RECOMMENDED FOR FULL-TEXT PUBLICATION 16 United States v. Search of Music City No. 99-5260 Pursuant to Sixth Circuit Rule 206 Marketing ELECTRONIC CITATION: 2000 FED App. 0164P (6th Cir.)
File Name: 00a0164p.06
(6th Cir. 1992), this Court recognized entrapment by estoppel as a defense to criminal prosecution. Because the government UNITED STATES COURT OF APPEALS has not begun any criminal prosecution of Music City, this defense is not yet appropriate. Under Rule 41(e), the FOR THE SIXTH CIRCUIT government need not return the seized _________________ contraband—regardless of any prior representations regarding the legality of the items.
;
IV. UNITED STATES OF AMERICA,
Appellee,
For the foregoing reasons, we AFFIRM the district court’s
denial of Music City’s Fed. R. Crim. P. 41(e) motion for the No. 99-5260 v.
return of its property.
>
SEARCH OF MUSIC CITY
Appellant.
MARKETING, INC.,
1
Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-03096—Thomas A. Higgins, District Judge.
Argued: March 7, 2000
Decided and Filed: May 12, 2000 Before: MARTIN, Chief Judge; KENNEDY and SUHRHEINRICH, Circuit Judges.
_________________
COUNSEL
ARGUED: Alfred H. Knight, WILLIS & KNIGHT, Nashville, Tennessee, for Appellant. Harold B. McDonough, Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Alfred H. Knight, Alan D. Johnson, WILLIS & KNIGHT, Nashville, Tennessee, 2 United States v. Search of Music City No. 99-5260 No. 99-5260 United States v. Search of Music City 15 Marketing Marketing
Hal D. Hardin, LAW OFFICES OF HAL D. HARDIN, with drugs in the community. The court found that Music Nashville, Tennessee, for Appellant. Harold B. McDonough, City had put on no credible evidence refuting the Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, government’s contention that the snuff dispensers were used Tennessee, for Appellee. primarily to administer drugs. With respect to the scales, the court noted that while they were multi-use items, they were _________________ housed in a warehouse containing other drug paraphernalia.
Based on this evidence, the court concluded that the items at OPINION issue were primarily intended or designed for use with _________________ controlled substances. Under these circumstances we cannot say that the district court erred in arriving at this conclusion.
KENNEDY, Circuit Judge. In June of 1998 United States C.f. 57, 261 Items of Drug Paraphernalia, 869 F.2d at 958–59 Customs Agents executed a warrant to search the premises of (evaluating the evidence considered by the district court and Music City Marketing (“Music City”) for drug paraphernalia; concluding the court had not erred in concluding that the seizing various merchandise that they believed qualified as items at issue qualified as drug paraphernalia and thus were such in the process. Music City filed a motion in the district properly subject to civil forfeiture under the Customs Statute). court for the return of the seized property pursuant to Fed. R. Crim. P. 41(e). After conducting a hearing, the court found III. the majority of the seized items were drug paraphernalia and thus contraband. As a result, the court denied plaintiff’s Music City also argues that based on the government’s motion with respect to those items. Music City appealed, actions during the seizure of Music City’s inventory in 1989, arguing: (1) that the definition of drug paraphernalia as a matter of due process it could not pronounce the items contained in 21 U.S.C. § 863 was unconstitutionally vague as seized in 1998 to be drug paraphernalia. Music City places applied to the seized items; and (2) that based on prior great weight on the fact that after Customs agents seized representations made by United States Customs Officers, it items from its warehouse in 1989, the government left behind was a violation of due process for the government to seize the items that were essentially identical to items seized in 1998. items at issue. For the following reasons we affirm the district Music City also alleges that some Customs agents made court’s holding that the merchandise was drug paraphernalia statements implying that items remaining in Music City’s that as contraband could not be returned to Music City. inventory after the 1989 seizure could legally be sold, at least in the Middle District of Tennessee. Further, Music City I. points out that a list of prohibited items was attached to its plea agreement and that none of these items were present in In 1989, approximately nine years prior to the seizure at 1998. Finally, Music City notes that for three years after issue, United States Customs Officers searched the warehouse entering into the plea agreement it sent catalogs containing used by Music City and its subsidiary Contempo Tobacco items seized in 1998 to the Customs office. Products, Inc., seizing several truck loads of what was determined to be drug paraphernalia. Music City engaged in Based on these facts, Music City asserts that the criminal settlement negotiations with the United States, initially doctrine of entrapment by estoppel should prevent the proposing that the government acknowledge that all of the government from categorizing the seized items as drug merchandise not seized from the warehouse could be legally paraphernalia. In United States v. Levin, 973 F.2d 463, 468 sold. The government declined, and Music City entered into 14 United States v. Search of Music City No. 99-5260 No. 99-5260 United States v. Search of Music City 3 Marketing Marketing
challenge the district court’s factual finding that the pipes and a plea agreement, acknowledging its guilt and agreeing to the other items at issue qualified as drug paraphernalia under the forfeiture of the truckloads of seized merchandise and the statute. To the extent that Music City has made this payment of a one million dollar fine within six years. Music argument, we affirm the district court. City did not pay the entire fine as required, but has continued to pay one thousand dollars a month since the plea agreement After conducting a two day evidentiary hearing, the district was reached in 1990. For two to three years following the court individually evaluated each item at issue in detail. The seizure of items from its warehouse, Music City also sent the court considered: descriptive material included with some of local United States Customs Office a catalog of the items it the seized items, the fact that Music City’s retail stores sold was offering for sale. legitimate tobacco products, testimony from multiple witnesses, advertised and actual uses of the items in the In June of 1998, Customs agents once again obtained a community, a treatise defining slang terms, and expert search warrant for Music City’s premises. Customs agents testimony concerning the items’ uses. With regard to the found items that they believed to be drug paraphernalia, pipes, the court credited Custom Agent Mangione’s expert although none of the items seized in 1998 appear to be testimony as to their use in the community and their design identical to those found in 1989. The agents seized cigarette characteristics. Agent Mangione had been involved with drug holders, various types of small pipes, scales, filter screens, paraphernalia investigations since 1989 and had extensive “dugouts,” “SmokeLess Smoking Systems,” and raw material training and experience dealing with drug paraphernalia. The for snuff dispensers.1 The approximate value of the seized court observed that Agent Mangione testified as to the various inventory was $600,000. pipes’ design characteristics that were more consistent with marijuana than tobacco use, including an invariably small Music City filed a motion in the district court for the return bowl size, bowl covers without holes, lack of traditional of the property under Fed. R. Crim. P. 41(e). The district mouthpieces and stems, lack of filters, and the fact that some court conducted a two day evidentiary hearing, viewing of the pipes were constructed of material that would become exhibits introduced by both the government and Music City too hot to hold in one’s mouth if smoked for any length of and listening to testimony of Customs agents, local police, time. Similarly, Agent Magione testified that the “dug outs” tabacconists, and executives and employees of Music City. and “SmokeLess” systems were commonly used in the The court found that the seized items were drug paraphernalia community to smoke marijuana. Agent Magione also pointed as defined in 21 U.S.C. § 863, summarizing its reasoning as out that the metal or ceramic “bats” included with these items follows: were too small to allow the user to inhale more than a few puffs of smoke and were therefore more consistent with The Court has considered the relevant criteria set forth in smoking marijuana than tobacco. With respect to the metal 21 U.S.C. § 863(e), including the descriptive material screens, the court noted that Agent Mangione testified that they were commonly used in small marijuana pipes to keep seeds and stems from being sucked into the smoker’s throat, 1 The “dug outs” and “SmokeLess Smoking Systems” consisted of a but were not used in traditional tobacco pipes. Regarding the hollow wood or plastic box with a covered compartment in which the snuff dispenser components, the court observed that they were smoking material could be stored and another covered storage seized in conjunction with other drug paraphernalia and compartment in which a hollow metal or ceramic cigarette shaped “bat” Agent Magione testified that he had often observed their use was kept. When the cover was moved to expose the bat, a spring would partially eject it for smoking.
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included with some of the seized items, the fact that United States v. Spy Factory, Inc., 951 F. Supp. 450, 476–77 Music City’s retail stores sell legitimate tobacco (S.D.N.Y. 1997) (analyzing a vagueness as applied argument products, the scope of the legitimate uses of the items in raised against the Wiretap Act and comparing the statute’s the community, and the expert testimony concerning the language with that of the drug paraphernalia statute). items’ use. The Court concludes that these items are primarily intended or designed for use with controlled With respect to fair warning, the statute’s specificity substances and thus are drug paraphernalia as defined by contradicts Music City’s contention that the statute did not 21 U.S.C. § 863. provide sufficient guidance to warn of the conduct which it prohibits. Additionally, Hoffman Estates undercuts Music Accordingly, the district court issued a memorandum and City’s fair warning arguments. In Hoffman Estates, the order denying Music City’s Rule 41(e) motion with regard to Supreme Court discussed the “designed for use” phrase that the majority of the seized items on the basis that Music City’s the Village of Hoffman Estates used in a drug paraphernalia inventory was contraband and thus could not be returned, statute very similar to the one at issue here. The Court regardless of whether or not the government properly confirmed that the phrase had an objective meaning and obtained and executed its search warrant. However, the court observed that no issue of fair warning was present in the case, did order the return of cigarette holders as well as a plastic because, as Flipside conceded, the phrase referred to an item’s tube called a “head rush,” thought to be a component that structural characteristics. Hoffman Estates, 455 U.S. at 501, could be used in making a “bong,”which the government 102 S. Ct. at 1195. Similarly, in the case at bar, it is the acknowledged were improperly seized items’ likely use and structural characteristics that must be evaluated, largely eliminating fair warning as an issue. 8 II.
Under these circumstances, we conclude that as applied to A. the items that the district court found to be drug paraphernalia, 21 U.S.C. § 863 provides fair warning of the There is no criminal indictment or proceeding pending conduct that is prohibited and sufficiently limits the danger of against Music City. Thus, Music City’s Rule 41(e) motion for arbitrary enforcement. the return of its property was really in the nature of a civil proceeding invoking the court’s equitable powers, rather than B. a criminal proceeding. See White Fabricating Co. v. United States, 903 F.2d 404, 407–08, (6th Cir. 1990) (holding that a Music City largely confines its focus to the assertion we district court has jurisdiction to entertain a Rule 41(e) motion addressed above, that the statute was unconstitutional as for the return of property before a criminal prosecution has applied. However, some of Music City’s arguments appear to begun, believing such a motion to be, in effect, a civil action); Delta Engineering v. United States, 41 F.3d 259, 262 n.2 (6th Cir. 1994) (observing that “it is well established in this circuit 8 that courts have jurisdiction to hear Rule 41(e) motions in the In the case at bar we are confronted with a defendant who dealt in absence of criminal proceedings,” and citing White a number of items that clearly qualified as drug paraphernalia. As a result, we need not address whether the statute would sufficiently warn Fabricating Co. as support for this proposition). The district legitimate merchants selling only multiple use items of the conduct that court found that because Music City would suffer irreparable could render such items drug paraphernalia, thereby subjecting them to civil forfeiture.
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the objective characteristics of some items, including certain harm and there was an inadequate remedy at law with regard kinds of pipes, establish that they are designed for use with to the government’s retention of the property at issue, it controlled substances, as they have no other use besides would exercise its equitable jurisdiction to hear the motion. contrived ones). Therefore, Music City does not fit the The court correctly observed that under Rule 41(e)2, the scenario posited by the Supreme Court, that of a legitimate property need not be returned if it was contraband. See, e.g., merchant “engaging in the sale of only multiple use items.” Fed. R. Crim. P. 41(e) advisory committee note Id. at 526, 114 S. Ct. at 1755 (emphasis added). accompanying the 1972 amendments (stating, “the judge in the district of seizure does not have to decide the legality of With respect to Music City’s vagueness arguments the seizure in cases involving contraband which, even if concerning the Aristocrat snuff dispensers, small gauge mesh seized legally, is not to be returned.”). The parties agreed and screens, variously sized scales, “dugouts,” springs used in the court looked to the definition of drug paraphernalia manufacturing the “dugouts,” metal cigarettes (or “bats”) used contained in 21 U.S.C. § 863, determining that under the with the “dugouts,” and the “SmokeLess System,” we statute most of the items the government seized qualified as conclude that § 863 is not unconstitutionally vague in drug paraphernalia. The court then denied Music City’s application. First, with respect to the danger of arbitrary motion for the return of its property on the grounds that Music enforcement, the objective factors listed in § 863(e), in City was not legally entitled to the items at issue. conjunction with the definition of drug paraphernalia contained in subsection (d), and the exemption of traditional On appeal Music City does not contend that 21 U.S.C. tobacco products in subsection (f), supplied the detail § 863 is unconstitutionally vague on its face, an argument that regarding what items would qualify as drug paraphernalia to appears to be foreclosed by the Supreme Court’s opinions in adequately limit the danger7 of arbitrary enforcement with Posters ‘N’ Things, LTD. v. United States, 511 U.S. 513, 114 respect to the items seized. See Posters ‘N’ Things, 511 S. Ct. 1747, 128 L. Ed. 2d 539 (1994) and Village of Hoffman U.S. at 525–526, 114 S. Ct. 1754. While the scales and empty Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 snuff dispensers present the closest question, Music City’s S. Ct. 1186, 71 L. Ed. 2d 362 (1982) as well as this Court’s sale of drug paraphernalia separates it from merchants dealing opinion in United States v. 57,261 Items of Drug solely in multiple-use items in a manner that adequately Paraphernalia, 869 F.2d 955 (6th Cir. 1989) (abrogated by constrains law enforcement officials from proceeding to seize scales or snuff containers from such merchants. See id.; Cf.
2
Fed. R. Crim. P. 41(e) provides:
A person aggrieved by an unlawful search and seizure of property may move the district court for the district in which the to largely be contrived. However, because at least the majority of the property was seized for the return of the property on the ground pipes were not multi-use items, our resolution of the status of the “dug that such person is entitled to lawful possession of the property. outs” and “SmokeLess System” is not critical to our decision. The court shall receive evidence on any issue of fact necessary 7 to the decision of the motion. If the motion is granted, the Music City complains that the district court gave too much credit to property shall be returned to the movant, although reasonable Custom Agent Magione’s testimony regarding which items were drug conditions may be imposed to protect access and use of the paraphernalia. This argument, however, is addressed to the validity of the property in subsequent proceedings. If a motion for return of district court’s finding that the items were drug paraphernalia, rather than property is made or comes on for hearing in the district of trial whether the statute allows arbitrary enforcement with respect to the seized after an indictment or information is filed, it shall be treated also items. as a motion to suppress under Rule 12.
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Posters ‘N’ Things, LTD., 511 U.S. 513, 114 S. Ct. 1747, implicate vagueness or other due process concerns with with respect to the intent required for a conviction under 21 respect to such items. Petitioners operated a full-scale U.S.C. § 857). Rather, Music City argues that the statute is “head shop,” a business devoted substantially to the sale unconstitutionally vague as applied to the items of inventory of products that clearly constituted drug paraphernalia. seized by the government in 1998. The Court stated in Hoffman Estates: “The theoretical possibility that the village will enforce its ordinance The drug paraphernalia statute located at 21 U.S.C. § 863 against a paper clip placed next to Rolling Stone states: magazine ... is of no due process significance unless the possibility ripens into a prosecution.” 455 U.S., at (a) It is unlawful for any person– 503-504, n. 21, 102 S.Ct., at 1196, n. 21. Similarly here, (1) to sell or offer for sale drug paraphernalia; we need not address the possible application of § 857 to (2) to use the mails or any other facility of interstate a legitimate merchant engaging in the sale of only commerce to transport drug paraphernalia; or multiple-use items. (3) to import or export drug paraphernalia.
Id. Thus, Music City correctly observes that the Court quite As an aid in determining whether particular items are drug naturally did not address whether the statute would be paraphernia, parts (d) and (e) provide detail. Part (d) lists unconstitutionally vague with respect to the prosecution of a items that generally qualify as drug paraphernalia “per se” and legitimate merchant who sold only multi-use items, an issue part (e) contains a non-exhaustive list of eight factors to not before the Court. Music City attempts to style itself as consider while evaluating the items at issue. Parts (d) and (e) such a merchant, arguing that at worst some of the items it read as follows: sold were multi-use items.
(d) The term “drug paraphernalia” means any Music City is correct in noting that the Supreme Court has equipment, product, or material of any kind which is expressed some concern about the statute’s constitutionality primarily intended or designed for use in as applied to the seizure of multiple use items such as scales, manufacturing, compounding, converting, razor blades, and mirrors from merchants dealing only in concealing, producing, processing, preparing, multiple use items. However, while Music City did carry injecting, ingesting, inhaling, or otherwise multiple use items as well as legitimate tobacco related introducing into the human body a controlled products, it also carried a wide variety of pipes that based on substance, possession of which is unlawful under their design, were only suitable for use with controlled this subchapter. It includes items primarily intended substances.6 See id. at 518, 114 S. Ct. at 1751 (observing that or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human 6 body, such as-- The “dug outs” and “SmokeLess System” likely fall under this (1) metal, wooden, acrylic, glass, stone, plastic, category as well, given that their design only allowed a small quantity of smoking material to be loaded into the “bat” for smoking. As the or ceramic pipes with or without screens, government’s expert testified at trial, this only allowed a few puffs per use permanent screens, hashish heads, or and was therefore more consistent with marijuana smoking than it was punctured metal bowls; with tobacco smoking. Music City has argued that these products could be used to help reduce tobacco smoking, but such purported use appears 10 United States v. Search of Music City No. 99-5260 No. 99-5260 United States v. Search of Music City 7 Marketing Marketing
we need not be detained long with Music City’s arguments (2) water pipes; that § 863 is vague as applied to the pipes that the government (3) carburetion tubes and devices; seized from its warehouse. As the Supreme Court noted, the (4) smoking and carburetion masks; statute specifically lists pipes designed for use with illegal (5) roach clips: meaning objects used to hold drugs in subsection (d), provides objective factors to assist in burning material, such as a marijuana their evaluation in subsection (e), and excludes pipes cigarette, that has become too small or too traditionally used to smoke tobacco in subsection (f). short to be held in the hand; Consequently, while Music City may be unhappy with the (6) miniature spoons with level capacities of district court’s conclusion that the various pipes that Customs one-tenth cubic centimeter or less; Agents confiscated were drug paraphernalia, it cannot (7) chamber pipes; complain that 21 U.S.C. §5 863 was unconstitutionally vague (8) carburetor pipes; as applied to those pipes. (9) electric pipes;
(10) air-driven pipes;
Music City points out, however, that several of the items (11) chillums; seized were the type of multi-use items that the Supreme (12) bongs; Court voiced concern about in Posters ‘N’ Things, 511 U.S. (13) ice pipes or chillers; at 526, 114 S. Ct. at 1754. In Posters ‘N’ Things the Court (14) wired cigarette papers; or stated: (15) cocaine freebase kits.
(e) In determining whether an item constitutes drug Section 857's application to multiple-use items—such paraphernalia, in addition to all other logically as scales, razor blades, and mirrors—may raise more relevant factors, the following may be considered: serious concerns. Such items may be used for legitimate (1) instructions, oral or written, provided with as well as illegitimate purposes, and ‘a certain degree of the item concerning its use; ambiguity necessarily surrounds their classification.’ (2) descriptive materials accompanying the item Mishra, 979 F.2d, at 309. This case, however, does not which explain or depict its use;
(3) national and local advertising concerning its use;
5 (4) the manner in which the item is displayed for Apparently in an effort to illustrate the statute’s vagueness, Music sale;
City makes much of the fact that Sergeant Brock, a police officer with the local Vice Squad unit that participated in the raid, did not think that any (5) whether the owner, or anyone in control of of the items in the warehouse were drug paraphernalia. Additionally the item, is a legitimate supplier of like or Music City points out that Customs Agent Davis allegedly made some related items to the community, such as a comments that could be construed as sanctioning the sale of the items licensed distributor or dealer of tobacco remaining in Music City’s warehouse after the 1989 raid. However, the products; fact that different minds reach different results when applying the factors to determine if an item qualifies as drug paraphernalia does not (6) direct or circumstantial evidence of the ratio necessarily mean that the statute is unconstitutionally vague as applied to of sales of the item(s) to the total sales of the that item. See, e.g., Schneiderman, 968 F.2d at 1568 (rejecting an business enterprise; argument that 21 U.S.C. § 857 was unconstitutionally vague as applied (7) the existence and scope of legitimate uses of and noting that while effective law enforcement often requires a degree the item in the community; and of police judgment, this alone does not render a statute unconstitutional).
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(8) expert testimony concerning its use. to prohibited conduct. Id. at 525, 114 S. Ct. at 1754. With regard to these listed items the Court stated that “there can be 21 U.S.C. § 863. little doubt that the statute is sufficiently determinate to meet constitutional requirements.” Id. at 525–26, 114 S. Ct. at Music City contends that as applied to the items that 1754. The Court also noted that § 857(e) set forth objective Customs agents seized in 1998, the statute’s definition of drug criteria for assessing whether items constitute drug paraphernalia is unconstitutionally vague. To survive a paraphernalia, minimizing the possibility of arbitrary challenge of unconstitutional vagueness in application, a enforcement and assisting in defining the conduct the statute penal statute must “define the criminal offense with sufficient prohibits. Id. at 526, 114 S. Ct. at 1754 (citing United States definiteness that ordinary people can understand what conduct v. Mishra, 979 F.2d 301, 309 (3d Cir. 1992) and United States is prohibited and in a manner that does not encourage v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir. 1992), which arbitrary or discriminatory enforcement.” Posters ‘N’ Things, both found that while a certain degree of ambiguity 511 U.S. at 526, 114 S. Ct. at 1754 (quoting Kolender v. necessarily surrounds the classification of drug paraphernalia, Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. the statute provided constitutionally sufficient guidance). 2d 222 (1972) and citing Grayned v. Rockford, 408 U.S. 104,3 Additionally, the Court observed that § 857(f) exempted items 108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222 (1972)). traditionally used with tobacco, “further limit[ing] the scope of the statute and preclud[ing] its enforcement against In evaluating Music City’s claims, the Supreme Court’s legitimate sellers of lawful products.” Id. at 526, 114 S. Ct. opinion in Posters ‘N’ Things is instructive, as it is the most at 1754. recent case in which the Court discussed the constitutionality of the drug paraphernalia statute. In Posters ‘N’ Things, Although in the case at bar we address the current drug police executed a search of defendants’ business premises, paraphernalia statute located at 21 U.S.C. § 863, the Supreme seizing pipes, bongs, scales, roach clips, and drug diluents. Court’s analysis of the old statute located at 21 U.S.C. § 857 Defendants were subsequently indicted and convicted for, remains controlling. When Congress recodified the statute it among other things, selling drug paraphernalia in interstate left the language originally contained in § 857 (d)–(f) commerce in violation of the drug paraphernalia statute then unchanged, leaving the precedential value of cases located at 21 U.S.C. § 857. On appeal one of the arguments interpreting the old statute intact. Therefore, as applied to the defendants raised was that the statute was unconstitutionally items that the Supreme Court addressed in Posters ‘N’ vague as applied to the items seized. The Court disagreed, Things, such 4as pipes not traditionally used for tobacco, observing that the list of items in § 857(d) that constitute per bongs, scales, diluents, and roach clips, it is clear that 21 se drug paraphernalia provided relatively clear guidelines as U.S.C. § 863 is not unconstitutionally vague. Given this fact,
3 4 Music City was subject to a seizure and a civil forfeiture The Court indicated that the statute was constitutional as applied to proceeding, rather than a criminal prosecution, potentially reducing the scales at issue in the case before it, which were seized from a “head concerns of unconstitutional vagueness. See Hoffman Estates, 455 U.S. shop,” meaning a store dealing substantially in items that clearly qualified at 498–99, 102 S. Ct. at 1193 (observing that with respect to the degree as drug paraphernalia. 511 U.S. at 526, 114 S. Ct. 1754–55. However, of vagueness tolerated by the Constitution, “[t]he Court has . . . expressed the Court also indicated that when multiple-use items such scales are sold greater tolerance of enactments with civil rather than criminal penalties by legitimate merchants engaged in the sale of only multiple-use items, because the consequences of imprecision are qualitatively less severe.”) more serious vagueness concerns might be raised. See id.