                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             September 8, 2006
                             No. 05-16981                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 05-20436-CR-DLG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GRAIG CLARKE,

                                                         Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (September 8, 2006)

Before TJOFLAT,WILSON and FAY, Circuit Judges.

PER CURIAM:
       Graig Clarke appeals his convictions for conspiracy to import cocaine, 21

U.S.C. § 963; conspiracy to possess with intent to distribute cocaine, 21 U.S.C.

§ 846; importation of cocaine, 21 U.S.C. § 952; and attempted possession with

intent to distribute cocaine, 21 U.S.C. § 846. On appeal, Clarke argues that the

evidence was insufficient to sustain his convictions and also challenges the district

court’s instructions to the jury that its interest was to seek the truth and to let its

verdict speak the truth. For the reasons set forth more fully below, we affirm.

       All four charges against Clarke stem from the delivery of a package sent

from the Bahamas and addressed to Clarke’s nephew, Travis Lee Clarke, which

contained cocaine hidden inside two computer casings. The package was

intercepted by customs officers, who replaced the cocaine with sham cocaine and

attached electronic equipment to monitor when a casing was moved and when it

was opened. An undercover agent delivered the package to Travis Lee Clarke’s

house, where Clarke was also staying. Both Clarke and Travis Lee Clarke were

involved in the process of accepting the delivery, although the testimony of the

undercover agent and Clarke differed greatly as to Clarke’s role in the transaction.

The package was moved and a casing opened over an hour and a half later while

both Clarke and his nephew were inside the house.




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                           I. Sufficiency of the evidence

      Clarke challenges the sufficiency of the evidence as to all four charges,

arguing that the evidence pointed to Travis Lee Clarke’s involvement only. He

further argues that there was no evidence that he agreed to import a controlled

substance or to possess cocaine with the intent to distribute, there was no evidence

tying him to the package or showing that he was involved in opening the package

or handling its contents, and there was no evidence that he had any contacts for

further distribution of the cocaine. He contends that his conviction for importation

of cocaine can only be sustained on an aiding and abetting theory because he did

not personally participate in the importation of cocaine and an instruction on co-

conspirator liability was not given.

      We review the sufficiency of the evidence de novo, “viewing the evidence in

the light most favorable to the government.” United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). We also make all reasonable inferences and

credibility choices in favor of the government and the jury’s verdict. Id. We must

affirm “unless, under no reasonable construction of the evidence, could the jury

have found the [defendant] guilty beyond a reasonable doubt.” Id. “The evidence

need not exclude every hypothesis of innocence or be completely inconsistent with

every conclusion other than guilt because a jury may select among constructions of



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the evidence.” United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).

Moreover, a jury can disbelieve a witness and infer that the opposite of his

testimony is true. See United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir.

2003).

         Conspiracy to import cocaine into the United States requires proof that:

(1) “there existed an agreement between two or more persons to import narcotics

into the United States,” and (2) “the defendant knowingly and voluntarily

participated in that agreement.” United States v. Arbane, 446 F.3d 1223, 1228

(11th Cir. 2006). The evidence must also show that the defendant knew that the

cocaine would be imported. United States v. Camargo-Vergara, 57 F.3d 993, 1000

(11th Cir. 1995). “To sustain a conviction for conspiracy to possess cocaine with

intent to distribute, the government must prove beyond a reasonable doubt (1) that

a conspiracy existed; (2) that the defendant knew of it; and (3) that the defendant,

with knowledge, voluntarily joined it.” United States v. Molina, 443 F.3d 824, 828

(11th Cir. 2006) (citation and quotation marks omitted). The agreement forming

the basis of the conspiracy can be proved “by circumstantial evidence, through

‘inferences from the conduct of the alleged participants or from circumstantial

evidence of a scheme.’” United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir.

1990) (citation omitted).



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      “In order to prove that a defendant imported controlled substances in

violation of 21 U.S.C.A. § 952(a), the government must establish that the

defendant imported such substances into the United States from any place outside

thereof.” United States v. Kelly, 749 F.2d 1541, 1546 (11th Cir. 1985) (citation

and quotation marks omitted).

      To sustain a conviction for attempted possession with intent to
      distribute cocaine, the government must prove beyond a reasonable
      doubt that the defendants (1) acted with the kind of culpability
      required to possess cocaine knowingly and wilfully and with the intent
      to distribute it; and (2) engaged in conduct which constitutes a
      substantial step toward the commission of the crime under
      circumstances strongly corroborative of their criminal intent.

United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). “To prove guilt

under a theory of aiding and abetting, the Government must prove: (1) the

substantive offense was committed by someone; (2) the defendant committed an

act which contributed to and furthered the offense; and (3) the defendant intended

to aid in its commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th

Cir. 2000).

      The circumstantial evidence in this case supports a reasonable inference that

Clarke conspired with Travis Lee Clarke to import and possess with intent to

distribute cocaine, attempted to possess with intent to distribute cocaine, and, either

as a principal or under an aiding and abetting theory, imported cocaine.



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      Based on the evidence, the jury could infer that Clarke purchased the money

order that was used to pay the C.O.D. charges on the package and, after

unsuccessfully trying to represent himself as Travis Lee Clarke, controlled the

delivery transaction between the undercover agent and Travis Lee Clarke. Based

on the location of the package relative to Clarke’s bedroom and in light of the fact

that the computer casings were neither moved nor opened until shortly after Clarke

returned after leaving the house for 90 minutes, the jury could infer that Clarke

opened the casings. Given the short amount of time between when the casings

were moved and when the screws were removed to open one of the casings, the

jury could infer that the person who opened the casings had prior knowledge that

they contained cocaine. Moreover, the jury could disbelieve Clarke’s testimony

that he was not involved with the cocaine or the package and infer that the opposite

was true. See Hasner, 340 F.3d at 1272.

      Based on these inferences, the evidence was sufficient, at least under an

aiding and abetting theory, for the jury to find that Clarke imported cocaine from

the Bahamas. These inferences also establish the necessary culpability and

substantial step required for attempted possession with intent to distribute. Based

on the six and a half kilograms of cocaine contained in the package, the presence of

items — the heat sealing machine in the kitchen and the scale in Clarke’s bedroom



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— that could be used in drug distribution, and testimony that such quantity was not

consistent with personal use, the jury could infer an intent to distribute.

      Based on these inferences, combined with Clarke’s cooperation with Travis

Lee Clark in accepting delivery of the package and evidence that the package was

addressed to Travis Lee Clarke, the jury could reasonably infer an agreement

between Clarke and Travis Lee Clarke to import cocaine and to possess with the

intent to distribute cocaine. The inference that Clarke had prior knowledge that the

package contained cocaine combined with evidence that the package was sent from

the Bahamas was sufficient to show that Clarke knew that the cocaine was

imported. Accordingly, the evidence was sufficient to sustain Clarke’s convictions

on all four counts.

                                II. Jury instructions

      Clarke argues that the district court’s instruction to the jury that its only

interest was to seek the truth and its statement to let the jury’s verdict speak the

truth, improperly undermined the district court’s previously stated instructions

regarding proof beyond a reasonable doubt and led the jury to convict on a lesser

showing than proof beyond a reasonable doubt.

      Where the defendant fails to object to a jury instruction before the district

court, we review that instruction for plain error. United States v. Hasson, 333 F.3d



                                            7
1264, 1277 (11th Cir. 2003). Under plain error review, there must be: “(1) error,

(2) that is plain, and (3) that affects substantial rights. If all three of those

conditions are met, the court may exercise its discretion to notice a forfeited error

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. LeCroy, 441 F.3d 914, 930 (11th Cir.

2006). In order for an error to be plain, it must be obvious or clear under current

law. United States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000). “[W]here

neither the Supreme Court nor this Court has ever resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.” Id.

(citation and quotation marks omitted).

       None of the federal cases Clarke cites in his brief resolve the issue of

whether instructing the jury to seek the truth or to let its verdict speak the truth is

error. In United States v. Hall, 525 F.2d 970, 971 (5th Cir. 1976), we rejected the

defendant’s argument that the district court’s “repeated admonishment during its

instructions to the jury to seek the truth was an improper and prejudicial comment

on the evidence.” In addition, two circuits have rejected the argument that

instructing the jury to seek the truth would lead the jury to infer that it did not have

to find guilt beyond a reasonable doubt. United States v. Gonzalez-Balderas, 11

F.3d 1218, 1223 (5th Cir. 1994); United States v. Goodlow, 597 F.2d 159, 163 (9th



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Cir. 1979). Accordingly, the error, if any, by the district court was not clear or

obvious, and, therefore, Clarke cannot establish that the district court plainly erred

in giving the challenged instructions.

        In light of the foregoing, we hold that Clarke’s convictions are supported by

substantial evidence and find no plain error in the district court’s instructions to the

jury.

        AFFIRMED.




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