On May 26, the Supreme Court decided Abuelhawa v. United States, No. 08-192.
Section 843(b) of the Controlled Substances Act (CSA) makes it a felony to "use any communication facility in committing or in causing or facilitating" various violations of the CSA. Abuelhawa and Said engaged in six telephone conversations that led to Abuelhawa's making two one-gram purchases of cocaine. The two purchases were misdemeanors under § 844 of the CSA, but Abuelhawa was charged with six felonies under § 843(b) on the theory that each call, whether placed by Abuelhawa or Said, had been made for "facilitating" Said's felonious sales. Abuelhawa was convicted, and the U.S. Court of Appeals for the Fourth Circuit affirmed the conviction.
The Supreme Court reversed unanimously, noting that the CSA penalizes purchases of drugs less severely than their distribution. It cited previous cases in which a statute treated one side of a bilateral transaction more leniently than the other and the Court had declined to hold the less culpable actor liable for "aiding" or "abetting" the more-seriously-punished conduct of the other. Congress presumably was aware of this interpretive approach when it used the term "facilitate" here, in a scheme in which the purchaser of personal-use quantities of drugs is punished less severely than the seller. Any broader reading of "facilitate," the Court said, would severely "skew the calibration of penalties" intended by Congress, increasing the potential sentence from two years for two misdemeanors to 24 years for six felonies, simply because a telephone was used to arrange the transactions.
Justice Souter delivered the opinion for a unanimous Court.