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Defendant Stephen Pesce was initially charged in a one-count indictment with having knowingly and willfully offered for sale in interstate commerce various articles of drug paraphernalia, specifically, five hundred vials with small spoons attached, primarily intended and designed for use in inhaling, ingesting and otherwise introducing cocaine into the body, in violation of 21 U.S.C. 857, the Mail Order Drug Paraphernalia Act.[1] He has since been named, together with his business, Main Street Distributing Inc. (hereinafter "Main Street Distributors"), and four individuals, Mark Benowitz, Arthur Eisenman, Robert Cavaliere *657 and Stuart Podolsky, in a twenty-five count indictment charging further violations of 857, specifically: (1) the unlawful importation of drug paraphernalia, including 84,000 pocket scales, 12,000 strainers, fine gauge metal mesh, and 20,000,000 polyethylene bags; (2) the unlawful exportation of drug paraphernalia, including, inter alia, cocaine test kits, cocaine use kits, and butane torches; (3) the unlawful offering of drug paraphernalia for sale and transportation in interstate commerce, including, inter alia, cocaine use kits, cocaine inhalers, cocaine vials, crack pipes, roach clips, metal mesh screens, and such common narcotic diluents as inositol and mannitol; and (4) the unlawful use of the United Parcel Service as part of a scheme to sell drug paraphernalia.

More particularly, the agent noted that Customs records showed that on July 7, 1987, Freedom Imports had imported into the United States from Taiwan 200,000 4-inch glass tubes, described on Customs documents as "stirrers." Relying on the expertise of agents in the Intelligence Division of the Drug Enforcement Administration, Agent Giattino reported that 4-inch glass tubes are the basic element of pipes used to smoke the cocaine derivative "crack." Only heat sink screens need be inserted in the glass pipes for street use.

In February, 1988, a Customs agent successfully obtained, over the telephone, from Freedom Imports price quotations for "stems," the common expression for glass crack pipes, and the screens to be used in them. When, however, an agent went in person to Freedom Imports, he was told that three references were necessary before he could purchase any stems or screens.

Agent Giattino also reported that agents executing the first search warrant observed boxes in Main Street's warehouse containing: (1) metal, wooden and glass pipes with or without screens and hashish heads; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips; (6) miniature spoons with capacities of one-tenth centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) cocaine freebase kits; and (15) other drug paraphernalia, including crack pipes, crack vials, and drug cutting agents such as inositol, mannite, mannitol and caffeine anhydrous oxide.

The twenty-one page inventory for the second search of Main Street Distributors reveals the seizure of, among other things, various glass, ceramic and plastic pipes, crack pipes, hashish pipe bowls, cocaine puffers, cocaine snuff kits, cigarette rolling paper, cocaine cutting slates, cocaine scale kits, cocaine cutting blades, triple beam balance scales, cocaine vials with spoons, cocaine drying kits, roach clips, cocaine grinders and spatulas, glassine envelopes, plastic bags, butane lighters, strainers, screens and carburetors.

In this case, the court is persuaded that Agent Giattino's affidavit stated probable cause sufficient to support Magistrate Chrein's issuance of the March 2, 1988 warrant. Customs records demonstrated that Freedom Imports was purchasing large quantities of short glass tubes. According to drug enforcement experts, such tubes are the principal component of "crack" pipes. Such expert opinion "`is an important factor'" in a determination of probable cause. United States v. Benevento, 836 F.2d 60, 71 (2d Cir.1987) (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985)), cert. denied, ___ U.S. ___, 108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988).

Further supporting the probability that Freedom Imports and those acquiring glass tubes from it were intentionally dealing in drug paraphernalia is evidence that a Customs agent, who telephoned Freedom Imports, was able to obtain a price quotation for the glass tubes by referring to them as "stems," the common street term for a crack pipe. On the other hand, when an agent sought actually to purchase such stems or tubes from Freedom Imports, three references were demanded. Common sense dictates that a seller of simple drink stirrers would hardly need references from a purchaser. Someone involved in illicit activity, however, would be more likely to be suspicious of a purchaser he did not know. Apparently, since Freedom Imports was selling glass tubes to Main Street Distributors, it had satisfied itself that no risks of exposure were presented from dealing with this buyer. The magistrate was entitled to consider this evidence of unorthodox business dealings for a product with a common illicit use in reaching his conclusion that probable cause existed to believe that these enterprises were engaged in the intentional sale of drug paraphernalia.

Of course, he was also aware that in December 1987, Main Street had acquired the only other item necessary to convert a 4-inch glass tube into a crack pipe, i.e., fine mesh screening. Here again, although defendant proffers innocent uses for mesh screening, whether in tobacco pipes or plumbing supplies, when this court considers this evidence in conjunction with the other products that Agent Giattino was able to link to Main Street Distributors, the probability that defendant was trafficking in drug paraphernalia is adequately established.

Pesce argues that Agent Giattino deliberately misled the magistrate into thinking the small gauge mesh screening being imported by Main Street was in a form immediately usable in crack pipes. In fact, he contends that the screen was imported in large bolts and would need to have been cut to fit crack pipes.

Nothing in the affidavit says anything about the form in which the screening was imported. Agent Giattino stated only that Main Street "imported into the United States from Japan .1 millimeter gauge stainless steel mesh screens. These small gauge flexible screens are a component of crack pipes." Only a "grudging" and "negative" reading of the affidavit would support the conclusion that this statement in any way misled the magistrate. Contra, United States v. Ventresca, 380 U.S. at 108, 85 S. Ct. at 745. Even if the magistrate had been told that the screening was imported in large bolts, this court concludes that this fact would have made no *663 difference whatsoever to the determination of probable cause as Main Street had now acquired yet another component essential to the sale of crack pipes.

By contrast, 857 is not concerned with whether an ultimate purchaser will in fact use an item in conjunction with drugs and whether a defendant knows this. Its focus is simply on a defendant's use of the mails, or foreign or interstate commerce, to facilitate transactions involving items that a defendant has designed or intends for use as drug paraphernalia. So long as the defendant's scienter is established in this regard, i.e., so long as drug paraphernalia is defined by the defendant's intent, there can be no question and certainly the defendant does not raise one as to Congress's ability to regulate such conduct regardless of what an ultimate purchaser contemplates or what the defendant knows in that regard.

(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and primarily intended for use with tobacco products, including any pipe, paper, or accessory.

Given the clear Congressional affirmation that the intent of the defendant, whether he be a designer or seller, is to be an element of any prosecution pursuant to 857, defendant's attempts to parse Village of Hoffman Estates too finely must be rejected.

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