CASE NOTES - CRIMINAL LAW - COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 - UNITED STATES V SWIDERSKI, 548 F2D 445 (1977)

• NCJ Number: 54962
• Journal: Brigham Young University Law Review Volume: 1978 Issue: 1 Dated: (1978) Pages: 179
• Author(s): M L HUTCHINGS
• Date Published: 1978
• Length: 10 pages
• Corporate Author: Brigham Young University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE DIFFERENCE BETWEEN 'POSSESSION' AND 'DISTRIBUTION' OF ILLICIT DRUGS ACCORDING TO THE DRUG ABUSE ACT OF 1970 IS EXAMINED AS INTERPRETED BY A FEDERAL COURT OF APPEALS IN UNITED STATES V. SWIDERSKI.

Abstract

WALTER SWIDERSKI, MARITZA DE LOS SANTOS, AND A GOVERNMENT INFORMER MET WITH A NARCOTICS DEALER IN A PREARRANGED RENDEZVOUS TO PURCHASE COCAINE. IN THE PRESENCE OF THE INFORMER AND THE DEALER, SWIDERSKI AND DE LOS SANTOS EACH SAMPLED THE COCAINE. SWIDERSKI THEN PAID THE DEALER AND POCKETED THE NEWLY PURCHASED PACKET OF COCAINE. SHORTLY THEREAFTER, FEDERAL DRUG ENFORCEMENT OFFICERS ARRESTED BOTH SWIDERSKI AND DE LOS SANTOS; A SEARCH REVEALED THAT THE PACKET OF COCAINE WAS IN DE LOS SANTOS' POSSESSION. SWIDERSKI AND DE LOS SANTOS WERE CONVICTED IN FEDERAL DISTRICT COURT OF FELONIOUS POSSESSION OF COCAINE WITH 'INTENT TO DISTRIBUTE.' ON APPEAL, THE DEFENDANTS PRESENTED AN ISSUE OF FIRST IMPRESSION TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, QUESTIONING WHETHER A JOINT POSSESSOR WHO PASSES A JOINTLY PURCHASED DRUG TO A FELLOW JOINT POSSESSOR MAY BE CONSIDERED A 'DISTRIBUTER' UNDER 21 U.S.C. SECTIONS 802 AND 841. THE SECOND CIRCUIT REVERSED THE CONVICTION, HOLDING THAT JOINT POSSESSORS WHO SIMULTANEOUSLY ACQUIRE POSSESSION OF A DRUG FOR THEIR OWN USE CANNOT BE GUILTY OF DISTRIBUTING THAT SAME DRUG TO EACH OTHER. FOLLOWING AN EXAMINATION OF THE BACKGROUND OF THE INTERPRETED STATUTE, IT IS CONCLUDED THAT THE COURT'S HOLDING IS MARKEDLY CONTRARY TO THE APPARENT CONGRESSIONAL INTENT AS EXEMPLIFIED IN THE HOUSE REPORT HYPOTHETICAL, THE MARIJUANA AMENDMENT (MAKING EXCHANGES OF SMALL AMOUNTS OF MARIJUANA GRATUITOUSLY A MISDEMEANOR INSTEAD OF A FELONY), AND OTHER CONGRESSIONAL LANGUAGE. ASIDE FROM THE ISSUE OF CONGRESSIONAL INTENT, THE HOLDING CREATES OBSTACLES TO ITS PRACTICAL APPLICATION AND CREATES THE RISK OF UNWARRENTED EXPANSION. THE SIMPLEST AND MOST EASILY APPLIED INTERPRETATION OF THE ACT WOULD BE TO CONSIDER EVERY EXCHANGE OF A CONTROLLED DRUG BETWEEN INDIVIDUALS TO BE A DISTRIBUTION. (RCB)