## Facts

- Walter Swiderski and Maritza De Los Santos were tried in the Southern District of New York for possessing cocaine with intent to distribute under 21 U.S.C. § 841(a)(1).
- The substance seized weighed 21.5 grams and contained 4.1 grams of cocaine.
- A government informant, Martin Charles Davis, an admitted drug user and dealer, testified about prior contacts with Swiderski and negotiations for a cocaine purchase.
- Swiderski and De Los Santos picked up Davis, displayed a large amount of cash, and went to an apartment where Davis introduced them to the seller, Morales.
- After Swiderski and De Los Santos left the apartment with the cocaine, they were arrested.
- The government’s proof supported that the defendants jointly acquired and simultaneously possessed the cocaine, intending to share it only between themselves as users, with no proof of an intended transfer to any third person.
- The defendants’ earlier conviction on the same charge had been reversed due to an inadequate entrapment instruction; in the second trial they were again convicted.
- The trial judge instructed the jury that “distribution” could include giving drugs “to a friend” or “even to your fiancée,” permitting conviction based on sharing between the two defendants.

## Issues

1. Whether two individuals who jointly and simultaneously acquire a controlled substance solely for their own use, intending only to share it between themselves, may be convicted of possession with intent to distribute under 21 U.S.C. § 841(a)(1).
2. Whether the district court’s instruction defining “distribution” to include giving drugs to a friend or fiancée was reversible error on these facts.
3. Whether, if the § 841(a)(1) conviction cannot stand, the proper disposition is entry of judgment for simple possession under 21 U.S.C. § 844.

## Decision

- The Second Circuit reversed the § 841(a)(1) convictions.
- The court held that joint purchasers who simultaneously acquire and possess a drug for shared personal use may not be convicted of possession with intent to distribute based only on sharing between themselves.
- The court found the jury instruction erroneous because it allowed a felony conviction without proof of intent to transfer to anyone outside the joint purchasers.
- The court rejected harmless-error arguments because the instruction supplied the only realistic basis for “distribution” given the absence of evidence of third-party transfer.
- The case was remanded for entry of judgments of simple possession and for resentencing.

## Legal Principles

- “Distribute” under § 841(a)(1), read with §§ 802(8) and 802(11), targets transfers associated with trafficking, not mere sharing incident to joint acquisition for personal use.
- When two individuals jointly and simultaneously acquire possession of a controlled substance for their own use, subsequent passing between them is treated as part of their original joint possession rather than a “delivery” to each other.
- Absent evidence of intent to transfer to a third party, intent to share a jointly acquired drug between co-users does not establish “intent to distribute” for § 841(a)(1) purposes.
- Jury instructions defining “distribution” must not collapse the statutory distinction between felony trafficking conduct (§ 841) and misdemeanor simple possession (§ 844).

## Conclusion

The court held that joint purchasers who simultaneously acquire drugs for their shared personal use cannot be treated as felonious distributors under § 841(a)(1) merely because they intend to share the drugs between themselves; without proof of intended transfer to others, the proper conviction is for simple possession under § 844.


United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977)