United States District Court, D. Maryland
ELLEN L. HOLLANDER, District Judge.
Presently pending before this Court is the motion for new trial (ECF 121, "Motion") filed by defendant Daniel Blue, based on his claim of newly discovered evidence. See Fed. R. Crim. P. 33.
On June 22, 2012, a jury convicted Mr. Blue (ECF 90) on Counts One and Three of a Superseding Indictment (ECF 27), charging him with various drug offenses. He was sentenced on January 18, 2013, to a mandatory minimum term of ten years' imprisonment. ECF 105, 106, 107. On October 3, 2014, while Mr. Blue's case was on appeal to the United States Court of Appeals for the Fourth Circuit, he filed the instant Motion, grounded on the post-trial misconduct conviction of a Baltimore City police officer, Sergeant Marinos Gialamas, who had testified for the government at Mr. Blue's pretrial motions hearing and at Mr. Blue's trial. The police officer's conviction in the Circuit Court for Baltimore City in February 2014 resulted from events that occurred in October 2011, involving the arrest of an individual named Antoine Green. The arrest of Mr. Green was unrelated to the investigation and prosecution of Mr. Blue.
On October 31, 2014, the Fourth Circuit granted Mr. Blue's unopposed motion to stay his appeal and remanded the case to this Court for consideration of the Motion. ECF 124, 127; see Fed. R. Crim. P. 33(b)(1) ("If an appeal is pending, the [trial] court may not grant a motion for new trial until the appellate court remands the case."). Thereafter, on December 2, 2014, the government filed an opposition to the Motion (ECF 129, "Opposition"), to which the defendant replied. ECF 131, "Reply." Both parties also submitted exhibits. In addition, the defendant filed a letter (ECF 132) to clarify that the "briefs may not make sufficiently clear that inherent in Mr. Blue's request for a new trial is a request for a renewed hearing on his motion to suppress evidence."
I held a hearing on the Motion on January 8, 2015, at which Mr. Blue appeared, with his attorneys. For the reasons set forth below, I will deny the Motion.
I. Factual Background
During police surveillance of Keith Townsend on June 29, 2011, Sgt. Gialamas claimed to have observed a hand-to-hand drug transaction between Townsend and Blue. Townsend was arrested on that date, and heroin was recovered from him. Two weeks later, on July 13, 2011, Blue was arrested, without a warrant, based on the criminal conduct observed by Sgt. Gialamas on June 29, 2011. Blue's arrest led to the discovery of a substantial quantity of heroin.
Blue was initially indicted on September 14, 2011. ECF 1. In a Superseding Indictment filed on December 7, 2011, both Blue and Townsend were charged with various offenses. In particular, in Count One both defendants were charged with conspiracy to distribute and possess with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1). Count Two charged that on June 29, 2011, both defendants possessed with intent to distribute a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1). Count Three pertained only to Blue. It charged that on July 13, 2011, Blue knowingly and intentionally possessed with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1). In sum, Blue was charged in all three counts with drug offenses that allegedly occurred on two dates: June 29, 2011 and July 13, 2011.
On June 7, 2012, Townsend pled guilty to Count Two. See ECF 66, 67, 68. He was subsequently sentenced to 37 months' imprisonment. ECF 98, 99, 100.
Blue filed several pretrial motions, see ECF 15, 16, 17, 18, 19, 20, which were heard and considered on May 30, 2012 (ECF 62; 63; 74; 119) and June 7, 2012 (ECF 71; 72, 120). In general, the motions sought suppression of statements made by Blue following his arrest; suppression of the keys recovered from Blue's pocket during a search incident to his arrest; suppression of heroin found during the execution of a search warrant issued by a Maryland State judge on July 13, 2011, for apartment 1D at 7 Rosecrans Place in Nottingham, Baltimore County, for which the defendant had the key at the time of his arrest. In addition, Blue challenged the warrantless use by the police of a GPS slap-on tracking device,  and he also attacked the search warrant itself. I orally denied the motions, for the reasons stated in open court. See ECF 63; ECF 72; ECF 74; ECF 119; ECF 120. The motions are discussed in more detail, infra. 
Blue proceeded to trial beginning on June 18, 2012. At the close of evidence, I denied the defendant's motion for judgment of acquittal as to Count Two, but reserved ruling as to Counts One and Three, pursuant to Fed. R. Crim. P. 29(b). See ECF 81. On June 20, 2012, the jury returned a verdict of guilty as to Counts One and Three, and a verdict of not guilty as to Count Two. ECF 90.
Thereafter, I set a briefing schedule for the Rule 29 motion. ECF 81; see also ECF 91 (defendant's brief); ECF 94 (government's response). Argument was presented on the Rule 29 motion at a hearing on August 15, 2012. ECF 95; ECF 115. At the conclusion of the hearing, I orally denied the Rule 29 motion. See ECF 115 (transcript).
On November 2, 2012, the federal prosecutor assigned to this case, AUSA John Sippel, Jr., wrote a letter to Mr. Blue's defense counsel, advising that Baltimore City Police Sergeant Marinos Gialamas, a government witness at Blue's motions hearing and at his trial, had been charged in the Circuit Court for Baltimore City with second degree assault and misconduct in office. ECF 129-1. As noted, the charges stemmed from the arrest of Antoine Green in October 2011. There is no contention that the government knew of any accusations against Sgt. Gialamas at the time of Mr. Blue's trial, or even that Sergeant Gialamas knew at that time of Mr. Blue's trial that he was under investigation for his conduct in connection with the arrest of Mr. Green.
At Mr. Blue's sentencing on January 18, 2013,  defense counsel informed me that Sgt. Gialamas had been charged in a Maryland court with second degree assault and misconduct, and that the charges were pending. ECF 118 at 2. Defense counsel advised that a motion for new trial on behalf of Mr. Blue was not yet "ripe" because the charges were pending against Sergeant Gialamas, and he was awaiting trial. Id. at 3.
Thereafter, I sentenced Mr. Blue to ten years' imprisonment, the mandatory minimum term. See ECF 105, 106, 107. On January 25, 2013, Mr. Blue timely noted an appeal to the Fourth Circuit. See ECF 108. According to defendant, two issues were raised on appeal: First, whether evidence recovered from a warrantless search should have been excluded from trial; and second, whether the government presented evidence sufficient to prove that defendant constructively possessed the drugs found in a third party's apartment on July 13, 2011. See ECF 121 at 1-2.
B. Mr. Blue's Pretrial Motions
As noted, Mr. Blue filed several pretrial motions. See ECF 15, 16, 17, 18, 19, 20. The government responded (ECF 56), and Mr. Blue replied. See ECF 58. At the motions hearing held on May 30, 2012, the government presented the testimony of two Baltimore City police officers: Sergeant Marinos Gialamas and Task Force Officer William Bearde. The defendant called Detective James McShane. See generally ECF 119-133 (transcript).
The evidence revealed that on June 29, 2011, Detective McShane was involved in the arrest of an individual who then sought to cooperate with police by disclosing his source for heroin. Id. at 121-22. McShane decided that the cooperator should contact his source in the presence of TFO Bearde and Sergeant Gialamas. Id. at 123.
At the hearing, Sergeant Gialamas testified that he was a Baltimore City police officer for more than 17 years and had been involved in over a thousand narcotics arrests. Id. at 6-7. He recalled that a "confidential source" ("C.S.") had identified an individual known to the C.S. as Choke, later identified as Keith Townsend, as his source of "raw heroin." ECF 119 at 8. On June 29, 2011, the C.S. agreed to set up a controlled buy of heroin from Townsend, under police surveillance. Id. at 8-12, 44. Townsend was described as the "target" of the surveillance. Id. at 38.
The C.S. indicated that Townsend resided at 715 North Curley Street in Baltimore City. Id. at 11. At about 11:30 a.m. on June 29, 2011, the C.S. drove with Sgt. Gialamas and TFO Bearde in an unmarked police vehicle to the 800 Block of North Curley Street, where they could observe the 700 block of North Curley Street. Id. at 9-11, 27. Gialamas described Curley Street as a "narrow street" and a "small side street." Id. at 40. He also noted that there was very little traffic on that street at the time, id., and stated that he had a "clear and unobstructed view of the 700 block of North Curley Street[.]" Id. at 10-11.
Gialamas was seated in the driver's seat of the police vehicle, ECF 119 at 27, and Bearde was in the front passenger seat. Id. at 29. The C.S., who was also in the vehicle, id. at 10, telephoned Choke and "ordered" "50 CD's" of heroin. Id. at 12. The C.S. indicated to the officers that the term "CD's" was "street code" or "slang" for heroin. Id. at 9.
After the C.S. placed the phone call to Townsend to obtain the heroin, the C.S. reported that Townsend said, "In about 15 minutes." Id. at 12. Gialamas understood that to mean that the heroin would "be ready in about 15 minutes." Id. Shortly after the C.S. called Townsend, Townsend was observed as he left his residence and approached the driver's side of a Lexus SUV. Id. at 12-13. The C.S. pointed out Townsend to the police. Id. at 27. Gialamas indicated that he had "a clear and obstructed view" of the Lexus. Id. at 13. Gialamas also stated that he did not observe any activity indicative of a hand-to-hand drug transaction between Townsend and anyone in the Lexus. ECF 119 at 13. Nor did he see Townsend make any movement towards his left front pants pocket. Id. at 14. Townsend then returned to his residence. Id. at 14-15. The Lexus was subsequently stopped by other police officers. Id. at 30-33.
Shortly thereafter, Sergeant Gialamas observed Townsend appear to answer a phone call. Id. at 15. Then, Townsend again left his residence, with a cellphone in his hand. Id. Townsend walked in the direction of the police vehicle. Id. at 15, 16. At the same time, an individual, later identified as Mr. Blue, was walking towards Townsend. Id. at 16, 38. Gialamas had no knowledge of Mr. Blue prior to the events of June 29, 2011. ECF 119 at 26, 34-35.
Gialamas had a "clear and unobstructed view" of Townsend. Id. at 15. And, he could see Townsend and Blue, without the use of binoculars, from his location - a distance of about 30 yards. Id. at 16-17, 39-40. He also confirmed that he had a "straight line of sight" to Blue and Townsend. Id. at 17.
Because the C.S. had indicated that Choke "was the middle man to order a large amount of narcotics from..., " id. at 29, Gialamas wanted "to see who [Townsend] meets up with, to receive the amount of narcotics that the confidential source ordered up." ECF 119 at 38. Gialamas explained that when he saw Blue, his "attention was drawn to the hands...." Id. Gialamas stated, id. at 37: "Well, we were waiting for a transaction to happen. So usually... you watch people's hands." Gialamas saw that in Blue's left hand, "as he's approaching Mr. Townsend, [Blue's] hand was closed but it wasn't closed all the way, and there was an item in his hand." Id. at 16.
Gialamas described a "brownish/tannish item" that protruded from Blue's left, "semi-closed fist." ECF 119 at 40; see also id. at 16-17; 37-40. According to Gialamas, when Blue and Townsend "got close, " id. at 17, Blue's left hand came up, it opened up, and then Blue handed the item in his left hand to Townsend. Id. at 17-18, 39. At that point, the two men were "not exactly face to face...." Id. at 18. Townsend took the item with his left hand and placed the item into his left pants pocket. Id. at 39. Gialamas "knew it was an object" in Blue's hand, id., but could not identify the object. Id. Gialamas testified: "So from my training and experience, whatever he [i.e., Blue] had in his hand he gave to Mr. Townsend. At that time, Mr. Townsend put that item into his left front pants pocket." ECF 119 at 18; see also id. at 39. Gialamas believed he had witnessed a hand-to-hand drug transaction between Blue and Townsend. Id. at 46.
Townsend was promptly arrested on his front porch, id. at 20, and 50 grams of "raw heroin" were recovered from Townsend's left front pants pocket. Id. at 21. The heroin was found between two slices of bread wrapped in Saran Wrap. Id. Mr. Blue was not arrested at that time, however. Id. at 44.
Notably, the location of the drugs found on Mr. Townsend - in his left pants pocket - was consistent with Gialamas's observation and testimony. And, the quantity matched precisely the quantity that was ordered minutes before by the C.S. See id. at 12, 21.
TFO Bearde testified that he had been a Baltimore City Police Officer for ten years, and a task force officer with the Drug Enforcement Administration for six years. Id. at 50-51. He is a deputized federal agent. ECF 119 at 53-54.
Bearde recalled that on the date in question, he and Detective McShane interviewed an individual (the C.S.), who had just been arrested and wanted to cooperate with law enforcement. ECF 119 at 54. The C.S. disclosed an individual known to him as Choke as a source of supply for raw heroin, ...