                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                  JANUARY 18, 2008
                                                  THOMAS K. KAHN
                            No. 06-14028
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 06-20046-CR-KMM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

ANTWAN HANNA,

                                                     Defendant-Appellant.


                       ________________________

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


                            (January 18, 2008)

Before ANDERSON, HULL and FAY, Circuit Judges.

PER CURIAM:
      Antwan Hanna appeals his convictions for (1) conspiracy to possess with

intent to distribute 50 grams or more of crack cocaine, and a detectable amount of

cocaine and marijuana, 21 U.S.C. §§ 846, 841(b)(1)(A)(iii), (b)(1)(C) and

(b)(1)(D); (2) possession with intent to distribute crack cocaine, 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2; (3) possession with intent to

distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; and

(4) possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D)

and 18 U.S.C. § 2. Hanna argues that the district court erred by denying his motion

for judgment of acquittal because the evidence in the instant case was insufficient

to convict him of conspiracy to possess a controlled substance with intent to

distribute, or possession of a controlled substance with intent to distribute. He

contends that, at best, the evidence established “suspicious circumstances,” which

are insufficient to support his conviction.

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

      We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12

(11th Cir. 2006) (en banc). In reviewing a sufficiency of the evidence challenge,

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



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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 the evidence.” United States v. Bailey, 123 F.3d

1381, 1391 (11th Cir. 1997).

      a. Conspiracy

      Conspiracy to possess crack cocaine with intent to distribute requires the

government to 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)

(quotation 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). “Where the

government’s case is circumstantial, reasonable inferences, and not mere

speculation, must support the jury’s verdict.” United States v. Meija, 97 F.3d

1391, 1392 (11th Cir. 1996).



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      Although presence is a permissible factor to be considered in determining

whether a defendant conspired with another, “it is well settled that mere presence

will not support a conviction.” United States v. Charles, 313 F.3d 1278, 1284

(11th Cir 2002). “Mere presence, guilty knowledge, even sympathetic

observation” and close association with a co-conspirator are insufficient, without

more, to support a conviction for conspiracy to distribute drugs. United States v.

Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet, such factors may raise a

permissible inference of participation in a conspiracy, which the jury may consider

as a “material and probative factor . . . in reaching its decision.” United States v.

Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).

      Here, the circumstantial evidence in this case, viewed in the light most

favorable to the government, supports a finding that the jury in this case could

reasonably conclude that Hanna was more than a “sympathetic observer” and, thus,

that a conspiracy between Hanna and codefendant Frederick Mungai existed.

See Lyons, 53 F.3d at 1201. Hanna drove Mungai to the apartment complex.

After parking his car outside, but parallel to, the parking lot, Hanna joined Mungai.

While Hanna was parking the car, Mungai attempted to open the driver’s side door

of a Monte Carlo parked in the lot adjacent to the apartment complex. Previously,

a police dog had alerted to possible narcotics in the trunk of that car. Hanna and



                                           4
Mungai were in near-constant company as they conversed and walked back and

forth between two neighboring apartment complexes, and were the only two people

who showed interest in the Monte Carlo over a three-hour period. Hanna

conversed with a uniformed police officer while Mungai scanned the parking lot.

Hanna and Mungai eventually met with an unknown third party. Following this

meeting, Hanna proceeded to the elevated walkway around the apartment building,

while Mungai scanned the parking lot and slowly crawled up to the trunk of the

Monte Carlo, where he retrieved a brown paper bag. Law enforcement agents

spotted Mungai and then took off in pursuit of him, after he ran underneath the

elevated walkway and through the courtyard. At some point during the pursuit,

Mungai discarded the brown paper bag, which was later found inside apartment

A-211. Hanna was the only non-resident to enter apartment A-211 that day, and

was last observed on the elevated walkway near the time that Mungai retrieved the

brown paper bag from the Monte Carlo. The bag contained several smaller bags of

narcotics, including 54.3 grams of crack cocaine.1

       Based on these facts, the jury could infer that Hanna knew there was crack

cocaine hidden in the Monte Carlo and, with that knowledge, transported Mungai

to the apartment complex, took pains to ensure that Mungai retrieved the crack


       1
       The bag contained 54.3 grams of cocaine base, 58.3 net grams of cocaine, 208.3 net
grams of marijuana packaged in small bags and $1530 in cash.

                                              5
cocaine, and attempted to secret the drugs after Mungai was spotted by law

enforcement agents. Accordingly, the evidence was sufficient to establish that an

agreement existed between Hanna and Mungai to possess with the intent to

distribute more than 50 grams of crack cocaine and that Hanna voluntarily took

actions to ensure that the drugs were obtained and secured. Accordingly, the

district court did not err by denying Hanna’s motion for a judgment of acquittal as

to the conspiracy count.

      b. Substantive Counts

      To support a conviction for possession with intent to distribute under 21

U.S.C. § 841(a)(1), the government “must prove (1) knowing (2) possession of a

controlled substance (3) with intent to distribute it.” United States v. Farris, 77

F.3d 391, 395 (11th Cir. 1996). These elements may be proved by circumstantial

evidence. Id. “Possession may be actual or constructive, joint or sole.” United

States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (per curiam). The

possession must also be knowing. Farris, 77 F.3d at 395. “A defendant has actual

possession of a substance when he has direct physical control over the

contraband.” United States v. Edwards, 166 F.3d 1362, 1363 (11th Cir. 1999). “A

defendant has constructive possession of a substance when he has some form of

control other than direct physical control.” Id. at 1364. A jury may infer the intent



                                           6
to distribute a controlled substance based on the amount of drugs involved in the

offense. See United States v. Tinoco, 304 F.3d 1088, 1123 (11th Cir. 2002) (“A

defendant’s intent to distribute, moreover, may be inferred from the . . . quantity of

narcotics that were seized.”).

      Any individual who aids, abets, or counsels another during the commission

of a crime is punished as if that person were a principle to the crime. 18 U.S.C.

§ 2. “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).

      Here, although there was no direct evidence linking Hanna to the brown bag

found in apartment A-211, which contained crack cocaine, cocaine, and marijuana,

the circumstantial evidence, viewed in the light most favorable to the government,

was sufficient to sustain his substantive convictions. Even assuming that there was

insufficient evidence that Hanna possessed these drugs, either actively or

constructively, the evidence supports Hanna’s conviction under an aiding and

abetting theory. The evidence established that Hanna drove Mungai to the

apartment complex, and accompanied Mungai to the area where the Monte Carlo



                                           7
was parked. Hanna engaged in a conversation with a uniformed police officer

while Mungai scanned the parking lot. Hanna stopped by Danielle Ramsey’s

apartment, while Mungai crawled out to the Monte Carlo to retrieve a brown paper

bag containing several smaller plastic bags of crack cocaine, cocaine, and

marijuana. Mungai was chased by law enforcement officer and ran underneath the

walkway outside of Ramsey’s apartment, before discarding the brown paper bag.

Ramsey, who resided in apartment A-211, testified that Hanna had stopped by and

that she had left the door open for him after he went out for a few minutes.

Ramsey noted, however, that she was in her bedroom when Hanna returned and

stated that she did not initially hear him re-enter the apartment. After a few

minutes, Hanna left the apartment and was met on the walkway by Mungai. Aside

from Ramsey and her mother, Hanna was the only person inside apartment A-211

that day. The brown paper bag, which contained several smaller plastic bags of

narcotics, was located in that apartment 20-30 minutes after Hanna left.

      Despite the potential inconsistency as to Mungai’s location at the time

Hanna traveled in and out of Ramsey’s apartment, the jury could reasonably infer

that Hanna had prior knowledge that the brown paper bag contained crack cocaine,

cocaine, and marijuana, and, accordingly, stashed the bag inside Ramsey’s

apartment after Mungai passed it off to him while fleeing from law enforcement.



                                           8
Moreover, the jury could infer that Hanna engaged in a conversation with a police

officer in order to divert the officer’s attention away from Mungai, who was

scanning the parking lot area near the Monte Carlo. Further, based on the quantity

of drugs involved in the offense, along with the fact that the drugs were packaged

in separate, smaller plastic bags, the jury could infer an intent to distribute.

Accordingly, the evidence was sufficient to sustain Hanna’s conviction, under an

aiding and abetting theory, for possession of crack cocaine, cocaine, and marijuana

with the intent to distribute.

       In light of the foregoing, Hanna’s convictions are

       AFFIRMED.




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