filed: October 29, 1992; As Corrected November 17, 1992.
On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 91-00109)
Before: Greenberg and Nygaard, Circuit Judges and Pollak, District Judge *Before: Greenberg and Nygaard, Circuit Judges and Pollak, District Judge*fn*
Appellant Akhil Mishra pled guilty to a twelve-count indictment charging violations of the Drug Paraphernalia Act, 21 U.S.C. § 863. The plea of guilty was conditional upon a reservation by Mishra of his entitlement to challenge the constitutionality of the provision under which he was charged -- a provision that makes it illegal for any person to sell or offer for sale any item of "drug paraphernalia." Mishra contends that the challenged statutory provision is unconstitutional in two respects. First, he argues that the term "drug paraphernalia" is unconstitutionally vague, failing to provide proper notice to the general citizenry and to law enforcement officers of just what conduct is prohibited. Second, Mishra claims that the prohibition on selling or offering for sale "drug paraphernalia" is unconstitutional because it lacks a scienter requirement, thus depriving criminal defendants of due process.
Finding that the challenged provision of the Drug Paraphernalia Act does contain a scienter requirement, and is not unduly vague, we conclude that it is not unconstitutional.
Appellant Mishra owned and operated three stores in downtown Pittsburgh: Novelties International/Impulse, Hari's Karishma, and Giggles. In May and June 1991, agents from the United States Customs Service and the United States Postal Inspection Service, as well as officers from the Pittsburgh Police Department, monitored appellant's stores, suspecting that he sold or offered for sale items considered to be drug paraphernalia under 21 U.S.C. § 863. The agents and officers made three undercover purchases of the alleged drug paraphernalia during the course of their surveillance.
Based on their observations and purchases, the government obtained a search warrant for each of Mishra's stores. The officers seized a number of items found in the search including: pipes of various sizes and materials, pipe screens of different sizes and shapes, crack pipes, inositol, mannitol, boxes of feathered roach clips, water pipes and bongs, rolling papers and wired rolling papers, and several scales. Mishra concedes that these items were on his premises and were offered for sale.
On June 25, 1991 -- shortly after the searches and seizures -- a grand jury in the Western District of Pennsylvania returned an indictment charging Mishra with twelve counts of violating 21 U.S.C. § 863. Some of the counts charged Mishra with offering drug paraphernalia for sale and with actually selling such paraphernalia; other counts simply charged Mishra with offering such paraphernalia for sale.*fn1 On September 30, 1991, he entered a conditional guilty plea to all twelve counts. Based on Mishra's guilty plea, the district court sentenced appellant on November 27, 1991 to two years probation and fined him $4,000.
Having reserved his right to challenge the constitutionality of the statute under which he pled guilty, Mishra has appealed from his conviction and sentence. He claims that the Drug Paraphernalia Act is unconstitutionally vague in that it fails to provide adequate notice, either to ordinary citizens or to law enforcement officers, of the conduct prohibited by the statute. In addition, Mishra argues that the law lacks a scienter requirement, turning the statute into an unconstitutional criminal strict liability law. The government responds that the statute is not unconstitutionally vague, and that it contains an objective scienter requirement.
First, we will examine the text and context of the Drug Paraphernalia Act. Then, we will address appellant's twin challenges to the constitutionality of the Act.
A. Legislative Background
The earliest antecedent of the Drug Paraphernalia Act was the Model Drug Paraphernalia Act. Developed by the Drug Enforcement Agency of the Justice Department in 1979, the Model Act was designed to be a guide to states in their efforts to control the drug paraphernalia trade, and was eventually adopted in some form in thirty-eight states and the District of Columbia. The Model Act made it "unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used" in connection with illegal substances. Under the Model Act, the term "drug paraphernalia" was defined as items "used, intended for use, or designed for use" with illegal drugs.
Adopting language similar to the Model Act, (but not including "knowing or under circumstances where one reasonably should know, that it will be used," or words of like import), Congress addressed the drug paraphernalia trade at the federal level through enactment of the Mail Order Drug Paraphernalia Act, 21 U.S.C. § 857. Taking effect in 1987, § 857 regulated the interstate sale of drug paraphernalia, and in particular was intended to combat the use of the mails to sell drug paraphernalia.*fn2 Section 857(a) made it unlawful (1) "to make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia;" (2) "to offer for sale and transportation in interstate or foreign commerce drug paraphernalia;" or (3) "to import or export drug paraphernalia."
In 1990, § 857 was repealed and replaced by the current Drug Paraphernalia Act, 21 U.S.C. § 863. Section 863 is identical to § 857 in all but its description of the underlying offense. In addition to making it unlawful to "use the mails or any other facility of interstate commerce to transport drug paraphernalia"*fn3 and to "import or export drug paraphernalia," § 863(a) broadens the scope of § 857 by making it unlawful simply "to sell or offer for sale drug paraphernalia."*fn4
Sections 857 and 863 are indistinguishable in all other respects. Since the definitional provisions of § 857 and § 863 have generated substantial case law, we will lay out the definitional sections in detail:*fn5
Section 857(d), transposed verbatim in § 863(d), defines "drug paraphernalia" 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, . . . 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 ...