                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit



                                No. 99-30939
                              Summary Calendar




                         UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

                                    VERSUS

                               SEAN JOHNSON,

                                                       Defendant - Appellant.



             Appeal from the United States District Court
                 For the Eastern District of Louisiana
                           (99-CR-104-ALL-B)
                             August 8, 2000


Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:1

      Sean   Johnson    (“Johnson”)   appeals     on    several   grounds his

conviction for conspiracy to possess with intent to distribute

cocaine and possession with intent to distribute cocaine.                    We

affirm.

                                  BACKGROUND

      The    charges    against   Johnson      arose    from   information    a



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   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
confidential informant provided DEA agents.       As a result of this

information, DEA agents set up surveillance in Kenner, La. on

November 20, 1998.     At about 10:30 a.m., a Toyota Camry with a

Florida license plate arrived and parked in an apartment complex.

A male, Juan Echemendia, and a female exited the car.      Later that

morning, a gray Nissan, driven by Johnson, arrived and parked next

to the Camry.      The trunks of both cars opened and Echemendia

removed a pink bag from the trunk of the Camry and placed it in the

trunk of Johnson's Nissan. During the transfer, agents were unable

to overhear any conversation between the two men.

       Johnson then drove away and Kenner Police, at the direction of

the DEA agents, stopped Johnson.        The police later said Johnson

appeared nervous during the stop. The police asked whether Johnson

had any drugs in the car.      Johnson said that he did not.   Johnson

then gave the police his oral and written consent to search his

car.    A canine alerted to the pink bag in the trunk.     The police

opened the bag and discovered cocaine.       The police then arrested

Johnson.     A jury later found Johnson guilty of conspiracy to

possess with intent to distribute cocaine and possession with

intent to distribute cocaine.

                               DISCUSSION

I.     Insufficient Evidence

       Johnson first argues that there was insufficient evidence

supporting his conviction for conspiracy.        The government must



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prove: (1) an agreement between two or more persons to violate

narcotics laws, (2) that each alleged conspirator knew of the

conspiracy and intended to join it, and (3) that each alleged

conspirator did participate voluntarily in the conspiracy.             United

States v. Paul, 142 F.3d 836, 839-40 (5th Cir. 1998).                 Johnson

contends that    the    government    did    not   prove   that   Johnson   and

Echemendia had an agreement as to any transaction because no

testimony or evidence established any conversations between Johnson

and Echemendia.        In addition, the evidence did not prove that

Johnson   knew    of    any    unlawful     purpose   thereby     making    his

participation in the conspiracy impossible.

      We review a challenge to the sufficiency of the evidence in

the light most favorable to the verdict and affirm if a rational

trier of fact could find that the government proved all essential

elements beyond a reasonable doubt. United States v. Cisneros, 203

F.3d 333, 343 (5th Cir. 2000).            We have noted that a “jury may

infer any element of this offense from circumstantial evidence.”

Paul, 142 F.3d at 840.        An “agreement may be inferred from concert

of   action,   voluntary      participation    may    be   inferred   from    a

collocation of circumstances, and knowledge may be inferred from

surrounding circumstances.”        Id.

      In this case, the government provided more than sufficient

evidence of a conspiracy.         Police and DEA agents testified that

Johnson participated in the cocaine transfer from Echemendia.               The

coordination of the arrival times, at that particular location in

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a city and state where Echemendia did not reside, on a particular

date; the ease and speed of the transfer, and Johnson's personal

involvement    all      establish     a    conspiracy    between   Johnson     and

Echemendia.

      Johnson also contends that he was convicted for possession of

cocaine based on insufficient evidence.              To prove possession, the

government must show (1) knowing (2) possession (3) with intent to

distribute.    United States v. Jones, 185 F.3d 459, 464 (5th Cir.

1999).    Johnson argues that he did not knowingly have possession.

He did not pick up the bag, he did not open the bag, and he did not

own the car.      Furthermore, any number of reasonable explanations

could account for his alleged nervousness.

      We have said that “[c]onstructive possession of a controlled

substance maybe shown by ownership, dominion or control over the

illegal   drugs    or    over   the       vehicle   in   which   the   drugs   are

concealed.”    Id.      Nervousness may support an inference of guilty

knowledge when combined with facts suggesting that nervousness is

derived from an underlying consciousness of criminal behavior. Id.

Johnson was present during the bag exchange with Echemendia.

During the search of his car, the police testified that Johnson

appeared nervous. Because of this fact combined with the knowledge

of the recently completed exchange, a jury could reasonably infer

that he knowingly possessed cocaine.

II.   Motions for Mistrial

      Johnson also argues that the trial court erred in denying his

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motions for a mistrial.            The basis for the first motion was

multiple hearsay objections to agent testimony that the informant

supplied the license number on the car driven by the Defendant.

Although the district court sustained Johnson's objections, these

statements amounted to unfair prejudice against Johnson.

     We review the denial of a motion for a mistrial for abuse of

discretion. United States v. Reliford, 210 F.3d 285, 304 (5th Cir.

2000).     “If the motion for mistrial involves the presentation of

prejudicial testimony before a jury, a new trial is required only

if there is a significant possibility that the prejudicial evidence

had a substantial impact upon the jury verdict, viewed in light of

the entire record.”      Id.    A statement is hearsay only if offered to

prove    the    truth   of   the   matter   asserted   and   “[o]ut-of-court

statements providing background information to explain the actions

of investigators are not hearsay.”          United States v. Carrillo, 20

F.3d 617, 619 (5th Cir. 1994).

     In this case, we conclude that the statements were not offered

for the truth of the matter asserted.          Rather, the statements were

offered to explain the significance of the agents' observations and

actions.       The probative value of these statements outweighed any

prejudicial effect.          Therefore, we find no error in the court's

denial of the Defendant's motion for a mistrial.

     Johnson also contends that the district court abused its

discretion when during deliberations the court dismissed a juror,

allowed an eleven-member jury to deliberate and denied his second

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motion for a mistrial.2            A juror informed the court that he had

failed to disclose a prior felony conviction.                 The defense refused

to stipulate to the eleven-member jury.                 Absent this stipulation,

the district court dismissed the juror pursuant to Fed. R. Crim. P.

23(b) (“Even absent [a stipulation by the parties], if the court

finds it necessary to excuse a juror for just cause after the jury

has retired to consider its verdict in the discretion of the court

a valid verdict may be returned by the remaining 11 jurors.”)

             Johnson argues that Rule 23(b) was only intended to apply to

lengthy and complex trials, and that he was prejudiced by the rules

application.           We   conclude     that   the   court   did   not   abuse    its

discretion in applying Rule 23(b).               We have noted that the rule is

not limited to lengthy or complex trials, and is often necessary

when a juror must be excused for illness or some other reason and

no alternate juror is available.                United States v. O'Brien, 898

F.2d 983, 986 (5th Cir. 1990) (upholding district court dismissal

of       a    juror   suffering   from    severe      depression    and   unable   to

deliberate).

III. The Jury Instruction

             Johnson first contends that the District court erred in not

giving a more extensive charge regarding knowledge. He argues that

the district court improperly denied his counsel's request for a

definition of the terming “knowing” as to Johnson's state of mind.


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             The district court did not select any alternate jurors.

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Second, he contends that the district court erred in giving an

instruction on deliberate ignorance instead of an instruction

requiring that the jury find that Johnson acted “knowingly” or

“willfully.”

      We review a district court's refusal to provide a requested

jury instruction    for    abuse   of       discretion.      United   States    v.

Richards, 204 F.3d 177, 204 (5th Cir. 2000).                 We review general

challenges to jury instructions “to determine whether the court's

charge, as a whole, is a correct statement of the law and whether

it clearly instructs jurors as to the principles of law applicable

to the factual issues confronting them.”           United States v. Moreno,

185 F.3d 465, 475-76 (5th Cir. 1999).

      The district court did properly instruct the jury regarding

whether or not Johnson acted knowingly. For the possession charge,

the court instructed the jury that Johnson must knowingly possess

a controlled substance, not the fact that he knowingly possessed a

bag   which   contained   a   controlled        substance.      Regarding      the

conspiracy charge, the district court said that Johnson must be

found to have reached an agreement to possess cocaine, that he knew

of the unlawful purpose of the agreement and that he joined the

agreement willfully.      Any additional instructions would have been

redundant.     The district court did not abuse its discretion in

denying the additional instruction.

      As for the deliberate ignorance instruction, we have said that

such an instruction is appropriate where the defendant contends

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that he was unaware of any cocaine yet the evidence establishes

that the defendant possessed cocaine. See United States v. Moreno,

185 F.3d 465, 470 (5th Cir. 1999) (instructing the jury that it

could find knowledge from the defendant's deliberate ignorance as

to whether his two bags and a briefcase contained cocaine).     In

this case, Johnson advanced a similar defense of lack of guilty

knowledge.   Therefore, the court properly instructed the jury that

it could infer knowledge from the Defendant's deliberate ignorance.

     For these reasons, we affirm.

AFFIRMED.




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