United States v. Herrera , 300 F.3d 530 ( 2002 )

REVISED MAY 2, 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
April 17, 2002
Before SMITH and DeMOSS, Circuit Judges, and DUPLANTIER,1 District
Judge.
DeMOSS, Circuit Judge:
In a superseding indictment returned on June 21, 2000,
Appellant Ismael Holguin Herrera (“Ismael”), along with Octavio
Herrera (“Octavio”), Sergio Juarez, Jesus Lucero (“Lucero”), and
four other individuals were charged in Count 1 with, from 1986 to
on or about December 9, 1999, conspiracy to distribute more than
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
846. Ismael and Lucero were charged in Count 14 for aiding and
abetting each other in the attempt to commit the offense of
possession with intent to distribute more than 500 grams of
cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1)
and 846. Finally, Ismael was charged in Count 16 with, on or about
December 9, 1999, knowingly possessing three specified firearms
while an unlawful “user” of a controlled substance, in violation of
18 U.S.C. § 922(g)(3).
Ismael was tried by himself and was convicted of the three
charged offenses by a jury. In a judgment filed on November 3,
2000, he was sentenced by the district court to imprisonment for 78
months on each count, to be served concurrently, supervised release
for four years as to Counts 1 and 14, and three years as to Count
16, to be served concurrently. Ismael now appeals his conviction.
BACKGROUND
The Appellant, Ismael Herrera, also known as “Ish,” was born
in Chihuahua, Mexico, in 1950, and later became a naturalized
citizen of the United States. In the early 1990s, Ismael began
working as a paralegal in the Odessa, Texas, office of the Herrera
Law Firm, operated by his nephew, Jesse Herrera. “Rick” Ignacio
Lopez was an undercover agent for Sergeant Valenzuela in Odessa,
Texas. Lopez told Valenzuela that he could make drug purchases
2
from “the Herrera family” and that he had knowledge that Octavio
Herrera2 was a cocaine dealer. He had gained this knowledge
through multiple interactions with Octavio, including an encounter
with Ismael (in which Ismael indicated that he believed Lopez to be
a “snitch”). These interactions took place in the early nineties.
In 1998, Lopez got reacquainted with Octavio and started “hanging
out with him” at Octavio’s Gardendale ranch3 and other places.
Late in 1998, Lopez asked Octavio if he could sell him some
cocaine. Octavio instead offered to sell Lopez marijuana,
apparently stating that “it was easier for him [Octavio] to control
the marijuana and that his Uncle Ish would have to get the
cocaine.” Subsequent to a sale of two pounds of marijuana, Lopez
was able to make purchases of cocaine from Octavio.
Over the next several months, from December 1998 to July 1999,
Lopez purchased cocaine from Octavio six times. Lopez also made
undercover purchases of three or four ounces of cocaine from Jesus
Lucero.4 In conjunction with these undercover operations, the
authorities also were intercepting the Herrera family’s telephone
2
Octavio Herrera (Jesse Herrera’s brother) is Ismael’s nephew
and Ismael has testified that he knew Octavio to be involved in the
sale of narcotics.
3
The Gardendale ranch was given to Octavio by Ismael in the
early nineties and, according to the government, is where many drug
sales took place.
4
Jesus Lucero is also Ismael’s nephew who worked with him at
the Herrera Law Firm as a “runner.” Ismael has also testified that
Lucero is a drug dealer.
3
conversations. In one conversation, intercepted on June 19, 1999,
Jesse Herrera instructed Octavio, “You must call Ish to see if he
has any Z’s.” Sergeant Mario Tinajero of the Texas Department of
Public Safety (“DPS”) testified that “Z’s” is a slang word
referring to ounces (short for “oz.’s”) and that the conversation
was in reference to cocaine. After this conversation, surveillance
revealed that Octavio went to Ismael’s residence. Another
conversation, intercepted on June 21, 1999, revealed Ismael telling
Octavio, “I’ll go with you and we can readily make a deal and we’ll
park it over here.” Sergeant Tinajero testified that the
conversation appeared, from his experience, to be in relation to a
drug deal.
Pursuant to these events, an undercover officer, Sergeant
Teofilo Garcia, Jr., was introduced to Lucero. Lopez introduced
Garcia as his cousin Thomas from out of town, and Garcia, acting in
his undercover capacity, negotiated with Lucero to purchase three
ounces of cocaine for $2,100 on July 2, 1999. This deal was
completed and a second negotiation took place at Milo’s Restaurant
in Odessa. This time, Garcia asked for one kilogram of cocaine.
Lucero informed Garcia that he could make the sale for $19,000.
Garcia told Lucero that this price was too high, however.
About the same time as the drug negotiations between Garcia
and Lucero, separate events were unfolding at the Herrera Law Firm.
Around the beginning of July (Ismael testified that it was
4
approximately ten days before July 11), a person identifying
himself as “Lalo” entered the Herrera Law Firm and introduced
himself to Ismael using Ismael’s drug-dealing brothers Raymond and
Manuel as references.5 Lalo told Ismael that he had a kilogram of
cocaine and he sought Ismael’s help in distributing it. Ismael
claims that he rejected this offer and had nothing more to do with
attempting to introduce Lalo to prospective dealers. However,
Lucero testified that Ismael gave him Lalo’s pager number and
informed him that Lalo was in Odessa from Mexico and that he wanted
to meet Lucero so that they could make some money.
Lucero paged Lalo and several days later received a call from
him. Lalo introduced himself as a friend of Raymond Herrera, and
Lucero suggested a meeting at Milo’s Restaurant. After speaking
with Lalo, Lucero testified that he immediately called Ismael.
This conversation was intercepted by authorities. The recording of
the conversation revealed that Ismael was not surprised that Lalo
called Lucero, and Ismael even reminded Lucero that his name was
Lalo. The conversation also revealed that Ismael encouraged Lucero
to undertake some sort of endeavor with Lalo, implying but never
explicitly mentioning drugs. Ismael also further advised Lucero on
how he should proceed. During this conversation, Lucero revealed
to Ismael that he had a guy coming over on Tuesday (meaning
undercover agent Garcia) and so he should have no problem moving
5
Ismael’s brothers, Raymond and Manuel Herrera, both reside in
Mexico and are both apparently drug dealers.
5
the drugs.6 In another intercepted telephone call on July 11,
1999, Lucero confirmed that he would meet Lalo at Milo’s
Restaurant. Lucero then called Ismael, who instructed Lucero to
come to his residence so that he could accompany him to the
meeting. Surveillance officers confirmed that Lucero went by
Ismael’s and that the two men then went to the restaurant together
in Ismael’s Toyota Four Runner. The meeting at Milo’s lasted
approximately 25 minutes. Lucero testified that, at the
restaurant, Ismael did most of the talking. Apparently Lalo
indicated that he had one kilogram of cocaine available but wanted
a partial payment up front of a couple of thousand dollars. Both
Lucero and Ismael indicated that they did not have the money but
asked Lalo to “front” them the cocaine because Lucero was “good for
it.” Lalo told them he would think about it. Ismael asserts,
however, that he never went along with the intention to make a drug
deal, but only to keep Lucero from consummating the deal.
One day later, in another intercepted phone conversation, Lalo
told Lucero that he had spent some time with Lucero’s uncle (though
he never says which uncle, Lucero testified that he believed he
meant Ismael), and a second meeting was arranged at the motel where
Lalo was staying. Surveillance revealed that Lucero went to the
motel and stayed approximately five minutes. Lucero testified that
he again attempted to have Lalo front the cocaine because he
6
This and the other taped conversations were all heard by the
jury at Ismael’s trial.
6
believed that he could sell the whole kilogram to undercover agent
Garcia. Lalo backed out, however, and left town without providing
any cocaine to Lucero.
On July 13, 1999, Lucero met with undercover agent Garcia
again at Milo’s Restaurant. Garcia purchased three ounces of
cocaine from Lucero and was told by Lucero that he would contact
him regarding the sale of one kilogram of cocaine. On July 16,
1999, in another intercepted phone conversation, Lucero spoke to
Ismael complaining that Sergio Juarez would not “front” Lucero a
kilogram of cocaine. Sergio Juarez was Octavio’s and Lucero’s
supplier of cocaine, and Ismael testified at trial that he knew
that Juarez was their supplier. Lucero asked Ismael to help, and
Ismael responded that he would see Juarez that coming Sunday at the
Gardendale ranch.
Testimony at trial, including Ismael’s own testimony,
demonstrates that he was a user of cocaine during the last ten
years. Ismael asserts, however, that he has not used cocaine since
August 1999. In December 1999, Ismael’s car was vacuumed and an
ion scan revealed trace amounts of cocaine particulates in the car;
there is no indication, however, how the particulates got in the
car or where in the car the particulates came from. Evidence also
showed that Ismael owned at least three firearms, which he
possessed for various lengths of time: a .22 caliber derringer,
which he had owned for at least two years; a Smith & Wesson .38
7
caliber revolver, which he had owned for about one year; and .380
Beretta 9mm semi-automatic pistol, which he had owned for four to
six months. It was stipulated to at trial that the guns were
functional and had traveled in interstate commerce.
DISCUSSION
Is the evidence sufficient to support the jury’s guilty verdict as
to Count 1, conspiracy to distribute more than 500 grams of
cocaine?
Ismael claims that the evidence presented at trial was
insufficient to support his conviction. When reviewing such a
claim, this Court considers “the evidence, all reasonable
inferences drawn from it and all credibility determinations in the
light most favorable to the Government, and affirm[s] if a
reasonable jury could find the offense’s essential elements beyond
a reasonable doubt.” United States v. Medina, 161 F.3d 867, 872
(5th Cir. 1998). This Court is not to determine whether the jury’s
decision was correct or not, but rather whether or not the jury’s
decision was rational. United States v. Miller, 146 F.3d 274, 280
(5th Cir. 1998) (citing United States v. Dean, 59 F.3d 1479, 1484
(5th Cir. 1995)). “We recognize that the jury was free to choose
among all reasonable constructions of the evidence, and we accept
all credibility choices that tend to support the jury’s verdict.”
Dean, 59 F.3d at 1484 (citation and quotations omitted). “However,
we must reverse a conviction if the evidence construed in favor of
8
the verdict gives equal or nearly equal circumstantial support to
a theory of guilt and a theory of innocence of the crime charged.”
Id. (quotations omitted).
To establish a conspiracy under 21 U.S.C. § 846, the
government must prove beyond a reasonable doubt: (1) that an
agreement existed between two or more persons to violate the
applicable narcotics law; (2) that each alleged conspirator knew of
the conspiracy and intended to join it; and (3) that each alleged
conspirator participated voluntarily in the conspiracy. Medina,161
F.3d at 872. The evidence to support a conspiracy conviction need
not show an explicit agreement; a tacit agreement is enough.
United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997).
The government can prove the existence of a conspiracy by
circumstantial evidence alone. Medina, 161 F.3d at 872. “As long
as it is not factually insubstantial or incredible, the
uncorroborated testimony of a co-conspirator, even one who has
chosen to cooperate with the government in exchange for non-
prosecution or leniency, may be constitutionally sufficient
evidence to convict.” Westbrook, 119 F.3d at 1190.
Ismael bases his argument on the fact that he believes that
the government failed to meet its burden by showing that he had
knowledge of a conspiracy. Ismael contends that the standard above
was not met and that the jury could not have come to its decision
beyond a reasonable doubt. Many of the cases that are cited by
9
Ismael in which the defendant’s conviction was reversed, however,
involved cases in which the only evidence against the defendant was
that he happened to be in the vicinity of the crime and had
associated with the other criminals. See, e.g., United States v.
Jackson, 700 F.2d 181, 185 (5th Cir. 1983); United States v.
DeSimone, 660 F.2d 532, 537 (5th Cir. 1981). In the present case,
the evidence clearly showed that Ismael had many conversations with
undertones of a deal that was to be made. He accompanied Lucero to
Milo’s and took part in discussions regarding “fronting” the
cocaine, and his co-conspirator, Lucero, testified that Ismael took
part in all of these events with the knowledge that cocaine was
involved. Ismael even admits that he went with Lucero to Milo’s
and that the purpose of Lucero’s going there was to consummate a
drug deal. Though Ismael argues that he never helped Lucero get in
contact with Lalo and that he only went along to disrupt the deal,
the jury was free to make a credibility determination as to whom it
believed. Obviously the jury was not swayed by Ismael’s testimony,
and there was ample evidence to support the jury’s verdict.
Is the evidence sufficient to support the jury’s guilty verdict as
to Count 14, attempt to possess more than 500 grams of cocaine with
intent to distribute?
The standard of review articulated above for a sufficiency of
the evidence claim is the same standard used here. “To be
convicted of attempt under 21 U.S.C. § 846, a defendant ‘must have
been acting with the kind of culpability otherwise required for the
10
commission of the crime which he is charged with attempting,’ and
‘must have engaged in conduct which constitutes a substantial step
toward commission of the crime’ i.e., conduct ‘strongly
corroborative of the firmness of the defendant’s criminal intent.’”
United States v. Stone, 960 F.2d 426, 433 (5th Cir. 1992) (quoting
United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)).
The crux of Ismael’s argument is that no substantial step was taken
toward the commission of the crime. Ismael contends this is
evidenced by the fact that no money ever changed hands between
Ismael, Lucero and Lalo and no drugs were ever received. This, of
course ignores the fact that the duo were attempting to get Lalo to
“front” them the cocaine, which would not require any money. It
also ignores the fact that had the conversation with Lalo “bor[n]
fruit,” the charge would not be attempt to possess with intent to
distribute but actual possession with intent to distribute. The
evidence before the jury was therefore sufficient to support the
verdict.
Did a fatal variance exist between the conspiracy alleged in the
indictment (Count 1) and the proof offered at trial?
To prevail on a material variance claim, a defendant must
prove (1) a variance between the indictment and the proof at trial,
and (2) that the variance affected the defendant’s substantial
rights. United States v. Morrow, 177 F.3d 272, 291 (5th Cir.
1999)(citing United States v. Morgan, 117 F.3d 849, 858 (5th Cir.
1997)). “Whether the evidence shows one or multiple conspiracies
11
is a question of fact for the jury.” Id. When counting the number
of conspiracies, this Court will consider (1) the existence of a
common goal; (2) the nature of the scheme; and (3) the overlapping
of the participants in the various dealings. Morgan, 117 F.3d at
858. This Court will affirm the jury’s finding that the Government
proved a single conspiracy unless the evidence and all reasonable
inferences, examined in the light most favorable to the Government,
would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt. Id. “A reversal based on variance
between the indictment and proof requires two findings: (1) that
the trial evidence actually proved multiple conspiracies, and (2)
that the variance affected a substantial right of the appellant.”
United States v. Sharpe, 193 F.3d 852, 866 (5th Cir. 1999) (citing
United States v. Franklin, 148 F.3d 451, 459 (5th Cir. 1998)).
Even if multiple conspiracies are proven at trial, however, if an
indictment alleges a single conspiracy count, and the government
proves the defendant’s involvement in at least one of them, then
there is no variance affecting the defendant’s substantial rights.
Medina, 161 F.3d at 872.
Ismael argues that the evidence is insufficient to prove a
conspiracy, and that the proof offered at trial was to multiple
conspiracies.7 As stated above, however, there was ample evidence
7
Though Ismael’s argument is not clear on this point, the
cases cited by Ismael all reference multiple conspiracies.
12
to support the jury’s verdict. Furthermore, even if the government
did prove the existence of multiple conspiracies, it also proved
Ismael’s involvement in at least one of them, i.e. the attempted
drug deal with Lalo and Lucero at Milo’s restaurant. Ismael,
therefore, can not show that his substantial rights were affected.
Is the evidence sufficient to support the jury’s guilty verdict as
to Count 16, use of a controlled substance and possession of a
firearm on or about December 9, 1999?
Finally, Ismael asserts that the evidence was insufficient to
support a guilty verdict as to Count 16 of his indictment alleging
possession of a firearm while being an unlawful user or addict of
controlled substances in violation of 18 U.S.C. § 922(g)(3). The
standard of review articulated above for a sufficiency of the
evidence claim is the same standard used here. Section 922(g)(3)
states:
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; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g) (emphasis added). Count 16 of the indictment
states:
That on or about December 9, 1999, in the Western
District of Texas, the Defendant, who is an
unlawful user of and addicted to a controlled
13
substance, did knowingly possess in and affecting
commerce firearms, to wit: a Smith & Wesson .38
caliber revolver; a Beretta 9mm semi-automatic
pistol; and a Davis .22 caliber derringer, which
had been shipped and transported in interstate
commerce.
The jury charge, as to this count, stated, in pertinent part, that
to find Ismael guilty of the offense, the jury had to be convinced
beyond a reasonable doubt:
That the defendant was an unlawful user of or
addicted to a controlled substance, as charged.
The jury must unanimously agree as to one or the
other, user or addict, or both, if the jury
believes the government has met its burden.
....
The time period involved in this count is a time
period in reasonable proximity to December 9, 1999.
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 have lost the power of self-control with
reference to his addiction.
The term “user” is defined in accordance with its
common and ordinary meaning.
Ismael argues that the government presented absolutely no evidence
at trial that Ismael is an addict. Ismael further avers that no
evidence was presented indicating that Ismael had used drugs after
August of 1999, and that it therefore failed to establish that he
had used drugs and possessed a firearm in a close proximity to the
time period alleged, i.e. December 9, 1999.
Before turning to the sufficiency of the evidence, however,
because the government and Herrera disagree as to what is required
14
by the statute, we must determine what meaning the phrase “is an
unlawful user of or addicted to any controlled substance” should be
given. In questions of statutory interpretation, we look to the
text, structure, and legislative history of the provision in
question, as well as to the determinations made by our sister
circuits. Stucky v. City of San Antonio, 260 F.3d 424, 440 (5th
Cir. 2001). Very few cases have dealt specifically with
interpreting 18 U.S.C. § 922(g)(3). In United States v. Edwards,
182 F.3d 333 (5th Cir. 1999), this Court was faced with a vagueness
challenge to § 922(g)(3). At the outset, this Court noted that
vagueness challenges that do not implicate First Amendment freedoms
are reviewed only in light of the facts of the case at hand. Id.
at 335. The Court then determined that, because the defendant was
found with marijuana and cocaine at his residence on the same night
they found a gun on the defendant, and due to the defendant’s own
admission that he smoked marijuana on a daily basis, the statute
was not vague as applied and the conviction would stand. Id. at
336. The Court in Edwards did not attempt to define the statute
more precisely, however, possibly because the defendant’s status as
an “unlawful user” or “addict” was without question. Other cases
involving the sufficiency of the evidence have similarly upheld
convictions when the circumstances made it clear that the defendant
was an “unlawful user” or “addict,” but these cases never attempted
to define the terms of the statute. See, e.g., United States v.
15
Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (noting that, while the
“exact reach of the statute is not easy to define . . . this is not
a borderline case”); United States v. McIntosh, 23 F.3d 1454, 1458-
59 (8th Cir. 1994) (upholding conviction when defendant had
admitted to addiction and also had controlled substances on him
when arrested with firearm). These cases have, however, narrowed
the statute’s scope somewhat, requiring that the government prove
a defendant was an “unlawful user” or addicted to a controlled
substance during the time he possessed firearms. McIntosh, 23 F.3d
at 1458. There are also some courts that have distinguished
between present and past drug use, but those cases may have been in
the context that the drug use occurred before gun possession. In
United States v. Reed, 114 F.3d 1067 (10th Cir. 1997), the Tenth
Circuit seemed to implicitly acknowledge that 922(g)(3) prohibits
possession of a weapon by one who “is” a user, not one who “was” a
user. Id. at 1069. Ultimately, however, the court concluded that
the district court’s decision to dismiss based on vagueness was
premature and remanded the case. Id. at 1071. More recently, the
Ninth Circuit stated that infrequent drug use from the distant past
could present a vagueness challenge to the “unlawful user”
language. United States v. Purdy, 264 F.3d 809, 812 (9th Cir.
2001) (citing United States v. Ocegueda, 564 F.2d 1363, 1366 (9th
Cir. 1977) which was based on 922(g)(3)’s predecessor statute of 18
U.S.C. § 922(h)(3)). The conviction in that case was also upheld
16
in light of evidence revealing the defendant’s drug use just two
days prior to a gun’s seizure in his home as well as testimony
indicating his continued drug use. Id. at 810-11. The court did
state, however, that “to sustain a conviction under § 922(g)(3),
the government must prove--as it did here--that the defendant took
drugs with regularity, over an extended period of time, and
contemporaneously with his purchase or possession of a firearm.”
Id. at 812-13. This does not mean that § 922(g)(3) requires that
the defendant possess a firearm while unlawfully using a controlled
substance, but only that the defendant is an unlawful user.
Jackson, 280 F.3d at 406. A review of the relevant case law
provides little further guidance on this issue than that provided
by Purdy and Jackson.
Having found little guidance in the relevant case law, we are
forced to look to the terms’ ordinary meanings. “When a word is
not defined by statute, we normally construe it in accord with its
ordinary or natural meaning.” Smith v. United States, 508 U.S.
223, 228 (1993). The term “is” is the present third-person
singular form of the word “be” or “to be.” Webster’s Third New
World Dictionary 1197 (1971). The term “unlawful” is defined by
Black’s Law Dictionary as an adjective meaning: 1) Not authorized
by law; illegal; 2) Criminally punishable; 3) Involving moral
turpitude. Other texts define the term “unlawful” similarly. No
federal statute specifically makes it illegal, however, to be a
17
“user” of drugs, though possession, distribution and transportation
are all made illegal.8 See generally 21 U.S.C. §§ 801 - 971
(covering drug abuse prevention and control). Likewise, no
statutes in the state of Texas, the state Herrera was convicted in,
criminalize the status of being a “user.” It may well be that
neither Congress nor the states can make the status of being a
“user,” by itself, illegal in light of Supreme Court precedent.9
Robinson v. State of Calif., 370 U.S. 660 (1962). Therefore, the
only definition of “unlawful” that might be applicable is the third
of “involving moral turpitude.” A “user” is defined as “one that
8
Section 801 of Title 21 seems to indicate this by stating:
The illegal importation, manufacture, distribution,
and possession and improper use of controlled
substances have a substantial and detrimental
effect on the health and general welfare of the
American people.
21 U.S.C. § 801 (2) (emphasis added). Section 801 does not mention
the illegal use of controlled substances, only the improper use of
controlled substances.
9
In United States v. Robinson, 370 U.S. 660 (1962), the
Supreme Court reviewed a California statute that criminalized the
status of being an addict. Id. at 660-61. Writing for the Court,
Justice Stewart, in referring to the treatment of addicts stated:
The impact that an addict has on a community causes
alarm and often leads to punitive measures. Those
measures are often justified when they relate to
acts of transgression. But I do not see how under
our system being an addict can be punished as a
crime. If addicts can be punished for their
addiction, then the insane also can be punished for
their insanity.
Id. at 674. The Court concluded that because the statute was aimed
at penalizing a sickness rather than at providing medical care for
it, it could not withstand a challenge under the Eight Amendment.
Id. at 678.
18
uses; specif.: a person who uses alcoholic beverages or
narcotics.”10 Webster’s Third New World Dictionary 2524 (1971).
Finally, an addict is defined by the Controlled Substances Act as
being “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 have lost the
power of self-control with reference to his addiction.”11 21 U.S.C.
§ 802 (1).
The case law and the common and ordinary meaning of the terms
used in the statute, therefore, still give us little guidance.
From Purdy and the common use of the word “is,” it seems clear that
the statute requires a contemporaneous possession of firearms with
the status of being an “unlawful user” or “addict” of controlled
substances. The term “addict” is adequately defined in the
Controlled Substances Act so as to give clear guidance as to the
meaning of that term. The words “unlawful user” are not as clear.
The common and ordinary use of the word “user” would seem to mean
anyone who uses narcotics. Had Congress chosen to insert only that
word, then the outcome of this exercise in statutory construction
might end right there. Congress chose to modify the word “user”
10
At trial, the government suggested giving the term “user” its
common and ordinary meaning. The trial court appears to have
adopted the government’s suggestion.
11
This was the definition for “addict” that the trial court
chose to use in its jury charge.
19
with the word “unlawful,” however, and so we must examine what is
an “unlawful user.” As stated above, being a “user” is not by
itself illegal under any federal or state statute. Congress could
not have used the words “unlawful user” to refer to conduct
prohibited by statute. We turn therefore to the legislative
history of § 922 for guidance. “Where, as here, the resolution of
a question of federal law turns on a statute and the intention of
Congress, we look first to the statutory language and then to the
legislative history if the statutory language is unclear.” Toibb
v. Radloff, 501 U.S. 157, 162 (1991) (quoting Blum v. Stenson, 465
U.S. 886, 896 (1984)).
Section 922's predecessor was passed in 1968, but originally
did not contain any provision regarding drug use. S. Rep. No. 1097
(1968), reprinted in 1968 U.S.C.C.A.N. 2205 (prohibiting felons,
fugitives, or those under indictment from shipping or receiving
firearms in § 922(e) and (f)). The “Purpose of Amendment” section
of the Senate Report stated that the purpose of the act was to “aid
in making it possible to keep firearms out of the hands of those
not legally entitled to possess them because of age, criminal
background, or incompetency.” Id. at 2213; see also Huddleston v.
United States, 415 U.S. 814, 824 (1974). Later that same year, the
House amended § 922 by adding 922(g). Gun Control Act of 1968,
Pub.L. 90-618. The “Section-by-Section Analysis” of the House
Report stated:
20
This subsection originally made it unlawful for a
felon, fugitive, or one under indictment to receive
a firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
Under a committee amendment anyone who is an
unlawful user of or addicted to marihuana, any
depressant or stimulant drug (as defined in sec.
201(v) of the Federal Food, Drug and Cosmetic Act),
or a narcotic drug (as defined in sec. 4731(a) of
the Internal Revenue Code of 1954); or has been
adjudicated in any court as a mental defective or
has been committed under a court order to any
mental institution, also would be prohibited from
receiving a firearm or ammunition shipped in
interstate or foreign commerce.
H.R. Rep. No. 1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4421.
The Supreme Court has stated that “Congress’ intent in enacting
§§ 922(g) and (h) . . . was to keep firearms out of the hands of
presumptively risky people.” Dickerson v. New Banner Instit.,
Inc., 460 U.S. 103, 113 n.6 (1983). The Court also stated that
“Congress sought to rule broadly -- to keep guns out of the hands
of those who have demonstrated that they may not be trusted to
possess a firearm without becoming a threat to society.” Id. at
112 (internal quotations and citations omitted). More recently,
the Second Circuit noted that the purpose of the Gun Control Act
was to prohibit the ownership of firearms by “mentally unstable” or
“irresponsible” persons. United States v. Waters, 23 F.3d 29, 35
(2d Cir. 1994). These general statements, however, add little to
the purposes stated by Congress other than a concern for keeping
guns out of the hands of dangerous individuals. As this Court can
find no more information as to why § 922(g)(3) was enacted, we are
21
left only with the vague statement in the Senate Report that
Congress intended to keep guns out of the hands of those who have
criminal backgrounds, are incompetent or are too young. These were
stated purposes for the entire section, however, and not just the
section pertaining to drug use.
When, after seizing everything from which aid can be derived,
the statute remains ambiguous, the rule of lenity may be applied.
Smith, 508 U.S. at 239 (citing United States v. Bass, 404 U.S. 336,
347 (1971)); Rewis v. United States, 401 U.S. 808, 812 (1971)
(“[A]mbiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.”). “If uncertainty remains after our
interpretation of the text and its underlying policies, the rule of
lenity requires a narrow construction of the law.” United States
v. Prestenbach, 230 F.3d 780, 784 n.23 (5th Cir. 2000); Adamo
Wrecking Co. v. United States, 434 U.S. 275, 284-285 (1978)
(“[W]here there is ambiguity in a criminal statute, doubts are
resolved in favor of the defendant.”). Though this Court reserves
lenity only for those situations in which “a reasonable doubt
persists about a statute’s intended scope even after resort to the
language and structure, legislative history, and motivating
policies of the statute,” Moskal v. United States, 498 U.S. 103,
108 (1990) (quotations omitted), we believe that this is just such
an occasion.
22
Giving the term a narrow construction, we hold that an
“unlawful user” is one who uses narcotics so frequently and in such
quantities as to lose the power of self control and thereby pose a
danger to the public morals, health, safety, or welfare. In other
words, an “unlawful user” is someone whose use of narcotics falls
just short of addiction, as that term is defined by the Controlled
Substances Act. This reading of the term is consistent with the
language of the legislative history as well as holdings of our
sister circuits.12 See, e.g. Purdy, 264 F.3d at 812; Jackson, 280
F.3d at 406.
Having thoroughly analyzed § 922(g)(3) and its meaning, we
turn to the evidence presented to the jury to determine if there
existed sufficient evidence on which to convict Ismael Herrera on
Count 16.
Initially, we note that, despite language in the indictment,
the government has not argued that the evidence in this case would
support a jury finding that Herrera was “addicted to” any
controlled substance at any time contemporaneously with his
possession of a firearm. Upon review of the evidence we find that
if the government had made such an argument, it would have been
tenuous at best. We review the evidence, therefore, to test its
sufficiency as to Herrera’s being an “unlawful user,” viewing such
12
Indeed, the government itself conceded at oral argument that
to be prosecuted under § 922(g)(3), the drug use would have to be
with regularity and over an extended period of time.
23
evidence in a light most favorable to the jury verdict. At trial,
Ismael testified that he began using marijuana after he returned
from the Vietnam War. Ismael also admitted to using cocaine during
the past ten years and also to possessing firearms in an
overlapping time period over the past two years. Therefore, there
is no question that Ismael was a user of drugs while he possessed
firearms. But as we stated above, it is not his status as a user
that must be established but his status as an “unlawful user.”
At trial, Jesus Lucero testified to the following: that he saw
Ismael use cocaine about twice a month; that Lucero would give
small amounts of cocaine to Ismael on occasion; that Ismael did not
use cocaine while at work; that Ismael used cocaine pretty
consistently up until he got arrested; that Ismael attempted to
quit using cocaine in August of 1999; that Ismael was unsuccessful
in this attempt to quit; that Lucero had not done cocaine with
Ismael since March of 1999; that Lucero had seen a gun in Ismael’s
car before, and; that Lucero had only seen Ismael use small amounts
of cocaine at his house or at parties. Aaron Herrera testified:
that he had seen Ismael use cocaine on a very few occasions at
parties at Jesse Herrera’s house; that Ismael had asked Aaron for
cocaine at work before; that though Aaron had not seen Ismael use
cocaine at work, he suspected he had used it at work; that in the
two-and-a-half years that he worked with Ismael, he had used
24
cocaine with him approximately three times, and; that he had seen
a gun in Ismael’s briefcase at work before.
Rick Aranda testified: that since he had started working with
Ismael in 1993, he had seen Ismael use cocaine once or twice at
work; that he had given Ismael cocaine at work at Ismael’s request;
that he had only seen Ismael use cocaine a total of two to four
times; that Jesse Herrera held parties approximately once a month
and that cocaine was used at these parties; that Ismael rarely
attended these parties; that about once every two weeks Ismael
would ask Aranda for cocaine; that he had been fired from the
Herrera Law Firm in November of 1998 and had not seen Ismael since
that time; that he had seen Ismael in possession of a firearm in
1993, and; that he believed Ismael was successful in his attempts
to quit using cocaine. Ismael Herrera testified: that he was an
occasional user of cocaine; that he mainly used cocaine on Fridays
and Saturdays and occasionally during the week but not every week
or weekend; that he would sometimes go a month or two without using
cocaine; that he had not used cocaine since August of 1999 when his
sister died; that he had owned a derringer for two years, a .38 for
one year, and a .380 Beretta for three or four months; that he
possessed these guns during a time period that he was using
cocaine; that he had a firearm in his briefcase at work; that he
had used cocaine at work; that in 1998, he would sometimes use as
much as one gram of cocaine every two or three weeks, and; that in
25
1999, previous to quitting, he would sometimes use as much as one
gram a week. The only other evidence presented to the jury as to
Ismael’s drug use was the cocaine particulates found from the ion
scan of the vacuumed contents of his car.
No testimony presented at trial indicates that Ismael posed a
danger to others with respect to his cocaine use or that Ismael was
a dangerous individual because of his use.13 The government
presented no evidence that Ismael’s use of cocaine caused him to
lose the power of self control and thereby pose a danger to the
public morals, health, safety, or welfare. At most, the evidence
can only establish that Ismael was a user of small amounts of
cocaine prior to August of 1999, with his frequency of use varying
from using every week to sometimes not at all for months at a time.
Though this Court does not condone his behavior, Ismael’s use can
not be said to rise to the level of being an “unlawful user” as we
have determined that Congress intended such term to mean. We
therefore conclude that the jury was presented with insufficient
evidence on which to convict Ismael Herrera of Count 16. As we
hold that the evidence is insufficient to establish that Ismael was
an “unlawful user,” we need not delve into whether or not the
13
As we have already noted, Congress’ intention was to keep
guns out of the hands of dangerous or incompetent individuals, but
the mere possession of firearms by a user of narcotics does not
automatically make that individual dangerous or incompetent. An
individual’s regular use of narcotics over an extended period of
time must first pose a danger to the public morals, health, safety
and welfare before his possession of firearms is prohibited.
26
government failed to establish that he had used drugs and possessed
a firearm in a close proximity to the time period alleged in the
indictment.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the jury was presented with sufficient evidence on
which to convict Ismael Herrera on Counts 1 and 14 and that no
fatal variance existed as to Count 1. As to Count 16, we hold that
there was insufficient evidence to convict Ismael Herrera because
the evidence presented to the jury failed to establish that he was
an “unlawful user.” We therefore AFFIRM Ismael’s conviction as to
Count 1 and 14 but REVERSE as to Count 16.
AFFIRMED IN PART, and REVERSED IN PART.
27
DUPLANTIER, District Judge, dissenting in part:
I concur in the majority opinion, except with respect to the
reversal of defendant’s conviction on Count 16. That count charges
defendant with knowingly possessing firearms while he was an
"unlawful user of and addicted to" a controlled substance, in
violation of 18 U.S.C. §922(g)(3). I disagree with the majority’s
conclusion that the phrase "unlawful user" renders the statute
ambiguous, thereby warranting the application of the rule of
lenity, and mandating a narrow construction of the phrase.
Citing defendant’s own testimony, the majority states that
"Ismael was a user of drugs while he possessed firearms," but
concludes that he was not an "unlawful user." Clearly,
defendant’s use of drugs was not a lawful use. One who "uses" a
controlled substance must necessarily also "possess" that
controlled substance. Title 21 U.S.C. §844 makes it "unlawful for
any person knowingly or intentionally to possess a controlled
substance" except under circumstances not relevant here. Thus,
any person who unlawfully possesses a controlled substance and
uses that substance is an "unlawful user" within the meaning of the
statute at issue. Congress apparently concluded that any
individual who unlawfully uses a controlled substance should not
contemporaneously possess a firearm, because such a user could
well have impaired judgment and pose a threat to society. This is
equally true of a first-time user as it is of one who uses drugs
28
frequently. In the statute Congress modified "user" by the
adjective "unlawful," so as not to include persons who lawfully use
drugs, e.g. by a physician’s prescription.
Based on defendant’s own testimony, there is sufficient
evidence to support the jury’s finding that defendant knowingly
possessed firearms while he was an "unlawful user" of a controlled
substance. The only remaining issue is whether there is sufficient
evidence to conclude that defendant unlawfully used drugs and
possessed a firearm in close proximity to the date alleged in the
indictment, i.e., "on or about December 9, 1999."
The government need not prove the exact date on which the
defendant violated the statute. "It is well established in this
Circuit that the alleged time of the offense is not an essential
element of the offense charged in the indictment." United States
v. Powers, 168 F.3d 741, 746 (5th Cir. (1999). "It is sufficient
if the evidence demonstrates a date reasonably near the date
alleged in the indictment." United States v. Bowman, 783 F.2d
1192, 1197 (5th Cir. 1986). "[W]ithin reasonable limits, proof of
any date before the return of the indictment and within the statute
of limitations is sufficient." United States v. Lokey, 945 F.2d
825, 832 (5th Cir. 1991) (internal citation and quotation omitted).
There is sufficient evidence to support a conclusion that defendant
possessed firearms while he unlawfully used a controlled substance
within several months of the date charged in the indictment, a time
29
period "reasonably near" the date alleged in the indictment. See
United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986)(nine
month variance between mailing date alleged in indictment and date
to which witness testified at trial not fatal).
I would affirm defendant’s conviction on Count 16.
30
DUPLANTIER, District Judge, dissenting in part:
I concur in the majority opinion, except with respect to the
reversal of defendant’s conviction on Count 16. That count charges
defendant with knowingly possessing firearms while he was an
"unlawful user of and addicted to" a controlled substance, in
violation of 18 U.S.C. §922(g)(3). I disagree with the majority’s
conclusion that the phrase "unlawful user" renders the statute
ambiguous, thereby warranting the application of the rule of
lenity, and mandating a narrow construction of the phrase.
Citing defendant’s own testimony, the majority states that
"Ismael was a user of drugs while he possessed firearms," but
concludes that he was not an "unlawful user." Clearly,
defendant’s use of drugs was not a lawful use. One who "uses" a
controlled substance must necessarily also "possess" that
controlled substance. Title 21 U.S.C. §844 makes it "unlawful for
any person knowingly or intentionally to possess a controlled
substance" except under circumstances not relevant here. Thus,
any person who unlawfully possesses a controlled substance and
uses that substance is an "unlawful user" within the meaning of the
statute at issue. Congress apparently concluded that any
individual who unlawfully uses a controlled substance should not
contemporaneously possess a firearm, because such a user could
well have impaired judgment and pose a threat to society. This is
equally true of a first-time user as it is of one who uses drugs
31
frequently. In the statute Congress modified "user" by the
adjective "unlawful," so as not to include persons who lawfully use
drugs, e.g. by a physician’s prescription.
Based on defendant’s own testimony, there is sufficient
evidence to support the jury’s finding that defendant knowingly
possessed firearms while he was an "unlawful user" of a controlled
substance. The only remaining issue is whether there is sufficient
evidence to conclude that defendant unlawfully used drugs and
possessed a firearm in close proximity to the date alleged in the
indictment, i.e., "on or about December 9, 1999."
The government need not prove the exact date on which the
defendant violated the statute. "It is well established in this
Circuit that the alleged time of the offense is not an essential
element of the offense charged in the indictment." United States
v. Powers, 168 F.3d 741, 746 (5th Cir. (1999). "It is sufficient
if the evidence demonstrates a date reasonably near the date
alleged in the indictment." United States v. Bowman, 783 F.2d
1192, 1197 (5th Cir. 1986). "[W]ithin reasonable limits, proof of
any date before the return of the indictment and within the statute
of limitations is sufficient." United States v. Lokey, 945 F.2d
825, 832 (5th Cir. 1991) (internal citation and quotation omitted).
There is sufficient evidence to support a conclusion that defendant
possessed firearms while he unlawfully used a controlled substance
within several months of the date charged in the indictment, a time
32
period "reasonably near" the date alleged in the indictment. See
United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986)(nine
month variance between mailing date alleged in indictment and date
to which witness testified at trial not fatal).
I would affirm defendant’s conviction on Count 16.
33