                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11337                 OCT 28, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                             D.C. Docket No. 1:07-cr-20014-JIC-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff - Appellee,

                                             versus

MARC HENRY MERELAN,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                      (October 28, 2010)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Marc Merelan appeals his conviction of importing 500 or more grams of

cocaine, in violation of 21 U.S.C. § 952(a).
      The evidence at trial established that Merelan arrived in Miami on a flight

from Port-au-Prince, Haiti. The government considered this route “high risk”

because it was often used to smuggle drugs into the United States. When

Merelan’s flight arrived, customs officials x-rayed all the luggage from that flight

and noticed that one of Merelan’s bags was unusually dense. Custom and Border

Protection Officer Barzelay opened the bag and discovered a gift-wrapped wooden

plaque. As officials inspected the plaque, they noticed a white powder residue that

field tested positive for cocaine.1 They re-wrapped the plaque, replaced it in the

bag, and sent the bag to baggage claim.

      After Merelan picked up the bag, along with another piece of luggage,

Officer Navedo stopped and questioned him. Merelan stated that the bags were

his and that he was not carrying anything for anyone else. When Navedo opened

the bag and asked about the plaque, Merelan stated that it was a gift for his

girlfriend. During further questioning, Navedo conducted another field test in

front of Merelan; Merelan did not respond when the field test showed the powder

to be cocaine. Merelan was arrested and given his Miranda2 rights, after which

Merelan explained that a man had given him the bag to bring to the United States.


      1
          The parties stipulated that the amount of drugs involved was 970.2 grams.
      2
          Miranda v. Arizona, 384 U.S. 436 (1966).

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Merelan could not describe the man and did not know what the man had been

wearing, nor did he know the man’s name. While Merelan was being processed,

Navedo overheard him say that he was carrying the bag for someone else but he

never mentioned the person’s name.

         In his own testimony, Merelan stated that he was traveling to the United

States to visit his wife and children. At the airport in Haiti, a friend named

Roman, accompanied by another man Merelan did not know, asked Merelan to

carry his bag so that he could avoid the excess baggage fee. Roman showed

Merelan the contents of the bag and said that the plaque was a Bible. An

immigration officer advised him that the bag had been checked and was safe to

carry.

         When asked about his statements to customs officials after his arrival,

Merelan responded that he had said the bag was his because he did not believe

there was anything illegal in the luggage and he did not want Roman to be charged

for the extra bag. He explained that he told Navedo that the plaque was a gift for

his girlfriend because Navedo had admired the plaque and he was very proud. He

further explained that he cooperated with Navedo’s investigation because he

believed there was nothing illegal in the bags. After he learned that officials had

found cocaine on the plaque, he panicked because he would not have brought

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drugs into the United States. He then admitted to officials that was carrying the

bag for another man that he had met at the airport.

      During cross-examination, Merelan stated that he was going to visit his

wife, but he did not know her current address. He explained that his brother-in-

law was to give him the address when he arrived. He stated that he did not give

Roman’s name to the customs agents because they did not ask for it.

      Based on this evidence, the jury convicted Merelan of importing 500 grams

or more of cocaine, but acquitted him of the second charge–possessing with intent

to distribute cocaine. The court sentenced Merelan to 60 months’ imprisonment.

Merelan now appeals.

      We review the sufficiency of the evidence supporting a criminal conviction

de novo. United States v. Khanani, 502 F.3d 1281, 1293 (11th Cir. 2007). When

reviewing the sufficiency of the evidence, all evidence and all reasonable

inferences must be viewed in the light most favorable to the government. Id.

Because the jury is free to choose among reasonable constructions of the evidence,

we must accept the jury’s credibility determinations and inferences. Id.

      The government is required to prove each element of the charged offense

beyond a reasonable doubt to sustain a conviction. United States v. Rogers, 94

F.3d 1519, 1524 (11th Cir. 1996). To establish importation of 500 or more grams

                                         4
of cocaine in violation of 21 U.S.C. § 952(a) the government must prove (1) the

defendant imported cocaine into the United States from a place outside thereof,

(2) he did so knowingly and willfully, and (3) the weight of the cocaine imported

by the defendant was in excess of 500 grams. See United States v. Rodriguez-

Suarez, 856 F.2d 135, 140 (11th Cir. 1988). At issue in this case is whether the

evidence was sufficient to establish Merelan’s knowledge.

      To establish that the defendant acted knowingly, the government must prove

that the defendant had knowledge of a controlled substance in his possession.

United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008). “Direct evidence

of knowledge, however, is not necessary to sustain [the defendant’s] conviction;

the government may prove its case through circumstantial evidence.” United

States v. Quilca-Carpio, 118 F.3d 719, 721 (11th Cir. 1997). When a defendant

testifies, the jury is “free to reject” that testimony and can infer that the opposite is

true. Moreover, the jury may consider such evidence as substantive evidence of

guilt. United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009) (citations

omitted).

      Here, the evidence at trial established that Merelan picked up the bag

containing the cocaine from the baggage claim, and that he initially claimed

ownership both of the bag and of the plaque inside the bag. In his testimony,

                                            5
Merelan stated that he did not believe there was anything illegal in the bag and

explained that he would not have brought drugs into the United States. The jury

was free to disbelieve Merelan’s testimony and consider it is substantive evidence

of his guilt. Moreover, the jury, when faced with the various inconsistencies in

Merelan’s explanations, could have found his testimony incredible. We will not

disturb the jury’s credibility findings. Accordingly, we conclude the evidence

established Merelan’s knowing importation of cocaine. His conviction is

      AFFIRMED.




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