This case upheld the constitutionality of §7512, but more important, the Superior Court set forth a standard for what evidence is sufficient for a conviction under this section. In this case, there were several intercepted telephone conversations between the defendants Moss, Austin and Sullivan) and a drug dealer that were deemed drug-related, either through expert testimony or through the clear context of the conversation.
The Superior Court held that in addition to showing use of a communication facility, two other elements must be proved (a) defendant knowingly, intentionally or recklessly facilitated (i.e. made easier the commission of) an underlying felony AND (b) that the underlying felony occurred.
In the case of Sullivan, there was clear drug transaction conversations on the telephone plus surveillance that showed Sullivan visiting the dealer shorter thereafter. Held: evidence sufficient to show that Sullivan took a substantial step toward completing the transaction and therefore evidence of offense sufficient.
In the case of Austin, conversations between Austin and the drug dealer related to Austin's supplying the dealer with money to give to the dealer to buy drugs for him. No evidence that this transaction took place.
Held: Insufficient evidence to prove this offense.
In the case of Moss, there were drug related conversations with a CI and subsequent drug transactions between the two. Held: evidence sufficient to prove offense.
SUMMARY: Drug-related conversation without follow-up surveillance to prove a drug transaction or an attempt at a transaction will be insufficient to prove this offense.