             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.




            9
