The Criminal Lawyer

Not again. It looks like yet another instance of federal prosecutors exercising terrible judgment.

Writing for a unanimous Supreme Court this morning, soon-to-retire Justice Souter clarified what “facilitation” means in criminal law. A buyer calling up a drug dealer to arrange the purchase of some drugs does not count. Apparently, the feds didn’t get the memo.

In this case, Abuelhawa v. U.S., Mohammed Said was a suspected drug dealer whose phone was wiretapped. The wire intercepted six calls from a buyer, Salman Abuelhawa, in which Mr. Abuelhawa arranged two small purchases of cocaine.

The amounts Mr. Abuelhawa bought were strictly misdemeanor level — just one gram each time. But in a bizarre move, the feds charged him with six felony counts of “causing or facilitating” the sales during those intercepted phone calls.

After recovering from the “you’ve gotta be kidding me” stage, Abuelhawa moved to dismiss those charges. But no, the District Court (the Eastern District of Virginia, in Alexandria) said it was perfectly proper to charge a buyer with facilitation of the sale. He was convicted, and appealed to the Fourth Circuit.

The Fourth Circuit also ruled that it’s fine to charge a buyer with facilitation, saying that the word “facilitate” should be given its common meaning, “to make easier or less difficult, or to assist or aid.” Abuelhawa’s request to buy “made the sale possible,” and therefore counted as facilitation.

Ably represented by Joseph McEvoy, of the excellent Virginia law firm of Odin, Feldman & Pittleman, the defendant took it to the Supreme Court.

Writing for the majority, Justice Souter essentially opined “you’ve gotta be kidding me” — only in more genteel language. The government’s overly literal use of “facilitate” he described as sitting “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 feds argued that the facilitation wasn’t the request to buy, but rather the use of a cell phone to do so. A sale can happen without using a cell phone. Using a cell phone makes it easier to sell drugs. So therefore “Congress probably meant to ratchet up the culpability of the buyer who calls ahead.”

Souter respectfully pointed out that this argument was stupid. Congress made it a misdemeanor to buy the drugs. It meant for Abuelhawa to be charged with a misdemeanor. It did not mean him to be charged with facilitating the dealer’s felony.

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We prosecuted drug dealers for years here in Manhattan, and we have to wonder what these Virginia feds were smoking. No prosecutor in their right mind would seriously consider charging a buyer with facilitation. A lookout is a facilitator. A steerer who directs buyers to a particular dealer is a facilitator. A “stash man” or a “money man” who holds stuff for the seller is a facilitator. The buyer is never a facilitator.

When, as here, a hyper-technical reading of the statute might conceivably result in a charge that nobody intended, a good prosecutor simply smiles wryly at the inept wording of statutes in general. But to actually file such charges would require a shocking lack of judgment.

Judgment. It’s something we require of our prosecutors. They have people’s lives, liberty and reputations at stake. They have victims who need justice. They work within a system that relies on them to do the right thing. So it is imperative that they have the uncommon sense to do, not what is technically allowable, but what is actually appropriate.

Not every prosecutor lives up to the challenge, of course. But lately the feds have been showing a remarkable lack of judgment. This case is just one of many in recent years where federal prosecutors have committed forehead-smacking acts of WTF.

So we have to ask… WTF? Seriously. Federal prosecutors have a well-deserved reputation for being bright, dedicated, hard-working and sensible. But in case after case lately, federal prosecutors have made colossal boners of bad judgment. What’s going on? Did we change how we hire people? Did the pool of applicants change? Did the internal culture change? We’d like to know.

Send us your thoughts, and we’ll see about devoting a column to the more thoughtful responses.