*

Honorable James L. Oakes, Senior U.S. Circuit Judge for the

Second Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2485.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rodrigo MEJIA, Romero Eduardo Grau, Defendants-Appellants.

Oct. 21, 1996.

Appeals from the United States District Court for the Middle

District of Florida. (No. 93-43-CR-FTM-17), Lee P. Gagliardi,

District Judges

ON PETITION FOR REHEARING

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and OAKES*

,

Senior Circuit Judge.

BARKETT, Circuit Judge:

Pursuant to Federal Rule of Appellate Procedure 40(a), the

panel hereby grants the government's petition for rehearing,

withdraws the previous panel opinion dated July 9, 1996, and

substitutes the following opinion:

Rodrigo Mejia appeals his convictions for possession of

cocaine with intent to distribute and conspiracy to possess cocaine

with intent to distribute. Romero Eduardo Grau appeals his

convictions for possession of cocaine with intent to distribute,

conspiracy to possess cocaine with intent to distribute,

importation of cocaine and conspiracy to import cocaine.

Grau argues that the district court erred in denying his

motion for mistrial in which he argued that the government provided

incorrect information regarding the prior criminal activity of its
key witness against him. We find Grau's argument to be without

merit and affirm his convictions without further discussion. See

11th Cir. Rule 36-1. Mejia argues on appeal that the evidence

presented was insufficient for a reasonable jury to find beyond a

reasonable doubt that he knowingly possessed cocaine with the

intent to distribute it or that he knowingly and voluntarily

participated in a cocaine conspiracy. We affirm.

The evidence presented to the jury indicated that a Victor

Yepes intended to purchase fifty kilograms of cocaine from

undercover DEA agents posing as drug smugglers in Fort Myers,

Florida. When Yepes drove from Miami to Fort Myers, Mejia was a

passenger in the car. Upon arrival, Yepes drove to a Wendy's

restaurant, got out of the car, went inside and met with the

undercover agents. Mejia, who remained in the car, was not present

for these discussions. Some time later, Yepes returned to the car

and Mejia and Yepes followed the agents to a warehouse. Mejia

remained in the car while Yepes went into the warehouse and gave

the undercover agents $47,000.

The agents had concealed about 20 kilograms of cocaine under

the back seat of a car that was located in the warehouse. The

agents drove the car containing the cocaine back to Miami, and

Yepes and Mejia followed. At an Amoco station near Miami, the

agents got out of their car. Mejia asked the agents for the keys

to their car, but did not suggest he had any knowledge that the car

contained cocaine. After an agent gave Mejia the keys, Mejia drove

to an apartment where he parked the car, got out, and went inside.

After Mejia returned to the car and started to drive away, DEA
agents arrested him. Mejia told the agents that he was to receive

$5,000 to "unload the car," but did not refer in any way to cocaine

or other narcotics.

Viewing the evidence in the light most favorable to the

government, we review the sufficiency of the evidence de novo to

determine whether, based on the evidence presented, a reasonable

jury could have concluded beyond a reasonable doubt that Mejia was

guilty of the crimes charged. United States v. Lopez-Ramirez, 68

F.3d 438, 440 (11th Cir.1995). To sustain a conviction for

possession of cocaine with intent to distribute, the government

must prove beyond a reasonable doubt that the defendant knowingly

possessed the cocaine and that he intended to distribute it. Id.

To prove conspiracy to possess cocaine with intent to distribute,

the government must establish three elements: (1) that a

conspiracy to possess cocaine existed; (2) that the defendant knew

of the goal of the conspiracy; and (3) that the defendant, with

knowledge, voluntarily joined it. Id. United States v. Guerrero,

935 F.2d 189, 192 (11th Cir.1991). Where the government's case is

circumstantial, "reasonable inferences, and not mere speculation,

must support the jury's verdict." Id.

In light of these standards, we find the evidence sufficient

to support the conclusion that Mejia knowingly possessed cocaine.

In United States v. Gomez, 905 F.2d 1513 (11th Cir.1990), we held

that, to sustain a conviction for possession with intent to

distribute a controlled substance, the government need not prove

that a defendant had knowledge of the particular drug involved, but

the government did need to prove that he knew he was dealing with
a controlled substance. Id. at 1514 (emphasis added). We have

also stated that "all of the circuits, including this one, require

something more than mere presence in [a car in which drugs are

hidden] to sustain a [drug possession] conviction." United States

v. Stanley, 24 F.3d 1314, 1320 (11th Cir.1994). But we have upheld

convictions when presence is combined with other evidence from

which guilt can be inferred. Id. In this case, the government

presented no evidence that Mejia saw or touched the cocaine.

Nevertheless, Mejia's presence was combined with other evidence

from which a jury could reasonably infer that Mejia knew the car

contained drugs. Mejia asked for the keys to the agents' car

containing the hidden cocaine and drove it to an apartment.

Moreover, there was some evidence that Mejia drove the car in a

manner consistent with how someone would drive in order to detect

surveillance. Mejia also admitted in his post-arrest statement

that he was to be paid $5,000 to "unload the car." Accordingly, we

sustain Mejia's cocaine possession conviction.

We likewise find the evidence sufficient to prove that Mejia

knew of the goal of the conspiracy and, with such knowledge,

voluntarily joined it. The goal of this conspiracy was to possess

cocaine with intent to distribute. As with the possession count,

a jury could infer that Mejia knew the goal of the conspiracy was

to possess a controlled substance with the intent to distribute it

from evidence that Mejia asked for the keys to the car containing

the hidden cocaine, drove the car in a sometimes circuitous

fashion, and, after arrest, said that he was to be paid to "unload

the car." There also was evidence that Mejia rode with Yepes from
Miami to Fort Myers and back. Although the government presented no

evidence that Mejia was involved in or present for any negotiations

for the purchase of cocaine, Mejia's extensive presence, combined

with the other evidence of guilt, was support a conclusion that he

participated in a conspiracy to possess cocaine with intent to

distribute. See United States Lyons, 53 F.3d 1198, 1202 (11th

Cir.1995).

For the foregoing reason, we affirm the convictions of Rodrigo

Mejia and the convictions of Romero Eduardo Grau.

AFFIRMED.