June 16, 2008
Circuit Split on Meaning of 21 USC 843(b)
21 USC 843(b), entitled "Communication facility," relates to drug trafficking and 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.
Does this language apply to using a telephone to acquire drugs for personal use? On that question, the courts split. A recent Fourth Circuit decision, U.S. v. Abuelhawa, 523 F.3d 415 (4th Cir. 2008 , available here, explained the split:
Because there is no dispute that Abuelhawa used a communication facility (a cell phone) to arrange the drug transactions, we believe this case can be decided by focusing only on whether Abuelhawa facilitated the commission of a felony. We begin with the recognition that our sister circuits are divided on the issue facing us; some find that when a communication facility is used to facilitate a drug sale for personal use, § 843(b) is not violated. See United States v. Baggett, 890 F.2d 1095, 1098 (10th Cir.1990); United States v. Martin, 599 F.2d 880, 888-89 (9th Cir.1979) overruled on other grounds by United States v. DeBright, 730 F.2d 1255 (9th Cir.1984). FN6 These circuits take the position that “a mere customer's contribution to the business he patronizes does not constitute the facilitation envisioned by Congress.” Martin, 599 F.2d at 889. In contrast, other circuits have concluded that distributions for personal use are covered by § 843(b). See United States v. Binkley, 903 F.2d 1130, 1135-36 (7th Cir.1990); United States v. McLernon, 746 F.2d 1098, 1106 (6th Cir.1984); United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B Dec.1981) overruled on other grounds by United States v. Huntress, 956 F.2d 1309 (5th Cir.1992).FN7 The Seventh Circuit, in Binkley, noted the term “facilitate” “should be given its ordinary meaning, which is, simply, ‘to make easier.’ ” Binkley, 903 F.2d at 1135 (quoting Phillips, 664 F.2d at 1032). See also McLernon, 746 F.2d at 1106 (same). And, by placing the focus on the use of a communications device to make a distribution easier, a defendant's “subsequent treatment of the cocaine cannot retroactively diminish [the defendant's] previous facilitation of ... [a] cocaine sale.” Binkley, 903 F.2d at 1136.
It's an interesting split, that seems to mostly turn on purposivist views, and little else. Stay tuned. Any thoughts?
June 16, 2008 | Permalink
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Thanks for alerting us to the split.
PS I think that the citation in the first line should be 21 USC 843(b) instead of 28 USC 843(b)
Posted by: Mark Wojcik | Jun 17, 2008 4:13:50 AM