                               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.




                            - 2 -
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

                                         - 3 -
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

                                               - 4 -
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

                                          - 5 -
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

                                           - 6 -
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.

                                          - 7 -
     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

                                         - 8 -
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,

                                           - 9 -
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.



                                           - 10 -
       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

                                            - 11 -
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

                                     - 12 -
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.

                                          - 13 -
                                            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.

                                          - 14 -
§ 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.

                                             - 15 -
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,
                               - 16 -
       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

                                             - 17 -
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

                                          - 18 -
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

                                              - 19 -
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

                                      - 20 -
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

                                          - 21 -
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,

                                         - 22 -
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

                                           - 23 -
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

                                           - 24 -
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

                                          - 25 -
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



                                           - 26 -
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



                                            - 27 -
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)
                            - 28 -
                                                        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.


                             - 29 -
