                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-13919                  ELEVENTH CIRCUIT
                                                                  JUNE 4, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                   D. C. Docket No. 05-00254-CR-06-JTC-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

ALLISTAIR ST. AUBYN CLARKE,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                  (June 4, 2009)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Allistair St. Aubyn Clarke appeals his convictions, following a jury trial, of
conspiracy to possess with intent to distribute at least five kilograms of cocaine, in

violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii), and possession with intent to

distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1),

and 18 U.S.C. § 2, contending that the district court erred in denying his motion for

judgment of acquittal made pursuant to Federal Rule of Criminal Procedure 29. In

his brief, Clarke, conceding that a drug conspiracy did exist, argues that the

Government failed to prove that he was a member of the conspiracy. He also

argues that the evidence was insufficient to prove that he possessed cocaine with

intent to distribute.

       “We review the sufficiency of the evidence presented at trial de novo.”

United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). “The evidence is

viewed in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor.” Id. “It is not necessary that

the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided a reasonable trier

of fact could find that the evidence establishes guilt beyond a reasonable doubt.”

United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990). In referring to the

evidence, we refer to circumstantial as well as direct evidence. Hence, a

conspiracy may be established by circumstantial evidence alone. Glasser v. United



                                           2
States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (“Participation in a

criminal conspiracy need not be proved by direct evidence; a common purpose and

plan may be inferred from a ‘development and collocation of circumstances.’ ”);

United States v. Gold, 743 F.2d 800, 824 (11th Cir.1984) (“ ‘The very nature of

conspiracy frequently requires that the existence of an agreement be proved by

inferences from the conduct of the alleged participants or from circumstantial

evidence of a scheme.’ ”) (quoting United States v. Ayala, 643 F.2d 244, 248 (5th

Cir. Unit A 1981)) (brackets omitted). Because the conspiracy offense in this case

can be established with circumstantial evidence alone, it follows that circumstantial

evidence alone can establish the possession with intent to distribute offense.

       We use the above standards to assess Clarke’s challenges to the sufficiency

of the evidence . We turn first to the conspiracy charge, then the possession with

intent to distribute offense.

                                          I.

       “[T]he elements of the offense of conspiracy under 21 U.S.C. § 846 are:

(1) an agreement between the defendant and one or more persons, (2) the object of

which is to do either an unlawful act or a lawful act by unlawful means.” United

States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). To obtain a conviction of

this offense, it was not necessary that the Government prove that Clarke “knew



                                          3
every detail or that he participated in every stage of the conspiracy.” United States

v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990). Rather, what the Government had

to show was that Clarke knew “of the essential nature and scope of the enterprise

and intend[ed] to participate.” United States v. Calderon, 169 F.3d 718, 723 (11th

Cir. 1999) (quotation omitted).

      Here, a reasonable jury could have found that the Government made this

showing. The evidence was overwhelming. It included, among other things,

Clarke’s statements to undercover DEA Agent Joe Figueroa that he wanted to

distribute cocaine and that he could receive a shipment of drugs at the BBT

warehouse in Atlanta, which turned out to be the conspirators’ headquarters. And

he participated in the ongoing cocaine trafficking at the warehouse.

                                          II.

      “To support a conviction for possession of a controlled substance with intent

to distribute [under 21 U.S.C. § 841], the evidence must show that the defendant

knowingly possessed the controlled substance with the intent to distribute it.”

United States v. Leonard, 138 F.3d 906, 908 (11th Cir. 1998). Under 18 U.S.C.

§ 2, “Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.” Clarke could be found guilty of the possession with intent to distribute



                                          4
offense even though he may not have actually possessed cocaine, but, instead,

simply aided or abetted one or more co-conspirators in committing the offense.

United States v. Perez, 922 F.2d 782, 784-85 (11th Cir. 1991). As we have held:

       An accused may be found to have aided and abetted a co-conspirator’s
       possession by virtue of his participation in the conspiracy. The
       standard test for determining guilt by aiding and abetting is to
       determine whether a substantive offense was committed by someone,
       whether there was an act by the defendant which contributed to and
       furthered the offense, and whether the defendant intended to aid its
       commission.

Jones, 913 F.2d at 1558 (citations omitted).

       Here, a reasonable jury could have found, beyond a reasonable doubt, that

Clarke aided and abetted his co-conspirators possession with intent to distribute

drugs based on the incriminating statements he made to Figuero and others and his

active participation in the conspiratorial activities.

       AFFIRMED.




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