For the Defense - Vol. 6, Issue 4 - 27

the definition of a word of general meaning (here,
" transfer " ) where - after consideration of the whole
legislation or circumstances surrounding its enactment
or of the absurd results that would follow from
assigning the word such broad meaning - to do so
would make it difficult to believe that the legislation
was intended to include that conduct.17 18
It is through this lens that the Third Circuit analyzes
the parties' arguments regarding whether Semler was
entitled to a joint possession/simultaneous acquisition/
personal use instruction. The government's proposed
definition of " transfer, " the Court reasons, is the
broadest possible definition of the word, making
any handoff of any drug from one person to another
a felony offense regardless of the surrounding
circumstances.19
Semler's definition, on the other
hand, focuses on possession and control, arguing that
when a group of users jointly acquire drugs to share
among themselves, there is no transfer of possession
and control as contemplated by the statute.20
In agreeing with Semler, the Third Circuit reasoned
that her interpretation mirrored the Third Circuit's
Model Jury Instructions, which define " distribute " as
" ...to deliver or to transfer...possession or control of
a controlled substance from one person to another, " a
definition the Court had already cited with approval in
prior cases.21
Even accepting that Congress intended
the CSA's definitions to be construed broadly, the
Third Circuit reasoned that to adopt the government's
definition
would
be
" hyperliteral,
contrary
to
the ordinary usage of the terms " transfer " and
" distribute, " and leads to consequences that Congress
cannot have intended. " 22
Much like the absurdity of referring to the purchase
of a hamburger for one's friend as a " distribution " the
moment the burger is handed over, similarly absurd
would be the government's definition here, which
would encompass every instance of shared drug use as
a felony offense. As Judge Posner stated in Weldon,
It is similarly odd to describe what [the
codefendants] did as
agreed to get high
distribution. They had
together, they shared
the expense, they all went together to the
drug dealer, and they shared the drug that
they bought from him. It's true that only [one
defendant] transferred the money for the drug
to the dealer, but it was the pooled money that
he was handing over, although his contribution
to the pool had been slight. It's true that having
paid he carried the drug back to [the decedent's]
car. But it would have been absurd for all three
to have gone up to the dealer and each pay him
separately, and even more absurd for them to
have carried the minute package, containing less
than half a gram of powder, together to the car
and from the car to [the decedent's] residence.23
Despite reversing Semler's conviction and remanding
for a new trial, it is important to recognize that its
holding is limited to the facts of this case. Indeed,
the Court makes clear that while it did not accept
the government's broad interpretation of the term
" distribute, " it was not holding that a distribution
could not take place in any instances of social sharing.
Certainly, there may be situations where a
transfer of possession has occurred between
users in a social setting. Consider a situation
in which one user goes alone to purchase a
quantity of a controlled substance for himself,
then transfers some or all of that substance to
another user in a social setting for that person to
use alone or share with others. Such a situation is
more likely to constitute a distribution than the
one presented here, where individuals purchase
drugs together to share only among themselves.
In this context, we decline to find that every
physical divvying up of a small quantity of jointly
purchased and shared drugs must constitute a
distribution.24
Moreover, the Third Circuit's ruling does not mean
that Semler was not guilty of distribution of heroin
resulting in death. Rather, it means that had the finder
of fact been properly instructed as to joint possession/
simultaneous acquisition/personal use, it could have
reasonably found that such circumstances existed in
this case and convicted Semler of simple possession
(or acquitted her altogether) as opposed to a felony
distribution charge carrying a twenty-year mandatory
minimum sentence.
Given those limitations, what can we take away
from this case? As an initial matter, if faced with a set
of facts similar to Semler, defense counsel could be
found constitutionally ineffective if they insisted to
their client that a defense to the charge of distribution
was impossible and based on that erroneous counsel,
the defendant chose to forgo a trial on the merits.
Indeed, this is precisely what happened in Weldon,
where on remand the defendant was entitled to an
evidentiary hearing to determine whether, but for
counsel's errors, he would not have pleaded guilty and
insisted on going to trial.25
Moreover, if defending a
case with similar underlying facts, an attorney should
make every effort to frame those facts within the
context of simple possession so the trial court will have
to provide a joint possession/simultaneous acquisition/
personal use instruction under Semler.
Vol. 6, Issue 4 l For The Defense 27
For the Defense - Vol. 6, Issue 4

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