16United States v. Search of Music CityMarketingNo. 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’sdenial of Music City’s Fed. R. Crim. P. 41(e) motion for thereturn of its property.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0164P (6th Cir.)File Name: 00a0164p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Appellee,v.SEARCH OFMUSICCITYMARKETING,INC.,Appellant.;>1No. 99-5260Appeal from the United States District Courtfor the Middle District of Tennessee at Nashville.No. 98-03096—Thomas A. Higgins, District Judge.Argued: March 7, 2000Decided and Filed: May 12, 2000Before: MARTIN, Chief Judge; KENNEDY andSUHRHEINRICH, Circuit Judges._________________COUNSELARGUED: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,2United States v. Search of Music CityMarketingNo. 99-5260Hal 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 StatesCustoms 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 atissue, 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 intoNo. 99-5260United States v. Search of Music CityMarketing15with drugs in the community. The court found that MusicCity had put on no credible evidence refuting thegovernment’s contention that the snuff dispensers were usedprimarily to administer drugs. With respect to the scales, thecourt noted that while they were multi-use items, they werehoused in a warehouse containing other drug paraphernalia.Based on this evidence, the court concluded that the items atissue were primarily intended or designed for use withcontrolled substances. Under these circumstances we cannotsay 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 andconcluding the court had not erred in concluding that theitems at issue qualified as drug paraphernalia and thus wereproperly subject to civil forfeiture under the Customs Statute).III.Music City also argues that based on the government’sactions during the seizure of Music City’s inventory in 1989,as a matter of due process it could not pronounce the itemsseized in 1998 to be drug paraphernalia. Music City placesgreat weight on the fact that after Customs agents seizeditems from its warehouse in 1989, the government left behinditems that were essentially identical to items seized in 1998.Music City also alleges that some Customs agents madestatements implying that items remaining in Music City’sinventory after the 1989 seizure could legally be sold, at leastin the Middle District of Tennessee. Further, Music Citypoints out that a list of prohibited items was attached to itsplea agreement and that none of these items were present in1998. Finally, Music City notes that for three years afterentering into the plea agreement it sent catalogs containingitems seized in 1998 to the Customs office.Based on these facts, Music City asserts that the criminaldoctrine of entrapment by estoppel should prevent thegovernment from categorizing the seized items as drugparaphernalia. InUnited States v. Levin, 973 F.2d 463, 46814United States v. Search of Music CityMarketingNo. 99-5260challenge 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 districtcourt 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 useNo. 99-5260United States v. Search of Music CityMarketing31The “dug outs” and “SmokeLess Smoking Systems” consisted of ahollow wood or plastic box with a covered compartment in which thesmoking material could be stored and another covered storagecompartment in which a hollow metal or ceramic cigarette shaped “bat”was kept. When the cover was moved to expose the bat, a spring wouldpartially eject it for smoking.a plea agreement, acknowledging its guilt and agreeing to theforfeiture of the truckloads of seized merchandise and thepayment of a one million dollar fine within six years. MusicCity did not pay the entire fine as required, but has continuedto pay one thousand dollars a month since the plea agreementwas reached in 1990. For two to three years following theseizure of items from its warehouse, Music City also sent thelocal United States Customs Office a catalog of the items itwas offering for sale.In June of 1998, Customs agents once again obtained asearch warrant for Music City’s premises. Customs agentsfound items that they believed to be drug paraphernalia,although none of the items seized in 1998 appear to beidentical to those found in 1989. The agents seized cigaretteholders, various types of small pipes, scales, filter screens,“dugouts,” “SmokeLess Smoking Systems,” and raw materialfor snuff dispensers.1The approximate value of the seizedinventory was $600,000.Music City filed a motion in the district court for the returnof the property under Fed. R. Crim. P. 41(e). The districtcourt conducted a two day evidentiary hearing, viewingexhibits introduced by both the government and Music Cityand 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 paraphernaliaas defined in 21 U.S.C. § 863, summarizing its reasoning asfollows:The Court has considered the relevant criteria set forth in21 U.S.C. § 863(e), including the descriptive material4United States v. Search of Music CityMarketingNo. 99-5260included 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 seizedII.A.There is no criminal indictment or proceeding pendingagainst 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. UnitedStates, 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 citingWhiteFabricating Co.as support for this proposition). The districtcourt found that because Music City would suffer irreparableNo. 99-5260United States v. Search of Music CityMarketing138In the case at bar we are confronted with a defendant who dealt ina number of items that clearly qualified as drug paraphernalia. As aresult, we need not address whether the statute would sufficiently warnlegitimate merchants selling only multiple use items of the conduct thatcould render such items drug paraphernalia, thereby subjecting them tocivil forfeiture.United States v. Spy Factory, Inc., 951 F. Supp. 450, 476–77(S.D.N.Y. 1997) (analyzing a vagueness as applied argumentraised against the Wiretap Act and comparing the statute’slanguage with that of the drug paraphernalia statute).With respect to fair warning, the statute’s specificitycontradicts Music City’s contention that the statute did notprovide sufficient guidance to warn of the conduct which itprohibits. Additionally,Hoffman Estatesundercuts MusicCity’s fair warning arguments. InHoffman Estates, theSupreme Court discussed the “designed for use” phrase thatthe Village of Hoffman Estates used in a drug paraphernaliastatute very similar to the one at issue here. The Courtconfirmed that the phrase had an objective meaning andobserved that no issue of fair warning was present in the case,because, as Flipside conceded, the phrase referred to an item’sstructural characteristics.Hoffman Estates, 455 U.S. at 501,102 S. Ct. at 1195. Similarly, in the case at bar, it is theitems’ likely use and structural characteristics that must beevaluated, largely eliminating fair warning as an issue.8Under these circumstances, we conclude that as applied tothe items that the district court found to be drugparaphernalia, 21 U.S.C. § 863 provides fair warning of theconduct that is prohibited and sufficiently limits the danger ofarbitrary enforcement.B.Music City largely confines its focus to the assertion weaddressed above, that the statute was unconstitutional asapplied. However, some of Music City’s arguments appear to12United States v. Search of Music CityMarketingNo. 99-5260to 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 toCustom 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 ofonlymultiple use items.”Id. at 526, 114 S. Ct. at 1755 (emphasis added).With respect to Music City’s vagueness argumentsconcerning 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.7See Posters ‘N’ Things,511U.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. 99-5260United States v. Search of Music CityMarketing52Fed. R. Crim. P. 41(e) provides:A person aggrieved by an unlawful search and seizure ofproperty may move the district court for the district in which theproperty was seized for the return of the property on the groundthat such person is entitled to lawful possession of the property.The court shall receive evidence on any issue of fact necessaryto the decision of the motion. If the motion is granted, theproperty shall be returned to the movant, although reasonableconditions may be imposed to protect access and use of theproperty in subsequent proceedings. If a motion for return ofproperty is made or comes on for hearing in the district of trialafter an indictment or information is filed, it shall be treated alsoas a motion to suppress under Rule 12.harm and there was an inadequate remedy at law with regardto the government’s retention of the property at issue, itwould exercise its equitable jurisdiction to hear the motion.The court correctly observed that under Rule 41(e)2, theproperty need not be returned if it was contraband.See, e.g.,Fed. R. Crim. P. 41(e) advisory committee noteaccompanying the 1972 amendments (stating, “the judge inthe district of seizure does not have to decide the legality ofthe seizure in cases involving contraband which, even ifseized legally, is not to be returned.”). The parties agreed andthe court looked to the definition of drug paraphernaliacontained in 21 U.S.C. § 863, determining that under thestatute most of the items the government seized qualified asdrug paraphernalia. The court then denied Music City’smotion for the return of its property on the grounds that MusicCity 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 thatappears to be foreclosed by the Supreme Court’s opinions inPosters ‘N’ Things, LTD. v. United States, 511 U.S. 513, 114S. Ct. 1747, 128 L. Ed. 2d 539 (1994) andVillage of HoffmanEstates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489, 102S. Ct. 1186, 71 L. Ed. 2d 362 (1982) as well as this Court’sopinion inUnited States v. 57,261 Items of DrugParaphernalia, 869 F.2d 955 (6th Cir. 1989) (abrogated by6United States v. Search of Music CityMarketingNo. 99-5260Posters ‘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. § 863states:(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 anyequipment, 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. 99-5260United States v. Search of Music CityMarketing116The “dug outs” and “SmokeLess System” likely fall under thiscategory as well, given that their design only allowed a small quantity ofsmoking material to be loaded into the “bat” for smoking. As thegovernment’s expert testified at trial, this only allowed a few puffs per useand was therefore more consistent with marijuana smoking than it waswith tobacco smoking. Music City has argued that these products couldbe used to help reduce tobacco smoking, but such purported use appearsimplicate vagueness or other due process concerns withrespect to such items. Petitioners operated a full-scale“head shop,” a business devoted substantially to the saleof products that clearly constituted drug paraphernalia.The Court stated inHoffman Estates: “The theoreticalpossibility that the village will enforce its ordinanceagainst a paper clip placed next to Rolling Stonemagazine ... is of no due process significance unless thepossibility ripens into a prosecution.” 455 U.S., at503-504, n. 21, 102 S.Ct., at 1196, n. 21. Similarly here,we need not address the possible application of § 857 toa legitimate merchant engaging in the sale of onlymultiple-use items.Id.Thus, Music City correctly observes that the Court quitenaturally did not address whether the statute would beunconstitutionally vague with respect to the prosecution of alegitimate merchant who sold only multi-use items, an issuenot before the Court. Music City attempts to style itself assuch a merchant, arguing that at worst some of the items itsold were multi-use items.Music City is correct in noting that the Supreme Court hasexpressed some concern about the statute’s constitutionalityas applied to the seizure of multiple use items such as scales,razor blades, and mirrors from merchants dealing only inmultiple use items. However, while Music City did carrymultiple use items as well as legitimate tobacco relatedproducts, it also carried a wide variety of pipes that based ontheir design, were only suitable for use with controlledsubstances.6See id. at 518, 114 S. Ct. at 1751 (observing that10United States v. Search of Music CityMarketingNo. 99-52605Apparently in an effort to illustrate the statute’s vagueness, MusicCity 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 anargument 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.5Music City points out, however, that several of the itemsseized were the type of multi-use items that the SupremeCourt voiced concern about inPosters ‘N’ Things, 511 U.S.at 526, 114 S. Ct. at 1754. InPosters ‘N’ Thingsthe Courtstated:Section 857's application to multiple-use items—suchas 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 notNo. 99-5260United States v. Search of Music CityMarketing7(2) water pipes;(3) carburetion tubes and devices;(4) smoking and carburetion masks;(5) roach clips: meaning objects used to holdburning material, such as a marijuanacigarette, that has become too small or tooshort to be held in the hand;(6) miniature spoons with level capacities ofone-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 drugparaphernalia, in addition to all other logicallyrelevant factors, the following may be considered:(1) instructions, oral or written, provided withthe item concerning its use;(2) descriptive materials accompanying the itemwhich explain or depict its use;(3) national and local advertising concerning itsuse;(4) the manner in which the item is displayed forsale;(5) whether the owner, or anyone in control ofthe item, is a legitimate supplier of like orrelated items to the community, such as alicensed distributor or dealer of tobaccoproducts;(6) direct or circumstantial evidence of the ratioof sales of the item(s) to the total sales of thebusiness enterprise;(7) the existence and scope of legitimate uses ofthe item in the community; and8United States v. Search of Music CityMarketingNo. 99-52603Music City was subject to a seizure and a civil forfeitureproceeding, 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 thatCustoms 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 (quotingKolender v.Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.2d 222 (1972) and citingGrayned v. Rockford, 408 U.S. 104,108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222 (1972)).3In evaluating Music City’s claims, the Supreme Court’sopinion inPosters ‘N’ Thingsis instructive, as it is the mostrecent case in which the Court discussed the constitutionalityof the drug paraphernalia statute. InPosters ‘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 asNo. 99-5260United States v. Search of Music CityMarketing94The Court indicated that the statute was constitutional as applied tothe scales at issue in the case before it, which were seized from a “headshop,” meaning a store dealing substantially in items that clearly qualifiedas 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 soldby 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. Withregard to these listed items the Court stated that “there can belittle doubt that the statute is sufficiently determinate to meetconstitutional requirements.”Id.at 525–26, 114 S. Ct. at1754. The Court also noted that § 857(e) set forth objectivecriteria for assessing whether items constitute drugparaphernalia, minimizing the possibility of arbitraryenforcement and assisting in defining the conduct the statuteprohibits.Id.at 526, 114 S. Ct. at 1754 (citingUnited Statesv. Mishra, 979 F.2d 301, 309 (3d Cir. 1992) andUnited Statesv. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), whichboth found that while a certain degree of ambiguitynecessarily surrounds the classification of drug paraphernalia,the statute provided constitutionally sufficient guidance).Additionally, the Court observed that § 857(f) exempted itemstraditionally used with tobacco, “further limit[ing] the scopeof the statute and preclud[ing] its enforcement againstlegitimate sellers of lawful products.”Id.at 526, 114 S. Ct.at 1754.Although in the case at bar we address the current drugparaphernalia statute located at 21 U.S.C. § 863, the SupremeCourt’s analysis of the old statute located at 21 U.S.C. § 857remains controlling. When Congress recodified the statute itleft the language originally contained in § 857 (d)–(f)unchanged, leaving the precedential value of casesinterpreting the old statute intact. Therefore, as applied to theitems that the Supreme Court addressed inPosters ‘N’Things, such as pipes not traditionally used for tobacco,bongs, scales,4diluents, and roach clips, it is clear that 21U.S.C. § 863 is not unconstitutionally vague. Given this fact,