United States v. Daniel Blue

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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