USA v. William Musar

Filing

UNPUBLISHED OPINION FILED. [09-51177 Affirmed in Part ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 01/11/2011 for Appellant William David Musar [09-51177]

USA v. William Musar ase: 09-51177 C

Document: 00511327881 Page: 1 Date Filed: 12/21/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51177 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. W I L L I A M DAVID MUSAR, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 7:09-CR-169-1

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* W illia m David Musar appeals his jury convictions for two counts of m a k in g a false statement to Drug Enforcement Administration (DEA) agents in v io la t io n of 18 U.S.C. § 1001(a)(2). Musar was sentenced to concurrent terms of t h r e e years of probation, a $5,000 fine on count one, and a $100 special a s s e s s m e n t on each count. D E A agents questioned Musar, the owner of the Homeport storage facility, r e g a r d in g 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-51177 Document: 00511327881 Page: 2 Date Filed: 12/21/2010 No. 09-51177 T h e Government alleged Musar falsely stated that Block only had access to a s t o r a g e area for supplies and had no keys to the facility. At trial, it was

u n d is p u t e d that Block had lived in an apartment at the facility and had a key t o the apartment. M u s a r contends that the district court erred in admitting evidence of B lo c k 's marijuana growing activities and the drug-related items found in his a p a r t m e n t as well as evidence that Musar stated he would have known if s o m e o n e was growing marijuana at the facility because he would have noticed a change in the electricity bill. Evidence of Block's marijuana cultivation was r e le v a n t to whether the investigation was a matter within the jurisdiction of the D E A , an element of the offense. See § 1001(a)(2); United States v. Najera J im e n e z , 593 F.3d 391, 399 (5th Cir. 2010). The evidence had little probative v a lu e because the element was established by other evidence. However, even if t h e probative value of the evidence was substantially outweighed by the danger o f unfair prejudice, we are not convinced "there is a reasonable probability that t h e improperly admitted evidence contributed to the conviction." United States v . Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). Therefore, the error in admitting t h e evidence was harmless. See id.; FED. R. CRIM. P. 52(a). T h e evidence regarding Musar's familiarity with indoor marijuana c u ltiv a t io n was irrelevant. See FED. R. EVID. 401. However, because there is no in d ic a tio n that the evidence contributed to the verdict, the error was harmless. See Sumlin, 489 F.3d at 688. M u s a r also contends there was insufficient evidence the statement alleged i n count one of the indictment, that the only part of the Homeport storage fa c ilit y to which Block had access was a supply area, was false. Musar argues h is interpretation of the "Homeport storage facility" as including only storage a r e a s was as reasonable as the Government's intended meaning that it included a ll areas of the facility regardless of their use. However, a reasonable jury could h a v e found that Musar understood he was being asked about Block's access to 2

Case: 09-51177 Document: 00511327881 Page: 3 Date Filed: 12/21/2010 No. 09-51177 t h e entire facility and his statement that Block only had access to a supply area w a s false. See United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006)

(a n a ly z in g a conviction under 18 U.S.C. § 1623(a)); cf. United States v. Bell, 623 F .2 d 1132, 1137 (5th Cir. 1980) (same). Therefore, the conviction as to count one is affirmed. F in a lly , Musar contends there was insufficient evidence he told agents t h a t Block had no keys that would provide him access to the Homeport storage fa c ilit y as alleged in count two of the indictment. The agents testified that M u s a r 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 t h e facility, and Musar denied making such a statement. Therefore, the jury c o u ld 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. 2 0 0 7 ). Accordingly, the conviction as to count two is vacated. T h e conviction as to count one is AFFIRMED. The conviction as to count t w o 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 t h e erroneous special assessment should be refunded.

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