Abuelhawa v. United States

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Authorship: Rakesh Kilaru. Please note that Rakesh has worked for the Department of Justice the last two summers and will be at O'Melveny & Myers this summer.

Contents

[edit] Briefs and Documents

Docket: 08-192

Issue: Whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).

Merit briefs

Amicus briefs

Oral Argument

Transcript

Decision: Reversed and remanded in an opinion by Justice Souter

[edit] Pre-Argument Articles

[edit] Argument Preview

21 U.S.C. § 843(b) renders unlawful the “use [of] any communication facility . . . in causing or facilitating” the commission of a drug felony. On Wednesday, March 4, in No. 08-192, Abuelhawa v. United States, the Court will consider whether an individual can be held liable under § 843 for “facilitating” felony drug distribution by using a cell phone to arrange a misdemeanor purchase of drugs for personal use.

[edit] Background

This case stems from petitioner Salman Khade Abuelhawa’s use of a cell phone (which, Abuelhawa does not dispute, is a “communication facility”) to procure drugs. On two separate days in July 2003, Abuelhawa placed multiple calls to a local cocaine distributor to arrange two purchases of small amounts of cocaine for personal use. Unbeknownst to Abuelhawa, the dealer was the subject of a federal drug-distribution investigation, and his phone was wiretapped. Months after the conversations, Abuelhawa was arrested. He admitted purchasing cocaine from Said in the past, although not in connection with the July 2003 phone calls. Instead of charging him with drug possession (a misdemeanor), the government charged Abuelhawa with several violations of 21 U.S.C. § 843(b), alleging that he had used his cell phone to facilitate the dealer’s felony sale of drugs to him.

At trial, Abuelhawa twice moved for a judgment of acquittal, arguing that the only crime he had “facilitated” was his own misdemeanor purchase of drugs for personal use. Acknowledging a division of authority among the circuits, the district court denied the motions, asserting that § 843(b) applied to Abuelhawa’s conduct. While noting that a misdemeanor possession charge might have been more appropriate, the district court nonetheless deemed itself unwilling to “‘get involved’ with ‘charging decisions.’” Abuelhawa was convicted, sentenced to twenty-four months of probation, and ordered to pay a $2000 fine.

On appeal, the Fourth Circuit affirmed. Like the district court, the court of appeals acknowledged that other circuits “are divided on the issue.” However, it concluded that § 843(b) permits Abuelhawa’s conviction because the statute “does not specify whose felony must be at issue, just that ‘a’ felony must be facilitated.” Under the language of the statute, the Fourth Circuit reasoned, it was “simply irrelevant” that Abuelhawa’s own possession offense was a misdemeanor, because it was his use of a cell phone that had facilitated a felony sale.

Abuelhawa filed a petition for certiorari, which was granted on November 14, 2008.

[edit] Petition for Certiorari

Abuelhawa articulates three reasons for granting certiorari. First, the Fourth Circuit’s opinion places it alongside the Seventh Circuit on the narrow side of a 3-2 circuit split. The Sixth, Ninth, and Tenth Circuits have concluded that the use of a communication device to purchase drugs for personal use does not violate § 843.

Second, the Fourth Circuit’s opinion “dramatically expands the reach” of § 843(b) and “substantially affects the administration of the federal drug laws.” Noting the ubiquity of cell phone use in drug transactions, Abuelhawa contends that the government’s reading of the statute would permit it “routinely to transform misdemeanor purchases of drugs into felonies” by having undercover officers call potential misdemeanant purchasers to set up drug sales. Such transformation is especially troubling, argues the petition, since felony drug convictions carry “serious consequence[s],” including rendering resident aliens like Abuelhawa eligible for removal from the United States.

Third, the Fourth Circuit’s opinion was simply wrong, since a person who uses a telephone to purchase drugs for personal use “does not ‘facilitate’ a drug felony.” The term “facilitate” is “synonymous” with the term “aid and abet,” and it is “firmly established that a person who buys a product whose sale is unlawful is not guilty of aiding or abetting the sale.” The court of appeals’ interpretation is inconsistent with the Supreme Court’s 1971 holding in Rewis v. United States that the customers of an illegal gambling enterprise do not “facilitate” that enterprise under the Travel Act, 18 U.S.C. § 1952. Moreover, the Fourth Circuit’s opinion “undermine[s] the sharp distinction” drawn by the federal drug laws in general and § 843(b) in particular “between misdemeanor possession . . . and felony distribution” and thus creates “discord” with the basic objectives of the federal drug laws. Finally, any ambiguity in the statute should be construed in Abuelhawa’s favor under the rule of lenity.

The government offers three arguments in opposing certiorari. First, the government argues that the plain language of the statute supports Abuelhawa’s conviction. Although “‘aiding and abetting’ may be defined as ‘facilitat[ing],” the obverse is not true; “facilitating” need not be “defined narrowly as ‘aiding and abetting.’” Instead, the terms “facilitate” and “cause” mean what the court of appeals interpreted them to mean: “to make easier or less difficult.” Moreover, Abuelhawa’s “proposed exception” for misdemeanant purchasers would “denude Section 843(b) of practical effect” since those left covered by the statute – drug dealers and third parties who put dealers in touch with potential buyers – are already subject to other stringent penalties. Such an exception would also be “difficult to administer” since it is “not always clear at the time a defendant sets up a drug transaction whether the purchase will be for further distribution or personal consumption.”

Second, Abuelhawa’s legislative history arguments are “unpersuasive.” That history discloses “no intent to undermine Congress’s ‘comprehensive regime to combat’” illegal drug trafficking. Instead, the statute makes clear that an exception for those who facilitate distribution for personal use is unwarranted, since the statute does criminalize a defendant’s use of a cell phone to buy drugs for personal use “where the defendant’s simple possession is itself a felony—for example, [where] the defendant possesses cocaine base.” More broadly, the possession-distribution argument is a non-starter, since 843(b) was intended to criminalize a “third and wholly separate category of conduct: using a communication facility in causing or facilitating a drug felony.”

Finally, Abuelhawa “overstates” the extent of the circuit split, since two of the cases on Abuelhawa’s side deal with whether use of a telephone to purchase drugs for personal use furthers a drug distribution conspiracy – a much trickier question than that presented by this case. The government acknowledges that the remaining Tenth Circuit case creates a conflict, but it argues that this lonely decision “does not warrant further review in this case” since that decision is nineteen years old. Moreover, recent precedents suggest the Tenth Circuit may revisit the issue, rule in favor of the government, and eradicate the split.

[edit] Merits

Abuelhawa advances five arguments in support of his contention that a person who uses a phone to buy drugs for personal use does not “facilitate” a drug “felony” under Section 843(b).

First, Abuelhawa contends that the history of the federal drug laws establishes Congress’s intent to draw a “fundamental distinction between drug traffickers and drug users.” Before 1970, the federal drug laws “drew no salient distinction between drug traffickers and drug users,” instead treating both as felons. However, the Controlled Substances Act of 1970 (“CSA”) changed the picture by drawing a clear line between users and traffickers. In particular, the CSA “singled out possession for personal use for markedly favorable treatment as a misdemeanor” in order to afford drug users “a chance for rehabilitation.” Abuelhawa urges the Court to interpret § 843(b) as part of this “‘symmetrical and coherent regulatory scheme’” and uphold Congress’s carefully considered distinction between traffickers and users, rather than read the terms of § 843(b) “mechanically in isolation” and wipe out that distinction by imposing felony liability for a misdemeanor offense.

Second, having rebutted the argument that § 843(b) permits liability for facilitation of the seller’s felony, Abuelhawa contends that the statute similarly prohibits liability for facilitation of the buyer’s misdemeanor. He relies on the legislative history of § 843(b), noting that Congress rejected a version of the statute criminalizing facilitation of a drug “offense” in favor of a version criminalizing facilitation of a drug “felony.” At the same time, and in a neighboring provision, Congress downgraded possession for personal use from a felony to a misdemeanor. Taken together, these decisions confirm that Congress did not intend for § 843(b) to apply when a buyer uses a cell phone merely to facilitate his own misdemeanor purchase of drugs.

Third, Abuelhawa focuses on the language of the statute. He repeats his argument from the cert. petition that the terms “facilitate” and “aid and abet” are “definitional equivalents,” and that the courts’ restrictive interpretations of the latter term (as not applying to a buyer’s solicitation of drugs from a seller) should control the Supreme Court’s interpretation of the former term.

Fourth, Abuelhawa dismisses the remaining arguments of the Fourth Circuit and the government. Contrary to the court of appeals’ conclusion, there is no evidence that Congress was concerned that drug users would readily evade detection by using a phone to purchase drugs, or that Congress intended for this risk to blur its sharp distinction between traffickers and users. Instead, the statute was aimed at preventing traffickers’ use of cell phones to avoid detection. And his proposed interpretation of 843(b) would not denude the statute of practical application, since the government frequently uses it against drug traffickers in both trials and plea bargains. Moreover, such an interpretation “is readily administrable” since juries can readily determine whether a defendant used a phone to purchase drugs for personal use or for distribution.

Finally, any ambiguities in the reach of § 843(b) should be resolved in Abuelhawa’s favor because of the rule of lenity.

The government counters with five arguments of its own. First, it repeats its argument from its brief in opposition that the plain terms of the statute apply to Abuelhawa. Citing several dictionaries (Black’s, Random House, and Webster’s), the government asserts that to “cause” means “to bring about,” and that Abuelhawa’s call brought about a felony. The government next makes a similar argument about the term “facilitation.” In so doing, it rebuts Abuelhawa’s Rewis argument, contending that the Travel Act is sufficiently different from § 843(b) to render inapposite the Court’s analysis of “facilitation” in that statute.

Second, the government rebuts Abuelhawa’s argument that facilitation is the same as aiding and abetting. According to the government, Abuelhawa’s equivalence argument rests on Gebardi v. United States (1932), in which the Court held that a woman transported in violation of the Mann Act could not be guilty of aiding and abetting those who transported her. Gebardi, argues the government, prohibits accessory liability only for a person whose participation is “inevitably incident to” the underlying offense. By contrast, § 843(b) requires more than mere participation in the underlying offense (drug distribution) – it also requires the use of a “communication facility.” Furthermore, while multiple calls to purchase a single quantity of drugs would constitute multiple instances of facilitation under § 843(b), they would only constitute one instance of aiding and abetting, further undermining the analogy between terms.

Third, the government contends that the overall statutory context does not support Abuelhawa’s interpretation of the statute. Congress’s decision to criminalize the facilitation of “any act or acts constituting a felony” is telling, says the government, since “any” has an expansive meaning. Moreover, while Congress did make some possession offenses misdemeanors, it did not do so for all (or even most) possession offenses. That fact, combined with Congress’s traditional interest in “keep[ing] the channels of interstate commerce free from immoral and injurious uses,” and the recognized “advantages offered by cell phones” in conducting drug transactions, support the applicability of the statute in this case.

Fourth, the government argues that the legislative history supports its reading of the statute. The predecessor to § 843(b), it explains, criminalized the use of a communication facility in “causing and facilitating” the commission of various offenses, including the purchase of drugs. When Congress revised that statute to create § 843(b), it did not eliminate that broad coverage either explicitly or implicitly. The government then repeats its earlier argument that the possession-distribution distinction is inapposite, since § 843 covers a different category of conduct.

Fifth, and finally, the government asserts that the rule of lenity should not apply, both because there is no “grievous ambiguity” in § 843(b) and because the statute applies only to already-unlawful conduct and does “not serve an innocence-protecting purpose in this case.”

The case is set for oral argument on March 4. Sri Srinivasan of O’Melveny & Myers, LLP will argue for petitioner, and Assistant to the Solicitor General Eric D. Miller will argue for respondent.

[edit] Oral Argument Recap

At Wednesday’s oral argument in Abuelhawa v. United States, the Court appeared to have a sense of déjà vu. In many ways, the Abuelhawa argument played out in much the same fashion as the oral argument one week before in Flores-Figueroa. In both cases, the Court primarily questioned the petitioner about how the statutes at issue – an aggravated identity theft statute in Flores-Figueroa, and a statute criminalizing the use of a telephone in “facilitating” a drug crime in Abuelhawa – would work in practice under the petitioner’s interpretation. Conversely, in both cases, the Court spent most of its time on the bottom side sharply questioning the textual and historical bases for the government’s expansive interpretations of those statutes.

Sri Srinivasan, representing petitioner Salman Khade Abuelhawa, began by attempting to focus on the text, history, and context of the statute. Srinivasan asserted that all three of these sources establish that § 843(b) does not transform an individual’s misdemeanor purchase of drugs into a felony if he uses a telephone to set up that purchase. However, the Court quickly steered the argument to more practical questions about who would be punishable under petitioner’s view of the statute. For example, Justice Kennedy asked about whether a phone call from a buyer’s girlfriend to a seller to set up a purchase would constitute “facilitation.” Srinivasan responded by noting that she might fall within the terms of the statute since she doesn’t benefit from the “buyer-seller rule” at issue in Abuelhawa. Calling Justice Kennedy’s question a “good law school exam type question,” Justice Ginsburg pressed Srinivasan on who is covered “in the real world.” Srinivasan responded that the “classic case of somebody on the facilitating prong would be the classic aider and abettor, for example a lookout.”

Chief Justice Roberts then asked about whether the evolution of communications technology since the statute’s revision in 1970 should alter the Court’s interpretation, since “the technology has so expanded that the reach of the statute has . . . expanded.” Srinivasan responded by noting that his argument does not turn on technology, because his argument centers on the proposition that a person using a telephone to buy drugs for personal use “wouldn’t come within the ambit of the provision” because he is “not someone who’s facilitating the commission of a drug felony in the first place.”

The Justices then turned to Srinivasan’s argument that “facilitating” means the same as “aiding and abetting.” Justice Scalia began by asking, “why should I think facilitating means aiding and abetting?” Srinivasan first relied on the “definitional equivalence” of the two terms, noting that Black’s Law Dictionary defines the two as meaning “the very same thing.” Next, in response to questioning by Chief Justice Roberts and Justice Kennedy, Srinivasan pointed out that § 843(b) is functionally on all fours with 18 U.S.C. § 2, a “general aider or abettor provision,” further supporting the analogy.

The argument then wended back to questions about the practical application of the statute. Justice Alito inquired whether a buyer can be found liable if he communicates information that “makes it easier for the transaction to take place.” In response, Srinivasan stated that no § 843(b) liability would attach if what the buyer did was “a normal incident of purchasing.” Next, Justice Alito asked whether a buyer could be punished under § 843(b) if the purchase was itself a felony. Srinivasan noted that liability would attach, but only for facilitation of the buyer’s felony purchase, and not the seller’s felony sale. Finally, Chief Justice Roberts asked about the “difficult questions of proof” implicated by Srinivasan’s “gloss on the statute” – for example, what happens when a buyer purchases ten pounds of drugs, but claims he was “just buying in bulk for personal use, like a Costco dealer.” Srinivasan replied by pointing out that “courts and juries and the government already have to make those sorts of decisions,” since they are “embedded in the fabric of the drug laws.” As a result, his reading of the statute doesn’t make it “any more complicated than it already is.”

Justice Kennedy then raised a concern that he would return to later – namely, whether the Court should avoid ruling in the government’s favor because doing so would give the government “larger, more expansive discretion in charging and plea bargaining.” In response to Justice Kennedy’s request for a “background principle[]” militating against such discretion, Srinivasan turned to the statutory history itself. In particular, Srinivasan focused on the way Congress revised the statute in 1970 – first, by narrowing the scope of the statute from “drug offenses” to only felonies; second, by changing mere possession from a felony to a misdemeanor; and third, by permitting simple possessors to avoid any conviction at all upon successful completion of probation. Together, these changes established that Congress “excluded use of a phone in connection with a drug misdemeanor” from the scope of § 843(b). But, as Srinivasan observed, the government’s argument would bring that very same conduct “back into the fold of the statute.”

Chief Justice Roberts pressed Srinivasan on this point, observing that petitioner would have lost back in 1970. While Srinivasan conceded that his case “would have been a very difficult climb” back then, because simple possession was a felony, and because § 843(b) applied to facilitation of any “drug offense,” he maintained that his case was equally simple today in the other direction because of the revisions to the statute.

Finally, Justice Ginsburg questioned Srinivasan about the government’s position – that Congress enacted this statute because it’s “more difficult to detect a drug deal when it’s by telephone than if it were an encounter on the street.” Srinivasan agreed that such concerns “may have been the animating purpose” behind the enactment of § 843(b). But, he concluded, “that purpose is substantially served” even on the facts of this case because the seller comes “squarely within the terms” of the statute. While the seller is liable, though, “the buyer is not,” because the buyer is not “committing, causing, or facilitating a drug felony in the first place.”

Arguing for the government, Assistant to the Solicitor General Eric Miller began by contending that there is “no basis in the statute for creating an exemption for people who facilitate or cause felony distributions by purchasing drugs for their own personal use.” Immediately, though, the Justices began to pepper him with questions about the potential implications of the government’s reading of the statute. Chief Justice Roberts began by asking about a scenario in which two people in a park attempt to purchase drugs, one by waving to the drug dealer, and another by using a phone. According to Miller, the phone user would be “exposed to four more years.” Miller also agreed with the Chief Justice’s assertion that three calls would mean twelve years. Justice Ginsburg concluded the colloquy by asking about the facts of this case, where petitioner made six calls. Miller responded by agreeing that petitioner would receive 24 years of exposure for “the one gram of cocaine on two occasions.”

Justice Scalia next pressed Miller on the facts of Rewis v. United States, which held that a statute prohibiting interstate travel with the intent to “facilitate” certain kinds of illegal activities could not be used to prosecute a patron of a gambling establishment. Miller first contended that the case did not “focus on the word ‘facilitate,’” but Justice Scalia was unpersuaded, noting that the case “certainly focused on the word ‘facilitate.’” Next, Miller argued that the statute in Rewis required intent; Justice Scalia responded by noting that § 843(b) requires proof of knowledge. Ultimately, Justice Scalia concluded that the case was “pretty close[ly]” on point.

Justice Breyer then questioned Miller about the legislative history. Concluding that the legislative history “makes . . . clear” that Congress wanted to make simple possession a misdemeanor, and remove it from the ambit of § 843(b), Breyer asked if there was any “justification . . . in the law” for permitting the government to fly in the face of Congress’s intent. Miller responded by observing that the government’s reading does not undermine the statute as a whole, since Congress thought that the use of a phone is a “separate element that introduces a distinct evil that Congress wanted to combat.” Next, Miller argued that there was “no legislative history specifically addressing” the change from “offense” to “felony” in § 843(b), implying that the change was not as significant as petitioner suggests.

Miller next faced questions from Justice Ginsburg about the effects of a felony conviction. To Justice Ginsburg, it seemed “odd that at one and the same time,” Congress would have decided to give reduce possession offenders’ liability and afford them a chance at rehabilitation, while subjecting a whole group of them to felony treatment “if they use a telephone.” Miller responded by suggesting that the use of a phone distinguishes mere buyers from those subject to the statute. In response, Justice Scalia suggested that Miller’s reasoning is “pretty parallel to what we’ve done in the buyer-seller rule.”

Justice Breyer then asked if Miller could name “another example in the law” where the law punishes a customer “as if he ran the business.” Miller could not name an example, but noted that the statute enumerates a “separate offense” with its “own penalty” rather than punishing customers as if they were distributors. In response, Justice Kennedy repeated his earlier question about the scope of prosecutorial discretion under the statute. In response to Miller’s statement that nothing in the U.S. Attorney’s Manual “specifically addresses this statute,” Justice Ginsburg asked about the charging policy of the Department of Justice to “charge the most serious offense supported by the facts.” According to that policy, observed Justice Ginsburg, prosecutors would always have to charge misdemeanant buyers using phones with violations of § 843(b). Miller responded by arguing that such charging decisions are a “legitimate aspect of the system.”

Justice Souter followed up with a question about the “multiplier effect” of the statute, asserting that it may be “without parallel in the law.” Miller retreated to the text of the statute, arguing that Congress intended for that multiplier effect to exist. After a brief discussion of the legislative history, Justices Souter and Ginsburg turned back to the practical effect of the government’s reading of the statute. Justice Ginsburg again asked whether Congress really would have intended drastically to reduce the punishment for mere purchasers, but then subject them to the serious consequences of a felony conviction merely for using a phone in their purchase. Justice Souter concluded by asking if the practical effect of Miller’s position was “render[ing] nugatory” Congress’s 1970 amendments to the statute. Miller responded by noting that there may be some instances where both the purchase and sale of a drug would be a misdemeanor, in which case § 843(b) would not apply.

In a brief rebuttal, Srinivasan noted that any ambiguities should be resolved in his favor under the rule of lenity. Justice Alito asked Srinivasan about whether his reasoning would also apply to a hypothetical scenario in which the government attempted to prosecute a buyer who used a machine gun to facilitate a drug purchase for personal use under a statute punishing the use of a machine gun in facilitating the commission of a felony. Ultimately, Srinivasan stated that the case would come out the same way, since the “initial predicate of that theory, which is that the person is facilitating the sale by buying, wouldn’t work.”

[edit] Opinion Analysis

In a brief opinion issued on Tuesday, May 26, the Supreme Court ruled 9-0 that an individual cannot be held liable under 21 U.S.C. § 843(b) for “facilitating” felony drug distribution by using a cell phone to arrange a misdemeanor purchase of drugs for personal use.

Writing for the Court, Justice Souter began by addressing the government’s argument that Abuelhawa’s conduct satisfies the plain meaning of “facilitate.” While conceding that the government was correct “on the literal plane,” Justice Souter noted that the government’s reading of “‘facilitate’ sits uncomfortably with common usage” since a sale presupposes two parties – a buyer and a seller – with specific roles. The term “facilitate” adds nothing to such bilateral transactions; a buyer does not facilitate a sale any more than a “borrower facilitates a bank loan.” Instead, common usage “limits ‘facilitate’ to the efforts of someone other than a primary or necessary actor in the commission of a substantive crime.”

Justice Souter then addressed the government’s argument that Congress intended § 843 to ratchet up the culpability of buyers using cell phones. First, Justice Souter observed that this argument simply does not square with Congress’s actions. In 1970, Congress downgraded simple possession of drugs to a misdemeanor and simultaneously limited § 843(b) only to facilitation of drug felonies. Therefore, accepting the government’s interpretation would require “upend[ing] the calibration of punishment set by the legislature.” Next, Justice Souter noted the oddity of the government’s interpretation as applied to the facts of Abuelhawa’s case: the use of a phone to make two small drug purchases would subject Abuelhawa to twenty-four years in prison, while the same purchase minus the phone would lead only to a two-year sentence. For Justice Souter, this disparity alone made the government’s interpretation “impossible to believe.”

Finally, Justice Souter dismissed the government’s contention that phone use is merely an aggravating factor designed to single out particularly culpable conduct. While there was “no question that Congress intended § 843(b) to impede illicit drug transactions by penalizing the use of communication devices,” Congress did not intend to do so by exposing a first-time buyer to such severe penalties. Indeed, Congress “used no language spelling out a purpose so improbable,” but instead chose its words carefully against a “background usage” contrary to that advanced by the government. In the end, wrote Justice Souter, “[t]he Government’s position is just too unlikely.”

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