FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 18, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10560

________________________

D. C. Docket No. 04-00226-CR-T-17-TBM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CHRISTOPHER J. BENBOW, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 18, 2008)

Before BIRCH, CARNES and COX, Circuit Judges.

CARNES, Circuit Judge:

The facts underlying this case began like something out of a James Bond

novel but soon morphed into an international drug conspiracy sting. After the tale
2

was told at the district court level, Christopher Benbow was convicted of

conspiracy to possess with intent to distribute more than five kilograms of cocaine

in violation of 21 U.S.C. § 846. This is his appeal of that conviction. 

I.

In the fall of 2003 Benbow, a citizen of Great Britain who lived in Estonia,

learned that several Russian former KGB agents were trying to sell nine kilograms

of strontium packed in circular containers. Strontium-90, a radioactive isotope of

strontium, is lethal and could be used by terrorists to make dirty bombs. There is

some dispute between the government and Benbow over whether the strontium for

sale was of this deadly variety, but it does not matter for our purposes. The sellers

offered Benbow a sizeable commission if he could find a buyer for the strontium,

which was expected to sell for more than $200 million. Benbow was interested. In

trying to locate a buyer, he contacted a long-time friend and business associate in

Florida, Adam Elisha. Benbow believed that Elisha had ties to the American

government, which Benbow thought might be interested in buying the strontium,

presumably to keep it out of terrorists’ hands. 

Elisha instead set up a meeting with David Siegel, who claimed to have

connections to the Israeli military. Siegel was actually a confidential informant for
3

the Drug Enforcement Administration. He had convinced Elisha to cooperate with

the DEA. 

Benbow, Elisha, and Siegel met in a hotel room in Tampa, Florida on

December 9, 2003. There Siegel managed to turn the strontium deal into a reverse

drug sting by asking Benbow if the Russian sellers would be interested in trading it

for drugs, specifically a large amount of cocaine. Benbow said that he would ask

the Russians. Later he informed Elisha that the Russians were not interested in

drugs and would accept only cash for the strontium. In early 2004, however,

Benbow informed Elisha that he had found some people in England who were

interested in buying a large amount of cocaine. Benbow suggested to Elisha that

Siegel could sell the cocaine to the Englishmen and then use the proceeds to

purchase the strontium from the Russians. 

In January 2004 Benbow, Elisha, Siegel, and another DEA undercover

operative using the name Amir Farid spoke by conference call. During that

conversation, Benbow discussed the possibility of the buyers coming to the United

States to inspect and pay for the cocaine. Benbow told the other three that his

buyers were interested in a large amount of cocaine, but not all at once; they

wanted it delivered in installments. Benbow agreed to meet with Elisha and Farid

in the United States on February 9, 2004. 
4

Benbow brought his cocaine buyers, Anthony Jones and Peter Davidson, to

the United States to negotiate the drug deal with the sellers. On February 9, 2004

the three of them met with Elisha, Farid, and Siegel at a warehouse in Tampa. 

Jones was the negotiator for the buyers and Farid for the sellers. Jones expressed

interest in purchasing the cocaine to distribute in Europe, but he noted that the

parties had neither worked out where they would take possession nor discussed

how the drugs might be transported from the United States to Europe. Farid said

that he could arrange to have the drugs transported from the United States to

Europe, or Jones could take possession of them anywhere in this country: “[Y]ou

want it in Ohio, I’ll give it to you in Ohio; you want it in Kentucky, I’ll give it to

you in Kentucky, alright?” Jones refused to commit to any plan, stating: “But let

me, let me go back. I’m not going to agree or disagree on anything.” 

Two undercover officers from the Hillsborough County Sheriff’s Office

were also at that February 9, 2004 meeting. At Farid’s request they placed on a

table a duffel bag containing thirty kilograms of cocaine, which was meant to show

the buyers what they would get if they completed the transaction. Jones and

Davidson cut into one of the blocks of cocaine and sampled it. At the end of the

meeting, Jones asked Farid if he could find some cocaine for Jones’ personal use in

Miami, but Farid refused to do so. 
5

After that meeting and several follow-up telephone calls, on February 24,

2004 Farid told Benbow that the cocaine he wanted to sell to Jones had been

shipped to Europe and was ready to be delivered. There had been no cocaine

shipment, but Farid pretended otherwise in order to further the sting operation. 

Benbow agreed to meet Farid in Belgium in March to further discuss the drug

transaction. 

On March 9, 2004 Benbow met with Farid in Brussels, Belgium. The

following day Farid met with Jones and Davidson in Bruges, Belgium. At that

meeting Farid continued to discuss the cocaine deal with Jones and Davidson to

see if the buyers were “ready to come up with the payments towards the purchase

and delivery of the cocaine that they wanted.” Because of concerns about whether

Jones could handle such a large transaction, the next day Benbow introduced Farid

to another potential cocaine purchaser, Patrick Jenkins. At that March 10 meeting,

Jenkins and Farid talked about the possibility of Jenkins purchasing cocaine from

Farid. During the next week, Benbow, Jones, and Jenkins had several more

telephone conversations with Farid. In one of these conversations, Benbow told

Farid that Jones had agreed to Jenkins being involved in the cocaine transaction. 

In late March 2004 Benbow and Jenkins traveled to the United States and

stayed for a week in Miami, where Benbow had lived for several years and still
6

owned a condominium. On March 31 the two drove up to Tampa to meet with

Farid and Jones about the cocaine deal. The meeting took place on an unmarked

DEA boat and was covertly recorded. Farid brought packages containing three

kilograms of cocaine to the meeting. Jenkins sampled the drugs. Farid explained

that the cocaine Jones and Jenkins were going to receive would have the same

packaging and marking as the sample packages. Jones and Jenkins left the boat to

discuss the cocaine transaction privately, and when they returned, they announced

that they had agreed to purchase the cocaine from Farid in Europe. 

After that meeting Benbow and Jenkins had several more telephone

conversations with Farid about the financial arrangements and logistics for the

cocaine deal. Farid wanted cash delivered to the United States before possession

of the cocaine was transferred, but Jenkins wanted to get the cocaine first, sell it in

the Netherlands, and then pay Farid with the proceeds. Jenkins and Farid had

several meetings in England to continue planning the deal, and afterwards Benbow

had some telephone conversations with Farid. 

Jones and Jenkins agreed to buy a total of 1000 kilograms of cocaine from

Farid in 250 kilogram increments. They planned to pay Farid in advance in

London, where they would also get the cocaine. Jones and Jenkins agreed to place

the cash in a safe deposit box, to have Benbow inspect it to make sure all of the
7

money was there, and then to give the key to Benbow to deliver to Farid. 

However, because Jones and Jenkins actually did not have the millions of dollars

necessary to fund the deal, they intended to deliver plain paper instead of cash and

pay for the drugs after selling them. 

The transaction was supposed to take place on April 30, 2004, but that

morning, Benbow, Jenkins, and Jones were arrested in London by British

authorities. Benbow admitted to British authorities that he had met with Jones to

discuss the potential purchase of cocaine from a source in Florida. He stated that

he had thought Jones and Jenkins were going to provide the cash up front for the

deal, but they had told him of their “plain paper” plan that morning. After his

arrest Benbow was extradited to the United States, where he was indicted on a

single count of conspiring to possess with intent to distribute more than five

kilograms of cocaine in violation of 21 U.S.C. § 846. 

The case was tried before a jury, and after the close of the government’s case

in chief, Benbow moved for a judgment of acquittal, which the district court

denied. Benbow then testified in his own defense, and after the defense rested,

Benbow renewed his motion for a judgment of acquittal. The district court again

denied the motion, and then conducted its jury charge conference. Benbow

requested an instruction that the government was required to prove that the object
8

of the conspiracy was either possession or distribution of cocaine in the United

States. The district court declined to give that instruction and submitted the case to

the jury, which found Benbow guilty of the conspiracy charge. The district court

sentenced him to life in prison. 

Benbow contends that the district court erred by failing to give the jury his

requested instruction. He also contends that the district court should have granted

his motions for judgment of acquittal on the ground that the government’s

evidence was insufficient to prove the necessary connection of the crime with the

United States. 

II.

While Benbow’s appeal was pending, this Court decided United States v.

Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), which addressed a somewhat

similar issue. In that case the defendants had conspired to purchase cocaine in

Colombia, which was to be shipped out of Venezuela to Saudi Arabia and

eventually to France for distribution in Europe. Id. at 1308–10. Although the

defendants held several meetings in Miami to discuss and plan the international

operation, there was never any agreement to possess or distribute illegal drugs in

the United States. See id. at 1309–11. The defendants were charged with

conspiracy to possess with intent to distribute five or more kilograms of cocaine
9

“in Miami-Dade County, in the Southern District of Florida, and elsewhere” in

violation of 21 U.S.C. §§ 841 and 846. Id. 

After a two-month jury trial, the defendants in Lopez-Vanegas were

convicted. Id. They argued on appeal that their conduct did not violate 21 U.S.C.

§ 846 because “the object of the conspiracy—the possession and distribution of

cocaine on foreign soil—is not a violation of 21 U.S.C. § 841(a)(1).” Id. at 1311. 

We agreed, concluding that “where, as here, the object of the conspiracy was to

possess controlled substances outside the United States with the intent to distribute

outside the United States, there is no violation of § 841(a)(1) or § 846.” Id. at

1313. We did note that this circuit had applied § 841(a)(1) and § 846

extraterritorially in some circumstances. Id. at 1312. Each time we had done so,

however, “some other nexus to the United States allowed for extraterritorial

application of § 841(a)(1): defendants either possessed or conspired to possess

controlled substances within the United States, or intended to distribute controlled

substances within the United States.” Id.

As a result of our decision in Lopez-Vanegas, the government has conceded

that: “[T]he district court committed reversible error when it refused Benbow’s

requested jury instruction, which would have required the United States to prove

that Benbow had conspired to either possess or distribute the cocaine in the United
10

States.” Government’s November 30, 2007 Concession of Error Letter. This

case must be sent back to the district court. The question is whether it should be

sent back for retrial with directions that the omitted jury instruction be given or

instead with directions that a judgment of acquittal be entered. The answer turns

on whether there was enough evidence at the trial to convict Benbow of conspiring

to possess or distribute controlled substances within the United States. If so, he

may be retried; if not, then not. See Lopez-Vanegas, 493 F.3d at 1313; see also

Monge v. California, 524 U.S. 721, 729, 118 S. Ct. 2246, 2251 (1998) (“[W]here

an appeals court overturns a conviction on the ground that the prosecution

proffered insufficient evidence of guilt, that finding is comparable to an acquittal,

and the Double Jeopardy Clause precludes a second trial.”); Burks v. United States,

437 U.S. 1, 18, 98 S. Ct. 2141, 2150–51 (1978) (“[W]e hold today that the Double

Jeopardy Clause precludes a second trial once the reviewing court has found

evidence legally insufficient.”).

III.

We review de novo the sufficiency of the evidence supporting a criminal

conviction. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). In

doing so, we “view the evidence in the light most favorable to the Government and

decide whether a reasonable juror could have reached a conclusion of guilt beyond
11

a reasonable doubt.” United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006).

We draw all reasonable inferences from the evidence in favor of the verdict. 

United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007). This standard

of review, as we have noted, is “stacked in the government’s favor.” United States

v. Moore, 504 F.3d 1345, 1348 (11th Cir. 2007). 

There is no evidence that Benbow and his co-conspirators intended to

distribute in this country the cocaine they wanted to purchase from the undercover

agents, but that does not preclude a conviction for violation of 21 U.S.C. §§

841(a)(1), and 846. The statute is violated by possession of cocaine in this country

even where the intent is to distribute it outside this country. See United States v.

Montoya, 782 F.2d 1554, 1555 (11th Cir. 1986) (upholding a defendant’s

conviction under § 841(a)(1) where he possessed cocaine in this country but

intended to distribute it in Canada); see also United States v. Muench, 694 F.2d 28,

33 (2d Cir. 1982) (“In this case . . . the appellants, with intent to distribute,

possessed contraband within the territory of the United States. The actual

possession on United States territory supplies the jurisdictional nexus and obviates

the need for proof of intent to distribute within the United States.”); United States

v. Gomez-Tostado, 597 F.2d 170, 172–73 (9th Cir. 1979) (upholding a defendant’s

conviction under § 841(a)(1) where he possessed heroin in this country but
12

intended to distribute it in Mexico). Benbow’s own requested jury instruction

recognizes as much, permitting conviction on a finding that he conspired either to

possess or distribute the cocaine in this country. 

The question comes down to whether the evidence, viewed in the light most

favorable to the government, and drawing all reasonable inferences that way,

would permit a jury to find beyond a reasonable doubt that there was an agreement

on the purchase side of the negotiations. To convict Benbow of conspiracy as

charged the agreement had to be between him and someone else on the purchase

side, and it had to include or contemplate either direct or constructive possession of

cocaine in this country before the drugs were to be distributed in another country. 

Farid told Benbow on February 24, 2004 that the cocaine had been moved to

Europe, so any conspiracy among the would-be purchasers that included

possessing the drugs in this country would have had to have been formed by that

date. 

There was more than enough evidence to prove that Benbow was acting on

behalf of a group who wanted to purchase a large amount of cocaine. Farid

testified, and the government’s recording of the January 22, 2004 conference call

showed, that Benbow told the purported sellers that he had located potential buyers

for the cocaine. Benbow said that his buyers wanted a large amount of cocaine,
13

explaining that he had “met with [the buyers] today [and] they are triple positive

on participating in what is a transaction.” Benbow further explained that his role

was to make the necessary introductions for the transaction to occur. At the end of

the conference call, Benbow agreed to bring the other conspirators on the buying

side to Florida so they could meet with the sellers. At that meeting, which was

held on February 9, 2004, co-conspirator Jones told the purported sellers that he

would take care of paying Benbow for Benbow’s involvement in the transaction. 

There was also plenty of evidence that Benbow and his cohorts in crime

believed that the cocaine they were negotiating to purchase was located in this

country. Farid testified that the purpose of the February 9, 2004 meeting, which

occurred in Tampa, Florida, was “to negotiate the transportation of the cocaine to

Europe, and the rate [the co-conspirators were] going to pay for it, to pay for the

transportation, and just to negotiate the drug deal.” The government also

introduced as evidence a recording of the February 9, 2004 meeting. At the

meeting Farid told Jones, who was representing the cocaine buyers, that he could

arrange the transportation of the drugs to Europe or Jones could take possession of

them in the United States at a location of Jones’ choosing: “[Y]ou want it in Ohio,

I’ll give it to you in Ohio; you want it in Kentucky, I’ll give it to you in Kentucky,

alright?” 
14

At one point another of the purported sellers, David Siegel, told Jones that if

the buyers wanted “to arrange the whole circle to go and . . . start and end in the

United States, you’re very welcome.” Jones responded that “[i]f you can do it into

the next country up, I could probably do it.” Siegel then told Jones that “New

York is even easier,” but Jones said he had “bad experiences in New York City and

New York.” Farid also testified that during the meeting two of the co-conspirators

sampled the cocaine that the purported sellers had brought to show the purchasers

what they would be getting. 

The co-conspirators’ goal was to distribute the cocaine outside this country. 

The cocaine was not going to transport itself. Someone would have to transport it

for the conspiracy to succeed. Benbow and the other conspirators discussed with

the purported sellers moving the cocaine to a point outside of this country. A jury

reasonably could find from the evidence that the conspiracy included having the

sellers transport the cocaine from this country to another at the direction of the

purchasers. Those who have property, including illegal drugs, moved by others at

their direction and for their purposes constructively possess that property while it is

being moved. United States v. $38,000.00 in United States Currency, 816 F.2d

1538, 1544 (11th Cir. 1987); United States v. Gloria, 494 F.2d 477, 482 (5th Cir.
 In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1

1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down

prior to October 1, 1981.

15

1974); United States v. Hernandez, 441 F.2d 157, 159–64 (5th Cir. 1971). It 1

follows that there is sufficient evidence that the conspiracy included an intent to at

least constructively possess the cocaine in this country. 

The fact that the buyer-conspirators were told on February 24, 2004 that the

cocaine had been moved to Europe after the February 9 meeting does not rule out

an earlier agreement among those conspirators to have the drugs moved outside of

this country. If anything, it indicates that they were successful in having it done. 

Our analysis is also unaffected by the fact that at the February 9, 2004

meeting Jones told Farid that he wouldn’t “agree or disagree on anything” with

respect to the cocaine transaction. The conspiracy in question is not one between

the sellers and the buyers. Because all of the sellers were official or unofficial

agents for the government they could not be co-conspirators. See United States v.

Wright, 63 F.3d 1067, 1072 (11th Cir. 1995) (“[I]t takes at least two to conspire

neither of which may be government agents or informers. Any agreement between

the CI and [the defendant] to buy and sell cocaine can not form the basis of the

conspiracy.”). That Jones, the negotiator for the buyers’ side, told the purported

sellers that he was not going to agree to anything with them at that time, “[b]ut let
The government has not argued that Benbow could be convicted on a theory of aiding 2

and abetting the conspiracy, and accordingly we have no occasion to decide whether that is a

viable theory under the evidence. 

16

me, let me go back,” does not preclude the buyers from having already agreed

among themselves to try and find cocaine in this country and have it transported

outside of this country for distribution elsewhere. 

This case is different from Lopez-Vanegas because in that case the cocaine

was never to be moved from a point inside the United States to a point outside of it. 

See Lopez-Vanegas, 493 F.3d at 1311. That cocaine was never in this country. 

There was no evidence in Lopez-Vanegas from which a jury could reasonably infer

that the conspirators had ever agreed among themselves to possess, either directly

or constructively, the cocaine in this country. See id. at 1308–11. In this case the

jury reasonably could infer from the evidence viewed in the light most favorable to

the government that Benbow was part of a conspiracy to buy cocaine in the United

States and to have it transported outside of this country.2

IV.

The judgment of conviction is REVERSED and the case is REMANDED for

a new trial.