The Impossible Delivery: Codifying the Joint-Acquisition Defense

Read the full article online on the West Virginia Law Review Online Repository.


Jenny Werstler and Emma Semler struggled with addiction. They met each other in rehab when they were teenagers. In 2014, on Werstler’s twentieth birthday, the two purchased a small amount of heroin and used it inside a public bathroom. As a result of the heroin, Werstler died of an overdose. Semler was indicted under 21 USC § 841(a)(1), Distribution Resulting in Death. Semler’s lawyers argued that “while Semler had contacts and money, Werstler was just as much a participant in the drug buy.” She drove Semler and her sister to pick up the drugs and waited in the car while the transaction was carried out.” Semler was ultimately convicted, but she appealed her conviction to the Third Circuit Court of Appeals. 

On June 1, 2021, the Third Circuit Court of Appeals stated: “‘[D]istribute’ under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.” As a result, Semler’s conviction was overturned, and her case was remanded so that a lower court could determine questions of fact.

While the Semler opinion is non-binding on lower courts outside of the Third Circuit, the holding in this case is among the growing number of opinions that have applied the concept of Joint-Acquisition Defense (“JAD”) in various drug cases. Specifically, this common-law defense negates the delivery element in most drug offenses. 

This article explores the evolution and applications of competing legal standards relating to the JAD. It identifies the elements of the JAD and how they vary in different jurisdictions, concluding by bringing attention to the specific drug-induced homicide statutes within West Virginia and noting the absence of case law on the issue in West Virginia. This article argues that the JAD should be codified to clarify inconsistencies, provide guidance to courts, and allow prosecutors to better engage with their gatekeeping function when exercising prosecutorial discretion. Finally, this article concludes by reiterating the importance of codifying the JAD at either the federal or the state level, but especially in states that are still struggling with the opioid crisis. This article is a call for action.

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