For the Defense - Vol. 6, Issue 4 - 26

situation, Semler's sister, Sarah, was present during
the incident and testified at trial. According to Sarah,
that evening Werstler picked her and Semler up and
drove them to West Philadelphia to purchase heroin.
The three then drove to a KFC restaurant where they
injected the heroin in the bathroom. Significantly,
Sarah testified that she could not recall if Semler or
Werstler got out of the car to purchase the heroin
but did recall that Semler handed the heroin packets
to her and Werstler and they each used their own
paraphernalia to inject the drug.
After they each injected themselves with the heroin,
Sarah testified that Werstler began showing signs of
an overdose. Although the two women tried to revive
her, they ultimately left her in the bathroom and
called their mother for a ride home without advising
anyone of Werstler's situation. Werstler was discovered
sometime later by an employee who called 911. She
ultimately died from a heroin overdose.
A grand jury sitting in the Eastern District of
Pennsylvania charged Semler in a two-count indictment
with 1) distribution of heroin resulting in death, and
aiding and abetting, and 2) distribution of heroin
resulting in death, within 1,000 feet of a playground,
and aiding and abetting, in violation of.5 6
informant for $1,250. The informant testified that
before making the purchase, the three snorted some
of the cocaine in an apartment where the defendant
commented that it was not good enough for their
personal use, but he had a buyer who would take it
and they could do business when the informant had
better quality cocaine.10
The two were arrested and charged with possession
of a controlled substance with the intent to
distribute in violation of 21 U.S.C. 841(a)(1). At trial,
the defendants each testified on their own behalf,
denying the informant's testimony other than they
all snorted cocaine together and providing an alleged
(albeit unbelievable) source for the money they had.
The defendants were convicted and on appeal argued
that the district court erred in charging the jury that
the passing of drugs between the two of them could
constitute distribution. The Second Circuit agreed and,
after performing a similar analysis to the Third Circuit
in this case, held that joint purchasers and possessors of
a controlled substance who intend to share it between
themselves as users may not be found guilty of felony
possession with intent to distribute but, rather, simple
possession only.
After a
seven-day jury trial, Semler was convicted of all counts
and sentenced to 252 months' imprisonment, one year
greater than the twenty-year mandatory minimum.7
Semler appealed her conviction and sentence on
three different grounds: 1) that the District Court
erred in refusing to give the jury a joint possession/
simultaneous acquisition/personal use instruction;
2) that the evidence was insufficient to prove Semler
distributed heroin to Werster, and; 3) that the District
Court erred in refusing to instruct on proximate
cause with regard to the " distribution resulting in
death " charge. For the purposes of this article, we
will focus on the first charge of error, as the Court
ultimately dismisses the other two, holding that the
question of whether the evidence was sufficient to
show distribution is a question of fact for a properly
instructed jury, and that the Court did not err is
refusing to instruct on proximate causation.8
A joint possession/simultaneous acquisition/
personal use instruction would have instructed the
jury that where two or more individuals jointly and
simultaneously acquire possession of a controlled
substance for their shared personal use, they may
only be found guilty of simple possession, a view first
articulated and approved by the Second Circuit Court
of Appeals in United States v. Swiderski.9
In Swiderski,
the defendants, Swiderski and his fiancée, purchased
a quarter pound of cocaine from a government
26 For The Defense l Vol. 6, Issue 4
Turning back to Semler, in order to determine
whether the District Court erred in refusing to give
the jury a joint possession/simultaneous acquisition/
personal use instruction, the Third Circuit considered
whether the charge taken as a whole and in light
of the evidence presented fairly and adequately
submitted the issues in the case to the jury.11
In so
doing, it necessarily engaged in the exercise of
statutory interpretation, beginning with the unlawful
conduct of conviction.
Under the Controlled Substances Act ( " CSA " ),12
or
dispense,
or
it is
unlawful for any individual to knowingly or intentionally
" manufacture, distribute,
possess
with intent to manufacture, distribute, or dispense, a
controlled substance. " 13
The CSA further defines the
term " distribute " as " to deliver, " and defines " deliver "
as " the actual, constructive, or attempted transfer of a
controlled substance . . . whether or not there exists an
agency relationship. " 14
The term " transfer " is not defined in the CSA.
Words not defined by a statute are construed by the
courts " in accordance with [their] ordinary or natural
meaning. " 15
The Court makes clear, however, that this
construction cannot be done blindly and " must be
read with reference to its statutory context " ; further,
it " may or may not extend to the outer limits of its
definitional possibilities. " 16
Indeed, the courts will
not include a particular act (here, the simultaneous
purchase of heroin for joint use by addicts) within
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