Stanford student Rakesh Kilaru previews the March 4th argument in Abuelhawa v. United States (08-192).  Please note that Rakesh spent the past two summers working for the Department of Justice and will be working at O’Melveny & Myers this summer.

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.

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.

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.

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.

Posted in Abuelhawa v. U.S., Uncategorized