United States v. Munoz

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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
A jury convicted Soledad de Jesus Muñoz
of conspiracy to possess marihuana based on
her ownership of a house containing 1000
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
juror’s failure to reveal that his wife worked in
an clerical position for the Drug Enforcement
Administration (“DEA”). Finding no revers-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 9 --

2
ible error, we affirm.
I.
Muñoz, who was pregnant, owned a house
in El Paso, Texas. Octavio Romero, her boy-
friend and the father of her child, was staying
at the house to assist her with the pregnancy.
One day, Romero told Muñoz he had stored
something in her garage. She asked what it
was, and he deflected her questions.
For purposes of this appeal, we may assume
that Muñoz learned of the illegal drugs the day
before the arrest. Immediately after her arrest,
Muñoz told FBI agents that on the day before
the arrest, Romero admitted that he was stor-
ing drugs in the garage. Romero’s admission
upset her, but he assured her that he would get
the drugs out soon, and she went to bed.
Muñoz explained that she did not call the
police because she was afraid they would
blame her.
At trial, Muñoz changed her story and
claimed to have no knowledge of the mari-
huana. She said that she had told the FBI
agents that Romero had told her about the
marihuana because she was afraid she would
lose her baby if she were arrested. She
thought that a confession would lead to her
release. For purposes of the appeal, however,
Muñoz concedes that the panel should accept
the truth of her initial statements to the FBI.
On the same day Romero told Muñoz he
had stored something in the garage, govern-
ment agents followed a dark-colored car to a
store and then to Muñoz’s house. The agents
had received information that the car had
crossed from Mexico into the United States
with a load of marihuana. After trailing the car
to Muñoz’s house, the agents began constant
surveillance of the house.
Two days later, agents observed people re-
moving 300 pounds of marihuana from the
garage. Two officers approached with a dog
handler. While the officers knocked on the
door, the dog alerted near the garage. Muñoz
was not there, but Romero consented to a
search of the house and garage. The officers
found 728 pounds of marihuana in the garage.
The officers arrested Muñoz at the house.
II.
A grand jury indicted Muñoz, Victor Man-
ual Romero, Octavio Romero, and Michael
Delgado, charging Muñoz with conspiracy to
possess over 100 kilograms of marihuana with
intent to distribute, 21 U.S.C. §§ 846, 841-
(a)(1), 841(b)(1)(B)(vii), and maintaining a
place for the purpose of distributing mari-
huana, 21 U.S.C. § 856(a)(1). The govern-
ment did not charge Muñoz with possession of
marihuana.
The court selected a jury and examined in-
dividual jurors about their history with law en-
forcement. The court asked about jurors’ pre-
vious law enforcement experience and excused
a former police officer. Two other members
of the pool revealed law enforcement back-
grounds, and the defense peremptorily struck
them.
The court then proceeded row by row, ask-
ing the jurors whether they had “close friends”
or “close family” “in law enforcement.” Five
jurors responded in the affirmative, but Milton
Kinnard was not among them. The court
questioned four jurors individually about their
relationship to the friend or family member and
any potential impact on their decision.
The court did not dismiss any of those jur-
ors for cause. The defense exercised peremp-
tory challenges to strike four of the jurors, and

-- 2 of 9 --

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

-- 3 of 9 --

4
the agreement; and (3) the defendant volun-
tarily participated in the conspiracy. United
States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994). A jury may infer these elements from
circumstantial evidence: A “concert of ac-
tion,” slight evidence that an individual defen-
dant was connected to a preexisting conspir-
acy, or presence and association plus other
evidence may support finding participation in
a criminal conspiracy. United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994).
Muñoz argues that the jury erroneously
found that she had agreed to store the
marihuana in the garage. She claims that she
only failed to report the marihuana to the
police within twenty-four hours, and this
failure should not establish criminal liability for
conspiring or agreeing to possess. The
government argues that this is only one
inference the jury could have drawn from the
evidence: Muñoz’s ownership of the house
and her reversal on the knowledge question
pointed to a deeper involvementSSa voluntary
agreement to store the marihuana in the house.
This court’s precedent requires classifying
ownership of the residence where drugs are
found plus actual knowledge of the drugs’ pre-
sence as sufficient to support the jury’s
inference of an agreement to possess the
drugs.2 But in addition, the jury reasonably
could have disbelieved Muñoz’s inconsistent
testimony and inferred that she agreed to
permit Romero to store the drugs in her house.
We are reluctant to disturb the jury’s
judgments about the credibility of a witness’s
testimony.
Muñoz points to our line of cases holding
that the defendant’s mere presence during a
crime or association with criminals cannot
support a conviction for conspiracy.3 Those
2 Garcia, 86 F.3d at 399 (finding that
participation in car swap plus connection to a
house filled with cocaine supported conviction for
conspiracy to possess); Sudderth, 681 F.2d at 994
(upholding conviction of leaseholder to warehouse
containing marihuana where participation in illegal
activities was supported by hearsay); Williams-
Hendricks, 805 F.2d at 503 (upholding jury’s
inference of agreement where father owned truck
and was traveling with his son when son was
(continued...)
2(...continued)
caught with large quantity of marihuana as the
truck crossed the border despite absence of proof
of father’s actual knowledge that the truck
contained cocaine).
3 United States v. Maltos, 985 F.2d 743, 746-
47 (5th Cir. 1992) (reversing conviction because
although the environment “reek[ed] of something
foul,” government had not presented evidence that
defendant knew of the criminal agreement or ac-
tivity); United States v. Espinoza-Saenez, 862
F.2d 526, 538 (5th Cir. 1989) (“[N]o evidence was
ever introduced from which a reasonable jury could
find that Lazarin knew of the conspiracy.”); United
States v. Gardea Carrasco, 830 F.2d 41, 45 (5th
Cir. 1987) (reversing where police saw defendant
carrying some suitcases into his home that
resembled suitcases used by associates in earlier
drug transaction, and defendant had loaded and
unloaded suitcases without proven knowledge of
their contents); United States v. Magee, 821 F.2d
234, 238 (5th Cir. 1987) (affirming convictions for
conspiracy to distribute marihuana but cited by
Muñoz for the proposition that mere presence or
association is not enough); United States v. Sneed,
705 F.2d 745, 749-50 (5th Cir. 1983) (finding that
mere presence at house where conspirators
discussed smuggling operation and unloaded large
quantities of drugs was not enough, but stating in
dictum that ownership of the house would be
enough); United States v. Jackson, 700 F.2d 181,
(continued...)

-- 4 of 9 --

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

-- 5 of 9 --

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

-- 6 of 9 --

7
After hearing Milton Kinnard’s testimony,
the court concluded that he “did not believe
that his wife’s position as an administrator and
statistical analyst at EPIC could be described
as a law enforcement job.” All of this
evidence points towards a misunderstanding or
honest mistake.
Kinnard’s statements in the jury room might
belie his proffered reasons for failing to
discloseSSKinnard invoked his wife’s
occupation when a fellow juror began
derogating law enforcement. Several people
testified that the follow juror had been ranting
about past experiences with the FBI for a
couple of hours and insulting both fellow jur-
ors and law enforcement agents. Kinnard
might reasonably have thrown out his wife’s
tangential relationship with law enforcement in
desperation, simply to quiet the other juror.
On the whole, a review under the abuse of dis-
cretion standard compels finding Kinnard’s ex-
planation “plausible.” His failure to respond,
standing alone, does not justify ordering a new
trial.
B.
Panels have reached opposite conclusions
about whether a juror’s concealed, close rela-
tionship to person in law enforcement justifies
ordering a new trial. Examining the cases
more closely, however, reveals that where a
juror’s relationship with someone in law en-
forcement would not justify excusing a juror
for cause, the court should not order a new
trial. Because Muñoz has not proven that Pa-
tricia Kinnard’s job would have supported a
challenge for cause, we will not order a new
trial.
In United States v. Scott, 854 F.2d 697,
699-700 (5th Cir. 1987), we remanded for a
new trial where a juror had concealed that her
brother was a sheriff. During voir dire, the
judge asked all of the jurors whether any close
relatives served in law enforcement. Id. at
698. The court excused two prospective jur-
ors whose spouses were law enforcement of-
ficials. Id. After witnessing the court’s
actions, the juror then concealed that his
brother was a sheriff. Id. The juror explained
that he failed to respond because he did not
think it was relevant. Id. The court later
found that if the juror had explained his
relationship to a sheriff, the judge would have
excused him for cause. Id. The court,
however, went on to find that because the
juror sincerely believed that he could act
impartially, a new trial was not required. Id.
We reversed, relying largely on the court’s
finding that it would have dismissed the juror
for cause. Id. at 699.
In United States v. Ortiz, 942 F.2d 903,
909 (5th Cir. 1991), a juror had disclosed
during voir dire that she had a brother who
was a police officer, but she failed to disclose
that her cousin and sister worked as secretaries
in the United States Attorney’s office. When
questioned after the verdict, the juror
explained that he was not close to his cousin
and did not understand either his cousin or his
sister’s jobs. Id. Because familial ties to
persons in law enforcement do not support
challenges for cause, and the juror testified
that his family relationships would not render
him partial, we affirmed the denial of a new
trial. Id.
We reached different conclusions in these
two cases because the courts differed over
whether the relative’s occupation justified dis-
missing those particular jurors for cause.
Where the district court had found that it
would justify a dismissal for cause, it had an
obligation to order a new trial. Scott, 854

-- 7 of 9 --

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

-- 8 of 9 --

9
AFFIRMED.

-- 9 of 9 --