Friday, May 02, 2008

Cocaine Purchase for Personal Use Triggers 843(b) Liability

US v. Abuelhawa: A was charged and convicted of using a communication facility to facilitate a crime, the distribution of cocaine, in violation of 21 USC 843(b). The conviction was based on a two groups of phone calls between Abuelhawa and Said, from whom Abuelhawa purchased cocaine. After he was arrested, Abuelhawa gave a statement in which he explained that Said was his dealer. Abuelhawa was sentenced to 24 months in prison.

On appeal, Abuelhawa unsuccessfully made two arguments. First, he argued that a conviction under 843(b) couldn't be sustained if the crime that was facilitated was the simple distribution of drugs for personal use. Noting that the circuits are split on this issue, the Fourth Circuit focused in on what it meant to "facilitate" a crime, giving that word its plain meaning. The court also noted that the statute prohibits the use of the communication facility to commit a felony, but doe not identify whose felony it must facilitate. As a result, the court concluded that Abuelhawa's use of the phone facilitated Said's distribution of cocaine to him, as it made the distribution easier. That Abuelhawa's simple possession of cocaine is not a felony is "simply irrelevant." Second, Abuelhawa argued that the evidence was insufficient to sustain his conviction because any actual distribution of cocaine as a result of the two sets of phone calls. After reviewing the evidence, the Fourth Circuit rejected that argument and affirmed Abuelhawa's conviction.

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