United States v. Semler, No. 19-2319

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtROTH, Circuit Judge
PartiesUNITED STATES OF AMERICA v. EMMA SEMLER, Appellant
Decision Date01 June 2021
Docket NumberNo. 19-2319

UNITED STATES OF AMERICA
v.
EMMA SEMLER, Appellant

No. 19-2319

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued on September 23, 2020
June 1, 2021


NOT PRECEDENTIAL

Appeal from the United States District Court for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-17-cr-00120-001)
District Judge: Honorable Gene E.K. Pratter

Before: AMBRO, PORTER and ROTH, Circuit Judges

Peter Goldberger (ARGUED)
50 Rittenhouse Place
Ardmore, PA 19003

Counsel for Appellant

Nancy Rue (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Counsel for Appellee

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Scott Burris
Temple University
Beasley School of Law
1719 N. Broad Street
Philadelphia, PA 19122

Counsel for Amicus Appellants

OPINION*

ROTH, Circuit Judge

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,1 a charge that carries a mandatory minimum sentence of twenty years' imprisonment.2 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.

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I

This case centers on the purchase and injection of heroin and resulting overdose death of Jennifer Werstler. The details of the transaction are relevant to our analysis and are recounted below.

A. Factual Background

Semler and Werstler were both addicted to heroin. They met in a rehabilitation center as teenagers. On the evening in question, Werstler returned to Pennsylvania from Florida for a drug-related hearing and immediately began reaching out to her network in search of heroin. She contacted Semler via Facebook Messenger, asking, "Can we go get some???"3 Semler responded that she knew of somewhere "close," but Werstler would need to provide access to a car.4 Werstler then asked Semler if she could "front" (advance) her $10 worth of heroin and provide a syringe and water bottle for injection, and Semler agreed.5

That evening, according to testimony from Semler's sister Sarah, Werstler picked up Semler and Sarah and drove them to a location in West Philadelphia, where they purchased heroin. Sarah testified that she did not purchase the drugs from the dealer, but could not recall whether Semler or Werstler completed the purchase. The group then drove to a KFC restaurant where they entered the women's restroom to inject the heroin.

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Sarah testified that Semler physically handed her and Werstler baggies of heroin, and all three used their own needles to inject the drug.

After injection, Werstler began showing signs of an overdose. Sarah and Semler attempted to revive Werstler by splashing cold water on her, then left the bathroom and called their mother for a ride home. They did not call 911 or alert anyone to Werstler's condition. A KFC employee later discovered Werstler unresponsive and called 911. EMTs were unsuccessful in attempting to revive Werstler and pronounced her dead soon after. An autopsy found that her death was caused by an adverse reaction to heroin.

B. Procedural History

A grand jury in the Eastern District of Pennsylvania returned a two-count indictment charging Semler with 1) distribution of heroin resulting in death, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; and 2) distribution of heroin resulting in death, within 1,000 feet of a playground, and aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.

At the conclusion of the government's evidence at trial, Semler moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure on the basis that the government had failed to prove that she distributed heroin to Werstler. The District Court denied her motion. It also denied Semler's request to instruct the jury on proximate causation in connection with the "resulting in death" element of 21 U.S.C. § 841(b)(1)(C) and denied her motion to instruct the jury that individuals who jointly and

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simultaneously acquire possession of a controlled substance for their shared personal use can be guilty only of simple possession.6

After a seven-day trial, a jury found Semler guilty of both charged counts. The District Court sentenced Semler to 252 months' (21 years') imprisonment, one year greater than the 20-year mandatory minimum imposed by Count 2 (distribution resulting in death 1,000 feet from a playground), of which Count 1 is a lesser included offense.

Semler appealed. On appeal, she presents three arguments: That the District Court applied the incorrect legal standard in refusing to allow a joint possession/simultaneous acquisition/personal use instruction, that the evidence was insufficient to show that she distributed heroin to Werstler, and that the District Court erred in refusing to instruct the jury that it must find proximate cause in order to establish the aggravated offense of "distribution resulting in death" under 21 U.S.C. § 841(b)(1)(C). We address each argument in turn.

II

Although we generally review a district court's jury instructions for abuse of discretion, when one party challenges a jury instruction on grounds of "statutory construction involving the interpretation and application of legal precepts," review is plenary.7 In conducting plenary review, we consider whether the charge, taken as a

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whole and in light of the evidence presented, fairly and adequately submitted the issues in the case to the jury.8

III

The Controlled Substances Act (CSA), 21 U.S.C. § 841, makes it unlawful for any individual knowingly or intentionally to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."9 The meaning of the terms involved here is critical. We first look at "distribute." The CSA defines it as "to deliver,"10 and defines "deliver" as "the actual, constructive, or attempted transfer of a controlled substance . . . whether or not there exists an agency relationship."11

That brings us to the proper interpretation of the term "transfer," which is not defined in the CSA. When words are not defined within a statute, we construe them "in accordance with [their] ordinary or natural meaning."12 However, we "do not . . . do so blindly."13 Rather, "statutory language must be read with reference to its statutory context," and "may or may not extend to the outer limits of its definitional possibilities."14 For example, we will not interpret a "word[] of general meaning" to include a particular act where "consideration of the whole legislation, or of the

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circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include [it]."15

The government proposes the broadest possible definition of "transfer": that is, that any physical handoff of drugs from one person to another, no matter the circumstances, is a felony distribution offense.16 Semler, on the other hand, offers an interpretation of "transfer" that centers on possession and control. She argues that, when there has been a joint acquisition or purchase of a controlled substance by a group of users to share among themselves, there is no "transfer" between the members of the group. For the reasons stated below, we conclude that this is the appropriate definition of "transfer" under the facts of this case.

Interpreting "transfer" as Semler suggests is consistent both with the term's plain meaning and with our precedent. This definition mirrors the definition of "distribute" in the Third Circuit's Model Jury Instructions, which states that "[d]istribute . . . as used in the offenses charged, means . . . to deliver or to transfer . . . possession or control of a controlled substance from one person to another."17 We have cited it favorably in at

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least two opinions.18 Indeed, we approved a comparable definition in United States v. Figueroa.19

Turning to a plain reading of the statute, we are not persuaded by the government's sweeping interpretation.20 While we agree that Congress intended "distribute" to be construed broadly in the context of the CSA, neither Section 841(a)(1) nor any other provision in the statute indicates that every instance of shared drug use

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must constitute a felony distribution.21 Such a construction is "hyperliteral,"22 contrary to the ordinary usage of the terms "transfer" and "distribute," and leads to consequences that Congress cannot have intended. As Judge Posner explained in a similar situation:

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. It would be very odd to describe what you had done as 'distributing' the food to him. It is similarly odd to describe what [the codefendants] 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 [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
...

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