AMENDED OPINION AND ORDER
Dеfendants move, pursuant to Fed. R.Crim.P. 21(b), to change the venue of this action from the Southern District of New
BACKGROUND
The Spy Factory “is a retail store concept developed in 1989 to sell personal protection devices and personal security items to the general public and law enforcement agencies.” (Defs.’ Vagueness Mem. at 3) 1 . “At the time of the initial searches and arrests in this case, Spy Factory, which is headquartered in Texas, had 16 stores located throughout the United States.” (I'd).
“In 1993, the United States Customs Service ... began an investigation of illegal bugging and wiretapping devices that were imported into the United States and sold by various so-called ‘spy shops.’ ” (Govt Mem. at 2). According to the Government, “Spy Factory was and is the largest chain of retail ‘spy shops’ in the country.” (Id.) Working across the country, but centralizing its efforts in New York City, the Government used undercover agents and confidential informants to gather evidence to prosecute the Spy Factory and the individually-named defendants for “violations of customs laws, Section 2512 of Title III, and the Communications Act of 1934.” (Govt Mem. at 4).
“On August 16, 1995, a grand jury sitting in the Southern District of New York returned an eight-count indictment ... charging Spy Factory, its owner, Ronald Kimball, its general manager, Marlin Richardson, a/k/a ‘Brud,’ and its deputy general manager, Tracy Edward Ford, with a conspiracy to smuggle and sell illegal bugging and wiretapping devices_” (Govt Mem. at 4). On June 12, 1996, a grand jury returned a 70-eount superseding indictment adding to the original indictment “several objects to the conspiracy, and additional substantive violations of Title 18, United States Code, Sections 2512(l)(a), 2512(l)(b), and 545 relating to numerous sales of illegal bugging and wiretapping devices from the Southern District of New York.” (Id.) The indictment also included “a conspiracy and substantive counts of money laundering.” (Id.).
On June 14, 1996, the Hоnorable Milton Pollack, then acting as Part One Judge of this District, signed an ex parte restraining order that put the assets of Spy Factory “under the control of a special monitor from the accounting firm of KPMG Peat Marwick, LLP, who oversees and controls expenditures of funds, including expenditures for legal expenses in this ease.” (Defs.’ Venue Mem. at 14). “Under the terms of the Restraining Order ... and related letter agreement ... dated August 28, 1996, ... the corporation is limited to $2,000.00 per month for the payment of legal expenses.” (Defs.’ Venue Mem. at 14).
On September 16, 1996, less than four months before the scheduled trial date of January 14, 1997, and approximately one year after the first pre-trial conference in this action, the defendants filed their pretrial motions in this action. The defendants moved,
inter alia,
for a change of venue from the Southern District of New York to the Western District of Texas, where Spy Factory is headquartered and where all the defendants and most of the defense witnesses reside. The defendants claim that trial in New York is beyond the means of at least two of the defendants to afford and that
The Government counters that defendants unduly delayed their filing of the change of venue motion and that such delay should militate against the Court’s granting of the motion. Furthermore, the Government argues that if the trial were transferred to Texas, not only would the Government incur significant financial expenses to move all its case-related materials and personnel out-of-state, but that the trial itself inevitably would be delayed so that local assistant United States attorneys in Texas could familiarizе themselves with the intricacies of the ease. With respect to the defendants’ assertions that their businesses and employment prospects would suffer if they were tried in New York, the Government minimizes this argument by contending that “inconvenience and interference with normal occupational and personal activities occur whenever a defendant is involved in a trail [sic] facing serious charges.” (Govt Mem. at 43). They conclude, “[t]he defendants’ contention that they plan to carry on their normal occupational activities during the lunch hour and after-hours of this major trial in which they face serious charges is highly dubious, and is insufficient in light of the delay and other factors in this case to warrant a change of venue.” (Govt Mem. at 44).
With respect to the personal financial burden that at least two of the defendants would have to endure by having the ease tried in New York, the Government contends that the financial impact on the defendants of trial in New York can be alleviated considerably. At an oral argument held on December 13, 1996, the Court determined that both defendants Tracy Ford and Marlin Richardson qualified for appointment of CJA counsel.
2
The Court asked the Government whether it would agree to pay the travel and lodging expenses of these defendants in the same manner it had offered to do in
United States v. Wheaton,
The defendants also move to dismiss the majority of the counts in the Indictment on the grounds that the statute upon which the prosecution is based, 18 U.S.C. § 2512, is unconstitutionally vague as applied to them. In short, the defendants argue that the terms “primarily” and “surreptitious” in the statute render its meaning unconstitutionally vague, especially when read in connection with § 2511 of the statute, which purports to legalize some forms of “surreptitious” interceptions, i.e., interceptions of conversations in which at least one party to the conversation consents, while other forms of “surreptitious” interceptions remain illegal, i.e., interceptions of conversations in which no party to the conversation consents to its interception.
In their pretrial motions, defendants made several discovery requests and moved for the suppression of evidence seized in the search of Spy Factory stores. For the reasons set forth on the record at the December 13,1996 conference, the Court denies the discovery requests in part and grants others, in part, and denies the suppression motion. (12/13/96 Tr. at 39-59).
As of May 6,1996, the Court had set a trial date of January 14, 1997. After oral argument on the instant motions, however, defendant Tracy Ford decided, after a Curdo hearing, that a potential conflict of interest 3 with his counsel necessitated substitution of counsel. After conferring with new CJA counsel as to the time necessary to prepare the case, the Court adjourned the trial date until February 18,1997.
DISCUSSION
I.CHANGE OF VENUE
A. THE STANDARD UNDER FED. R.CRIM.P. 21(b)
Federal Rule of Criminal Procedure 21(b) provides that “[f]or the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district.” Rule 22 of the Federal Rules of Criminal Procedure states that such a motion to transfer “may be made at or before arraignment or at such other time as the court or these rules may prescribe.” Fed.R.Cr.P. 22.
B. THE PLATT FACTORS
The following ten factors introduced in
Platt v. Minnesota Mining & Mfg. Co.,
1. Location of the Defendants
2. Location of the Witnesses
3. Location of the Events in Issue
4. Location of Documents and Records
5. Disruption of the Defendants’ Businesses)
6. Expense to the Parties
7. Location of Counsel
8. Relative Accessibility of the Place of Trial
9. Docket Condition of Each District
10. Other Special Elements
See United States v. Russell,
1. Location of the Defendants
The first of the
Platt
factors, the location of the defendants, weighs in favor of a change of venue in this action. All three of the individual defendants reside in San Antonio, and Spy Factory was incorporated in Texas and is headquartered in San Antonio. Furthermore, it has been said that as a matter of “policy” courts should, “whenever possible,” try defendants “where they reside.”
United States v. Russell,
2. Location of Witnesses
a). Defendants’ Witnesses
Defendant Ron Kimball claims that the 20 witnesses he intends to call, most of them fact witnesses, all reside in San Antonio. Defendant Marlin Richardson maintains that the 9 fact witnesses he intends to call all reside in San Antonio and that “the majority of the remainder” of his 30 witnesses reside in the proximity of San Antonio. Finally, Defendant Tracy Ford insists that he plans to call 25 witnesses, all of whom reside in San Antonio. Defendants collectively claim that “[tjhese witnesses are willing and able to appear to testify in the Western District of Texas, but, for a variety of reasons, including a lack of financial resources, are unable to travel to the Southern District of New York to appear as witnesses if the trial is commenced there.” (Defs.’ Venue Mem. at 2).
The expenses for any pertinent witnesses testifying on behalf of defendants Richardson and Ford will be paid from CJA funds. Defendant Kimball has not shown himself financially incapable of paying the expenses of his witnesses. More importantly, however, as the Government points out in its response, “[t]he defendants do not identify any of these witnesses or explain then-relevance to the pending charges.” (Govt Mem. at 41). Courts in other circuits have held that “[generally, a naked allegation that witnesses will be inconvenienced by trial in a distant forum will not suffice for transfer.... Defendants must offer specific examples of witnesses’ testimony and their inability to testify because of the location of the trial.... the court must rely on ‘concrete demonstrations’ of the proposed testimony.”
United States v. Haley,
b). Government’s Witnesses
The Government’s witnesses are various Customs Service agents, FCC investigators and “seizing and custodial agents from each of the Spy Factory locations located in Atlanta, Chicago, Costa Mesa, Dallas, Denver, Houston, Las Vegas, San Antonio, St. Louis, Salt Lake City, San Diego, San Francisco, Seattle, Tucson, and. West Hollywood.” (Govt. Mem. at 40) “In addition, the Government may call as witnesses purchasers of the illegal devices in the Southern District of New York and elsewhere.” (Id. at 41). Because with the exception of the purchasers in the Southern District, most of the Government’s witnesses appear to be scattered around the country, and, given the defendants’ failure to meet their burden, the location of witnesses does not weigh in favor .of either party.
3. Location of the Events in Issue
Defendants contend that “[t]he majority of the acts and conduct in furtherance of the alleged conspiracy occurred at corporate headquarters in San Antonio, Texas.” (Defs.’ Venue Motion at 2). They explain:
All correspondence and purchasing from Japan occurred from the San Antonio office. Catalog sales took place in San Antonio. Revenue from all sales throughout the country were transferred to San Antonio. Payroll and payment of all other business expenses were paid or authorized from San Antonio. All business decisions were made in San Antonio.
(Id. at 3). Defendants also underscore that Spy Factory has no stores in New York and only minimal business contacts here. Of “‘thousands’ of illegal transactions [alleged to have been committed] by Spy Factory,” thе defendants argue that “only a few isolated telephone sales to four customers in New York are alleged in the Indictment and presumably are relied on by the Government to support venue in New York.” (Id.) They further insist that “Spy Factory did no advertising in New York, ... did no direct mailing [to] New York, ... did no soliciting in New York, ... had no plans to sell in New York, ... [and] had no sales personnel in New York_” (Defs.’ Venue Reply at 6 (quoting Richardson Aff.)).
In response, the Government explains (1) that “[u]ndereover agents of the Customs Service conducted surveillance” at Spy Factory’s locations throughout the country, (2) that “the Customs Service” operated an undercover company in New York City from which telephone calls were made and illegal devices were received, and (3) that “of the 70 counts of the Superseding Indictment, 45 counts are substantive counts that are based on numerous sales of illegal devices to purchasers here in the Southern District of New York.” (Govt Mem. at 40). Because the criminal activity that was alleged to have occurred in this ease was coneededly national in scope, the location of the events at issue favors neither side.
Cf. United States v. Alter,
lt. Location of Documents and Records
Although the documentary evidence in this case is undоubtedly voluminous — “including
Most of the ... documents and records are now in Chicago, but this is a result of the government having seized them in New York and bringing them here. Two things are clear:
(a) It would be grossly unfair to permit the government to “create” venue, or to alter the balance of relevant considerations, simply by shipping documents.
(b) Documents moved here can just as easily be moved back to New York, or photocopies may be shipped there.
United States v. Bein,
5. Disruption of Defendants’ Businesses)
Defendant Ron Kimball, as President of Spy Factory and as the person in charge of its operations, contends that “[i]t will be extremely difficult if not impossible for him to run his business while’ in a two month trial in New York.” (Defs.’ Venue Mem. at 3-4). He claims that “[t]he recent resignation of Defendant Marlin Richardson who was extensively involved in the day-to-day operations of the business, has created a greater need for Defendant Kimball to participate in the running of the business.” (Id. at 4). Kimball insists that if the trial were in San Antonio he could “periodically meet with his employees after hours and ... maintain contact with his business.” (Id.)
Defendant Marlin Richardson has just begun to manage a family-owned art gallery. He argues that “[i]t is critical to the survival of this new business” that he be able to stay in San Antonio and oversee the new enterprise. (Id.)
Finally, Defendant Tracy Ford contends that he will be terminated from his employment as a manager at a swimming pool company if he is forced to stand trial in New York City. (Id.).
Each defendant contends, therefore, that his presence in San Antonio during the trial is necessary for him to meet his business obligations.
The Government correctly argues, however, that “inconvenience and interference with normal occupational and personal activities occur whenever a defendant is involved in a trial facing serious charges.” (Govt Mem. at 43) (citing
United States v. United States Steel Corp.,
In summary, this factor weighs slightly in favor of the defendants, but not dispositively because modern methods of communication minimize the impact of the defendants’ absence from San Antonio.
6. Expense to the Parties
a). Expense to Defendants
Because of the recent imposition of Judge Pollack’s Ex Parte Order and its effect on defendants’ ability to use Spy Factory assets to support themselves, their families, and their legal defense, defendants argue that “[t]he cost to transport and provide accommodations for themselves, their lawyers and their witnesses in New York City, one of the most expensive cities in the world, for perhaps two months is beyond the capabilities of these defendants.” (Defs. Venue Mem. at 4).
However, defendants Kimball and Spy Factory, Inc. have not demonstrated that they are financially incapable of funding their defense. 4 Moreover, in light of the Government’s recent offer to fund the travel and lodging expenses of defendants Tracy Ford and Marlin Richardson and their counsel, and in light of the fact that CJA funds will cover the expenditures necessary to bring relevant defense witnesses to New York, the factor of expenses no longer weighs in favor of the defendants.
b). Expense to the Government
The Government contends that it “would be put to great expense to relocate its entire prosecution team to San Antonio, as well as bringing at least one Assistant United States Attorney in San Antonio up to speed on the case.” (Govt Mem. at 42). The Government also insists that it would not be inexpensive to relocate back to Texas all of the documentary evidence in this ease. For these reasons, the Government contends that “the expenses to the parties weighs in favor of neither side.” (Id.)
Because the defendants’ argument regarding their expense in trying the ease in New York has been virtually eviscerated by the Government’s offer to fund the travel and lodging costs of defendants Tracy Ford and Marlin Richardson and their counsel if the case is tried in New York, and because the Government would have to undergo significant expenditures if the case were moved from New York, the expense to the parties factor weighs in favor of keeping the trial in the Southern District.
7. Location of Counsel
At the time of the filing of defendants’ venue motion, all three lawyers representing
8. Relative Accessibility of Place of Trial
Although the Government asserts that “[t]he relative accessibility of the place of trial weighs heavily in favor of denying the motion to transfer this case” (Govt Mem. at 42) because “New York has superior access to three airports, numerous train lines and an abundance of hotel accommodations,” (Govt Mem. at 43), the Government has not pointed to any problems of accessibility in the alternate forum. Accordingly, this factor does not weigh toward either conclusion.
See, e.g., United States v. United States Steel Corp.,
9. Docket Condition of Each District
Exhibit 10 to Defendants’ Reply Memorandum is a letter from Chief Judge Harry Lee Hudspeth of the Western District of Texas which provides Judge Hudspeth’s personal “assur[ancej” that a judge in that district “would be available to try this case if it were transferred to [their] district.” (Defs.’ Reply Ex. 10). This Court, however, is prepared to try this case immediately. Moreover, a transfer to San Antonio will inevitably necessitate a delay in the impending trial date, if for no other reason than that the local assistant United States attorneys as well as the local judge would have to prepare themselves for the trial of this case. In light of this almost certain delay, I find that this factor does not weigh in favor of either party.
The Court notes that the existence of a potential conflict of interest and the resulting appointment of new counsel for defendant Tracy Ford has necessitated a postponement of the original January 14, 1997 trial date to February 18,1997. The interest of justice is not served, however, by requiring an assistant United States attorney and a judge in the Western District of Texas to immerse themselves in the case in the manner in which Ford’s new lawyer has agreed to do in order to meet the imminent trial date. In fact, given that this Court had to canvass a wide array of CJA counsel in order to locate one attorney whose schedule would allow him to devote himself exclusively to this matter— and without significant interruption over the holidays and weekends — the Court finds it unlikely that any assistant United States attorney or judge in the Western District of Texas would be in a position to devote such exclusive attention to this matter.
Furthermore, although a delay of the trial has already been occasioned by the substitution of Ford’s attorney, the Court does not consider this factor to weigh in favor of a change of venue given that it was the failure of all the defendants to inform the Court earlier of the potential conflict that has caused this delay. If defense counsel had raised the potential conflict of interest at the beginning of the case, when they were initially retained with Spy Factory funds — instead
10. Other Special Elements
a). Delay 5
It is true that in change of venue cases, as the Government explains, “[o]ne of the factors to which the Second Circuit has paid special attention is a defendant’s delay in moving to transfer the case.” (Govt Mem. at 35 (citing
United States v. Keuylian,
As the Government argues, “at each of the conferences before this Court, the defendants gave every indication that they intended to proceed with the trial in the Southern District of New York.” (Govt Mem. at 36). The original indictment in this case was returned in August of 1995. The Court held an initial status conference on September 28,1995. At that conference, both sides spoke of the enormous amount of discovery that was to take place; however, the defendants did not mention the possibility that they might file a motion to change venue, even though “the Government offered and the Court directed the Government to get all of the discovery centralized in New York” (Govt Mem. at 37) — a laborious and expensive process that might have been avoided if the Court had been informed earlier of the defendants’ intent to file a motion to change venue. In addition, at that same conference, the defendants “involved this Court in the discovery process by having this Court review all of the allegedly attorney-client privileged documents.” (Govt Mem. at 37 (citing transcripts)). Finally, before the parties left the conference, the Court instructed defense counsel to “tell me or [] be prepared to discuss with me the nature of the motion [sic] that you are thinking of making” at the next conference. (Govt Sur-Reply on Venue at 5 (quoting 9/28/85 Tr. at 16)).
The parties returned to the Court on January 17, 1996, for another conference where
There are at least two motions that I would like to ask for leave — I will do that in writing and submit [sic] the Court with reasons. But obviously the question of the [constitutionality of] the statute, it is a question, at least with respect to this statutе, that is going to be one of first impression.... The other one deals with motions to suppress, particularly if we consolidate them into one mowing [sic].
(Govt Sur-Reply on Venue at 6 (quoting 5/6/96 Tr. at 5)).
Even though Spy Factory had stopped paying their legal fees months earlier and defendant Ford had left Spy Factory’s employment and defendant Richardson was imminently to leave to start a family business, at the August 26,1996 conference, held more than two months after the defendants had been arraigned on the Superseding Indictment — and well after the financial impact of the ex parte order was patently clear — “the defendants raised several issues with this Court, all of which indicated that they planned to go to trial in the Southern District of New York.” (Govt Mem. at 38). “For instance, attorneys for Ronald Kimball, on behalf of all defendants, agreed to meet with the Government and the Southern District of New York’s jury clerk to discuss a process for jury selection.... Counsel also inquired about this Court’s requirements for the presence of local counsel during a trial in the Southern District of New York.” (Id.). Despite the fact that the Court emphasized to defense counsel that the January trial date would not be moved “[b]arring an act of God,” (Govt Mem. at 38 (citing 8/26/96 Tr. at 27)) defense counsel still failed to raise the issue of the venue motion, even though they had to have known that such a motion would have a significant impact on the timing of the trial.
In the face of this inexcusable delay, it is of little significance that defendants point out that both of the cases relied upon by the Government involved situations in which the defendant(s) filed their motions “virtually on the eve of trial” and, more importantly,
after
the filing of pre trial motions. (Defs.’ Venue Reply at 6-7). In fact, defendants’ contention is misleading upon a close reading of the cases relied upon by the Government. While it is true that in both
United States v. Maldonado-Rivera,
In short, defense counsel should have brought to the Court’s attention the fact that they would seek a change of venue so the Court could require defendants to file such a motion much earlier in the court proceedings, before the Court ruled on numerous discovery questions, privilege issues, and other pretrial matters that have consumed over one year of this Court’s calendar. (12/13/96 Tr. at 61, 63, 72-74). Because of defendants’ delay, a transfer of the action to the Western District of Texas at this late stage would necessitate not only that the new judge be bound by important decisions already made by this Court, but also that the Western District of Texas judge duplicate the efforts made by this Court to become familiar with the case. Such a prospect does not comport with the efficient or fair administration of justice and this Court will not condone the delay occasioned by the defendants’ conduct. Therefore, the defendants’ delay not only in filing the motion to change venue, but also their delay in informing the Court of their intent to file the motion, weighs qualitatively and heavily in favor of retaining the trial in the Southern District. 7
In sum, then, having considered with great care each of the above factors, the Court concludes that the defendants have not shown that the interests of justice require a transfer of this case. I find that most of the factors, such as the location of witnesses, events, counsel, documents and records, as well as the relative accessibility of the respective venues, weigh in favor of neither party. The factors weighing most strongly in the favor of the Government are the docket conditions of each district — to the extent that a transfer would inevitably necessitate some delay in the trial date — and the defendants’ delay in bringing the motion to change venue. Also, because all counsel except one now resides in New York, this factor now weighs more in the Government’s favor than in the defendants’.
On the other hand, the factors weighing in favor of transferring venue are the location of the defendants, the potential for disruption of the defendants’ businesses and employment, and the defendants’ expenses in trying the case in New York. Because the strongest of these factors — namely the tremendous expense the defendants would be forced to undertake in trying the case in New York— has been largely eviscerated by appointment of CJA counsel and the Government’s offer to pay for other expenses, I find that a change of venue is unnecessary and not in the interests of justice. Although there is still a potential for disruption of the defendants’ businesses and personal life, I find that this factor, standing alone, does not outweigh the countervailing considerations for keeping the ease here: defendants’ delay in bringing this matter to my attention and the further delay such a transfer would occa
Furthermore, to the extent that there is a “policy” favoring the trial of defendants where they reside, this “policy” is in tension with the more general presumption that “a criminal prosecution should be retained in the original district.”
United States v. Posner,
II. DEFENDANTS’ MOTION TO DISMISS FOR VAGUENESS
A. STANDARD FOR VAGUENESS
It has been called the “first essential of due process of law,”
Connally v. General Construction Co.,
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Grayned v. Rockford,
Under due process, a statute may be challenged for vagueness on its face or vagueness as applied to the defendants’ specific conduct.
1. Vague On Its Face
In
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S.
The statute at issue here does not implicate any constitutionally protected conduct. During oral argument, defendants, after having neglected to raise the issue in their written submissions to the Court, briefly raised the possibility that the statute might implicate First Amendment concerns because “2512 in many respects goes to speech. It talks about people talking. It talks about expressions of speech, interceptions of speech.” (12/13/96 Tr. at 89). I find this argument unpersuasive. Although there may be a constitutional right to hear
8
there has never been articulated nor implied any constitutional right to hear the private speech of others or to be provided with a specific means to record one’s own speech.
9
Therefore, because “vagueness- challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity,”
Nadi,
2. Vague As Applied
The heart of the case, therefore, is the question whether Section 2512 is vague as applied to the particular facts in question.
See United States v. Santos,
A two-part test is used to assess whether a particular statute is unconstitutionally vague as applied:
When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first determine whether the statute *give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited’ and then consider whether the law provides explicit standards for those who apply [it].... Because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.
Nadi,
In conducting a vagueness as applied analysis, the Seventh Circuit has noted that “criminal laws are more searehingly examined for vagueness, because the consequences of imprecision are severe, than are either pure economic regulation ... or civil legislation.”
Levas & Levas v. Village of Antioch,
a) Fair Notice to Persons of Ordinary Intelligence
The crux of this prong of the vagueness analysis is the requirement that the statute be sufficiently clear to provide notice to potential wrongdoers that the conduct in which they are engaged has the potential for civil or criminal liability. As the Second Circuit has explained, “Objections to vagueness ... rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.”
United States v. Strauss,
In elucidating what level of notice is required to survive a vagueness challenge, the Supreme Court has noted that statutes containing terms of degree are problematic in providing notice to potential wrongdoers.
See Gentile v. State Bar of Nevada,
On the other hand, it has been said that vagueness:
standards should not, of course, be mechanically applied. The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.
Hoffman Estates,
Finally, “the Court has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.”
Id.
at 499,
b) Sufficient Guidance for Enforcers of the Law
The second prong of the vagueness analysis looks to whether the given statute is sufficiently clear for prosecutors and police officers to enforce in a non-arbitrary and non-discriminatory fashion. The underlying fear is that “[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep’ [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”
Kolender v. Lawson,
B. ASSESSING THE VAGUENESS OF SECTION 2512 AS APPLIED TO DEFENDANTS
Even though the Court must assess the vagueness of Section 2512 as it applies to the specific conduct of defendants and not according to the facial vagueness of the terms of the statute itself, the Court nevertheless must first look to the plain meaning of the terms of the statute in order to discern whether those terms impart sufficient clarity to a person of ordinary intelligence. The following is an excerpt from the relevant portion of the statute:
§ 2512. Manufacture, distribution, possession, and advertising of wire, oral, or electronic cоmmunication intercepting devices prohibited
(1) Except as otherwise specifically provided in this chapter, any person who intentionally— ...
(b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sentthrough the mail or transported in interstate or foreign commerce; ....
18 U.S.C. § 2512(1)(b) (emphasis added).
Defendants are correct that there has been no extensive examination of whether Section 2512 is unconstitutionally vague. The few cases that have considered the proposition have concluded in conclusory terms that the statute is
not
vague, however.
See e.g., United States v. Martin,
Defendants point to two crucial concepts within the statute that render its meaning inscrutable to the person of ordinary intelligence: “primarily useful” and “surreptitious.” Defendants contend that the pivotal term of the section, “surreptitious” is nowhere defined in the statute and that its plain meaning or dictionary definition “engender intractable ambiguity.” (Defs’ Vagueness Mem. at 1). Defendants also argue that the modifier “primarily” renders the statute vague. Although they concede that the modifier “primarily” has been permitted in other contexts, they contend that it has only been permitted when accompanied by explanatory language, guidelines, and examples that further elucidate the use at issue.
While I recognize that each of these concepts hinge on one another and that in order to establish the full meaning of the statute, the relevant provisions must be read as a whole, and their ambiguities, if any, must be taken together, I analyze each of the defendants’ criticisms of the statute in turn.
1. The “Primarily Useful” Language
a) Plain Meaning/Dictionary Definition
As defined by Webster’s Third New International Dictionary — Unabridged, “primarily” is an adverb meaning “first of all: fundamentally, principally ... in the first place: originally.” Webster’s Third New International Dictionary 1800 (3d. ed. 1986). It is not a word that is unfamiliar to the common speaker; rather we invoke it in common parlance and seldom stop to consider its ambiguity. However, because the term “primarily” imports gradations of degree and can only be defined by reference to its position on a continuum, upon first inspection, the phrase “primarily useful” in Section 2512 appears to be precisely the sort of “classic term of degree” that the Supreme Court rebuked in
Gentile. See Gentile,
Yet despite the term’s inherent relativity, in none of the cases in which “primarily intended or designed for use” has been considered has any court found such language unconstitutionally vague.
See, e.g., Posters ‘N’ Things, Ltd. v. United States,
511 U.S.
In
Hoffman Estates,
Similarly, in
Posters ‘N’ Things,
It is true, however, as defendants remind the Court, that the statute at issue in
Posters ‘N’ Things
is distinguishable from the instant statute in that the
Posters
N’
Things
statute contained a nonexhaustive list of examples of
per se
drug paraphernalia
10
as well as a list
However, in the Senate Report accompanying Section 2512 there is a nonexhaustive list of items intended to be prohibited under the statute. The Report provides the following examples of devices whose design renders them primarily useful for surreptitious interceptions. It states:
The prohibition will thus be applicable to, among others, such objectionable devices as the martini olive transmitter, the spike mike, the infinity transmitter, and the mi-erophone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack.
S.Rep. No. 90-1097, 90th Cong., 2d. Sess., 95 U.S.C.C.A.N. 2112, 2183 (1968). While the Court recognizes that the inclusion of examples in a Senate Report is a far cry from an inclusion of a list in the statute itself, and the Court harbors some doubt whether knowledge of a Senate Report that is not endorsed by the full Congress can be imputed to the average citizen, 12 the Court finds that the instant defendants can be charged with knowledge of the Senate Report because references to the Report itself were found within their possession.
When documents from the Spy Factory headquarters were seized by the Government, among the documents collected was an article on Section 2512 that made reference to the Senate Report at issue. Appended to that article was a post-it note from Marlin Richardson requesting that an employee return the article to his box when he was done reading it. (Arman Aff. Exh. J.) On this basis, at least Defendants Spy Factory, Inc.
Hence, because the concept of “primarily” has not been recognized as unconstitutionally vague in analogous situations and.- .because the defendants cannot deny that they knowingly walked precariously on the line between lawful and unlawful conduct, I conclude that the phrase “primarily useful” is not unconstitutionally vague as applied to their conduct.
2. The “Surreptitious” Language
a) Plain Meaning/Dictionary Definition
According to Webster’s Third New International Dictionary, “surreptitious” means:
1. marked or accomplished by fraud or suppression of truth. 2a. executed, obtained, used, done, or attended with often clever or deft circumvention of proper standards, sanction or authority: enjoyed by stealth: clandestine, b.: of fraudulently, spurious, or unauthorized issue: made or introduced fraudulently, c. acting in secret or by stealth: doing something clandestinely: sly, stealthy.
Webster’s Third New International Dictionary 2302 (3d. ed. 1986);
see also United States v. Herring,
For the present purposes, the only real difficulty with the term surreptitious arises from its connection to the concept of authority. As the dictionary definition underscores, when an actor acts in a surreptitious manner, he or she “execute[s] ... -with often clever or deft circumvention of proper standards, sanction or
authority.”
Webster’s Third New International Dictionary 2302 (3d. ed. 1986) (emphasis added). As noted, in construing Section 2512 in a satellite device case, the Eleventh Circuit also emphasized this notion of a lack of authority as crucial to the concept of surreptitiousness: “Although the term ‘surreptitious’ is not defined in the statute itself, its dictionary definition is well established: secret and
unauthorized;
clandestine; action by stealth or secretly.”
Herring,
Clearly, it would be illogical if the authority concept in surreptitious referred to authority under the law. .First, it does not make sense for a word in common parlance to require a familiarity with the law to invoke. Second, such a construction of authority does not comport with the common understanding of the term. Certainly there are situations in which particular conduct is authorized by the law but is nonetheless surreptitious: as, for example, with an undercover police officer. Surely his or her work is authorized by the law, but it is nonetheless patently surreptitious.
Then, if the authority in surreptitious does not refer to authority under the law, to what authority does it refer? The answer must
What does this tell us, then, about the plain meaning of “surreptitious” under the act? From this, we can discern that surreptitious as used in Section 2512 can only reasonably mean an interception that is accomplished without the consent, i.e., authority, of all persons to the communication. As unsettling as this result might be on a pragmatic level — because devices primarily intended to record surreptitiously have become commonplace in the market — this is unequivocally the “plain meaning” of Section 2512.
In fact, the legislative history of the statute comports with this construction of the term surreptitious. Among the prohibited devices that are included in the Senate Report to the bill, are “the microphone disguised as a wristwatch, ... cuff link, [and] tie clip....” S.Rep. No. 90-1097, 90th Cong, 2d. Sess., 95 U.S.C.C.A.N. 2112, 2183 (1968). These devices, which are deemed per se surreptitious by the Report, are patently devices that, in order to be used, most logically require the consent or authority of at least one party to the conversation. Unlike a’ picture frame, fountain pen, stapler, or cigarette pack, which are also mentioned in the list of prohibited devices, a wristwatch, cuff link and tie clip cannot merely be left behind to record the conversation of others. Rather, these devices, to be used, must more likely than not be-worn by at least one party to the conversation. The fact that these devices are included within the intended purview of the act supports the conclusion that the act was intended to cover any device whose design renders it primarily useful for the interception of communications without the consent or “authority” of all parties to that communication.
b) Section 2512’s Purported Conflict with Section 2511
Defendants approach the alleged vagueness of Section 2512 from a different vantage point, however. They contend that any natural clarity to the term surreptitious is obfuscated by the conflict between Section 2512’s prohibition of surreptitious
devices
and Section 2511’s permission of some forms of surreptitious
interceptions.
They claim that the term “surreptitious” in Section 2512 is vague because it conflicts
13
with Section 2511(2)(d) which explicitly permits the interception of communications so long as least one party to the conversation consents to such intercep
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tor-tious act in violation of the Constitution or lav/s of the United States or of any State.
18 U.S.C. § 25U(2)(d). “Intercept” is defined under the statute to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 21 U.S.C. § 2510(4). Defendants argue that this provision renders Section 2512’s term “surreptitious” inscrutable because a person of ordinary intelligence could not discern what devices are legal and what devices are illegal under the statute. They contend that:
there is not any distinction in ‘surreptitiousness’ as that word is defined, between legal (one-party consensual) interceptions and illegal interceptions. As a result, there is not any way for a person (and defendants herein) to distinguish between the primary design of a device intended for legal “surreptitious” recording or monitoring, ie., a coneealable or disguised tape recorder and transmitter, and such a device designed for illegal ‘surreptitious’ purposes.
(Defs’ Vagueness Mem. at 14).
15
Defendants insist that the disparate results in interpretation that arise from the apparent inconsistency between Section 2512 and Section 2511 “appear to depend more on context — the merchant from whom the item is purchased, and its ultimate use by the purchaser — rather than on any ‘primary’ design characteris
The Government, in response, maintains that the so-called “consent exception” of Section 2511 should not be read into Section 2512 because the two provisions deal with entirely different matters: Section 2512 prohibits certain devices while Section 2511 authorizes certain conduct. Thus, the Government argues, there is no conflict between the two provisions because they deal with separate matters. 16
The obvious difficulty with the Government’s position is that it necessarily implies that Congress intended to make a device illegal while simultaneously protecting the use to which the device could or most likely would be put. Such an outcome appeared unpalatable to the Government at oral argument when it refused to say that certain devices sold by Radio Shack — which were largely indistinguishable from the devices sold by defendants — were prohibited by Section 2512. A construction of Section 2512 that does not incorporate Section 2511 significantly broadens the reach of Section 2512. However, even if the outcome might seem somewhat troublesome, (perhaps even imprudent for citizens accustomed to the availability of such devices for lawful consensual interceptions), it cannot be deemed illogical or irrational under the law. In fact, the legislative history overwhelmingly supports this construction.
As previously explained, the Senate Report lists as prohibited certain devices such as the cuff link, tie clip or wristwatch, which primarily function when used in a one-party consent situation. The only possible use for any of these devices is a perfectly legal inter-eeption under Section 2511. Nevertheless, even though they are by design not likely to be used to intercept un lawfully under Section 2511, the devices are nonetheless prohibited by Section 2512. The Senate Report provides some measure of explanation for this result. It explains that “[b]y banning these devices, a significant source of equipment highly useful for illegal electronic surveillance will be eliminated.” S.Rep. No. 90-1097, 90th Cong., 2d. Sess., 95 U.S.C.C.A.N. 2112, 2183 (1968). While these words are not a model of clarity themselves, it is reasonable to conclude from them that it was Congress’s intent in enacting Section 2512 to remove from the market a wide range of devices, some of which might be “primarily” useful for legal “surreptitious” interceptions under Section 2511 so that the greater good of preventing illegal interceptions might be more easily accomplished. Such an empirical and policy determination is certainly within the province of Congress to make and may not, without more evidence of a clear contradiction, be questioned here.
The D.C. Circuit Court of Appeals has reached a similar conclusion in a somewhat analogous case in 1974. There, the Court was concerned with the interplay between Sections 2512 and 2511 in the context of a prosecution for advertising devices that were prohibited under Section 2512. An argument much like the one offered here was offered by the defendants in that case. The district court held that “the advertising prohibition of § 2512 should not be read to prohibit the promotion of uses apparently lawful in light of the ‘consent exception’ of § 2511(2)(d).”
United States v. Bast,
The mere fact that a device may be used for interceptions that do not violate § 2511 does not mean that its manufacture and advertising are compatible with § 2512.Section 2512(l)(b) prohibits the manufacture, sale and possession of devices primarily useful for the purpose of secret interception, even though the devices may be used for other and lawful interceptions. The intent of Congress is discemable and sensible, and there is no reason to consider the doctrines that indicate that when plain meaning leads to an absurd result it does not signify applicable legislative intent. Similarly, there is no anomaly in Congress’s apparent attempt, in the advertising prohibition of § 2512(l)(c)(ii), to reach promotion of device for secret interception, even though the manufacture or possession of the device is not banned by § 2512(l)(b) as one “primarily” useful for secret interception. It may be unusual but it is not unprecedented for Congress to prohibit the advertising of a product even though it has not prohibited the product or its use per se. An example that looms large currently is the prohibition of advertising of cigarettes on radio or television.... The legislative history supports the interpretation of § 2512 without limitation by the exceptions contained in § 2511.... Thus, the manufacture, sale and possession prohibition was intended to ban particular devices, among them eavesdropping equipment which could be worn on the person by a party to a conversation, and hence used in a manner which would not violate § 2511 because of its “consent exception.”
Id. at 143-44,
In sum, despite the unattractive result of such a broad construction of Section 2512 to many stores and consumers in the marketplace, the Court finds no ambiguity in the term “surreptitious” because there is no conflict between Sections 2511 and 2512. Defendants nevertheless maintain that because Section 2512 begins with the words “[ejxeept as otherwise specifically provided in this chapter,” Section 2511 must be read into Section 2512. These words, however, are only important if a separate section of the chapter provides a different instruction. Such is not the case with Section 2511. The two provisions do not conflict because they speak to different methods and different purposes. Section 2512 casts a wide net over a variety of devices so that end of Section 2511 — the prohibition of nonconsensual wiretapping — can be effectuated. 17 In the end, the plain meaning of “surreptitious” is clear — even if it might produce a bitter result for those searching to effect the authority granted to them under Section 2511. Such persons are left with recording their conversations with perhaps cumbersome devices, like dictaphones and tape recorders, and prohibited from using more efficient and less cumbersome devices like bugs. Section 2512, however, authorizes only electronic communications providers and government officials to manufacture, sell or possess the more efficient bug devices, see 18 U.S.C. 2512(2), while Section 2511 permits electronic communications providers, government officials and private parties with consent, to intercept communications.
3. The Potential for Arbitrary and Discriminatory Enforcement
Invoking the second element of the vagueness-as-applied test, the defendants assert that the inherent vagueness of Section 2512 is evidenced by the arbitrary and discriminatory enforcement of the statute that has occurred to date. Defendants note that other merchants sell and advertise the same or virtually similar products, yet the Government has not prosecuted them. At oral argument, defense сounsel showed the Court products from well-known stores, like Radio Shack and Hammacher Schlemmer, which defense counsel argued were virtually indistinguishable from the devices at issue here (12/13/96 Tr. at 93-101). In their submission, defendants ask the rhetorical question, “Does a product become primarily useful for surreptitious interception under 2512 by virtue of the store in which it is sold?” (Defs’ Vagueness Mem. at 21). The defendants also point to the fact that some of the very
The Government explains that “the reason devices were returned to the Spy Factory in Seattle was not based on a determination that the devices in question were not [covered by the statute]. Rather, the Customs Service’s district counsel in Seattle, Washington, erroneously determined that,
inter alia,
absent a conviction, there was no basis for forfeiture of the [devices], and the Western District of Washington had declined prosecution of the local store employees.” (Govt Mem. at 34). This response, of course, does not answer the defendants’ argument that if the statute were sufficiently clear, such devices would self evidently be contraband, and no ambiguity regarding potential forfeiture should have existed, as it would not have existed in the case of illegal drugs, for example.
20
Howevеr, as the Government points out in its Memorandum of Law, “[t]he fact that differing minds may reach different results when applying the statutory factors ‘does not render a statute void for vagueness.’ ” (Govt Mem. at 33 (citing
United States v. 3520 Brighton Boulevard,
In summary, although I am somewhat troubled by aspects of the enforcement of this, law — particularly given the broad construction of the statute I find myself impelled to accept — I cannot find that the actions by either the law enforcement community or the prosecutors is “arbitrary or discriminatory,” as that concept is understood in the vagueness context. There is a perfectly understandable reason why officers and prosecu
The Supreme Court has noted that the “primary” use of an item may be discemable in part from where it is sold and how it is marketed. The Court said in a footnote in
Posters ‘N’ Things,
“[t]hus, while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items
in a particular store
may be ‘primarily intended’ for use with drugs by virtue of the circumstances of their display and sale.”
Posters ‘N’ Things, Ltd. v. United States,
511 U.S.
513, 521
n. 11,
4. Scienter
As previously noted, it is well established that “‘the constitutionality’ of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea_ In fact, the inclusion of an intent provision will often save an otherwise vague statute.”
United States v. Schneiderman,
CONCLUSION
For the reasons provided, the defendants’ motion for a change of venue is DENIED, and defendants’ motion to dismiss portions of the Indictment premised on Section 2512 on the ground of vagueness is DENIED.
SO ORDERED.
Notes
. The defendants and the Government agreed to file their pretrial motions together. Defendants, however, submitted separate memoranda of law addressing the various issues raised in their pretrial motions. One memorandum of law, entitled “Memorandum of Law in Support of Defendant the Spy Factory, Inc.’s Pre-Trial Motions,” addressed the constitutionality of Section 2512. It will hereinafter be referred to as "Defs.’ Vagueness Mem.” A separate memorandum of law, entitled "Defendants’ Joint Motion for Change of Venue and Incorporated Memorandum of Law,” addressed the motion for a change of venue and will hereinafter be referred to as "Defs.’ Venue Mem.” Finally, the defendants' remaining issues of law pertaining to suppression and discovery issues were briefed in a third memorandum of law which will hereinafter be referred to as "Defs.' Discovery Mem." The Government submitted one memorandum of law which addressed all of the defendants' pretrial motions. It will hereinafter be referred to as “Govt Mem."
. The Court found that Mr. Richardson's salary and readily available assets are currently insufficient to pay for legal representation. Nevertheless, in order not to delay the trial further and in the interest of fairness to Mr. Richardson whose defense would be affected by the substitution of counsel, the Court is prepared, upon approval of the Chief Judge of the District, to appoint Mr. Richardson's current attorney, Mr. Ederer, as CJA counsel during the trial, conditioned on the placement of a lien on Mr. Richardson’s home. Once Mr. Richardson’s home is sold, he is to reimburse the Government for its CJA expenditures. Mr. Richardson must also agree not to encumber his property without further permission of the Court.
. The Government brought the potential conflict of interest issue to the Court’s attention after it learned from the defendants’ motion papers that the attorneys' fees for defendants Ford and Richardson had initially been paid from Spy Factory funds. None of the defense counsel, including Ford’s attorney, at any time raised the potential of this conflict with the Court — even though attorneys for both Ford and Richardson stated at the December 13, 1996 Curdo hearing that they were aware of the conflict and had previously discussed it with their clients. (12/13/96 Tr. at 16-17).
. Although defendants make the bald assertion that ‘‘[n]one of the defendants has sufficient resources to finance a two month trial in New York,” (Defs.’ Venue Mem. At 13), there has been no evidence adduced from which the Court could conclude that Defendant Ronald Kimball has insufficient funds to provide for his defense or his sustenance at a trial in New York. To the contrary, Kimball’s attorney conceded at oral argument that his client was much better off financially than his co-defendants. (12/13/96 Tr. at 86).
. In the Government’s Sur-Reply regarding defendants' delay in bringing the venue motion, the Government stated that “had venue been transferred at an earlier date, the Government would have sought to add numerous additional counts to the superseding indictment, including the possibility of mail fraud and export violations, as well as additional money laundering, smuggling and Section 2512 counts for which venue lies in the Western District of Texas and not the Southern District of New York.” (Govt Sur-Reply on Venue at 8). Understandably, these comments sent forth a wave of concern among defense counsel regarding the possibility of a virtually identical prosecution in the two districts. At oral argument, defense counsel cogently argued that if such charges were truly being contemplated by the Government, then the еfficient administration of justice would recommend that the trial be transferred to Texas where all the potential charges could be consolidated. (See 12/13/96 Tr. at 67-71). In response to the concerns of the defendants and the Court (as expressed at oral argument), the United States Attorney for the Western District of Texas wrote to the Court, with copies to defense counsel, and explained that due to the Department of lustice's petite policy prohibiting successive prosecutions in separate districts, "[i]t is ... unlikely that [the Western District of Texas] would pursue prosecution of the same defendants based upon substantially the same acts or transactions which form the basis of the Southern District of New York indictment.” (Letter from James William Blass to the Court of 12/19/96 at 1-2). Given this assurance, and despite the unwillingness of defense counsel to accept it, (see Letter from Gerald H. Goldstein to the Court of 12/27/96), I find, as the Government argues, that "the defendants in this case have received ample assurance that no second prosecution is anticipated or likely. Indeed, the defendants have received far more clear assurances on that score than do most defendants who commit multiple crimes in more than one jurisdiction." (Letter from Daniel J. Fetterman to the Court of 1/2/97 at 1-2).
. When the motion schedule was originally set at the May 6, 1996 conference, the Court instructed defendants to serve all pretrial motions on the Government by August 9, 1996. The defendants later claimed, however, that there was an infusion of confusion and complexity injected into the case by the June Superseding Indictment and the June 14, 1996 ex parte order signed by Judge Pollack. Defendants asked, and the Court granted the defendants’ written request to extend their time to serve their papers until September 9, 1996. However, it must be underscored that when defendants made their request, they failed to inform the Court that a venue motion was contemplated. Had they done so, the Court would have been much less likely to grant an extension in light of the patently time-sensitive nature of such a motion. At the August 26, 1996 conferеnce, again without the knowledge that a venue motion would be submitted, the Court granted a final one week postponement, allowing defendants' papers to be served September 16, 1996. This extension also would not have been granted if the Court had been apprised of the potential for a change of venue motion.
. The Court agrees with the general proposition of defense counsel Goldstein that the acts of counsel should not be held against the defendants. (12/13/96 Tr. at 85). A defense attorney, however, is a defendant's representative to the Court. Nevertheless, the Court has also taken action to alleviate a great deal of the burden on the defendants of the trial in New York.
.
See, e.g., Red Lion Broadcasting Co. v. FCC,
. Defendants also raised the possibility at oral argument that the statute's prohibition of advertising of such devices might implicate the First Amendment. (12/13/96 Tr. at 90) However, the defendants have not been directly charged with, nor raised a challenge against, that section of the statute and therefore any ruling based on that section would be inappropriate. To the extent that portion of the statute is implicated as an object of the conspiracy charge, the Government has stated it is "not going to go forward on the object.” (12/13/96 Tr. at 157). Furthermore, even if the defendants had been so charged and even if the advertising provision did implicate the First Amendment, the Supreme Court has said that such commercial speech is not entitled to the heightened vagueness review.
Cf. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
. 21 U.S.C. § 857(d) provides the following list of items that are deemed per se drag paraphernalia:
The term “drag paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the Controlled Substances Act ... It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as — (1) metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips; meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (6) miniature spoons with level capacities of one-tenth cubic centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chil-lums; (12) bongs; (13) ice pipes or chillers;(14) wired cigarette papers; or (15) cocaine freebase kits.
. Section 857(e) provides the following list of objective criteria to be used in determining whether a device constitutes drug paraphernalia:
In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered: (1) instructions, oral or written, provided with the item concerning its use; (2) descriptive materials accompanying the item which explain or depict its use; (3) national and local advertising concerning its use; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items in the community, such as a licensed distributor or dealer of tobacco products; (6) direct оr circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; (7) the existence and scope of legitimate uses of the item in the community; and (8) expert testimony concerning its use.
21 U.S.C. § 857(e).
.
See
e.g.,
Green v. Bock Laundry Machine Co.,
.
Cf. Chalmers v. Los Angeles,
. The most common example of this form of intercеption would be if a person were to record a conversation in which he or she were a party. In addition, the statute also expressly permits the interception of conversations where one party to the conversation has previously consented to such interception.
. Defendants' reliance upon
United States v. Gass,
If this Court were to give effect to the government’s argument, then the governmental radio interception exception contained in Chapter 119 makes no sense; a person would be permitted under Chapter 119 to intercept police radio transmissions only to be subject to criminal prosecution under § 605. Why would Congress impose a ban on the interception and divulgence of radio communications in one statute, while allowing for a specific exception in another, if it did not intend for the statutes to be read together? The only way to avoid absurdity in such a case is to interpret the conflicting statutes to complement one another, thereby giving effect to the specific exception.
Id. at 812. Clearly, the purported conflict between Sections 2511 and 2512 does not rise to the level of conflict at issue in Gass, where there was no other possible way to resolve the tension between the two provisions. Rather, in the instant case, as will be discussed, there is no conflict between the two provisions. In fact, the Court in Gass specifically noted in a footnote that "this is not a case in which the particular federal law 'criminalizes the manufacture of items while leaving legal the use of such items’ ” — which is precisely the case here. See id. at 815, n. 3 (emphasis added).
. At oral argument, the Government also maintained that even considering the defendants’ argument regarding the conflict between Sections 2511 and 2512, under a vagueness-as-applied analysis, the defendants challenge would still fail because the devices at issue here all have a design which renders them primarily useful for illegal surreptitious interceptions, i.e., interceptions without the consent of any party to the communication. Even if the Court had accepted defendant's contention that Section 2511 limits Section 2512, the Government is correct that the defendants’ vagueness challenge would fail if the Government were to prove at trial, as they maintain they would be prepared to do, that the devices seized from the defendants had no other primary purpose than illegal interceptions.
. Further support for the contention that Sections 2512 and 2511 were not to be read in conjunction with one another lies in the fact that the two sections provide duplicative exceptions which would have been unnecessary if Congress had intended to have the sections rеad in light on one another. Compare 18 U.S.C. § 2512(2) with 18 U.S.C. § 2511(2).
. Defendants state that "[flour of [the products returned] were identified specifically in Agent De Arman’s Affidavit as ESIDs: (1) VT-75 transmitter (2) Micro CAL-201 calculator/transmitter ...; (3) Micro TX-6 telephone transmitter ...; and (4) pen microphone_ In addition, other items returned also closely resemble the type of devices Agent De Arman's Affidavit considers ESIDs: transmitters; ... an ‘artificial plant transmitter' ...; a 'phone clip’ ...; and 'telephone interception' devices ...” (Defs.' Vagueness Mem. at 18).
. As further evidence of the ambiguity of the statute, defendants point to the fact that the Senate Report accompanying the statute commends the use of expert testimony to determine what devices are covered under the statute.
See
S.Rep. No. 90-1097, 90th Cong., 2d. Sess., 95 U.S.C.C.A.N. 2112, 2183 (1968) ("Obviously, the sort of judgment called for here in close cases would warrant the use of expert testimony.”). Defendants claim that "[o]bviously, if expert opinion is required, arbitraiy and discriminatory enforcement in the field is effectively guaranteed.” (Defs. Mem. at 18-19). However, the use of expert testimony to provide concreteness to the gray areas at the margin of statutes is well recognized in the law.
See e.g., United States v. Santos,
. I note, as did defendants, that at oral argument, the lead assistant United States attorney hesitated at length and could not provide a quick or confident answer as to whether a certain device bought from Radio Shack fell under the statute or whether the term "surreptitious” included both legal and illegal interceptions under Section 2511. (12/13/96 Tr. at 128-132). I am troubled by the assistant United States attorney's hesitancy, but in the end I attribute it to misplaced caution in committing himself without the contextual facts rather than to any lack of certainty regarding the correct interpretation of Section 2512.
. And this should have been the Assistant United States Attorney's immediate response to my inquiry at oral argument, given the Government's position in its written submissions.