United States v. Herrera

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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