Abuelhawa v. United States
In Abuelhawa v. United States, 556 U.S. 816 (2009), the issue was whether a defendant violated 21 U.S.C. 843(b), the analogous federal counterpart to 13-3417(A), by "making a misdemeanor drug purchase because his phone call to the dealer can be said to facilitate the felony of drug distribution." Abuelhawa, 556 U.S. at 818.
The Supreme Court refused to apply the plain meaning of the term "facilitate," which would have criminalized the defendant's conduct because his use of the telephone "'allowed the transaction to take place more efficiently.'" Id. at 819.
The Court noted that such an interpretation "sits uncomfortably with common usage." Id. at 820. It explained:
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. Id.
The Court further observed that "facilitate" generally refers to "the efforts of someone other than a primary or necessary actor in the commission of a substantive crime." Id.
The Court reversed the court of appeals, which had upheld the defendant's conviction based on the common meaning of "facilitate," and remanded for further proceedings. Abuelhawa, 556 U.S. at 819-21, 824.
In sum, the issue was whether a buyer's use of his cell phone to arrange drug purchases "facilitated" the seller's felony drug distribution, in violation of a federal statute criminalizing the use of communication devices in "facilitating the commission of . . . a felony." See Abuelhawa, 129 S. Ct. at 2104; 21 U.S.C. 843(b).
A unanimous Supreme Court held that the buyer, whose two separate purchases of one gram were misdemeanors, could not be convicted of the "facilitation" felony under that theory. Abuelhawa, 129 S. Ct. at 2104.
The Abuelhawa Court rejected the Fourth Circuit's holding that the buyer's use of his cell phone to purchase cocaine qualified as facilitation "because it 'undoubtedly made the seller's cocaine distribution easier; in fact, 'it made the sale possible.'" Id. (quoting United States v. Abuelhawa, 523 F.3d 415, 421 (4th Cir. 2008)).
Although "on the literal plane, the phone calls could be described as 'facilitating' drug distribution," the Court concluded that "stopping there 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.'" Id. at 2105 .
In Abuelhawa's case, the Court explained: "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." Id.
The Court also pointed out that "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" case law recognizing 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." Id. at 2106.
Explaining that Congress intended the meaning of the term "facilitate" to be "equivalent" to judicially interpreted "terms like 'aid,' 'abet,' and 'assist,'" id. at 2106, the Court reasoned that the Government's "broader reading of 'facilitate' would for practical purposes skew the congressional calibration of respective buyer-seller penalties," by ignoring that "Congress meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony." Id. at 2106-07.