The Supreme Court of the United States granted certiorari in a case in which New York University School of Law’s Center on the Administration of Criminal Law filed its first amicus curiae brief. The Court will review a lower court’s ruling in U.S. v. Abuelhawa, in which petitioner Salman Khade Abuelhawa was convicted under a federal statute for using his cell phone to purchase drugs for personal use, conduct the statute was not intended to reach.

The decision by the U.S. Court of Appeals for the Fourth Circuit deepens an acknowledged conflict among the circuits concerning the proper interpretation of 21 U.S.C. § 843(b), which makes it unlawful to use a communications device to facilitate the commission of any act constituting a felony under the federal drug laws.

The Fourth Circuit affirmed Abuelhawa’s conviction in the U.S. District Court for the Eastern District of Virginia, reasoning that the crime facilitated by petitioner’s use of his cell phone was not the purchase of drugs for personal use, a misdemeanor, but was the seller’s distribution of the drugs, a felony.

“The Center is thrilled the Court will hear a case that typifies one of our core missions: to intervene in cases where prosecutors’ overly aggressive exercise of discretion in charging leads to errors of law,” said Anthony Barkow, who is the Center’s executive director and who was a federal prosecutor for 12 years. “As the Center’s brief makes plain, prosecutors should not use their substantial discretion to prosecute a crime that Congress never intended.”

Three courts of appeals hold that Section 843(b) does not reach the use of a telephone to purchase drugs for personal use, while two courts of appeals - including the court of appeals in this case - have now reached the opposite conclusion.

In this case, Abuelhawa was charged with seven counts of violating Section 843(b) for using a telephone to arrange at most two meeting to purchase drugs. Thus, instead of the maximum two years imprisonment he faced on two misdemeanor counts of simple possession, he was instead subject to seven felony convictions totaling 28 years in prison, and deportation.

“If the charging theory, which is very aggressive, and the lower court’s reading of this statute are left standing, the statute will sweep within it a huge number of new defendants,” Barkow said. “Basically, anyone who buys drugs using a telephone could be prosecuted as a felon.”

“The lower court’s decision eviscerates the clear statutory distinction between distributors and purchasers, elides the basic concerns that gave rise to Section 843(b) in the first place, and will have a fundamental and unwarranted impact upon the exercise of prosecutorial discretion and the criminal justice process more generally,” the brief stated.

Barkow, along with the Center’s faculty director, NYU School of Law Professor Rachel Barkow, prepared the brief in partnership with the law firm of Davis Polk & Wardwell.

Oral arguments in the case are expected to take in March 2009.

Reporter Contact: Anthony Barkow
Executive Director, Center on the Administration of Criminal Law NYU School of Law


The Center on the Administration of Criminal Law at New York University School of Law is an apolitical organization dedicated to defining good government practices in criminal prosecutions through academic research, litigation, and participation in the formulation of public policy. The Center is committed to identifying the best prosecutorial practices and suggesting avenues of reform. The Center’s litigation practice aims to use its empirical research and experience with criminal justice to assist in important criminal justice cases at all levels, concentrating on cases in which exercises of prosecutorial discretion raise significant substantive legal issues.

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