A federal appeals court has ruled that a conviction for intent to distribute 1,000 grams or more of heroin must be based on evidence that a defendant possessed or distributed that quantity of the drug at a single time, and cannot be based on the sum of several smaller possessions and distributions during the indictment period.

A federal appeals court has ruled that a conviction for intent to distribute 1,000 grams or more of heroin must be based on evidence that a defendant possessed or distributed that quantity of the drug at a single time, and cannot be based on the sum of several smaller possessions and distributions during the indictment period.

In a precedential April 2 decision, the U.S. Court of Appeals for the Third Circuit vacated defendant Anthony Rowe’s conviction and sentence, citing a lack of evidence, and instead instructed the district court to enter a judgment of conviction for distribution and possession with intent to distribute 100 grams or more of heroin. The appeals court also called for a new sentence based on that conviction.

According to Judge D. Michael Fisher’s opinion, Rowe was arrested June 25, 2016, during a sting operation after being paid $3,900 for the heroin by a confidential government informant. Law enforcement recovered a small notebook, several cellphones and cash that matched the pre-recorded bills.

“Rowe argues that the evidence was insufficient to convict because the government did not prove that he distributed or possessed 1,000 grams of heroin in a single unit, instead relying on evidence of multiple smaller distributions and possessions during the indictment period,” Fisher said. “He also challenges his sentence, arguing that the district court relied on information lacking sufficient indicia of reliability to determine his offense level. We agree that the evidence was insufficient to support the 1,000-gram verdict. We will therefore vacate the judgment of conviction based on the 1,000-gram verdict and remand to the district court to enter a judgment of conviction based on the 100-gram verdict.”

Rowe was sentenced to 151 months in prison and an additional five years of supervised release. The question on appeal, according to Fisher, was whether the evidence was sufficient to allow a jury to find that Rowe violated 21 USC Section 841(a) by distributing 1,000 or more grams of heroin, or by possessing with intent to distribute 1,000 or more grams of heroin.

Fisher said that the prosecutor who handled the trial had “mistakenly believed that distribution of 1,000 grams could be proven by combining several distributions that, in total, involved 1,000 grams of heroin.”

“Rowe challenged this approach in his post-trial motion,” Fisher said. ”The district court confirmed that the government was mistaken, and the government concedes the same before this court. However, the district court found that because Rowe was also charged with possession with intent to distribute, a continuing offense, the jury’s general verdict could stand. We disagree … the government’s understanding of possession with intent to distribute was also flawed, and the government did not present sufficient evidence of possession with intent to distribute 1,000 grams of heroin.”

For guidance on the issue, the appeals court looked to its own 2013 ruling in United States v.Benjamin.

“In Benjamin, we looked at another possession statute—felon in possession of a firearm—and held that continuity is interrupted by ‘relinquishment of both actual and constructive possession of the gun before it is reacquired,’” Fisher said. “Applying our reasoning in Benjamin to [21 U.S.C.] Section 841, we conclude that possession of 1,000 grams of heroin begins when a defendant has the power and intention to exercise dominion and control over all 1,000 grams, and ends when his possession is interrupted by a complete dispossession or by a reduction of that quantity to less than 1,000 grams.”

Rowe’s attorney, Peter Goldberger, did not respond to a request for comment.

The U.S. Attorney’s Office for the Middle District of Pennsylvania also did not respond to a request for comment.