16 United States v. Search of Music City

Marketing

No. 99-5260

(6th Cir. 1992), this Court recognized entrapment by estoppelas a defense to criminal prosecution. Because the governmenthas not begun any criminal prosecution of Music City, thisdefense is not yet appropriate. Under Rule 41(e), thegovernment need not return the seizedcontraband—regardless of any prior representations regardingthe 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 thereturn of its property. 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Appellee,

v.

SEARCH OF MUSIC CITYMARKETING, INC.,

Appellant.

Appeal from the United St

for the Middle District of Te

No. 98-03096—Thomas A. H

Argued: March 

Decided and Filed: M

Before: MARTIN, Chief Jud

SUHRHEINRICH, C

____________

COUNSE

ARGUED: Alfred H. KnightNashville, Tennessee, for AppellanJr., ASSISTANT UNITED STATETennessee, for Appellee. ON BRAlan D. Johnson, WILLIS & KNIG
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 ofMusic City Marketing (“Music City”) for drug paraphernalia;seizing various merchandise that they believed qualified assuch in the process. Music City filed a motion in the districtcourt for the return of the seized property pursuant to Fed. R.Crim. P. 41(e). After conducting a hearing, the court foundthe majority of the seized items were drug paraphernalia andthus contraband. As a result, the court denied plaintiff’smotion with respect to those items. Music City appealed,arguing: (1) that the definition of drug paraphernaliacontained in 21 U.S.C. § 863 was unconstitutionally vague asapplied to the seized items; and (2) that based on priorrepresentations made by United States Customs Officers, itwas a violation of due process for the government to seize theitems at issue. For the following reasons we affirm the districtcourt’s holding that the merchandise was drug paraphernaliathat 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 warehouseused by Music City and its subsidiary Contempo TobaccoProducts, Inc., seizing several truck loads of what wasdetermined to be drug paraphernalia. Music City engaged insettlement negotiations with the United States, initiallyproposing that the government acknowledge that all of themerchandise not seized from the warehouse could be legallysold. The government declined, and Music City entered into

No. 99-5260 United States v. Swith drugs in the community. ThCity had put on no credible government’s contention that the sprimarily to administer drugs. Witcourt noted that while they were mhoused in a warehouse containing Based on this evidence, the court cissue were primarily intended ocontrolled substances. Under these say that the district court erred in aC.f. 57, 261 Items of Drug Paraphe(evaluating the evidence considereconcluding the court had not erritems at issue qualified as drug paproperly subject to civil forfeiture u

III.

Music City also argues that ba

actions during the seizure of Music as a matter of due process it could seized in 1998 to be drug paraphegreat weight on the fact that afteitems from its warehouse in 1989, titems that were essentially identicMusic City also alleges that somstatements implying that items reinventory after the 1989 seizure coin the Middle District of Tennespoints out that a list of prohibited plea agreement and that none of th1998. Finally, Music City notes entering into the plea agreement iitems seized in 1998 to the Custom

Based on these facts, Music Cit

doctrine of entrapment by estogovernment from categorizing tparaphernalia. In United States v. 
14 United States v. Search of Music City

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No. 99-5260

challenge the district court’s factual finding that the pipes andother items at issue qualified as drug paraphernalia under thestatute. To the extent that Music City has made thisargument, we affirm the district court. 

After conducting a two day evidentiary hearing, the district

court individually evaluated each item at issue in detail. Thecourt considered: descriptive material included with some ofthe seized items, the fact that Music City’s retail stores soldlegitimate tobacco products, testimony from multiplewitnesses, advertised and actual uses of the items in thecommunity, a treatise defining slang terms, and experttestimony concerning the items’ uses. With regard to thepipes, the court credited Custom Agent Mangione’s experttestimony as to their use in the community and their designcharacteristics. Agent Mangione had been involved with drugparaphernalia investigations since 1989 and had extensivetraining and experience dealing with drug paraphernalia. Thecourt observed that Agent Mangione testified as to the variouspipes’ design characteristics that were more consistent withmarijuana than tobacco use, including an invariably smallbowl size, bowl covers without holes, lack of traditionalmouthpieces and stems, lack of filters, and the fact that someof the pipes were constructed of material that would becometoo hot to hold in one’s mouth if smoked for any length oftime. Similarly, Agent Magione testified that the “dug outs”and “SmokeLess” systems were commonly used in thecommunity to smoke marijuana. Agent Magione also pointedout that the metal or ceramic “bats” included with these itemswere too small to allow the user to inhale more than a fewpuffs of smoke and were therefore more consistent withsmoking marijuana than tobacco. With respect to the metalscreens, the court noted that Agent Mangione testified thatthey were commonly used in small marijuana pipes to keepseeds and stems from being sucked into the smoker’s throat,but were not used in traditional tobacco pipes. Regarding thesnuff dispenser components, the court observed that they wereseized in conjunction with other drug paraphernalia andAgent Magione testified that he had often observed their use

No. 99-5260 United States v. S

1The “dug outs” and “SmokeLess Sm

hollow wood or plastic box with a covesmoking material could be stored acompartment in which a hollow metal or was kept. When the cover was moved to partially eject it for smoking.a plea agreement, acknowledging iforfeiture of the truckloads of sepayment of a one million dollar finCity did not pay the entire fine as rto pay one thousand dollars a montwas reached in 1990. For two to seizure of items from its warehouslocal United States Customs Officwas offering for sale. 

In June of 1998, Customs agen

search warrant for Music City’s pfound items that they believed talthough none of the items seizidentical to those found in 1989. Tholders, various types of small pi“dugouts,” “SmokeLess Smoking Sfor snuff dispensers.1 The approx

inventory was $600,000. 

Music City filed a motion in the 

of the property under Fed. R. Cricourt conducted a two day evidexhibits introduced by both the goand listening to testimony of Custabacconists, and executives and The court found that the seized itemas defined in 21 U.S.C. § 863, sumfollows:

The Court has considered the rel21 U.S.C. § 863(e), including t
4 United States v. Search of Music City

Marketing

No. 99-5260

included with some of the seized items, the fact thatMusic City’s retail stores sell legitimate tobaccoproducts, the scope of the legitimate uses of the items inthe community, and the expert testimony concerning theitems’ use. The Court concludes that these items areprimarily intended or designed for use with controlledsubstances and thus are drug paraphernalia as defined by21 U.S.C. § 863. 

Accordingly, the district court issued a memorandum andorder denying Music City’s Rule 41(e) motion with regard tothe majority of the seized items on the basis that Music City’sinventory was contraband and thus could not be returned,regardless of whether or not the government properlyobtained and executed its search warrant. However, the courtdid order the return of cigarette holders as well as a plastictube called a “head rush,” thought to be a component thatcould be used in making a “bong,”which the governmentacknowledged were improperly seized

II.

A.

There is no criminal indictment or proceeding pending

against Music City. Thus, Music City’s Rule 41(e) motion forthe return of its property was really in the nature of a civilproceeding invoking the court’s equitable powers, rather thana criminal proceeding. See White Fabricating Co. v. United

States, 903 F.2d 404, 407–08, (6th Cir. 1990) (holding that adistrict court has jurisdiction to entertain a Rule 41(e) motionfor the return of property before a criminal prosecution hasbegun, believing such a motion to be, in effect, a civil action);Delta Engineering v. United States, 41 F.3d 259, 262 n.2 (6thCir. 1994) (observing that “it is well established in this circuitthat courts have jurisdiction to hear Rule 41(e) motions in theabsence of criminal proceedings,” and citing White

Fabricating Co. as support for this proposition). The districtcourt found that because Music City would suffer irreparable

No. 99-5260 United States v. S

8In the case at bar we are confronted 

a number of items that clearly qualified result, we need not address whether the legitimate merchants selling only multipcould render such items drug paraphernacivil forfeiture. United States v. Spy Factory, Inc., (S.D.N.Y. 1997) (analyzing a vaguraised against the Wiretap Act anlanguage with that of the drug par

With respect to fair warning, 

contradicts Music City’s contentiprovide sufficient guidance to waprohibits. Additionally, Hoffman City’s fair warning arguments. 

Supreme Court discussed the “desthe Village of Hoffman Estates usstatute very similar to the one aconfirmed that the phrase had aobserved that no issue of fair warnibecause, as Flipside conceded, the pstructural characteristics. Hoffman 102 S. Ct. at 1195. Similarly, in items’ likely use and structural chevaluated, largely eliminating fair 

Under these circumstances, we c

the items that the district coparaphernalia, 21 U.S.C. § 863 prconduct that is prohibited and suffiarbitrary enforcement. 

B.

Music City largely confines its 

addressed above, that the statute applied. However, some of Music 
12 United States v. Search of Music City

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No. 99-5260

to largely be contrived. However, because at least the majority of thepipes were not multi-use items, our resolution of the status of the “dugouts” 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 drugparaphernalia. This argument, however, is addressed to the validity of thedistrict court’s finding that the items were drug paraphernalia, rather thanwhether the statute allows arbitrary enforcement with respect to the seizeditems. the objective characteristics of some items, including certainkinds of pipes, establish that they are designed for use withcontrolled substances, as they have no other use besidescontrived ones). Therefore, Music City does not fit thescenario posited by the Supreme Court, that of a legitimatemerchant “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 meshscreens, variously sized scales, “dugouts,” springs used inmanufacturing the “dugouts,” metal cigarettes (or “bats”) usedwith the “dugouts,” and the “SmokeLess System,” weconclude that § 863 is not unconstitutionally vague inapplication. First, with respect to the danger of arbitraryenforcement, the objective factors listed in § 863(e), inconjunction with the definition of drug paraphernaliacontained in subsection (d), and the exemption of traditionaltobacco products in subsection (f), supplied the detailregarding what items would qualify as drug paraphernalia toadequately limit the danger of arbitrary enforcement withrespect to the items seized.7 See Posters ‘N’ Things, 511

U.S. at 525–526, 114 S. Ct. 1754. While the scales and emptysnuff dispensers present the closest question, Music City’ssale of drug paraphernalia separates it from merchants dealingsolely in multiple-use items in a manner that adequatelyconstrains law enforcement officials from proceeding to seizescales or snuff containers from such merchants. See id.; Cf.

No. 99-5260 United States v. S

2Fed. R. Crim. P. 41(e) provides: 

A person aggrieved by an unla

property may move the district court property was seized for the return of that such person is entitled to lawful The court shall receive evidence on to the decision of the motion. If tproperty shall be returned to the moconditions may be imposed to protproperty in subsequent proceedingsproperty is made or comes on for heafter an indictment or information is as a motion to suppress under Rule 

harm and there was an inadequate to the government’s retention of would exercise its equitable jurisdThe court correctly observed tha

property need not be returned if it Fed. R. Crim. P. 41(e) adaccompanying the 1972 amendmethe district of seizure does not havthe seizure in cases involving cseized legally, is not to be returnedthe court looked to the definitiocontained in 21 U.S.C. § 863, destatute most of the items the govedrug paraphernalia. The court tmotion for the return of its property City was not legally entitled to the 

On appeal Music City does no

§ 863 is unconstitutionally vague oappears to be foreclosed by the SuPosters ‘N’ Things, LTD. v. United S. Ct. 1747, 128 L. Ed. 2d 539 (199Estates v. Flipside, Hoffman Estat

S. Ct. 1186, 71 L. Ed. 2d 362 (19opinion in United States v. Paraphernalia, 869 F.2d 955 (6th 
6 United States v. Search of Music City

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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 21U.S.C. § 857). Rather, Music City argues that the statute isunconstitutionally vague as applied to the items of inventoryseized 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 interstatecommerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.

As an aid in determining whether particular items are drugparaphernia, parts (d) and (e) provide detail. Part (d) listsitems that generally qualify as drug paraphernalia “per se” andpart (e) contains a non-exhaustive list of eight factors toconsider 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 isprimarily intended or designed for use inmanufacturing, compounding, converting,concealing, producing, processing, preparing,injecting, ingesting, inhaling, or otherwiseintroducing into the human body a controlledsubstance, possession of which is unlawful underthis subchapter. It includes items primarily intendedor designed for use in ingesting, inhaling, orotherwise introducing marijuana, cocaine, hashish,hashish oil, PCP, or amphetamines into the humanbody, such as-- (1) metal, wooden, acrylic, glass, stone, plastic,

or ceramic pipes with or without screens,permanent screens, hashish heads, orpunctured metal bowls; 

No. 99-5260 United States v. S

6The “dug outs” and “SmokeLess 

category as well, given that their design osmoking material to be loaded into thgovernment’s expert testified at trial, this and was therefore more consistent with with tobacco smoking. Music City has abe used to help reduce tobacco smoking, 

implicate vagueness or other durespect to such items. Petitione“head shop,” a business devoted of products that clearly constituThe Court stated in Hoffman Espossibility that the village wilagainst a paper clip placed magazine ... is of no due procespossibility ripens into a prose503-504, n. 21, 102 S.Ct., at 119we need not address the possible a legitimate merchant engaginmultiple-use items.

Id. Thus, Music City correctly obnaturally did not address whethunconstitutionally vague with resplegitimate merchant who sold only not before the Court. Music City such a merchant, arguing that at wsold were multi-use items. 

Music City is correct in noting t

expressed some concern about the as applied to the seizure of multiplrazor blades, and mirrors from mmultiple use items. However, wmultiple use items as well as lproducts, it also carried a wide vartheir design, were only suitable substances.6 See id. at 518, 114 S. 
10 United States v. Search of Music City

Marketing

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 thelocal Vice Squad unit that participated in the raid, did not think that anyof the items in the warehouse were drug paraphernalia. AdditionallyMusic City points out that Customs Agent Davis allegedly made somecomments that could be construed as sanctioning the sale of the itemsremaining in Music City’s warehouse after the 1989 raid. However, thefact that different minds reach different results when applying the factorsto determine if an item qualifies as drug paraphernalia does notnecessarily mean that the statute is unconstitutionally vague as applied tothat item. See, e.g., Schneiderman, 968 F.2d at 1568 (rejecting an

argument that 21 U.S.C. § 857 was unconstitutionally vague as appliedand noting that while effective law enforcement often requires a degreeof police judgment, this alone does not render a statute unconstitutional).

we need not be detained long with Music City’s argumentsthat § 863 is vague as applied to the pipes that the governmentseized from its warehouse. As the Supreme Court noted, thestatute specifically lists pipes designed for use with illegaldrugs in subsection (d), provides objective factors to assist intheir evaluation in subsection (e), and excludes pipestraditionally used to smoke tobacco in subsection (f).Consequently, while Music City may be unhappy with thedistrict court’s conclusion that the various pipes that CustomsAgents confiscated were drug paraphernalia, it cannotcomplain that 21 U.S.C. § 863 was unconstitutionally vagueas 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 SupremeCourt voiced concern about in Posters ‘N’ Things, 511 U.S.

at 526, 114 S. Ct. at 1754. In Posters ‘N’ Things the Courtstated:

Section 857's application to multiple-use items—such

as scales, razor blades, and mirrors—may raise moreserious concerns. Such items may be used for legitimateas well as illegitimate purposes, and ‘a certain degree ofambiguity necessarily surrounds their classification.’Mishra, 979 F.2d, at 309. This case, however, does not

No. 99-5260 United States v. S

(2) water pipes; (3) carburetion tubes an(4) smoking and carbure(5) roach clips: meanin

burning material, cigarette, that has bshort to be held in th

(6) miniature spoons w

one-tenth cubic cent

(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 paper(15) cocaine freebase kits

(e) In determining whether an 

paraphernalia, in addition relevant factors, the followi(1) instructions, oral or 

the item concerning 

(2) descriptive materials 

which explain or dep

(3) national and local ad

use; 

(4) the manner in which 

sale; 

(5) whether the owner, 

the item, is a legitimrelated items to the licensed distributor products; 

(6) direct or circumstant

of sales of the item(sbusiness enterprise; 

(7) the existence and sco

the item in the comm
8 United States v. Search of Music City

Marketing

No. 99-5260

3Music City was subject to a seizure and a civil forfeiture

proceeding, rather than a criminal prosecution, potentially reducingconcerns of unconstitutional vagueness. See Hoffman Estates, 455 U.S.at 498–99, 102 S. Ct. at 1193 (observing that with respect to the degreeof vagueness tolerated by the Constitution, “[t]he Court has . . . expressedgreater tolerance of enactments with civil rather than criminal penaltiesbecause 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 drugparaphernalia is unconstitutionally vague. To survive achallenge of unconstitutional vagueness in application, apenal statute must “define the criminal offense with sufficientdefiniteness that ordinary people can understand what conductis prohibited and in a manner that does not encouragearbitrary 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 constitutionalityof 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 interstatecommerce in violation of the drug paraphernalia statute thenlocated at 21 U.S.C. § 857. On appeal one of the argumentsdefendants raised was that the statute was unconstitutionallyvague as applied to the items seized. The Court disagreed,observing that the list of items in § 857(d) that constitute perse drug paraphernalia provided relatively clear guidelines as

No. 99-5260 United States v. S

4The Court indicated that the statute 

the scales at issue in the case before it, wshop,” meaning a store dealing substantiaas drug paraphernalia. 511 U.S. at 526, the Court also indicated that when multiplby legitimate merchants engaged in the smore serious vagueness concerns might bto prohibited conduct. Id. at 525, regard to these listed items the Coulittle doubt that the statute is sufficconstitutional requirements.” Id. 1754. The Court also noted that § criteria for assessing whether paraphernalia, minimizing the enforcement and assisting in definprohibits. Id. at 526, 114 S. Ct. at v. Mishra, 979 F.2d 301, 309 (3d C

v. Schneiderman, 968 F.2d 1564, 1both found that while a certanecessarily surrounds the classificathe statute provided constitutionAdditionally, the Court observed thtraditionally used with tobacco, “fof the statute and preclud[ing] legitimate sellers of lawful produc

at 1754. 

Although in the case at bar we 

paraphernalia statute located at 21 Court’s analysis of the old statute remains controlling. When Congrleft the language originally conunchanged, leaving the preceinterpreting the old statute intact. Titems that the Supreme Court aThings, such as pipes not traditbongs, scales,4 diluents, and roacU.S.C. § 863 is not unconstitutiona