U.S. v. Swiderski
| Decision Date | 01 February 1977 |
| Docket Number | D,Nos. 633,634,s. 633 |
| Citation | 548 F.2d 445 |
| Parties | UNITED STATES of America, Appellee, v. Walter SWIDERSKI and Maritza De Los Santos, Defendants-Appellants. ockets 76-1415, 76-1430. |
| Court | U.S. Court of Appeals — Second Circuit |
Julius Wasserstein, Brooklyn, for defendant-appellant De Los Santos.
Marc Marmaro, Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Lawrence B. Pedowitz, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before MANSFIELD, GURFEIN and MESKILL, Circuit Judges.
This appeal raises a nice question that appears to be one of first impression: whether joint purchasers and possessors of a controlled substance, who intend to share it between themselves as users, may be found guilty of the felony of possession "with intent to distribute" as that phrase is used in Title 21 U.S.C. § 841(a)(1), as distinguished from simple possession in violation of § 844, which is a misdemeanor. We hold that they may not.
Appellants Walter Swiderski and Maritza De Los Santos were convicted of one count of possession with intent to distribute 21.5 grams (3/4 ounce) of a substance containing 4.1 grams (1/7 ounce) of cocaine in violation of 21 U.S.C. § 841(a)(1) after a three-day trial before Judge Dudley B. Bonsal and a jury. 1 They were each sentenced to two-year terms of imprisonment, of which six months was to be served in a jail-type institution and the balance suspended, subject to three-year terms of probation and special parole to run concurrently following release from confinement. Appellants claim error in the district judge's jury instruction to the effect that an intent by joint possessors to share in the use of a controlled substance satisfies the language of 21 U.S.C. § 841(a)(1), which requires an "intent to distribute" the substance.
According to the version of facts most favorable to the government, one Martin Charles Davis, a government informant On May 31, 1975, Swiderski sought to buy a quarter pound of cocaine from Davis. Two days later Davis told Swiderski that the cocaine transaction could be completed the next day.
who was an admitted user and dealer in narcotics, testified that in late 1973 Swiderski had given him a sample of THC, a hashish derivative. During the next year and one-half, according to Davis, he and Swiderski discussed dealing in narcotics on several occasions, but did not consummate any transaction because of Swiderski's unwillingness to do so in New York State.
On June 3, 1975, Swiderski and Maritza De Los Santos, then his fiancee and now his wife, picked up Davis at the Chelsea Hotel in New York City, showed him a large quantity of money, and took him to a studio apartment on West 48th Street, New York City, in a van driven by Swiderski. In the bedroom area of the apartment, Swiderski was given a package by Carlton Bush, the supplier whom Davis had located. Swiderski and De Los Santos both sampled or "snorted" some of the cocaine and tested the contents of the package. According to Davis, De Los Santos remarked that the quality of the cocaine was not good enough for their personal use, but that they had a buyer who would take it. Swiderski told Bush that they could do business in larger quantities if Bush could obtain higher quality cocaine at a better price. Swiderski then paid Bush $1,250, put the package of cocaine in his pants pocket, and with De Los Santos drove Davis back to the Chelsea.
Shortly afterward, Drug Enforcement Agents, who had been in contact with Davis and had been keeping Swiderski and De Los Santos under surveillance, pulled their cars in front of the van as it reached 34th Street and Eighth Avenue and arrested the appellants. A search incident to the arrest revealed that De Los Santos had the quantity of cocaine and $3,100 in cash in her purse and that Swiderski had $529 in his possession.
Testifying on their own behalf, the defendants claimed that they had not gone with Davis to the 48th Street apartment to purchase cocaine but only to get "high," that they paid over $1,250 out of fear in order to be allowed to leave the premises safely, that the money in their possession was to be used at the National Boutique Show to purchase goods for De Los Santos' store, the Isle of View Boutique, and that someone "slipped" the package of cocaine into De Los Santos handbag as they left the apartment at West 48th Street. On rebuttal, the government presented two witnesses from the National Boutique Show with whom Swiderski and De Los Santos claimed to have discussed purchases. Both witnesses denied having spoken to the defendants or having taken orders from them.
In summing up, the Assistant United States Attorney argued in substance that even if the defendants bought the cocaine with a view to sharing it between themselves as users, with each taking some of it for "snorts" or "blows," this proof would be sufficient to establish possession "with intent to distribute." The defense argued that the government had failed to prove such an intent. On this subject Judge Bonsal instructed the jury:
"(c) Clarification of the following: If both defendants possess the drug (i. e., one paid for it and it was found in the other's handbag) can 'intent to distribute' mean giving the drug to the other or must third parties be involved?"
In response, Judge Bonsal repeated the substance of his charge on possession with intent to distribute, but now made it clear over defense objections that distribution could be satisfied solely by a transfer between Swiderski and De Los Santos:
"Well, intent to distribute merely means that you intend at some point at a later time to pass all or some of it on. It could mean a sale; it could mean that you could give it away. You could give it to a friend of yours or even to your fiancee. If you are going to do that, that is a distribution. (Emphasis added.)
The jury found both defendants guilty of the felony of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a).
On this appeal Swiderski and De Los Santos claim that the district court's charge that passing of the drug between the two appellants could constitute a distribution under 21 U.S.C. § 841(a) was error.
Title 21 U.S.C. § 841(a), which is part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("the Act"), makes it unlawful to " possess with intent to . . . distribute . . . a controlled substance." Under 18 U.S.C. § 2 one who aids and abets such a felony is guilty as a principal. The Act, at 21 U.S.C. § 802(11), defines "distribute" as meaning "to deliver." Section 802(8) defines the term "deliver" or "delivery" as meaning "the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship." The precise issue raised by the appellants is whether a statutory "transfer" may occur between two individuals in joint possession 2 of a controlled substance simultaneously acquired for their own use.
In order to interpret the foregoing words of the Act it is important to understand their place in the statutory drug enforcement scheme as a whole, which draws a sharp distinction between drug offenses of a commercial nature and illicit personal use of controlled substances. Under 21 U.S.C. § 848 an individual found guilty of engaging in a "continuing criminal enterprise," which means the participation as an organizer or supervisor with five or more other persons in a drug felony that is part of a continuing series of violations, faces a minimum sentence of 10 years imprisonment and a maximum sentence of life imprisonment, plus a fine of not more than $100,000. Section 841, which punishes the manufacture, distribution, or dispensation of controlled substances or the possession of such substances with intent to manufacture, distribute or dispense, provides for a maximum sentence of 15 years imprisonment, a fine of up to $25,000, or both, plus a special parole term of at least 3 years. In contrast, § 844(a) provides that one guilty of simple possession of a controlled substance without a prescription shall be punished by a sentence of imprisonment for not more than one year for a first offender, a fine of not more than $5,000 or both.
In thus distinguishing between (1) participation in a continuing criminal enterprise, (2) possession with intent to distribute, and (3) simple possession, Congress followed the philosophy of the "President's Advisory Committee on Narcotic and Drug Abuse," ("...
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