It Takes Two to Tango

Historically, courts have declined to impose aiding and abetting liability regarding crimes for which two parties are essential to commission.  As the Model Penal Code puts it, accomplice liability does not extend to conduct that is “inevitably incident” to the main offense; more colloquially, accomplice liability will not apply to crimes for which it “takes two to tango.”  Thus, a buyer of drugs for personal use does not aid or abet the dealer’s distribution; a woman who voluntarily accompanies a man across state lines for purposes of prostitution does not facilitate his violation of the Mann Act; the patron of a speakeasy does not aid and abet the illegal sale of alcohol.  And, as of today, a person who telephones a drug trafficker to order cocaine for personal use does not violate 21 U.S.C. § 843(b).

Section 843(b) offenses are commonly known as “phone counts.”  The statute makes it a felony, punishable by up to four years in prison, to knowingly or intentionally  use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under the Controlled Substances Act.  Some Circuits, including the Seventh, had held that a buyer’s use of the phone in purchasing drugs “facilitates” the seller’s (felony) drug distribution within the meaning of § 843(b).  Today, in Abuelhawa v. United States, the Supreme Court held that Congress, legislating in light of the common-law tradition discussed above, did not intend such a result.  Although the term “facilitate” could be subject to the broad construction urged by the government, the Court found that Congress likely intended the term “facilitate” to be construed similar to “aid and abet.”  The Court noted that Congress generally made simple drug possession a misdemeanor, and transforming misdemeanor possession into a felony simply because a phone was involved would skew “the congressional calibration of respective buyer-seller penalties.”

Phone counts are often used as a means of resolving cases involving greater charges, like conspiracy to distribute.  In those situations, even if the caller is primarily a user, he may intend at least some of the drugs for re-distribution, or he may be middling transactions for others.  But simply using the phone to make a misdemeanor drug purchase is (now) outside the scope of the statute.

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