                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JULY 24, 2007
                               No. 06-16226                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 06-00094-CR-1-CG

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                     versus

ALBERTO LOYA,

                                                           Defendant-Appellant.


                         ________________________

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

                                 (July 24, 2007)

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Alberto Loya appeals his conviction for conspiracy to possess with intent to
distribute marijuana, in violation of 21 U.S.C. § 846. For the reasons that follow,

we affirm.

                                      I. Background

      A grand jury indicted Loya with conspiracy to possess with intent to

distribute in excess of 100 kilograms of marijuana, in violation of 21 U.S.C. § 846

(Count 1) and possession with intent to distribute approximately 134 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count 2). The evidence adduced

at trial established the following:

      On October 26, 2005, at approximately 1:00 PM, Alabama State Trooper

Shone Minor was monitoring traffic on Interstate 65 in Mobile, Alabama when he

observed three vehicles traveling close together in the northbound lanes, including

a white Nissan truck followed by a black Lincoln Navigator. Trooper Minor

noticed the Nissan tailgating the lead vehicle, and he attempted to pull the Nissan

over. But every time Minor attempted to move his patrol car behind the Nissan,

the Navigator would move closer to the Nissan, effectively blocking Minor’s

vehicle. Even after Minor activated the lights and siren of his patrol car, the driver

of the Navigator, whom Minor subsequently identified as defendant Loya, refused

to yield or move out of the way.

      After approximately three quarters of a mile, Trooper Minor was eventually



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able to move behind the Nissan. At this point, the Nissan traveled off of the

interstate and into a wooded area. The driver and passenger got out of the Nissan

and fled on foot. Trooper Minor stayed with the Nissan and issued a “BOLO” (“be

on the lookout”) for a black Navigator with a Georgia license plate being driven by

a Hispanic male wearing a red cap. Minor then exited his patrol car and

approached the Nissan. As he approached, he smelled the odor of marijuana and

observed what appeared to be bundles of marijuana wrapped in cellophane

underneath a blanket behind the passenger’s seat. Laboratory tests subsequently

confirmed that the Nissan contained fifteen bundles of approximately 300 pounds

of marijuana.

      Sergeant Tim Pullin and Trooper Jesse Peoples arrived at the scene and

began searching the area for the two persons who had fled the Nissan. During an

inventory search of the Nissan, troopers found, among other items, a Western

Union receipt and a pay stub, both in Loya’s name, as well as a vehicle registration

in the name of Ignacio Loya. Approximately one hour later, Troopers James

Odom and Christopher Faulk spotted a black SUV and a driver matching the

descriptions in Trooper Minor’s BOLO. Both troopers pursued the Navigator and

pulled it over. Loya, who had been driving, and three other males were inside of

the vehicle. An agent from the Bureau of Immigration and Customs Enforcement



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interviewed the four men and determined that there were no outstanding warrants

and no records as to their immigration status. The men in the Navigator were

identified as defendant Alberto Loya, Lorenzo Loya, Ramon Loya, and Huriel

Naranjo Loya. Loya was detained and the other men were eventually released.

      Minor and Peoples drove approximately 85 to 90 miles north of where the

Nissan had crashed and arrived on the scene where the Navigator had been

stopped. Minor identified Loya as the individual whom he had earlier observed

driving the Navigator. During an inventory search of the Navigator, troopers

found, among other items, a receipt from a U-Haul store in Georgia for two 20 x

100 inch packages of shrink wrap (wrap similar to that found on the bundled

marijuana), as well as an IRS taxpayer identification card, a birth certificate, and a

vehicle registration, all in Loya’s name.

      After the Government rested its case-in-chief, Loya moved for judgment of

acquittal, which the court denied. Loya then testified in his own defense. He

claimed that on the day in question, he had been driving to Atlanta from Texas so

that he could return to his home in California. He denied trying to block Trooper

Minor from stopping the Nissan, claimed that he had never seen the marijuana

before it was introduced into evidence in the courtroom, disavowed any knowledge

of the receipt for the shrink wrap purchased at a U-Haul store, and said that he did



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not know the other passengers in the Navigator. Loya also claimed that he did not

know how the Western Union receipt issued in his name had gotten into the

Nissan, and he contended that the pay stub had not been found in the Nissan but

was taken from him once he had been jailed. After his testimony, Loya rested his

case.

        The jury found Loya guilty of conspiracy to possess with intent to distribute

marijuana (Count 1), but acquitted him of possession with intent to distribute

marijuana (Count 2). Loya moved to set aside the guilty verdict and for judgment

of acquittal, both of which the court denied. Loya was sentenced to 70 months’

imprisonment. He now appeals.

                                    II. Discussion

        On appeal, Loya argues that the district court erred in denying his motion for

judgment of acquittal because the guilty verdict on Count 1 was inconsistent with

his acquittal on Count 2, and in any event, the evidence was insufficient to sustain

his conviction on Count 1.

        We review the denial of a judgment of acquittal and the sufficiency of the

evidence de novo, viewing “the evidence in the light most favorable to the

government, with all reasonable inferences and credibility choices made in the

government’s favor.” United States v. Martinez, 83 F.3d 371, 374 (11th Cir.



                                           5
1996). “We will uphold a district court’s denial of a motion for a judgment of

acquittal unless there is no reasonable construction of the evidence under which a

reasonable trier of fact could have found the defendant guilty beyond a reasonable

doubt.” United States v. Orisnord, 483 F.3d 1169, 1177 (11th Cir. 2007).

      To support a conviction for conspiracy under 21 U.S.C. § 846 (Count 1), the

government must prove that: “(1) an illegal agreement existed; (2) the defendant

knew of it; and (3) the defendant, with knowledge, voluntarily joined it.” United

States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).

      The existence of an illegal agreement may be established by evidence of the

attendant circumstances, the concerted acts and conduct of the alleged conspirators,

and the inferences reasonably deductible therefrom. United States v. Clark, 732

F.2d 1536, 1539 (11th Cir. 1984) (citation omitted). The defendant’s knowledge

of the conspiratorial goal may be established “when the circumstances surrounding

[the defendant’s] presence at the scene of conspiratorial activity are so obvious that

knowledge of its character can fairly be attributed to him.” United States v.

Molina, 443 F.3d 824, 828 (11th Cir. 2006). And knowing and voluntary

participation in an illegal conspiracy may be established by proof of “acts

committed by the defendant which furthered the purpose of the conspiracy.”

United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir. 1990). And although



                                           6
mere presence at the crime scene is not enough to establish knowing and voluntary

participation, mere presence “is material, highly probative, and not to be

discounted.” United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir. 1999)

(citation omitted).

      To support a conviction for possession with intent to distribute in violation

of 21 U.S.C. § 841(a) (Count 2), “the government must prove (1) knowing

(2) possession of a controlled substance (3) with intent to distribute it. Possession

may be actual or constructive and may be proved by circumstantial evidence.”

United States v. Farris, 77 F.3d 391 (11th Cir. 1996) (citation omitted).

  A. Whether the Inconsistent Verdicts Shows that the Evidence Was Insufficient

      Loya contends that based on the elements of each crime charged in the

indictment, his acquittal on Count 2 “necessarily” means that the jury “considered

every element of the conspiracy charge [(Count 1)] in the negative.” He argues

that there was “an identical overlay in the very limited evidence that was

presented” regarding both counts, and therefore, the jury’s “rejection of the

sufficiency of the government’s case regarding Count [2]” shows that the evidence

was insufficient to support his conviction on Count 1.

      Loya’s argument that his acquittal on Count 2 establishes insufficiency of

the evidence to support his conviction on Count 1 “improperly conflates the



                                           7
distinction between insufficiency of the evidence and inconsistent verdicts.” See

United States v. Veal, 153 F.3d 1233, 1252 (11th Cir. 1998). “Consistency in the

verdict is not necessary.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189,

76 L.Ed. 356 (1932). Because “each count in an indictment is regarded as a

separate indictment, merely the jury’s choice to acquit on one charge does not have

a res judicata effect on any other separate count.” United States v. Odom, 252 F.3d

1289, 1298 (11th Cir. 2001) (affirming defendants’ convictions for conspiracy to

commit arson where defendants had been acquitted of the substantive offense of

arson). Thus, “‘[s]ufficiency-of-the evidence review involves assessment by the

courts of whether the evidence adduced at trial could support any rational

determination of guilt beyond a reasonable doubt,’ a review that is ‘independent of

the jury’s determination that evidence on another count was insufficient.’” Veal,

153 F.3d at 1252-53 (quoting United States v. Powell, 469 U.S. 57, 67, 105 S.Ct.

471, 83 L.Ed.2d 461 (1984)). This rule “even applies to verdicts, such as the one

here, that acquit on a predicate offense while convicting on the compound

offense.” Odom, 252 F.3d at 1298 (citing Powell, 469 U.S. at 64, 105 S.Ct. 471).

“The most that can be said [of an inconsistent verdict] is that the verdict shows that

either in the acquittal or the convictions the jury did not speak their real

conclusions, but that does not show that they were not convinced of the



                                            8
defendant’s guilt.” Dunn, 284 U.S. at 393, 52 S.Ct. 189. As such, Loya’s acquittal

on Count 2 “is irrelevant to our singular focus on and determination of whether the

evidence adduced at trial supports” his conviction on Count 1. Veal, 153 F.3d at

1253.

                            B. Sufficiency of the Evidence

        Loya contends that regardless of the inconsistent verdicts, the evidence was

nonetheless insufficient to sustain his conviction for conspiracy. Based on a

careful review of the record and the parties’ arguments, however, we conclude that

the evidence was sufficient to support Loya’s conviction. Viewing the evidence in

the light most favorable to the Government, and making all reasonable inferences

and credibility choices in the Government’s favor, see Martinez, 83 F.3d at 374,

the evidence adduced at trial established that (1) an illegal agreement existed

between Loya and the occupants of the Navigator and Nissan to possess with intent

to distribute the more than 100 pounds of marijuana found in the Nissan; (2) Loya

knew of that agreement; and (3) with knowledge of that agreement, Loya

voluntarily engaged in acts in furtherance of that agreement. See McDowell, 250

F.3d at 1365. We thus conclude that a reasonable trier of fact could have found

beyond a reasonable doubt that Loya engaged in a conspiracy to possess with

intent to distribute marijuana as charged in Count 1. See Orisnord, 483 F.3d at



                                           9
1177. Moreover, because Loya decided to testify, he risked that the jury would

determine that he lacked credibility and believe the Government’s case. See

United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (“[T]he jury, hearing

[the defendant’s] words and seeing his demeanor, was entitled to disbelieve [his]

testimony and, in fact, to believe the opposite of what [he] said.”).

                                   III. Conclusion

      For the foregoing reasons, we AFFIRM.




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