USCA11 Case: 22-11043 Document: 32-1 Date Filed: 03/13/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11043
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARREN J. MCCORMICK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cr-00035-WLS-TQL-1
____________________
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2 Opinion of the Court 22-11043
Before LUCK, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, defendant Darren McCormick appeals his
conviction for possession with intent to distribute over fifty grams
of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii). After careful review of the record and the parties’
briefs, we affirm McCormick’s conviction.
I. FACTUAL BACKGROUND
A. Michael Husbands
In October 2019, Michael Husbands was arrested for
possession with intent to distribute illegal drugs. After his arrest,
Husbands gave an interview about his work for Darren
McCormick. Husbands lived in Nashville, Georgia. Husbands
made a deal with the Alapaha Circuit district attorney, who agreed
to let Husbands post bond in exchange for his assistance in
investigating McCormick.
Husbands had a close relationship with McCormick, who
paid Husbands to assist McCormick with various tasks starting in
2018. These tasks included delivering drugs for McCormick and
giving McCormick rides to the store and other places. By
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22-11043 Opinion of the Court 3
Husbands’s estimate, he made 30 to 40 drug deliveries for
McCormick.
B. The Investigation of McCormick
In 2020, the Berrien County Narcotics Office (“BCNO”),
which was investigating McCormick, used Husbands as an
informant.
Following his release from jail, Husbands returned to
working for McCormick, who asked Husbands if packages could
be delivered to Husbands’s residence in Nashville, Georgia.
Husbands contacted the district attorney’s investigators about
McCormick’s request. Then, Husbands agreed to receive
McCormick’s packages at Husbands’s Nashville address.
C. McCormick’s Packages Sent to Husbands’s Residence
Two packages were delivered to Husbands’s address. When
the first package arrived, McCormick asked Husbands to open it.
The first package contained marijuana. The investigators
instructed Husbands to “let it go through” to McCormick.
McCormick later told Husbands to watch out for another
package that would arrive in the next few days at his Nashville
address. Husbands informed the investigators that McCormick
was expecting a second package. The package then was
intercepted by a U.S. Postal Inspector in Tallahassee and taken by
that inspector to the post office in Nashville, Georgia.
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4 Opinion of the Court 22-11043
D. The May 8, 2020 Package
On May 8, 2020, after a law enforcement agent informed
Husbands that the second package had arrived, Husbands picked
up the package at the post office in Nashville. The package had
been sent to an indecipherable name at Husbands’s Nashville
address. When Husbands returned home, he suggested to the
investigators that the package be stored in a shed in his backyard.
However, BCNO Agent Hines Taylor instructed Husbands to
place the package in the trunk of Husbands’s car for safekeeping.
On that same day (May 8), Husbands informed McCormick
that the package had arrived in the mail. Husbands led McCormick
to believe the package was in Husbands’s shed, where Husbands
had held packages for McCormick on other occasions.
When Husbands talked with McCormick about the
package, Husbands learned McCormick might need a ride from
Douglas, Georgia, to Nashville. Husbands then offered
McCormick a ride, which McCormick accepted. McCormick did
not ask Husbands to bring the package, and Husbands did not tell
McCormick the drug package was in the car.
After Husbands informed the investigators that McCormick
needed a ride, Agent Taylor directed Husbands to pick McCormick
up and provided Husbands with a recording device that recorded
Husbands’s conversations.
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22-11043 Opinion of the Court 5
E. McCormick’s Recorded Conversation with Husbands on
May 8, 2020
Later the same day (May 8), Husbands picked up
McCormick in Douglas, Georgia. McCormick’s conversation with
Husbands on this trip was recorded by the agents and played for
the jury.
Soon after McCormick entered the car, he asked Husbands,
“You put it up good, didn’t you?” Husbands responded, “Yeah. I
got it put up. I know better than that.” Husbands testified that,
during this exchange, McCormick was referring to the package that
came in the mail.
McCormick also said, “Told my boy I don’t know how the
f*** I’m gone sell this dope but I told em um sh*t cost a lot of
f***ing money you know what I am saying $600 you hear me Unc?”
and “My a** gonna make a lot of money off this sh*t cause um we
gonna be havers not have nots.” McCormick then described the
purity of the methamphetamine, stating, “It’s real ice you feel me.”
Husbands testified that “ice” refers to the purest form of
methamphetamine.
During the recorded conversation, McCormick detailed his
plans to “cut” and otherwise prepare the drugs for sale so that he
could preserve the purity needed to make a profit. McCormick and
Husbands discussed the prices they could get for different
quantities of the drugs, including a gram, a “zip” (one ounce), and
an “8 ball” (3.5 grams or an eighth of an ounce). McCormick told
Husbands, “This first round right here we grinding this
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6 Opinion of the Court 22-11043
mother***er,” which Husbands understood to mean that
McCormick planned to sell the drugs as quickly as possible.
On the way back from Douglas, Husbands’s car was
stopped, and the package in the trunk was seized. Law
enforcement later confirmed that: (1) the package contained two
substances; (2) the first substance weighed 6.971 grams and
contained 47.8 percent pure methamphetamine; and (3) the second
substance weighed 215.115 grams and contained 47.8 percent pure
methamphetamine.
F. Indictment and Trial
In 2020, McCormick was charged with possession with
intent to distribute methamphetamine weighing in excess of fifty
grams, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii)
(Count 1).
During the three-day trial, the government presented
testimony from Husbands and several law enforcement officers, as
well as other evidence, including audio recordings, that established
the facts recounted above. At the close of the government’s
evidence, McCormick moved for judgment of acquittal under
Federal Rule of Criminal Procedure 29. The district court reserved
ruling on the motion.
The jury found McCormick guilty of the charged drug
offense. The district court denied McCormick’s motion for
judgment of acquittal. Ultimately, the district court sentenced
McCormick to 195 months’ imprisonment.
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22-11043 Opinion of the Court 7
II. SUFFICENCY OF THE EVIDENCE
To convict a defendant under § 841(a) of possession with
intent to distribute, the government must prove the defendant
(1) knowingly (2) possessed a controlled substance, and (3) with
intent to distribute it. United States v. Capers,
708 F.3d 1286, 1297
(11th Cir. 2013).
“Possession may be actual or constructive, joint or sole.”
United States v. Woodard,
531 F.3d 1352, 1360 (11th Cir. 2008)
(quotation marks omitted). This case involves only constructive
possession.
To establish constructive possession, the government must
demonstrate that the defendant (1) “knew the identity of the
substance,” and (2) owned it or exercised dominion and control
over it. United States v. Richardson,
764 F.2d 1514, 1525 (11th Cir.
1985); see also Capers,
708 F.3d at 1306 (“To prove constructive
possession, the government must produce evidence showing
ownership, dominion, or control over the contraband . . . .”
(quotation marks omitted)); Woodard,
531 F.3d at 1360 (“A
defendant’s constructive possession of a substance can be proven
by a showing of ownership or dominion and control over the
drugs . . . .” (quotation marks omitted)). “‘[C]onstructive
possession’ of a thing occurs if a person doesn’t have actual
possession of it, but has both the power and the intention to take
control over it later.” Capers,
708 F.3d at 1297 (quoting United
States v. Cochran,
683 F.3d 1314, 1316 (11th Cir. 2012)).
“Constructive possession need not be exclusive, and may be
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8 Opinion of the Court 22-11043
proven through circumstantial evidence that shows ownership,
dominion, or control over the drugs[.]” Holmes v. Kucynda,
321
F.3d 1069, 1080 (11th Cir. 2003) (citing United States v. Poole,
878
F.2d 1389, 1392 (11th Cir. 1989)).
Here, there was ample evidence to convict McCormick on a
constructive possession theory. The evidence showed that:
(1) McCormick had knowledge that the package delivered to
Husbands on May 8, 2020 contained methamphetamine;
(2) McCormick both owned the drug package and had the ability
and intent to exercise control over the drugs; and (3) McCormick
had the intent to distribute them. 1 As to the knowledge element of
§ 841(a), there was more than sufficient evidence that McCormick
knew the package contained methamphetamine. McCormick
asked Husbands if packages could be delivered to Husbands’s
address and told Husbands to watch out for the package a couple
of days before it arrived. Then, on May 8, 2020, McCormick asked
if Husbands had “put it up good,” to confirm that Husbands had
hidden the drugs in a safe location. In the same conversation with
Husbands, McCormick (1) described the purity of the
methamphetamine, (2) detailed his plans to prepare the
methamphetamine for sale, (3) discussed the prices he could get for
1 This Court reviews de novo the sufficiency of the evidence to support a
conviction, viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences and credibility choices in
favor of the jury’s verdict. United States v. Dixon,
901 F.3d 1322, 1335 (11th
Cir. 2018).
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22-11043 Opinion of the Court 9
different quantities of drugs, and (4) indicated that he planned to
sell the drugs quickly. These facts clearly support the jury’s finding
that McCormick knew the package contained methamphetamine.
The same facts show that McCormick both owned the
package and had the ability and intent to exercise control over the
methamphetamine. Because McCormick asked Husbands if
packages could be delivered to Husbands’s address and later told
Husbands to watch out for the package shortly before it arrived, a
reasonable jury readily could find that McCormick owned the
package and arranged for this package to be sent to Husbands’s
address. As noted above, McCormick later told Husbands about
his plans to sell the methamphetamine during their recorded
conversation on May 8, 2020. This evidence, taken together,
allowed the jury to conclude that McCormick exercised dominion
and control over the drugs, which in turn allowed the jury to infer
he constructively possessed the drugs. See Woodard,
531 F.3d at
1361 (concluding that sufficient evidence showed the defendant
constructively possessed marijuana when he told a co-conspirator
that he planned to sell the marijuana once it arrived in the mail).
Turning to § 841(a)’s third element (intent to distribute),
McCormick’s recorded statements about his plans to sell the drugs
clearly demonstrated his intent to distribute the
methamphetamine. Accordingly, the evidence was more than
sufficient to convict McCormick of possession with intent to
distribute methamphetamine.
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10 Opinion of the Court 22-11043
McCormick argues that he was a mere passenger in
Husbands’s car and had no knowledge that there were drugs
hidden in the truck. McCormick stresses that Husbands did not tell
him drugs were in the truck. Even so, this argument is beside the
point here. First, this is not a case where the government seeks to
show constructive possession by a defendant’s presence in a vehicle
or house where drugs are found during a search. Rather this case
is about ownership of a drug package sent through the mail to a
designated location during a specific time period. To establish
constructive possession in that situation, the government needed
to prove only that: (1) McCormick knew the package contained
methamphetamine and (2) he owned the drug package or had
dominion and control over it. See Richardson,
764 F.2d at 1525;
Capers,
708 F.3d at 1306. The evidence recited above proved a
strong ownership nexus between McCormick and the
methamphetamine that he constructively possessed. That
McCormick did not know the drugs were hidden in the car trunk,
not Husbands’s shed, does not negate the force of the other
evidence that McCormick owned the methamphetamine and
intended to sell it.
McCormick also argues that the evidence was insufficient to
support his conviction because there were no circumstances
evidencing his “consciousness of guilt.” See United States v.
Stanley,
24 F.3d 1314, 1320–21 (11th Cir. 1994) (concluding that the
evidence was insufficient to sustain a defendant’s § 841(a)
conviction when: (1) she was a passenger in a vehicle where drugs
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22-11043 Opinion of the Court 11
were hidden, and (2) there were no “circumstances evidencing a
consciousness of guilt,” such as evidence that she made
incriminating statements). We disagree. McCormick’s
incriminating statements during his recorded conversation with
Husbands proved that he knew the package contained
methamphetamine.
In sum, we conclude sufficient evidence supported
McCormick’s conviction for possession with intent to distribute
methamphetamine.
AFFIRMED.
