. distributed illegal drug, resulting death. U.S.C. §§ 841(a)(1), (b)(1)(C). Because cooperate person contributed received prison sentence eight years. Three years later vacate sentence principal ground (and need discuss) *2 had rendered ineffective assistance by persuading plead (according the lawyer), the had possible defense. The judge denied the motion, precipitating appeal. facts giving rise the defendant’s and are as follows. Defendant girlfriend

Andrea Fields, and friend Roth pooled $120 (Roth contributing $100 Weldon and Fields $20 jointly) buy from Weldon’s drug dealer. three drove in Roth’s (Roth driving) meet the dealer. Roth parked behind the dealer’s at the arranged meeting place Weldon got car, walked car, gave $120 heroin, returned with it heroin, which was wrapped in dollar bill, Fields, tucked away. Roth then drove home, where Fields mixed water, divided mixture into equal parts, injected into them. Roth died mixture injected him. Fields tried her role argued what she did distribution, she acquitted.

Suppose you lunch friend, two hamburgers, when your hamburgers ready you pick food counter bring them table eats you eat other. It very odd describe what you done as “distributing” food him. similarly odd describe what either or did distribution. They high together, they shared expense, they went dealer, shared they bought him. transferred money dealer, pooled *3 1994 3 handing over, although contribution pool been slight. paid carried But been absurd for gone dealer each pay separately, even more absurd carried minute package, containing less than half gram of powder, car car residence. And remember jury rejected argument Fields’ heroin (which metabolized morphine after injected) of morphine Roth.

United States Swiderski F.2d 445, Cir. 1977), holds individuals “simultaneously jointly acquire possession of own use, intending share together,” distributors, “since both acquire possession outset neither intends distribute third person,” so “neither serves link chain distribution.” This reasoning been approved several cases, see United States Layne F.3d (6th Cir. 1999); Hardy (11th Cir. 1990); Rush (1st 1984); cf. Mancuso n. 2013), though our no occasion opine it. argues (with judicial support) holding inapplicable “Weldon conduct hand hand exchange dealer.” implication rule requires absurd behavior. Imagine Roth, squeezing each handing separate handful money. earth *4 would think such antics? How would he react? What would do? If would have divide on spot avoid being guilty distribution? matters is defendants were participants same transaction. No cases require literal simultaneous

possession; decision (very like present case) implicitly reject such requirement. supra 448; Speer 1994). Given these decisions, insistence ʹ s client “umpteen times” defense charge zero chance success constitutionally deficient. ʹ s entitled new trial establish “a reasonable probability that, counsel’s errors, would have would have insisted on going trial,” Hill Lockhart U.S. (1985), an insistence might persuaded government negotiate settlement (without uncertainty trial) reduced punishment significantly. Missouri Frye S. Ct. (2012); Kovacs 2014). is entitled evidentiary hearing determine probability. judgment district court therefore vacated remanded further proceedings consistent opinion. (The supplement record appeal, deny motion; better full record before remand.)

V ACATED AND R EMANDED