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Incredible Win! US v. Blue, No. 13-4069, No. 15-4153 (4th Cir. 2015)

December 11th, 2015
Elizabeth Franklin-Best

You don’t see wins like this too often—reversals based insufficiency of the evidence!  Great work on the part of the Maryland Federal Public Defender’s Office.

Briefly, the facts:

On June 29, 2011, a snitch was arrested for heroin and a firearms charge.  To help himself out, he agreed to set up others.  He identified “Townsend” as a heroin middleman.  Snitch and two officers then set up a controlled buy with Townsend.  As the police were parked in a car, preparing for the buy, the Snitch called Townsend and placed an order for 50 grams of heroin.  Townsend said he would be ready in 15 minutes.  A few minutes later, Townsend walked out of his apartment and interacted with occupants of a silver Lexus for less than a minute.  Townsend pulled out his wallet and gave some paper currency to the driver.  The officers did not see anything pass between Townsend and the Lexus.  Then, Townsend walked down the street where he met up with Blue.  According to the officers, at the start of the meeting, Blue had “a brownish-tannish item protruding from his left hand.”  Blue and Townsend raised their left hands together and lowered them back down.  When Townsend lowered his left hand, he was holding an item that he placed in his pocket.  Blue’s lowered hand was empty.  Townsend started heading back to his apartment, but before he entered it, the police arrested him.  They found a plastic bag containing a folded slice of bread in Townsend’s left pants pocket.  It contained 49.87 grams of heroin.

On July 13, 2011, Blue went to court.  While there, the police hid a GPS tracking device on his car which was located near the courthouse.  After court, Blue drove to an apartment building (Building #7) empty-handed.  When he exited, less than 5 minutes later, he had a sandwich-sized, cloudy white, plastic container in his hand.  He entered his car and drove away.  Blue then headed to an area known for drug transactions, Lake Montebello.  At Lake Montebello, Blue met with another man named Holt.  The two of them got into a Jeep and drove around Lake Montebello.  A minute or two later, Holt stopped the car, and Blue got out.  Holt then drove away.  Suspecting a drug transaction, the police then followed Holt and attempted to stop him.  After Holt pulled a gun on the officers, he then sped away and got away.  The police found his abandoned car an hour later.  No drugs or firearms were found.

That same day, Blue was arrested based on his meeting with Townsend on June 29, 2011.  Blue was questioned by the police, and he lied about exiting an apartment earlier that day, and he also lied about leaving Baltimore City that day (since the police had the tracking device on his car, they knew he was lying). Blue admitted to meeting with Holt that day and discussing a drug transaction that would take place later that day.  During a search incident to arrest, the police discovered a set of keys.  One of these keys opened an apartment in Building #7.  The police obtained a search warrant and entered that apartment.  Inside they found copious amounts of drugs, along with mail and other items identifying the occupants as Tiffany Elliot and Brandon Cooper.   The search did not uncover any evidence linking Blue to the apartment, the drugs, or to Tiffany Elliot or Brandon Cooper.

Based on all this, Blue was indicted for 1) conspiracy (conspiring with Townsend to sell drugs), 2) possession with intent to distribute heroin and aiding and abetting the same, and 3) possession with intent to distribute 100 grams or more of heroin.

Blue went to trial.   The jury convicted Blue on Counts 1 and 3, and acquitted him of 2.

In finding that the Government did not make its case, the Court held the following:

1) With regard to the drugs found in the apartment in Building #7 that Blue was charged with, the Court concluded that the Government did not make its case of constructive possession based on ownership of a key.  The Court found that the fact Blue had a key, entered the apartment for five minutes, and exited with a sandwich-sized plastic container in his hand, standing alone, was insufficient evidence to establish constructive possession of drugs that were found in a footstool in the front bedroom of the apartment.  The Court further noted that there were no items in the apartment connecting Blue to it, nor did the Government show any relationship between Blue and either Tiffany Elliot or Brandon Cooper.  As the Court found, “[t]here 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.”  There is additional great language in this opinion regarding the government’s burden when constructive possession is alleged.

As for the conspiracy charge, it’s important to note that the charge was conspiracy to distribute at least 100 grams of heroin.  The weight of the drugs is critical because the Government relied on the drugs found in the apartment to reach that weight.  Since the Court found the evidence insufficient to prove the conspiracy charge (since it could not prove any connection with the apartment), then the distribution + weight charge could not stand.  Additionally, the Government failed to present any evidence of what type of relationship (if any) Blue, Townsend, or Holt may have had with any of the occupants of the apartment in Building #7.   The Court further declined to enter judgement as to a lesser-included possession of less than 100 grams of heroin because it was not persuaded that the jury would have found the existence of the elements of that charge either.

This is a very important case for practitioners litigating constructive possession cases in the Fourth Circuit, and an extraordinary result for the client in this case!  Also, cute picture of Siamese kittens.

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