In the
United States Court of Appeals
For the Seventh Circuit
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No. 15‐1994
SCOTT WELDON,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:14‐cv‐00691‐DRH — David R. Herndon, Judge.
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ARGUED AUGUST 9, 2016 — DECIDED AUGUST 24, 2016
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Before BAUER, POSNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The 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
2 No. 15‐1994
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.
The 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.
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 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
No. 15‐1994 3
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.
United 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.
The 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
4 No. 15‐1994
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 of
distribution?
What 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 Weldonʹs lawyer to his client
“umpteen times” that a defense to the charge of distribution
had a zero chance of success was constitutionally deficient.
Itʹs 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 opinion. (The government
has filed a motion to supplement the record on appeal, but
we deny the motion; it is better for the district court to have
the full record before it on remand.)
VACATED AND REMANDED