1. Decisions requiring physical presence

Drug Induced Homicide Defense Toolkit

1. Decisions requiring physical presence

A majority of courts that have addressed the issue have held or implied that physical

presence at the purchase is a prerequisite for the joint-user defense to apply. In United

States v. Wright, 173 for example, the Ninth Circuit held the defendant was not entitled to

the “joint user” defense to possession with intent to distribute where a friend:

[a]sked him to procure heroin so that they might use it together; she gave him $20 with which to buy the heroin but did not tell him where to buy it; he left her dwelling and procured the heroin; then he brought the heroin back and they “snorted” it together. 174

Because Wright and his friend had not acquired the heroin “simultaneously,”175 the

court found Wright’s conduct constituted “distribution.”176 Specifically, the court

concluded that by purchasing the heroin, “Wright facilitated the transfer of the narcotic;

he did not simply ‘simultaneously and jointly acquire possession of a drug for their [his

and another’s] own use.’”177

173 United States v. Wright, 593 F.2d 105 (1979).

174 Wright, 593 F.2d at 108.

175 Wright, 593 F.2d at 108.

176 Wright, 593 F.2d at 106.

177 Wright, 593 F.2d at 108. (alterations in original). For additional cases holding or suggesting that physical presence is required, see United States v. Mancuso, 718 F.3d 780, 798 (9th Cir. 2013) (footnote omitted) (“Even assuming the Swiderski rule was binding in the Ninth Circuit, it would not apply to Mancuso’s case, because the record does not support finding that any of the witnesses pooled money with

Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition

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