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.