                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-1168
                                 ___________

Pablo Ortega,                         *
                                      *
      Appellant,                      *
                                      *
            v.                        * Appeals from the United States District
                                      * Court for the Northern District of Iowa.
United States of America,             *
                                      *
      Appellee.                       *

                                 ___________

                                 No. 01-1170
                                 ___________

United States of America,             *
                                      *
      Appellee,                       *
                                      *
            v.                        *
                                      *
Daniel Castro,                        *
                                      *
      Appellant.                      *

                                 ___________

                                 No. 01-2106
                                 ___________

United States of America,             *
                                      *
      Appellee,                       *
                                      *
             v.                         *
                                        *
Sonya Polmanteer,                       *
                                        *
      Appellant.                        *
                                   ___________

                             Submitted: August 21, 2001

                             Filed: November 1, 2001 (Corrected: 12/6/01)
                                   ___________

Before RILEY, ROSS, and BEAM, Circuit Judges.
                            ___________

ROSS, Circuit Judge.

       Pablo Ortega, Daniel Castro, and Sonya Polmanteer appeal from judgments
entered upon jury verdicts finding them guilty of possession of methamphetamine
with the intent to deliver, in violation of 21 U.S.C. § 841. Appellants challenge the
sufficiency of the evidence supporting their convictions. Polmanteer also challenges
her sentence. We affirm the convictions, but vacate Polmanteer's sentence and
remand for resentencing.

BACKGROUND
      On June 11, 2000, Iowa State Trooper Matt Anderson stopped a Ford Crown
Victoria automobile with California license plates in Cerro Gordo County, Iowa, for
speeding. Polmanteer was the driver; Castro was the front seat passenger; Ortega
and another man were in the back seat. Polmanteer could not produce a driver's
license. Although the automobile was registered to Castro, he could not produce
insurance papers. Castro told Anderson that the previous owner had continued
insurance on the car. Polmanteer and Castro told Anderson that they were going to
the Mall of America in Minneapolis, Minnesota, for shopping. Polmanteer identified


                                        -2-
the back seat passengers as Ortega and the other as Castro's uncle, but later told
Anderson the fourth passenger was a hitchhiker. Although Castro first had claimed
the fourth passenger was his friend, he later stated he did not know the passenger's
name. The fourth passenger was later identified as Viaz Savala.

       After Castro consented to a search of the automobile, Savala was placed in the
patrol car of a trooper who arrived to assist Anderson. Appellants were placed in
Anderson's patrol car, in which an audio-videotape recorder was operating. Because
the video camera, which was located to the right of the rear view mirror, faced
forward, it captured the events outside the car. However, a microphone on the door
frame captured the conversation inside the car. Polmanteer's voice was identifiable
as the only female voice, and the government was unable to attribute statements made
by the two males specifically to Castro or Ortega. A portion of the conversation was
as follows:

      Polmanteer: Are there drugs in that f----- car right now?
      Male:         Why?
      Polmanteer: Cause I'm going to f---- jail if there are. I'm going to jail.
                             And you're going to jail.
                                           ***
      Male: Don't get excited. He has to find drugs in the car first
      [unintelligible]
      Polmanteer: He's taken all those f------ screws off over the
      Male: From where?
      Polmanteer: From the engine, and from the door . . . right there on the
      engine on the [unintelligible] I guess like from where the f------
      Male: [unintelligible]
      Polmanteer: I better not f------ go to jail, Pablo. If I go to jail you f-----
      gotta get me out . . .
      Male:        [unintelligible]

                                           -3-
      Polmanteer: I am nervous.
      Male:       [Unintelligible]
      Polmanteer: 'Cause I thought there was nothing in there.

       The troopers could not find any drugs during the search. However, because
Anderson noticed signs of tampering around the windshield and other indications that
drugs might have been hidden, he had the car towed and obtained a search warrant.
While waiting for the tow truck, Castro changed his story about purchasing the car
from an individual, claiming he had purchased it from a salvage yard. After the tow
truck came, Anderson drove appellants and Savala to a restaurant. He gave them a
telephone number to call about picking up the car if no contraband was found.
Officers found no drugs during the second search. The next day, after viewing the
videotape, Anderson applied for another warrant. During the third search, officers
removed the windshield and found six and one-half pounds of methamphetamine
hidden in a compartment beneath the windshield. Because no one had telephoned
about picking up the car, officers looked for and found appellants in an unlit, unused
portion of the bus station with tickets to Des Moines, Iowa. They had no credit or
ATM cards, checkbooks, or anything else they could have used for shopping at the
Mall of America. Savala was not found and became a fugitive.

       Castro, Ortega, and Polmanteer were charged with conspiracy to distribute and
possession with the intent to distribute more than 500 grams of methamphetamine.
After a two-day trial, the jury returned a verdict acquitting them of the conspiracy
charges, but finding them guilty of the possession charges. The district court denied
their motions for judgment of acquittal, or in the alternative for a new trial. The court
also denied Polmanteer's motion for reconsideration, which was based on a juror's
comments made after the trial. Castro and Ortega were sentenced to 188 months.

       In January 2001, Polmanteer appeared for sentencing. The district court denied
a requested acceptance-of-responsibility reduction under U.S.S.G. § 3 E1.1, but stated

                                          -4-
it was considering her request for a role-in-the-offense reduction under U.S.S.G.
§ 3B1.2. However, the court stated it would not take her "word" and suggested if she
were serious about the reduction, she "should take a polygraph test on it." Although
the government stated it had little faith in polygraphs, it indicated that if Polmanteer
took a polygraph and failed, it would ask for a two-point enhancement for obstruction
of justice under U.S.S.G. § 3C1.1. The court asked Polmanteer how she felt about
taking a polygraph examination, noting it might not be without risk. After
Polmanteer told the court she wanted to take the test because she knew it would help
her, the court postponed sentencing.

        On February 4, 2001, the district court entered an order that "Polmanteer
undergo a polygraph examination and that polygraph evidence then be taken into
account for sentencing purposes." The court noted that the government had filed a
resistance, but rejected its argument that the polygraph would taint its assessment of
Polmanteer's credibility. The court stated "only after hearing evidence regarding the
examiner's qualification, training, the fairness, the questions and other related matters,
will the court be in a position to determine the weight, if any, to be given defendant
Polmanteer's polygraph evidence." The court also added that "out of an abundance
of caution, the court will [] consider such evidence only after defendant Polmanteer
testifies at her sentencing."

       In April, Polmanteer appeared before the court for sentencing. The government
informed the court that Polmanteer had taken a polygraph examination conducted by
an examiner of her choice and had failed on the issue of her knowledge of drugs in
the car. Although the government had not seen a copy of the examiner's report, it
moved for an obstruction-of-justice enhancement. In response to the court's inquiry
about the report, Polmanteer's counsel responded she did not "pass on the issue of her
knowledge . . . of methamphetamine in the vehicle," but resisted the obstruction
enhancement and renewed her request for a role-in-the-offense reduction.



                                           -5-
       After listening to argument by counsel, but without taking any evidence,
testimonial or otherwise, the district court granted the government's motion for a two-
point enhancement for obstruction of justice, reasoning that by trying to pass a
polygraph examination Polmanteer indirectly had attempted to give false testimony
at sentencing in hopes of a lighter sentence. Although the court had suggested the
polygraph examination in connection with Polmanteer's request for a role reduction,
it nonetheless found that she was entitled to the reduction based on the trial evidence.
From the 151 to 181 month guideline range, the court sentenced Polmanteer to 151
months.

DISCUSSION
Sufficiency of the Evidence
       Ortega, Castro, and Polmanteer argue that the district court erred in denying
their motions for judgment of acquittal, asserting that the evidence was insufficient
to support the verdicts. Appellants concede that in reviewing their claims we must
view the evidence and all reasonable inferences therefrom in the light most favorable
to the verdicts. United States v. Butler, 238 F.3d 1001, 1003 (8th Cir. 2001).
However, quoting United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996), cert.
denied, 520 U.S. 1258 (1997), they argue that if the "evidence is equally strong to
infer innocence as to infer guilt," the court was required to direct an acquittal.
Appellants' reliance on Davis is misplaced. (internal quotation omitted) As we have
noted in Butler, 238 F.3d at 1004, Davis conflicts with United States v. Baker, 98
F.3d 330, 338 (8th Cir. 1996), cert. denied, 520 U.S. 1179 (1997). In Baker, this
court stated that "'[i]f the evidence rationally supports two conflicting hypotheses, the
reviewing court will not disturb the conviction.'" Id. (quoting United States v. Burks,
934 F.2d 148, 151 (8th Cir. 1991)). "Although we are not free to overrule Davis, we
are free to follow Baker, which is the standard this court has overwhelmingly
favored." Butler, 238 F.3d at 1004.




                                          -6-
      Appellants concede that substantial evidence of constructive possession would
be sufficient to support their convictions. To prove constructive possession, the
government had to present evidence that appellants had knowledge and "'ownership,
dominion or control over the contraband itself, or dominion over the [vehicle] in
which the contraband is concealed.'" United States v. Campa-Fabela, 210 F.3d 837,
839 (8th Cir. 2000) (quoting United States v. McCracken, 110 F.3d 535, 541 (8th Cir.
1997)), cert. denied, 121 S. Ct. 1739 (2001). In addition, "[t]he possession 'need not
be exclusive, but may be joint.'" United States v. Wajda, 810 F.2d 754, 761 (8th Cir.)
(quoting United States v. Caspers, 736 F.2d 1246, 1249 (8th Cir. 1984)), cert. denied,
481 U.S. 1040 (1987). After reviewing the evidence, we hold that the government
presented sufficient evidence of constructive possession.

       We first address Ortega's arguments. Ortega does not contest the sufficiency
of the evidence as to his knowledge of the drugs, but asserts that there was
insufficient evidence of his dominion or control over the drugs or over the car in
which the drugs were hidden. Noting he did not own and was not driving the car at
the time it was stopped, Ortega asserts that the evidence only showed that he was a
backseat passenger. As he points out, "'[m]ere presence as a passenger in a car from
which the police recover contraband . . . does not establish possession.'" United
States v. Willis, 89 F.3d 1371, 1377 (8th Cir.) (quoting United States v. Flenoid, 718
F.2d 867, 868 (8th Cir. 1983)), cert. denied, 519 U.S. 909 (1996). In addition, mere
association with persons who possess drugs is insufficient to show constructive
possession. Wajda, 810 F.2d at 762.

       In this case, the government presented evidence showing much more than mere
presence or association. There was evidence from which a reasonable juror could
infer that Ortega had control over the methamphetamine. During the conversation in
the patrol car, Polmanteer turned to Ortega regarding the location of the hidden drugs
and for assistance if she were arrested. For example, when Anderson began looking
near the mirror, Polmanteer asked Ortega, "Should I be worried, Pablo?" When

                                         -7-
Polmanteer told Ortega that Anderson was taking screws out from the engine and the
door, she said "I better not m-----f----- go to jail, Pablo. If I go to jail you f------ gotta
get me out." During the conversation, Ortega never expressed surprise that drugs
could have been hidden in the car. Contrary to Ortega's argument, the jury's rejection
of the conspiracy charge does not negate the evidence of his relationship to the other
appellants. As the government notes, "'[a] jury may acquit a defendant as to one or
more charges for any number of reasons, including an inclination to be merciful, and
yet come to the reasonable conclusion that the defendant was guilty of other related
charges.'" United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000) (quoting
United States v. Whatley, 133 F.3d 601, 606 (8th Cir.), cert denied, 524 U.S. 940
(1998)).

      Ortega's reliance on United States v. Quintanar, 150 F.3d 902 (8th Cir. 1998),
is misplaced. In that case, we held that the government failed to present sufficient
evidence that the defendant had constructive possession of drugs in a package
addressed to another, noting, among other things, the defendant had never been in the
home where the package was delivered or in a car with the drugs. Id. at 904-05.
Here, Ortega was present in the car in which the drugs were found and the evidence
showed that he had control over them.

       Castro, who was the owner of the car, does not challenge the evidence of his
dominion or control, but argues that there was insufficient evidence that he knew of
the hidden drugs. We disagree. Like Ortega, during the conversation in the patrol
car, Castro never expressed surprise that drugs were concealed in the Crown Victoria.
Moreover, the jury could have inferred guilty knowledge from Castro's implausible
and contradictory statements to the trooper. See Butler, 238 F.3d at 1004. Although
Castro stated that appellants were going shopping at the Mall of America, they had
no cash, checks, credit or ATM cards. In addition, Castro first told Anderson that he
had purchased the car from an individual, but when he realized that Anderson had
noticed signs of tampering, he claimed he had bought the car from a salvage yard.

                                             -8-
The signs of tampering around the windshield also supported an inference that Castro
knew drugs had been hidden in the car. See Willis, 89 F.3d at 1377 (scratch marks
on wheel well supported inference that defendant knew drugs were hidden therein).
The jury also could have inferred guilty knowledge from the fact that Castro did not
telephone to inquire about picking up the car after the search at the garage, but
instead fled to the bus station. See United States v. Barnes, 140 F.3d 737, 738 (8th
Cir. 1998) ("Evidence of flight or escape . . . has probative value as evidence of
consciousness of guilt.").

        Polmanteer argues that there was insufficient evidence of both her control and
her knowledge. As the driver of the car in which the drugs were found, there was
sufficient evidence of control. See Willis, 89 F.3d at 1377 (driver had control of car
even if girlfriend usually drove it); United States v. Ojeda, 23 F.3d 1473, 1475 (8th
Cir. 1994) (driver had control even though he claimed passenger owned car and
records showed neither owned it). As to her knowledge, Polmanteer argues that her
statements on the videotape show she did not know that drugs were in the car. We
disagree. Polmanteer's argument is based on isolated comments and questions taken
out of context. It is also based on her assertion that she did not know an audio-video
recorder was capturing her conversation. As to this assertion, there was evidence
from which the jury could have inferred that Polmanteer in fact knew that it was
operating. Indeed, at one point, she pointed out the recorder and joked about singing
into it.

       Even if she did not know her conversation was being recorded, based on the
entire conversation, a jury could have reasonably inferred that she knew drugs had
been hidden in the car. Although Polmanteer highlights to this court her comments
that she did not know drugs had been hidden in the car, she does not highlight the
following comments:

      Polmanteer: Oh, s---, he's gonna find the . . .

                                         -9-
      Polmanteer: My [unintelligible], he's looking at it. . . OK, good. . .
      [radio traffic]
      Polmanteer: . . . nobody knows anything about the this f----- bato right here

At oral argument, her counsel suggested she was worried about the officers finding
towels she had taken from a motel. However, when the remarks are put in context,
it was reasonable for the jury to infer that she was talking about drugs, not towels.
Polmanteer asked Castro why he had consented to a search of the whole car; she
worried if the troopers would smell "it;" and it was Polmanteer who told Castro to
change his story about purchasing the car from an individual to purchasing it from a
salvage yard. In addition, the jury could also have inferred her guilty knowledge from
her implausible and inconsistent statements to Anderson, the obvious signs of
tampering with the car, and her attempt to flee.

       The district court also did not abuse its discretion in denying appellants'
motions for new trials based on the weight of the evidence under Fed. R. Crim. P. 33.
A district court may grant a new trial under Rule 33 "'only if the evidence weighs
heavily enough against the verdict that a miscarriage of justice may have occurred.'"
United States v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000) (quoting United States v.
Brown, 956 F.2d 782, 786 (8th Cir. 1992)). The district court was in the best position
to make this determination, and the record on appeal gives us no basis to second-
guess its determination. Id. at 783-84. Although Polmanteer asks us to consider that
after the verdict a juror had expressed concern about the evidence, we will not do so.
Polmanteer concedes that the district court properly denied her motion for
reconsideration because Fed. R. Evid. 606(b) prohibits juror inquiry into the validity
of a verdict. We will not allow Polmanteer to evade the prohibition of Rule 606(b)
under the guise of a Rule 33 motion. Nor will we address Castro's claim that his
counsel was ineffective for failing to file a suppression motion. This claim should be
raised in a 28 U.S.C. § 2255 motion.



                                        -10-
Polmanteer's Sentence -- Enhancement for Obstruction of Justice
       Polmanteer argues that the district court erred in granting a two-point
obstruction-of-justice enhancement under U.S.S.G. § 3C1.1, which applies when "the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prosecution, or
sentencing" of an offense. Polmanteer does not dispute that "lying for the purpose
of obtaining a lighter sentence constitutes obstruction of justice within the meaning
of section 3C1.1." United States v. Flores, 959 F.2d 83, 87 (8th Cir.), cert. denied,
506 U.S. 976 (1992). However, noting that "[t]he government bears the burden of
proving the facts necessary to support a finding of obstruction of justice," United
States v. O'Dell, 204 F.3d 829, 836 (8th Cir. 2000), she argues that the government
failed to satisfy its burden.

       We agree with Polmanteer. Although "[a] formal sentencing hearing is not []
the exclusive means by which the government may meet [its evidentiary burden],"
United States v. Elliot, 89 F.3d 1360, 1370 (8th Cir. 1996), (internal quotation
omitted), cert. denied, 519 U.S. 1119 (1997), the government in this case produced
no evidence whatsoever that Polmanteer had lied in hopes of receiving a reduction
for her role in the offense. Despite the district court's assurances in its February 2001
order that it would assess Polmanteer's credibility "only after hearing evidence
regarding the examiner's qualifications, training, the fairness, the questions, and other
related matters," it did not do so. As Polmanteer points out, the government failed to
offer the examiner's report; nor did the examiner testify as to his qualifications or the
questions asked. In fact, although the court ordered the polygraph so that Polmanteer
could convince it that a role reduction was warranted, her alleged "failure" went to
the issue of her knowledge of the drugs, which relates to her guilt, not to her role in
the offense. Indeed, the district court granted a two-point reduction for her role in
the offense under § 3B1.2, based on its finding that the trial evidence showed she was
a minor participant. See Elliot, 89 F.3d at 1370 (court may base sentencing findings
on trial evidence).

                                          -11-
       We also want to remind the government that although at sentencing a district
court may consider information that would be inadmissible at trial, the information
must have "sufficient indicia of reliability to support its probable accuracy." U.S.S.G.
§ 6A1.3 (a). We note that most courts of appeal that have considered the issue of
admissibility of polygraph evidence at sentencing have upheld refusals to admit such
evidence. See e.g. United States v. Thomas, 167 F.3d 299, 307-08 (6th Cir. 1996)
(affirming exclusion of defendant's polygraph evidence in support of role reduction);
United States v. Messina, 131 F.3d 36, 42 (2d Cir. 1997) (defendant's "polygraph
evidence . . . was unworthy of credit"), cert. denied, 523 U.S. 1088 (1998); United
States v. Stein, 127 F.3d 777, 781 (9th Cir. 1997) (defendant's polygraph evidence
was "too conclusory to be probative"); cf. United States v. Weekly, 118 F.3d 576, 581
(8th Cir.) (upholding denial of § 5C1.2(5) safety-valve exception because evidence
of defendant's deceitfulness other than refusal to take polygraph examination), cert.
denied, 522 U.S. 1020 (1997); United States v. Pitz, 2 F.3d 723, 729 (7th Cir. 1993)
(no plain error in sentencing court's reliance on witness's polygraph because it was
only one factor in court's credibility assessment and court "recognized that polygraph
tests are not an entirely reliable indication of veracity"), cert. denied, 511 U.S. 1130
(1994).

       As the Supreme Court noted in upholding a per se exclusion of polygraph
evidence at court martial proceedings, "there is simply no consensus that polygraph
evidence is reliable." United States v. Scheffer, 523 U.S. 303, 309 (1998). Indeed,
because of reliability concerns, the government opposed the district court's
consideration of polygraph evidence in connection with Polmanteer's request for a
role reduction. However, in an about face, the government advocated use of the
polygraph results in support of an obstruction enhancement. The government's
position seems somewhat inconsistent with the policy of the Department of Justice
(DOJ). Although supporting the limited use of polygraphs for investigatory purposes,
given their deficiencies, the DOJ "takes the position that polygraph results should not
be introduced into evidence at trial" and "opposes all attempts by defense counsel to

                                         -12-
admit polygraph evidence or to have an examiner appointed by the court to conduct
a polygraph test." United States Attorneys' Manual, § 9-13.300. Polygraphs --
Department Policy. In addition, we note that while not addressing the issue of
polygraphs, the Guidelines caution that a "court should be cognizant that inaccurate
testimony or statements may result from confusion, mistake, or faulty memory and,
thus, not all inaccurate testimony or statements necessarily reflect a willful attempt
to obstruct justice." U.S.S.G. § 3C1.1, comment. (n.2); cf. Scheffer, 523 U.S. at 313-
15 (fearing jury's credibility assessments may be adversely influenced by polygraph
results). Reliability issues aside, we have concerns that it was the district court's
"suggestion" that Polmanteer take a polygraph examination. We do not recommend
that other courts follow suit. Such a "suggestion" puts the defendant in an awkward
position.

     Accordingly, we affirm the convictions, but vacate Polmanteer's sentence and
remand for resentencing.1

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      1
        We note that after considering the circumstances of the offense, Polmanteer's
characteristics and history, and other relevant factors, see 18 U.S.C. § 3553(a), the
district court sentenced Polmanteer to the low end of the sentencing range. Of course,
these considerations will be relevant in the court's selection of an appropriate
sentence within the new guideline range.

                                        -13-
