OPINION OF THE COURT
ABUELHAWA V. UNITED STATES
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 08-192
SALMAN KHADE ABUELHAWA, PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states court of
appeals for the fourth circuit
[May 26, 2009]
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).[
Footnote 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 (CA4 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 (CA7 1990) (emphasis deleted)). We granted
certiorari, 555 U. S. ___ (2008), to resolve a split among the
Courts of Appeals on the scope of §843(b),[
Footnote 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 (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
(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’
consistent refusal to treat noncriminal liquor purchases as falling
under the prohibition against aiding or abetting the illegal sale
of alcohol. See
Lott v.
United States, 205 F. 28,
29–31 (CA9 1913) (collecting cases). And this Court followed the
same course in rejecting the broadest possible reading of a similar
provision in
Gebardi v.
United States,
287 U. S. 112 (1932).
The question there was whether a woman who voluntarily crossed a
state line with a man to engage in “illicit sexual relations” could
be tagged with “aid[ing] or assist[ing] in … transporting, in
interstate or foreign commerce . . . any woman or girl for the
purpose of prostitution or of debauchery, or for any other immoral
purpose” in violation of the Mann Act, ch. 395, 36 Stat. 825.
Gebardi, 287 U. S., at 116–118 (internal quotation marks
omitted). Since the statutory penalties were “clearly directed
against the acts of the transporter as distinguished from the
consent of the subject of the transportation,” we refused to “infer
that the mere acquiescence of the woman transported was intended to
be condemned by the general language punishing those who aid and
assist the transporter, any more than it has been inferred that the
purchaser of liquor was to be regarded as an abettor of the illegal
sale.”
Id., at 119 (footnote omitted).
These cases do not strictly control the
outcome of this one, but we think they have a bearing here, in two
ways. As we have said many times, we presume legislatures act with
case law in mind,
e.g.,
Williams v.
Taylor,
529
U. S. 362, 380–381, and n. 12 (2000), and we presume here
that when Congress enacted §843(b), it was familiar with the
traditional judicial limitation on applying terms like “aid,”
“abet,” and “assist.” We thus think it likely that Congress had
comparable scope in mind when it used the term “facilitate,” a word
with equivalent meaning, compare Black’s Law Dictionary 76 (8th ed.
2004) (defining “aid and abet” as to “facilitate the commission of
a crime”) with
id., at 627 (defining “facilitation” as
“[t]he act or an instance of aiding or helping; . . . the act of
making it easier for another person to commit a crime”).
And applying the presumption is supported
significantly by the fact that here, as in the earlier cases, any
broader reading of “facilitate” would for practical purposes skew
the congressional calibration of respective buyer-seller penalties.
When the statute was enacted, the use of land lines in drug
transactions was common, and in these days when everyone over the
age of three seems to carry a cell phone, the Government’s
interpretation would skew the calibration of penalties very
substantially. The respect owed to that penalty calibration cannot
be minimized. Prior to 1970, Congress punished the receipt,
concealment, purchase, or sale of any narcotic drug as a felony,
see 21 U. S. C. §174 (1964 ed.) (repealed), and on top of that
added a minimum of two years, and up to five, for using a
communication facility in committing, causing, or facilitating, any
drug “offense,” 18 U. S. C. §1403 (1964 ed.). In 1970,
however, the CSA, 84 Stat. 1242, 21 U. S. C. §801
et
seq., downgraded simple possession of a controlled substance
to a misdemeanor, 21 U. S. C. §844(a) (2006 ed.), and
simultaneously limited the communications provision to prohibiting
only the facilitation of a drug “felony,” §843(b). This history
drives home what is already clear in the current statutory text:
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. 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 it had dropped to a
misdemeanor with the right. As the Government sees it, Abuelhawa’s
use of a phone in making two small drug purchases would subject
him, in fact, to six felony counts and a potential sentence of 24
years in prison, even though buying the same drugs minus the phone
would have supported only two misdemeanor counts and two years of
prison. Given the CSA’s distinction between simple possession and
distribution, and the background history of these offenses, it is
impossible to believe that Congress intended “facilitating” to
cause that twelve-fold quantum leap in punishment for simple drug
possessors.[
Footnote 3]
The Government suggests that this background
usage and the 1970 choice to reduce culpability for possession is
beside the point because Congress sometimes incorporates
aggravating factors into the Criminal Code, and the phone use here
is just one of them; the Government mentions possession by a prior
drug offender, a felony punishable by up to two years’
imprisonment. And, for perspective, the Government points to
unauthorized possession of flunitrazepim, a drug used to
incapacitate rape victims, which is punishable by imprisonment up
to three years. Brief for United States 20. It would not be
strange, the Government says, for Congress to “decid[e] to treat
the use of a communication facility in a drug transaction as a
significant act warranting additional punishment” because
“[t]oday’s communication facilities . . . make illicit drug
transactions easier and more efficient . . . . [and] greatly reduce
the risk that the participants will be detected while negotiating a
transaction.”
Id., at 23–24.
We are skeptical. There is no question that
Congress intended §843(b) to impede illicit drug transactions by
penalizing the use of communication devices in coordinating illegal
drug operations, and no doubt that its purpose will be served
regardless of the outcome in this case. But it does not follow that
Congress also meant a first-time buyer’s phone calls to get two
small quantities of drugs for personal use to expose him to
punishment 12 times more severe than a purchase by a recidivist
offender and 8 times more severe than the unauthorized possession
of a drug used by rapists.[
Footnote
4] To the contrary, 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.[
Footnote 5]
III
The judgment of the Court of
Appeals for the Fourth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
Footnote 1
In full, §843(b) provides:
“It shall be unlawful for any person knowingly
or intentionally to use any communication facility in committing or
in causing or facilitating the commission of any act or acts
constituting a felony under any provision of this subchapter or
subchapter II of this chapter. Each separate use of a communication
facility shall be a separate offense under this subsection. For
purposes of this subsection, the term ‘communication facility’
means any and all public and private instrumentalities used or
useful in the transmission of writing, signs, signals, pictures, or
sounds of all kinds and includes mail, telephone, wire, radio, and
all other means of communication.”
Section 843(d) provides, subject to exceptions not
at issue here, that “any person who violates this section shall be
sentenced to a term of imprisonment of not more than 4 years, a
fine . . . , or both.”
Footnote 2
Compare,
e.g., United
States v.
Binkley, 903 F. 2d 1130, 1135–1136
(CA7 1990) (buyer’s use of phone in purchasing drugs facilitates
seller’s drug distribution), with
United States v.
Baggett, 890 F. 2d 1095, 1097–1098 (CA10 1989)
(buyer’s use of phone in purchasing drugs does not facilitate
seller’s drug distribution);
United States v.
Martin, 599 F. 2d 880, 888–889 (CA9 1979) (same),
overruled on other grounds,
United States v.
De
Bright, 730 F. 2d 1255 (CA9 1984).
Footnote 3
The Government’s suggestion that a result
like this is not anomalous because a prosecutor could exercise his
discretion to seek a lower sentence, see Tr. of Oral Arg. 41,
simply begs the question. Of course, Congress legislates against a
background assumption of prosecutorial discretion, but this tells
us nothing about the boundaries of punishment within which Congress
intended the discretion to be exercised; prosecutorial discretion
is not a reason for courts to give improbable breadth to criminal
statutes. And it ill behooves the Government to invoke
discretionary power in this case, with the prosecutor seeking a
sentencing potential of 24 years when the primary offense is the
purchase of two ounces of cocaine. For that matter, see
id., at 41–43 (concession by Government that current
Department of Justice guidelines require individual prosecutors who
bring charges to charge the maximum crime supported by the facts in
a case).
Footnote 4
The Government does nothing for its own cause
by noting that 21 U. S. C. §856 makes it a felony to
facilitate “the simple possession of drugs by others by making
available for use . . . a place for the purpose of unlawfully using
a controlled substance” even though the crime facilitated may be a
mere misdemeanor. Brief for United States 21 (internal quotation
marks and alterations omitted). This shows that Congress knew how
to be clear in punishing the facilitation of a misdemeanor as a
felony, and it only highlights Congress’s decision to limit §843(b)
to the facilitation of a “felony.”
Footnote 5
The Government asks us to affirm the Fourth
Circuit on an alternative ground: that Abuelhawa used a
communication facility “in causing” Said’s drug felony rather than
“in . . . facilitating” the felony. But the Government’s argument
on this point takes the same form as its argument about the term
“facilitate,” and the reasons that lead us to reject the one
argument apply just as well to the other.
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