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Just because you have the key, doesn’t mean what’s behind the door is yours

Reversals of convictions because the government’s evidence at trial was not sufficient to sustain a conviction, despite a jury finding otherwise, are rarest of appellate victories. They are also the sweetest because the result is not a remand for a retrial, but a remand for the entry of a judgment of acquittal. Given this, it is surprising that there have recently been two such reversals this month. In the second of the two, a writeup of the first is coming soon, Daniel Blue, had his two convictions for possession with intent to distribute 100 grams or more of herion and conspiracy to commit the same vacated.

His case started with the June 29, 2011, arrest of Herbert Fenner. After Fenner was arrested, he agreed to assist the Baltimore City Police Department with other heroin investigations. This cooperation agreement led to his arranging a controlled purchase of heroin from Keith Townsend, who Fenner knew to be a middleman for some other drug dealer.

Fenner called Townsend, ordered fifty grams of heroin and was told to wait for delivery. The police, who were watching Townsend at the time, saw Townsend leave his house and talk with the occupants of a Lexus SUV parked nearby. He spoke with them for less than a minute before handing someone in the car money. The observing officers did not see Townsend receive anything in return for the money.

Townsend then walked down the street where he spoke with Blue for about two minutes. When they starting talking, Blue had a brown or tan item in his hand that, by the end of the conversation, was in Townsend’s hand.

After that brief conversation, Townsend walked back towards his house and called Fenner to tell him to meet him there. Right before he went into the house, Townsend was arrested. A search incident to his arrest yielded a bag containing a folded slice of bread that was concealing a bag containing just short of 50 grams of heroin.

Two weeks later Blue was due to appear in court for a misdemeanor case. While he was in the courthouse, a Baltimore detective hid a GPS tracker on Blue’s car. The detective and another officer began to follow Blue when he left court. He was in the car with one other person during this drive.

After a short drive, Blue stopped in the parking lot of an aprtartmnet complex. He exited his car empty-handed. The officers could not see which apartment, if any, Blue entered. All they could be sure of was that he entered the building, walked up a few steps, and then left their sight. He entered a building and a few minutes later he exited with a white, cloudy plastic container in his hand. Blue got back into this car and drove away.

Blue then drove to a park that officers testified they knew to be a drug market. Once there, Blue left his car, got into another person’s car, drove around the park for a short time, and then exited the car.

Officers followed the driver of that car, Jamar Holt, and initiated a traffic stop because they suspected Blue and the driver had just conducted a drug deal. Holt pointed a firearm at the officers, attempted to run one over, and sped off. Two officers fired their weapons at the driver during incident. Holt’s car was later found with no firearms or drugs in it.

That same day, the GPS tracker on Blue’s car showed the car parked outside of a house on Sinclair Lane. Officers went to the address, watched Blue exit the house, and arrested him based on the June sale to Townsend. After his arrest, Blue gave a statement to police in which he denied having been inside the Sinclair Lane house and said he had not left the city that day. Officers confronted him with evidence that the apartment where he was seen was outside of the city limits. He then admitted to having met with Holt to discuss a drug sale, but nothing else.

During a search incident to Blue’s arrest, police found a set of keys to an apartment in the complex where Blue was seen earlier in the day. They obtained a search warrant for the apartment and found 108.6 grams of heroin, two scales with heroin residue, and empty plastic sandwich bags. These items were all found inside a footstool in the front bedroom. Also in that room, was mail addressed to a Tiffany Elliot and women’s clothing. Elliot’s brother was sleeping in the other bedroom. There was no evidence at the scene that linked Blue to either resident of the apartment or tha apartment itself. A search conducted at Sinclair Lane yielded no evidence of drug dealing.

At trial, Blue was acquitted of the sale of the approximately 50 grams of heroin from June 29, 2011. He was convicted to conspiring with Townsend (count 1) and of possessing with intent to distribute 100 grams or more of heroin (count 3). In denying motions for judgment of acquittal on counts 1 and 3, the district court said it was a close case and suggested it would make good appellate issue.

The Fourth Circuit held that because the government proceeded against Blue under a constructive possession theory for the drugs in the apartment, the operative questions were whether he knew that the drugs were in the footstool and whether he could exercise dominion and control over them. The government conceded that Blue’s possession of a key to the apartment, his entering the building, exiting briefly after, and holding something the size of a sandwich in his hand after was not enough to sustain a conviction under a constructive possession theory. But, the government argued that the other facts detailed above could lead to reasonable inferences that tied him to the drugs. Further, the government argued that the absence of Blue’s personal items in the apartment was not evidence of his not having ties to the apartment, but rather was proof that the apartment was a stash house. Its evidence on this point, however, came from an expert witness who added that the stash houses were usually occupied by the family, friends, or romantic partners of the alleged drug dealers. There was no such evidence in this case.

The appellate court rejected the government’s arguments. It held that other than the key, the government presented no evidence that Blue had any ties to the apartment. Blue’s denial of having been there earlier in the day was relevant, but not enough to “get the government past the beyond-a-reasonable-doubt finish line.” The Court therefore reversed the district court’s denial of the motion for judgment of acquittal.

On the conspiracy count, the conviction was vacated because with the acquittal on count 2, the only drugs left in the case were the 108.6 grams of heroin found in the apartment. The same drugs which the Court held were not in Blue’s constructive possession. Further, the Court held that entering a judgment against Blue for the conspiracy court for a lesser quantity of drugs was not proper given the jury’s factual findings on the other counts.

None of the legal principles in the case are particularly earth shaking or a large departure from past cases. Instead, the this case is surprising because of how rarely we see sufficiency of the evidence reversals.

Congratulations to Sapna Mirchandani of the Office of the Federal Public Defender for the District of Maryland for the victory.

Andrew Szekely is a Greenbelt-based criminal defense attorney with a practice specializing in federal criminal defense and serious state-court crimes in Maryland and the District of Columbia. He also maintains an active appellate, post-conviction, and habeas corpus practice.

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