              Case: 17-12265     Date Filed: 04/04/2018    Page: 1 of 8


                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-12265
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:16-cr-00314-MSS-JSS-2

UNITED STATES OF AMERICA,

                                                                  Plaintiff - Appellee,

                                       versus

NEIL JASON MERRITT,

                                                               Defendant - Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                   (April 4, 2018)

Before MARCUS, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:

      Neil Jason Merritt appeals his conviction for conspiracy to possess with

intent to distribute and to distribute five kilograms or more of cocaine while aboard

a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§
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70503(a), 70506(a), (b) and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with

intent to distribute five kilograms or more of cocaine while aboard a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a),

70506(a), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Merritt

argues that: (1) because equal circumstantial evidence supports a theory of his

innocence, his conviction lacks sufficient evidential support and the district court

erred by denying his motion for judgment of acquittal; and (2) if his conviction is

found to lack sufficient evidence, then we should also vacate the property

forfeiture order and return the property to him. After thorough review, we affirm.

      We review de novo the denial of a motion for judgment of acquittal. United

States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016). We view the evidence in

the light most favorable to the government and draw all reasonable inferences in its

favor. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001).

      In reviewing the denial of a motion for acquittal, the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. United States v. Eckhardt, 466 F.3d 938, 944 (11th

Cir. 2006). The jury is free to choose between reasonable conclusions that can be

drawn from the trial evidence, United States v. Williams, 865 F.3d 1328, 1344,

1346 (11th Cir. 2017), and we are bound by the jury’s credibility determinations


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and rejections of inferences the defendant raised, United States v. Hernandez, 433

F.3d 1328, 1334 (11th Cir. 2005). “The evidence does not have to exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt.” Hernandez, 433 F.3d at 1334–35 (quotation

marks and alterations omitted). No distinction is made between the weight given

to either direct or circumstantial evidence. United States v. Doe, 661 F.3d 550,

560 (11th Cir. 2011).

      To prove that a conspiracy exists, “the government must establish that an

agreement existed between two or more persons and that the defendant knowingly

and voluntarily participated in it.” United States v. Tinoco, 304 F.3d 1088, 1122

(11th Cir. 2002) (quotation marks omitted). A defendant must be aware of the

essential elements of the conspiracy, which for conspiracy to possess with intent to

distribute means the defendant needs to be aware that he is in possession of the

drugs specifically. United States v. Ohayon, 483 F.3d 1281, 1291 (11th Cir. 2007);

see United States v. Louis, 861 F.3d 1330, 1332–35 (11th Cir. 2017).              A

conspiracy may be inferred when crewmen are on a vessel in which the presence of

contraband is obvious, which is met by large quantities of contraband on a small

vessel. United States v. Fuentes, 877 F.2d 895, 900 (11th Cir. 1989).

      To support a conviction for possession with intent to distribute, the

government must show that the defendant had (1) knowing (2) possession of drugs


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and (3) an intent to distribute them. United States v. Faust, 456 F.3d 1342, 1345

(11th Cir. 2006).      All three elements can be proven by either direct or

circumstantial evidence. United States v. Poole, 878 F.2d 1389, 1391–92 (11th

Cir. 1989). Possession may be actual or constructive. Tinoco, 304 F.3d at 1123.

The defendant constructively possessed the contraband if he exercised some

measure of dominion or control over it, either exclusively or in association with

others. Id. A defendant’s intent to distribute may be inferred from the seizure of a

large quantity of contraband. Id. The government must prove that the defendant

actually knew of the contraband he possessed.          Louis, 861 F.3d at 1333–34.

Evidence of surrounding circumstances can prove knowledge inferentially. Poole,

878 F.2d at 1392.

      In cases involving drug-laden vessels at sea, we use these factors to decide

whether the jury could have found a defendant guilty of conspiracy and possession:

      (1) probable length of the voyage, (2) the size of the contraband
      shipment, (3) the necessarily close relationship between captain and
      crew, (4) the obviousness of the contraband, and (5) other factors,
      such as suspicious behavior or diversionary maneuvers before
      apprehension, attempts to flee, inculpatory statements made after
      apprehension, witnessed participation of the crew, and the absence of
      supplies or equipment necessary to the vessel’s intended use.

Tinoco, 304 F.3d at 1123. If the government shows a large quantity of contraband,

it carries a light burden that it can meet by proving any one of the other factors. Id.




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      Here, the district court did not err in denying Merritt’s motion for judgment

of acquittal because there was more than sufficient evidence to show that he

conspired and possessed cocaine with intent to distribute it. For starters, drawing

all inferences in the government’s favor, a reasonable jury could conclude that the

drugs found 50 feet off the Buff (the vessel Merritt and his codefendant were found

aboard) had previously been on the boat, had only recently been put into the water,

and therefore, were constructively possessed by Merritt. Hansen, 262 F.3d at

1236. As revealed at trial, the cardboard boxes containing the drugs were in good

condition when law enforcement officials removed them from the water, indicating

they had only recently been placed in the water, and the United States Coast Guard

(“USCG”) had monitored the Buff for a full day without seeing any other vessels

in the vicinity. Officials also found plastic grocery bags labeled “Massey” both

throughout the vessel and in the water containing cocaine. Plus, officials found a

large pair of jeans in a room on the vessel, and in the jeans, a handwritten

spreadsheet with numbers totaling a similar number as the amount of kilograms of

cocaine recovered. Those jeans could reasonably be attributed to Merritt, who was

larger than his codefendant, the only other person on board the Buff.

      As for Merritt’s knowledge of the controlled substance, the parties stipulated

and agreed that the USCG had seized 93 kilograms of cocaine recovered from

international waters in the Caribbean Sea. In addition, the Buff was a relatively


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small vessel (around 43 feet long), and Merritt and one other crewmember were

the only people aboard. Because the amount of cocaine found was large, and the

vessel small, it was reasonable for the jury to infer that Merritt knew of the drugs

in the boxes. See Fuentes, 877 F.2d at 900 (“Where large quantities of contraband

are on a small vessel it is most unlikely that the person on board will be ignorant of

its presence.”) (quotation marks omitted). This factual scenario is unlike the one in

Louis, where we held that the government had presented insufficient evidence of

the defendant’s knowledge when two sealed cardboard boxes containing drugs had

been placed into the back seat of the defendant’s car by others. 861 F.3d at 1334.

      It was also reasonable for the jury to find beyond a reasonable doubt

Merritt’s participation in the conspiracy. Fuentes, 877 F.2d at 900. In light of the

large quantity of drugs recovered in this case, the government only needed to show

one Tinoco factor to carry its burden that Merritt knowingly participated in the

drug conspiracy and possession. Tinoco, 304 F.3d at 1123. Regardless, because

Merritt was the owner and captain of a small sailing vessel with only a two-person

crew, there was more than enough evidence to satisfy many of the Tinoco factors.

For example, the cocaine aboard the Buff would have been obvious to Merritt,

given the size of the sailboat relative to the quantity of cocaine and Merritt’s status

as the captain. See United States v. Mosquera, 779 F.2d 628, 630 (11th Cir. 1986)

(captain is judged by different standard than crewmen and jury could infer that he


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is aware of nature of his cargo). Indeed, because Merritt had been entrusted with a

significant quantity of cocaine, it was reasonable for the jury to infer that “a

‘prudent smuggler’ is not likely to entrust such valuable cargo to an innocent

person without that person’s knowledge.” United States v. Quilca-Carpio, 118

F.3d 719, 722 (11th Cir. 1997); see also Mosquera, 779 F.2d at 630. As we’ve

noted, the jury could also reasonably conclude that the drug ledger in the pocket of

a large pair of pants belonged to Merritt because the jury could observe that he was

the larger of the two men. Further, Merritt engaged in suspicious activity both

before and after the officers boarded the Buff. Not only could a reasonable jury

infer that he had jettisoned the cocaine from the Buff to avoid it being found by the

officers, Merritt’s claimed purpose of the voyage -- to travel from Trinidad to

Tortola to fix the boat’s engine and steering -- was implausible. As the record

indicates, the USCG officers did not detect any significant problems with the

Buff’s engine or steering, and the boat was traveling under engine power.

      On this record, a jury could reasonably conclude beyond a reasonable doubt

that Merritt both conspired and substantively possessed cocaine with intent to

distribute. The government did not need to exclude every possibility of Merritt’s

reasonable hypothesis of innocence. Hernandez, 433 F.3d at 1335. Because the

verdict is supported by the evidence, we do not reach Merritt’s argument regarding

the forfeiture of the vessel. Accordingly, we affirm.


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AFFIRMED.




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