United States v. Munoz

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 7, 2002
• Docket: 01-50903
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-50903 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SOLEDAD DE JESUS MUÑOZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas (00-CR-2039) _________________________ August 6, 2002

Before DAVIS, JONES, and SMITH, A jury convicted Soledad de Jesus Muñoz Circuit Judges. of conspiracy to possess marihuana based on her ownership of a house containing 1000 JERRY E. SMITH, Circuit Judge:* pounds of marihuana and her inconsistent stories about her knowledge of the marihuana. The district court refused to grant her motion for acquittal notwithstanding the verdict and * denied her motion for a new trial based on a Pursuant to 5TH CIR. R. 47.5, the court has juror’s failure to reveal that his wife worked in determined that this opinion should not be pub- lished and is not precedent except under the limited an clerical position for the Drug Enforcement circumstances set forth in 5TH CIR. R. 47.5.4. Administration (“DEA”). Finding no revers- ible error, we affirm. Two days later, agents observed people re- moving 300 pounds of marihuana from the I. garage. Two officers approached with a dog Muñoz, who was pregnant, owned a house handler. While the officers knocked on the in El Paso, Texas. Octavio Romero, her boy- door, the dog alerted near the garage. Muñoz friend and the father of her child, was staying was not there, but Romero consented to a at the house to assist her with the pregnancy. search of the house and garage. The officers One day, Romero told Muñoz he had stored found 728 pounds of marihuana in the garage. something in her garage. She asked what it The officers arrested Muñoz at the house. was, and he deflected her questions. II. For purposes of this appeal, we may assume A grand jury indicted Muñoz, Victor Man- that Muñoz learned of the illegal drugs the day ual Romero, Octavio Romero, and Michael before the arrest. Immediately after her arrest, Delgado, charging Muñoz with conspiracy to Muñoz told FBI agents that on the day before possess over 100 kilograms of marihuana with the arrest, Romero admitted that he was stor- intent to distribute, 21 U.S.C. §§ 846, 841- ing drugs in the garage. Romero’s admission (a)(1), 841(b)(1)(B)(vii), and maintaining a upset her, but he assured her that he would get place for the purpose of distributing mari- the drugs out soon, and she went to bed. huana, 21 U.S.C. § 856(a)(1). The govern- Muñoz explained that she did not call the ment did not charge Muñoz with possession of police because she was afraid they would marihuana. blame her. The court selected a jury and examined in- At trial, Muñoz changed her story and dividual jurors about their history with law en- claimed to have no knowledge of the mari- forcement. The court asked about jurors’ pre- huana. She said that she had told the FBI vious law enforcement experience and excused agents that Romero had told her about the a former police officer. Two other members marihuana because she was afraid she would of the pool revealed law enforcement back- lose her baby if she were arrested. She grounds, and the defense peremptorily struck thought that a confession would lead to her them. release. For purposes of the appeal, however, Muñoz concedes that the panel should accept The court then proceeded row by row, ask- the truth of her initial statements to the FBI. ing the jurors whether they had “close friends” or “close family” “in law enforcement.” Five On the same day Romero told Muñoz he jurors responded in the affirmative, but Milton had stored something in the garage, govern- Kinnard was not among them. The court ment agents followed a dark-colored car to a questioned four jurors individually about their store and then to Muñoz’s house. The agents relationship to the friend or family member and had received information that the car had any potential impact on their decision. crossed from Mexico into the United States with a load of marihuana. After trailing the car The court did not dismiss any of those jur- to Muñoz’s house, the agents began constant ors for cause. The defense exercised peremp- surveillance of the house. tory challenges to strike four of the jurors, and

2 the court empaneled a jury before it reached Kinnard also testified that his wife’s affiliation the fifth. with the DEA did not affect his deliberations After the government rested, Muñoz moved or decision. The court orally denied Muñoz’s for judgment of acquittal. The court indicated motions for acquittal and a new trial. it had a problem with the conspiracy charge but denied the motion. At the close of all the III. evidence, Muñoz renewed her motion for The district court correctly refused to grant acquittal, and the court denied the motion. Muñoz’s motion for acquittal notwithstanding The jury found Muñoz guilty of conspiring to the verdict. The government presented evi- possess but not guilty of maintaining a place dence that (1) Muñoz had lawful title to a for the purpose of distribution. house containing 1000 pounds of marihuana, (2) she had actual knowledge that the drugs Muñoz moved for judgment of acquittal were present, and (3) her story changed sub- notwithstanding the verdict as to the conspir- stantially between her arrest and trial. acy to possess charge and moved for a new trial on the basis of a juror’s failure to disclose We review challenges to the sufficiency of evidence of prejudice and bias during the voir the evidence to determine whether a reason- dire. The court held a hearing that elucidated able jury could find the defendant guilty be- important information about the alleged juror yond a reasonable doubt. United States v. misconduct. Lombardi, 138 F.3d 559, 560 (5th Cir. 1998). We consider the evidence in the light most Milton Kinnard served as juror number five favorable to the prosecution, and the jury may at trial. During deliberations, Kinnard became choose between reasonable interpretations of “fed up” with another juror’s extended criti- the evidence. Id. Taking the evidence as a cisms of law enforcement and other jurors. In whole, we then determine whether a rational an attempt to quiet him, Kinnard told the other trier of fact could have found that the prosecu- juror that his wife worked for the DEA. When tion proved the essential elements beyond a another juror asked why he had not reported reasonable doubt. Id. We defer to the jury’s his wife’s job to the court, Kinnard told him credibility determinations. United States v. that he did not think it was relevant. Martinez, 975 F.2d 159, 161-62 (5th Cir. 1992). If, however, the evidence gives equal At the hearing, Kinnard testified that he did circumstantial support to either guilt or inno- not know the DEA was a law enforcement cence, then we must reverse. United States v. agency and he had no idea what his wife did.1 Ortega Reyna, 148 F.3d 540, 545 (5th Cir. 1998).

1 The government must prove three elements Kinnard’s wife, Patricia Kinnard, testified that she worked as a management analyst for the to establish a conspiracy to possess marihuana: DEA’s El Paso Intelligence Center. She described (1) an agreement to possess marihuana with herself as working in law enforcement. She did not intent to distribute; (2) the defendant knew of perform actual intelligence work but analyzed the center’s type and quantity of work. She also 1 testified that her husband was aware of where she (...continued) (continued...) worked.

3 the agreement; and (3) the defendant volun- could have disbelieved Muñoz’s inconsistent tarily participated in the conspiracy. United testimony and inferred that she agreed to States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. permit Romero to store the drugs in her house. 1994). A jury may infer these elements from We are reluctant to disturb the jury’s circumstantial evidence: A “concert of ac- judgments about the credibility of a witness’s tion,” slight evidence that an individual defen- testimony. dant was connected to a preexisting conspir- acy, or presence and association plus other Muñoz points to our line of cases holding evidence may support finding participation in that the defendant’s mere presence during a a criminal conspiracy. United States v. crime or association with criminals cannot Casilla, 20 F.3d 600, 603 (5th Cir. 1994). support a conviction for conspiracy.3 Those

Muñoz argues that the jury erroneously found that she had agreed to store the 2 (...continued) marihuana in the garage. She claims that she caught with large quantity of marihuana as the only failed to report the marihuana to the truck crossed the border despite absence of proof police within twenty-four hours, and this of father’s actual knowledge that the truck failure should not establish criminal liability for contained cocaine). conspiring or agreeing to possess. The 3 government argues that this is only one United States v. Maltos, 985 F.2d 743, 746- inference the jury could have drawn from the 47 (5th Cir. 1992) (reversing conviction because evidence: Muñoz’s ownership of the house although the environment “reek[ed] of something foul,” government had not presented evidence that and her reversal on the knowledge question defendant knew of the criminal agreement or ac- pointed to a deeper involvementSSa voluntary tivity); United States v. Espinoza-Saenez, 862 agreement to store the marihuana in the house. F.2d 526, 538 (5th Cir. 1989) (“[N]o evidence was ever introduced from which a reasonable jury could This court’s precedent requires classifying find that Lazarin knew of the conspiracy.”); United ownership of the residence where drugs are States v. Gardea Carrasco, 830 F.2d 41, 45 (5th found plus actual knowledge of the drugs’ pre- Cir. 1987) (reversing where police saw defendant sence as sufficient to support the jury’s carrying some suitcases into his home that inference of an agreement to possess the resembled suitcases used by associates in earlier drugs. 2 But in addition, the jury reasonably drug transaction, and defendant had loaded and unloaded suitcases without proven knowledge of their contents); United States v. Magee, 821 F.2d 2 Garcia, 86 F.3d at 399 (finding that 234, 238 (5th Cir. 1987) (affirming convictions for participation in car swap plus connection to a conspiracy to distribute marihuana but cited by house filled with cocaine supported conviction for Muñoz for the proposition that mere presence or conspiracy to possess); Sudderth, 681 F.2d at 994 association is not enough); United States v. Sneed, (upholding conviction of leaseholder to warehouse 705 F.2d 745, 749-50 (5th Cir. 1983) (finding that containing marihuana where participation in illegal mere presence at house where conspirators activities was supported by hearsay); Williams- discussed smuggling operation and unloaded large Hendricks, 805 F.2d at 503 (upholding jury’s quantities of drugs was not enough, but stating in inference of agreement where father owned truck dictum that ownership of the house would be and was traveling with his son when son was enough); United States v. Jackson, 700 F.2d 181, (continued...) (continued...)

4 cases differ from the instant appeal in two drugs and the panel described the defendant’s important ways. participation as “mere presence or association.” First, none of these cases involved defendants who owned the legal title to the Second, Muñoz also had actual knowledge place where the drugs were found. Actual the drugs were in the garage. She does not ownership of the premises has legal cite to a single case where the defendant had significance, because it tends to prove an actual knowledge of ongoing criminal activity element of the underlying substantive offense and the court classified his actions as mere of possessing illegal drugs. This court has presence or association. The cases on the in- adopted the doctrine of “constructive sufficiency of presence and association do not possession,” meaning that the ownership of the apply. home or car where drugs are found tends to support conviction for possession.4 Research Muñoz characterizes the government as ar- did not unearth any cases in which the guing that knowledge of an illegal activity im- defendant owned the house containing illegal mediately makes one a conspirator. Not so. The government has argued that use of a person’s residence for a crime, combined with 3 (...continued) his knowledge of the crime, supports the jury’s 185-86 (5th Cir. 1983) (reversing conviction where inference that the resident has agreed to defendant sat down at table in restaurant after two permit someone to use the house for the illegal men sitting at table had completed exchange of activity. We have given the jury wide latitude money for drugs), overruled on other grounds, to infer an agreement where the defendant has Richardson v. United States, 468 U.S. 317 (1994); title to the premises and actual knowledge of United States v. Fitzharris, 633 F.2d 416, 422 (5th the illegal activity. That precedent compels Cir. 1980) (reversing conviction based on arrival at ranch with groceries hours after police raid and affirming the dismissal of the motion for cryptic references to defendant contained in acquittal. documents found in the trash). IV. 4 If the defendant has sole control over the The court also correctly refused to order a premises or vehicle, constructive possession alone new trial after a juror belatedly disclosed that may support conviction. United States v. Villasen- his wife worked for the DEA. The evidence sori, 894 F.2d 1422, 1426 (5th Cir. 1990) (“This supported the conclusion that the juror simply Court has defined constructive possession as made a mistake during voir dire. And a ‘ownership, dominion, or control over illegal drugs relationship with a person in law enforcement, or dominion over the premises where drugs are standing alone, does not support a excusing a found.’”) (citation omitted). If, however, the juror for cause. There was no abuse of defendant shared control over the premises or ve- hicle, the government must provide additional discretion in the refusal to order a new trial. proof. United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994) (“[W]hen two or more people are Where a juror fails to answer a question occupying a place, a defendant’s control over the designed to ferret out possible bias, we apply place is not by itself enough to establish the test outlined in McDonough Power constructive possession of contraband found Equipment, Inc. v. Greenwood, 464 U.S. 548 there.”).

5 (1984) (plurality). United States v. Doke, 171 2001), cert. denied, 122 S. Ct. 1605 (2002), F.3d 240, 246 (5th Cir. 1999). “[A] party we held that a juror’s dishonest failure to re- must first determine that a juror failed to spond to a voir dire question must be rooted in answer honestly a material question on voir bias or prejudice to justify ordering a new trial. dire, and then further show that a correct Where a juror failed to disclose that Texas had response would have provided a valid basis for deferred adjudication of her embezzlement a challenge for cause.” McDonough, 464 U.S. charges and placed her on supervised release, at 556. “The motives for concealing the panel would not interpret the failure to information may vary, but only those reasons disclose as evidence of bias. Id. at 556. The that affect a juror’s impartiality can truly be juror presented the “plausible explanation” that said to affect the fairness of a trial.” Id. her attorney in the criminal matter had told her that deferred adjudication would not count as A. a crime under state law. Id. at 556. Where Muñoz relies on cases from other circuits to the juror’s failure to respond truthfully stems argue that where the juror deliberately fails to from a plausible misunderstanding, the court answer a question honestly during voir dire, need not order a new trial based solely on the the lie itself provides a reason to dismiss him failure to respond. Id. at 556.6 for cause and requires a new trial.5 In United States v. Bishop, 264 F.3d 535, 555 (5th Cir. The district court found that Kinnard answered honestly during the voir dire. The court asked whether anyone had friends or 5 close relatives “in law enforcement.” None of E.g., Dyer v. Calderon, 151 F.3d 970, 981-82 the potential jurors responded by identifying (9th Cir. 1998) (finding that a juror who lied on relat ives who occupied clerical or voir dire form and in response to subsequent questioning by the judge about the brutal murder of administrative positions with law enforcement her brother to remain eligible for service on jury in agencies. Kinnard might reasonably have murder trial was presumably biased); United believed that the question did not encompass States v. Colombo, 869 F.2d 149, 151 (2d Cir. such persons. Patricia Kinnard testified that 1989) (finding that juror’s deliberate concealment her job involved number crunching and no of her brother’s status as a government attorney actual law enforcement. justified implying bias and a new trial). The Second Circuit has since limited the holding of 6 Colombo. United States v. Greer, 285 F.3d 158, Until Bishop, Fifth Circuit panels had not con- 172 (2d Cir. 2002) (“[I]n Colombo I, it was not sidered the deception itself as a basis for dis- simply that the lies in question were deliberate, but qualifying the juror and requiring a new trial. In- that the deliberateness of the particular lies stead, panels scrutinized the facts withheld by the evidenced partiality.”); United States v. Shaoul, juror and determined whether that information 41 F.3d 811, 814-15 (2d Cir. 1994) (affirming demonstrated bias. E.g., Doke, 171 F.3d at 246 decision not to grant new trial despite juror’s fail- (applying McDonough to jurors who had lied about ure to disclose relationship to Assistant United past criminal history on voir dire forms); Montoya States Attorney not involved in the case). See also v. Scott, 65 F.3d 405, 418 (5th Cir. 1995) (“The United States v. North, 910 F.2d 843, 904-05 district court evaluated Montoya’s juror bias claim (D.C. Cir. 1990) (“King’s concealment, then, is under the McDonough standard, and Montoya only one factorSSalbeit an important oneSSin the makes no argument on appeal that the court critical test for actual bias.”). improperly applied that standard to his claim.”).

6 After hearing Milton Kinnard’s testimony, brother was a sheriff. During voir dire, the the court concluded that he “did not believe judge asked all of the jurors whether any close that his wife’s position as an administrator and relatives served in law enforcement. Id. at statistical analyst at EPIC could be described 698. The court excused two prospective jur- as a law enforcement job.” All of this ors whose spouses were law enforcement of- evidence points towards a misunderstanding or ficials. Id. After witnessing the court’s honest mistake. actions, the juror then concealed that his brother was a sheriff. Id. The juror explained Kinnard’s statements in the jury room might that he failed to respond because he did not belie his proffered reasons for failing to think it was relevant. Id. The court later discloseSSKinnard invo ked his wife’s found that if the juror had explained his occupation when a fellow juror began relationship to a sheriff, the judge would have derogating law enforcement. Several people excused him for cause. Id. The court, testified that the follow juror had been ranting however, went on to find that because the about past experiences with the FBI for a juror sincerely believed that he could act couple of hours and insulting both fellow jur- impartially, a new trial was not required. Id. ors and law enforcement agents. Kinnard We reversed, relying largely on the court’s might reasonably have thrown out his wife’s finding that it would have dismissed the juror tangential relationship with law enforcement in for cause. Id. at 699. desperation, simply to quiet the other juror. On the whole, a review under the abuse of dis- In United States v. Ortiz, 942 F.2d 903, cretion standard compels finding Kinnard’s ex- 909 (5th Cir. 1991), a juror had disclosed planation “plausible.” His failure to respond, during voir dire that she had a brother who standing alone, does not justify ordering a new was a police officer, but she failed to disclose trial. that her cousin and sister worked as secretaries in the United States Attorney’s office. When B. questioned after the verdict, the juror Panels have reached opposite conclusions explained that he was not close to his cousin about whether a juror’s concealed, close rela- and did not understand either his cousin or his tionship to person in law enforcement justifies sister’s jobs. Id. Because familial ties to ordering a new trial. Examining the cases persons in law enforcement do not support more closely, however, reveals that where a challenges for cause, and the juror testified juror’s relationship with someone in law en- that his family relationships would not render forcement would not justify excusing a juror him partial, we affirmed the denial of a new for cause, the court should not order a new trial. Id. trial. Because Muñoz has not proven that Pa- tricia Kinnard’s job would have supported a We reached different conclusions in these challenge for cause, we will not order a new two cases because the courts differed over trial. whether the relative’s occupation justified dis- missing those particular jurors for cause. In United States v. Scott, 854 F.2d 697, Where the district court had found that it 699-700 (5th Cir. 1987), we remanded for a would justify a dismissal for cause, it had an new trial where a juror had concealed that her obligation to order a new trial. Scott, 854

7 F.2d at 699. Where we found that it would law enforcement would not by itself warrant a not justify dismissal for cause, we refused to strike for cause.” Muñoz instead argues that order a new trial. Ortiz, 942 F.2d at 909. the district court would have found additional Both cases focus on whether a relative’s factors justified Kinnard’s dismissal if the court employment in law enforcement requires had questioned him during voir dire. excusing the juror for cause. Muñoz correctly points out that five The district court correctly refused to ex- potential jurors revealed that family members cuse Kinnard for cause. Although the court worked for law enforcement. The court asked may have the discretion to excuse a juror for each juror follow-up questions about his po- cause based on a relationship with a person in tential bias in favor of law enforcement. Muñ- law enforcement,7 such a relationship seldom oz argues that if Kinnard had responded requires excusing the juror.8 Like the situation truthfully to those questions, the district court in Scott and Ortiz, the posture of this case would have dismissed him for cause. The eliminates the need to focus on this question. court, however, did have an opportunity after Muñoz concedes “that the fact that a juror is trial to question Kinnard and evaluate his re- married to someone who works for DEA in sponses. And the court found that his wife’s job did not affect his ability to decide the case impartially. The decision, after post-trial ques- 7 Stokes v. Delcambre, 710 F.2d 1120, 1128 tioning, that a juror is fit deserves as much (5th Cir. 1983) (affirming decision to dismiss po- deference as its decision after voir dire. tential juror who had known the sheriff-defendant Muñoz relies on Colombo, 869 F.2d at 151, for twenty years and decision to deny challenge to to argue that Kinnard’s deception deprived her juror whose husband had been employed by of the right to exercise her peremptory another parish’s police jury). challenges intelligently. She points out that 8 United States v. Flores, 63 F.3d 1342, 1357- she exercised four peremptory challenges 58 (5th Cir. 1995) (affirming refusal to dismiss against jurors who had relatives who worked jurors for cause who had connections to law en- in law enforcement. McDonough, however, forcement but stated that they could remain im- focused on whether the defendant had a valid partial); United States v. Bryant, 991 F.2d 171, basis to challenge the juror for cause. The 174 (5th Cir. 1993) (“The record reflects that the McDonough court so restricted the inquiry district court asked Bodine if her husband’s po- because the defendant can exercise a sition as chief of police would affect her ability to peremptory challenge for almost any reason be fair and impartial in a criminal case. Bodine re- whatsoever. sponded that she could be fair and impartial, and the court credited her response.”); Brodon v. But- If we reversed convictions merely because ler, 838 F.2d 776, 778 n.1 (5th Cir. 1988) the undisclosed information would have sup- (refusing to order new trial on habeas corpus matter where juror’s husband had been police ported a peremptory challenge, we could never officer for over 20 years, and uncle was affirm a conviction where a juror mistakenly or investigator in district attorney’s office); Sudds v. intentionally withheld information during voir Maggio, 696 F.2d 415, 416-17 (5th Cir. 1983) dire. Such a test would be inconsistent with (holding that juror whose nephew was police past precedent and unworkable in practice. officer could evaluate police testimony impartially, especially where it was only peripheral).

8 AFFIRMED.