Abuelhawa v. United States – Oral Argument – March 04, 2009

Media for Abuelhawa v. United States

Audio Transcription for Opinion Announcement – May 26, 2009 in Abuelhawa v. United States

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John G. Roberts, Jr.:

We’ll hear argument first today in Case 08-192, Abuelhawa v. United States.

Mr. Srinivasan.

Sri Srinivasan:

Thank you, Mr. Chief Justice, and may it please the Court: A person who purchases a small quantity of drugs for his own personal use commits a misdemeanor, not a felony.

The language of section 843(b) does not transform that person into a felon if he uses a phone in obtaining his drugs, rather than doing so strictly face to face.

I would like to begin with the text of the statute before turning to the textual history and the statutory context.

The language of section 843(b) covers the use of the phone in committing, in facilitating, or in causing a drug felony.

That language presupposes someone who is causing, facilitating, or committing a drug felony, and with respect to such a person, it makes them guilty of an additional offense in the nature of an aggravated offense if they use a phone in their committing, facilitating, or causing a drug felony.

Ruth Bader Ginsburg:

Can you be specific about who those persons would be?

You say not a misdemeanant drug user.

So who would be caught in the 843(b)?

Sri Srinivasan:

It would depend on which prong you’re referring to, Justice Ginsburg.

The — the committing prong refers to persons who are committing the underlying drug felony.

Ruth Bader Ginsburg:

Yes.

Sri Srinivasan:

And the facilitating prong would refer to persons who are aiding or abetting the underlying drug felony.

Anthony M. Kennedy:

Well, suppose you had the girlfriend phone and say: My boyfriend needs drugs; meet him at the corner of 3rd and Main.

What crime does the girlfriend commit?

It seems to me that it’s pretty clear that she’s under 843(b) facilitating.

Sri Srinivasan:

She — she may–

Anthony M. Kennedy:

It seems to me that she may then have committed a felony, and yet it seems to me that her culpability is certainly no — no greater, if you’re talking about your — the policy of your statute, than the — than the man that uses the drugs.

Sri Srinivasan:

–Well, I think I’m speaking first and foremost about the terms of the statute, Justice Kennedy.

And to the extent she fits within the terms of the statute, it would be because she doesn’t benefit from the buyer-seller rule.

The buyer-seller rule establishes that buyers of drugs aren’t aiders and abettors of the distribution of drugs, and equivalently they wouldn’t be treated as facilitators of the distribution of drugs.

Now–

Anthony M. Kennedy:

Maybe Justice Ginsburg would like some further illustration, but I thought that that was one illustration in answer to her question.

Ruth Bader Ginsburg:

Yes, I would like to — who does this target?

The girlfriend is — is a good law school exam type question, but in the real world who is covered?

Sri Srinivasan:

–Well, I think the classic case of somebody under the facilitating prong would be the classic aider and abettor, for example a lookout.

If there were a lookout on the scene of a drug transaction, and they used a communication facility to communicate with the distributor to let them know that buyers were arriving, or that law enforcement was in the neighborhood and the person ought to refrain from engaging in the transaction for the time being.

That would be the sort of person that comes within 18 U.S.C. as an aider or abettor of drug distribution and also would come within 843(b) as a facilitator of drug distribution.

Samuel A. Alito, Jr.:

The buyer-seller rule would prohibit the prosecution of a buyer on the theory that the buyer aided and abetted — aided and abetted the seller.

Samuel A. Alito, Jr.:

But I don’t see why it applies here.

This is not a situation like that.

This is a different crime, using a communication facility in facilitating the commission of a felony.

Sri Srinivasan:

Well, it deals with use of a communication facility, but it deals with use of a communication facility only with respect to persons that are committing, facilitating, or causing a drug felony.

Antonin Scalia:

What is — what I was going to — what is the purpose of saying “who uses a communications facility”?

Is that purely a jurisdictional hook?

Sri Srinivasan:

No, I don’t think it’s a jurisdictional hook.

The — there would already be Federal jurisdiction by virtue of the underlying felony, and so what Congress was concerned with in penalizing the use of a phone as in the nature of an aggravated offense is that, I think, Congress thought that phones were being used to make detection of drug trafficking more difficult, and in particular at the level of someone who was at the top of the food chain in — in the architecture of a drug distribution chain.

That person was able to avoid detection because they never came into physical contact with drugs and they didn’t come into physical contact with the persons who were engaging in the transaction on the street.

John G. Roberts, Jr.:

You keep talking about phones, and you began by saying this covers phones, but this was — language was added in 1970?

Sri Srinivasan:

Right.

John G. Roberts, Jr.:

Well, there weren’t cell phones of the kind you have now.

I think this was directed at the beepers, right, when those were around then, or — or land-based phones or something like that.

And the technology has so expanded that the reach of the statute has so expanded in a way that brings in a lot more casual users than was the case before.

And I just don’t know how that issue of statutory interpretation is supposed to be resolved.

Assuming I’m right that the technology has dramatically expanded the reach of the statute, even if you think it’s covered by its terms, how is that issue addressed?

What’s the right answer there?

Is it because the terms still cover it, that’s — the breadth has expanded, or because this is something new technologically that the statute shouldn’t be construed that broadly?

Sri Srinivasan:

No, I don’t — our argument doesn’t depend on assuming that cell phone usage was significant in the 1970s.

Even in 1970, the statute would exclude from its sweep buyers of drugs.

John G. Roberts, Jr.:

Well, I know, but let’s assume I don’t agree — let’s assume I agree with that only in the context of the 1970s technology.

Sri Srinivasan:

Uh-huh.

John G. Roberts, Jr.:

What’s the answer then?

Sri Srinivasan:

Well, if you agree with it–

John G. Roberts, Jr.:

It reminds me of these old hypotheticals.

You know, before there were automobiles, you had to have someone with a lantern walk in front of your carriage, and they don’t change the law and it still turns out to be the law when you’re driving your car, and it doesn’t make any sense.

But, I mean, is there a case of ours that says what to do in that case, in such a situation of statutory construction?

Sri Srinivasan:

–I’m not aware of a case that speaks directly to that question, Mr. Chief Justice.

But our argument doesn’t depend on that logic, because even in 1970, certainly land lines were well in use, and in fact the indications are that that’s what Congress was principally concerned with in this statute.

And even — and at that time we would make the argument, just as now, a person who used the telephone in buying drugs for personal use wouldn’t come within the ambit of the provision because the text of the provision goes to someone who uses a phone in committing, in facilitating, or in causing the commission of a drug felony.

Sri Srinivasan:

And so if you’re not someone who’s facilitating the commission of a drug felony in the first place, then you can’t be charged as using a phone in facilitating a drug felony.

And the reason that a buyer for personal use, whether we’re talking about 1970 or now, wouldn’t be considered a person who is using a phone in facilitating a drug felony is because of the buyer-seller rule.

Buyers aren’t aiders and abettors of the felony distribution, and by the same token they shouldn’t be considered facilitators of felony distribution.

Antonin Scalia:

Your argument sort of assumes — more than sort of assumes; it assumes — that facilitating is the same as aiding and abetting.

If they meant aiding and abetting, it’s a — it’s a classic criminal law term, they could have said “aiding and abetting”.

They didn’t.

They used a different term, “facilitating”.

Why — why should I think “facilitating” means “aiding and abetting”?

Sri Srinivasan:

For several reasons, Your Honor.

First, their definitional equivalence.

Black’s Law Dictionary defines “facilitating” as

“an act of aiding or helping or making easier. “

and it in turn defines “aiding and abetting” as

“to facilitate the commission of the crime. “

So they mean the very same thing.

And I don’t think there’s anything talismanic about the particular formulation “aiding and abetting”, and in fact the Court established that in its opinion in Gebardi.

That statute dealt with the Mann Act, which barred transporting a woman for purposes of engaging in immoral acts or aiding or assisting in that transportation or causing the transportation.

So that statute uses a different formulation.

John G. Roberts, Jr.:

Well, but I mean, it’s natural to view the woman in that situation more as a victim than as someone facilitating the crime.

Sri Srinivasan:

Well–

John G. Roberts, Jr.:

I’m not sure that would extend to your case.

Sri Srinivasan:

–Well, I don’t know — the opinion doesn’t stand on the rationale that the woman would be a victim.

It stands on the rationale that Congress, when it defined the primary offense, which is transporting–

Anthony M. Kennedy:

Well, but that was the same word.

That was “transporting” in both instances.

Here you have “purchase”, one, “facilitating” with a telephone, two.

That’s different.

Sri Srinivasan:

–Well, it doesn’t — it doesn’t use the word “purchase”, with respect, Justice Kennedy.

It uses the words

“commit, facilitate, or cause. “

Sri Srinivasan:

Those are the three persons who come within section 843(b).

And in precisely parallel fashion, under 18 U.S.C. 2, the general aider or abettor provision, that provision applies to persons who commit the underlying offense, who aid or abet the underlying offense, or who cause the underlying offense.

And that precisely parallel structure reinforces that 843(b) serves the same purpose and means the same thing as “aiding or abetting” and the other words that apply in section–

Anthony M. Kennedy:

Well, I’ll think about it, but I think your — Gebardi does involve one statute, one act, transportation.

This involves two.

The underlying felony is the purchase or possession, and the second statute is use of the telephone.

So I don’t — I’ll think about it, but I don’t think Gebardi works.

Sri Srinivasan:

–I don’t think that’s a distinction that ultimately makes a difference, Justice Kennedy, for the following reason: This statute does deal both with someone who is involved in the underlying felony and use of the phone on top of that, but it’s in the nature of an aggravated offense.

It presupposes somebody who is committing, causing, or facilitating the underlying drug offense, and then it makes them guilty of an aggravated offense if they use a phone in the course of doing so.

So the first question you’d have to ask is whether the person is committing, facilitating, or causing the drug felony in the first place.

And if I could use one hypothetical statute to illustrate that.

If this statute, instead of saying “facilitating”, dealt by terms with use of a phone in aiding or abetting a drug felony, you would still have use of the phone in addition to the underlying drug felony.

But the first question I think one would ask in looking at that provision is whether the person who’s accused of violating the law were aiding or abetting a drug felony.

Antonin Scalia:

What other — this statute does not just apply to facilitating a drug offense.

It applies to any of the felonies covered by subchapter 2 of the relevant chapter.

I agree, it seems a little strange to have what is a misdemeanor by a buyer converted into a — into a felony just by use of the phone.

What other situations under other felony provisions would arise that create a similar oddity?

Do you have any in mind?

Sri Srinivasan:

I don’t know that there are other provisions that would create a similar oddity.

I think this one is particularly anomalous, the use of a statute to penalize somebody who otherwise would be a misdemeanant, except that they use a phone in the course of their purchase for personal use.

The classic situations in which the statute does apply, which aren’t anomalous because they make sense given what Congress had in mind, would be the use of a phone to facilitate drug distribution, if someone were a lookout, again, or if someone were a trafficker and they instructed, for example, retail sellers where to go to pick up stock, a stock house of drugs.

John G. Roberts, Jr.:

This really isn’t the transformation of a misdemeanor into a felony.

It’s a separate — separate activity and an activity that facilitates the commission of a crime.

It’s much easier to carry out your drug distribution business if people are calling you on their cell phones than if they have to meet you in person or call from a land line.

Sri Srinivasan:

Well, two steps to respond to that question, Mr. Chief Justice.

First, in terms of whether it makes it easier, I think one could say the very same thing in an aiding or abetting prosecution.

Aiding or abetting means the same thing as facilitating, and so you could make the argument, I think, that buying drugs and engaging in the sorts of actions that naturally accompany the purchasing enterprise make the sale easier, including directing where the sale is going to occur and things like that.

But we know already that buyers of drugs aren’t considered aiders and abettors of drugs for purposes of liability under 18 U.S.C. 2.

And I think by the same token they shouldn’t be considered facilitators of drugs for purposes of section 843(b).

Samuel A. Alito, Jr.:

What if–

Sri Srinivasan:

And with respect — I’m sorry?

Samuel A. Alito, Jr.:

–What if the — the defendant — what if the defendant who is a buyer of — of a quantity for personal use does more than simply purchase the drugs?

What if information is communicated in the telephone conversation that makes it easier for the transaction to take place or less likely — less likely that there is — that the person is going to be apprehended?

Would that person fall within the statute?

Sri Srinivasan:

I don’t think so, Justice Alito.

I probably would have to know more about exactly what they did, but if it is a — if what they did is a normal incident of purchasing, then I think it would fall within the buyer-seller rule.

Otherwise, I think the government, under an 18 U.S.C. 2 prosecution for aider and abettor liability, could make precisely the same sorts of arguments.

The government could argue, for example, that this person didn’t just buy drugs.

They instigated the purchase because they made the first phone call.

They didn’t accept the first phone call.

They made the first phone call, and so that takes them outside the buyer-seller rule.

But I don’t think that argument would work under 18 U.S.C. 2 because making the first phone call is a normal incident of purchasing.

And, of course, someone who purchases drugs for personal use is going to want to take measures to make sure that the purchase goes through.

Their ultimate objective is to get their hands on the drugs.

And so–

Ruth Bader Ginsburg:

This statute doesn’t — it doesn’t differentiate between buyer and seller in terms of who makes the call.

I gather the purchaser for his or her own use would be just as susceptible to this statute if the dealer called and said: I’ve got a gram of cocaine; I know you’re interested in having it.

Sri Srinivasan:

–That’s — that’s right, Justice Ginsburg.

It would apply equally in that situation, and from our perspective that points up even more of the anomaly in applying it to this factual context.

And that would equally be the case under 18 U.S.C. 2.

One could draw distinctions between who makes the initial phone call and other sorts of normal incidents of the purchasing enterprise.

But I don’t think, Justice Alito, that because someone engages in drug — in — in a transaction in a way that makes it particularly likely that the purchase is going to be successful, that that alone would take you outside the buyer-seller rule.

Samuel A. Alito, Jr.:

What would happen in the situation where the person who buys the drug is guilty of — of a felony?

It’s an instance of felony possession.

Wouldn’t the application of your understanding of the buyer-seller rule in that situation lead to the conclusion that even that person could not be convicted under this statute for facilitating the commission of the felony of sale?

Sri Srinivasan:

No, I don’t think so, because the buyer-seller rule deals with the circumstance in which the way the person is — is associated with a felony is they’re associated with the distributor’s felony.

And so what the buyer-seller rule says is that a buyer isn’t an aider and abettor of the seller’s distribution, and I think by the same token shouldn’t be associated with the seller’s facilitation.

But in your hypothetical, where the buyer himself is committing a felony because his possession because of certain characteristics associated with it make it a felony, the buyer himself would be committing a felony.

Samuel A. Alito, Jr.:

Well, that may — that may be true, but the buyer there still could not, under your theory, be convicted of facilitating the seller’s felony of selling the drugs.

Sri Srinivasan:

Right, couldn’t be convicted of facilitating the seller’s felony, but would fall within the ambit of section 843(b) in any event because they would have used a phone in connection with their own felony.

John G. Roberts, Jr.:

Your gloss on this statute makes — gives rise to some difficult questions of proof.

I mean, what if it’s — I don’t know — 10 pounds of something, and the guy says, well, I was just buying in bulk for personal use, like a Costco drug dealer.

[Laughter]

Sri Srinivasan:

Well, I — I don’t know about that, but — but I think what I do know is it doesn’t create any greater problems of application than already exist under Federal drug laws.

Because the Federal drug laws bar both possession for personal use under the civil possession statute, section 844, and possession with intent to distribute, under 841.

And so courts and juries and the government already have to make those sorts of decisions, and I don’t know that they’ve been particularly difficult to make.

They have to draw a distinction between the sorts of quantities and other aspects of the offense that bring it within the possession with intent to distribute land or whether the possession is of such a small quantity, and there aren’t other associated characteristics of the offense that make it possession for purposes of personal use.

That distinction is one that’s already embedded in the fabric of the drug laws, and we’re just applying the same distinction for purposes of this statute.

I don’t think we’re making it any more complicated than it already is.

Anthony M. Kennedy:

If the government were to prevail here, I assume that it would then as a result have a much larger, more expansive discretion in charging and plea bargaining and — and et cetera.

Other than the rule of lenity, is there anything in our cases that indicates that we should be cautious about giving the government that authority so that that’s an aid in our interpretation, or is that just all within the rule of lenity?

Sri Srinivasan:

Well, it’s — it’s definitely within the rule of lenity, and I think that’s the principal place that it’s found.

Anthony M. Kennedy:

Other than–

Sri Srinivasan:

And I don’t — I don’t — I don’t know of any background principle that one would bring to bear on that other than the — the normal tools of statutory construction that I’ve already talked about in the first place, which is you look at the text, and you look at the statutory history, and you look at the statutory context.

Anthony M. Kennedy:

–No background principles either way on granting the prosecutors vast discretion in charging–

Sri Srinivasan:

Well, I think as–

Anthony M. Kennedy:

–as it applies to statutory interpretation?

Sri Srinivasan:

–Well, I think as a general rule we ought to be circumspect about doing that.

My — my understanding is that circumspection is given voice through the rule of lenity.

But a background principle of particular applicability here is — is the statutory history.

It — it is the statutory history.

And I’m speaking now in terms of the enacted statutory text; not legislative history, but the history of the enacted statutory text.

And what that bears on is not the word “facilitating”, which is what the buyer-seller rule particularly pertains to, but the word “felony”, which is another word in the text of the statute.

And so Congress could have barred the use of a phone in connection with any drug offense, including a drug misdemeanor, but Congress pointedly didn’t do so.

It barred the use of a phone in connection only with a drug felony.

And because it chose to limit the offense to the use of a phone in connection with a drug felony, the effect is to exclude from the purview of the statute use of a phone in connection with a drug misdemeanor.

Now, Petitioners–

Ruth Bader Ginsburg:

That was changed in 1970, wasn’t it?

Wasn’t the text “offense” originally, and then Congress changed it to “felony”?

Sri Srinivasan:

–That’s right, Justice Ginsburg.

Sri Srinivasan:

Before the Controlled Substances Act, the communication facility provision barred the use of a phone in connection with any drug offense.

And in 1970 in the Controlled Substances Act, Congress narrowed its reach to encompass only use of a phone in connection with a drug felony.

So it excluded use of a phone in connection with a drug misdemeanor, and that’s significant in two respects.

One is, even without reference to the statutory context of the 1970 Controlled Substances Act, it’s significant because Congress excluded use of a phone in connection with a drug misdemeanor.

Petitioner used a phone in connection with his misdemeanor, simple possession.

But under the government’s argument, the very same conduct by the very same person would be brought back into the fold of the statute.

Even though Congress excluded it, it would be brought back into the fold of the statute by recasting it as facilitating the dealer’s felony.

And the mode of analysis the Court used in Gebardi and the mode of analysis that underlies the buyer-seller rule to begin with would — would lead us not to infer that Congress would have intended that result.

But in terms of the history and the statutory context which you were alluding to, Justice Ginsburg, it is significant for that reason, as well, because the context in which Congress narrowed the reach of section 843(b) so that it only encompasses facilitation of a felony and not facilitation of a misdemeanor is one in which Congress, in the 1970 Act, sought to extend leniency and afford a chance at rehabilitation to drug users.

And that’s manifested not in legislative history but in the statutory text itself, because Congress penalized simple possession for personal use as a misdemeanor; whereas, the receipt of drugs previously was a felony, regardless of the purpose of the possession, whether it was for use or for distribution.

But Congress did more than that, because in immediately adjacent provisions to the one in which it narrowed simple possession to a misdemeanor, it also enacted a provision which is now found in 18 U.S.C. 3607, which allowed a simple possessor who is a first-time offender to avoid any conviction at all if they successfully complete a period of probation.

And Congress went further still because it also enacted, in another adjacent provision, further relief for a first-time simple possessor who is under the age of 21.

With respect to that person, it allowed the person to obtain a complete expungement of the criminal records associated with the arrest.

John G. Roberts, Jr.:

So you would have lost this case before 1970–

Sri Srinivasan:

Yes.

John G. Roberts, Jr.:

–because the incongruity on which you rely–

Sri Srinivasan:

Well, the basis–

John G. Roberts, Jr.:

–didn’t exist then?

Sri Srinivasan:

–Yes.

Before 1970 it would have been a very difficult climb because — not only because the communication facility applied to any drug offense, but because simple possession wasn’t a misdemeanor.

And–

John G. Roberts, Jr.:

Right.

So the scope of this language was changed sub silentio?

Sri Srinivasan:

–It — it wasn’t sub silentio.

It was explicit.

John G. Roberts, Jr.:

No, but this language: 1970, but not after 1970, because of the changes in some other sections?

Sri Srinivasan:

No, well, it’s in part because of the changes in this section.

This section changed from “any offense” to “felony”, so it’s the text of this section itself.

And the buyer-seller rule equally applied in — before 1970.

It’s just that before 1970 you wouldn’t have had to show that the buyer was associated with the seller’s felony, because the buyer was associated with his own offense and that was enough, because at that point the buyer’s offense was a felony.

Sri Srinivasan:

And then the law, section 843(b), didn’t care whether it was a felony because it applied to any drug offense.

It’s only after 1970 that this distinction becomes important, because after 1970 it’s clear that the buyer for personal use doesn’t use a phone in committing a drug felony.

What he’s committing is a drug misdemeanor.

So you have to find some way, if you’re the government, to make him associated with the drug felony.

And way that arises–

John G. Roberts, Jr.:

Well, no.

That question goes to whether or not the distribution was a felony.

Sri Srinivasan:

–Right, which is the only avenue available after 1970.

There was a different avenue available before 1970, because before 1970 a purchaser of drugs would — if they used a phone in connection with their purchase, would have used a phone in connection with a drug offense.

And now the statute is different in two respects: One, it only covers use of a phone in connection with a drug felony; and, two, in another provision, Congress narrowed the simple possession offense from a mis — from a felony to a misdemeanor.

And Congress did so with respect to the historical context in an immediately adjacent provision.

It narrowed 843(b) in an immediately adjacent provision to the one in which it provided that the simple possessor could avoid any conviction at all and the one in which it provided that a youthful offender could obtain a complete expungement of its records.

And–

Ruth Bader Ginsburg:

You didn’t — I haven’t heard you question so far the government’s rationale.

The reason Congress did this is it’s more difficult to detect a drug deal when it’s by telephone than if it were an encounter on the street or in an apartment.

You have not questioned that?

Sri Srinivasan:

–No, we don’t question that, Your Honor, but I’d like to make two points with respect to that: First of all, it may be more difficult — the use of the telephone may be more difficult, and that may be the animating purpose that Congress sought to address through this provision.

But that purpose is substantially served even in the context of this case, because–

Antonin Scalia:

I don’t understand what you’re saying.

The use of a phone may be more difficult?

Sri Srinivasan:

–Use of a phone may make detection more difficult, and that may be the animating purpose — excuse me.

That may have been the animating purpose behind the enactment of this provision.

But that purpose is substantially served, even if you accept our understanding of the statute on the facts of this case, because the seller comes squarely within the terms of section 843(b).

So because the seller comes within the terms of section 843(b), the statute is already operating against the seller’s use of a telephone.

The question in our case is whether the buyer also comes within the ambit of section 843(b).

And because section 843(b) presupposes someone who is committing, facilitating, or committing a drug felony, the buyer doesn’t come within the reach of section 843(b) because he’s not committing, causing, or facilitating a drug felony in the first place.

The seller may be, but the buyer is not.

The statutory purposes are still served by virtue of penalizing the seller.

If the Court has no further questions, I’d like to reserve the balance of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

John G. Roberts, Jr.:

Mr. Miller.

Eric D. Miller:

Mr. Chief Justice, and may it please the Court: Section 843(b) prohibits the use of a communication facility in causing or facilitating the commission of any act constituting a felony under the Controlled Substances Act.

The court of appeals correctly held that the statute is violated when a person uses a communication facility such as a telephone to purchase controlled substances unlawfully.

A call to order drugs both causes and facilitates a felony distribution of drugs.

There’s 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.

John G. Roberts, Jr.:

So two people across the park — and they know there’s a drug dealer on the other side, the one waves and the dealer comes over, the other calls on the cell phone and the dealer comes over; the other gets four more years?

The phone user gets four more years?

Eric D. Miller:

The phone — phone user is exposed to four more years.

There’s no mandatory minimum–

John G. Roberts, Jr.:

Suppose he calls three times.

He’s exposed to 12 more years, right?

Eric D. Miller:

–That’s right.

Congress — I mean, those two cases are different and Congress made the judgment.

Antonin Scalia:

Not just that, he gets a felony on his record.

Before that he would have had just a misdemeanor; right?

Eric D. Miller:

That’s right.

Anthony M. Kennedy:

And does the call — does the call have to be completed — I mean, if he gets an answer saying,

“Your call is important to us, but we’re serving someone else? “

[Laughter]

Eric D. Miller:

If the call — the statute requires that the communication facility be used.

And if the call doesn’t actually go through, it would be difficult to see how you would use the–

Ruth Bader Ginsburg:

But if he leaves a message?

Eric D. Miller:

–If he leaves the message and the message in some way causes or facilitates a felony drug distribution, then, yes, he has used the communication facility.

Ruth Bader Ginsburg:

In this case we have two separate episodes, each involving one gram of cocaine?

Eric D. Miller:

That’s correct.

Ruth Bader Ginsburg:

And there were a total of seven phone calls?

Eric D. Miller:

There were six.

The government dismissed one of the counts.

It was six counts that went to trial, six phone calls.

Ruth Bader Ginsburg:

So that would be an exposure–

Eric D. Miller:

Of 24 years.

Ruth Bader Ginsburg:

–Twenty-four years for the one gram of cocaine on two occasions.

Do you agree that it doesn’t make any difference who initiates the call?

That is, if the seller says — seller calls the buyer, and says, I understand that you are in the market for one gram of cocaine, I’ll sell it to you.

Is the buyer similarly subject to this statute?

Eric D. Miller:

Just getting that call by itself wouldn’t subject someone to the statute.

But if you get the call and then engage in a conversation–

Ruth Bader Ginsburg:

Yes.

Eric D. Miller:

–with the dealer where you are using the telephone to cause–

Ruth Bader Ginsburg:

Yes, we are assuming the purchase is made in either case.

Eric D. Miller:

–Yes.

Ruth Bader Ginsburg:

So what you’re saying is it doesn’t matter who initiates the call?

Eric D. Miller:

That’s right.

It–

Antonin Scalia:

Counsel, what do you do — the case that I find pretty close to what we have here is Rewis v. United States, which involved a statute that prohibited interstate travel with the intent to, quote,

“promote, manage, establish, carry on, or facilitate. “

certain kinds of illegal activities, one of which would have been gambling.

And we said the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illegal activity.

So it wouldn’t have been facilitating a gambling operation simply to be engaging in interstate travel for the purpose of playing the tables.

Eric D. Miller:

–I think there are a couple answers to that, Your Honor.

First, Rewis, as you say, was construing the Travel Act.

It didn’t focus on the word “facilitate”, and it certainly didn’t set out a general–

Antonin Scalia:

Oh, certainly, it focused on the word “facilitate”.

That was the whole purpose of that passage.

It said — it quoted

“promote, manage, establish, carry on, or facilitate. “

and the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illegal activity.

Eric D. Miller:

–That’s right, and — and as — as indicated by the passage you’ve just quoted, the focus of the Court there was on the traveler’s purpose.

The Travel Act requires intent.

Section 843(b) is different in that it’s satisfied by knowingly or intentionally using a phone.

Eric D. Miller:

So the Court in Rewis said, quite reasonably, that someone whose only purpose is to be a customer of an unlawful enterprise doesn’t have the intent to facilitate — and significantly, although the Court’s quotation of the statute ends at “facilitate”, it’s not just to facilitate any unlawful activity; it’s to facilitate the promotion, management–

Antonin Scalia:

Don’t you think that the “knowingly” in this statute also requires that you are knowingly facilitating?

Eric D. Miller:

–It does require.

Antonin Scalia:

Okay.

So this is the same thing here.

Eric D. Miller:

But it doesn’t have to be — it doesn’t have to be that you have the purpose of facilitating the seller.

It’s sufficient that you know that the seller’s–

Antonin Scalia:

Well, this didn’t mention — this statute didn’t mention purpose, either, did it?

Eric D. Miller:

–It — it said “intent”.

It does not include the word “knowledge”, and the Court in the passage you just read construed that to require–

Antonin Scalia:

An intent–

Eric D. Miller:

–an inquiry into the traveler’s purpose.

And it’s also significant that–

Antonin Scalia:

–I find it pretty close, I really do.

Eric D. Miller:

–Well, one other difference, then, Your Honor, is that the facilitation that has to take place under the Travel Act is facilitation of the promotion, management, establishment, or carrying on of unlawful activity, which is defined not as a discrete crime but as a business enterprise involving gambling.

So you have a statute that’s focused on sort of management or direction of an ongoing enterprise; whereas, here under 843(b), it’s sufficient to facilitate a discrete act.

Stephen G. Breyer:

Why are you going through all this sort of parsing?

I mean, I’m looking at the legislative history as well as the statute in 1970.

What is your answer to the last point that they made, that what Congress wanted to do was to make simple possession a misdemeanor?

That’s why they changed the word, which — “offense” to “felony”.

That’s why they changed the word “felony” to “misdemeanor”.

And I can’t imagine why else they amended the statute, and just because I was curious, I looked it up, and that’s why they amended it, right?

So — so I mean, the legislative history makes that clear.

So what you’ve done is figure out a way — the government’s figured out a way to do the opposite of what they want, to take people who simply possess and transform it into a felony.

Now, what justification is there in the law for doing that?

Eric D. Miller:

Well, I think there are a couple of answers to that: First is that section 843(b) doesn’t apply to people who simply possess.

It applies to people who possess by using a phone to facilitate a felony distribution.

And Congress — I mean, the very existence of the statute demonstrates that Congress thought that the use of a phone is a separate element that introduces a distinct evil that Congress wanted to combat.

And as to the change in the felony language–

Stephen G. Breyer:

As to the first, I said “subset”.

Stephen G. Breyer:

I didn’t say you undermined the entire statute.

I said you took a subset of people who simply possessed, and that subset you transformed into felons.

Now, your response I guess is just what you said.

Eric D. Miller:

–Well, yes–

Stephen G. Breyer:

And what’s the second?

Eric D. Miller:

–and also that the reason for the — as you know, the predecessor to 843(b), which was section 1403, referred to causing or facilitating any offense.

All of the enumerated offenses were felonies.

In 1970, they changed the word “offense” to the word “felony”.

But that — part of the reason for that — there is no legislative history specifically addressing the reason for that change.

But part of the reason we can infer is that the 1970 statute created a whole host of misdemeanors, of misdemeanor regulatory offenses under the Controlled Substances Act.

So one good example is section 829, which prohibits distributing a controlled substance without a prescription, and that’s an offense — that’s a misdemeanor, and that could easily be caused or facilitated over the phone, if somebody calls a pharmacist.

And so that — where both parties to the transaction are only engaging in a misdemeanor, that’s something that 843(b) would not apply to.

Ruth Bader Ginsburg:

But we do know that — that Congress drew a line it hadn’t drawn before between the own-purpose users and people who were in the trafficking business, and it expressed sympathy for the — or leniency, a policy of leniency.

But the difference between the classification felony and misdemeanor is huge in terms of consequences for a person’s life.

So let’s take the defendant in this case.

If he becomes a felon, rather than a misdemeanant, even if it’s his first time and it’s only one gram, he loses a lot of rights, doesn’t he?

Eric D. Miller:

Yes.

Yes, that’s right.

But I — and I think — but one other change that Congress made to 843(b) in 1970 that’s significant is that it eliminated the mandatory minimum.

There was under the predecessor–

Ruth Bader Ginsburg:

Yes, but I’m speaking about the post consequences.

Eric D. Miller:

–Yes.

Yes.

It–

Ruth Bader Ginsburg:

Like — let’s take a young person.

It has an effect on student loans, government loans?

Eric D. Miller:

–Yes.

Ruth Bader Ginsburg:

And it may be that in certain States voting rights are removed, and there is on this person’s record forever that he is a felon.

It just seems odd that Congress would have at one and the same time, in the same statute, say, we want these — to give these people a chance, and if they are in a rehabilitation program and they make it, they won’t even get any charge, not even a misdemeanor charge, and then say, but a whole group of them are going to be treated just like traffickers if they use a telephone.

It’s hard — these two would seem to be working at odds with each other.

Ruth Bader Ginsburg:

So mustn’t the Court then try to reach some accommodation, some harmonization of these two provisions?

And it was suggested that we do that by saying “facilitation” — “causing” in this context — means the same thing as “aiding and abetting”.

Then we have the buyer-seller rule for the aider and abettor, and then we have made these two provisions harmonious.

Eric D. Miller:

I think the buyer-seller principle and the limitation on aiding and abetting and accessory liability, as this Court recognized in Gebardi, doesn’t apply here, because the principle that the Court set out in that case, and it has been recognized in subsequent cases, is that — is that when Congress criminalizes or punishes one party to a transaction, that inevitably involves a second party.

The second party who is left unpunished by the statute doesn’t get swept back in under section 2 as an aider and abettor.

That principle doesn’t apply here because, although the existence of a purchaser or a receiver of drugs is an inevitable incident of a distribution, the existence of a purchaser who uses a phone is not.

The whole point of this statute is that the use of a phone is a separate and distinct element that introduces a different evil and that Congress wanted to combat that.

The other — the other reason that aiding and abetting–

Antonin Scalia:

Except that the use of a phone in this statute is applied to the seller as well as to the buyer.

I mean, it seems to me it is parallel: use of a phone to commit the offense by the seller, and you want us to similarly sweep in the facilitating of the offense by the use of the phone by the buyer.

It seems to me pretty parallel to what we’ve done in the buyer-seller rule.

Eric D. Miller:

–The — the statute — but by its terms makes clear that the person using the phone and the person committing the felony don’t have to be the same person, and I think I understood Petitioner to — to acknowledge that.

The statute doesn’t say

“knowingly or intentionally use a communication facility in causing or facilitating his or her commission of a felony. “

Stephen G. Breyer:

Is there another example in the law, anywhere in the law, where — and there may be, I’m asking — which you’ve come across, where we have an illegal business and there is a customer; and all the customer does is be a customer; and is there an example where just because he’s a customer in a statutory provision that normally has a lesser penalty — all right; imagine those circumstances — you still can punish him as if he — as if he ran the business?

Eric D. Miller:

I’m not aware of any, and I don’t think–

Stephen G. Breyer:

I’m not aware, and why should this be the first?

Eric D. Miller:

–But this — this isn’t one, because this isn’t a case that punishes people just for being a customer.

It’s a case — it’s a statute that punishes people for being a customer–

Stephen G. Breyer:

It’s the way they’re a customer.

Eric D. Miller:

–and using a phone–

Stephen G. Breyer:

The way they’re a customer is they use the telephone, and I guess one side thinks that’s not a big deal, and the other side thinks that, anyway, in terms of what Congress thought, it’s a tremendously big deal because Congress was really worried about telephones.

Okay, that’s possible.

So can you get a parallel that’s like that?

Eric D. Miller:

–There are — there’s a whole host of statutes that punish–

Stephen G. Breyer:

What one comes to mind?

Eric D. Miller:

–I mean, the wire fraud statute punishes conduct that might not be a Federal offense at all, but for the fact that somebody used–

Stephen G. Breyer:

That’s the jurisdictional hook.

What I’m looking for is there’s a business and a customer, the statute punishes the business worse than the customer.

Now, we get the customer as if he were a business participant.

Stephen G. Breyer:

That’s what I’m looking for, where it’s the way he does it — i.e., whether he uses a telephone or whether he uses a telegram or semaphore signals or — where the — where the means of communication here or something like that suddenly transform him?

Anything else that comes to mind?

I didn’t expect there to be, but I just thought maybe you’d think of an analogy, which would be helpful.

Eric D. Miller:

–Well, I mean, if — as we identified on page 25 of our brief, a number of statutes where the use of a communication facility is an element of the offense, and the conduct that was covered by those statutes in many cases might not be a Federal offense at all.

Anthony M. Kennedy:

Carry — carrying a weapon.

A lot of statutes punish more severely for carrying weapons.

Eric D. Miller:

Right.

And I think, to be clear, this is not — this is not a statute that punishes people, punishes customers as if they were distributors or that aggravates an underlying felony.

This is a separate offense; it has its own penalty; it put the–

Anthony M. Kennedy:

But it — can you tell me, how does it work?

The district — the United States Attorney in one State, one district, has a case like this where there are four different phone calls; and he doesn’t like the looks of the defendant, or for some reason he can charge him, and in the neighboring jurisdiction the United States Attorney does not.

Are there guidelines?

Does the Department of Justice control this in each case?

Is there some manual where we could see what the rules are for charging?

Is it all at the discretion of the United States Attorney?

Eric D. Miller:

–I mean — I’m not aware of anything in the U.S. Attorney’s Manual that specifically addresses this statute, but of course the Court recognized in Batchelder that prosecutors legitimately have discretion when there are different criminal statutes that cover the conduct, and–

Ruth Bader Ginsburg:

What about the — the statement that in the manual — maybe this is incorrect — but that the charging policy of the Department of Justice instructs prosecutors to charge the most serious offense supported by the facts?

And if that’s true, then the Assistant U.S. Attorney would have no choice.

The most serious offense is not misdemeanor of simple possession, but it is the violation of 843(b).

Eric D. Miller:

–That’s if they bring charges at all, and of course that policy doesn’t require prosecutors to — to bring charges.

Ruth Bader Ginsburg:

Ordinarily–

David H. Souter:

I think we know from this case they’re likely to bring charges.

Eric D. Miller:

Well, I mean–

Ruth Bader Ginsburg:

–Is that the policy, first of all?

That they’re supposed to charge the most serious offense supported by the facts?

Eric D. Miller:

–Yes, and — and a–

Ruth Bader Ginsburg:

So that means in every one of these cases, whether the dealer picks up the phone or the buyer picks up the phone for a transaction for one gram of cocaine, the prosecutor has no choice but to indict under 843(b)?

Eric D. Miller:

–Well, again, if — if there is to be an indictment at all.

There’s no requirement that–

Ruth Bader Ginsburg:

I’m talking about the choice between misdemeanor, simple possession misdemeanor, or 843 — adding on this 843(b).

Ruth Bader Ginsburg:

The prosecutor — if what I read is correct — has no discretion, has to, if he makes the charge — he cannot make a simple misdemeanor charge.

He has to charge the felony.

Eric D. Miller:

–That’s my understanding of the policy, but, you know, this Court has recognized that, you know, that sort of charging decision is a legitimate aspect of the system as long as it’s not exercised for unconstitutional reasons.

David H. Souter:

No, but there’s — there’s a difference here, and that is, as these cases illustrate, three phone calls for one trifling sale, two for another, this gives a kind of multiplier effect which it’s — it’s hard to find a parallel for in the law.

We go from a misdemeanor to 12 years, depending on the fact that there were — there were a couple of cell phone calls.

That is — maybe — maybe that is exactly what Congress intended, and maybe that’s good law enforcement policy, but those are not sort of two intuitively obvious positions.

Eric D. Miller:

I think the — the text of the statute and the fact that it covers any act constituting a felony does demonstrate that that’s what Congress intended as well–

David H. Souter:

Well, what about the question?

Antonin Scalia:

Let’s feel sorry for this — for the felon who is selling this stuff, too.

I mean, the same thing is true of him, isn’t it?

Eric D. Miller:

–Yes.

Antonin Scalia:

Every time he makes another phone call he gets socked with another how many years?

Eric D. Miller:

The — the statutory maximum is four, but again–

Antonin Scalia:

Yes, so four times four times four every time he makes a phone call.

Eric D. Miller:

–Right, and I think that–

Antonin Scalia:

We should feel sorry for him, too.

David H. Souter:

–he knows the difference, that — he knows that he’s committing a felony, and the possessor of a gram or less doesn’t.

Eric D. Miller:

–The possessor who purchases the drugs using his phone knows that he is causing the felony.

The reason he calls the drug dealer is because he wants to cause the dealer to send him drugs.

Stephen G. Breyer:

Well, what about the legislative history?

Because I would read it — and in fact what it seems to me that you’re suggesting, when you read the statute, is using a telephone is — because Justice Kennedy came up with a good example of what I was thinking of.

If the buyer sits there with a gun, well, that’s different, he shouldn’t have the gun, and it’s not surprising that he gets a higher sentence.

And you’re saying by reading the text you’ve discovered Congress thinks that cell phones are sort of like guns.

Okay.

I grant you somebody might have thought that.

Justice Souter thinks it’s not intuitively obvious, but is there any legislative history that suggests that that indeed is what people in Congress thought when they passed this statute?

I’ll read it if there is.

Eric D. Miller:

Yes, and it–

Stephen G. Breyer:

And what should I read?

Where — what exactly–

Eric D. Miller:

–I mean, beyond — first of all, the — the Congress has a traditional interest in keeping the channels of commerce and communication free from–

Stephen G. Breyer:

–Normally, where that is involved, I’ve learned, it’s called what Justice Scalia called it “a jurisdictional hook”.

They don’t think the underlying behavior is worse, but they believe there has to be a basis and should be a basis for Federal prosecution.

I started out where he was.

I thought this is just a jurisdictional hook, but now you say no, it isn’t; it’s much worse than that.

It’s like carrying a gun, not quite as bad as that, but on that — in that direction.

So I’m asking you what would I read in this history to show that what you’re claiming is right?

Eric D. Miller:

–The legislative history of the 1956 Act, which is the — where the predecessor statute, 1403, was enacted, shows that Congress was concerned with the ability of drug traffickers and people engaging in drug transactions to avoid detection by using the phone–

Stephen G. Breyer:

And that’s what — you’ve cited that in the brief so I can find it?

Eric D. Miller:

–Yes.

And the initial proposal in the initial Senate bill would have allowed wiretapping in connection with drug investigations of certain enumerated offenses that covered both purchasers and sellers.

That was replaced with the provision that became 1403, which also — which applied “causing or facilitating” enumerated offenses, and again applied to both buyers and sellers.

And that statute was applied to buyers in a number of reported decisions before 1970, and there is nothing in the 1970 legislative history that Congress intended to change that aspect.

Ruth Bader Ginsburg:

How does it work?

I mean, I know your overall rationale about the ease of detection — easier to detect face to face encounter on the streets.

But here, I mean, we know that the government tapped the dealer’s phone, and that’s how the government got the list of the people who bought from the dealer.

How common is it that — that either the buyer or the seller is the subject of a telephone tap?

Eric D. Miller:

I don’t — I don’t know the statistics on that, but certainly a wiretap is only possible when demanding standards under Title III are met, and — whereas, a face-to-face meeting can be observed by anybody who happens to be there.

Ruth Bader Ginsburg:

But what had — what had to be met in this case in order to put this tap on the dealer’s phone?

Eric D. Miller:

Well, among other things, I believe the statute requires some showing that it’s not possible to obtain evidence in some other less intrusive way.

So in this case there was a wiretap on the dealer’s phone, but in a lot of cases there’s not going to be that.

And certainly Congress, when it enacted the statute, viewed keeping people from using the phones to conceal their drug transactions as one way of minimizing the need for more intrusive measures like wiretapping.

Ruth Bader Ginsburg:

So, you would interpret Congress — now we’re getting away from ’56, when simple possession was a felony, to ’70, when simple possession becomes a misdemeanor.

And you’re saying that Congress meant to relegate the simple possessor to misdemeanor status, but only if the encounter was face to face.

So you’re reading into the — what Congress did to sharply distinguish between traffickers and users, and say but that was only taking 843(b) into account.

That benefit — that you’re not going to be a felon; you’re going to be a misdemeanant — is only for face-to-face transactions.

Eric D. Miller:

Well, it’s — I mean, it doesn’t apply when — when a communication facility is used.

It also doesn’t apply, I mean, in a number of other contexts, you know, that Petitioner acknowledges that–

Ruth Bader Ginsburg:

But I’m talking about this context, the purchase of one gram of cocaine on one occasion, nothing more.

Eric D. Miller:

–As a first offense.

Eric D. Miller:

I mean, that–

Ruth Bader Ginsburg:

So Congress’s design was we treat as a less grave offender the buyer for his own use, but only if he buys in a face-to-face encounter?

That’s what — what you would have to read — you would have to limit the line Congress drew between traffickers, on the one hand, and possessors for their own use, on the other, and say it applies only to drugs purchased in face-to-face encounters.

Eric D. Miller:

–Yes, although I wouldn’t describe it as an issue of a less grave offense or a more grave offense in the sense that the use of the phone aggravates the offense of possession.

Ruth Bader Ginsburg:

But I mean, practically–

Eric D. Miller:

But use of a phone is a different–

Ruth Bader Ginsburg:

–the difference between being labeled a misdemeanant and being labeled a felon is an enormous difference.

Eric D. Miller:

–That — that’s right.

But Congress, again, did recognize that there could be a range of levels of culpability associated with the 843(b) offense, which is part of the reason that it eliminated the mandatory minimum when it amended the statute in 1970, suggesting that there could be different kinds of conduct that would satisfy it.

David H. Souter:

Mr. Miller, in answer to one of Justice Breyer’s earlier questions, he indicated that the premise of his question was the effect of the twin amendments from offense to felony and from felony to misdemeanor for possession of small quantities.

And he said, well, in effect, is — is that combination of amendments really being rendered nugatory by the view that you take of the statute?

And you said not necessarily, and you said there may be some drug transactions in which it is a misdemeanor on both sides, so that the statute wouldn’t apply there.

Are there any other — are there many examples of that?

I thought not.

And are there any other examples of misdemeanor-misdemeanor cases that the — that the statute would apply to so that — so that the anomaly wouldn’t be quite so obvious?

Eric D. Miller:

Well, I mean, if you’re asking other misdemeanor offenses under the Controlled Substances Act–

David H. Souter:

Yes.

Eric D. Miller:

–I mean, there’s the–

David H. Souter:

In other words, how important is this?

It looks to us — I mean, I think it was the premise of the question and it was — it was my assumption coming in that your view of the statute largely renders those two amendments, or the combined effect of those two amendments, virtually nugatory.

And you said, well, not necessarily because there may be misdemeanor-misdemeanor cases.

And I want to know how many of them there are.

Is that really a significant area for the application or nonapplication of this statute?

Eric D. Miller:

–I — I don’t know how many prosecutions are brought under those statutes.

I imagine that, in part because they are misdemeanors, not a lot of prosecutions.

David H. Souter:

How many separate — how many misdemeanor-misdemeanor combined offenses are there under the — under the code?

Eric D. Miller:

842 — section 842 enumerates I think it is on the order of a dozen or so, and then we cite a couple of them in our brief.

So distributing a — a controlled — a prescription drug without a prescription would probably be one of the most common that someone would engage in, and–

David H. Souter:

You — you don’t have any figures on the number of actual prosecutions under — under the — in the misdemeanor-misdemeanor combination cases?

Eric D. Miller:

–No.

Eric D. Miller:

I mean, again, because — because they’re misdemeanors and prosecutorial resources are probably concentrated on the more serious felony violations of the Controlled Substances Act, I suspect there aren’t a lot of prosecutions.

David H. Souter:

So — well, then, I guess that leads to my last question, and that is: Isn’t it probably true that if we accept your view of the statute, then the effect of those two combined amendments, offense to — to felony, felony to misdemeanor for small quantities, the — the combined effect of — of those two statutes is, in effect, rendered worthless in — in most cases?

In the substantial number of cases to which the — the communication facility statute would be applied.

It — it would render those — those two amendments, in effect, worthless?

Eric D. Miller:

Well, I think the — the relevant inquiry is: What — what did Congress intend in 1970 when it changed the statute?

David H. Souter:

That may be the relevant inquiry, but what about my irrelevant inquiry?

Eric D. Miller:

Well, I —-

[Laughter]

David H. Souter:

It’s going to — your — your view of the statute is going to render those two amendments virtually dead letters.

Eric D. Miller:

I mean I think — I think from the perspective of — of Congress, that there was no — they wouldn’t have anticipated that the amendment would not have any consequence.

I mean, the fact that — that they created this whole set of misdemeanors, the fact that they aren’t violated very often–

David H. Souter:

Yes, but as you said — as you said, they — you don’t have figures on the number of prosecutions.

And the number of prosecutions under those misdemeanors, as distinct from the number of applications of the communications statute to conventional buyer-seller transactions, is probably the difference between a very small set and a very large set of cases.

And in the very large set of cases, the two amendments are being rendered, in effect, worthless; isn’t that true?

Eric D. Miller:

–If I — if I may answer, my understanding is that the number of prosecutions under 843(b) is — is also relatively small, but I don’t have precise figures on — on the comparative numbers.

John G. Roberts, Jr.:

Thank you, counsel.

Eric D. Miller:

Thank you.

John G. Roberts, Jr.:

Four minutes, Mr. Srinivasan.

Sri Srinivasan:

Thank you, Mr. Chief Justice.

The only point I would make in closing, unless the Court has further questions for us, is that we think the statutory text, the statutory history, and the context all weigh in favor of our reading.

But even if there is any ambiguity on the matter, principles of lenity would squarely apply in foreclosing an interpretation that converts someone who is a misdemeanant into someone who is exposed to multiple felony counts carrying substantial criminal consequences–

John Paul Stevens:

May I ask this question as just a matter of history?

Is it perfectly clear?

I think you said that the — the presence of the use of the telephone was not just a jurisdictional hook, because back in 1970 the Federal Government really wasn’t in the criminal law business the way it has become in the last 30 or 40 years.

At that time, there was a lot of concern — the Travel Act and other statutes — about exactly what the Federal justification for — justification for Federal participation existed.

And I — I always had the impression that that was really what was behind the telephone aspect of this statute.

Sri Srinivasan:

–I don’t think so, Justice Stevens, because as of 1970 there were already underlying drug laws that barred distribution, that barred receipt of drugs, and that barred most of the activities that are now prohibited under the drug laws.

And the telephone law presupposes that one of those underlying acts is already going on.

And so to the extent that there was jurisdiction over those underlying acts, which presumably there was since the statutes are on the books, the Telephone Act wasn’t necessary to create jurisdiction.

Samuel A. Alito, Jr.:

Could I ask you this question?

Samuel A. Alito, Jr.:

I — I understand your argument regarding statutory history and the harsh consequences of this.

But as far as the buyer-seller rule — Gebardi and Rewis are concerned, what if the statute said — made it a crime for — for a person to use a machine gun in facilitating the commission of a felony?

Would you say — you would have to say that the buyer-seller rule and those authorities would mean that that person could not be prosecuted if they were using the machine gun to facilitate a — a purchase for personal use; would you not?

Sri Srinivasan:

Well, I think the — the use of the machine gun wouldn’t come within the buyer-seller rule because what the buyer-seller rule deals with is a substantive prohibition on distribution.

And the — the presumption is that when Congress prohibits distribution, it knows that there is also a receiver of the banned substance.

And by virtue of excluding that receiver from the distribution prohibition, it wouldn’t have wanted to bring that receiver back within the fold of the statute.

Samuel A. Alito, Jr.:

Right, but–

Sri Srinivasan:

That wouldn’t apply–

Samuel A. Alito, Jr.:

–I’m sorry.

Go ahead.

Sri Srinivasan:

–I was just going to say I don’t think that would apply with somebody who is using a machine gun because the person who is using a machine gun isn’t necessarily part of the distribution offense to begin with.

And so the buyer-seller principle would apply with respect to the underlying purchase of drugs if that were at issue.

But if you tack on use of a machine gun, I don’t think the buyer-seller principle would speak directly to that.

Samuel A. Alito, Jr.:

Well, I don’t — I don’t see the difference between use of a phone to facilitate — use of a phone in facilitating, use of — of a firearm in facilitating–

Sri Srinivasan:

Oh–

Samuel A. Alito, Jr.:

–unless you can say that the — the use of a communication facility in effecting the purchase is such a — a virtually indispensable element of the purchase that it — it — it’s swept up within it.

Sri Srinivasan:

–Oh, no, I’m sorry, Justice Alito.

If the hypothetical statute barred use of a phone in facilitating a drug felony, if it was precisely parallel to this one, then we’d make the same argument.

But it’s not because the use of a machine gun falls within the buyer-seller principle.

It’s because the underlying act of purchasing drugs falls within the buyer-seller principle.

And if the prohibition is on use of a machine gun in some underlying act, then you have to look at the underlying act.

And the underlying act is governed by the buyer-seller principle, and buyers fall outside of it.

And so the use of a machine gun by someone who is already outside of the act wouldn’t bring the buyer back into the fold of the statute.

Samuel A. Alito, Jr.:

So the answer is that this — it would be the same.

Sri Srinivasan:

It would be the same–

Samuel A. Alito, Jr.:

The buyer-seller rule would apply in your view exactly the same way.

Sri Srinivasan:

–If the — if the statute — if I understand your hypothetical correctly, if the statute were use of a phone in facilitating a drug felony, then the–

Ruth Bader Ginsburg:

But it could be a — a separate crime, the use of a machine gun in facilitating — in facilitating a crime, any crime.

That could be–

Sri Srinivasan:

–Sure.

Sri Srinivasan:

If that were the case, then it would be different.

My — if I could just finish for a minute, Mr. Chief Justice.

My — my only point is that if the theory of prosecution were that a person comes within the fold of the statute because they’re buying drugs and that buying of drugs facilitates the sale of drugs and, therefore, they are someone who uses a machine gun in facilitating the sale of drugs, well, then the buyer-seller rule would kick in.

Because the initial predicate of that theory, which is that the person is facilitating the sale by buying, wouldn’t work.

They would fall outside of the statute at that stage.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.