THE SUPREME COURT: USING A PHONE TO PURCHASE DRUGS FOR PERSONAL USE IS NOT FACILITATION

The FBI tapped Mohammed Said’s cell phone thinking he was a major drug dealer. They heard six conversations between Said and Salman Khade Abuelhawa in which they arranged two cocaine sales to Abuelhawa, each for one gram. A sale of cocaine is a felony and a purchase for personal use is a misdemeanor. But the use of a telephone to facilitate a felonious drug transaction is a felony under 21 USC 843(b). Poor Abuelhawa was charged with six felonies, one for each telephone call. He faced 24 years for the felonies as contrasted to two years for two misdemeanors. His attorney objected that he was only committing a misdemeanor. But both the District Court and the Fourth Circuit Court of Appeals disagreed. (It should be noted that the Seventh Circuit in a similar case agreed with the Fourth Circuit and the Tenth Circuit disagreed finding it not to be facilitation.) They said the plain meaning of “facilitate” is to assist and Abuelhawa was using the phone to assist Said commit a felony. Luckily the Supreme Court in an unanimous decision in United States v. Abuelhawa ruled that a buyer is a buyer and a seller is a seller and the buyer is not facilitating the seller.

So Abuelhawa’s six felony convictions are reversed.