Joint possession

When two people jointly buy drugs for their individual use and then transfer the drugs between themselves, does that amount to distribution for prosecution purposes–apparently so based on a new case from ACCA.

United States v. Myers, ACCA March 2020.

This appeal raises a compelling question: whether joint purchasers and possessors of a controlled substance, who intend to share it between themselves as users, may be found guilty of wrongful distribution of a controlled substance under Article 112a, Uniform Code of Military Justice [UCMJ].

As we discuss below, we answer that question in the affirmative only because we are compelled to follow established precedent in our Superior Court’s decision in United States v. Ratleff, 34 M.J. 80 (C.M.A. 1992).

In Ratleff, the court held that “[t]he plain, ordinary construction of Article 112a [UCMJ],” requires us to conclude that simply passing a controlled substance to another constitutes “delivery” of the substance within the meaning of distribution under Article 112a, UCMJ. Ratleff, 34 M.J. at 82. Our Superior Court’s “technical construction of the statute” causes concern in its application. Id. But for our Superior Court’s decision in Ratleff, we would hold, under the specific facts in this case, that the sharing of a controlled substance between joint possessors who simultaneously acquire possession of a drug for their own use fails to constitute a “distribution” under Article 112a. See, e.g., United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977). While we acknowledge that we are bound to follow our Superior Court’s precedent, we suggest reconsideration of Ratleff is appropriate.