Another Win in the Supremes
Yesterday the Supreme Court gave us another defense win authored by Justice Souter. Pursuant to a wiretap of Mohammed Said’s phone, the government recorded 6 phone calls between Said and petitioner Abuelhawa, who arranged on 2 occasions to buy one gram of cocaine. The government charged each of the phone calls as a felony under 21 U.S.C. 843(b), which makes it a felony to “use any communication facility . . . facilitating” the distribution of drugs.
The two purchases by petitioner Abuelhawa were misdemeanors. The two sales by Said were felonies. Justice Souter, in a fairly awkward fashion, writing for a unanimous court, held that because Congress legislated a more lenient sentence for the purchase of gram quantities of cocaine as misdemeanors, that the government’s reach exceeded its grasp in making those misdemeanor purchases into felonies by the end run of charging the use of a communication device. Thus, using a telephone to make a misdemeanor purchase does not “facilitate” felony drug distribution in violation of § 843.
