     Case: 09-51177 Document: 00511327881 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2010
                                     No. 09-51177
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WILLIAM DAVID MUSAR,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-169-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       William David Musar appeals his jury convictions for two counts of
making a false statement to Drug Enforcement Administration (DEA) agents in
violation of 18 U.S.C. § 1001(a)(2). Musar was sentenced to concurrent terms of
three years of probation, a $5,000 fine on count one, and a $100 special
assessment on each count.
       DEA agents questioned Musar, the owner of the Homeport storage facility,
regarding whether Mitchell Block, an employee, was growing marijuana there.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-51177

The Government alleged Musar falsely stated that Block only had access to a
storage area for supplies and had no keys to the facility.        At trial, it was
undisputed that Block had lived in an apartment at the facility and had a key
to the apartment.
      Musar contends that the district court erred in admitting evidence of
Block’s marijuana growing activities and the drug-related items found in his
apartment as well as evidence that Musar stated he would have known if
someone was growing marijuana at the facility because he would have noticed
a change in the electricity bill. Evidence of Block’s marijuana cultivation was
relevant to whether the investigation was a matter within the jurisdiction of the
DEA, an element of the offense. See § 1001(a)(2); United States v. Najera
Jimenez, 593 F.3d 391, 399 (5th Cir. 2010). The evidence had little probative
value because the element was established by other evidence. However, even if
the probative value of the evidence was substantially outweighed by the danger
of unfair prejudice, we are not convinced “there is a reasonable probability that
the improperly admitted evidence contributed to the conviction.” United States
v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). Therefore, the error in admitting
the evidence was harmless. See id.; F ED. R. C RIM. P. 52(a).
      The evidence regarding Musar’s familiarity with indoor marijuana
cultivation was irrelevant. See F ED. R. E VID. 401. However, because there is no
indication that the evidence contributed to the verdict, the error was harmless.
See Sumlin, 489 F.3d at 688.
      Musar also contends there was insufficient evidence the statement alleged
in count one of the indictment, that the only part of the Homeport storage
facility to which Block had access was a supply area, was false. Musar argues
his interpretation of the “Homeport storage facility” as including only storage
areas was as reasonable as the Government’s intended meaning that it included
all areas of the facility regardless of their use. However, a reasonable jury could
have found that Musar understood he was being asked about Block’s access to

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                                  No. 09-51177

the entire facility and his statement that Block only had access to a supply area
was false.     See United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006)
(analyzing a conviction under 18 U.S.C. § 1623(a)); cf. United States v. Bell, 623
F.2d 1132, 1137 (5th Cir. 1980) (same). Therefore, the conviction as to count one
is affirmed.
      Finally, Musar contends there was insufficient evidence he told agents
that Block had no keys that would provide him access to the Homeport storage
facility as alleged in count two of the indictment. The agents testified that
Musar told them Block had keys to a supply area and the facility’s office.
However, the agents did not testify that Musar told them Block had no keys to
the facility, and Musar denied making such a statement. Therefore, the jury
could not have found the essential elements of the offense in count two beyond
a reasonable doubt. See United States v. Shum, 496 F.3d 390, 391 (5th Cir.
2007). Accordingly, the conviction as to count two is vacated.
      The conviction as to count one is AFFIRMED. The conviction as to count
two is VACATED, and the district court’s judgment is MODIFIED to impose only
a $100 special assessment. Any money paid by Musar in excess of $100 toward
the erroneous special assessment should be refunded.




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