[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-11141

Non-Argument Calendar

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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

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(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 speciallydesigned 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 patdown. 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, 635 F.3d 480, 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, 742 F.3d 1278, 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, 405 F.3d 1260, 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, 742 F.3d 487, 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, 541 F.3d 1070, 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, 470 U.S. 564, 575, 105 S. Ct. 1504, 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, 572 F.3d 1254, 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.” 

Id. (quotation marks 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.” Id. Nor did 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, 522 F.3d 1255, 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.” Flores, 572 F.3d at 1263 (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.” id.

Moreover, there 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, 53 F.3d 

312, 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, 803 F.3d 1181, 

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. Gamory, 635 F.3d at 497 (quotation marks omitted). Instead, 

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

from the evidence.” Id. (quotation marks 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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