On May 26, the Supreme Court unanimously reversed the felony convictions of Salman Khade Abuelhawa, who had been convicted under a criminal statute for using his cell phone to purchase drugs for personal use, conduct the statute was not intended to reach. The Law School’s Center on the Administration of Criminal Law filed an amicus brief in the case, U.S. v. Abuelhawalast fall.

The 9-0 decision reversed the ruling of the U.S. Court of Appeals for the Fourth Circuit, which had affirmed Abuelhawa’s conviction in the U.S. District Court for the Eastern District of Virginia, reasoning that the crime facilitated by petitioner’s use of his cell phone was not the purchase of drugs for personal use, a misdemeanor, but was the seller’s distribution of the drugs, a felony. The Fourth Circuit’s decision deepened an acknowledged conflict among the circuits concerning the proper interpretation of 21 U.S.C. § 843(b), which makes it unlawful to use a communications device to facilitate the commission of any act constituting a felony under the federal drug laws.

In this case, Abuelhawa was charged with seven counts of violating Section 843(b) for using a telephone to arrange at most two meetings to purchase drugs. Thus, instead of the maximum two years imprisonment he faced on two misdemeanor counts of simple possession, he was instead subject to seven felony convictions totaling 28 years in prison, and deportation.

"Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other," Justice David Souter wrote for the Court. "A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer's part is already implied by the term 'sale,' and the word 'facilitate' adds nothing."

"This case is exactly the sort that defines our mission: to help the Court understand when it is confronted with an example of prosecutorial overreaching,” said Anthony Barkow, the center's executive director. “The center is especially gratified that the Court decided the case unanimously and that, in reaching its decision, the Court cited Department of Justice charging policy. As explained in the center's brief, if the Court had reached a different outcome, DOJ policy would have required all federal prosecutors to charge as felons all drug buyers who use a cell phone to buy drugs. This result would have undermined Congressional intent in this area to treat sellers and buyers differently."

Posted on May 27, 2009