Sharing May Not Be Caring – But It’s Not Distributing, Either – Update for August 26, 2016

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heroin160826Scott Weldon, his girlfriend and buddy David Roth decided to buy some heroin and shoot up together. They pooled their money and gave it to Scott, who bought the drugs. They then shared it, but after Scott’s girlfriend injected Scott’s buddy, the buddy died.

The Government charged Scott with drug distribution resulting in Roth’s buddy. Scott’s attorney told him he didn’t have a chance of beating the charge, which carried a minimum 20 years in prison, so Scott cooperated with the Government and got a reduced (but still substantial) eight years.

Meanwhile, Scott’s girlfriend went to trial, arguing that the act if injecting Roth was not distribution. She won.

Scott filed a 28 U.S.C. § 2255 motion, arguing that his attorney was ineffective for telling him he couldn’t win. Scott wanted to undo the plea agreement. The district court turned him down flat.

On Wednesday, the 7th Circuit reversed, and sent the case back for an evidentiary hearing. Judge Richard Posner derided the Government’s insistence that Scott had engaged in drug distribution. “Suppose 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,” Judge Posner wrote. “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.”

hamburger160826The Court pointed out that at the time Scott was indicted, there was plenty of precedent holding 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.” Given the wealth of prior decisions on the point, the 7th said, Scott’s lawyer’s insistence “that a defense to the charge of distribution had a zero chance of success was constitutionally deficient.”

In order to win a new trial, Scott must show a reasonable probability that, except for his lawyer’s bum advice, he would not have pleaded guilty and instead would have “insisted on going to trial.” Judge Posner said such an insistence might have persuaded the government to cut a deal with Scott “that would (without the uncertainty of a trial) have reduced his punishment significantly.” Scott is entitled to an evidentiary hearing to determine that.

Weldon v. United States, Case No. 15-1994 (7th Cir. Aug. 24, 2016)


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