U.S. v. Herrera

Decision Date26 November 2002
Docket NumberNo. 00-51177.,00-51177.
Citation313 F.3d 882
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Louis M. Fischer, U.S. Dept. of Justice, Crim. Div. App. Section, Washington, DC, Mark Randolph Stelmach (argued), Joseph H. Gay, Jr., Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

George McCall Secrest, Jr. (argued), Bennett & Secrest, Houston, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Western District of Texas.

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 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 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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. denied, ___ U.S. ___, 123 S.Ct. 34, 154 L.Ed.2d 235 (2002); Daniel, 957 F.2d at 164.*

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".

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.

DeMOSS, Circuit Judge, dissenting in an opinion in which JERRY E. SMITH, Circuit Judge, joins:

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 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 re...

To continue reading

Request your trial
60 cases
  • U.S. v. Kimler, No. 02-3097.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 7 Julio 2003
    ...306 F.3d 356, 369 (6th Cir.2002); see United States v. Zidell, 323 F.3d 412, 421 (6th Cir.2003); United States v. Herrera, 313 F.3d 882, 884 (5th Cir.2002) (en banc) (per curiam); United States v. Belardo-Quinones, 71 F.3d 941, 945 (1st Cir.1995); United States v. Dandy, 998 F.2d 1344, 1356......
  • Folkes v. Nelsen
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 10 Mayo 2022
  • United States v. Dubin
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 3 Marzo 2022
    ...to other elements of that crime. See United States v. Huntsberry , 956 F.3d 270, 282 (5th Cir. 2020) ; United States v. Herrera , 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (per curiam).In this case, Dubin raised a timely sufficiency challenge under Rule 29. But that challenge was specific......
  • U.S. v. Baugham, 03-3157.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 2 Junio 2006
    ...289 F.3d 311, 318-19 (5th Cir.), vacated pending review en banc 300 F.3d 530 (5th Cir.), reinstated in relevant part, 313 F.3d 882, 885 (5th Cir.2002) (en banc); United States v. Lopez-Arce, 267 F.3d 775, 781 (8th Cir.2001); United States v. Crozier, 259 F.3d 503, 519 (6th Cir.2001); United......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT