please whatever whatever that that's fine by me and you don't have whenever you're ready already been suffering from drug addiction for some four years when her friend jenny wentworth slurred died after sharing a small supply heroin that they along with emma seventeen year old sister had just purchased together if pill presents two unresolved questions of statutory construction which are critical and i think the problem that we have is we have at least a couple of cases figaro talks about a deliberate choice to use broad language in a forty one in connection with the word distribute how do you address the fact that our court has some circumstances in a criminal case i suppose there are circumstances under which you can make a broad application but ordinarily the rule as we know d is one start with the statutory language and to apply a strict interpretation substance because the statute finds the the requirement as transfer and we understand from the model jury instruction on the cases that transfer means transfer of possession not transfer of the physical object in the in every and every possible sense but transfer of possession which is a legal that notion and what the case that we rely on and the principle that we rely on says is that when two people d jointly acquire drugs two or more people jointly acquire drugs  by purchase or any other means and come into joint possession as long as they remain in possession joint possession of those drugs to the moment of use there is no  distribution between them as long as there is no distribute there's no distribution anyone else those who came into joint possession remain in possession and there is no transfer of possession and it's a simple and direct application of the statutory language government's proposal d is is really shocking in its breadth there are tens of thousands of people addicted to heroin many of them acquire drugs together and then use them together and and to suggest that the prosecutors can pick and choose as they wish any of them and charge them with distribution far any conceivable congressional intent would destroy the distinction between simple possession and distribution or possession with intent to distribute which is an enormous difference in the statute  difference between a misdemeanor with a one year maximum and a felony with a maximum of twenty years just in the in its most ameliorated state and then any number  aggravations that can take it up to life very easily can you but the back for a minute and explain why the definition of transferring that you articulated is the one that we should use round of them just the plain meaning definition of transfer that would include a physical transfer there's of course there's an i suppose without a direct object or the verb transfer there's an ambiguity transfer of what right  the model jury instruction which has stood for many many years quite plausibly and rightly refers explains to juries and has explained to juries within our circuit for i forget exactly how long that over a decade for sure that transfer means transfer of possession is the answer refers to transfer of a controlled substance yes but transfer is is it is a word with a connotation which is different from just moving something from one place to another and in the context of controlled substances it is completely reasonable to resolve that ambiguity as transfer of possession of the controlled substance i don't think it's a rewrite of the statute it's a it's a completely reasonable interpretation of the statute isn't probably the you're looking for is that there be a jury instruction that allows a jury to differentiate between trafficking or a commercial purpose for the buying of the drugs and  use of the drugs burson is a personal use situation not the words the type of instruction the judge predator refused to give yes yes although i you know i'm not going to go too far in the statute doesn't  require that every trance distribution be commercial i mean i couldn't say that there are distributions from one person to another for use between two people that are not already d in joint possession that would involve a transfer of possession a transfer a transfer of possession what was the reasoning given by judge pratt or as to why she would not give that jury instruction well oddly the explanation that was given was that there was no reasonable view of the facts that would support the defense theory i don't think the judge kreder even said that she thought switch or ski that the nd circuit case that articulates this most clearly i don't think she even said that was wrong she said that it didn't apply on the facts of this case although it was for the jury to decide whether it applied to the facts of the case if there was any plausible view of the facts sufficient to raise a reasonable doubt and certainly i think most quite clearly there was in that so that ruling by judge rather on the grounds that was different was was quite clearly wrong is there any evidence of the amount of drugs involved in this millions sure that would still it certainly wasn't anywhere near that amount and in any event that would be a jury question that's a that's that's an inference a jury can draw from quantity to draw the inference of intent to distribute this was well below that right any conceivable application of that rule yes the argument of is that she her sister and jenny participated that contributed to participate in the deal but emma knew the drug dealer she front of jenny the money she gave jenny the paraphernalia for using that her one k f c restaurant and may have been the person who made the physical exchange with the drug dealer and you're saying that you know affect that's still personal yes and those are all relevant facts and that's that's a view the jury could take but that would disregard that  what she asked was whether they together could go and get drugs not this was not for example a text saying do you have anything you could sell me or do you have anything you could share with me for that matter but do you want to go together to go get some drugs and jenny had the transportation and i did not jenny had the car and he had money although she lied about it and said she didn't  and there were enough facts and we learned about how these transactions take place from the testimony of their friend dylan that one person of a group when the group goes together to get drugs one person will have the direct personal interaction with the seller the unnamed seller in west philadelphia in this case but i thought that does not mean that that they're not all acquiring the possession together and simultaneously you know giving us this week each for the jury to the prosecutor could argue these points but the question is only whether the evidence was sufficient for a reasonable jury to have a reasonable doubt this is a core element that's so we're not deciding what's the better view of all the evidence but whether any jury could have a reasonable doubt rebuttal is not going to be our primary issue well let me state quickly then on proximate cause obviously we only get to this if the evidence is sufficient for the developments both in on both of its premises one we know that despite contrary to what robinson says that the supreme court held in bar edge that clause that that the result element a cause the result fact is a cause element that the jury has to decide but didn't the court in barry's missed specifically declined to reach the issue of whether a proximate cause instruction should have been given it did not decide the proximate cause should be given that's right but it didn't certainly didn't decide against it but what what decided what marriage did decide on proximate cause which overrules or supersedes robinson in this respect is that the plain language of the statute contrary to what robinson says the plain language of the statute does not eliminate all traditional legal causation requirements that is exactly what this does not seem to be your stronger argument oh i think it's hard for me to say that robbins is no longer good law i think it's very very clearly not good law in both of the respects i said one it held that this is a mere sentencing adjustment to be made by a preponderance of the evidence by the judge and nd that it is that the statutory language is clear on its face that there is no  showing beyond mechanical results that's required to establish in both of those were rejected by bridge and the supreme court  said in bar region caroline that what what judge becker said in the concurring opinion in needle which is that proximate cause is the ordinary rule when congress makes one fact  requirement of proving one fact as the result of another in torts and criminal law and congress would need to show very rather clearly that it had rejected that rule when when a rule is implicit in the tradition of criminal law we don't require that the rule be articulated in the statute that is not the way criminal statutes are ever have been read for two hundred years will get you back on rebuttal thank you thank you to syringe and a lot are to mix the trucks with brett but the counter counterpose that against the jenny is the one who made the call initiated the plan contributed the car drove the cards of the pickup spot attorney said vice that you should just plead guilty was absolutely beyond the scope of strickland and in that hearing where they remanded in the court concluded no the advice was good  honor what is your honor in this case what happened is jenny we're not what the what would what would qualify as a your honor i think the only thing that would actually qualify would be the circumstances of center city itself where they are buying something as a married or engaged couple going to a dealer together and then as that couple having and a mixed substance here we have four individual bags and emma sandler according to the testimony of her sister was the one who kept possession of those had possession right up until the time that she handed over possession of those drugs over to jennifer were slower and then handed her the needle and the water  it's discreet baggies of heroin that judge the judge was question is what would be a joint simultaneous acquisition amused judge posner said you're you're not going to have them walking up the three of them saying part of this is mind here's my rd here's my rd here's my rd and then i want you to just break it up so that we each have a rd i mean that's not going to happen in the real world and the problem that i'm having with this case is that when you look at things that just from a common sense perspective ok they go together to get it somebody's house the walk up somebody pays the money somebody walks away but they were all getting it for all three and in fact all three did use something personally and what they got was not something that would ordinarily be trafficked outside of the personal use your honor why are we  what we're looking we're looking at is what is convenient for allowing a jury to decide based on a jury instruction which allows the thinking and the thinking of weldon to be considered by jurors your more tightly so that every transfer of drugs is is a transfer is distribution and in the wallace case in the in the washington case in the right case in the right case we have someone turn over twenty dollars and say bring me back some heroin and when you sit together and then right the court said now that if the person who knew the dealer supplied a link in the chain of causation here they have all three quite together to the dealer one of them contacting that we don't know if they all three went to the dealer  together one of them we assume went and obtained the drugs from the dealer then they went altogether to the rest room at the k f c and started using the drugs altogether now that's very different from someone standing on the street corner and selling ten dollars worth of drugs to to a person who comes up with contacts and isn't that the la situation that concerns us the most that we're really concerned about the guy on the street corner we're more concerned about the guy who supplies it to the street corner and really that's what he would say what do you say when i just said is there a concern about the degree of severity of the different roles played by different people and in the purchase and distribution of drugs your honor i think  times st in terms of are there different roles yes and one of the ripples here is that jennifer worst lawyer had been approaching a lot of people to get drugs according to the testimony at trial liar in order to use heroin that night she had to get drugs she had to get a needle and she had to get water let's let's just let's play it out of another example you and i want to go buy a car even though you already owned it if i bring you the car to your shore house in new jersey then even tell we jointly processed the car you didn't have the ability to use that pennsylvania car in new jersey until my product it's not a question of who owns your honor it's who has access to it at the moment and jennifer worser had walked out of that bathroom before am a similar hand at her the drugs she can't use the drugs it doesn't matter if there's an agreement that she has a partial ownership and can you address mr goldberg or is argument that when the statute talks about this job you deliver transfer of the controlled substance what it really means is distribution and delivery or transfer of possession legal then it defines distribution as deliberate and then it to find still entry as transfer of the controlled substance i think those words are playing and here until you try to create some argument about joint possession it is plainly here and i think this court's job under our nasa under perrichon under romanists and the court's job is to not try to find out what pretty commission critical condition and it looks as if they're trying as judge roth noted to have a distinguishing between trafficking that is commercial use and personal drug use now maybe that's not exactly way some people have interpreted the words but then you get into the situation where the the perception is if something is a one year misdemeanor if d it's personal use and this person now has twenty one years with a twenty mandatory it it gives the impression that there's overcharging that there was no attempt to sell this to anyone else even as we're going to have possibly find another buyer in the court said well so what they were this was this was personal is there any doubt in anyone's mind that these three jenny were stunned that night is number one she should get a better price because they could get a bundle and the court in washington said that alone the fact that they're improving their which was twelve to fourteen backs then they got it then bought individual acts so the inference was that they likely bought a bundle but that is not in the record jennifer worser obviously couldn't testify to it know and i'd like to bring up mr goldberger has said in his brief in his reply brief and again said today at argument that jenny works for lying about having not having money that's not true being a link in the chain of distribution and cheny st lawyer was looking for somebody to distribute heroin to her at night and she failed until she found m assembler and i think  plying the plain language of the statute yes it's a harsh result it's a harsh result because jenny worser ended up dead on the player and that's what makes it a twenty year minimum not the fact that suspect had distributed accord controlled substance where we eliminating a link in the chain of distribution in that case your honor what you were doing is you were applying the statu as congress wrote it which was to apply it very profitably and that was flat out ernest said was appropriate because congress wanted this statute for distribution to be applied as broadly as possible and to keep turning the screws on the distribution chain so that wasn't different context because it wasn't supplying it to somebody who was immediately going to use it but in terms of the breadth of the statute that was helt is that it was to be applied broadly and certainly it should be applied according to its own words and if that ends up being too harsh that is a policy the drugs back to jenny is that a transfer if we saw that happen on videotape it could prove that they are it's silly but those are transferred back and forth they meet the time someone transfers it's illegal and we want to discourage people from doing that and if we have to draw a line somewhere your honour's i submit that we should try it where but your honor i would ask you if the concern were joint possession if somehow that were relevant here let me talk about suppose you have a kingpin organization suppose you have five drug dealers who get together they go to the d r together they come back with one hundred kilograms of heroin and they store it in a warehouse in new jersey and then one of those and get some of that heroin out  embrase it to his friend another one of the people who'd originally bought it well they thought that constructive possession they all had actual possession they all owned those drugs in new jersey when one of them crosses the river and brings it to the other person who had already been in joint possession of it if we catch him transferring those trucks from new jersey to pennsylvania we are absolutely going to charge him with in the restroom there is a camera set up and the person you see say can you hold this for me and then give it over to you say well it's a silly example but it would technically be a transfer but silly results in a twenty additional years in federal prison for what is conceivably personal use among three young women and unfortunately one of them is the one who initiated the plan that really seems to be something that at least maybe you can win but at least allow the jury to determine if you can when you're honored i said that was a silly example when they're passing it back and forth testimony and in fact the appellant cited that in his brief he indicated that previously the records showed that what they would do in the unambiguous testimony was that dylan quinn sarah sandler both said that the person who had the point of contact that was the person who approached the dealer and that's the only thing that makes sense here because in fact emma similar is the one who had the drugs you're welcome to the discussion of figaro really makes our point in figaro there was not a link in the chain of distribution when the narcotics officer planted the drugs on the suspect but there was certainly a transfer of possession from one person to another that decision is consistent with the construction of the statute that we are offering and not consistent with the policy argument that the government is conveniently offering now that of course wouldn't have offered when it was prosecuting mr figaro you know i mean the scenario of disavowed in our briefs that the rule with respect to joint possession would necessarily apply to a case of constructive possession no that's not our argument doesn't imply a constructive possession an extension to constructive possession cases what it and in any event those folks are going to be just charged with possession with intent to distribute not with distribution so it's really moot in terms of the the definition of possession those importers and wholesalers all have an intent to distribute their large quantities to users down the line at some future time so i don't have a problem with that example at all the issue here is not as misrule mentioned said at one point and perhaps by slip of the tongue a link in the chain of abuse but a link in the chain of distribution at most what we have here from the government is a jury argument masquerading as an appellate argument that the government has a view of the facts but they want to say is the right you know under a proper jury instruction if the evidence was sufficient two to exclude the reasonable doubt they could make an argument to a jury but as judge a suggested that's something to tell the jury not to tell a court of appeals so our suggestion is that not only is the the rule of law correct that we're articulating about possession as a transfer of possession being a requirement trick delivery and thus for distribution but that the facts of record in this case really wouldn't support any reasonable would not exclude the reasonable doubt and so after trial remedy that dissimilar is entitled to is a remained for judgment of acquittal but it very least she would be entitled to a new trial and so we respectfully request her that and all the reasons that we've articulated that the judgment be