United States v. Kitty Smith , 359 F. App'x 124 ( 2010 )

[DO NOT PUBLISH]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
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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
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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
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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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