United States v. Daniel Blue , 808 F.3d 226 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL BLUE,
Defendant - Appellant.
No. 15-4153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL BLUE,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:11-cr-00508-ELH-1)
Argued: October 28, 2015 Decided: December 10, 2015
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Agee and Judge Wynn joined.
ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. John Walter
Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
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HAMILTON, Senior Circuit Judge:
On appeal, Daniel Blue (Blue) challenges the sufficiency of
the evidence to support his convictions on a single count of
possession with intent to distribute 100 grams or more of heroin
in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting
the same in violation of 18 U.S.C. § 2, and a single count of
conspiracy to distribute and possess with intent to distribute
100 grams or more of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Blue also challenges the district court’s
denial of his motion for a new trial based upon newly discovered
evidence.
Because we agree with Blue that the evidence is
insufficient to support his two convictions, we reverse both
convictions and do not reach Blue’s challenge to the district
court’s denial of his new trial motion.
I
A. June 29, 2011.
Following his June 29, 2011 arrest on heroin distribution
and firearm charges in Baltimore, Maryland, Herbert Fenner
(Fenner) agreed to cooperate with Detective William Bearde
(Detective Bearde) and Sergeant Marinos Gialamas (Sergeant
Gialamas) of the Baltimore City Police Department in their
ongoing heroin trafficking investigation in the Baltimore
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area. As part of Fenner’s cooperation efforts, he identified
Keith Townsend of 715 North Curley Street, Baltimore City, as a
middleman from whom he had purchased heroin on two separate
occasions earlier the same month (purchasing ten and twenty
grams respectively). Armed with this new information,
Detective Bearde and Sergeant Gialamas set up a controlled
heroin buy targeting Townsend later the same day.
Sitting in a vehicle parked on the 800 block of North
Curley Street, Sergeant Gialamas and Fenner viewed the 700
block of North Curley Street without obstruction. Sergeant
Gialamas sat in the front driver’s seat, while Fenner sat in the
middle of the back seat leaning forward. Detective Bearde sat
in the passenger front seat of the same vehicle, but his view of
the 700 block of North Curley Street was obstructed by another
vehicle parked directly in front of the undercover vehicle.
Then, following instructions, Fenner called Townsend on the
telephone and placed an order for fifty grams of heroin.
Townsend responded that he would be ready in about fifteen
minutes.
Several minutes later, Townsend walked out of his house and
interacted for less than a minute with the occupants of a
silver Lexus sport utility vehicle double parked on the 700
block of North Curley Street. During their interactions, which
included verbal communication, Townsend pulled his wallet out of
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his front right pants pocket, opened it, removed some paper
currency and handed it to the driver. At one point, Townsend’s
hands were partially inside the window of the Lexus on the
driver’s side. From their location on the 800 block of North
Curley Street, Sergeant Gialamas and Fenner did not see anything
pass back to Townsend from any occupant of the Lexus.
Next, Townsend walked toward the corner of East Madison
Street and North Curley Street where he met with Blue for
approximately two minutes. At the start of the meeting, Blue
had “a brownish-tannish item protruding from his left hand” in a
semi-closed fist. (J.A. 407). Blue and Townsend then both
raised their left hands toward each other and lowered them back
down. When Townsend lowered his left hand, he was holding an
item, which he promptly placed in his left front pants pocket.
When Blue lowered his left hand, it was empty.
Townsend then walked toward his residence at 715 North
Curley Street, while Blue headed in the opposite direction,
entered a gold Honda Accord, and drove away. While walking,
Townsend telephoned Fenner and told him that he was ready.
Townsend also asked Fenner’s location. As Townsend was about to
enter his residence, an arrest team stopped him, placed him
under arrest, and searched him incident to such arrest. One of
the arresting officers found a plastic bag containing a folded
over slice of bread in Townsend’s front left pants pocket. The
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folded slice of bread concealed a plastic bag containing 49.87
grams of heroin. A Baltimore City Police Department pole video
camera captured the meeting between Townsend and Blue on video
tape.
B. July 13, 2011.
Fast forward two weeks to July 13, 2011. Detective James
McShane (Detective McShane) of the Baltimore City Police
Department witnessed Blue enter the Baltimore City District
Courthouse of the District Court of Maryland, located at 1400
East North Avenue, Baltimore. Detective McShane had previously
learned that Blue had a scheduled court proceeding that day.
While Blue was in the courthouse, an officer with the Baltimore
City Police Department hid a global positioning system (GPS)
tracking device on Blue’s vehicle parked nearby. When Blue
later exited the courthouse and entered his vehicle along with a
male passenger, Detective McShane, driving an unmarked vehicle,
began to follow Blue. So did Detective Bearde and another
officer, each driving separately in unmarked vehicles.
For approximately twenty minutes Blue and his passenger
traveled northbound at a normal rate of speed past Lake
Montebello until he pulled into the parking lot of the Fox Hall
apartment complex on Rosecrans Place in Nottingham, Maryland,
which is still in Baltimore County. The Fox Hall apartment
complex consists of multiple apartment buildings, each containing
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numerous individual apartments. Only Blue exited his vehicle
once parked. Blue then entered apartment building number seven
empty-handed and exited no more than five minutes later holding
a sandwich-sized, cloudy white, plastic container in his hand.
Blue then entered his vehicle and drove away.
Due to the configuration of apartment building number
seven, the surveilling officers could not see whether Blue
entered any apartment in apartment building number seven.
Rather, the surveilling officers saw Blue enter the front door
of apartment building number seven, go up a couple of steps, and
then disappear.
Detective McShane, Detective Bearde, and the third officer
took turns following Blue’s vehicle back to Lake Montebello in
Baltimore City and kept him under surveillance. Lake Montebello
is a recreational area known for narcotics transactions. Blue
parked and exited his vehicle with only his mobile phone in his
hand. The same male passenger remained in Blue’s vehicle. As
Blue walked across a playground, he approached an individual
later identified as Jamar Holt (Holt). Blue and Holt then
walked toward a Jeep Cherokee vehicle. Blue got into the
passenger side, Holt got into the driver’s side, and Holt drove
them around Lake Montebello. A minute or two later, Holt
stopped the vehicle at the entrance to Lake Montebello, Blue
exited the vehicle, and Holt drove away.
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Detective McShane, Detective Bearde, and the third officer
followed Holt in their respective unmarked vehicles because they
suspected that Holt and Blue had just engaged in an illegal
narcotics transaction. A short time later, the three officers
conducted a traffic stop of Holt’s vehicle after he ran a stop
sign. Detective McShane approached Holt’s vehicle from the
front and ordered him to show his hands. The encounter
immediately escalated to Holt pointing a handgun at Detective
McShane and then attempting to run him over. Detective McShane
and the third officer discharged their weapons in the direction
of Holt. Holt exited the scene unharmed at a high rate of
speed. Although the officers gave chase by vehicle, Holt
quickly eluded them. Holt’s vehicle was located one hour later
abandoned. No firearms or illegal narcotics were found in it.
Later the same day, the GPS tracking device on Blue’s
vehicle revealed its whereabouts to be on the 4900 block of
Sinclair Lane, Baltimore City. Detective Bearde, among other
officers, began surveilling the area. When Detective Bearde
observed Blue exit the residence located at 4913 Sinclair Lane
and approach Blue’s vehicle, Detective Bearde alerted the arrest
team, which moved in to arrest Blue based upon Blue’s meeting
with Townsend on June 29, 2011.
After Detective Bearde read Blue his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), Blue acknowledged his
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understanding of those rights and indicated that he wanted to
cooperate nonetheless. During his interview with Detective
Bearde, Blue falsely denied exiting the residence at 4913
Sinclair Lane earlier that day and falsely denied leaving
Baltimore City earlier that day. When informed that he had been
under surveillance earlier that day and had been seen entering
building number seven of the Fox Hall apartment complex on
Rosecrans Place, which location is outside of Baltimore City,
Blue hung his head. When asked about meeting with Holt earlier
that day, Blue admitted that he had met with Holt to discuss a
drug transaction that was to take place later that afternoon.
At this point, the interview ended.
During a search of Blue’s person incident to his arrest,
Detective Bearde recovered a set of keys. Investigative work
revealed that one key of the set of keys unlocked the door of
apartment 1-D in building number seven of the Fox Hall apartment
complex on Rosecrans Place (the Apartment). After officers
secured the Apartment, they obtained a search warrant to search
it for evidence of narcotics trafficking. Execution of the
search warrant uncovered 108.6 grams of heroin, two scales with
heroin residue, and numerous empty plastic sandwich bags all
hidden in a footstool in the front bedroom. In the same
bedroom, officers found mail in the name of Tiffany Elliott and
women’s clothing. Tiffany Elliott’s brother, Brandon Cooper,
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was found sleeping in the back bedroom. The dining room table
held mail addressed to Brandon Cooper. The search uncovered no
evidence linking Blue to the Apartment, no evidence linking him
to the contents of the footstool, and no evidence linking him to
Tiffany Elliott or Brandon Cooper.
Law enforcement also obtained a search warrant for the
residence at 4913 Sinclair Lane. Execution of such warrant
found nothing to incriminate Blue of a crime.
C. Procedural History.
A federal grand jury sitting in the District of Maryland
indicted Blue on three counts. Count 1 alleged that, from in or
about June 2011 through in or about July 2011, Blue conspired
with Townsend and others to distribute and possess with intent
to distribute 100 grams or more of a mixture or substance
containing a detectable amount of heroin. 21 U.S.C.
§§ 841(a)(1), 846. Count 2 alleged that, on or about June 29,
2011, Blue possessed with intent to distribute a mixture or
substance containing a detectable amount of heroin and aiding
and abetting the same. 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1).
Count 3 alleged that, on or about July 13, 2011, Blue possessed
with intent to distribute 100 grams or more of a mixture or
substance containing a detectable amount of heroin and aiding
and abetting the same. Id.
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Citing United States v. Jones, 132 S. Ct. 945 (2012), Blue
moved to suppress the evidence derived from the GPS tracking
device placed upon his vehicle on July 13, 2011 (namely, his
statements to Detective Bearde and the key to the Apartment).
The government argued the good faith exception to the
exclusionary rule applied because officers believed that the
warrantless placement of the GPS tracking device on Blue’s
vehicle was lawful. The district court agreed with the
government’s argument and, therefore, denied Blue’s motion to
suppress.
Blue’s jury trial spanned three days. In support of the
government’s prosecution of Blue at trial, the government
presented the testimony of six witnesses and introduced the
video surveillance tape of the June 29, 2011 meeting between
Blue and Townsend. The government also relied upon the
following three stipulations entered into between the government
and Blue: (1) the heroin found on Townsend’s person on June 29,
2011 weighs 49.87 grams; (2) the heroin found in the footstool
in the front bedroom of the Apartment weighs 108.6 grams; and
(3) no fingerprints were found on the clear plastic bag
containing the 108.6 grams of heroin. Pursuant to Federal Rule
of Criminal Procedure 29, Blue moved for judgment of acquittal
on all counts at all appropriate times. Believing the
government made a strong case against Blue with respect to Count
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2, the district court outright denied the motion with respect to
Count 2. Believing Counts 1 and 3 to present close calls on
Blue’s sufficiency of the evidence challenges, the district
court reserved ruling on the motion with respect to those counts
and let them go to the jury.
Using a special verdict form, the jury convicted Blue on
Counts 1 and 3, but acquitted him on Count 2. Of relevance on
appeal, with respect to Count 1, the special verdict form first
asked whether the jury found Blue guilty or not guilty as to
“COUNT ONE (conspiracy to distribute heroin)[.]” (J.A. 788).
It then stated that if the jury found Blue guilty as to Count 1,
the jury needed to make a finding as to the amount of heroin
involved with either “100 grams or more” or “Less than 100
grams” as the only two alternative options for an answer. Id.
Of relevance on appeal, with respect to Count 3, the special
verdict form asked whether the jury found Blue guilty of “COUNT
THREE (possession with intent to distribute heroin on July 13,
2011)[.]” (J.A. 789). It then stated that if the jury found
Blue guilty as to Count 3, the jury needed to make a finding as
to the amount of heroin involved with either “100 grams or more”
or “Less than 100 grams” as the only two alternative options for
an answer. Id.
With respect to Counts 1 and 3, the district court upheld
the jury’s verdict in the face of Blue’s motion for judgment of
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acquittal, although the district court continued to believe
those counts presented close calls on the sufficiency of the
evidence. In this regard, the district court was “readily
satisfied that the evidence proved the existence of a conspiracy
regarding heroin,” but believed “whether the evidence was
sufficient to prove beyond a reasonable doubt a conspiracy to
distribute 100 grams or more of heroin” was “[t]he difficult
question . . .” (J.A. 828), giving Blue “a very good appellate
issue,” (J.A. 870).
Following the entry of judgment in which the district court
sentenced Blue to 120 months’ imprisonment, Blue filed a timely
notice of appeal challenging the denial of his motion to
suppress and the denial of his motion for judgment of acquittal.
Then, on October 3, 2014, while Blue’s appeal was pending, he
moved for a new trial on Counts 1 and 3 based upon newly
discovered evidence. See Fed. R. Crim. P. 33(a) (upon defense
motion, court may vacate judgment and grant new trial if
interest of justice so requires). On October 31, 2014, we
granted Blue’s unopposed motion to stay his appeal and remand
his case to the district court for consideration of his new
trial motion. On remand, the district court denied the motion.
Blue noted a timely appeal of such denial. We consolidated
Blue’s appeal from his judgment of conviction with his appeal
from the denial of his new trial motion.
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II
For analytical purposes, we first address Blue’s
sufficiency of the evidence challenge to his conviction on Count
3, alleging that, on or about July 13, 2011, Blue possessed with
intent to distribute 100 grams or more of a mixture or substance
containing a detectable amount of heroin and aiding and abetting
the same. In this count, the 100 grams or more of heroin
pertains to the 108.6 grams of heroin found in the footstool
located in the front bedroom of the Apartment.
In reviewing the sufficiency of the evidence to support a
conviction, our function is to determine, “viewing the evidence
and the reasonable inferences to be drawn therefrom in the light
most favorable to the Government, whether the evidence adduced
at trial could support any rational determination of guilty
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d
849, 863 (4th Cir. 1996) (en banc) (internal quotation marks
omitted).
Section 841(a) provides, in relevant part, that “it shall
be unlawful for any person knowingly or intentionally——(1) to
. . . possess with intent to . . . distribute . . . a controlled
substance . . . .” 21 U.S.C. § 841(a)(1). Section
841(b)(1)(B)(i) permits an enhanced sentence for an offense
under § 841(a) involving “100 grams or more of a mixture or
substance containing a detectable amount of heroin . . . .” Id.
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§ 841(b)(1)(B)(i). Because the government prosecuted Blue under
a constructive possession theory with respect to the heroin at
issue in Count 3, the two critical issues at trial with respect
to this count were: (1) whether Blue knew the 108.6 grams of
heroin was in the footstool in the front bedroom of the
Apartment, and (2) whether Blue had the power to exercise
dominion and control over such heroin. See United States v.
Bell, 954 F.2d 232, 235 (4th Cir. 1992) (constructive possession
requires knowledge of contraband’s presence and the exercise, or
the power to exercise, dominion and control over it), overruled
on other grounds by Burgos, 94 F.3d at 849; United States v.
Schocket, 753 F.2d 336, 340 (4th Cir. 1985) (“A person has
constructive possession of a narcotic if he knows of its
presence and has the power to exercise dominion and control over
it.”). Notably, dominion and control cannot be established by
mere proximity to the contraband, by mere presence on the
property where the contraband is found, or by mere association
with the person who does control the contraband. United States
v. Brown, 3 F.3d 673, 680 (3d Cir. 1993); United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Moreover, “[m]ere
joint tenancy of a residence is insufficient to prescribe
possession [of its contents] to all the occupants . . . .”
United States v. Morrison, 991 F.2d 112, 115 (4th Cir. 1993).
See also United States v. Wright, 739 F.3d 1160, 1168 (8th Cir.
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2014) (“[W]hen there is joint occupancy of a residence, dominion
over the premises by itself is insufficient to establish
constructive possession.”). Rather, “[i]n joint occupancy
cases, there must be some additional nexus linking the defendant
to the contraband.” Id.
Under these applicable legal parameters, the fact that Blue
possessed a key to the Apartment, entered the apartment building
containing the Apartment on July 13, 2011, stayed five minutes,
and exited with a sandwich-sized plastic container in his hand,
standing alone, is insufficient evidence to establish his
constructive possession of the heroin found in the footstool in
the front bedroom of the Apartment. The government concedes as
much, but nonetheless contends that, based upon the cumulative
facts presented during trial and the reasonable inferences to be
drawn therefrom in favor of the government, the government
proved beyond a reasonable doubt that Blue constructively
possessed the 108.6 grams of heroin and other drug trafficking
paraphernalia found in the footstool in the front bedroom of the
Apartment. In this regard, the government points to the
following evidence and/or inferences from the evidence:
In Blue’s case, police observed Blue participate in a
50-gram heroin transaction with Townsend.
Approximately two weeks later, Blue drove past Lake
Montebello to the Rosecrans Place apartment building
and exited with a container in his hand. Blue then
backtracked to Lake Montebello to discuss a drug
transaction with Jamar Holt that was to take place
later in the day. When detectives tried to stop Holt,
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he brandished a firearm, inferring that he was
protecting and concealing something in his vehicle.
When Blue was arrested, he had [a] key to the
Rosecrans Place apartment, and lied about being at the
Rosecrans Place apartment in order to conceal the
large quantity of heroin and drug paraphernalia at the
apartment.
(government’s Br. at 38). The government also argues that the
lack of any personal effects of Blue in the Apartment is
consistent with Blue using it as a stash house. In support, the
government points to the testimony of Drug Enforcement
Administration Special Agent Todd Edwards (Special Agent
Edwards), whom the district court qualified as an expert witness
in the manner and means of drug trafficking, that drug
traffickers sometimes utilize the homes of family members,
girlfriends, or close friends to stash their drugs so they have
ready access to their drugs, “[b]ut if law enforcement is
following them back to where they sleep, it’s not there.” (J.A.
602). With respect to case law, the government relies heavily
on the following statement set forth in a footnote in the Eighth
Circuit’s Brett case: “[T]he holder of the key, be it to the
dwelling, vehicle or motel room in question, has constructive
possession of the contents therein.” United States v. Brett,
872 F.2d 1365, 1369 n.3 (8th Cir. 1989).
In response to the government’s position, Blue emphasizes
the government presented no evidence connecting him to Tiffany
Elliot or Brandon Cooper, no evidence of him ever being present
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inside the Apartment, and no evidence he had ever been to the
Fox Hall apartment complex more than the one time for five
minutes. Under these circumstances, Blue argues the jury would
have to engage in impermissible speculation to conclude that he
knew about the heroin in the footstool in the front bedroom of
the Apartment and had dominion and control over it.
We hold the evidence presented by the government at trial,
viewed in the light most favorable to the government and drawing
all reasonable inferences therefrom in the government’s favor,
is insufficient to prove beyond a reasonable doubt that Blue
constructively possessed the 108.6 grams of heroin found hidden
in the footstool in the front bedroom of the Apartment. As
noted, the government did not attempt to prove constructive
possession of the heroin by proving that Blue resided or leased
the Apartment, or that any of his personal possessions were
located within the Apartment. Nor did the government introduce
any evidence supporting constructive possession of the heroin
based on Blue’s association with any of the occupants of the
Apartment. The inference that Blue used the Apartment as a
stash house that the government wants us to draw from the fact
that no personal items belonging to Blue were found in the
Apartment is an unreasonable one given the complete lack of
evidence establishing any connection to any of the occupants of
the Apartment. The expert witness testimony by Special Agent
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Edwards upon which the government relies to support its stash-
house inference hinges on one of the occupants of the Apartment
being a family member, girlfriend, or a close friend of Blue.
But the government introduced no such evidence that Blue even
knew, let alone had any such close relationship with any of the
occupants of the Apartment. As such, there was no evidence here
from which the jury could reasonably infer that the Apartment
was a stash house based on Special Agent Edwards’ testimony
about their use. Moreover, the fact that the sandwich-sized
plastic container Blue was seen carrying when he left apartment
building number seven of the Fox Hall apartment complex was
never seen again rendered its existence of dubious probative
value. Additionally, the government presented no evidence of
any connection between the heroin seized from Townsend to the
heroin or other drug-trafficking paraphernalia found hidden in
the footstool in the front bedroom of the Apartment.
At most, Blue was observed entering apartment building
number seven of the Fox Hall apartment complex on Rosecrans
Place empty-handed on July 13, 2011, leaving five minutes later
carrying a sandwich-sized plastic container never to be seen
again, immediately driving to meet someone with whom he
discussed a future drug transaction, and then, later the same
day, falsely denied to law enforcement officers that he had
entered building number seven earlier that day. Besides the
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key, the government presented no other evidence, direct or
circumstantial, providing a nexus to the Apartment. There is no
controlling precedent holding such little nexus between a
defendant and contraband found in a dwelling of joint occupancy
establishes constructive possession of the contraband and the
government has not convinced us there should be. Cf. United
States v. Cruz, 285 F.3d 692, 699 (8th Cir. 2002) (dominion and
control over contraband hidden in another’s house cannot be
established by defendant’s mere access to and presence in such
house); Goldsmith v. Witkowski, 981 F.2d 697, 701-02 (4th Cir.
1992) (concluding insufficient evidence of constructive
possession of drugs close by and in plain sight of defendant
because record lacked evidence that defendant resided or
frequented the premises, he had no apparent relationship with
the tenant, he did not act suspiciously upon the police’s entry,
and there was no showing that he was alone with the drugs when
police entered the apartment).
Seemingly recognizing the weakness of its case with respect
to showing Blue constructively possessed the 108.6 grams of
heroin found in the footstool in the front bedroom of the
Apartment, the government wants us to rely upon Blue’s false
denial of having entered building number seven of the Fox Hall
apartment complex earlier in the day to get it across the
beyond-a-reasonable-doubt finish line. This piece of evidence
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cannot bear the weight the government asks of it, however. To
be sure, the jury was free to consider whether Blue’s
consciousness of guilt led him to lie to law enforcement about
visiting building number seven of the Fox Hall apartment
complex. Cf. United States v. Obi, 239 F.3d 662, 665 (4th Cir.
2001) (“It cannot be doubted that in appropriate circumstances,
a consciousness of guilt may be deduced from evidence of flight
and that a jury’s finding of guilt may be supported by
consciousness of guilt.”). However, the inference of guilt in
Blue’s case was weakened by the fact that Blue also lied about
being at the Sinclair residence earlier the same day where no
contraband was found. Additionally, to infer Blue’s
constructive possession of the 108.6 grams of heroin found in
the footstool in the front bedroom of the Apartment based upon
his denial of visiting building number seven of the Fox Hall
apartment complex earlier that day is too tenuous to be
reasonable in light of the complete lack of evidence of his
connection to any of the occupants in the Apartment.
The district court in the present case gave such deceptive
behavior on Blue’s part considerable importance, relying on
United States v. Whitner, 219 F.3d 289 (3d Cir. 2000), to
observe that “‘suspicious and deceptive response to questioning
leads to a reasonable inference that Whitner was attempting to
conceal the existence of the apartment and [his] association
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with the apartment.’” (J.A. 875) (quoting Whitner, 219 F.3d at
299). But Whitner addressed a motion to suppress and whether
deceptive responses gave rise to probable cause to search the
residence at issue. Whitner, 219 F.3d at 299. That analysis is
not at issue here. Here, Blue’s deceptive responses helped
supply probable cause to get the warrant to search the
Apartment, but such standard only requires a fair probability on
which reasonable and prudent persons act. Florida v. Harris,
133 S. Ct. 1050, 1055 (2013). See also Illinois v. Gates, 462
U.S. 213, 235 (1983) (“Finely-tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evidence,
useful in formal trials, have no place in [a probable cause]
decision” because probable cause is “only the probability, and
not a prima facie showing, of criminal activity.” (internal
quotation marks omitted)). The question here is whether Blue’s
deceptive responses get the government past the
beyond-a-reasonable-doubt finish line that Blue not only had
knowledge of the presence of the 108.6 grams of heroin
discovered in the footstool in the Apartment’s front bedroom,
but also that he had dominion and control over it at the time of
its seizure. We hold they do not.
We now turn to briefly address the government’s reliance on
the following statement in footnote 3 of the Eighth Circuit’s
Brett case: “[T]he holder of [a] key, be it to the dwelling,
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vehicle or motel room in question, has constructive possession
of the contents therein.” Brett, 872 F.2d at 1369 n.3. The
government’s reliance is misplaced. First, no Fourth Circuit
case has adopted this overly broad statement as the law of the
Fourth Circuit. Second, the statement conflicts with our Fourth
Circuit case law analyzing constructive possession where
narcotics are discovered in a place where multiple persons
reside. See Morrison, 991 F.2d at 115 (mere joint tenancy of
residence is insufficient to prescribe possession of its
contents to all occupants). Third, in United States v. Wright,
739 F.3d 1160, 1168 (8th Cir. 2014), the Eighth Circuit
necessarily qualified its broadly worded statement in footnote 3
of Brett by rejecting the government’s argument in Wright that
the defendant’s possession of a key to the home, by itself,
proved he knowingly possessed cocaine found in the southeast
bedroom of the home. In this regard, the Eighth Circuit cited
its earlier decision in United States v. Wajda, 810 F.2d 754,
762 (8th Cir. 1987), for the proposition that “when there is
joint occupancy of a residence, dominion over the premises by
itself is insufficient to establish constructive possession.”
Wright, 739 F.3d at 1168.
And lest there be any doubt about the Wright panel’s
qualification of the statement at issue in footnote 3 of Brett,
Chief Judge Riley wrote a concurring opinion in Wright to make
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clear that the government’s reading of the Brett footnote “is
untenable” because whether the defendant had knowledge that the
drugs were in the dwelling was not at issue in Brett. Id. at
1174. Thus, Chief Judge Riley explained, “the Brett court’s
reference to ‘the holder of the key’ related only to what was at
issue: whether the government had proved the defendant’s
dominion and control over the contraband.” Id. Chief Judge
Riley then went on to explain that, “[o]n casual reading,” some
Eighth Circuit “post-Brett cases might appear inconsistent with
Wajda, but a contextual reading of these cases’ cursory
references to the Brett footnote demonstrate” that the Eighth
Circuit “has never allowed the government to convict an
individual for drugs he knew nothing about based solely upon his
possession of a duplicated key.” Wright, 739 F.3d at 1175 n.4.
In sum, because the government failed to present sufficient
evidence to sustain Blue’s conviction on Count 3 for possession
with intent to distribute 100 grams or more of heroin on July
13, 2011, we reverse his conviction.
III
We now turn to address Blue’s challenge to the sufficiency
of the evidence to support his conviction on Count 1, charging
him under 21 U.S.C. § 846 with conspiracy to distribute and
possess with intent to distribute 100 grams or more of a mixture
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or substance containing a detectable amount of heroin from in or
about June 2011 through in or about July 2011, in violation of
21 U.S.C. § 841(a)(1). Section 846 provides that “[a]ny person
who attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” 21 U.S.C. § 846.
In reviewing the sufficiency of the evidence to support
Blue’s conspiracy conviction, our function is to determine,
“viewing the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the Government, whether
the evidence adduced at trial could support any rational
determination of guilty beyond a reasonable doubt.” Burgos, 94
F.3d at 863 (internal quotation marks omitted).
In the present case, viewing the evidence and the
reasonable inferences to be drawn therefrom in the light most
favorable to the government, such evidence fails to support a
rational determination that Blue is guilty of conspiring to
distribute and possess with intent to distribute at least 100
grams of heroin. The only way the government can reach the
at-least-100-gram mark is by tying Blue and at least one other
person to an agreement to distribute the 108.6 grams of heroin
found in the footstool in the front bedroom of the Apartment.
As we explained at length in Part II of this opinion, the
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government failed to present sufficient evidence to prove beyond
a reasonable doubt that Blue even knew about such heroin.
Additionally, the government failed to present any evidence of
what type of relationship, if any, Blue, Townsend, or Holt may
have had with one or more of the Apartment’s occupants. In
other words, the jury had no evidence before it from which to
draw a reasonable inference that Blue conspired with another to
distribute or possess with intent to distribute 100 grams or
more of heroin. Accordingly, we reverse Blue’s conviction on
Count 1.
One final issue——in a single footnote in its appellate
brief in the present case, the government cites United States v.
Hickman, 626 F.3d 756 (4th Cir. 2010), in support of its
position that, in the event we find the evidence before the jury
insufficient to sustain Blue’s conviction for conspiracy to
distribute and possess with intent to distribute 100 grams or
more of heroin, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(i), we should instruct the district court to enter
judgment on the lesser included offense of conspiracy to
distribute and possess with intent to distribute less than 100
grams of heroin, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). We decline to do so because “[t]o do otherwise would
be to usurp the jury’s institutional function in the criminal
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justice system——to determine the facts.” Thornton v. Texas, 425
S.W.3d 289, 299 (Tex. Crim. App. 2014).
While we acknowledge that “it is within our power to direct
entry of judgment on a lesser included offense when vacating a
greater offense for insufficient evidence,” Hickman, 626 F.3d at
770, “courts of appeals should limit the use of judgment
reformation to those circumstances when what is sought is a
conviction for a lesser offense whose commission can be
established from facts that the jury actually found.” Thornton,
425 S.W.3d at 298-99. Here, the evidence presented at trial was
such that we cannot know the jury actually found Blue
participated in the charged conspiracy apart from also finding
the conspiracy involved the 100 grams or more of heroin found in
the footstool and charged in Count 3.
By finding Blue entered into an agreement with at least one
other person to distribute and possess with intent to distribute
100 grams or more of heroin, based upon the evidence presented
at trial, the jury necessarily found the conspiracy involved the
108.6 grams of heroin found in the footstool in the front
bedroom of the Apartment. Because the jury would have needed to
go no further in its findings to convict Blue of Count 1, we
cannot conclude with any assurance that the jury actually found
Blue had conspired with another to distribute or possess with
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intent to distribute any other heroin besides the 108.6 grams
found in the footstool in the front bedroom of the Apartment.
Notably, from the evidence presented at trial in Hickman,
in which case we vacated the defendant’s conviction for
conspiracy to distribute and possess with intent to distribute
more than one kilogram of heroin for lack of sufficient evidence
and remanded the case to the district court with directions to
enter judgment on the lesser included offense of conspiracy to
distribute or possess with intent to distribute 100 grams or
more of heroin, we knew the jury actually found the defendant
participated in a conspiracy to distribute and possess with
intent to distribute 100 grams or more of heroin. Here, in
material contrast, we do not know and cannot know whether the
jury found Blue guilty beyond a reasonable doubt of every
element of the lesser included offense. Accordingly, judgment
reformation is inappropriate in the present case.
IV
In conclusion, we hold insufficient evidence supports
Blue’s convictions on Counts 1 and 3. Accordingly, we reverse
both convictions. ∗
∗
We note that Blue initially challenged on appeal the
district court’s denial of his motion to suppress the evidence
discovered as the result of the GPS tracking device placed on
(Continued)
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REVERSED
his vehicle. He has since, however, withdrawn such challenge
because he agrees that our decision in United States v.
Stephens, 764 F.3d 327 (4th Cir. 2014), cert. denied, 136 S. Ct.
43 (2015), precludes relief on that issue in his case.
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