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POSTERS 'N' THINGS, LTD., ET AL. v. UNITED STATES

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OCTOBER TERM, 1993

Syllabus

POSTERS 'N' THINGS, LTD., ET AL. v.

UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 92-903. Argued October 5, 1993-Decided May 23,1994

Upon searching petitioner Acty's residence and the premises of her business, petitioner Posters 'N' Things, Ltd., officers seized, among other things, pipes, "bongs," scales, "roach clips," drug diluents, and advertisements describing various drug-related products sold by petitioners. Petitioners were indicted on, and convicted in the District Court of, a number of charges, including the use of an interstate conveyance as part of a scheme to sell drug paraphernalia in violation of former 21 U. S. C. § 857(a)(1), a provision of the Mail Order Drug Paraphernalia Control Act. In affirming, the Court of Appeals held, inter alia, that § 857 requires proof of scienter and that the Act is not unconstitutionally vague.

Held:

1. Section 857 requires proof of scienter. Section § 857(d)-which, among other things, defines "drug paraphernalia" as any equipment "primarily intended or designed for use" with illegal drugs-does not serve as the basis for a subjective-intent requirement on the part of the defendant, but merely establishes objective standards for determining what constitutes drug paraphernalia: The "designed for use" element refers to the manufacturer's design, while the "primarily intended ... for use" standard refers generally to an item's likely use. However, neither this conclusion nor the absence of the word "knowingly" in § 857(d)'s text means that Congress intended to dispense entirely with a scienter requirement. Rather, § 857(a)(1) is properly construed under this Court's decisions as requiring the Government to prove that the defendant knowingly made use of an interstate conveyance as part of a scheme to sell items that he knew were likely to be used with illegal drugs. It need not prove specific knowledge that the items are "drug paraphernalia" within the statute's meaning. Pp. 516-525.

2. Section 857 is not unconstitutionally vague as applied to petitioners, since § 857(d) is sufficiently determinate with respect to the items it lists as constituting per se drug paraphernalia, including many of the items involved in this case; since § 857(e) sets forth objective criteria for assessing whether items constitute drug paraphernalia; and since the scienter requirement herein inferred assists in avoiding any vagueness problem. Because petitioners operated a full-scale "head shop" devotedcralaw


514

substantially to the sale of drug paraphernalia, the Court need not address § 857's possible application to a legitimate merchant selling only items-such as scales, razor blades, and mirrors-that may be used for legitimate as well as illegitimate purposes. Pp. 525-526.

3. Petitioner Acty's other contentions are not properly before the Court. P. 527.

969 F.2d 652, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined, post, p. 527.

Alfredo Parrish argued the cause for petitioners. With him on the brief was Elizabeth Kruidenier.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Robert A. Long, Jr., and Joel M. Gershowitz.

JUSTICE BLACKMUN delivered the opinion of the Court. In this case we must address the scienter requirement of the Mail Order Drug Paraphernalia Control Act, Pub. L. 99570, Tit. I, § 1822, 100 Stat. 3207-51, formerly codified, as amended, at 21 U. S. C. § 857, and the question whether the Act is unconstitutionally vague as applied to petitioners.

I

In 1977, petitioner Lana Christine Acty formed petitioner Posters 'N' Things, Ltd. (Posters), an Iowa corporation. The corporation operated three businesses, a diet-aid store, an art gallery, and a general merchandise outlet originally called "Forbidden Fruit," but later renamed "World Wide Imports." Law enforcement authorities received complaints that the merchandise outlet was selling drug paraphernalia. Other officers investigating drug cases found drug diluents (chemicals used to "cut" or dilute illegal drugs) and other drug paraphernalia that had been purchased from Forbidden Fruit.cralaw


515
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