Federal prosecutors tend to screen their cases so well that, according to federal sentencing law expert Alan Ellis: “Approximately 97% of all federal criminal defendants plead guilty. Of those who proceed to trial, 75% are convicted. Almost 99% will ultimately be sentenced. Over 87% will be sentenced to prison.”

Congratulations to Daniel Blue for refusing to plead guilty, because his appellate lawyer Sapna Mirchandani, then got his felony drug felony conviction reversed. U.S. v. Blue, ___ F.3d __ (4th Cir., Dec. 10, 2015).

Police placed Blue under surveillance in Maryland, found him entering a Baltimore apartment building, arrested him, found a key on him to an apartment in the building, obtained a search warrant for the key-matching apartment, and found over one hundred grams of heroin therein.

The jury acquitted Blue for an alleged drug transaction from around two weeks earlier, but convicted him for possession with intent to distribute heroin, and related conspiracy, for the heroin found in the above-described apartment.

In reversing, the unanimous Fourth Circuit panel said:

“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… 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)… 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)… 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.”

Let us not have high federal conviction statistics become self-fulfilling prophesies. Criminal defense lawyers can reassure their federal prosecution clients, and all clients, that each case needs to be reviewed and prepared individually for the chances possibly to obtain the same excellent results that Daniel Blue ultimately reached, albeit after Blue first was convicted and sentenced.