Appeal from the United States District Court for the Southern District of Indiana. No. IP 80431 C -- James E. Noland, Judge.
Pell and Cudahy, Circuit Judges, and Bartels, Senior District Judge.*fn*
The plaintiffs, who are Indiana tobacco and snuff accessories retailers, appeal from the district court's decision, following a full hearing, that Indiana's drug paraphernalia statute is facially constitutional. The primary issue on appeal is whether the statute is violative of due process because of its alleged vagueness. The appellants also claim that the statute is violative of the First Amendment.
A. Predecessors of the Indiana Statute
Indiana House Enrolled Act 1468 (codified as Ind. Code §§ 16-6-8.8-8, 35-48-4-8.1, 35-48-4-8.2, 35-48-4-8.3 (Supp. 1980)) (HEA 1468 or Indiana statute) represents the State's third attempt to regulate drug paraphernalia. The first provision, enacted in 1975, was repealed after one member of a three-judge panel convened to judge the constitutionality of the law issued a temporary restraining order against its enforcement.
In 1977, the legislature enacted another statute which was quite similar to that previously repealed. Both the 1975 and 1977 statutes included a non-exclusive list of items deemed to be per se "paraphernalia." In February, 1980, a three-judge panel issued a declaratory judgment that the 1977 statute was unconstitutionally vague and overbroad. Indiana Chapter NORML v. Sendak, No. TH 75-142-C (S.D. Ind. 1980) On March 3, 1980, Governor Bowen signed HEA 1468 into law. HEA 1468 expressly repealed the 1977 statute and became effective on April 30, 1980. As a result of the repeal, the defendants' appeal regarding the 1977 statute was dismissed for mootness by this court in 1980.
B. Provisions of the Challenged Statute
The Indiana statutory provisions challenged on this appeal deal with the manufacture and possession of drug paraphernalia, dealing in or delivery of paraphernalia, and provide for forfeiture of a broad class of items, the use of which is related to violations of Indiana controlled substances law. Ind. Code §§ 16-6-8.8-8, 35-48-4-8.1, 35-48-4-8.2, 35-48-4-8.3 (Supp. 1980). Although the Indiana statute reportedly was patterned on the same provisions that provided the basis for the Model Drug Paraphernalia Act (Model Act) drafted by the Drug Enforcement Administration of the United States Department of Justice, the Indiana law differs from the model legislation.*fn1 HEA 1468 has no separate definitional section but does incorporate a scienter requirement into the substantive provisions. It lacks any illustrative examples of prohibited items as well as factors to be considered in determining whether an object is included under the statutory prohibition.
Turning initially to the substantive sections of the Indiana statute, the first deals with the manufacture or design of paraphernalia:
A person who knowingly or intentionally manufactures or designs an instrument, device, or other object that he intends to be used primarily for:
(1) introducing into the human body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance, or
(3) enhancing the effect of a controlled substance
in violation of this chapter, commits manufacture of paraphernalia, a Class D felony.
Id. § 35-48-4-8.1. The following section, which prohibits dealing in paraphernalia, id. § 35-48-4-8.2, differs from the manufacturing section quoted supra only in that the operative word is "delivers" rather than "manufactures or designs."
The third of the substantive offense sections prohibits possession of paraphernalia. It follows the same pattern as the two prior sections. It refers to "a person who possesses a raw material, instrument, device, or other object that he intends to use for" and then recites the "introducing . . ., testing . . ., enhancing" litany quoted above. Id. § 35-48-4-8.3. Possession of paraphernalia, like manufacture and dealing, is generally a Class D felony. Section 35-48-4-8.3(b) provides, however, that it is a Class A misdemeanor if the violator intends to use the "raw material, instrument, device, or other object . . . with marijuana, hash oil, or hashish" and has no prior conviction involving those substances.
Under Indiana law, Class D felonies are punishable by imprisonment for a fixed term of two years and a fine of up to ten thousand dollars. Two additional years of imprisonment are possible if aggravated circumstances exist. Id. § 35-50-2-7. A Class A misdemeanor is punishable by imprisonment for a fixed term of not more than one year and a fine of up to five thousand dollars. Id. § 35-50-3-2.
The forfeiture section provides for forfeiture of the following:
(1) All controlled substances with respect to which there has been any violation of controlled substances law;
(2) "Raw materials, instruments, devices and other objects that are used, or intended for use by the person in possession of them," in violating the controlled substances law;
(3) Any containers for property described in clauses (1) and (2), supra ;
(4) All conveyances, including vehicles, used to facilitate the transportation or concealment of property described in clauses (1) and (2);
(5) Books, records, and other materials "used or intended for use by the person in possession of them" in violation of a law relating to ...