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Abuelhawa v. United States

Issues

Whether, if someone uses a cellular phone to buy drugs for personal use, which is a misdemeanor offense, that person can also be charged with a separate felony offense because using the cellular phone facilitated the sale of the drugs in violation of 21 U.S.C. § 843(b).

Salman Khade Abuelhawa was convicted on felony drug charges under 21 U.S.C. § 843(b) for facilitating a drug deal. Abuelhawa bought a small amount of cocaine for personal use, and set up the transaction with his dealer using his cellular phone. The Fourth Circuit found that 21 U.S.C. § 843(b) applied to anyone that facilitated a drug offense with any communication device, regardless of whether the person was the drug dealer or the drug purchaser. The Supreme Court will now interpret the meaning of this statute at the center of a Circuit split, to decide if the use of a cell phone or other communication device should be able to elevate a misdemeanor drug possession to a felony charge.

Questions as Framed for the Court by the Parties

Whether the use of a telephone to buy drugs for personal use "facilitates" the commission of a drug "felony," in violation of 21 U.S.C. § 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use (a misdemeanor), but is the seller's distribution of the drugs to him (a felony).

When Salman Khade Abuelhawa called drug dealer Mohammed Said on his cellular phone, he had no way of knowing that there was a third party listening to and taping their conversations: the Federal Bureau of Investigation. See United States v. Abuelhawa, 523 F.3d 415, 417 (4th Cir. 2008). The FBI suspected that Said was distributing cocaine in the Washington, D.C.

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