REVISED DECEMBER 18, 2002
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-51177
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL HOLGUIN HERRERA,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
November 26, 2002
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:
Primarily at issue is the correct standard of review for
Ismael Holguin Herrera’s sufficiency of the evidence challenge to
his 18 U.S.C. § 922(g)(3) conviction (possessing firearms while
“unlawful user” of controlled substance). AFFIRMED.
I.
In a multi-count indictment against nine defendants, Herrera
was charged in three: count 1, violation of 21 U.S.C. §§ 841(a)(1) and 846 (conspiracy to distribute more than 500 grams of cocaine);
count 14, violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and
846 (possession with intent to distribute more than 500 grams of
cocaine); and count 16, violation of 18 U.S.C. § 922(g)(3) (on or
about 9 December 1999, possession of firearms while being unlawful
user of, or addicted to, controlled substance). A jury convicted
Herrera on each count.
Herrera appealed, claiming insufficient evidence for each
conviction; a divided panel of our court affirmed two (counts 1 and
14) but reversed on count 16. United States v. Herrera, 289 F.3d
311 (5th Cir.), vacated pending en banc review, 300 F.3d 530 (5th
Cir. 2002) (en banc). United States District Judge Adrian
Duplantier, sitting by designation, dissented from the reversal.
289 F.3d at 325.
Rehearing en banc was granted, limited to the reversed §
922(g)(3) conviction. Herrera, 300 F.3d 530.
II.
The only issue before our en banc court is the sufficiency of
the evidence for Herrera’s conviction for possessing firearms on or
about 9 December 1999, while being an “unlawful user” of a
controlled substance, in violation of § 922(g)(3). The controlling
question is the applicable standard of review, because Herrera
2 failed in district court to move for judgment of acquittal (JA) on
the issue at hand.
Herrera moved for a FED. R. CRIM. P. 29 JA after the Government
presented its case in chief. For the § 922(g)(3) count at issue,
however, he did so only on one specific ground. Section 922(g)(3)
prohibits possessing firearms if the accused is then either
addicted to a controlled substance (not at issue here) or an
unlawful user of it. For that count, Herrera’s Rule 29 motion
asserted only that there was insufficient evidence to convict on
the “addicted to” alternative. Restated, he neither contested the
“unlawful user” alternative nor asserted he was not an “unlawful
user” when he possessed firearms on or about 9 December 1999.
Following denial of his motion, Herrera presented evidence,
including his testifying. At the close of evidence, Herrera’s JA
motion based on the same, earlier asserted grounds was denied.
Post-verdict, Herrera failed to move for JA until long after
the seven-day period for filing the motion had run. See FED. R.
CRIM. P. 29(c). The motion was denied as time-barred; Herrera does
not contest that ruling.
Herrera maintains we should review under the usual standard
for sufficiency claims: evidence is sufficient if, “after viewing
the evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of
3 the offense beyond a reasonable doubt”. United States v. Daniel,
957 F.2d 162, 164 (5th Cir. 1992). See also In re Winship, 397
U.S. 358, 364 (1970).
Instead, because Herrera did not seek JA for the issue at
hand, our review is far more narrow. Where, as here, a defendant
asserts specific grounds for a specific element of a specific count
for a Rule 29 motion, he waives all others for that specific count.
E.g., United States v. Belardo-Quinones, 71 F.3d 941, 945 (1st Cir.
1995); United States v. Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993).
As noted, Herrera claimed insufficient evidence only concerning his
status as an “addict”, not as an “unlawful user”; and he did not
claim insufficient evidence concerning whether he was an “unlawful
user” on or about the time he possessed the firearms.
Accordingly, “[b]ecause [Herrera] waived any objection to the
sufficiency of the evidence [for the points now at issue], our
review is limited to determining whether ... the record is devoid
of evidence pointing to guilt”. United States v. Delgado, 256 F.3d
264, 274 (5th Cir. 2001) (internal quotation marks and citation
omitted). See also United States v. Carbajal, 290 F.3d 277, 290
(5th Cir. 2002), petition for cert. filed, ___ U.S.L.W. ___ (U.S.
18 July 2002) (No. 02-5898); Daniel, 957 F.2d at 164.*
* In applying this very narrow standard of review, and contrary to the concerns expressed by the dissent, we follow well-settled, not “new”, rules of criminal procedure. For the count at issue,
4 Therefore, we review the record only to determine whether it
is devoid of evidence that, on or about 9 December 1999, Herrera
was an “unlawful user” of a controlled substance while in
possession of firearms. Along this line, the Government conceded
in its supplemental en banc brief that, for a defendant to be an
“unlawful user” for § 922(g)(3) purposes, his “drug use would have
to be with regularity and over an extended period of time”. The
Government reiterated this at en banc oral argument: “We certainly
wouldn’t charge one time use. It would have to be over a period of
time”.
Herrera chose to make a quite specific, not a general, motion for judgment of acquittal; he moved for such relief only pre-verdict (again, he does not contest the denial, as untimely, of his post- verdict motion); and we, not the parties, determine the appropriate standard of review, as discussed, for example, in our controlling en banc decisions in United States v. Pierre, 958 F.2d 1304, 1311 n.1 (5th Cir.) (en banc), cert. denied 506 U.S. 898 (1992), and United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir.) (en banc), cert. denied 505 U.S. 1223 (1992).
Needless to say, the applicable “devoid of evidence” standard is quite different from, and far more narrow than, review for plain error. Compare Delgado, 256 F.3d at 274, with United States v. Olano, 507 U.S. 725, 731-37 (1993) (through plain error review, court has discretion to correct “clear” or “obvious” error that affects substantial rights and seriously affects fairness, integrity, or public reputation of judicial proceedings). See FED. R. CRIM. P. 52(b).
Simply put, application of this narrow standard is not to avoid issues — far from it. Instead, it is in keeping with well- established rules of criminal procedure that ensure issues are tried in the trial, not the appellate, court.
5 Pursuant to our record-review, the record is not devoid of
evidence that, on or about 9 December 1999, Herrera unlawfully used
cocaine while possessing firearms.
III.
For the foregoing reasons, the conviction for violation of 18
U.S.C. § 922(g)(3) (count 16) is AFFIRMED. For the other two
counts of conviction (1 and 14), the applicable portions of the
panel opinion, 289 F.3d at 314-19, are reinstated. Therefore, the
judgments on all three counts are
AFFIRMED.
6 DeMOSS, Circuit Judge, dissenting.
SMITH, Circuit Judge, joins in this dissent.
I am truly amazed at the ingenuity displayed by the en banc
majority in fashioning a new rule of criminal procedure, which
permits them to dispose of this case without addressing some tough
substantive issues. If our primary purpose as appellate judges is
to make appellate review as difficult as possible for criminal
defendants, then I congratulate my colleagues for this new hyper
technicality that they uncovered in Fed. R. Crim. P. 29. The
majority's new rule is clearly in conflict with the long standing
precedents of this Circuit starting with Huff v. United States, 273
F.2d 56, 60 (5th Cir. 1959), and most recently reaffirmed in United
States v. Brace, 145 F.3d 247 (5th Cir. 1998)(en banc) where we
stated that in criminal trials sufficiency of the evidence issues
may be preserved with general objections. Id. at 258 n.2.
In an effort to dance around this prior precedent, the
majority attempts to frame its new rule in language that limits the
conflict: "Where, as here, a defendant asserts specific grounds for
a specific element of a specific count for a rule 29 motion, he
waives all others for that specific count." (Emphasis added). Given the level of specificity required, this new rule hopefully
will find no application except here in Herrera.
The real problem with the majority's new rule is that there is
absolutely nothing in Fed. R. Crim. P. 29 as it now exists nor in
the new Fed. R. Crim. P. 29 that will take effect on December 1,
2002, which expressly refers to or even inferentially supports the
sanction of waiver that the majority applies in this case. To the
contrary, both the existing and the new Rule 29 expressly indicate
that a defendant is not required to move for a judgment of
acquittal before the court submits the case to the jury as a
prerequisite to moving for a judgment of acquittal after the jury
has returned its verdict and been discharged. The motion for
judgment of acquittal in this case was made orally before the case
was submitted to the jury and it seems grossly unfair to me to put
defense counsel under the burden of waiving grounds that he did not
specifically speak to, when he need not have been speaking at all.
Furthermore, the issue of whether Herrera waived his motion
for acquittal, and thus failed to preserve error, was never raised
by the government in this case before the trial court or on appeal,
neither in its original brief to the panel nor in its petition for
en banc reconsideration nor in its supplemental en banc brief. The
record is clear that counsel for Herrera did, in fact, make a
motion for judgment of acquittal on the basis of insufficiency of
8 the evidence as to each of the counts in which Herrera was charged.
Surely if the prosecutors thought this motion did not satisfy the
requirements of Rule 29, they would have been screaming and
hollering about that deficiency from the very beginning. In United
States v. Menesses, 962 F.2d 420 (5th Cir. 1992), this court faced
a somewhat similar situation in which the government argued, for
the first time at oral argument, that because the defendant failed
to object to the sufficiency of the evidence at trial, the court
should be bound by the stricter standard of review, i.e. plain
error. In an opinion written by Judge Reynaldo G. Garza, the court
refused to review the evidence under the stricter standard,
pointing out that the government referred to the usual standard of
review in its brief, and that the government could not, at the time
of oral argument, change its position on this issue. Here in
Herrera's case, we have the additional fact that, in its petition
for en banc reconsideration, the government made no mention
whatsoever of any deficiencies in Herrera's motion for judgment of
acquittal or any requirement for reviewing the evidence on the
plain error standard. I have great trouble, therefore,
understanding why the en banc majority feels compelled sua sponte
in this case to raise this issue at en banc oral argument and rely
upon the concept of "waiver" as a basis for its ruling. As I
understand our plain error analysis, waiver occurs when a party,
9 through counsel, affirmatively and expressly releases or gives up
a claim. There is absolutely nothing in this record that can be
interpreted as conduct on the part of counsel for Herrera that
released or waived his plea of not guilty to the charge of being an
"unlawful user." For these reasons, I respectfully dissent from
the decision of the en banc majority to apply the stricter
standard, i.e. "devoid of evidence," in testing the sufficiency of
the evidence in this case.
Even more fundamentally, I think the en banc majority errs in
making any judgment about the sufficiency of the evidence without
first coming to grips with the essential definitional problem that
this case raises, i.e., what do the words "unlawful user," as they
appear in § 922(g)(3), require in the way of proof beyond a
reasonable doubt? In order to answer that question, I would
suggest that this court should have addressed and answered the
following questions:
1. Is there a statutory definition for the term "unlawful user?"
2. If Congress has not statutorily defined the term "unlawful user," can we determine what Congress intended when it used such words by looking at: (i) the statutory context in which Congress used such words; (ii) the legislative history which proceeded the adoption of such words by Congress; (iii)the common and ordinary meaning of such words, if any.
10 3. If we are unable to determine the meaning which Congress intended for the words "unlawful user," should we then hold that the words are constitutionally unenforceable because of vagueness?
4. If we can define the term "unlawful user," is the evidence in this case sufficient to support a determination that Herrera was, in fact, an "unlawful user?"
5. If we determine that Hererra was, in fact, an "unlawful user," does the evidence support a finding that the guns which Herrera possessed were "possessed in or affecting interstate commerce" and if so, when that possession occurred?
6. If we determine that the guns were possessed in or affecting commerce, does the evidence establish that Herrera's status, as an "unlawful user" and his "possession of guns in or affecting commerce," occurred within reasonable proximity of each other, around the date of December 9, 1999?
Obviously, I would put the burden of proof and persuasion on
the government to produce sufficient evidence to support a jury
finding beyond a reasonable doubt as to the answers to questions 4,
5, and 6 above.
In addressing the definitional problems raised by this case,
the district court instructed the jury as follows:
An addict is defined as any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to lost the power of self control with reference to his addiction.
11 The term 'user' is defined in accordance with its common and ordinary meaning.
The district court's definition of "an addict" is a verbatim
use of the definition set forth 21 U.S.C. § 802(1). As indicated
above, the district court did not define the statutory term
"unlawful user" as it appears in § 922(g)(3), but instead defined
the term "user." Neither the prosecutor nor defense counsel
proffered a definition of "unlawful user" to the district court for
use in the instruction; and neither the prosecutor nor defense
counsel raised any objection to the omission by the district court
of the word "unlawful" when it gave its definition of "user." At
oral argument before the panel, the government conceded that the
evidence and testimony produced in this case did not constitute
sufficient evidence to support a jury finding that Herrera was
"addicted to" a controlled substance. If the prosecutor had made
this concession to the district court at the close of the
government's evidence when the defense counsel for Herrera moved
for judgment of acquittal for insufficiency of evidence on this
count, I assume that the district court would have granted that
motion as to the "addicted to" element of the count, and the charge
would have gone to the jury only on the "unlawful user" element,
which the district court defined as simply a "user" element. In
any event, the jury made no separate finding as to whether Herrera
was an "unlawful user of" or was "addicted to" a controlled
12 substance as charged in count 16, but simply found Herrera "guilty
as to count 16" in its verdict form. So, we are faced on appeal
with determining the validity of a jury conviction on a count as to
which the government concedes it did not prove one statutory
element and the other element was not submitted to the jury in the
form stated by the statute. The en banc majority, like the
district court, simply ignores the definitional problems
surrounding the words "unlawful user."
During the time that Herrera's case was pending in the
district court and coming up to our court on appeal, a panel of our
court was deciding the case of United States v. Emerson, 270 F.3d
203 (5th Cir. 2001) which held that the Second Amendment "protects
the right of individuals, including those not then actually a
member of any militia or engaged in active military service or
training, to privately possess and bear their own firearms, such as
the pistol involved here, that are suitable as personal, individual
weapons and are not of the general kind or type excluded in
Miller." Id. at 260.
Defense counsel for Herrera made a cryptic motion at the
conclusion of the evidence in Herrera's case that he was entitled
to Second Amendment protections and count 16 violated those
protections. While Herrera's case was pending on our appellate
docket, the Supreme Court of United States denied certiorari in
13 Emerson, 122 S. Ct. 2362 (2002)(mem.), and consequently the panel
decision in Emerson remains as the binding law in the Fifth
Circuit. Emerson clearly recognizes that the Second Amendment
right to keep and bear arms "does not mean that those rights may
never be made subject to any limited, narrowly tailored specific
exceptions or restrictions for particular cases that are reasonable
and not inconsistent with the right of Americans generally to
individually keep and bear their private arms as historically
understood in this country." Id. at 261.
In light of Emerson, I would urge that Second Amendment rights
can be abridged only if the restriction survives strict scrutiny.
To the best of my research, Herrera's case presents the first
occasion on which our court has been asked to evaluate the
appropriateness of § 922(g)(3) in light of our circuit's
interpretation of the Second Amendment in Emerson. I realize that
there are some judges on our court who turn-up their noses and
snicker at the Second Amendment, but until changed by a subsequent
decision of the Supreme Court or by an en banc reconsideration in
our court, Emerson stands as the applicable law in our circuit.
If some other statute of Congress purported to take away or
restrict (1)"the right of the people peaceably to assemble and to
petition the government for redress of grievances" under the First
Amendment, or (2)"the right of the people to be secure in their
14 persons, houses, papers, and effects against unreasonable searches
and seizures" under the Fourth Amendment, or (3)the right of any
person to be free from being "compelled in any criminal case to be
a witness against himself" under the Fifth Amendment, or (4) the
right of any person "to have the assistance of counsel for his
defense" in any criminal case under the Sixth Amendment because, in
each event, such person was "an unlawful user of or addicted to a
controlled substance," then surely this court would use the test of
strict scrutiny to determine the validity of that statutory
restriction.
The precise question raised by Herrera's case is whether
§ 922(g)(3) is a reasonable and narrowly tailored restriction,
which accurately defines those categories of individuals who should
be deprived of their Second Amendment right to keep and bear arms.
I can certainly agree that the definition of "addict" set forth in
21 U.S.C. § 802(1) passes the test of Emerson as a reasonable
restriction on Second Amendment rights. However, in my judgment
the words "unlawful user" completely fail to pass Emerson's
requirement of strict scrutiny because (1) there is no statutory
definition of such words; (2) there is no common and ordinary
meaning to such words; (3) there is nothing in the legislative
history which would indicate what Congress had in mind by using
such words; and, (4) there is nothing from which a court or jury
15 can determine: (i) what quantities of (ii) what controlled
substances, in (iii) what time frame on (iv) what occasions, and
with (v) what side affects are necessary to constitute "an unlawful
user."
Given that there are more than 150 substances in the list of
controlled substances in the Controlled Substances Act ("CSA") and
that each of these substances has widely varying and different
effects on an individual, it would seem elementary to me that
Congress must specify the particular substances whose use may cause
particular damages and injuries to an individual sufficient to
deprive that individual of his Constitutional Rights under the
Second Amendment. Likewise, to have a narrowly tailored
restriction on Second Amendment rights, Congress must specify the
frequency of use of a controlled substance and the time period
during which such a use will be deemed to have a continuing effect
on an individual. Otherwise, the term "user" is so open-ended that
the ordinary citizen cannot know when his conduct in using a
controlled substance may result in forfeiture of his rights under
the Second Amendment. The government recognizes these inadequacies
when it concedes in its en banc brief that in order for a defendant
to be an "unlawful user," his "drug use would have to be with
regularity and over an extended period of time;" and further
stipulated at en banc oral argument "we certainly wouldn't charge
16 one time use, it would have to be over a period of time." But,
under our constitutional concepts of separation of powers, only
Congress can define what constitutes "regular use" and what
constitutes "an extended period of time"; and neither the
prosecutor nor the jury should be permitted to determine those
matters on an ad hoc case by case basis.
Now, some final comments about the statutory interpretation
task which we face in this case. The exact text of the statute
designated as 18 U.S.C. § 922(g)(3) reads as follows:
(g) It shall be unlawful for any person-- . . . . (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); . . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition;
The cross-references to § 102 of the CSA contain definitions of the
term "addict" and the term "controlled substance," but nowhere in
§ 102 of CSA is there any definition of the term "unlawful user."
Likewise, there is no definition of the words "unlawful user" in 18
U.S.C. § 921 which contains all of the definitions relating to the
various Sections in chapter 44 dealing with "Firearms;" but, § 921
does contain definitions of many of the other terms used in other
paragraphs of subsection (g) of § 922.
17 One of the first interpretative decisions which must be made in
understanding § 922(g)(3) is whether the conjunction "or" as it
exists between the terms "unlawful user of" and "addicted to" is to
be read disjunctively, indicating entirely separate meanings, or is
to be read synonymously indicating words having very similar
meanings.
Webster’s defines the word “or,” in relevant part as, “used as
a function word to indicate (1) an alternative between different or
unlike things, states or actions . . . (3) the synonymous,
equivalent, or substitutive character of two words or phrases.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1585 (1971). Similarly,
Black’s defines the word “or” as “[a] disjunctive particle used to
express an alternative or to give a choice of one among two or more
things. It is also used to clarify what has already been said, and
in such cases, means ‘in other words,’ ‘to-wit,’ or ‘that is to
say.’” BLACK’S LAW DICTIONARY 987 (5th ed. 1979). So it would appear
that the word “or” can be either a disjunctive conjunction or a
conjunction indicating the use of synonymous term.** Though it may
be argued that the disjunctive is intuitively the first choice,
** Webster's defines synonymous as "having the character of a synonym: alike or nearly alike in meaning: capable of being substituted for another word or expression in a statement without essentially changing the statements meaning." Note that this allows for "nearly alike in meaning" which, is exactly what the panel majority's definition of "unlawful user" in Herrera was to "addict."
18 this is not always so. The Supreme Court has adopted both uses of
the word “or” depending on the circumstances and surrounding text.
Compare FCC v. Pacifica Foundation, 438 U.S. 726, 739-40 (1978)
(adopting disjunctive use of the word), and Flora v. United States,
362 U.S. 145, 149 (1960) (same), with Cleveland v. United States,
531 U.S. 12, 26 (2000) (re-affirming their decision in McNally v.
United States, 483 U.S. 350 (1987)), and Hawaiian Airlines, Inc. v.
Norris, 512 U.S. 246, 255 (1994) (adopting the synonymous use
definition of “or”), and United States v. Olano, 507 U.S. 725, 732
(1993) (citing United States v. Young, 470 U.S. 1, 15, n.12 (1985)
to support reading Fed. R. Crim. P. 52(b)’s “error or defect”
language as really creating only one category of “error”), and
McNally, 483 U.S. at 358-59 (holding that additional language to 18
U.S.C. § 1341 was added to make it “unmistakable that the statute
reached false promises and misrepresentations as to the future as
well as other frauds involving money or property,” and therefore
rejected using “or” in the disjunctive). The Supreme Court has not
expressly stated why it has chosen not to use the disjunctive, but
from the above cases it seems at least two factors are prevalent:
1) if the legislative intent indicates one use over another, see
Young, 470 U.S. at 15, n.12; Cleveland, 531 U.S. at 26 (“[w]e
decline to attribute to § 1341 a purpose so encompassing where
Congress has not made such a design clear.”); and 2) if using the
19 disjunctive would create surplusage in the terms used. Hawaiian
Airlines, 512 U.S. at 254 (“Thus, in attempting to save the term
‘grievances’ from superfluity, petitioners would make the phrase
after the ‘or’ mere surplusage.”).
Applying these teachings from the Supreme Court to the
circumstances before us here in Herrera, I conclude that the most
reasonable interpretation to give to the statutory language before
us is that the word "or" has not been used by Congress in a
disjunctive sense, but has been used by Congress synonymously to
reflect that the two terms are really just part and parcel of each
other.
Since Congress defined the term "addicted to" but did not
define the term "unlawful user" in any way, shape or form, I would
conclude that what the government must prove beyond a reasonable
doubt is facts sufficient to satisfy the statutory definition of
"addicted to;" and, since the government has stipulated that it did
not prove facts sufficient in this case to support a finding of
"addicted to," we should REVERSE and RENDER THE CONVICTION under
count 16.
For all of the foregoing reasons, I respectfully DISSENT from
the decision of the en banc majority.
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