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
1
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opinion should not be published and is not precedent except under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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