Stanford student Rakesh Kilaru discusses Wednesday’s argument in Abuelhawa (08-192).

At Wednesday's oral argument in Abuelhawa v. United States, the Court appeared to have a sense of déjà vu. In many ways, the Abuelhawa argument played out in much the same fashion as the oral argument one week before in Flores-Figueroa. In both cases, the Court primarily questioned the petitioner about how the statutes at issue "“ an aggravated identity theft statute in Flores-Figueroa, and a statute criminalizing the use of a telephone in "facilitating" a drug crime in Abuelhawa "“ would work in practice under the petitioner's interpretation. Conversely, in both cases, the Court spent most of its time on the bottom side sharply questioning the textual and historical bases for the government's expansive interpretations of those statutes.

Sri Srinivasan, representing petitioner Salman Khade Abuelhawa, began by attempting to focus on the text, history, and context of the statute. Srinivasan asserted that all three of these sources establish that § 843(b) does not transform an individual's misdemeanor purchase of drugs into a felony if he uses a telephone to set up that purchase. However, the Court quickly steered the argument to more practical questions about who would be punishable under petitioner's view of the statute. For example, Justice Kennedy asked about whether a phone call from a buyer's girlfriend to a seller to set up a purchase would constitute "facilitation." Srinivasan responded by noting that she might fall within the terms of the statute since she doesn't benefit from the "buyer-seller rule" at issue in Abuelhawa. Calling Justice Kennedy's question a "good law school exam type question," Justice Ginsburg pressed Srinivasan on who is covered "in the real world." Srinivasan responded that the "classic case of somebody on the facilitating prong would be the classic aider and abettor, for example a lookout."

Chief Justice Roberts then asked about whether the evolution of communications technology since the statute's revision in 1970 should alter the Court's interpretation, since "the technology has so expanded that the reach of the statute has . . . expanded." Srinivasan responded by noting that his argument does not turn on technology, because his argument centers on the proposition that a person using a telephone to buy drugs for personal use "wouldn't come within the ambit of the provision" because he is "not someone who's facilitating the commission of a drug felony in the first place."

The Justices then turned to Srinivasan's argument that "facilitating" means the same as "aiding and abetting." Justice Scalia began by asking, "why should I think facilitating means aiding and abetting?" Srinivasan first relied on the "definitional equivalence" of the two terms, noting that Black's Law Dictionary defines the two as meaning "the very same thing." Next, in response to questioning by Chief Justice Roberts and Justice Kennedy, Srinivasan pointed out that § 843(b) is functionally on all fours with 18 U.S.C. § 2, a "general aider or abettor provision," further supporting the analogy.

The argument then wended back to questions about the practical application of the statute. Justice Alito inquired whether a buyer can be found liable if he communicates information that "makes it easier for the transaction to take place." In response, Srinivasan stated that no § 843(b) liability would attach if what the buyer did was "a normal incident of purchasing." Next, Justice Alito asked whether a buyer could be punished under § 843(b) if the purchase was itself a felony. Srinivasan noted that liability would attach, but only for facilitation of the buyer's felony purchase, and not the seller's felony sale. Finally, Chief Justice Roberts asked about the "difficult questions of proof" implicated by Srinivasan's "gloss on the statute" "“ for example, what happens when a buyer purchases ten pounds of drugs, but claims he was "just buying in bulk for personal use, like a Costco dealer." Srinivasan replied by pointing out that "courts and juries and the government already have to make those sorts of decisions," since they are "embedded in the fabric of the drug laws." As a result, his reading of the statute doesn't make it "any more complicated than it already is."

Justice Kennedy then raised a concern that he would return to later "“ namely, whether the Court should avoid ruling in the government's favor because doing so would give the government "larger, more expansive discretion in charging and plea bargaining." In response to Justice Kennedy's request for a "background principle[]" militating against such discretion, Srinivasan turned to the statutory history itself. In particular, Srinivasan focused on the way Congress revised the statute in 1970 "“ first, by narrowing the scope of the statute from "drug offenses" to only felonies; second, by changing mere possession from a felony to a misdemeanor; and third, by permitting simple possessors to avoid any conviction at all upon successful completion of probation. Together, these changes established that Congress "excluded use of a phone in connection with a drug misdemeanor" from the scope of § 843(b). But, as Srinivasan observed, the government's argument would bring that very same conduct "back into the fold of the statute."

Chief Justice Roberts pressed Srinivasan on this point, observing that petitioner would have lost back in 1970. While Srinivasan conceded that his case "would have been a very difficult climb" back then, because simple possession was a felony, and because § 843(b) applied to facilitation of any "drug offense," he maintained that his case was equally simple today in the other direction because of the revisions to the statute.

Finally, Justice Ginsburg questioned Srinivasan about the government's position "“ that Congress enacted this statute because it's "more difficult to detect a drug deal when it's by telephone than if it were an encounter on the street." Srinivasan agreed that such concerns "may have been the animating purpose" behind the enactment of § 843(b). But, he concluded, "that purpose is substantially served" even on the facts of this case because the seller comes "squarely within the terms" of the statute. While the seller is liable, though, "the buyer is not," because the buyer is not "committing, causing, or facilitating a drug felony in the first place."

Arguing for the government, Assistant to the Solicitor General Eric Miller began by contending that there is "no basis in the statute for creating an exemption for people who facilitate or cause felony distributions by purchasing drugs for their own personal use." Immediately, though, the Justices began to pepper him with questions about the potential implications of the government's reading of the statute. Chief Justice Roberts began by asking about a scenario in which two people in a park attempt to purchase drugs, one by waving to the drug dealer, and another by using a phone. According to Miller, the phone user would be "exposed to four more years." Miller also agreed with the Chief Justice's assertion that three calls would mean twelve years. Justice Ginsburg concluded the colloquy by asking about the facts of this case, where petitioner made six calls. Miller responded by agreeing that petitioner would receive 24 years of exposure for "the one gram of cocaine on two occasions."

Justice Scalia next pressed Miller on the facts of Rewis v. United States, which held that a statute prohibiting interstate travel with the intent to "facilitate" certain kinds of illegal activities could not be used to prosecute a patron of a gambling establishment. Miller first contended that the case did not "focus on the word "facilitate,'" but Justice Scalia was unpersuaded, noting that the case "certainly focused on the word "facilitate.'" Next, Miller argued that the statute in Rewis required intent; Justice Scalia responded by noting that § 843(b) requires proof of knowledge. Ultimately, Justice Scalia concluded that the case was "pretty close[ly]" on point.

Justice Breyer then questioned Miller about the legislative history. Concluding that the legislative history "makes . . . clear" that Congress wanted to make simple possession a misdemeanor, and remove it from the ambit of § 843(b), Breyer asked if there was any "justification . . . in the law" for permitting the government to fly in the face of Congress's intent. Miller responded by observing that the government's reading does not undermine the statute as a whole, since Congress thought that the use of a phone is a "separate element that introduces a distinct evil that Congress wanted to combat." Next, Miller argued that there was "no legislative history specifically addressing" the change from "offense" to "felony" in § 843(b), implying that the change was not as significant as petitioner suggests.

Miller next faced questions from Justice Ginsburg about the effects of a felony conviction. To Justice Ginsburg, it seemed "odd that at one and the same time," Congress would have decided to give reduce possession offenders' liability and afford them a chance at rehabilitation, while subjecting a whole group of them to felony treatment "if they use a telephone." Miller responded by suggesting that the use of a phone distinguishes mere buyers from those subject to the statute. In response, Justice Scalia suggested that Miller's reasoning is "pretty parallel to what we've done in the buyer-seller rule."

Justice Breyer then asked if Miller could name "another example in the law" where the law punishes a customer "as if he ran the business." Miller could not name an example, but noted that the statute enumerates a "separate offense" with its "own penalty" rather than punishing customers as if they were distributors. In response, Justice Kennedy repeated his earlier question about the scope of prosecutorial discretion under the statute. In response to Miller's statement that nothing in the U.S. Attorney's Manual "specifically addresses this statute," Justice Ginsburg asked about the charging policy of the Department of Justice to "charge the most serious offense supported by the facts." According to that policy, observed Justice Ginsburg, prosecutors would always have to charge misdemeanant buyers using phones with violations of § 843(b). Miller responded by arguing that such charging decisions are a "legitimate aspect of the system."

Justice Souter followed up with a question about the "multiplier effect" of the statute, asserting that it may be "without parallel in the law." Miller retreated to the text of the statute, arguing that Congress intended for that multiplier effect to exist. After a brief discussion of the legislative history, Justices Souter and Ginsburg turned back to the practical effect of the government's reading of the statute. Justice Ginsburg again asked whether Congress really would have intended drastically to reduce the punishment for mere purchasers, but then subject them to the serious consequences of a felony conviction merely for using a phone in their purchase. Justice Souter concluded by asking if the practical effect of Miller's position was "render[ing] nugatory" Congress's 1970 amendments to the statute. Miller responded by noting that there may be some instances where both the purchase and sale of a drug would be a misdemeanor, in which case § 843(b) would not apply.

In a brief rebuttal, Srinivasan noted that any ambiguities should be resolved in his favor under the rule of lenity. Justice Alito asked Srinivasan about whether his reasoning would also apply to a hypothetical scenario in which the government attempted to prosecute a buyer who used a machine gun to facilitate a drug purchase for personal use under a statute punishing the use of a machine gun in facilitating the commission of a felony. Ultimately, Srinivasan stated that the case would come out the same way, since the "initial predicate of that theory, which is that the person is facilitating the sale by buying, wouldn't work."

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