U.S. v. BLUE, NO. 13-4069

Decided: December 10, 2015

The Fourth Circuit found the evidence was insufficient to support Daniel Blue’s convictions for possession with intent to distribute 100 grams or more of heroin, and aiding and abetting, and conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin.  On that basis, the Fourth Circuit reversed Blue’s convictions.

With the help of Herbert Fenner, who had been arrested on heroin distribution and firearms charges, Baltimore police in June, 2011, set up a controlled heroin buy targeting Keith Townsend, a middleman from whom Fenner claimed to have bought heroin.  While police observed from a nearby car, Fenner called Townsend to order 50 grams of heroin, and Townsend told him that he would be ready in fifteen minutes.  Townsend then emerged from his house, and interacted with occupants of a nearby Lexus, handing the driver money, and putting his hands briefly inside the Lexus.  Townsend then met with Blue on a street corner.  At the start of that interaction, Blue had a tan item in his left fist.  The two men then moved their left hands towards each other.  When the men lowered their hands, Townsend was holding an item, which he put in his left front pants pocket, and Blue’s hand was empty.  On the way home, Townsend called Fenner to say he was ready.  Police arrested Townsend, and searched his person, finding a plastic bag with a folded slice of bread in his pants pocket.  Inside the bread was a plastic bag with 49.87 grams of heroin.

Two weeks later, police hid a GPS tracker on Blue’s car.  Police then followed Blue to the Fox Hall apartment complex, and observed him enter building seven, though they could not see whether he entered a particular apartment.  Blue emerged in under five minutes holding a “sandwich-sized, cloudy white, plastic container,” got into his car, and drove away.  Police followed Blue to a lake recreation area known for narcotics trafficking.  There, Blue exited his car holding just his mobile phone, got into a car with another man, Jamar Holt, and Holt drove them around the lake.  Several minutes later, Blue got out of the car, and Holt drove away.  Shortly thereafter, while following Holt, police stopped him for a traffic violation.  The stop escalated with Holt brandishing a handgun and attempting to run over one of the policemen, and the policemen firing on Holt.  Holt then fled the scene.  The police found Holt’s vehicle an hour later with no firearms or narcotics inside.  Later the same day, Blue’s car was GPS tracked to a home on Sinclair Lane, where he was arrested based upon his June meeting with Townsend.

A search of Blue’s person yielded a set of keys, one of which unlocked the door to an apartment at Fox Hall.  A police search of the apartment discovered, hidden inside a footstool, 108.6 grams of heroin, two scales with heroin residue, and empty plastic sandwich bags.  The police also found mail addressed to Tiffany Elliott and to her brother, Brandon Cooper.  Cooper was asleep in the apartment.  A search of the Sinclair Lane house revealed no evidence incriminating Blue.  

Blue was indicted for conspiring with Townsend and others to distribute and possess with intent to distribute 100 grams or more of heroin or heroin mixture, possession with intent to distribute a detectable amount of heroin or heroin mixture and aiding and abetting, and possession with intent to distribute 100 grams or more of heroin or heroin mixture and aiding and abetting.  A jury found Blue guilty on the two 100 gram charges, and acquitted him on the other charge.  After Blue moved for acquittal, the district court upheld the jury findings, though it noted that the sufficiency of the evidence as to the amount of heroin involved in the conspiracy was a close call.

Blue appealed denial of an earlier motion to suppress evidence, and denial of his motion for acquittal.  While the appeal was pending, Blue moved for a new trial on the two counts of which he was convicted based on newly discovered evidence.  The Fourth Circuit granted a motion by Blue to stay his appeal, and remanded his case to reconsider his motion for a new trial.  The District Court denied that motion.  Blue again appealed, and the Fourth Circuit consolidated the appeals for a new trial and for conviction.

The Fourth Circuit first found that there was not sufficient evidence to support Blue’s conviction for possession with intent to distribute 100 grams or more of heroin or heroin mixture and aiding and abetting.  The Fourth Circuit noted that for Blue to have had constructive possession of the heroin, he had to know of the 108.6 grams of heroin in the Fox Hall apartment, and have had dominion and control over the heroin.  Here, Blue’s having a key to the apartment, entering a Fox Hall building, and taking a container out of the building was not enough to establish his constructive possession.  This was particularly so given that there was no evidence that Blue lived in or leased the apartment, had any personal property in the apartment, or had any connection to the people who lived in the apartment, the plastic container was never found, and there was no evidence of connection between Blue and the heroin seized from Townsend, or the drugs or drug-related items found in the apartment.

The Fourth Circuit next found that there was not sufficient evidence to support Blue’s conviction for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin or a heroin mixture.  Because the Fourth Circuit found that there was not enough evidence to show that Blue knew about the 108.6 grams of heroin in the Fox Hall apartment, and because there was no evidence of a relationship between Blue, Townsend, or Holt and the apartment’s occupants, the Fourth Circuit found that there was not enough evidence to support the conspiracy conviction.  On this basis, the Court overturned Blue’s convictions.  The Fourth Circuit then declined to enter judgment on the lesser-included charge of conspiracy to distribute less than 100 grams of heroin because it felt that to do so would be to insert itself in the jury’s place.  Further, because of the way the jury verdicts were found at trial, the Fourth Circuit found that it could not know whether the jury found a conspiracy independent of finding a conspiracy involving 100 grams or more of heroin.  

Full Opinion

Katherine H. Flynn

 

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