Transcript

IN THE SUPREME COURT OF THE UNITED STATES

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

No. 92-903

October 5, 1993

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m.

APPEARANCES:

ALFREDO PARRISH, ESQ., Des Moines, Iowa; on behalf of the Petitioners.

WILLIAM C. BRYSON, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

10:01 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 92-903, Posters 'N' Things, Limited v. the United States.

Mr. Parrish.

ORAL ARGUMENT OF ALFREDO PARRISH ON BEHALF OF THE PETITIONERS

MR. PARRISH: Mr. Chief Justice, and may it please the Court:

We're here today discussing 21 U.S.C. 857, which is referred to and I will refer to it as the drug paraphernalia statute. The question is whether or not it contains a subjective scienter, and when the trial judge applied 857 without a subjective scienter in his instructions 37 and 39, did he deny the petitioner her due process rights?

The court, we believe, erroneously applied 857, because when it instructed the jury it instructed the jury without any intent requirement. On the other hand, if this statute does not contain any intent requirement, as the trial judge found and the Eighth Circuit affirmed, then the statute is unconstitutional and the conviction cannot stand.

QUESTION: What is your authority for that latter proposition, Mr. Parrish?

MR. PARRISH: That is cannot stand?

QUESTION: That it's unconstitutional.

MR. PARRISH: If it's un -- it's based upon the concept that a mens rea requirement is read into a statute. If it's not read into a statute, then you have to look at the legislative history to try to find it.

QUESTION: But I thought you said if there's no mens rea requirement it's unconstitutional, and I asked you what your authority is for that proposition.

MR. PARRISH: The authority that we have for that proposition is the Morissette v. -- the Morissette case is what we use for that.

QUESTION: I reread the Morissette case because you cite it in your brief, and I didn't read that as saying anything about a lack of intent making a statute unconstitutional.

MR. PARRISH: Well, the Morissette case dealt with the fact of whether or not you should look to other instances to determine whether or not a statute should be declared unconstitutional. If no mens rea statute is in it, if no mens rea requirement is in it, then we believe you have to look at the intent of the legislature.

QUESTION: Well, how does that get you to any constitutional proposition?

MR. PARRISH: We don't believe you have to reach the constitutional proposition in order to remand this case to the Eighth Circuit.

QUESTION: Well, then your principal -- the principal authority on which you rely for the proposition that if the statute does not have an intent requirement, it is unconstitutional, is Morissette.

MR. PARRISH: The Morissette case. Also it seems to be indicated in the Hoffman's Estates case also, because in that decision the Court indicates that -- in their questioning to counsel and also in the decision, that some intent must be found in the statute to save its vagueness.

So we talk about that over and over again in the line of cases that follow the Hoffman Estates case. You look for some intent. However, those were preenforcement cases and in preenforcement challenges to the facial constitutionality of the statute, the Court seems to save it solely because there is some intent requirement in the statute.

QUESTION: Are you referring to this Court or other courts?

MR. PARRISH: This Court.

QUESTION: You take the position that the instructions didn't require proof of any mental element. What do you make of the language of the charge that the jury must find that the Government had proven that the defendants understood they -- or knew the nature and character of the items?

MR. PARRISH: Well, in their approach on that issue, that's not the case that was tried by the district court judge. The judge tried a purely objective --

QUESTION: You mean he didn't give the -- excuse me.

MR. PARRISH: I'm sorry.

QUESTION: That he didn't give the instruction that the Government says he gave?

MR. PARRISH: He did not give the exact instruction. I will refer you to page 19 of --

QUESTION: Well, Mr. Parrish, if you look at page 22 on the Joint Appendix, the charge is: "That the defendant whose case you are considering knew the nature and character of the items."

MR. PARRISH: Then you go to instruction on page 31 of the Joint Appendix, to instruction 39, where the term "primarily intended" -- which is the vehicle that most of the courts have used to determine where the intent is in this case -- as used in these instructions does not relate --

QUESTION: Well, but the point --

MR. PARRISH: -- To the knowledge of the --

QUESTION: The point is you're saying that there was no scienter required.

MR. PARRISH: That's correct.

QUESTION: And instruction 21, subparagraph 2, says you have you find that the defendant knew the nature and character of the item. Now that's a mens rea component, is it not?

MR. PARRISH: It is a mens rea component.

QUESTION: And so the defendant had to know the nature and character of the item. Now, it's true that in the later instructions they said that there's no intent of any person that's required, but that simply means that the item itself is what the court and the jury should focus on.

MR. PARRISH: But that's the flaw in the instruction. The jury was never given an opportunity to determine the primary intent of the person who was, in fact, selling the item, the petitioner in this case. The jury could have gone back and deliberated anything.

QUESTION: Well, Mr. Parrish, I -- the statute seems to speak in terms of drug paraphernalia, and that term is defined as items either designed for or intended for us in connection with drug use. Now, is it not possible that the statute makes unlawful the sale of certain items that are designed for drug use and that have little other purpose? And if they're designed for that and someone knows what the object is, as the instructions require, that that's sufficient.

MR. PARRISH: It's not sufficient because these statutes have -- these items have dual purposes.

QUESTION: Well, I thought there were an array of items here, some of them being such things as are defined by the statute itself as being designed for drug use. I don't know the names for all these things, but bongs and other items that apparently have little other purpose.

MR. PARRISH: Well, designed for use goes to the intent of the manufacturer. If you're talking about primarily intended, it goes to the person who uses the item. The seller, in this case, has nothing.

QUESTION: Well, we may have two separate categories of items here.

MR. PARRISH: That's correct.

QUESTION: Is that possible?

MR. PARRISH: You can have two separate categories of items.

QUESTION: Okay.

MR. PARRISH: However in this case you have --

QUESTION: Well, as far as items designed for use as drug paraphernalia is concerned, how are the instructions deficient?

MR. PARRISH: In designed for use it goes to the manufacturer. She was not the designer, so consequently she can't be held liable or the jury find her intent based upon who designed it. If you go to primary intent --

QUESTION: Well if the item is designed for that use and no other and the statute says if you sell such items you're guilty of this offense, why isn't that sufficient?

MR. PARRISH: You're convicting the item. It would be insufficient because the jury has no idea on dual-purpose items unless you tell them that it goes to the intent of the person who does, in fact, use the item.

QUESTION: Well I'm not going to belabor it, but it seems to me there are two types of items. Some are not dual purpose at all.

MR. PARRISH: Some are not, that is correct.

QUESTION: Maybe some are.

MR. PARRISH: But you can't tell by the way the court instructed the jury in 37 and 39. You can't tell that because he tells them, per se, these list of 15 items are in fact, per se, drug paraphernalia. Then he gave the jury no option. He gave them a directed verdict. And giving a jury -- the jury a directed verdict, the Government had the benefit and the defendant had no opportunity at all to make any determination as to whether or not the jury could determine whether or not they were dual-purpose items.

And that's the problem with statutes like this, because you have dual-purpose items and you don't tell the jury --

QUESTION: Mr. Parrish, the judge in his charge three times told the jury that the defendant whose case the jury was considering had to know the nature and character of the items. So you say even though that was repeated in instruction 21, 22, and was it 18?

MR. PARRISH: That's correct.

QUESTION: You say that although he repeated that the defendant must know the nature and character of the items, that that's wiped out?

MR. PARRISH: Well, your understanding the -- in this case the jury was, in fact, instructed that her intent was not related to any knowledge. So the jury was confused. You don't know why a jury reached a particular decision on a matter. Clearly enough, they did give the knowledge instructions on some other factors.

But the drug paraphernalia case was only a predicate offense for the money laundering charge and the aiding and abetting charge, so clearly the jury could be confused on this point and the jury never knew that the subjective scienter had to apply to the defendant in this case. It was clearly an objective law of the case that was given in this -- by this trial court.

QUESTION: You're not disputing, are you, that the Government did prove that the defendant knew the nature and character of the items that were sold in her shop, that she knew that they were primarily designed for use -- that their primary use was in connection with illegal drugs?

MR. PARRISH: If you consider proof what the jury reached a verdict on without proper instructions, you would have to say yes, they did prove it.

QUESTION: Proof is what is adequate to go to the jury, not what the jury finds. Was there sufficient proof for the jury to find that the defendant knew that the primary use of these items was in connection with illegal drugs?

MR. PARRISH: We don't agree with that. We think the evidence was conflicting. All of the expert witnesses who testified in the record on this case all indicated that all of these items had dual purposes. So consequently when they had dual purposes, the court had to direct the jury someplace to find the subjective intent of the person. So where did they direct them? They have to direct them to primarily intended.

As a matter of fact, Congressman Levine, the principal author of this statute, indicated --

QUESTION: I'm not sure I understand your question -- your response. Some of these items were specifically enumerated in the statute.

MR. PARRISH: That's correct.

QUESTION: Justice O'Connor mentioned those. Are you saying that the Government did not prove, so that a jury could not find the defendant knew the primary use of bongs and roach clips was in connection with illegal drugs?

MR. PARRISH: We believe that the Government did not prove that; that there was not substantial evidence, due to the conflicting nature of it without some indication to this jury that the subjective intent, what Ms. Acty intended that these items go for, was given to the jury.

The jury had no direction with regard to that. Sure enough, the Government now wants to come back and claim a knowledge standard, but that's after the fact, the knowledge standard. In their knowledge standard argument to the Court -- we believe a fatal flaw exists in their argument, if you'll turn to page 19 of their brief.

In their argument they say: "Consistent with this view, the district court instructed the jury that the term primarily intended was not limited to the intent of the defendant or any particular person or persons." If they had given that instruction, we wouldn't be here today.

They didn't give that instruction. They didn't say it was not limited to. If you go to the actual instruction that was given, the court said on page 31 of the Joint Appendix: "The term primarily intended, as used in these instructions, does not relate to the knowledge or intent of any particular person or persons."

So consequently --

QUESTION: Well, if that is correct do you lose the case?

MR. PARRISH: If that is correct it has to be remanded.

QUESTION: I'm saying if that was a correct statement of law, do you lose?

MR. PARRISH: Which one, that the Government argued in its brief?

QUESTION: That primarily intended does not go to the state of mind of the seller who was, in fact, the defendant or the defendants in this case.

MR. PARRISH: Maybe I'm not understanding. If the --

QUESTION: Well, I thought you had just told me that the judge's instruction was that the so-called element of primarily intended for use was not a -- was not meant to refer to the state of mind of the seller of the paraphernalia. Is that correct?

MR. PARRISH: The state of mind of the defendant, the petitioner in this case.

QUESTION: The defendant, yes.

MR. PARRISH: That's correct.

QUESTION: And the petitioners were sellers.

MR. PARRISH: That's correct.

QUESTION: Corporate individuals. If that statement, contrary to what you say, is correct, that primarily intended does not go to the state of mind of the seller, do you lose this case?

MR. PARRISH: We win.

QUESTION: You win if you are incorrect in --

MR. PARRISH: Because the court did not give that instruction.

QUESTION: Let me approach it from a different direction. Your position, as I understand it, is that the Government must prove that the seller in this case primarily intended the items sold to be used in the manufacture and/or ingestion of drugs. Is that correct?

MR. PARRISH: That's correct.

QUESTION: All right. All right. If you're wrong on that, do you lose the case?

MR. PARRISH: Well, we don't lose the case because the Government argues a knowledge instruction. However, the court never gave a sufficient knowledge instruction to alert the jury to the difficulty that existed when they went back into the jury room to deliberate.

QUESTION: Well, you don't deny, as Justice Ginsburg pointed out, do you, that on three separate occasions the judge gave this understanding of nature and character instruction? You don't deny that.

MR. PARRISH: But nature and character --

QUESTION: Well, do you?

MR. PARRISH: I don't deny that.

QUESTION: Okay. So that your argument is, I take it, that the jury instruction was confusing and that even though there was a mens rea element required, in the context of the whole instruction the jury wouldn't have understood it. Is that your argument?

MR. PARRISH: That's correct. But also our argument is that when you're talking about -- we're maybe arguing over general and specific intent. We're talking about a punishment here where an individual is going to prison up to 20 years and facing a $500,000 fine. So when you're talking about that, you don't talk about using the same standards as we've used here for public welfare-type crimes or the crimes where knowledge has just been the type of thing that we allow people to be convicted on.

QUESTION: You --

MR. PARRISH: We're talking about sending people away for a long time.

QUESTION: You then are -- and I didn't get this from your brief, but are you arguing that instead of knowledge, which the Government concedes must -- knowledge in the sense the Government described it must be proven, that this must be a purposeful crime?

MR. PARRISH: It should be purposeful, based upon -- and getting back to Mr. Chief Justice Rehnquist's question of the standard that has been utilized, this Court has never actually confronted the mens rea standard at the constitutional level.

QUESTION: Is that true with respect to both kinds of items? We have here the listed items, the items set forth in the statute, and then the catchall classification of items.

MR. PARRISH: Well --

QUESTION: And is your answer the same with respect to both aspects of this case? Let's assume for the moment that the only thing before us were a prosection based on listed items, bongs and things like that. Would your argument be precisely the same as you've been making to us?

MR. PARRISH: It would be precisely the same because in applying the objective standard or the strict liability standard, the other items, Mannitol, Procaine, and Inositol, were items that were included. But the court told the jury they to had, again, look at the objective standard.

QUESTION: No, no. I want you to assume that the only thing before us --

MR. PARRISH: Okay.

QUESTION: Are the listed items and the jury was instructed, as they were here, that you have to know the nature of the item. Would your argument still be precisely the same as you've made to us?

MR. PARRISH: It would be precisely the same with one caveat, that we still would want to know which item did the jury find only had one purpose and which items had dual purposes. They were never told.

QUESTION: Even as to the statutory items?

MR. PARRISH: Even as to the --

QUESTION: Even as to the statutorily described items.

MR. PARRISH: Of course. Because even in the legislative history of the items, they talk about these items having dual purposes. And every Federal district court and appellate court that has confronted this issue, they constantly talk about the dual purpose of these items. And consequently they've ended up with tests all over the place on this question.

QUESTION: Mr. Parrish, there are all sorts of items that have dual purposes but the Government can nevertheless prohibit their sale. Say switchblade knives, for example. You could say dual purpose, but couldn't they say it's illegal to sell switchblade knives?

MR. PARRISH: If they say it's -- they can. And if they say it's illegal, make it illegal per se, put it in the statute, and then you have the Morissette tight fact situation that you have to confront it in.

QUESTION: Is it your position that the Government must prove that the retailer knew what his customer was going to do with the item?

MR. PARRISH: A must by some standard higher than just a simple knowledge or a low threshold knowledge standard, no, that's correct, Your Honor.

QUESTION: He has to know what his customer knew. What other statute requires that kind of knowledge, where you make it illegal to sell things such as drugs themselves, you don't have to --

MR. PARRISH: Well, drugs themselves. Cocaine, possession with intent to deliver cocaine, or having a weapon.

QUESTION: But you don't have to know what -- you don't have to know what your customer is going to do with it if you're indicted for selling cocaine.

MR. PARRISH: You do not know --

QUESTION: Maybe he's just going to, you know, put it in his cake or something.

QUESTION: Maybe he's a physician and he's going to use it to treat somebody.

MR. PARRISH: But then he has to get a license for it, and if you have to get a license for it you create a whole new standard. So you can't compare it to that type of situation. We're talking about a situation where a citizen has a dual-purpose item that's available at Walgreen's, any other store.

QUESTION: Well, it's a dual-purpose item but the statute requires that it's -- that it was designed primarily for use with illegal drugs.

MR. PARRISH: If you're talking about design, Your Honor, you have to go the manufacturer. That's what they -- that's what they indicated.

QUESTION: That's right. And the -- but the retailer has to know that that's what this item is primarily used for.

MR. PARRISH: And you establish a standard that's acceptable for high-threshold punishment. And a high-threshold punishment is a punishment where a person is going to spend a substantial number of years in prison.

QUESTION: Mr. Parrish, are you saying that if we had no confusion in the charge whatever, the charge is very clear that the Government must prove this defendant knew that the primary use -- not the exclusive use, the primary use of this substance is in connection with illegal drugs, that that would be unconstitutional as a construction of the statute?

The statute -- now we have -- we're eliminating entirely the element of confusion. The charge says jury, the requirement is that the defendant must know that the primary use of this item is in connection with unlawful drugs. No confusion, is that permissible, is that constitutional?

MR. PARRISH: We believe it's constitutional if you set the standard as to how you establish the knowing. If that was the case and if the judge had given that instruction, we wouldn't be here today, Justice Ginsburg.

QUESTION: How you establish the knowing is, for one thing, you look at the list that Justice Kennedy mentioned.

MR. PARRISH: That's correct.

QUESTION: That's clear notice that these items constitute drug paraphernalia, their principal use is in connection with unlawful drugs. So you have the statutory list and the clear instruction and that would meet the constitutional requirement?

MR. PARRISH: It would. However, the statutory list admits the fact that these items have other purposes. But the judge, in giving these instructions, said this list constitute drug paraphernalia, and over the objection of trial counsel in this case the judge proceeded to give this instruction, because it was an all-inclusive list and the items had dual purposes. Some of these items you can go to a hardware store and buy. And that's the problem with the statute. You are enforcing and not giving the jury any options once they get into a jury room.

QUESTION: They can -- even though they have dual purpose, they can still be drug paraphernalia, can't they?

MR. PARRISH: Of course they can be. That's why --

QUESTION: Okay.

MR. PARRISH: I'm sorry.

QUESTION: And didn't the instruction require that the defendant know the nature of these items?

MR. PARRISH: It said it did not know the nature. And if you go again to instruction 31, it says "primarily intended, as used in these instructions" -- on page 31 of the Joint Appendix -- "as used in these instructions does not relate to the knowledge or intent of any particular person or persons."

Contrary to what the Government argued that it was primarily -- it was not limited to the intent. If it had not been limited to her intent, there were other factors that this jury could have considered.

QUESTION: You're assuming that that is the intent provision of the statute, but that is not the intent provision of the statute.

MR. PARRISH: That is correct. I am assuming that based upon --

QUESTION: It isn't the intent in the design that's crucial, it's the intent in the sale that's crucial. That's the mens rea that you insist upon --

MR. PARRISH: But there --

QUESTION: -- Not the mens rea of the designer, but of the seller. And don't the instructions clearly require that the seller know the nature and purpose of the items?

MR. PARRISH: The instructions do not.

QUESTION: Dual or not.

MR. PARRISH: The instructions do not. They do not come close to outlining that to a jury. When you're down trying cases, a jury has no idea. They want to follow the judge's instructions, and in this case this jury had to be confused when they had per se instructions on the items themselves. They had to be confused because there's no clear direction and no consistency with the instructions.

QUESTION: You -- the instructions clearly say, ladies and gentlemen you have to find, one, that the items in question constitute drug paraphernalia; two, that the defendant, whose case you are considering, the seller here, knew the nature and character of the items. I don't see how you can be much clearer than that?

MR. PARRISH: But they go back again to 39 and it says it does not relate to the knowledge and intent of that person.

QUESTION: 39 relates to something else, to the designer, and that's not the intent we're concerned about here.

MR. PARRISH: But the problem -- the Federal courts have confronted this issue. They've come up with several tests. They've come up with an objective test. They've come up with a subjective objective test.

QUESTION: You're not saying -- that's what I wanted to clarify. You're not arguing that the only constitutional standard is this subjective one. That is, that the defendant must want the purchaser to use it in connection with drugs.

MR. PARRISH: That's correct.

QUESTION: So you're saying that there can be a knowledge standard.

MR. PARRISH: Oh, it can be a knowledge standard. We will accept a knowledge standard. We don't accept --

QUESTION: And that there is under this statute. Not just that there can constitutionally be, but you acknowledge that that would be enough knowledge under this statute.

MR. PARRISH: We would acknowledge it's not enough knowledge as proposed in the instruction by the Solicitor General.

QUESTION: I don't want to get into that.

MR. PARRISH: Within the statute -- okay.

QUESTION: But you agree that if it had been made clear.

MR. PARRISH: Absolutely.

QUESTION: If it had been made clear that all this seller has to know is that these are drug paraphernalia -- which is to say they are primarily intended primarily for uses as drug paraphernalia, even though they may have other uses. If that had been made clear, that would comply with the Constitution and with the statute.

MR. PARRISH: Absolutely.

QUESTION: Okay.

QUESTION: Well, Mr. Parrish, none of the four questions presented in your petition for certiorari deal with the instructions given by the trial court. We don't ordinarily sit here to debate whether a particular instruction was confusing or not.

MR. PARRISH: We did address that, Judge -- Your Honor, when we outlined that all of the particular items whereof, including instruction 37 and 39. That's addressed in our petition and also addressed in our petition in our brief.

QUESTION: Well what's -- under what question is that question presented, is that subsumed?

MR. PARRISH: On the subjective scienter question, as to whether or not the judge accepted a fully objective standard in this case --

QUESTION: Well --

MR. PARRISH: -- And a strict liability standard.

QUESTION: Your question two deals with the standard imposed by the statute, not what instruction was given.

MR. PARRISH: That's the standard that the judge adopted in this case, Mr. Chief Justice Rehnquist, and that was the one that was not in the statute. It was the primarily intended which was, in fact, in the statute. And that's the way the courts have been finding the vehicle for intent. As a matter of fact, it's based upon the legislative history of --

QUESTION: I suggest that you don't devote any more of your argument to the particular instructions given in this case, because I don't think -- and I think that probably the bench agrees with me, that that's fairly raised in the petition.

MR. PARRISH: I'm sorry. Oh, I thought you said something else.

QUESTION: Incidentally, Mr. Parrish, you and this case and I come from the Eighth Circuit. Who was the district judge?

MR. PARRISH: Judge Rawley was the district judge in this case. However, I didn't try it in the lower court, but he was the district court judge.

In determining how to find legislative intent, as I was indicating, several of the district courts and appellate courts, when confronted with this issue, have been confused and have been in some conflict and have, to some extent, been inconsistent in their application of this standard.

Some have arrived at a standard of a subjective test. Some have arrived, as the Sixth Circuit has found, at an objective subjective test. And some have, in fact, found a purely subjective test with regard to this. And I think the confusions in the circuits have come from the fact that they don't know where to find primarily intended and where it applies in this particular instance.

And we believe we have to look at what the Congressman Levine indicated when he was saying where in the statute is the intent. He indicated in the statute the intent was found in primarily intended. And we believe the court, by not addressing this issue and applying an objective standard as the law of the case, deprived Ms. Acty of her constitutional rights; did not, in fact, get into any issue with the jury as to these dual-purpose items and get into her intent. And consequently, we believe this case ought to be remanded.

Thank you.

QUESTION: Thank you, Mr. Parrish.

Mr. Bryson, we'll hear from you.

ORAL ARGUMENT OF WILLIAM C. BRYSON ON BEHALF OF THE RESPONDENT

MR. BRYSON: Thank you, Mr. Chief Justice, and may it please the Court:

A great deal of the discussion this morning has been over the instructions. And while I recognize that isn't the principal issue that the Court has before it, I would very briefly, just as a predicate to my argument, like to review the portions of the instructions that did specifically address the question.

QUESTION: And, of course, I suppose you're doing it because the Government changed its theory while the case -- after the case was granted, didn't it?

MR. BRYSON: Well, Your Honor, the -- in the lower courts.

QUESTION: There's nothing wrong with that, but --

MR. BRYSON: Well, I think we certainly changed our approach to the case in this respect, in that in the lower courts the thrust of the argument being made by the defendants was that a subjective intent was required. That is -- and this was the basis for the objections that were made in the district court -- that the defendant herself had to have designed or intended the drug use. And we said that was not so, and the district judge agreed with us.

So the question of where the intent, where the knowledge lay, and so forth, was really not the focus of the district court proceeding. In the court of appeals, the argument was made -- the principal argument made by the defendants was that this statute has no scienter requirement at all and therefore is unconstitutional. So, again, as the court of appeals pointed out, they did not argue for a particular scienter requirement. They didn't press the issue of knowledge. They were looking for a constitutional ruling based on an assumption of no scienter.

So we are addressing the case as it now comes to the Court, and addressing in particular the question that's raised in the petition.

QUESTION: Didn't they also argue in the court of appeals that if one does not read into it the subjective intent requirement that they contend for, that -- I mean that if it -- it would be unconstitutional if you did not read it in, and therefore you should read it in, and therefore the proper instruction was not given and therefore there should be new trial. Didn't they make that argument?

MR. BRYSON: They did. That was their backup argument. But, again, the instruction they were talking about was the instruction that they'd argued for in the district court.

QUESTION: I understand.

MR. BRYSON: Which was the purely subjective intent instruction. Which is the -- again, the -- this defendant has to have designed, or this defendant has to have intended that the drugs be used, not --

QUESTION: Mr. Bryson, during the course of your review -- and you're going to turn to the instructions, which I hope you do, can you clarify for me the Government's position as to whether or not instructions should be precisely the same in trial A, which consists just of a trial for having sold the listed items, and trial B, assuming that there are only unlisted items involved. Are the instructions in each case to be precisely the same?

MR. BRYSON: Well, I --

QUESTION: If you could address that during the course of your argument, I'd appreciate it.

MR. BRYSON: Well, certainly. Well, let me address it right now. I think that the instructions can be different because I think designed and intended are different terms. Designed, I think, is a much simpler concept. That simply means that the manufacturer made the thing in a way that makes it suitable only for a particular use, absent some kind of very bizarre use. Intended for obviously is a more complicated concept. But in both cases the idea of scienter would be the same, we submit, which is that the defendant has to know the primary use of the substance is for drugs.

QUESTION: Well, but intended and designed applies both to the listed items and to all other items, does it not?

MR. BRYSON: Your Honor, we think the listed items are -- with exception perhaps. But we think that basically the listed items are all design items. I mean the one exception is there's a reference to roach clips, which are items which, by virtue of the way they're intended, the way they're marketed and so forth, would be either drug paraphernalia or not drug paraphernalia.

QUESTION: Well the statute doesn't make that distinction in its language. The statute, in its listing of the 15 items, says that these items are intended and designed.

MR. BRYSON: They say -- that's right. But it's --

QUESTION: So there's no distinction between the two classifications of cases.

MR. BRYSON: That's clear. But I think it would be our position that each of those items is, in fact, an item that is designed, because they are specifically identified because they have exclusively drug purposes.

QUESTION: Mr. Bryson, to cut to the chase here, what is the Government's position as to the nature of the scienter? Is it that the defendant must know either that the item was designed for that purpose or that the item was intended for that purpose by the manufacturer?

MR. BRYSON: Yes. And what that --

QUESTION: So he's --

MR. BRYSON: Well, not necessarily intended by the manufacturer, but intended by the retailer --

QUESTION: Well, the intended provision --

MR. BRYSON: Or someone in the chain of distribution who may use it.

QUESTION: Oh, okay, someone --

MR. BRYSON: Who may display it in a particular way. In other words, that you may have a manufacturer making something. Again, let's take roach clips.

QUESTION: Right.

MR. BRYSON: Which may not by their design necessarily commit themselves to drug use.

QUESTION: Right.

MR. BRYSON: But -- excuse me.

QUESTION: So he has to know somebody else's state of mind, essentially.

MR. BRYSON: It isn't a state of mind. He has to know what the goods are used for, what they --

QUESTION: No, it doesn't say use, is says designed -- designed.

MR. BRYSON: That's right. And designed, I think, means --

QUESTION: You design something for a purpose if it's your intent to make them for that purpose, no?

MR. BRYSON: Well, that is true. But the -- an item can be designed for a purpose -- you can objectively view an item and say this item is designed -- a car is designed for transportation. Now, it is true that somebody back at the plant --

QUESTION: Even if nobody designed it for that purpose? I mean you --

MR. BRYSON: Well, somebody obviously --

QUESTION: It seems to me you can say it seems to be designed for that purpose.

MR. BRYSON: Somebody obviously will design it for that purpose. But what you're really concerned with, and what this statute is designed or intended to reach is identification of an item. It isn't intended to -- a drug paraphernalia definition is not intended to reach a question of somebody else's intent, or for that matter the defendant's intent. It's intended to identify something about the item.

QUESTION: I really don't know how you can avoid that. From the language, I don't know how you can -- I don't know that it's such a terrible thing, either. I mean, why is it so hard to tell whether it was, you know, designed for that purpose?

MR. BRYSON: Well, what --

QUESTION: Do you think it's hard to tell whether a car was designed for transportation without talking to the fellow who built it?

MR. BRYSON: No, it isn't hard to tell. And if you would -- if you like, you can say well, yes, we're looking at the question of the intent of the designer or the intent of the retailer. But I think what -- when a jury looks at this and they're told you are to try to ascertain what the design or intent of the -- the intended use of this good is. They can look at the good, they can look at the setting, they can look at the retail display of the good, and they can make a determination that that good is committed to -- intended to be committed to use with drugs.

QUESTION: Well, Mr. Bryson.

MR. BRYSON: Excuse me.

QUESTION: Suppose the items are something like razor blades.

MR. BRYSON: Yes.

QUESTION: Now, they're not on the list of things that apparently are to be considered design for use as drug paraphernalia.

MR. BRYSON: Uh-hum.

QUESTION: What is the proper standard in instruction, then, for the jury for a retailer of razor blades?

MR. BRYSON: The standard would be if in the setting in which this particular item is being marketed it appears that it was intended to be used with drugs.

QUESTION: Well --

MR. BRYSON: And let me give you an example that goes to exactly that case.

QUESTION: Yeah, I mean should -- is it -- must the jury be told and is the standard that the retailer must intend that they be used for drug use?

MR. BRYSON: Well, typically it will be the retailer in a dual-use item, but it doesn't have to be. In other words, your wholesaler could package -- and this is exactly a case that's presented by this case. The wholesaler packages a little item called a cocaine executive kit which contains, among other things, a razor blade. Now, when the wholesaler puts that kit together it contains a razor blade, a vial with a little spoon on it, and a mirror and a straw and a grinder.

This little kit, when the retailer -- when the wholesaler sends it to the retailer, has a razor blade in it which is surely intended for use with cocaine. Now, it wasn't designed that way. It may have been made by Gillette and wholesaler may have put it into the kit and converted it into something which is intended for use with cocaine.

Now, the retailer may do nothing other than put it down on the counter, and therefore the retailer may not have either designed it or even specifically intended to create an item that is directed to this market. But the retailer, we submit, has to know that this kit is being used for -- primarily with drugs, and that satisfies the scienter requirement.

Now, let me turn --

QUESTION: But how does that square with instruction 39, which says that the term primarily intended "does not relate to the knowledge or intent of any particular person or persons?"

MR. BRYSON: Well, that instruction is intended to answer the suggestion that the defendant has to be person who primarily intends that drugs be used with this product, or primarily has designed the product.

QUESTION: Well, if I were a juror I would say that the knowledge of the drug -- this in the case of the razor blade hypothetical -- is irrelevant under instruction 39. Would you submit instruction 39 in a case where a druggist is being sold for selling a razor blade, the proof being that the buyer said I need a razor blade to cut my cocaine?

MR. BRYSON: Well, instruction 39, we could have done without instruction 39. Instruction 39 is really --

QUESTION: Instruction 39 would be inappropriate in the case that I put, would it not?

MR. BRYSON: I don't think so, because I think --

QUESTION: Well, you've said that the intent of the seller is relevant.

MR. BRYSON: Well, no, I don't think so, Your Honor. I think it -- in determining what is drug paraphernalia, you look at the item. And the question of whether it happens to have been the druggist or it happens to have been the wholesaler or somebody else that put the item together and converted it into something that really one can judge objectively is intended for drug use, or is likely to be used with drugs, it's irrelevant whether that was the intent of the druggist or any particular person. And that's the language of the instruction.

You don't -- you're not concerned to say did the druggist intend to put this item together, intend to try to market it in this particular way, as long as you have knowledge on the part of the defendant that that is what the item is, that the item is being primarily used with drugs.

QUESTION: But --

MR. BRYSON: In the knowledge --

QUESTION: You go ahead.

QUESTION: It's really not very accurately put. I mean, you have to read it as does not relate to the knowledge of any particular -- you really have to jump on particular. You wouldn't have framed it that way, Mr. Bryson, I'm sure, if you were -- if you had written it to begin with.

MR. BRYSON: Well --

QUESTION: I mean, what -- obviously it has to relate to the intent of some particular person or persons. You don't have an intent just floating around in the air, right?

MR. BRYSON: Well I think you have to -- Your Honor.

QUESTION: So, I mean, it could be the intent of the seller, it could be the intent of the manufacturer. It has to be the intent of some person, but no particular person.

MR. BRYSON: That's right.

QUESTION: That's the meaning of it.

MR. BRYSON: I think that's the gist of it. And in that --

QUESTION: Do you think the jury understood it that way?

MR. BRYSON: Well, I think so. Because the jury was fully apprised of the fact that the goods had to be designed or intended for use with drugs, and that the defendant had to know that, had to know of the nature and character and use of the goods.

QUESTION: You were candid in acknowledging in your brief that the formulas used by the circuits were not entirely satisfactory.

MR. BRYSON: That's correct.

QUESTION: And that this charge wasn't entirely satisfactory. If you were to put in words what the proper charge should be to convey your understanding of the state of mind requirement to convict, what would that -- what would those words be?

MR. BRYSON: I think I would say, Your Honor, that the defendant must know that the goods are -- the goods in question are primarily used with drugs.

QUESTION: Mr. Bryson.

MR. BRYSON: And that the drugs must also be drug paraphernalia, as defined in section (d). I think that's the most efficient way to express the thought. One might be able to be more precise about it, but I think that that is the formula that would be most readily understood by a jury and would capture the essence of what the mens rea requirements are.

QUESTION: Mr. Bryson, supposing someone went into a supermarket/hardware/drug store and said he wanted to buy a cocaine executive kit which would include a razor, a spoon, four or five items each of which is a dual-purpose item. Went through the -- with the salesman, went through the store and picked out the several items until he got the whole kit. And they said what are you going to use it for? I'm going to -- I like to smoke cocaine. Would the salesman be guilty of a crime?

MR. BRYSON: Well, Your Honor, I think that is the hardest case that's presented by the statute, because what you have there is an item that hasn't -- or a series of items. Let's just suppose, to make it even harder --

QUESTION: Just stick with my example.

MR. BRYSON: Okay, I'll stick with yours.

It is -- I think it's a very hard case because, yes, when you put all the items together the -- presumably -- well, let's -- let's assume knowledge on the part of the seller.

QUESTION: The customer told him --

MR. BRYSON: The customer tells him.

QUESTION: -- What I'm going to do with it.

MR. BRYSON: By the time you get to that point, the salesman knows that he is selling something which, in the aggregate, is intended to be used with drugs. So I would say I think that would satisfy the statute.

On the other hand, it doesn't fit within the -- what is ordinarily understood under the statute to be something which is designed or intended for drug use, because it was not until he got to the counter --

QUESTION: But it clearly was in this case.

MR. BRYSON: -- That it became something that was intended for drug use. So it was very late in the day that it became narcotics paraphernalia, when he walked up to the counter and had them all together or when he explained what the use was that he was going to make of them.

QUESTION: He needed the salesman to help him find each of these items.

MR. BRYSON: Yes.

QUESTION: To go through this big store.

MR. BRYSON: Yes, I would say -- and you could take an example that -- if I could just --

QUESTION: Change the example.

MR. BRYSON: Change the hypothetical. But my answer to you is I think that would qualify.

QUESTION: Well, I think it violates the statute under your interpretation.

MR. BRYSON: But I think it would be a very difficult case.

QUESTION: Yeah.

MR. BRYSON: And it's close to the line.

QUESTION: Yeah.

MR. BRYSON: And there is some fuzziness at the edge, I think, in the statute.

QUESTION: But you don't want us to decide this case based on the instructions, do you?

MR. BRYSON: Your Honor, I --

QUESTION: Didn't we take this case to decide what element the statute requires?

MR. BRYSON: Yes.

QUESTION: We didn't take this case to review the instructions.

MR. BRYSON: That's right. But there's been, of course, a lot of concern expressed about the instructions, and I would like to reassure the Court --

QUESTION: Oh, look, I'm one of the -- I'm one of the culprits and I recognize that.

MR. BRYSON: Well --

QUESTION: But, I mean, when it comes down to deciding the case and writing the opinion, it's not the Government's position that we ought to affirm on the basis of the instructions. I take it we can assume that?

MR. BRYSON: That's correct. It's not our position that that ought to be the Court's principal concern. But it is also our position that these instructions are adequate under the Government's theory of this case.

And, now, let me go through the instructions to try to explain why it seems to me that these instructions do satisfy the mens rea requirement, which we find in section 857(a) of the statute. And there are really not just three, but I think five different places in the instructions that the reference to nature and character or nature and character and use -- nature, character, and use of the goods is explained as the basis for the knowledge requirement.

First in instruction 17, where the court is describing the use of a particular item. The court -- the use of, excuse me, particular evidence in the case. The court explains that knowledge refers -- knowledge is a necessary element, that you must find with respect to each of the charge offenses that knowledge has been proved as to each defendant during the time periods, and that knowledge -- and then the court explains, and this is at Joint Appendix 18 -- refers to the "nature, character, and use of the items being sold or offered for sale at the store."

Again, instruction 18, where the court is discussing the evidence which has been offered on the good faith defense, the court says that you can consider the good faith if it's "inconsistent with the elements in the charges of the indictment concerning the alleged knowledge of the defendants as to the nature, character, and use of the items being sold or offered for sale at the store." That's at page 20 of the Joint Appendix.

Then in the two instructions on counts 20 -- excuse me, on counts 1 and 2 at pages 21 and 22 of the Joint Appendix, the court not only instructs that the defendant whose case you are considering must know the nature and character of the items, but also adds that there must be proof that the use of the interstate conveyance was, quote, part of a scheme to sell drug paraphernalia.

Now, we think that the term "scheme" there is important, not only in establishing a mens rea requirement in section 857(a), but also in informing the jury that this is something that they had to know was --

QUESTION: Mr. Bryson, it was my understanding that in the revision the word "scheme" was dropped.

MR. BRYSON: Yes.

QUESTION: So you don't want to -- even though it was in effect at the time of this trial, it seems by putting any heavy weight on that you're making this an extremely narrow case.

MR. BRYSON: Your Honor, we don't think the existence of the word "scheme" in the 857 -- the prior statute is critical, but we think it's illuminating, particularly because there's no indication that when the 1990 change was made in the statute and the word "scheme" was dropped in the course of jumbling up the section (a), that there was any -- there's no indication there was any intention to remove a mens rea requirement.

So what we make of the word "scheme" in section 857(a) is that it reflects a congressional understanding that there would be a knowledge requirement, that there would be awareness on the part of the defendant that the defendant was doing something unlawful, and that there was no indication in 1990 that that fundamental change -- excuse me -- change in the statute was intended.

So, yes, we don't put principal weight on the word "scheme," but we certainly think it's illuminating in telling us what Congress had in mind. Particularly in light of the fact that we're dealing here with what amounts to a presumption in the construction of Federal statutes that you find mens rea unless there's some clear indication to the contrary, or unless you're in an area involving particular kinds of products. Now, in this area we think that assumption, that rule of construction applies. And the word "scheme" is a further indication that that rule is applicable here.

QUESTION: Mr. Bryson, can I just ask, is your acceptance of the view that there is some knowledge requirement in the statute based on your view that this is a strong canon of presumption under the canons of statutory construction, or are you of the view that if you didn't do that it might be a serious constitutional question?

Well, maybe that's also a presumption. Why do you make the concession is what I'm asking you?

MR. BRYSON: Well, we make the concession because we think that -- I would say it's the first, principally, of your -- of the two options. We think that if you read the Court's cases such as Gypsum, Bailey, Liparota, and Morissette, what you find is there is this canon of construction.

And in a sense it's just like the rule that this court has recognized, that you read into Federal statutes the defense of entrapment. There's no statutory defense of entrapment, but we understand Congress to legislate against a background in which Federal criminal statutes all have, unless otherwise negated, a defense of entrapment or duress or necessity. This is just one of the ingredients that is assumed to be present in Federal statutes, unless the statute falls into one of those rare cases in which it can be either assumed that there is no such requirement or in which Congress indicates to the contrary.

Now, one of the reasons for that, of course, is that there are constitutional concerns with statutes that have absolutely no mens rea except where certain kinds of items are at issue, and the International Minerals case discusses that concern. But I think the basic point is -- and my basic answer to you is it's the rule of construction.

Now, if I can just very quickly get back to the --

QUESTION: Right, give us the last couple and then I have a question for you. Just tell us quickly where they are so I can mark them.

MR. BRYSON: Okay. The last one is really -- is the least, also, which is that in the course of the monetary crimes instruction on money laundering, the court instructed that the defendant had to know that the money -- the monetary instruments represented the proceeds of an unlawful activity.

QUESTION: Where is that, which instruction?

MR. BRYSON: That's on page 28 of the Joint Appendix. And that the defendant intended the financial transactions to promote the sale of drug paraphernalia. Again, clearly indicating to the jury -- and the jury convicted on the count. Clearly the jury concluded that the defendant did know that these defendants -- the defendant did know that these items were drug paraphernalia.

QUESTION: Mr. Bryson, this may be just repeating what Justice Stevens was asking, but I take it it is your position that the statute is covered if all that the seller knows is that the individual to whom he's selling the dual-purpose item in fact intends to use it for one of the prohibited purposes?

So that if -- you know, if I'm a clerk in a drug store and I have a friend who I know is a drug addict and he comes in -- and I know that he doesn't use this type of razor when he shaves, and he comes in and asks for a pack of razors and I just give him a pack over the counter. I know very well what he's going to use them for. That would violate the statute.

MR. BRYSON: Your Honor, I have to give you the same answer I gave to Justice Stevens. Both that I think that is right at the edge of what the statute covers and that, yes, I think it probably would cover that.

QUESTION: And that's why we have prosecutorial discretion, is what you're saying.

MR. BRYSON: Well, Your Honor, I'm always worried to give the answer trust us, we won't prosecute those kinds of cases, because I find that those cases show up in my office when I get back.

QUESTION: Well, Mr. Bryson, I don't mean to --

(Laughter.)

QUESTION: My example was the kit where you don't assemble all the items except for that purpose. But I'm not sure if you have a dual-purpose item, the primary intent of which is taking it and shaving yourself, the fact that a particular individual uses it for a drug purpose would make it covered by the statute.

MR. BRYSON: It might not, Your Honor. But my argument -- my analysis of that point would be as follows, that if you have a primary use for razor blades, being to use them to shave as you obviously do, but in your particular store you put a display out on the counter which says these razor blades are really well suited for cocaine use -- let's just make it easy.

And there's -- let's assume there isn't even anything all that special about these, but you've advertised them for cocaine use and you say these are great cocaine razors, and you put a little picture on them, on the display to indicate that that's what they're intended for, then I think you have defined a little subgroup of the market of razor blades --

QUESTION: No, but if I come in and say I'm sure they are, indeed, suitable for that purpose, but I want to be clean shaven, please sell me a package, there's no violation of the statute in that sale, is there?

MR. BRYSON: Well, actually, I think there would be, Your Honor. Because what you would be doing -- I would be doing as a clerk is that I would be selling something which is intended for -- primarily intended for use with cocaine --

QUESTION: Intended by whom?

MR. BRYSON: To somebody who just happens not to have intended to use it for that purpose.

QUESTION: Not by me, not by me?

MR. BRYSON: But that doesn't exonerate me. And let me give you the example that seems to me to demonstrate that. Suppose you're an undercover officer and you come in -- and I know you're not going to use this for drug purposes, I happen to know you're an undercover officer. If I sell you a bong or even something that I've advertised as a roach clip, I'm guilty even though you personally may not be intending to use it for that purpose.

QUESTION: Then, your -- and I -- this is implicit in what you said before -- your reference to the -- to the intent in primarily intended must be primarily intended by the customer to whom you address your offer.

MR. BRYSON: No, no, Your Honor. It's the --

QUESTION: I mean to the class of customers to whom you address your offer.

MR. BRYSON: Yes, that's correct. That, in other words, the intent may be reflected in the way the product is marketed.

QUESTION: Uh-hum.

MR. BRYSON: That's right.

QUESTION: I thought you said -- I thought you agreed with the instruction that it doesn't have to be the intent of any particular person. It seems to me it can be the manufacturer's intent, it can be the seller's intent, it can be the purchaser's intent.

MR. BRYSON: Exactly.

QUESTION: So that if I come -- that's why you had trouble with my hypothetical. I come up to somebody who's just a druggist and I say sell me a -- sell me some razor blades because I want to use it to cut drugs. And that would be the necessary intent, wouldn't it, on the part of the purchaser?

MR. BRYSON: Well, the argument you would have to make to bring that example within the coverage of the statute, I think, is that the good becomes intended to be used with drugs at the point at which you walk in, pick it up, and announce that you intend to use it for that purpose. I think that's stretching what the statute was designed to reach, but I think it does come within the plain language of the statute.

If there are no further questions, I have nothing further.

QUESTION: Thank you, Mr. Bryson.

Mr. Parrish, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF ALFREDO PARRISH ON BEHALF OF THE PETITIONERS

MR. PARRISH: I don't intend to take my 4 minutes. I have some specific points I want to rebut.

QUESTION: What do you mean by intent, Mr. Parrish?

(Laughter.)

MR. PARRISH: As defined in the statute, Justice Scalia.

But my point would be that the proposed instructions that were proposed by the Government would have been acceptable, and it would be an instruction that we would, in fact, have accepted in this trial. Unfortunately, it was not the instruction that was given.

Now, I realize -- with all due respect to Mr. Chief Justice, he indicates that we shouldn't get tied up in instructions. However, when you are facing 20 years in prison and a half million dollar fine, and it is, in fact, imposed and you are deprived of your constitutional rights simply because the court did not apply the proper instruction on the statute, that is a serious constitutional problem to Ms. Acty, and in this case Ms. Acty did not receive her constitutional rights when the statute was applied in this case. The --

QUESTION: Mr. Parrish, I just want to confirm my understanding of what you just said. Mr. Bryson told us that his model charge would be that it must be drug paraphernalia as defined in subsection (d), that's (1). And that the defendant must know that the goods are primarily used -- not necessarily this customer, but primarily used with drugs, period. If that's what had been said, as simple as that, the defendant must know these goods are primarily used with drugs, you would have no objection.

MR. PARRISH: And instruction 39 was taken out, where it says that it does not relate to any -- the knowledge or intent of any particular person or persons, that's correct.

QUESTION: I know that's your -- your view is that that confuses things, but I just wanted to know that you are in agreement with Mr. Bryson that the model charge would be that the defendant knows the goods are primarily used with drugs.

MR. PARRISH: That's correct, Your Honor.

Thank you, Justice.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Parrish.

The case is submitted.

(Whereupon, at 10:55 a.m., the case in the above-entitled matter was submitted.)