concurring in part and dissenting in part:
I concur fully with the majority opinion except insofar as it sustains Binkley’s conviction for use of a telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). There is no evidence, as the majority agrees, that Binkley wanted to buy the cocaine involved here for any purpose other than for personal use.
The majority asserts, however, that Bink-ley, the potential consumer of the cocaine, has, by seeking the drug from Solomon, facilitated the distribution of the drug from Solomon to himself. This is an ingenious but ultimately unavailing rationale. It is a bit like saying that the victim of a statutory rape facilitated the crime by climbing into bed with the rapist. It is simply not possible, with respect to criminal responsibility, to participate in the distribution of drugs (or perhaps anything else) to one’s self.
*1138The governing statute defines the word, “distribution,” in terms of “delivery.” See 21 U.S.C. § 802(11). This means, at least by implication, that distribution can only be ultimately accomplished by “delivery” to a distributee. See, e.g., United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979) (sharing of cocaine with others constitutes “distribution”; a small amount of cocaine is not a distributable amount); United States v. Dovalina, 525 F.2d 952, 957-58 (5th Cir.) (distinguishing between “possession” — defined as “possession for one’s own use” — and “distribution”), cert. denied by Soliz v. United States, 425 U.S. 953, 96 S.Ct. 1729, 48 L.Ed.2d 197 (1976).
Indeed, it is a well settled principle of criminal liability that a secondary party cannot be held accountable as an accomplice if the offense with which the principal is charged is defined in such a way that the secondary party’s conduct is inevitably incident to its commission. See Model Penal Code § 2.06(6). (Most state codes contain this same provision.) In People v. Hart, for example, a Colorado Court of Appeals recently held that
the conduct of one who takes delivery of [a] controlled substance is “inevitably incident” to the criminal conduct of one who delivers the controlled substance. Hence, a person who takes delivery of a controlled substance by purchase is exempt from liability as a complicitor for the crime of distribution committed by a person delivering the controlled substance to him.
787 P.2d 186, 189 (Colo.App.1989) (emphasis supplied). The existence of a distribu-tee is inevitably incident to the crime of distribution. This means that a distributee can’t logically be convicted of facilitating distribution to himself or herself. In United States v. Pino-Perez, 870 F.2d 1230, 1231 (7th Cir.1989) (en banc), cert. denied, — U.S. -, 110 S.Ct. 260, 107 L.Ed.2d 209 (1989), we said that, “When a ‘crime is so defined that participation by another is necessary to its commission,’ that other participant is not an aider and abettor,” quoting United States v. Southard, 700 F.2d 1, 20 (1st Cir.1983). If Binkley cannot be convicted of “aiding” or “abetting” distribution to himself, it follows that he cannot be held accountable for “facilitating” distribution to himself either. Indeed, “aiding” and “facilitating” are almost synonymous.
Moreover, the majority’s argument is untenable for another reason. Under 21 U.S.C. § 843(b), it is unlawful to use a telephone to facilitate any act constituting a felony under Title II. The majority argues that Binkley facilitated Solomon’s sale of cocaine, a felony under § 841(a). But, in view of the arguments I have outlined, the focus should be on Binkley’s acts, not on Solomon’s. The indictment itself focuses on Binkley’s actions — upon his telephoning Solomon to inquire about the availability of cocaine. As the Ninth Circuit has held:
the use of a telephone to order cocaine for personal use is ... not a lesser-included offense; indeed, it is no offense at all. Section 843(b) condemns the use of a telephone in facilitating the commission of certain felonies. Possession [of small amounts] of cocaine for personal use is only a misdemeanor. See 21 U.S.C. § 844. There is no statute analogous to § 843(b) punishing the use of the telephone to commit a misdemeanor.
United States v. Brown, 761 F.2d 1272, 1278 (9th Cir.1985). Hence, under the majority’s theory, actual possession of one gram of cocaine would be a misdemeanor, though use of the telephone to obtain the cocaine would be a felony. This makes no sense.
Further, in United States v. Martin, 599 F.2d 880, 888 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979), the Ninth Circuit held that a person who merely attempts to purchase a drug for his own use cannot be convicted, on the basis of that act alone, of “facilitating” a conspiracy. Shortly after the opinion was approved, the Tenth Circuit in United States v. Baggett, 890 F.2d 1095 (10th Cir.1990) joined the Ninth Circuit’s decision in Martin. No other circuit has yet held otherwise. For circuits citing Martin with approval see United States v. Van Buren, 804 F.2d 888, 892 (6th Cir.1986); United *1139States v. Prieskorn, 658 F.2d 631, 634 (8th Cir.1981).
For these reasons, neither the facts nor the law here supports the conviction of Binkley on the telephone facilitation counts. I therefore respectfully dissent with respect to these counts.