Abuelhawa v. United States

PETITIONER: Salman Khade Abuelhawa
RESPONDENT: United States
LOCATION: Skyline Grill

DOCKET NO.: 08-192
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 556 US 816 (2009)
GRANTED: Nov 14, 2008
ARGUED: Mar 04, 2009
DECIDED: May 26, 2009

Eric D. Miller - for respondent
Sri Srinivasan - for petitioner

Facts of the case

In 2007, a federal district court convicted Salman Khade Abuelhawa in part for unlawfully, knowingly, and intentionally using a communications facility (a telephone) in committing, causing, and facilitating a felony (distribution of cocaine) in violation of 21 U.S.C. Section 843(b). Mr. Abuelhawa appealed arguing that Section 843(b) does not apply because he purchased cocaine for personal use, which is not a felony.

The United States Court of Appeals for the Fourth Circuit affirmed Mr. Abuelhawa's conviction. It reasoned that Mr. Abuelhawa's use of a cell phone facilitated cocaine distribution because his telephone call made the distribution of cocaine "easier" for his dealer, which is a felony, thus Section 843(b) properly applies.


Does the use of a telephone to buy cocaine for personal use "facilitate" the commission of a felony (the seller's distribution of cocaine) and violate 21 U.S.C. Section 843(b)?

Media for Abuelhawa v. United States

Audio Transcription for Oral Argument - March 04, 2009 in Abuelhawa v. United States

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

John G. Roberts, Jr.:

Justice Souter has the opinion of the Court in case 08-192, Abuelhawa versus United States.

David H. Souter:

This case comes to us on a writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

FBI agents believed that Mohammed Said was selling cocaine and got a warrant to tap his cell phone.

While listening in, they recorded six calls in which the petitioner in this case, Salman Abuelhawa arranged two purchases of cocaine from Said each time for a single gram.

Abuelhawa's two purchases were misdemeanors under the drug laws while Said's two sales were felonies.

The Government nonetheless charged Abuelhawa with six felonies under 21 U. S. Code 843(b) which prohibits the use of a communications device, in the words of the statute, in causing or facilitating a drug related felony.

The Government's theory was that each time Abuelhawa used the phone to arrange his misdemeanor purchases he had also been facilitating Said's felony drug sales.

Abuelhawa argued unsuccessfully before the District Court and the Court of Appeals that the term “facilitating” should not be read so broadly.

And we granted certiorari to resolve the conflict among the Circuits as to whether a misdemeanor drug buyer who uses a phone during a drug transaction can be said to facilitate the seller's felony under 843(b).

In an opinion filed today with the clerk of the Court, we conclude that the answer is no and we reverse the judgment of the Fourth Circuit.

While the drug purchase might literally be described as facilitating the drug sale, several reasons convinced us that Congress did not intend such an expansive meaning.

To begin with, the Government's use to facilitate sits uncomfortably with common usage.

We would not normally say a buyer facilitates the sale any more than we would say that a borrower facilitates a bank loan.

Moreover, the traditional law is that where a statute treats one party in a bilateral transaction more leniently, courts will not treat that party's mere participation as aiding and abetting the action of the other for fear of appending the calibration of relative penalties set by the legislature.

This line of reasoning is exemplified in the Court's consistent refusal to treat noncriminal liquor purchases as aiding and abetting the illegal sale of alcohol.

While these cases do not directly control here, they are significant for two reasons.

First, we presume that when Congress enacted 843(b), it was familiar with the traditional judicial limitation on applying terms like “aid” and “abet” so we think it likely that Congress had a comparable scope in mind when it used the comparable term "facilitate."

Second, as in the earlier cases, a broader reading of facilitate would skew the congressional calibration of buyer-seller penalties.

As the Government sees it, Abuelhawa's use of a phone in making two small drug purchases would subject him to six felony counts and a potential sentence of 24 years in prison even though buying the same drugs minus the phone would have supported only two misdemeanor counts and two years of prison.

Congress used no language spelling out a purpose so improbable but instead legislated against the background usage of terms such as “aid” and “abet” and shows to treat small purchases more leniently than drug distribution.

The Government's position is just too unlikely.

Our opinion is unanimous.