SCOTUS Rejects Fourth Circuit's Attempt to Turn Misdemeanor Drug Purchases Into a Felony Because a Cell Phone Was Used

The petitioner in this case made two one gram purchases of cocaine from a drug dealer whose phones were being wiretapped. Under 21 U.S.C. 844, these crimes would ordinarily be charged as misdemeanors, but a clever prosecutor tried to charge the petitioner under a felony for using a “communication facility” to facilitate a felony. The Fourth Circuit upheld the petitioner’s conviction stating that the term should be “given its ordinary” meaning. The Court per Justice Souter reversed finding that the term facilitate was necessarily very broad and that the statute should be narrowly construed in relation to the entire scheme. Abuelwaha v. United States, Supreme Court No. 08-192.