Abuelhawa v. United States

• Decision Date: 26 May 2009
• Docket Number: No. 08–192.,08–192.
• Citation: 173 L.Ed.2d 982,129 S.Ct. 2102,77 USLW 4434,556 U.S. 816
• Parties: Salman Khade ABUELHAWA, Petitioner, v. UNITED STATES.
• Court: U.S. Supreme Court

556 U.S. 816

129 S.Ct. 2102

173 L.Ed.2d 982

77 USLW 4434

Salman Khade ABUELHAWA, Petitioner,

v.UNITED STATES.

No. 08–192.

Supreme Court of the United States

Argued March 4, 2009.

Decided May 26, 2009.

Syllabus^*

A wiretap of Mohammed Said's telephone recorded six calls in which petitioner Abuelhawa arranged to buy cocaine from Said in two separate 1–gram transactions. Those two purchases were misdemeanors under the Controlled Substances Act (CSA), 21 U.S.C. § 844, while Said's two sales were felonies, § 841(a)(1) and (b). The Government charged Abuelhawa with six felonies on the theory that each of the phone calls, some placed by him, some by Said, violated § 843(b), which makes it a felony “to use any communication facility in ... facilitating” felony distribution and other drug crimes. The District Court denied Abuelhawa's acquittal motion, in which he argued that his efforts to make misdemeanor purchases could not be treated as facilitating Said's felonies. The jury convicted Abuelhawa on all six felony counts. The Fourth Circuit affirmed, reasoning that “facilitat[e]” should be given its ordinary meaning in § 843(b) and that Abuelhawa's use of a phone to buy cocaine counted as ordinary facilitation because it made Said's distribution of the drug easier.

Held: Using a telephone to make a misdemeanor drug purchase does not “facilitat[e]” felony drug distribution in violation of § 843(b). Stopping with the plain meaning of “facilitate” here would ignore the rule that because statutes are not read as a collection of isolated phrases, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.” Dolan v. Postal Service, 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079. Here it does not. The literal sweep of “facilitat[e]” sits uncomfortably with common usage: 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 other's conduct. The common usage has its parallel in cases holding that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature's punishment calibration. In Gebardi v. United States, 287 U.S. 112, 119, 53 S.Ct. 35, 77 L.Ed. 206, for example, the Court held that a woman who voluntarily crossed a state line with a man to have sex could not be tagged with the Mann Act violation for “aid[ing] or assist[ing]” interstate transportation for immoral purposes because the statutory penalties were “clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation.” Such cases have a bearing here in two ways. First, given the presumption, see, e.g.,Williams v. Taylor, 529 U.S. 362, 380–381, and n. 12, 120 S.Ct. 1495, 146 L.Ed.2d 389, that the Congress that enacted § 843(b) was familiar with the traditional judicial limitation on applying terms like “aid,” “abet,” and “assist,” it is likely the Legislature had a comparable scope in mind when it used “facilitate,” a word with equivalent meaning. Second, any broader reading would for practical purposes substantially skew the congressional calibration of respective buyer-seller penalties. Moreover, the statute's history—which shows that in 1970 the CSA downgraded simple possession from a felony to a misdemeanor, § 844(a), and simultaneously limited the communications provision's prohibition of facilitating a drug “offense” to facilitating a “felony,” § 843(b)—drives home what is clear from the statutory text: 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. Yet, under the Government's reading of § 843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense, simple drug possession, it had dropped to a misdemeanor with the right. Given that Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as “aid,” “ abet,” and “assist” that points in the opposite direction and accords with the CSA's choice to classify small purchases as misdemeanors, the Government's position is just too unlikely. Pp. 2105 – 2108.

523 F.3d 415, reversed and remanded.

SOUTER, J., delivered the opinion for a unanimous Court.

Sri Srinivasan, Washington, D.C., for petitioner.

Eric D. Miller, Washington, D.C., for respondent.

Timothy J. McEvoy, Odin, Feldman & Pittleman, P.C., Fairfax, VA, Sri Srinivasan (Counsel of Record), Irving L. Gornstein, Ryan W. Scott, Meaghan McLaine, O'Melveny & Myers LLP, Washington, D.C., for Petitioner.

Edwin S. Kneedler, Acting Solicitor General, Counsel of Record, Rita M. Glavin, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Eric D. Miller, Assistant to the Solicitor General, Richard A. Friedman, Attorney, Department of Justice, Washington, D.C., for the United States.

Justice SOUTER delivered the opinion of the 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. 84 Stat. 1263, 21 U.S.C. § 843(b). 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.

I

FBI agents believed Mohammed Said was selling cocaine and got a warrant to tap his cell phone. In the course of listening in, they recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine from Said in two separate transactions, each time a single gram. Abuelhawa's two purchases were misdemeanors, § 844, while Said's two sales were felonies, § 841(a)(1) and (b). The Government nonetheless charged Abuelhawa with six felonies on the theory that each of the phone calls, whether placed by Abuelhawa or by Said, had been made “in causing or facilitating” Said's felonies, in violation of § 843(b).¹ Abuelhawa moved for acquittal as a matter of law, arguing that his efforts to commit the misdemeanors of buying cocaine could not be treated as causing or facilitating Said's felonies, but the District Court denied his motion, App. to Pet. for Cert. 20a–25a, and the jury convicted him on all six felony counts.

Abuelhawa argued the same point to the Court of Appeals for the Fourth Circuit, with as much success. The Circuit reasoned that “for purposes of § 843(b), ‘facilitate’ should be given its ‘common meaning—to make easier or less difficult, or to assist or aid.’ ” 523 F.3d 415, 420 (2008) (quoting United States v. Lozano, 839 F.2d 1020, 1023 (C.A.4 1988)). The court said Abuelhawa's use of a phone to buy cocaine counted as ordinary facilitation because it “undoubtedly made Said's cocaine distribution easier; in fact, ‘it made the sale possible.’ ” 523 F.3d, at 421 (quoting United States v. Binkley, 903 F.2d 1130, 1136 (C.A.7 1990) (emphasis deleted)). We granted certiorari, 555 U.S. 1028, 129 S.Ct. 593 (2008), to resolve a split among the Courts of Appeals on the scope of § 843(b),² and we now reverse.

II

The Government's argument is a reprise of the Fourth Circuit's opinion, that Abuelhawa's use of his cell phone satisfies the plain meaning of “facilitate” because it “allow[ed] the transaction to take place more efficiently, and with less risk of detection, than if the purchaser and seller had to meet in person.” Brief for United States 10. And of course on the literal plane, the phone calls could be described as “facilitating” drug distribution; they “undoubtedly made ... distribution easier.” 523 F.3d, at 421. But stopping there would ignore the rule that, because statutes are not read as a collection of isolated phrases, see United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities,” Dolan v. Postal Service, 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). We think the word here does not.

To begin with, the Government's literal sweep of “facilitate” sits uncomfortably with common usage. 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. 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. We would not say that the borrower facilitates the bank loan.

The Government, however, replies that using the instrument of communication under § 843(b) is different from borrowing the money or merely handing over the sale price for cocaine. Drugs can be sold without anyone's mailing a letter or using a cell phone. Because cell phones, say, really do make it easier for dealers to break the law, Congress probably meant to ratchet up the culpability of the buyer who calls ahead. But we think that argument comes up short against several more reasons that count against the Government's position.

The common usage that limits “facilitate” to the efforts of someone other than a primary or necessary actor in the commission of a substantive crime has its parallel in the decided cases. The traditional law is that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature, a line of reasoning exemplified in the courts'...