Court accepts case on felony charge for drug possession (Nov. 14, 2008)

The Supreme Court has agreed to decide whether using a cellular phone to buy drugs for personal use converts that possession misdemeanor crime into a felony.

In early 2000, the FBI began investigating Mohammed Said for possible cocaine distribution. Federal agents intercepted eight calls between Said and Salman Khade Abuelhawa for the purchase of narcotics on July 5 and July 12, 2003. Based on the intercepted telephone calls, Abuelhawa was placed under arrest.

While buying drugs for personal use is normally a misdemeanor, he was charged with a felony under 21 U.S.C.A. § 843(b) for using his cell phone to “facilitate” the dealer’s drug trafficking.

The U.S. District Court for the Eastern District of Virginia sentenced Abuelhawa to 24 months probation and a $2,000 fine.

Abuelhawa 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.

In April 2008, a three-judge panel on the 4th U.S. Circuit Court of Appeals affirmed the lower court’s holding.

In asking the Supreme Court to accept the case, attorneys for Abuelhawa argue that “the court of appeals’ decision in this case deepens an acknowledged conflict among the circuits concerning the proper interpretation of 21 U.S.C. § 843(b).”

On Nov. 14, the justices accepted the case for review.

Question presented: Whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).