United States of America v. Kenneth W. Blair

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3573
___________________________
United States of America
Plaintiff - Appellee
v.
Kenneth W. Blair
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: October 18, 2023
Filed: February 23, 2024
____________
Before GRUENDER, STRAS, and KOBES, Circuit Judges.
____________
KOBES, Circuit Judge.
A jury found Kenneth Blair guilty of possessing with intent to distribute and
distributing methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1). The district court1
sentenced him to 292 months in prison. Blair appeals, challenging the denial of two
1 The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

-- 1 of 7 --

-2-
pre-trial motions, refusal to acquit him on both counts, and calculation of drug
quantities for sentencing. We affirm.
I.
Blair’s troubles began with another man’s arrest outside a Mexican restaurant
in Lincoln, Nebraska. Police found the remnants of a recent half-pound meth deal
in the man’s car. Staring down the barrel of another drug charge, he flipped on his
source and agreed to become a confidential informant. The now-CI told the police
that he regularly bought meth from someone called “Fats,” whom he later confirmed
was Blair. The controlled interactions that followed ended with Blair’s arrest and
conviction.
The CI said that he regularly met Blair at a parking lot in a sprawling Omaha
apartment complex to buy meth. While preparing for a controlled meeting in
Lincoln, police learned that Blair drove a Lexus registered to a woman who lived in
the complex.
Investigators set up a controlled buy. As the CI travelled to Omaha, a
detective watched the woman’s apartment. He saw Blair drive up in the Lexus, enter
the apartment, and leave with a grocery bag. Blair drove to the parking lot and
waited until the CI and an undercover officer arrived. Wearing a wire, the CI got in
the Lexus, gave Blair $1,000 in marked buy money, and returned with the grocery
bag. Inside was about two pounds of meth.
With a successful buy and multiple informants pointing to Blair as their
supplier, police got a warrant to search the Omaha apartment and had the CI arrange
another buy. Only this time, when Blair got to the apartment to get the goods, he
was arrested. The search turned up about five pounds of meth in the master bedroom
along with drug paraphernalia and over $19,000 cash, including all the buy money.

-- 2 of 7 --

-3-
Blair was indicted on two gun and two drug charges. The jury acquitted him
of the gun charges. But it convicted him of the drug charges: first, for possessing
with intent to distribute less than 50 grams of meth seized in the Omaha apartment;
and second, for distributing the meth sold in the controlled buy. Blair now claims
error at each stage of his criminal proceedings.
II.
We start with the district court’s denial of two pre-trial motions. The court
refused to compel disclosure of the CI’s identity, adopting the magistrate judge’s2
finding that Blair had not overcome the Government’s privilege. It also denied his
untimely motion for a Franks hearing to challenge the warrant’s validity. See Franks
v. Delaware, 438 U.S. 154, 171–72 (1978). We review for abuse of discretion.
United States v. Oliver, 950 F.3d 556, 562 (8th Cir. 2020) (disclosure); United States
v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015) (Franks hearing).
A.
The Government enjoys a limited privilege to keep its informants’ identities
confidential, one that yields to a defendant’s showing that disclosure is “relevant and
helpful” to his defense or is “essential to a fair determination” of his case. Roviaro
v. United States, 353 U.S. 53, 59–61 (1957). To make that showing, a defendant
must establish “beyond mere speculation” that the informant’s testimony is material.
United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991).
We do not address whether Blair carried his burden. Even if we agreed that
the CI’s identity should have been disclosed, Blair has suffered no material prejudice
from the Government’s initial withholding. See United States v. Woods, 486 F.2d
172, 174 (8th Cir. 1973).
2 The Honorable Cheryl R. Zwart, United States Magistrate Judge for the
District of Nebraska, now retired.

-- 3 of 7 --

-4-
Blair concedes that he learned the CI’s identity at least two months before
trial, and the record shows that this later-than-liked disclosure did not leave him
unable to prepare a defense. Without objection, the district court briefly delayed the
CI’s testimony so Blair could review what he claimed was new evidence. And once
he took the stand, Blair cross-examined him about the issues raised on appeal: his
motives, credibility, and relationship with Blair. See United States v. Roell, 487 F.2d
395, 398–99 (8th Cir. 1973). Nothing suggests that Blair “would have done anything
different to affect the result at trial had an earlier disclosure been made.” United
States v. Foster, 815 F.2d 1200, 1203 (8th Cir. 1987). Any abuse of discretion was
harmless.3
B.
And we do not think that the court abused its discretion by denying a Franks
hearing. To get one, Blair had to make a “substantial preliminary showing” that the
warrant affidavit contained an “intentional or reckless false statement or omission
which was necessary to the finding of probable cause,” a requirement “not easily
met.” United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008) (citation omitted).
At the heart of his challenge lie just two statements suggesting that he had an
apartment in the same complex where he sold meth. Blair says that the affidavit
falsely attributed the statements to the CI and that without them, nothing linked him
to the Omaha apartment. But other information independently linked him to the
apartment. Blair was on a utility account for the unit and drove a car registered at
the address. And police saw him enter the apartment to pick up the drugs that he
3 We have not always been consistent in how we talk about the effect of
subsequent disclosure. Compare Woods, 486 F.2d at 174 (assuming without
deciding error and finding no prejudice), with Foster, 815 F.2d at 1203 (finding that
defendant “was not harmed by” a delayed disclosure and concluding that “the district
court did not err in declining to permit an earlier disclosure”), and United States v.
Rodrequez, 859 F.2d 1321, 1326 (8th Cir. 1988) (finding no error in refusal to order
disclosure where defendant was not prejudiced). We adopt the earliest framing:
harmlessness. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).

-- 4 of 7 --

-5-
sold to the CI. Excised of the contested statements, the affidavit still established “a
fair probability that contraband or evidence of a crime [would] be found” in the
apartment. Illinois v. Gates, 462 U.S. 231, 238 (1983).
III.
Blair next challenges the district court’s denial of his motion for judgment of
acquittal, arguing that the evidence was insufficient to support his two drug
convictions. We review de novo, viewing the evidence in the light most favorable
to the Government, resolving conflicts in its favor, and accepting all reasonable
inferences that support the verdict. United States v. Maurstad, 35 F.4th 1139, 1144
(8th Cir. 2022). Our standard is “quite strict,” and we will not disturb the verdict
unless “no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014)
(citation omitted).
A.
To convict Blair of possessing with intent to distribute, the Government
needed to prove that (1) he knowingly possessed, actually or constructively, the meth
found in the Omaha apartment and (2) he intended to distribute it. Id. at 1167–68.
Blair questions whether the Government established the first element on its theory
that he had dominion over the apartment. Dominion over the premises where
contraband is concealed establishes constructive possession, which may be exclusive
or joint. Id. at 1168–69. But since the evidence indicates that Blair jointly occupied
the apartment, the Government must offer something more to secure his conviction:
some “additional nexus linking [him] to the contraband.” Id. at 1168.
Ample evidence proved joint constructive possession. Blair traveled often to
Omaha, he drove the leaseholder’s car, his name was on a utility account, and a
power bill addressed to him was in the entryway. His conduct before the buy
suggested that he used the space to store meth, and he was arrested just outside

-- 5 of 7 --

-6-
before he could make another sale. The evidence also linked Blair to the meth itself.
Next to the bed in the master bedroom, investigators found mail addressed only to
Blair atop roughly a pound of meth. And in a nearby dresser, they found the buy
money and thousands of dollars more, “indicative of illegal narcotic sales.” See id.
at 1169 (concluding that access to the space where drugs were found and evidence
of narcotic sales established at least joint constructive possession); United States v.
White, 962 F.3d 1052, 1056 (8th Cir. 2020) (same).
Blair says the jury needed more: keys, fingerprints, and other Government
nice-to-haves. But our role is to uphold the verdict “[a]s long as one theory based
on the evidence presented” could support a conviction, United States v. Druger, 920
F.3d 567, 569 (8th Cir. 2019), not to determine whether the Government presented
the strongest case possible.
B.
Blair also attacks his conviction for distributing, which requires proof that he
“knowingly sold or otherwise transferred methamphetamine.” United States v.
Garcia, 646 F.3d 1061, 1066 (8th Cir. 2011). He argues that no reasonable jury
could find him guilty because the evidence did not show him handing over the drugs
and the CI’s wire did not pick up the magic words “drugs” or “meth.” We disagree.
The CI testified that Blair handed him the meth and that he gave Blair the
money—direct evidence the jury could accept. See United States v. Smith, 4 F.4th
679, 687 (8th Cir. 2021) (“Credibility determinations are uniquely within the
province of the trier of fact[] and are entitled to special deference.” (citation
omitted)). Circumstantial evidence, which is “treated no differently,” supported the
CI’s version of events. See United States v. King, 898 F.3d 797, 808 (8th Cir. 2018)
(citation omitted). Investigators searched the CI before and after the transaction and
monitored the exchange. When he rejoined the undercover officer after a few
minutes in the Lexus, he was $1,000 poorer and had a grocery bag filled with meth.
It was no great inferential leap that the sale occurred in that time. See United States

-- 6 of 7 --

-7-
v. Sturdivant, 513 F.3d 795, 800–01 (8th Cir. 2008) (sustaining conviction for drug
distribution under similar circumstances).
All told, a reasonable jury could find Blair guilty beyond a reasonable doubt
of the drug charges. His convictions stand.
IV.
Finally, Blair challenges the district court’s drug quantity calculation for
sentencing, which we review for clear error. United States v. Maxwell, 61 F.4th 549,
560 (8th Cir. 2023). He argues that the court should not have relied on testimony
from the CI and a cooperating witness to determine uncharged drug quantities. The
issue is one of credibility, United States v. Quintana, 340 F.3d 700, 702 (8th Cir.
2003), and Blair says these witnesses are no good—they’re “known liars, drug users,
and drug dealers.” Maybe so, but the court was free to credit their testimony all the
same. See id. (“[A] district court’s assessment of witness credibility [in sentencing
matters] is quintessentially a judgment call and virtually unassailable on appeal.”
(citation omitted)).
V.
We affirm the district court’s judgment.
______________________________

-- 7 of 7 --