Supreme Court reverses federal drug conviction and resolves circuit split
The Supreme Court of the United States recently ruled that a person who calls a drug dealer in order to make a misdemeanor drug purchase cannot be said to have facilitated the felony of drug distribution. In holding so, such a person cannot be convicted of the felony of using communications to facilitate drug distribution.
In Abuelhawa v. United States, the defendant, Abuelhawa, arranged to buy cocaine over the phone from a man named Mohammed Said. Prior to the arrangement, the FBI acquired a warrant to tap Said’s cell phone to listen for drug deals. The FBI monitored six calls that were placed between Abuelhawa and Said during which Abuelhawa arranged for two separate transactions for one gram of cocaine each time.
Under federal law, the two purchases by Abuelhawa were misdemeanors and the two sales by Said were felonies. However, federal law also provides that it is a felony “to use any communication facility in committing or in causing or facilitating” certain felonies including the felonies committed by Said. As a result, the government charged Abuelhawa with six felonies under this law for the six calls placed between Abuelhawa and Said. Abuelhawa moved for acquittal arguing that his calls to Said did not facilitate Said’s felonies. The District Court denied his motion, and Abuelhawa was convicted by a jury on all six felony counts.
On appeal, the Court of Appeals for the Fourth Circuit agreed with the District Court and reasoned that ‘facilitate’ should be given its common meaning: “to make easier or less difficult, or to assist or aid.” The Fourth explained that the phone calls made the sale of cocaine easier and possible, and thus, Abuelhawa did facilitate the felony distribution of cocaine. The Supreme Court granted cert in order to resolve a split among the circuit courts.
The Court disagreed with the Fourth’s interpretation and reversed Abuelhawa’s felony convictions. The Court reasoned that Congress provided a more lenient punishment for the buyers of drugs than for the sellers under these circumstances. If the government were allowed to increase the penalty of the buyer for facilitating the action of the seller, the calibration of punishment established by Congress would be upended.
The Court also looked at the history of the law. It reasoned that simple possession of a controlled substance was once a felony; however, Congress downgraded the crime to a misdemeanor in 1970. At the same time, Congress also limited the communications provision to prohibiting only the facilitation of a drug felony. Thus, Congress reduced the culpability for possession, and imposing a felony in such a case would be inconsistent.
The government further contended that Congress often adds aggravating factors to laws, and that the phone is simply an aggravating factor. However, the Court noted that there is no language stating that Congress wanted a first-time buyer’s six phone calls to attain a small amount of drugs for personal use to subject him to 24 years in prison when misdemeanor possession would only carry one year for each buy. Thus, the felony of facilitating a drug distribution should apply to those using phones to coordinate illegal drug operations and not to a first time buyer seeking a small amount for personal use such as Abuelhawa.
Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.
