiary hearing, the district
court individually evaluated each item at issue in detail. The
court considered: descriptive material included with some of
the seized items, the fact that Music City’s retail stores sold
legitimate tobacco products, testimony from multiple
witnesses, advertised and actual uses of the items in the
community, a treatise defining slang terms, and expert
testimony concerning the items’ uses. With regard to the
pipes, the court credited Custom Agent Mangione’s expert
testimony as to their use in the community and their design
characteristics. Agent Mangione had been involved with drug
paraphernalia investigations since 1989 and had extensive
training and experience dealing with drug paraphernalia. The
court observed that Agent Mangione testified as to the various
pipes’ design characteristics that were more consistent with
marijuana than tobacco use, including an invariably small
bowl size, bowl covers without holes, lack of traditional
mouthpieces and stems, lack of filters, and the fact that some
of the pipes were constructed of material that would become
too hot to hold in one’s mouth if smoked for any length of
time. Similarly, Agent Magione testified that the “dug outs”
and “SmokeLess” systems were commonly used in the
community to smoke marijuana. Agent Magione also pointed
out that the metal or ceramic “bats” included with these items
were too small to allow the user to inhale more than a few
puffs of smoke and were therefore more consistent with
smoking marijuana than tobacco. With respect to the metal
screens, the court noted that Agent Mangione testified that
they were commonly used in small marijuana pipes to keep
seeds and stems from being sucked into the smoker’s throat,
but were not used in traditional tobacco pipes. Regarding the
snuff dispenser components, the court observed that they were
seized in conjunction with other drug paraphernalia and
Agent Magione testified that he had often observed their use
No. 99-5260 United States v. Search of Music City
Marketing
3
1The “dug outs” and “SmokeLess Smoking Systems” consisted of a
hollow wood or plastic box with a covered compartment in which the
smoking material could be stored and another covered storage
compartment in which a hollow metal or ceramic cigarette shaped “bat”
was kept. When the cover was moved to expose the bat, a spring would
partially eject it for smoking.
a plea agreement, acknowledging its guilt and agreeing to the
forfeiture of the truckloads of seized merchandise and the
payment of a one million dollar fine within six years. Music
City did not pay the entire fine as required, but has continued
to pay one thousand dollars a month since the plea agreement
was reached in 1990. For two to three years following the
seizure of items from its warehouse, Music City also sent the
local United States Customs Office a catalog of the items it
was offering for sale.
In June of 1998, Customs agents once again obtained a
search warrant for Music City’s premises. Customs agents
found items that they believed to be drug paraphernalia,
although none of the items seized in 1998 appear to be
identical to those found in 1989. The agents seized cigarette
holders, various types of small pipes, scales, filter screens,
“dugouts,” “SmokeLess Smoking Systems,” and raw material
for snuff dispensers.1 The approximate value of the seized
inventory was $600,000.
Music City filed a motion in the district court for the return
of the property under Fed. R. Crim. P. 41(e). The district
court conducted a two day evidentiary hearing, viewing
exhibits introduced by both the government and Music City
and listening to testimony of Customs agents, local police,
tabacconists, and executives and employees of Music City.
The court found that the seized items were drug paraphernalia
as defined in 21 U.S.C. § 863, summarizing its reasoning as
follows:
The Court has considered the relevant criteria set forth in
21 U.S.C. § 863(e), including the descriptive material

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4 United States v. Search of Music City
Marketing
No. 99-5260
included with some of the seized items, the fact that
Music City’s retail stores sell legitimate tobacco
products, the scope of the legitimate uses of the items in
the community, and the expert testimony concerning the
items’ use. The Court concludes that these items are
primarily intended or designed for use with controlled
substances and thus are drug paraphernalia as defined by
21 U.S.C. § 863.
Accordingly, the district court issued a memorandum and
order denying Music City’s Rule 41(e) motion with regard to
the majority of the seized items on the basis that Music City’s
inventory was contraband and thus could not be returned,
regardless of whether or not the government properly
obtained and executed its search warrant. However, the court
did order the return of cigarette holders as well as a plastic
tube called a “head rush,” thought to be a component that
could be used in making a “bong,”which the government
acknowledged were improperly seized
II.
A.
There is no criminal indictment or proceeding pending
against Music City. Thus, Music City’s Rule 41(e) motion for
the return of its property was really in the nature of a civil
proceeding invoking the court’s equitable powers, rather than
a criminal proceeding. See White Fabricating Co. v. United
States, 903 F.2d 404, 407–08, (6th Cir. 1990) (holding that a
district court has jurisdiction to entertain a Rule 41(e) motion
for the return of property before a criminal prosecution has
begun, believing such a motion to be, in effect, a civil action);
Delta Engineering v. United States, 41 F.3d 259, 262 n.2 (6th
Cir. 1994) (observing that “it is well established in this circuit
that courts have jurisdiction to hear Rule 41(e) motions in the
absence of criminal proceedings,” and citing White
Fabricating Co. as support for this proposition). The district
court found that because Music City would suffer irreparable
No. 99-5260 United States v. Search of Music City
Marketing
13
8In the case at bar we are confronted with a defendant who dealt in
a number of items that clearly qualified as drug paraphernalia. As a
result, we need not address whether the statute would sufficiently warn
legitimate merchants selling only multiple use items of the conduct that
could render such items drug paraphernalia, thereby subjecting them to
civil forfeiture.
United States v. Spy Factory, Inc., 951 F. Supp. 450, 476–77
(S.D.N.Y. 1997) (analyzing a vagueness as applied argument
raised against the Wiretap Act and comparing the statute’s
language with that of the drug paraphernalia statute).
With respect to fair warning, the statute’s specificity
contradicts Music City’s contention that the statute did not
provide sufficient guidance to warn of the conduct which it
prohibits. Additionally, Hoffman Estates undercuts Music
City’s fair warning arguments. In Hoffman Estates, the
Supreme Court discussed the “designed for use” phrase that
the Village of Hoffman Estates used in a drug paraphernalia
statute very similar to the one at issue here. The Court
confirmed that the phrase had an objective meaning and
observed that no issue of fair warning was present in the case,
because, as Flipside conceded, the phrase referred to an item’s
structural characteristics. Hoffman Estates, 455 U.S. at 501,
102 S. Ct. at 1195. Similarly, in the case at bar, it is the
items’ likely use and structural characteristics that must be
evaluated, largely eliminating fair warning as an issue. 8
Under these circumstances, we conclude that as applied to
the items that the district court found to be drug
paraphernalia, 21 U.S.C. § 863 provides fair warning of the
conduct that is prohibited and sufficiently limits the danger of
arbitrary enforcement.
B.
Music City largely confines its focus to the assertion we
addressed above, that the statute was unconstitutional as
applied. However, some of Music City’s arguments appear to

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12 United States v. Search of Music City
Marketing
No. 99-5260
to largely be contrived. However, because at least the majority of the
pipes were not multi-use items, our resolution of the status of the “dug
outs” and “SmokeLess System” is not critical to our decision.
7Music City complains that the district court gave too much credit to
Custom Agent Magione’s testimony regarding which items were drug
paraphernalia. This argument, however, is addressed to the validity of the
district court’s finding that the items were drug paraphernalia, rather than
whether the statute allows arbitrary enforcement with respect to the seized
items.
the objective characteristics of some items, including certain
kinds of pipes, establish that they are designed for use with
controlled substances, as they have no other use besides
contrived ones). Therefore, Music City does not fit the
scenario posited by the Supreme Court, that of a legitimate
merchant “engaging in the sale of only multiple use items.”
Id. at 526, 114 S. Ct. at 1755 (emphasis added).
With respect to Music City’s vagueness arguments
concerning the Aristocrat snuff dispensers, small gauge mesh
screens, variously sized scales, “dugouts,” springs used in
manufacturing the “dugouts,” metal cigarettes (or “bats”) used
with the “dugouts,” and the “SmokeLess System,” we
conclude that § 863 is not unconstitutionally vague in
application. First, with respect to the danger of arbitrary
enforcement, the objective factors listed in § 863(e), in
conjunction with the definition of drug paraphernalia
contained in subsection (d), and the exemption of traditional
tobacco products in subsection (f), supplied the detail
regarding what items would qualify as drug paraphernalia to
adequately limit the danger of arbitrary enforcement with
respect to the items seized.7 See Posters ‘N’ Things, 511
U.S. at 525–526, 114 S. Ct. 1754. While the scales and empty
snuff dispensers present the closest question, Music City’s
sale of drug paraphernalia separates it from merchants dealing
solely in multiple-use items in a manner that adequately
constrains law enforcement officials from proceeding to seize
scales or snuff containers from such merchants. See id.; Cf.
No. 99-5260 United States v. Search of Music City
Marketing
5
2Fed. R. Crim. P. 41(e) provides:
A person aggrieved by an unlawful search and seizure of
property may move the district court for the district in which the
property was seized for the return of the property on the ground
that such person is entitled to lawful possession of the property.
The court shall receive evidence on any issue of fact necessary
to the decision of the motion. If the motion is granted, the
property shall be returned to the movant, although reasonable
conditions may be imposed to protect access and use of the
property in subsequent proceedings. If a motion for return of
property is made or comes on for hearing in the district of trial
after an indictment or information is filed, it shall be treated also
as a motion to suppress under Rule 12.
harm and there was an inadequate remedy at law with regard
to the government’s retention of the property at issue, it
would exercise its equitable jurisdiction to hear the motion.
The court correctly observed that under Rule 41(e)2, the
property need not be returned if it was contraband. See, e.g.,
Fed. R. Crim. P. 41(e) advisory committee note
accompanying the 1972 amendments (stating, “the judge in
the district of seizure does not have to decide the legality of
the seizure in cases involving contraband which, even if
seized legally, is not to be returned.”). The parties agreed and
the court looked to the definition of drug paraphernalia
contained in 21 U.S.C. § 863, determining that under the
statute most of the items the government seized qualified as
drug paraphernalia. The court then denied Music City’s
motion for the return of its property on the grounds that Music
City was not legally entitled to the items at issue.
On appeal Music City does not contend that 21 U.S.C.
§ 863 is unconstitutionally vague on its face, an argument that
appears to be foreclosed by the Supreme Court’s opinions in
Posters ‘N’ Things, LTD. v. United States, 511 U.S. 513, 114
S. Ct. 1747, 128 L. Ed. 2d 539 (1994) and Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102
S. Ct. 1186, 71 L. Ed. 2d 362 (1982) as well as this Court’s
opinion in United States v. 57,261 Items of Drug
Paraphernalia, 869 F.2d 955 (6th Cir. 1989) (abrogated by

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6 United States v. Search of Music City
Marketing
No. 99-5260
Posters ‘N’ Things, LTD., 511 U.S. 513, 114 S. Ct. 1747,
with respect to the intent required for a conviction under 21
U.S.C. § 857). Rather, Music City argues that the statute is
unconstitutionally vague as applied to the items of inventory
seized by the government in 1998.
The drug paraphernalia statute located at 21 U.S.C. § 863
states:
(a) It is unlawful for any person–
(1) to sell or offer for sale drug paraphernalia;
(2) to use the mails or any other facility of interstate
commerce to transport drug paraphernalia; or
(3) to import or export drug paraphernalia.
As an aid in determining whether particular items are drug
paraphernia, parts (d) and (e) provide detail. Part (d) lists
items that generally qualify as drug paraphernalia “per se” and
part (e) contains a non-exhaustive list of eight factors to
consider while evaluating the items at issue. Parts (d) and (e)
read as follows:
(d) 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
this subchapter. 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;
No. 99-5260 United States v. Search of Music City
Marketing
11
6The “dug outs” and “SmokeLess System” likely fall under this
category as well, given that their design only allowed a small quantity of
smoking material to be loaded into the “bat” for smoking. As the
government’s expert testified at trial, this only allowed a few puffs per use
and was therefore more consistent with marijuana smoking than it was
with tobacco smoking. Music City has argued that these products could
be used to help reduce tobacco smoking, but such purported use appears
implicate vagueness or other due process concerns with
respect to such items. Petitioners operated a full-scale
“head shop,” a business devoted substantially to the sale
of products that clearly constituted drug paraphernalia.
The Court stated in Hoffman Estates: “The theoretical
possibility that the village will enforce its ordinance
against a paper clip placed next to Rolling Stone
magazine ... is of no due process significance unless the
possibility ripens into a prosecution.” 455 U.S., at
503-504, n. 21, 102 S.Ct., at 1196, n. 21. Similarly here,
we need not address the possible application of § 857 to
a legitimate merchant engaging in the sale of only
multiple-use items.
Id. Thus, Music City correctly observes that the Court quite
naturally did not address whether the statute would be
unconstitutionally vague with respect to the prosecution of a
legitimate merchant who sold only multi-use items, an issue
not before the Court. Music City attempts to style itself as
such a merchant, arguing that at worst some of the items it
sold were multi-use items.
Music City is correct in noting that the Supreme Court has
expressed some concern about the statute’s constitutionality
as applied to the seizure of multiple use items such as scales,
razor blades, and mirrors from merchants dealing only in
multiple use items. However, while Music City did carry
multiple use items as well as legitimate tobacco related
products, it also carried a wide variety of pipes that based on
their design, were only suitable for use with controlled
substances.6 See id. at 518, 114 S. Ct. at 1751 (observing that

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10 United States v. Search of Music City
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No. 99-5260
5Apparently in an effort to illustrate the statute’s vagueness, Music
City makes much of the fact that Sergeant Brock, a police officer with the
local Vice Squad unit that participated in the raid, did not think that any
of the items in the warehouse were drug paraphernalia. Additionally
Music City points out that Customs Agent Davis allegedly made some
comments that could be construed as sanctioning the sale of the items
remaining in Music City’s warehouse after the 1989 raid. However, the
fact that different minds reach different results when applying the factors
to determine if an item qualifies as drug paraphernalia does not
necessarily mean that the statute is unconstitutionally vague as applied to
that item. See, e.g., Schneiderman, 968 F.2d at 1568 (rejecting an
argument that 21 U.S.C. § 857 was unconstitutionally vague as applied
and noting that while effective law enforcement often requires a degree
of police judgment, this alone does not render a statute unconstitutional).
we need not be detained long with Music City’s arguments
that § 863 is vague as applied to the pipes that the government
seized from its warehouse. As the Supreme Court noted, the
statute specifically lists pipes designed for use with illegal
drugs in subsection (d), provides objective factors to assist in
their evaluation in subsection (e), and excludes pipes
traditionally used to smoke tobacco in subsection (f).
Consequently, while Music City may be unhappy with the
district court’s conclusion that the various pipes that Customs
Agents confiscated were drug paraphernalia, it cannot
complain that 21 U.S.C. § 863 was unconstitutionally vague
as applied to those pipes.5
Music City points out, however, that several of the items
seized were the type of multi-use items that the Supreme
Court voiced concern about in Posters ‘N’ Things, 511 U.S.
at 526, 114 S. Ct. at 1754. In Posters ‘N’ Things the Court
stated:
Section 857's application to multiple-use items—such
as scales, razor blades, and mirrors—may raise more
serious concerns. Such items may be used for legitimate
as well as illegitimate purposes, and ‘a certain degree of
ambiguity necessarily surrounds their classification.’
Mishra, 979 F.2d, at 309. This case, however, does not
No. 99-5260 United States v. Search of Music City
Marketing
7
(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;
(10) air-driven pipes;
(11) chillums;
(12) bongs;
(13) ice pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.
(e) 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

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8 United States v. Search of Music City
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3Music City was subject to a seizure and a civil forfeiture
proceeding, rather than a criminal prosecution, potentially reducing
concerns of unconstitutional vagueness. See Hoffman Estates, 455 U.S.
at 498–99, 102 S. Ct. at 1193 (observing that with respect to the degree
of vagueness tolerated by the Constitution, “[t]he Court has . . . expressed
greater tolerance of enactments with civil rather than criminal penalties
because the consequences of imprecision are qualitatively less severe.”)
(8) expert testimony concerning its use.
21 U.S.C. § 863.
Music City contends that as applied to the items that
Customs agents seized in 1998, the statute’s definition of drug
paraphernalia is unconstitutionally vague. To survive a
challenge of unconstitutional vagueness in application, a
penal statute must “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 or discriminatory enforcement.” Posters ‘N’ Things,
511 U.S. at 526, 114 S. Ct. at 1754 (quoting Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.
2d 222 (1972) and citing Grayned v. Rockford, 408 U.S. 104,
108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222 (1972)).3
In evaluating Music City’s claims, the Supreme Court’s
opinion in Posters ‘N’ Things is instructive, as it is the most
recent case in which the Court discussed the constitutionality
of the drug paraphernalia statute. In Posters ‘N’ Things,
police executed a search of defendants’ business premises,
seizing pipes, bongs, scales, roach clips, and drug diluents.
Defendants were subsequently indicted and convicted for,
among other things, selling drug paraphernalia in interstate
commerce in violation of the drug paraphernalia statute then
located at 21 U.S.C. § 857. On appeal one of the arguments
defendants raised was that the statute was unconstitutionally
vague as applied to the items seized. The Court disagreed,
observing that the list of items in § 857(d) that constitute per
se drug paraphernalia provided relatively clear guidelines as
No. 99-5260 United States v. Search of Music City
Marketing
9
4The Court indicated that the statute was constitutional as applied to
the scales at issue in the case before it, which were seized from a “head
shop,” meaning a store dealing substantially in items that clearly qualified
as drug paraphernalia. 511 U.S. at 526, 114 S. Ct. 1754–55. However,
the Court also indicated that when multiple-use items such scales are sold
by legitimate merchants engaged in the sale of only multiple-use items,
more serious vagueness concerns might be raised. See id.
to prohibited conduct. Id. at 525, 114 S. Ct. at 1754. With
regard to these listed items the Court stated that “there can be
little doubt that the statute is sufficiently determinate to meet
constitutional requirements.” Id. at 525–26, 114 S. Ct. at
1754. The Court also noted that § 857(e) set forth objective
criteria for assessing whether items constitute drug
paraphernalia, minimizing the possibility of arbitrary
enforcement and assisting in defining the conduct the statute
prohibits. Id. at 526, 114 S. Ct. at 1754 (citing United States
v. Mishra, 979 F.2d 301, 309 (3d Cir. 1992) and United States
v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), which
both found that while a certain degree of ambiguity
necessarily surrounds the classification of drug paraphernalia,
the statute provided constitutionally sufficient guidance).
Additionally, the Court observed that § 857(f) exempted items
traditionally used with tobacco, “further limit[ing] the scope
of the statute and preclud[ing] its enforcement against
legitimate sellers of lawful products.” Id. at 526, 114 S. Ct.
at 1754.
Although in the case at bar we address the current drug
paraphernalia statute located at 21 U.S.C. § 863, the Supreme
Court’s analysis of the old statute located at 21 U.S.C. § 857
remains controlling. When Congress recodified the statute it
left the language originally contained in § 857 (d)–(f)
unchanged, leaving the precedential value of cases
interpreting the old statute intact. Therefore, as applied to the
items that the Supreme Court addressed in Posters ‘N’
Things, such as pipes not traditionally used for tobacco,
bongs, scales,4 diluents, and roach clips, it is clear that 21
U.S.C. § 863 is not unconstitutionally vague. Given this fact,

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