Case Information
*1 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) *2 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 ,
Rehearing en banc was granted, limited to the reversed §
922(g)(3) conviction. Herrera ,
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 *3 failed in district court to move for judgment of acquittal (JA) on the issue at hand.
Herrera moved for a F ED . R. C RIM . 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 F ED . R. C RIM . 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
*4
the offense beyond a reasonable doubt”. United States v. Daniel ,
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 ,
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 ,
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
,
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 F ED . R. C RIM . 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.
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,
AFFIRMED . *7 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
*9
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 ,
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.
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.
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 *13 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
*14
Emerson ,
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 *15 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 *16 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 *17 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.
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.”
W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 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.’” B LACK ’ S L AW D ICTIONARY 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,
*19
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 ,
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.
g:\opin\00-51177.eb.dis-hrd.jes.wpd Final-11/25/02 Revised 12/16/02
Notes
[*] 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,
[**] 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."