Sunday, July 13th, 2008

No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term – “trafficking” – that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent holding that there is no distribution, where two individuals jointly acquire a drug for their own use. Wallace was not a simple “joint possessor.” He testified that he gave drugs to others that he had previously purchased on his own.

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