                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 4, 2010
                             No. 08-11452                    JOHN P. LEY
                         Non-Argument Calendar              ACTING CLERK
                       ________________________

                  D. C. Docket No. 06-00033-CR-CAR-3

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KITTY SMITH,

                                                         Defendant-Appellant,




                       ________________________

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

                             (January 4, 2010)

Before CARNES, HULL and BARKETT, Circuit Judges.
PER CURIAM:

      Kitty Smith appeals her convictions for conspiracy to possess with intent to

distribute over 50 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii), and 846; possession with intent to distribute over 20 grams of

cocaine, in violation of 21 U.S.C. § 841(a)(1),(b)(1)(B)(iii) and 18 U.S.C. § 2; and

two counts of using and maintaining premises for the purpose of manufacturing,

distributing, and storing cocaine and marijuana, in violation of 21 U.S.C. §

856(a)(1),(b) and 18 U.S.C. § 2. Smith contends that none of her convictions were

supported by sufficient evidence.

      "We review the sufficiency of the evidence de novo, viewing the evidence in

the light most favorable to the government." United States v. Garcia, 405 F.3d

1260, 1269 (11th Cir. 2005). We must affirm the defendant’s conviction if “any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th

Cir. 2009) (internal quotation marks omitted). The evidence does not have to

“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).

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

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must prove that there is an agreement by two or more persons to violate the

narcotics laws." United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir. 1990).

The government is required to prove knowledge, intent, and participation beyond a

reasonable doubt. Id. “Mere presence at the scene is not enough” but “direct

evidence of a conspiracy is not required.” Id. (internal quotation marks omitted).

A defendant’s knowing participation in a conspiracy can be “established through

proof of surrounding circumstances such as acts committed by the defendant which

furthered the purpose of the conspiracy.” Id.

      Smith contends that the evidence only showed that she lived with Torey

Gartrell at the Westchester Circle and Laurel Drive apartments. She asserts that

the government failed to present sufficient evidence establishing that she entered

into an agreement with Gartrell and Adam Smith to distribute crack cocaine. We

disagree. The government introduced ample circumstantial evidence establishing

the existence of an agreement. The evidence showed that both apartments were

leased in Smith’s name. See United States v. Morales, 868 F.2d 1562, 1574 (11th

Cir. 1989) (defendant’s name on the lease where drug transaction took place was

circumstantial proof of the existence of an agreement). The evidence also showed

that Smith allowed crack cocaine to be made in the apartments. When the police

searched the Westchester Circle apartment, they found baking soda, gloves, plastic



                                          3
bags, and two Pyrex dishes coated in cocaine in the kitchen. At the Laurel Drive

apartment, the police found, among other things, a digital scale and plastic bags.

Officer Fitzgerald also testified that Smith did not immediately open the door when

the police arrived to search the Westchester Circle apartment. Although she saw

the officers standing outside, she waited over a minute to open the door. When the

police entered, Officer Fitzgerald heard the toilet running, suggesting that Smith

had flushed drugs down the toilet before opening the door. Based on that

evidence, a jury could have reasonably concluded that Smith was an active

participant in the drug conspiracy.

      Smith also challenges her possession conviction. To convict a person of

possession with intent to distribute a controlled substance under 21 U.S.C. §

841(a)(1), the government is required to prove three elements: "(1) knowledge; (2)

possession; and (3) intent to distribute." United States v. Poole, 878 F.2d 1389,

1391 (11th Cir. 1989). Smith argues that the government failed to establish the

second element—that she was in possession of crack cocaine.

      “Possession may be actual or constructive, joint or sole.” United States v.

Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). “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). Constructive possession



                                          4
of a substance “can be proven by a showing of ownership or dominion and control

over the drugs or over the premises on which the drugs are concealed.” United

States v. Woodard, 531 F.3d at 1352, 1360 (11th Cir. 2008).

       Smith’s argument is without merit. The police found 26.8 grams of crack

cocaine inside the Westchester Circle apartment. The government produced a copy

of the lease for that apartment; it was in Smith’s name. Based on that evidence, a

reasonable jury could have concluded that Smith exercised dominion and control

over the apartment and thus was in constructive possession of the crack cocaine

found inside it. See Morales, 868 F.2d at 1573 (finding that the defendant had

constructive possession of drugs found in the apartment that he leased because he

had dominion and control over the apartment). Therefore, sufficient evidence also

supported her possession conviction.

      Finally, Smith challenges her convictions under 21 U.S.C. § 856(a)(1). She

contends that the evidence showed only that she lived at the Westchester Circle

and Laurel Drive apartments. To obtain a conviction "under 21 U.S.C. § 856(a)(1),

the government must prove that the defendant: (1) knowingly, (2) operated or

maintained a place, (3) for the purpose of manufacturing, distributing, or using any

controlled substance." Garcia, 405 F.3d at 1271. “The offense requires two mental

elements, knowledge and purpose. The purpose element applies to the person who



                                          5
is charged with maintaining the place for the illegal activity. It is not sufficient that

others possess the requisite purpose.” United States v. Clavis, 956 F.2d 1079,

1090 (11th Cir. 1992).

      The evidence showed that both apartments were leased in Smith’s name and

that materials commonly used to make and package crack cocaine for purposes of

distribution were found in the apartments in plain view. See id. (“Acts evidencing

such matters as control, duration, acquisition of the site, renting or furnishing the

site, . . . and continuity are, of course, evidence of knowingly maintaining the place

. . . .”). The evidence also showed that Smith had marijuana in her back pocket

when the police searched the Westchester Circle apartment and that a pipe used to

smoke marijuana was found in the master bedroom. Viewing that evidence in the

light most favorable to the government, a reasonable jury could have concluded

that Smith knowingly maintained both apartments for the purpose of

manufacturing, distributing or using crack cocaine and marijuana. Because

sufficient evidence supported each of Smith’s convictions, we affirm.

      AFFIRMED.




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