August 9, 2016
from the United States District Court for the Southern
District of Illinois. No. 3:14-cv-00691-DRH - David R.
Bauer, Posner, and Sykes, Circuit Judges.
POSNER, Circuit Judge.
defendant pleaded guilty to having distributed an illegal
drug, resulting in a death. See 21 U.S.C. §§
841(a)(1), (b)(1)(C). Because he agreed to cooperate with the
government in the prosecution of another person who had
contributed to the death, he received a prison sentence of
only eight years. Three years later he filed a motion to
vacate his conviction and sentence on the principal ground
(and the only we need discuss) that his lawyer had rendered
ineffective assistance by persuading him to plead guilty
because (according to the lawyer), the defendant had no
possible defense. The district judge denied the motion,
precipitating this appeal.
facts giving rise to the defendant's prosecution and
conviction are as follows. Defendant Weldon, his girlfriend
Andrea Fields, and their friend David Roth pooled $120 (Roth
contributing $100 and Weldon and Fields $20 jointly) to buy
heroin from Weldon's drug dealer. The three drove in
Roth's car (Roth driving) to meet the dealer. Roth parked
behind the dealer's car at the arranged meeting place and
Weldon got out of Roth's car, walked to the dealer's
car, gave the dealer the $120 for the heroin, and returned
with it to Roth's car. Weldon gave the heroin, which was
wrapped in a dollar bill, to Fields, who tucked it away. Roth
then drove to his home, where Fields mixed the heroin with
water, divided the mixture into three equal parts, and
injected it into the three of them. Roth died from the
mixture injected into him. Fields was tried for her role in
Roth's death, but argued that what she did in injecting
Roth was not distribution, and she was acquitted.
you have lunch with a friend, order two hamburgers, and when
your hamburgers are ready you pick them up at the food
counter and bring them back to the table and he eats one and
you eat the other. It would be very odd to describe what you
had done as "distributing" the food to him. It is
similarly odd to describe what either Weldon or Fields did as
distribution. They had agreed to get high 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 Weldon 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 Roth'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 Roth's residence.
And remember that a jury rejected the argument that
Fields' injecting Roth with the heroin (which metabolized
to morphine after it was injected) was the
distribution of the heroin-morphine to Roth.
States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977),
holds that individuals who "simultaneously and jointly
acquire possession of a drug for their own use, intending
only to share it together, " are not distributors,
"since both acquire possession from the outset and
neither intends to distribute the drug to a third person,
" and so "neither serves as a link in the chain of
distribution." This reasoning has been approved in
several cases, see United States v. Layne, 192 F.3d
556, 569 (6th Cir. 1999); United States v. Hardy,
895 F.2d 1331, 1334-35 (11th Cir. 1990); United States v.
Rush, 738 F.2d 497, 514 (1st Cir. 1984); cf. United
States v. Mancuso, 718 F.3d 780, 798 and n. 10 (9th Cir.
2013), though our court has had no occasion to opine on it.
government argues (with no judicial support) that the holding
of Swiderski is inapplicable to this case because
"Weldon was the only one of the three to get out of
Roth's car and conduct a hand-to-hand exchange of money
for heroin with the dealer." The implication is that the
rule of Swiderski requires absurd behavior. Imagine
Weldon, Roth, and Fields squeezing into the dealer's car
and each handing the dealer a separate handful of money. What
on earth would the dealer think of such antics? How would he
react? What would he do? If he gave them the drug would they
have to divide it on the spot in order to avoid being guilty
matters is that the defendants were participants in the same
transaction. No cases require literal simultaneous
possession; Swiderski and another decision (very
like the present case) implicitly reject such a requirement.
United States v. Swiderski, supra, 548 F.2d at 448;
United States v. Speer, 30 F.3d 605, 608-09 (5th
Cir. 1994). Given these decisions, the insistence of
Weldon's lawyer to his client "umpteen times"
that a defense to the charge of distribution had a zero
chance of success was constitutionally deficient.
true that to be entitled to a new trial Weldon has to
establish "a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial, " Hill v.
Lockhart,474 U.S. 52, 59 (1985), an insistence that
might have persuaded the government to negotiate a settlement
with him that would (without the uncertainty of a trial) have
reduced his punishment significantly. See Missouri v.
Frye,132 S.Ct. 1399, 1409 (2012); Kovacs v. United
States,744 F.3d 44, 53 (2d Cir. 2014). Weldon is
entitled to an evidentiary hearing to determine that
probability. The judgment of the district court is therefore
vacated and the case remanded for further proceedings
consistent with this ...