                                                                        RECOMMENDED FOR FULL-TEXT PUBLICATION
16   United States v. Search of Music City      No. 99-5260                  Pursuant to Sixth Circuit Rule 206
     Marketing                                                      ELECTRONIC CITATION: 2000 FED App. 0164P (6th Cir.)
                                                                                File Name: 00a0164p.06

(6th Cir. 1992), this Court recognized entrapment by estoppel
as a defense to criminal prosecution. Because the government    UNITED STATES COURT OF APPEALS
has not begun any criminal prosecution of Music City, this
defense is not yet appropriate. Under Rule 41(e), the                         FOR THE SIXTH CIRCUIT
government need not return the seized                                           _________________
contraband—regardless of any prior representations regarding
the legality of the items.
                                                                                                 ;
                                                                                                  
                            IV.                                  UNITED STATES OF AMERICA,
                                                                                                  
                                                                                   Appellee,
                                                                                                  
  For the foregoing reasons, we AFFIRM the district court’s
                                                                                                  
denial of Music City’s Fed. R. Crim. P. 41(e) motion for the                                          No. 99-5260
                                                                            v.
                                                                                                  
return of its property.
                                                                                                   >
                                                                 SEARCH OF MUSIC CITY             
                                                                                                  
                                                                                    Appellant. 
                                                                 MARKETING, INC.,

                                                                                                  
                                                                                                 1
                                                                      Appeal from the United States District Court
                                                                    for the Middle District of Tennessee at Nashville.
                                                                   No. 98-03096—Thomas A. Higgins, District Judge.
                                                                                Argued: March 7, 2000
                                                                            Decided and Filed: May 12, 2000
                                                                     Before: MARTIN, Chief Judge; KENNEDY and
                                                                            SUHRHEINRICH, Circuit Judges.
                                                                                  _________________
                                                                                       COUNSEL
                                                                ARGUED: 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,

                                                                                            1
2    United States v. Search of Music City        No. 99-5260      No. 99-5260       United States v. Search of Music City       15
     Marketing                                                                                                  Marketing

Hal D. Hardin, LAW OFFICES OF HAL D. HARDIN,                       with drugs in the community. The court found that Music
Nashville, Tennessee, for Appellant. Harold B. McDonough,          City had put on no credible evidence refuting the
Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville,                  government’s contention that the snuff dispensers were used
Tennessee, for Appellee.                                           primarily to administer drugs. With respect to the scales, the
                                                                   court noted that while they were multi-use items, they were
                    _________________                              housed in a warehouse containing other drug paraphernalia.
                                                                   Based on this evidence, the court concluded that the items at
                        OPINION                                    issue were primarily intended or designed for use with
                    _________________                              controlled substances. Under these circumstances we cannot
                                                                   say that the district court erred in arriving at this conclusion.
   KENNEDY, Circuit Judge. In June of 1998 United States           C.f. 57, 261 Items of Drug Paraphernalia, 869 F.2d at 958–59
Customs Agents executed a warrant to search the premises of        (evaluating the evidence considered by the district court and
Music City Marketing (“Music City”) for drug paraphernalia;        concluding the court had not erred in concluding that the
seizing various merchandise that they believed qualified as        items at issue qualified as drug paraphernalia and thus were
such in the process. Music City filed a motion in the district     properly subject to civil forfeiture under the Customs Statute).
court for the return of the seized property pursuant to Fed. R.
Crim. P. 41(e). After conducting a hearing, the court found                                      III.
the majority of the seized items were drug paraphernalia and
thus contraband. As a result, the court denied plaintiff’s            Music City also argues that based on the government’s
motion with respect to those items. Music City appealed,           actions during the seizure of Music City’s inventory in 1989,
arguing: (1) that the definition of drug paraphernalia             as a matter of due process it could not pronounce the items
contained in 21 U.S.C. § 863 was unconstitutionally vague as       seized in 1998 to be drug paraphernalia. Music City places
applied to the seized items; and (2) that based on prior           great weight on the fact that after Customs agents seized
representations made by United States Customs Officers, it         items from its warehouse in 1989, the government left behind
was a violation of due process for the government to seize the     items that were essentially identical to items seized in 1998.
items at issue. For the following reasons we affirm the district   Music City also alleges that some Customs agents made
court’s holding that the merchandise was drug paraphernalia        statements implying that items remaining in Music City’s
that as contraband could not be returned to Music City.            inventory after the 1989 seizure could legally be sold, at least
                                                                   in the Middle District of Tennessee. Further, Music City
                               I.                                  points out that a list of prohibited items was attached to its
                                                                   plea agreement and that none of these items were present in
   In 1989, approximately nine years prior to the seizure at       1998. Finally, Music City notes that for three years after
issue, United States Customs Officers searched the warehouse       entering into the plea agreement it sent catalogs containing
used by Music City and its subsidiary Contempo Tobacco             items seized in 1998 to the Customs office.
Products, Inc., seizing several truck loads of what was
determined to be drug paraphernalia. Music City engaged in           Based on these facts, Music City asserts that the criminal
settlement negotiations with the United States, initially          doctrine of entrapment by estoppel should prevent the
proposing that the government acknowledge that all of the          government from categorizing the seized items as drug
merchandise not seized from the warehouse could be legally         paraphernalia. In United States v. Levin, 973 F.2d 463, 468
sold. The government declined, and Music City entered into
14    United States v. Search of Music City        No. 99-5260      No. 99-5260        United States v. Search of Music City           3
      Marketing                                                                                                   Marketing

challenge the district court’s factual finding that the pipes and   a plea agreement, acknowledging its guilt and agreeing to the
other items at issue qualified as drug paraphernalia under the      forfeiture of the truckloads of seized merchandise and the
statute. To the extent that Music City has made this                payment of a one million dollar fine within six years. Music
argument, we affirm the district court.                             City did not pay the entire fine as required, but has continued
                                                                    to pay one thousand dollars a month since the plea agreement
   After conducting a two day evidentiary hearing, the district     was reached in 1990. For two to three years following the
court individually evaluated each item at issue in detail. The      seizure of items from its warehouse, Music City also sent the
court considered: descriptive material included with some of        local United States Customs Office a catalog of the items it
the seized items, the fact that Music City’s retail stores sold     was offering for sale.
legitimate tobacco products, testimony from multiple
witnesses, advertised and actual uses of the items in the              In June of 1998, Customs agents once again obtained a
community, a treatise defining slang terms, and expert              search warrant for Music City’s premises. Customs agents
testimony concerning the items’ uses. With regard to the            found items that they believed to be drug paraphernalia,
pipes, the court credited Custom Agent Mangione’s expert            although none of the items seized in 1998 appear to be
testimony as to their use in the community and their design         identical to those found in 1989. The agents seized cigarette
characteristics. Agent Mangione had been involved with drug         holders, various types of small pipes, scales, filter screens,
paraphernalia investigations since 1989 and had extensive           “dugouts,” “SmokeLess    Smoking Systems,” and raw material
training and experience dealing with drug paraphernalia. The        for snuff dispensers.1 The approximate value of the seized
court observed that Agent Mangione testified as to the various      inventory was $600,000.
pipes’ design characteristics that were more consistent with
marijuana than tobacco use, including an invariably small             Music City filed a motion in the district court for the return
bowl size, bowl covers without holes, lack of traditional           of the property under Fed. R. Crim. P. 41(e). The district
mouthpieces and stems, lack of filters, and the fact that some      court conducted a two day evidentiary hearing, viewing
of the pipes were constructed of material that would become         exhibits introduced by both the government and Music City
too hot to hold in one’s mouth if smoked for any length of          and listening to testimony of Customs agents, local police,
time. Similarly, Agent Magione testified that the “dug outs”        tabacconists, and executives and employees of Music City.
and “SmokeLess” systems were commonly used in the                   The court found that the seized items were drug paraphernalia
community to smoke marijuana. Agent Magione also pointed            as defined in 21 U.S.C. § 863, summarizing its reasoning as
out that the metal or ceramic “bats” included with these items      follows:
were too small to allow the user to inhale more than a few
puffs of smoke and were therefore more consistent with                The Court has considered the relevant criteria set forth in
smoking marijuana than tobacco. With respect to the metal             21 U.S.C. § 863(e), including the descriptive material
screens, the court noted that Agent Mangione testified that
they were commonly used in small marijuana pipes to keep
seeds and stems from being sucked into the smoker’s throat,             1
                                                                          The “dug outs” and “SmokeLess Smoking Systems” consisted of a
but were not used in traditional tobacco pipes. Regarding the       hollow wood or plastic box with a covered compartment in which the
snuff dispenser components, the court observed that they were       smoking material could be stored and another covered storage
seized in conjunction with other drug paraphernalia and             compartment in which a hollow metal or ceramic cigarette shaped “bat”
Agent Magione testified that he had often observed their use        was kept. When the cover was moved to expose the bat, a spring would
                                                                    partially eject it for smoking.
4      United States v. Search of Music City        No. 99-5260      No. 99-5260         United States v. Search of Music City            13
       Marketing                                                                                                    Marketing

    included with some of the seized items, the fact that            United States v. Spy Factory, Inc., 951 F. Supp. 450, 476–77
    Music City’s retail stores sell legitimate tobacco               (S.D.N.Y. 1997) (analyzing a vagueness as applied argument
    products, the scope of the legitimate uses of the items in       raised against the Wiretap Act and comparing the statute’s
    the community, and the expert testimony concerning the           language with that of the drug paraphernalia statute).
    items’ use. The Court concludes that these items are
    primarily intended or designed for use with controlled              With respect to fair warning, the statute’s specificity
    substances and thus are drug paraphernalia as defined by         contradicts Music City’s contention that the statute did not
    21 U.S.C. § 863.                                                 provide sufficient guidance to warn of the conduct which it
                                                                     prohibits. Additionally, Hoffman Estates undercuts Music
Accordingly, the district court issued a memorandum and              City’s fair warning arguments. In Hoffman Estates, the
order denying Music City’s Rule 41(e) motion with regard to          Supreme Court discussed the “designed for use” phrase that
the majority of the seized items on the basis that Music City’s      the Village of Hoffman Estates used in a drug paraphernalia
inventory was contraband and thus could not be returned,             statute very similar to the one at issue here. The Court
regardless of whether or not the government properly                 confirmed that the phrase had an objective meaning and
obtained and executed its search warrant. However, the court         observed that no issue of fair warning was present in the case,
did order the return of cigarette holders as well as a plastic       because, as Flipside conceded, the phrase referred to an item’s
tube called a “head rush,” thought to be a component that            structural characteristics. Hoffman Estates, 455 U.S. at 501,
could be used in making a “bong,”which the government                102 S. Ct. at 1195. Similarly, in the case at bar, it is the
acknowledged were improperly seized                                  items’ likely use and structural characteristics that must   be
                                                                     evaluated, largely eliminating fair warning as an issue. 8
                               II.
                                                                       Under these circumstances, we conclude that as applied to
                               A.                                    the items that the district court found to be drug
                                                                     paraphernalia, 21 U.S.C. § 863 provides fair warning of the
   There is no criminal indictment or proceeding pending             conduct that is prohibited and sufficiently limits the danger of
against Music City. Thus, Music City’s Rule 41(e) motion for         arbitrary enforcement.
the return of its property was really in the nature of a civil
proceeding invoking the court’s equitable powers, rather than                                           B.
a criminal proceeding. See White Fabricating Co. v. United
States, 903 F.2d 404, 407–08, (6th Cir. 1990) (holding that a          Music City largely confines its focus to the assertion we
district court has jurisdiction to entertain a Rule 41(e) motion     addressed above, that the statute was unconstitutional as
for the return of property before a criminal prosecution has         applied. However, some of Music City’s arguments appear to
begun, believing such a motion to be, in effect, a civil action);
Delta Engineering v. United States, 41 F.3d 259, 262 n.2 (6th
Cir. 1994) (observing that “it is well established in this circuit       8
that courts have jurisdiction to hear Rule 41(e) motions in the             In the case at bar we are confronted with a defendant who dealt in
absence of criminal proceedings,” and citing White                   a number of items that clearly qualified as drug paraphernalia. As a
                                                                     result, we need not address whether the statute would sufficiently warn
Fabricating Co. as support for this proposition). The district       legitimate merchants selling only multiple use items of the conduct that
court found that because Music City would suffer irreparable         could render such items drug paraphernalia, thereby subjecting them to
                                                                     civil forfeiture.
12       United States v. Search of Music City             No. 99-5260         No. 99-5260         United States v. Search of Music City                  5
         Marketing                                                                                                            Marketing

the objective characteristics of some items, including certain                 harm and there was an inadequate remedy at law with regard
kinds of pipes, establish that they are designed for use with                  to the government’s retention of the property at issue, it
controlled substances, as they have no other use besides                       would exercise its equitable jurisdiction to hear the motion.
contrived ones). Therefore, Music City does not fit the                        The court correctly observed that under Rule 41(e)2, the
scenario posited by the Supreme Court, that of a legitimate                    property need not be returned if it was contraband. See, e.g.,
merchant “engaging in the sale of only multiple use items.”                    Fed. R. Crim. P. 41(e) advisory committee note
Id. at 526, 114 S. Ct. at 1755 (emphasis added).                               accompanying the 1972 amendments (stating, “the judge in
                                                                               the district of seizure does not have to decide the legality of
  With respect to Music City’s vagueness arguments                             the seizure in cases involving contraband which, even if
concerning the Aristocrat snuff dispensers, small gauge mesh                   seized legally, is not to be returned.”). The parties agreed and
screens, variously sized scales, “dugouts,” springs used in                    the court looked to the definition of drug paraphernalia
manufacturing the “dugouts,” metal cigarettes (or “bats”) used                 contained in 21 U.S.C. § 863, determining that under the
with the “dugouts,” and the “SmokeLess System,” we                             statute most of the items the government seized qualified as
conclude that § 863 is not unconstitutionally vague in                         drug paraphernalia. The court then denied Music City’s
application. First, with respect to the danger of arbitrary                    motion for the return of its property on the grounds that Music
enforcement, the objective factors listed in § 863(e), in                      City was not legally entitled to the items at issue.
conjunction with the definition of drug paraphernalia
contained in subsection (d), and the exemption of traditional                    On appeal Music City does not contend that 21 U.S.C.
tobacco products in subsection (f), supplied the detail                        § 863 is unconstitutionally vague on its face, an argument that
regarding what items would qualify as drug paraphernalia to                    appears to be foreclosed by the Supreme Court’s opinions in
adequately limit the danger7 of arbitrary enforcement with                     Posters ‘N’ Things, LTD. v. United States, 511 U.S. 513, 114
respect to the items seized. See Posters ‘N’ Things, 511                       S. Ct. 1747, 128 L. Ed. 2d 539 (1994) and Village of Hoffman
U.S. at 525–526, 114 S. Ct. 1754. While the scales and empty                   Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102
snuff dispensers present the closest question, Music City’s                    S. Ct. 1186, 71 L. Ed. 2d 362 (1982) as well as this Court’s
sale of drug paraphernalia separates it from merchants dealing                 opinion in United States v. 57,261 Items of Drug
solely in multiple-use items in a manner that adequately                       Paraphernalia, 869 F.2d 955 (6th Cir. 1989) (abrogated by
constrains law enforcement officials from proceeding to seize
scales or snuff containers from such merchants. See id.; Cf.
                                                                                  2
                                                                                   Fed. R. Crim. P. 41(e) provides:
                                                                                       A person aggrieved by an unlawful search and seizure of
                                                                                  property may move the district court for the district in which the
to largely be contrived. However, because at least the majority of the            property was seized for the return of the property on the ground
pipes were not multi-use items, our resolution of the status of the “dug          that such person is entitled to lawful possession of the property.
outs” and “SmokeLess System” is not critical to our decision.                     The court shall receive evidence on any issue of fact necessary
     7                                                                            to the decision of the motion. If the motion is granted, the
      Music City complains that the district court gave too much credit to        property shall be returned to the movant, although reasonable
Custom Agent Magione’s testimony regarding which items were drug                  conditions may be imposed to protect access and use of the
paraphernalia. This argument, however, is addressed to the validity of the        property in subsequent proceedings. If a motion for return of
district court’s finding that the items were drug paraphernalia, rather than      property is made or comes on for hearing in the district of trial
whether the statute allows arbitrary enforcement with respect to the seized       after an indictment or information is filed, it shall be treated also
items.                                                                            as a motion to suppress under Rule 12.
6      United States v. Search of Music City      No. 99-5260      No. 99-5260          United States v. Search of Music City               11
       Marketing                                                                                                   Marketing

Posters ‘N’ Things, LTD., 511 U.S. 513, 114 S. Ct. 1747,             implicate vagueness or other due process concerns with
with respect to the intent required for a conviction under 21        respect to such items. Petitioners operated a full-scale
U.S.C. § 857). Rather, Music City argues that the statute is         “head shop,” a business devoted substantially to the sale
unconstitutionally vague as applied to the items of inventory        of products that clearly constituted drug paraphernalia.
seized by the government in 1998.                                    The Court stated in Hoffman Estates: “The theoretical
                                                                     possibility that the village will enforce its ordinance
   The drug paraphernalia statute located at 21 U.S.C. § 863         against a paper clip placed next to Rolling Stone
states:                                                              magazine ... is of no due process significance unless the
                                                                     possibility ripens into a prosecution.” 455 U.S., at
    (a) It is unlawful for any person–                               503-504, n. 21, 102 S.Ct., at 1196, n. 21. Similarly here,
        (1) to sell or offer for sale drug paraphernalia;            we need not address the possible application of § 857 to
        (2) to use the mails or any other facility of interstate     a legitimate merchant engaging in the sale of only
        commerce to transport drug paraphernalia; or                 multiple-use items.
        (3) to import or export drug paraphernalia.
                                                                   Id. Thus, Music City correctly observes that the Court quite
As an aid in determining whether particular items are drug         naturally did not address whether the statute would be
paraphernia, parts (d) and (e) provide detail. Part (d) lists      unconstitutionally vague with respect to the prosecution of a
items that generally qualify as drug paraphernalia “per se” and    legitimate merchant who sold only multi-use items, an issue
part (e) contains a non-exhaustive list of eight factors to        not before the Court. Music City attempts to style itself as
consider while evaluating the items at issue. Parts (d) and (e)    such a merchant, arguing that at worst some of the items it
read as follows:                                                   sold were multi-use items.
    (d) The term “drug paraphernalia” means any                      Music City is correct in noting that the Supreme Court has
        equipment, product, or material of any kind which is       expressed some concern about the statute’s constitutionality
        primarily intended or designed for use in                  as applied to the seizure of multiple use items such as scales,
        manufacturing, compounding, converting,                    razor blades, and mirrors from merchants dealing only in
        concealing, producing, processing, preparing,              multiple use items. However, while Music City did carry
        injecting, ingesting, inhaling, or otherwise               multiple use items as well as legitimate tobacco related
        introducing into the human body a controlled               products, it also carried a wide variety of pipes that based on
        substance, possession of which is unlawful under           their design,   were only suitable for use with controlled
        this subchapter. It includes items primarily intended      substances.6 See id. at 518, 114 S. Ct. at 1751 (observing that
        or designed for use in ingesting, inhaling, or
        otherwise introducing marijuana, cocaine, hashish,
        hashish oil, PCP, or amphetamines into the human               6
        body, such as--                                                  The “dug outs” and “SmokeLess System” likely fall under this
        (1)    metal, wooden, acrylic, glass, stone, plastic,      category as well, given that their design only allowed a small quantity of
                                                                   smoking material to be loaded into the “bat” for smoking. As the
               or ceramic pipes with or without screens,           government’s expert testified at trial, this only allowed a few puffs per use
               permanent screens, hashish heads, or                and was therefore more consistent with marijuana smoking than it was
               punctured metal bowls;                              with tobacco smoking. Music City has argued that these products could
                                                                   be used to help reduce tobacco smoking, but such purported use appears
10       United States v. Search of Music City             No. 99-5260        No. 99-5260     United States v. Search of Music City           7
         Marketing                                                                                                       Marketing

we need not be detained long with Music City’s arguments                           (2)    water pipes;
that § 863 is vague as applied to the pipes that the government                    (3)    carburetion tubes and devices;
seized from its warehouse. As the Supreme Court noted, the                         (4)    smoking and carburetion masks;
statute specifically lists pipes designed for use with illegal                     (5)    roach clips: meaning objects used to hold
drugs in subsection (d), provides objective factors to assist in                          burning material, such as a marijuana
their evaluation in subsection (e), and excludes pipes                                    cigarette, that has become too small or too
traditionally used to smoke tobacco in subsection (f).                                    short to be held in the hand;
Consequently, while Music City may be unhappy with the                             (6)    miniature spoons with level capacities of
district court’s conclusion that the various pipes that Customs                           one-tenth cubic centimeter or less;
Agents confiscated were drug paraphernalia, it cannot                              (7)    chamber pipes;
complain that 21 U.S.C. §5 863 was unconstitutionally vague                        (8)    carburetor pipes;
as applied to those pipes.                                                         (9)    electric pipes;
                                                                                   (10) air-driven pipes;
   Music City points out, however, that several of the items                       (11) chillums;
seized were the type of multi-use items that the Supreme                           (12) bongs;
Court voiced concern about in Posters ‘N’ Things, 511 U.S.                         (13) ice pipes or chillers;
at 526, 114 S. Ct. at 1754. In Posters ‘N’ Things the Court                        (14) wired cigarette papers; or
stated:                                                                            (15) cocaine freebase kits.
                                                                               (e) In determining whether an item constitutes drug
    Section 857's application to multiple-use items—such                           paraphernalia, in addition to all other logically
  as scales, razor blades, and mirrors—may raise more                              relevant factors, the following may be considered:
  serious concerns. Such items may be used for legitimate                          (1)    instructions, oral or written, provided with
  as well as illegitimate purposes, and ‘a certain degree of                              the item concerning its use;
  ambiguity necessarily surrounds their classification.’                           (2)    descriptive materials accompanying the item
  Mishra, 979 F.2d, at 309. This case, however, does not                                  which explain or depict its use;
                                                                                   (3)    national and local advertising concerning its
                                                                                          use;
     5                                                                             (4)    the manner in which the item is displayed for
       Apparently in an effort to illustrate the statute’s vagueness, Music               sale;
City makes much of the fact that Sergeant Brock, a police officer with the
local Vice Squad unit that participated in the raid, did not think that any        (5)    whether the owner, or anyone in control of
of the items in the warehouse were drug paraphernalia. Additionally                       the item, is a legitimate supplier of like or
Music City points out that Customs Agent Davis allegedly made some                        related items to the community, such as a
comments that could be construed as sanctioning the sale of the items                     licensed distributor or dealer of tobacco
remaining in Music City’s warehouse after the 1989 raid. However, the                     products;
fact that different minds reach different results when applying the factors
to determine if an item qualifies as drug paraphernalia does not                   (6)    direct or circumstantial evidence of the ratio
necessarily mean that the statute is unconstitutionally vague as applied to               of sales of the item(s) to the total sales of the
that item. See, e.g., Schneiderman, 968 F.2d at 1568 (rejecting an                        business enterprise;
argument that 21 U.S.C. § 857 was unconstitutionally vague as applied              (7)    the existence and scope of legitimate uses of
and noting that while effective law enforcement often requires a degree                   the item in the community; and
of police judgment, this alone does not render a statute unconstitutional).
8       United States v. Search of Music City              No. 99-5260         No. 99-5260          United States v. Search of Music City                9
        Marketing                                                                                                              Marketing

         (8)     expert testimony concerning its use.                          to prohibited conduct. Id. at 525, 114 S. Ct. at 1754. With
                                                                               regard to these listed items the Court stated that “there can be
21 U.S.C. § 863.                                                               little doubt that the statute is sufficiently determinate to meet
                                                                               constitutional requirements.” Id. at 525–26, 114 S. Ct. at
  Music City contends that as applied to the items that                        1754. The Court also noted that § 857(e) set forth objective
Customs agents seized in 1998, the statute’s definition of drug                criteria for assessing whether items constitute drug
paraphernalia is unconstitutionally vague. To survive a                        paraphernalia, minimizing the possibility of arbitrary
challenge of unconstitutional vagueness in application, a                      enforcement and assisting in defining the conduct the statute
penal statute must “define the criminal offense with sufficient                prohibits. Id. at 526, 114 S. Ct. at 1754 (citing United States
definiteness that ordinary people can understand what conduct                  v. Mishra, 979 F.2d 301, 309 (3d Cir. 1992) and United States
is prohibited and in a manner that does not encourage                          v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), which
arbitrary or discriminatory enforcement.” Posters ‘N’ Things,                  both found that while a certain degree of ambiguity
511 U.S. at 526, 114 S. Ct. at 1754 (quoting Kolender v.                       necessarily surrounds the classification of drug paraphernalia,
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.                    the statute provided constitutionally sufficient guidance).
2d 222 (1972) and citing Grayned v. Rockford, 408 U.S. 104,3                   Additionally, the Court observed that § 857(f) exempted items
108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222 (1972)).                     traditionally used with tobacco, “further limit[ing] the scope
                                                                               of the statute and preclud[ing] its enforcement against
  In evaluating Music City’s claims, the Supreme Court’s                       legitimate sellers of lawful products.” Id. at 526, 114 S. Ct.
opinion in Posters ‘N’ Things is instructive, as it is the most                at 1754.
recent case in which the Court discussed the constitutionality
of the drug paraphernalia statute. In Posters ‘N’ Things,                         Although in the case at bar we address the current drug
police executed a search of defendants’ business premises,                     paraphernalia statute located at 21 U.S.C. § 863, the Supreme
seizing pipes, bongs, scales, roach clips, and drug diluents.                  Court’s analysis of the old statute located at 21 U.S.C. § 857
Defendants were subsequently indicted and convicted for,                       remains controlling. When Congress recodified the statute it
among other things, selling drug paraphernalia in interstate                   left the language originally contained in § 857 (d)–(f)
commerce in violation of the drug paraphernalia statute then                   unchanged, leaving the precedential value of cases
located at 21 U.S.C. § 857. On appeal one of the arguments                     interpreting the old statute intact. Therefore, as applied to the
defendants raised was that the statute was unconstitutionally                  items that the Supreme Court addressed in Posters ‘N’
vague as applied to the items seized. The Court disagreed,                     Things, such 4as pipes not traditionally used for tobacco,
observing that the list of items in § 857(d) that constitute per               bongs, scales, diluents, and roach clips, it is clear that 21
se drug paraphernalia provided relatively clear guidelines as                  U.S.C. § 863 is not unconstitutionally vague. Given this fact,


    3                                                                              4
      Music City was subject to a seizure and a civil forfeiture                     The Court indicated that the statute was constitutional as applied to
proceeding, rather than a criminal prosecution, potentially reducing           the scales at issue in the case before it, which were seized from a “head
concerns of unconstitutional vagueness. See Hoffman Estates, 455 U.S.          shop,” meaning a store dealing substantially in items that clearly qualified
at 498–99, 102 S. Ct. at 1193 (observing that with respect to the degree       as drug paraphernalia. 511 U.S. at 526, 114 S. Ct. 1754–55. However,
of vagueness tolerated by the Constitution, “[t]he Court has . . . expressed   the Court also indicated that when multiple-use items such scales are sold
greater tolerance of enactments with civil rather than criminal penalties      by legitimate merchants engaged in the sale of only multiple-use items,
because the consequences of imprecision are qualitatively less severe.”)       more serious vagueness concerns might be raised. See id.
