Case: 16-11141     Date Filed: 11/10/2016   Page: 1 of 10


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-11141
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 8:15-cr-00301-RAL-TGW-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,


                                     versus



DESRICK GORDON,
a.k.a. Desrick Devon Gordon,

                                                             Defendant-Appellant.

                         ________________________

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

                               (November 10, 2016)

Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.
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PER CURIAM:

      After a jury trial Desrick Gordon was convicted of (1) conspiracy to possess

with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), and 846; and (2) possession with intent to distribute

five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii) and 18 U.S.C. § 2. He contends that there was insufficient

evidence to support the jury’s verdict.

                                                I.

      This case is one of several arising out of a drug smuggling operation

involving crew members of the Norwegian Sun, a cruise ship. In late 2014, the

Norwegian Sun made a scheduled stop in Honduras. Jason Carmichael, a member

of the ship’s crew, used this opportunity to visit a club in Roatan. 1 According to

Carmichael, a man at the club approached him and offered him an opportunity to

earn money by smuggling cocaine into the United States. The plan was simple.

Carmichael would carry the drugs on and off the Norwegian Sun in specially-

designed underwear with a pouch between the legs. He would wear tights over the

underwear to keep the drugs in place. And he would wear his pants slightly lower

than usual so that security would not find the drugs if he was subjected to a pat-

down. Carmichael would be paid two thousand dollars for each package he

      1
          Carmichael was later called as a government witness as Gordon’s trial.
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successfully delivered to Tampa, Florida. He agreed to participate and carried

drugs into the country several times using this method.

      Carmichael was not the only crew member who smuggled cocaine into the

United States on board the Norwegian Sun. Indeed, Carmichael himself recruited

several of his shipmates to participate in the smuggling operation. By March 2014

Arkine John, Teffan Delice, Alfred Ince, Jason Cherubin, and several others had

joined the operation.

      At Gordon’s trial, Carmichael testified that Gordon had approached him and

said he wanted to start running drugs, too. According to Carmichael, Gordon

needed the money for his son, who has asthma. He agreed to let Gordon join the

operation. But because Gordon was on duty, he was unable to leave the ship when

Carmichael left to collect a shipment of drugs.

      Carmichael testified that Gordon was upset that he was left behind because

he needed the money for his sick child. Seeking to solve two problems at once,

Carmichael arranged for Gordon to offload one of the two packages Arkine John

had brought on board, because John had trouble walking with both packages

between his legs. Another coconspirator, Cherubin, testified that a package had

almost fallen out of John’s pants on the way onto the ship, causing Carmichael to

be concerned that John would get them all caught if he tried to take two packages




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off the ship in Tampa. Carmichael testified that it was agreed that Gordon would

receive one thousand dollars for transporting the package off the Norwegian Sun.

         Carmichael testified that, upon arriving in Tampa and successfully

disembarking with the drugs on March 8, 2015, the conspirators called two

contacts to pick them up near the Hooters restaurant at the port. Because everyone

could not fit in the car, Gordon, Ince, and John removed their packages in a public

restroom near the restaurant and gave them to Carmichael. After that, Carmichael,

Delice, and Cherubin went with the contacts in their vehicle.

         What the conspirators did not know is that the Department of Homeland

Security was already surveilling the contacts. Agents followed the vehicle to a

Residence Inn. Carmichael testified that the contacts took them to a room at the

hotel where the three conspirators handed over the drugs and received their

payment. The contacts also gave Carmichael some money to take back to “the

boss” in Honduras. After that, the contacts drove the conspirators back to the

Hooters, dropped them off there, drove back to the hotel to shower, and headed on

their way. The contacts were soon stopped by law enforcement officers, who

found the cocaine in their vehicle. Most of the other conspirators were quickly

arrested trying to board the ship or in their cabins. Gordon managed to make it

back onto the Norwegian Sun and was not identified and arrested until some time

later.


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      Ince and Delice also testified at Gordon’s trial and their testimony largely

matched Carmichael’s account of these events, though there were some minor

inconsistencies. For instance, Carmichael testified that he was given drugs by “the

boss” and his son in Honduras, but none of the other conspirators knew anything

about the boss having a son. While Carmichael testified that he talked to John

about giving Gordon one of his packages, Cherubin testified that Carmichael was

arguing with John after John almost dropped a package coming on board.

Cherubin claimed he was the one who suggested giving one of the packages to

Gordon, not Carmichael. And so on.

      Gordon moved for a judgment of acquittal at the close of the government’s

case. After the district court denied the motion, Gordon took the stand to testify in

his own defense. He testified that, although Carmichael had approached him about

joining the conspiracy, he had rejected the invitation. According to Gordon, John

owed him six hundred dollars. Gordon testified that he left the ship with the others

on March 8 because John had promised to pay him the money that day and he

wanted to send it to the mother of his sick child. He claims he was only loitering

around the Hooters because it offers free wireless internet access to its patrons.

      In rebuttal, the government called Jonathan Vasquez, who had shared a jail

cell with Gordon. Vasquez testified that Gordon had confessed to transporting the

drugs and giving them to Carmichael in a public restroom. He also asserted that


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Gordon said he was going to track down the families of the coconspirators who

testified against him.

      At the close of all evidence, the district court denied Gordon’s renewed

motion for a judgment of acquittal. The jury deliberated and found Gordon guilty

of both charges against him: conspiracy to possess with intent to distribute five

kilograms or more of cocaine and possession with intent to distribute five

kilograms or more of cocaine.

                                           II.

      Gordon raises only one issue on appeal. He contends that there is

insufficient evidence to support his convictions and that, as a result, the district

court erred by denying his motion for a judgment of acquittal.

      “We review both a challenge to the sufficiency of the evidence and the

denial of a [Federal] Rule [of Criminal Procedure] 29 motion for judgment of

acquittal de novo.” United States v. Gamory, 

, 497 (11th Cir. 2011).

“In so doing, [we view] the evidence in the light most favorable to the Government

and resolve[ ] all reasonable inferences and credibility evaluations in favor of the

verdict.” United States v. Isnadin, 

, 1303 (11th Cir. 2014). “We

must affirm [Gordon’s] convictions unless, under no reasonable construction of the

evidence, could the jury have found [him] guilty beyond a reasonable doubt.”

United States v. Garcia, 

, 1269 (11th Cir. 2005).


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      “To sustain a conviction for conspiracy to distribute drugs in violation of 21

U.S.C. § 846, the government must prove that 1) an agreement existed between

two or more people to distribute the drugs; 2) that the defendant . . . knew of the

conspiratorial goal; and 3) that he knowingly joined or participated in the illegal

venture.” United States v. Reeves, 

, 497 (11th Cir. 2014) (quotation

marks omitted). The government proved all of that in this case. The testimony of

several witnesses at trial established that Carmichael and several others agreed to

transport drugs for a boss in Honduras; that Gordon not only knew of the

conspiracy but asked to join it; and that he met with the other conspirators, took

possession of a package containing cocaine, and carried it to a delivery point.

      To sustain a conviction for possession with intent to distribute drugs “the

government [must] establish three elements: (1) knowledge; (2) possession; and

(3) intent to distribute.” United States v. Mercer, 

, 1076 (11th Cir.

2008). The government proved that. The testimony of the government’s witnesses

was sufficient to show that Gordon knew the packages the conspirators were

transporting contained drugs, that he took possession of one of those packages, and

that the purpose of the venture was to deliver the drugs to the boss’ contacts in

Tampa.

      Gordon contends that the evidence is insufficient because the jury should not

have believed the testimony of his coconspirators and Vasquez. He relies on


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Anderson v. City of Bessemer City, 

, 575, 

, 1512

(1985), for the proposition that:

      Documents or objective evidence may contradict the witness’ story; or
      the story itself may be so internally inconsistent or implausible on its
      face that a reasonable factfinder would not credit it. Where such
      factors are present, the court of appeals may well find clear error even
      in a finding purportedly based on a credibility determination.

But his reliance on that case is misplaced. Unlike the Anderson case, this is not a

civil case and it was tried before a jury, not a judge, so the clear error standard does

not apply.

      As this Court explained in United States v. Flores, 

, 1263

(11th Cir. 2009), in a criminal case tried before a jury “[c]redibility determinations

are left to the jury and the jury’s verdict will not be disturbed on appeal unless the

testimony is incredible as a matter of law.” (Quotation marks omitted). And

“[t]estimony is only incredible if it relates to facts that the witness could not have

possibly observed or events that could not have occurred under the laws of nature.”

omitted).

      None of the testimony in this case was incredible as a matter of law. The

witnesses’ accounts of the conspiracy and Gordon’s participation in it differed

from one another as to some details. But none of the witnesses testified about

events they “could not have possibly observed.” 

they testify to events

that defied the laws of nature. As a result, it was up to the jury to resolve the


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inconsistencies in the witnesses’ testimony. Whether we would have resolved

those inconsistencies in the same way if we were in the jury’s place is irrelevant.

See United States v. Ellisor, 

, 1271 (11th Cir. 2008) (“[T]he question

is whether reasonable minds could have found guilt beyond a reasonable doubt, not

whether reasonable minds must have found guilt beyond a reasonable doubt.”)

      That the witnesses against Gordon were, as Gordon protests in his brief,

“admitted liars and drug dealers who had worked together in the past” is beside the

point. “[T]estimony is not incredible solely because it is proffered by an array of

scoundrels, liars and brigands.” 

(quotation marks

omitted). The witnesses’ pasts and motivation to lie based on their plea bargains

with the government “were made known to the jury, and the jury was entitled to

weigh their testimonies accordingly.” 

was other evidence in this case that supports the jury’s

verdict. For one thing, the jurors could have believed Vasquez’s account of

Gordon’s jailhouse confession. For another, Gordon himself took the stand and “a

statement by a defendant, if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt.” United States v. Brown, 

, 314 (11th Cir. 1995). “Having seen and heard [Gordon’s] testimony [denying

his involvement in the conspiracy], the jury was free to discredit [his] explanation,

to infer that the opposite of what [he] said was true, and to consider that inference


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as substantive evidence of [his] guilt.” United States v. Hough, 

,

1188 (11th Cir. 2015). Finally, video surveillance from outside the Hooters

restaurant and DHS’s investigation corroborated some aspects of the conspirators’

testimony.

      In short, “[t]he evidence [in a criminal case] need not be inconsistent with

every reasonable hypothesis other than guilt” in order to be sufficient to support a

jury’s guilty verdict. 

(quotation marks omitted). Instead,

“we allow the jury to choose among several reasonable conclusions to be drawn

from the evidence.” 

omitted). In this case, the jury could

have decided that neither the conspirators nor Vasquez were telling the truth,

believed Gordon, and acquitted him. Instead, it found the conspirators and

Vasquez — or some of them, or one of them — credible, disbelieved Gordon, and

found him guilty. We cannot say that choice was unreasonable.

      AFFIRMED.




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