UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50356
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSE HERRERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(MO-98-CR-100-2)
March 30, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Following a bench trial, and pursuant to comprehensive
findings of fact and conclusions of law, Jesse Herrera was
convicted, pursuant to 18 U.S.C. § 401, on two counts of contempt
of court: for aiding and abetting his associate’s unauthorized
practice of law (count one); and for wilfully disobeying a court
order by continuing to represent a client after being ordered not
to do so (count two). For the numerous issues raised, the primary
*
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this opinion should not be published and is not precedent except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.
issue is whether the evidence was sufficient to support his
convictions. Several of the issues presented are being raised for
the first time on appeal and are, therefore, reviewed only for
plain error. Under this narrow standard of review, there must be
an error that is “clear” or “obvious”, and that affects
“substantial rights”; and, even then, we have discretion to correct
such forfeited error only if it affects the fairness, integrity, or
public reputation of judicial proceedings. E.g., United States v.
Cyprian, 197 F.3d 736, 741 (5th Cir. 1999), cert. denied, 121 S.
Ct. 65 (2000).
On 11 February 1998, Herrera filed a motion on behalf of the
Herrera Law Firm (the Firm) to replace Chavez as counsel for
Gonzalez in a federal criminal drug case (criminal case). On 24
February, the magistrate judge denied Herrera’s motion pending
Chavez moving to withdraw. Nevertheless, that same day, Salinas,
an associate in the Firm, and who was not licensed to practice in
federal court, filed an entry of appearance for Gonzalez.
On 2 March, Salinas and Ish Herrera, an investigator for the
Firm, asked James Hershberger to assist in the criminal case as
local counsel. The next day, Chavez moved to withdraw; but, the
magistrate judge denied the entry of appearance by Salinas, and
again denied Herrera’s previous motion for substitution. The basis
for the denial was concern that such representation presented a
conflict of interest.
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Subsequently, Gonzalez sought restitution of attorneys’ fees
($10,000 retainer) he had paid the Firm. The district court
ordered Hershberger and the Firm to submit affidavits supporting
their fees. Salinas’ affidavit contained entries representing work
allegedly performed for Gonzalez in the criminal case after the
disqualification of Salinas, Herrera, and the Firm. A hearing was
held; Salinas testified: he assisted Hershberger as co-counsel;
the affidavit represented work done by Herrera, and was reviewed by
Herrera before it was filed; Salinas was not licensed in federal
court; and he did not seek admission pro haec vice.
As a result, a five-count criminal information was filed
against Herrera, the Firm, and Salinas. As noted, Herrera was
charged with two counts of contempt of court. Following the bench
trial, he was found guilty on both counts and was sentenced to
concurrent terms of three years’ probation for each count. As a
condition of probation, Herrera was ordered to pay a fine of
$15,000.
Herrera contends there was insufficient evidence to support
his convictions. As to count one, he asserts there was
insufficient evidence that he acted willfully or that he knew that
Salinas was not licensed in federal court and had not filed a
motion to practice pro haec vice. Regarding count two, he claims
the Government failed to prove he wilfully disobeyed the order
disqualifying the Firm from representing Gonzalez.
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This case having been tried to the court, we review the
evidence to determine whether the district court’s findings are
supported by substantial evidence. United States v. Ybarra, 70
F.3d 362, 364 (5th Cir. 1995), cert. denied, 517 U.S. 1174 (1996).
The convictions will be upheld if the evidence is sufficient to
justify the conclusion that Herrera was guilty beyond a reasonable
doubt. Id. The evidence is viewed in the light most favorable to
the Government, with deference accorded reasonable inferences drawn
by the district court. Id.
Salinas, who was not admitted to practice in federal court,
filed a notice of appearance for Gonzalez on the same day the order
denying Herrera’s motion for substitution was entered. Shortly
thereafter, Salinas retained Hershberger to act as local counsel.
Also, an order was filed denying Salinas’ entry of appearance and
Herrera’s motion for substitution; and the magistrate judge
testified it is standard practice for the clerk’s office to notify
affected parties of its orders. Further, as discussed infra,
Salinas testified that some of the entries listed in his affidavit,
which was reviewed by Herrera, represented work performed by
Herrera. Hershberger’s affidavit indicated that Herrera was still
involved in the case as late as May 1998, long after the 2 March
order denying his appearance.
Based on this evidence, it was reasonable for the district
court to conclude: as both the Firm’s name partner and Salinas’
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supervising attorney, Herrera was aware of Salinas’ activities;
and, by continuing to represent Gonzalez after being ordered not to
do so, Herrera acted wilfully. In short, sufficient evidence
supported Herrera’s convictions.
Concerning the evidence, and Salinas’ testimony at the fee
hearing, a transcript of the hearing was admitted without objection
at the bench trial. At that fee hearing, when asked whether
Herrera examined the fee affidavit before it was filed, Salinas
answered: “Yes, he did. To my knowledge, yes, he did”. Herrera
challenges the admission at trial of Salinas’ statement regarding
Herrera’s review of the fee affidavit; but, because Herrera failed
to so object at trial, we review only for plain error. FED. R.
EVID. 103; FED. R. CRIM. P. 52; e.g., United States v. Cantu, 167 F.3d
198, 204 (5th Cir.), cert. denied, 528 U.S. 818 (1999). In a bench
trial, any error the district judge makes in admitting evidence is
harmless if there is other admissible evidence sufficient to
support the conviction. E.g., United States v. Cardenas, 9 F.3d
1139, 1156 (5th Cir. 1993), cert. denied, 511 U.S. 1134 (1994).
Even without the challenged statement, there was ample evidence to
support Herrera’s convictions. Accordingly, even assuming error,
it was harmless. Therefore, Herrera’s substantial rights were not
affected. There was no plain error.
Next, Herrera asserts the district court erred by relying upon
extra-record evidence to deny his post-trial motion for judgment of
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acquittal, or in the alternative, a new trial. The alleged extra-
record facts were judicially noticed by the district court. In any
event, even without these facts, there was ample evidence to
support Herrera’s convictions.
Herrera contends his sentence to a fine and probation is
illegal, claiming § 401 permits a fine or imprisonment, but not
both. Because this issue is raised for the first time on appeal,
we again review only for plain error. FED. R. CRIM. P. 52; E.g.,
United States v. Guerrero, 169 F.3d 933, 946 (5th Cir. 1999).
Pursuant to § 401, a district court can “punish by fine or
imprisonment, at its discretion , ... contempt of its authority”.
(Emphasis added.) See, e.g. Campbell v. Keystone Aerial Surveys,
Inc., 138 F.3d 996, 1005 n.11 (5th Cir. 1998). Our court has not
addressed whether a fine can be imposed as a condition of probation
in a § 401 case. In the light of 18 U.S.C. § 3563(b), any error
was not “clear” or “obvious”. See 18 U.S.C. § 3563(b) (allowing
district court to impose conditions of probation at its
discretion). Therefore, there was no plain error.
In addition, Herrera asserts that, as owner and sole partner
of the Firm, he was the Firm’s alter ego. Because the district
court imposed a $5,000 fine against the Firm, Herrera contends his
sentence of probation and $15,000 fine constitute double punishment
in violation of the Double Jeopardy Clause of the Fifth Amendment.
Again, because Herrera did not raise this issue in district court,
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we review only for plain error. Herrera asserts that United States
v. Woods, 949 F.2d 175, 177 (5th Cir. 1991), cert. denied, 503 U.S.
961 (1992), implies that punishing a defendant and his alter ego
corporation would violate double jeopardy. Because Herrera is
unable to establish an error, much less a plain error, this claim
also fails.
Herrera contends count one of the information failed to state
an offense and was, thus, jurisdictionally defective. To be
sufficient, an information must allege each material element of the
offense. United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th
Cir. 1999). The elements of contempt under 18 U.S.C. § 401(3) are:
a reasonably specific order; violation of the order; and the
willful intent to do so. Cooper v. Texaco, Inc., 961 F.2d 71, 72
n.3 (5th Cir. 1992).
The district court found that Herrera violated its local rules
by aiding and abetting Salinas’ unauthorized practice of law, and,
thus, was guilty as to count one. Herrera’s contention that a
local rule is not an order is without merit. A local rule is the
equivalent of a standing order of the district court, Jones v.
Central Bank, 161 F.3d 311, 313 (5th Cir. 1998); and a standing
order is an order for § 401(3) purposes. Seymour v. United States,
373 F.2d 629, 631 (5th Cir. 1967).
Herrera also asserts, again for the first time on appeal, that
his conviction on count one should be reversed due to the variance
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between the charge and the evidence presented at trial. Again, we
review only for plain error. A defendant’s substantial rights are
affected if the defendant is surprised at trial or placed in risk
of double jeopardy. United States v. Ramirez, 145 F.3d 345, 351
(5th Cir.), cert. denied, 525 U.S. 1046 (1998).
Herrera claims he was surprised at trial because he assumed
count one alleged he was not licensed by the Western District of
Texas. The record reveals otherwise. The Government filed an
advisory memorandum that recited count one of the information, and
identified Salinas as the party unauthorized to practice in federal
court. A copy of the memorandum was mailed to Herrera. Because
Herrera received sufficient notice of the offense alleged in count
one and failed to establish a double jeopardy violation, his
substantial rights were not violated. Again, there was no plain
error.
AFFIRMED
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