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Law Enforcement: Supreme Court Holds Drug Purchasers Can't Be Charged With "Facilitation" Felonies for Calling Drug Dealers

Submitted by Phillip Smith on (Issue #587)
Drug War Issues
Politics & Advocacy

The US Supreme Court Tuesday ruled that a law making it a felony to use a communication device in "committing or in causing or in facilitating" a drug deal cannot be used against drug purchasers who use their phones to calls their dealers. The unanimous ruling came in Abuelhawa v. US.

US Supreme Court
In that case, federal agents had wiretapped a drug dealer's phone. Among the calls they intercepted were six calls between Abuelhawa and the dealer in which Abuelhawa twice arranged to purchase single grams of cocaine, a misdemeanor offense under federal law. But federal prosecutors in the case charged Abuelhawa with six felony counts of using a communications device to facilitate a drug deal, one for each phone call.

Abuelhawa was convicted at trial. He appealed to the 4th US Circuit Court of Appeals, which upheld the conviction, and then to the US Supreme Court, which has now overruled it and sent the case back to district court.

"The Controlled Substances Act (CSA) makes it a felony 'to use any communication facility in committing or in causing or facilitating' certain felonies prohibited by the statute," wrote Justice David Souter in the opinion. "The question here is whether someone violates §843(b) in making a misdemeanor drug purchase because his phone call to the dealer can be said to facilitate the felony of drug distribution. The answer is no," he wrote.

"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," Souter elaborated. "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."

Souter noted that Congress had amended the CSA in 1970 to make simple cocaine possession a misdemeanor, not a felony, and limited the communications offense by changing the words "drug offense" to "drug felony." "Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony," he wrote.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.

Comments

rita (not verified)

If setting up a drug deal is a crime, why do cops get away with it? Don't they have more important things to do than create even more reasons to put even more of in prison? Like, oh, I don't know, like, protecting us or something?

"Attempt to possess." "Conspiracy to possess" "Conspiracy to sell." "Intent to sell." Conspiracy to possess with intent to sell." Attempt to possess with intent to sell." And now we can "facilitate the conspiracy to attempt to possess with intent to sell." How cool!

What did we ever find to do with our time before Big Brother created all these crimes for us to commit? Oh, yeah, we all had jobs and homes and families.

Fri, 05/29/2009 - 12:40pm Permalink
Anonymous (not verified)

Haw, haw, haw! The cops take it in the shorts (again), and no, they don't have anything better to do. Life has taught me that when others make trouble for me they usually have too much time and money on their hands...

Fri, 05/29/2009 - 4:44pm Permalink
Anonymous (not verified)

The 'Control (of Some) Substances Act' remains illegal... and should continue to be ignored... if not repealed immediately.

Then, when the time is right, we'll apprehend the terrorists responsible for these high crimes and punish them accordingly.

Fri, 05/29/2009 - 5:17pm Permalink
Anonymous (not verified)

The Fremont, CA police department goes out on the streets and gives away, and sell drugs, to the public.

Fri, 06/05/2009 - 3:15am Permalink
More Anonymous (not verified)

I had a snitch do this to me to get him less time. Same scam.

He used cops to roll all over me for a weed deal, which is legal

today. I ended up making a plea with a pretty weak and crooked

attorney. Snitch got 7 years anyway for hawking meth. I walked

but is sure caused grief in my life. This form of bust should be

totally illegal. Guy kept calling and calling and calling pestering

me until I fianlly said Ok, sure whatcha want. Turned out he was

just a snitch. No justice in the justice system.

Sun, 01/21/2018 - 2:29am Permalink

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