                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-13856                ELEVENTH CIRCUIT
                                                         FEBRUARY 18, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

               D. C. Docket No. 07-00103-CR-ORL-13KRS

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

WALLACE RAY SMITH,

                                                        Defendant-Appellant.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (February 18, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Wallace Ray Smith appeals his conviction for conspiracy to possess with

the intent to distribute marijuana in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(vii). He raises a single issue on appeal, namely whether the

evidence presented at trial was insufficient to sustain a conviction for conspiracy.

Smith argues his conviction was not supported by proof beyond a reasonable

doubt because the Government failed to establish Smith had knowledge of the

conspiracy. Smith further contends the district court, in denying his motion for

judgment of acquittal, essentially allocated to him the burden of proving what he

did not know and relied on impermissible inferences.

      “Sufficiency of the evidence is a question of law that we review de novo.”

United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006). In reviewing the

sufficiency of the evidence, we consider “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




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than guilt because a jury may select among constructions of the evidence.” United

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

      To support a conspiracy conviction under 21 U.S.C. § 846, the Government

must establish beyond a reasonable doubt (1) a conspiracy existed, (2) the

defendant had knowledge of it, and (3) he voluntarily joined it. United States v.

Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). “[T]he existence of an

agreement in a conspiracy case is rarely proven by direct evidence that the

conspirators formally entered or reached an agreement. . . . The more common

method of proving an agreement is through circumstantial evidence.” United

States v. Morales, 868 F.2d 1562, 1274 (11th Cir. 1989) (citation omitted). “A

defendant’s knowing participation in a conspiracy may be established through

proof of surrounding circumstances such as acts committed by the defendant

which furthered the purpose of the conspiracy.” United States v. Bain, 736 F.2d

1480, 1485 (11th Cir. 1984). In addition, “the defendant’s own statements may be

used to infer his participation in a conspiracy.” United States v. Cooper, 873 F.2d

269, 272 (11th Cir. 1989). Further, a defendant’s presence in a vehicle with drugs

combined with evidence the defendant made conflicting statements or related

implausible stories to authorities may support a conviction for conspiracy. United

States v. Stanley, 24 F.3d 1314, 1320–21 (11th Cir. 1994). Finally, there is a

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general principle that, in cases involving large amounts of narcotics, “a prudent

smuggler is not likely to suffer the presence of unaffiliated bystanders.” United

States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985).

       In this case, Smith does not argue there was no conspiracy to distribute

marijuana; rather, he contends he was unaware of the conspiracy. The cumulative

effect of the circumstantial evidence, however, belies Smith’s contention that he

lacked knowledge of the conspiracy. See Morales, 868 F.2d at 1274. Smith

traveled from Texas to Florida in a truck that carried a 600-pound marijuana

shipment and had a strong odor of marijuana emanating from it. He was present at

the initial delivery of the truck containing the hidden marijuana. After the truck

was unloaded, Smith made inculpatory statements to the confidential informant

acknowledging the contents of the truck and the presence of a chase car. See

Cooper, 873 F.2d at 272. Moreover, the jury was entitled to view Smith’s trial

testimony and statement to law enforcement that he did not meet with anyone

during the trip as substantive evidence tending to prove guilt because the

statements were inconsistent with surveillance video that showed Smith meeting

with two Hispanic men from the chase car. See Stanley, 24 F.3d at 1320–21.




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      As further support of his arguments, Smith cites the district court’s order

denying his motion for a judgment of acquittal and the court’s observation of the

possibility he was not a knowing participant in the conspiracy. Smith argues the

court’s observation demonstrates his guilt was not proved beyond a reasonable

doubt. This contention, however, is without merit because the evidence need not

exclude every hypothesis of innocence. Bailey, 123 F.3d at 1391.

      Viewing the evidence in the light most favorable to the Government, we

conclude a reasonable jury could have found Smith knowingly participated in the

conspiracy. The cumulative effect of the circumstantial evidence was sufficient to

sustain Smith’s conviction for conspiracy to possess with the intent to distribute

marijuana. Accordingly, we affirm Smith’s conviction.

      AFFIRMED.




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