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June 2, 2021

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

June 2, 2021 at 03:48 PM | Permalink


This case reminds me of the case of James M. Terry, from Tampa, Florida, circa 1997. At a party, Terry gave 2 grams of heroin to a life-long friend, for his personal use. But his friend only used 0.5 gram of the heroin at the party. The next day, he sold 1 gram to one man and 0.5 gram of heroin to a second man. Those two men mixed the heroin with other drugs (cocaine and benzo pills) and both died of drug overdoses. The Tampa U.S. Attorney's Office could not get Mr. Terry indicted for conspiracy to distribute, because the drugs were a gift to a friend and there was no agreement for further distribution. So, the Feds pursued Mr. Terry for the "distribution" to his friend at the party. Mr. Terry pleaded guilty and went into sentencing facing 18 to 23 months under the Guidelines. Instead, he walked out of sentencing with a life sentence, based upon the enhancement for "distribution resulting in death" (even though the person he distributed to did not die, and did himself serve 20 years for the distribution resulting in death). In his plea agreement, James Terry had waived his right to appeal his conviction, but his sentence appeal was affirmed by the 11th Circuit, and he subsequently had two 2255 habeas corpus motions denied. After serving more than 20 years in Federal prison, Mr. Terry was able to secure his release via 2241 habeas corpus petition, using the "escape hatch" provision of 2255, based upon a new Supreme Court decision that changed the law. That decision was Burrage v. United States, 571 U.S. 204 (2014). In Burrage, the Supreme Court changed the legal meaning of "distribution resulting in death" from "strict liability" to a "but for" cause of the victim's death. James Terry's 2241 petition and the briefs and release order can be found on PACER in the U.S. District Court for the District of Arizona at Tucson. He was released from Federal prison in December 2017. His case raises serious legal and ethical questions. One of the men who died, leading to Mr. Terry being giving a dubious life sentence, was the son of a long-term secretary in the Tampa U.S. Attorney's Office, and he was a long-term drug addict, who had overdosed many times.

Posted by: Jim Gormley | Jun 3, 2021 9:24:00 AM

Given the nature of the dissent in this case, I won't be surprised if the Third Circuit ends up granting Rehearing En Banc in this case.

Posted by: Jim Gormley | Jun 3, 2021 9:37:08 AM

Because overdoses from illegally using heroin and opiate pills, many drug dealers today given away Narcan with the heroin and pills they sell, in an effort to protect their customers and mitigate the risk that they may ever be prosecuted for "distribution resulting in death". Also, heroin addicts also acquire their own Narcan and keep it handy when they and their friends use heroin and opiate pills, so that no one dies, even if they overdose. In James Terry's case, described above, one of the two men who died had overdosed earlier on the day he died, and had been driven by a friend to a hospital, where he was given Narcan. Upon release from the hospital's E.R., he returned to a party and used more heroin (and other drugs) and died. It is difficult for those of us who are not addicts to understand this kind of behavior, which defies common sense.

Posted by: Jim Gormley | Jun 3, 2021 11:41:25 AM

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