528
Scalia, J., concurring in judgment
conviction but is not sufficient for conviction—i. e., that the sale of an item with the intent that it be used for drug purposes does not constitute a violation. I disagree. In my view, the statutory language "primarily intended . . . for use" causes a sale to be a sale of drug paraphernalia where the seller intends the item to be used for drug purposes. A rejection of that view, if consistently applied, would cause "primarily intended or designed for use" to mean nothing more than "designed for use." While redundancy is not unheard of in statutory draftsmanship, neither is it favored in statutory interpretation. Kungys v. United States, 485 U. S. 759, 778 (1988).
Some of the provisions of § 857(e), which describes factors that may be considered in determining whether an item constitutes drug paraphernalia, clearly suggest that what is not covered paraphernalia by nature can be made such by the seller's intent.* Section 857(e)(1) lists as one of the relevant factors "instructions, oral or written, provided with the item concerning its use." This envisions, I think, that a drugstore owner who instructs the purchaser how to use the purchased drinking straw or razor blade in the ingestion of drugs converts what would otherwise be a lawful sale into a sale of drug paraphernalia. Section 857(e)(4) lists as a relevant factor "the manner in which the item is displayed for sale." That would surely not change the nature of the item, but it would cast light upon the use intended by the person who is selling and displaying it. And § 857(e)(5) lists as a relevant factor "whether the owner . . . is a legitimate sup-*For purposes of the present case, all we need decide is that the seller's intent will qualify. It would also seem true, however (since the statute contains no limitation on whose intent—manufacturer's, seller's, or buyer's—can qualify), that the buyer's intended use will cause an otherwise harmless item to be drug paraphernalia. To convict a seller on such a basis, of course, the scienter requirement of the statute would require that the seller have known of such intended use.
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