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).
SalmanKhadeAbuelhawa 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. The FBI suspected that Said was distributing cocaine in the Washington, D.C. area. In early 2003, it obtained a warrant to wiretap Said's phone lines in order to investigate his suspected drug dealing operation. Through the wiretap, the FBI was able to listen to all incoming and outgoing calls on Said's cell phone. It could then obtain a warrant and subpoena the incoming phone numbers in order to determine the identity of Said's callers. Said had eight conversations with Abuelhawa over his cell phone in July of 2003. The conversations were all spoken in Arabic, but translated by a "Government Arabic language specialist" to the satisfaction of all parties involved. The conversations reveal Abuelhawa's requests to Said for small amounts of cocaine, determined at Abuelhawa's trial to range from a half a gram to a full gram, with a street value of around $80 to $120. In addition to the quantity of the exchange, the conversations also showed the two men made plans on where to meet, and confirmation of arrival at the destinations. Armed with their wiretapped conversations as evidence, FBI agents arrested Abuelhawa on October 17, 2003, for purchasing drugs from Said. Abuelhawa confessed to purchasing small amounts of cocaine from Said, and also from Issam Khatib, who had been Said's predecessor in that area. Abuelhawa admitted he would use his cell phone to call Said in order to set up the drug deal, and then they would meet at Said's father's restaurant, the Skyline Grill, in order to carry out the exchange.
Following these confessions, a grand jury indicted Abuelhawa on seven counts, including "unlawfully, knowingly, and intentionally using a communications facility-a telephone-in committing, causing, and facilitating" the distribution of cocaine, a felony violation of 21 U.S.C. § 843(b). A jury sitting for the Eastern District of Virginia then convicted Abuelhawa on six of the seven charges, and he was sentenced to twenty-four months probation and a fine of $2,000.
Following his defeat at trial, Abuelhawa appealed his conviction to the United States Court of Appeals for the Fourth Circuit. He claimed that because the amount of cocaine he purchased was only a misdemeanor offense, and because there was insufficient evidence supporting his conviction, he should not have been convicted. Unfortunately for Abuelhawa, the Court of Appeals did not agree with his assessment of the case, and affirmed his conviction. Then, in November of 2008, the Supreme Court granted Abuelhawa's petition for certiorari to consider whether using a phone to buy drugs for personal use "facilitates" the commission of a drug "felony." An affirmative finding would be a violation of 21 U.S.C. § 843(b), and mean that the buyer's felony is actually the seller's distribution of the drugs to him, and not the less severe misdemeanor of purchasing drugs for personal use.
The resolution of this case will turn upon the Supreme Court's statutory interpretation of the term "facilitates" in 21 U.S.C. § 843(b), a section of the Controlled Substances Act of 1970 ("CSA"). Abuelhawa contends that the scope of § 843(b) does not extend to a person who uses a telephone to purchase drugs for personal use, and would ordinarily be guilty only of simple possession, a misdemeanor. The United States government argues that the plain meaning of the statute encompasses the use of a telephone to purchase drugs for personal use because the use of the telephone makes it easier for a drug dealer to commit distribution, which is a felony.
The United States contends that the plain meaning of § 843(b) clearly applies to Abuelhawa's situation because his use of a telephone facilitated the felony distribution of cocaine even though Abuelhawa purchased an amount that would constitute simple possession, a misdemeanor. The government points to the Supreme Court's own language in Connecticut Nat'l. Bank v. Germain that "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l. Bank v. Germain The government argues that Abuelhawa clearly facilitated a drug felony under § 843(b) because his use of a telephone made the distribution of cocaine easier.
Abuelhawa argues that the Fourth Circuit's interpretation of § 843(b) is faulty because it gives the term "facilitates" the broadest possible meaning and construes the term in "strict isolation." . Abuelhawa points to Dolan v. U. S. Postal Serv., 546 U.S. 481, 486 (2006) in support of his position that the strict definitions of words, when viewed in isolation, do not always control how the Supreme Court will apply them. According to Dolan, terms within a statute must be read within the context of the statute as a whole, and courts must consider the purpose and background of a statutory term when interpreting its meaning. Abuelhawa poses three arguments as to why the Fourth Circuit's interpretation of § 843(b) is erroneous: (1) Congress has recognized that simple possession is less serious than other drug offenses and designated possession as a misdemeanor rather than a felony, (2) Congress intentionally narrowed the scope of § 843(b) because the statute applies only to facilitation of a drug felony, rather than facilitation of a drug offense, as federal law stated before the CSA, and (3) courts have treated facilitation as akin to aiding and abetting, and have consistently held that a buyer of drugs for personal consumption does not aid and abet a drug dealer under federal law.
Is Congress' Recognition of Simple Possession as a Misdemeanor Inconsistent With Applying § 843(b) to Drug Buyers?
Abuelhawa contends that the history of Congress' treatment of simple possession demonstrates that it could not intend for § 843(b) to apply to people who use telephones to simply purchase drugs for personal use in non-felony amounts. Abuelhawa points out that in passing the CSA in 1970, Congress drew a "fundamental distinction" between drug traffickers and drug users. Prior to the CSA, it was a felony under federal law to both buy and sell narcotics. Abuelhawa argues that Congress designed the CSA to focus on punishing drug traffickers, while reducing stiff penalties for simple drug users in order to promote rehabilitation. Abuelhawa also argues that due to the prevalence of cellular telephones, email, and instant messaging, the Fourth Circuit's interpretation of § 843(b) would turn most simple possession cases into felonies, and would therefore undermine Congress' decision to treat simple possession as a misdemeanor.
The government argues that Abuelhawa's distinction between drug trafficking and possession is unconvincing. The government counters that while simple possession is sometimes treated as a misdemeanor, in many cases, possession may be a felony and § 843(b) would clearly apply. The government points out that under 21 U.S.C. § 844(a), it is only in the case of a first offense that simple possession is a misdemeanor. In addition, simple possession of certain substances such as flunitrazepam, and receiving controlled substances from a minor are also felonies under federal law. The government urges that Congress' lenient treatment of simple possession "is an exception to [the] severe criminalization of the drug trade" and does not support a lenient interpretation of other statutes such as § 843(b). Further, the government argues that it is not inconsistent for Congress to impose lenient penalties for possession, but stiff penalties for using communication devices in drug transactions. This is because, as many federal courts have pointed out, such devices make detection more difficult. Because the use of telephones and other devices makes trafficking harder to detect, the government contends that Congress meant to impose stiff penalties both on buyers and sellers.
Facilitation of Drug "Offenses" Versus Drug "Felonies"
Abuelhawa next argues that because the CSA changed the language of § 843(b) from concerning the facilitation of drug "offenses" to the facilitation of drug "felonies," Congress must have intended "to treat the purchase of drugs for personal use as facilitating only the buyer's own misdemeanor possession, not the seller's distribution." . Abuelhawa derives this Congressional intent from the fact that the CSA provision making simple possession only a misdemeanor was "immediately adjacent" to the provision that changed the statutory language from "offense" to "felony." Abuelhawa argues that Congress' change of the statutory language would have "no practical effect" under the Fourth Circuit's interpretation because it imputes on a purchaser the facilitation of distribution a much more serious offense than simple possession.
The United States counters that while Congress discussed reducing the seriousness of possession when enacting the CSA, there is no corresponding discussion of limiting the scope of § 843(b) to exclude cases of simple possession in the legislative history of the CSA. Using the Supreme Court's own language, the government classifies Abuelhawa's characterization of the change in § 843(b) as "the dog that didn't bark." Further, the government argues that change in the language has a practical effect in that the CSA created numerous misdemeanor offenses such as the mislabeling of controlled substances or distribution of particular controlled substances. The facilitation offense of § 843(b), the United States argues, would clearly not apply to such underlying offenses because they are not felonies.
Does Aiding and Abetting Case Law Govern Whether §843(b) Extends to Drug Purchasers?
Abuelhawa argues that Congress enacted § 843(b) with the "background understanding" that a purchaser of drugs for personal use does not aid or abet the seller in his crime. Abuelhawa points out that several Courts of Appeals have held that the buyer of drugs for personal use is not liable for aiding and abetting the distribution of drugs. Abuelhawa argues the Supreme Court implicitly adopted this rule when it held in United States v. Gebardi that a prostitute who was a passenger in a car could not be liable for aiding and abetting the offense of transporting a woman for the purpose of prostitution. The Gebardi Court drew an analogy to the illegal sale of alcohol and stated that the buyer of alcohol could not be liable as an abettor to the sale. Next, Abuelhawa contends that aiding and abetting is equivalent to facilitation, and therefore, a purchaser of drugs for personal use does not facilitate the felony distribution of the seller. Abuelhawa points out that two Circuit Courts of Appeals, including the Fourth Circuit, have recognized facilitation as equivalent to aiding and abetting. Abuelhawa also argues that in Rewis v. United States, the Supreme Court has interpreted the term "facilitate" under another statute that prohibited interstate travel with the intent to facilitate illegal gambling. In Rewis, the Court held that the customers of an illegal casino could not be guilty of facilitation because they did not have intent. Abuelhawa urges that since the statute in Rewis shares a similar purpose with § 843(b)-the prohibition of facilitating an "illegal enterprise"-the same interpretation should apply here.
The government argues that the Gebardi principle of aiding and abetting does not apply to Abuelhawa's case. The government contends that the situation in Gebardi pertained to conduct that was an "inseparable incident of all cases." Under § 843(b), there is no such inseparable incident because the use of a communication device is not a necessary component of drug felonies such as distribution. The government also argues that Abuelhawa misconstrues Rewis because the Supreme Court only held that the defendant did not have the intent to facilitate, not that he did not actually facilitate the illegal gambling. The government argues that § 843(b) does not require that a person intends to facilitate, but only that a person "knowingly or intentionally" uses a communication device. The government also argues that under § 843(b), the term "facilitate" is meant to cover individual drug transactions, whereas under the statute in Rewis, the term applied to an illegal "business enterprise"-which indicates a "continuous course of conduct."
This case will determine whether under the Controlled Substances Act of 1970, a buyer of drugs for personal use who uses a telephone in the course of the transaction is guilty of facilitating the felony distribution of drugs. The petitioner, Abuelhawa, argues that an interpretation of § 843(b) that makes buyers of misdemeanor amounts of drugs guilty of the felony of facilitation would undermine Congress' intent to reduce penalties for simple possession under the CSA. The government argues that the statute is plain on its face and clearly applies to defendants such as Abuelhawa because their use of telephones in a drug transaction makes it easier for traffickers to do business. This case could impact the ability of prosecutors to "cut deals" with suspects who have purchased drugs through the use of a communication device.
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