UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50356 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSE HERRERA,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (MO-98-CR-100-2)

March 30, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Following a bench trial, and pursuant to comprehensive

findings of fact and conclusions of law, Jesse Herrera was

convicted, pursuant to

, on two counts of contempt

of court: for aiding and abetting his associate’s unauthorized

practice of law (count one); and for wilfully disobeying a court

order by continuing to represent a client after being ordered not

to do so (count two). For the numerous issues raised, the primary

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. issue is whether the evidence was sufficient to support his

convictions. Several of the issues presented are being raised for

the first time on appeal and are, therefore, reviewed only for

plain error. Under this narrow standard of review, there must be

an error that is “clear” or “obvious”, and that affects

“substantial rights”; and, even then, we have discretion to correct

such forfeited error only if it affects the fairness, integrity, or

public reputation of judicial proceedings. E.g., United States v.

Cyprian,

(5th Cir. 1999), cert. denied,

(2000).

On 11 February 1998, Herrera filed a motion on behalf of the

Herrera Law Firm (the Firm) to replace Chavez as counsel for

Gonzalez in a federal criminal drug case (criminal case). On 24

February, the magistrate judge denied Herrera’s motion pending

Chavez moving to withdraw. Nevertheless, that same day, Salinas,

an associate in the Firm, and who was not licensed to practice in

federal court, filed an entry of appearance for Gonzalez.

On 2 March, Salinas and Ish Herrera, an investigator for the

Firm, asked James Hershberger to assist in the criminal case as

local counsel. The next day, Chavez moved to withdraw; but, the

magistrate judge denied the entry of appearance by Salinas, and

again denied Herrera’s previous motion for substitution. The basis

for the denial was concern that such representation presented a

conflict of interest.

2 Subsequently, Gonzalez sought restitution of attorneys’ fees

($10,000 retainer) he had paid the Firm. The district court

ordered Hershberger and the Firm to submit affidavits supporting

their fees. Salinas’ affidavit contained entries representing work

allegedly performed for Gonzalez in the criminal case after the

disqualification of Salinas, Herrera, and the Firm. A hearing was

held; Salinas testified: he assisted Hershberger as co-counsel;

the affidavit represented work done by Herrera, and was reviewed by

Herrera before it was filed; Salinas was not licensed in federal

court; and he did not seek admission pro haec vice.

As a result, a five-count criminal information was filed

against Herrera, the Firm, and Salinas. As noted, Herrera was

charged with two counts of contempt of court. Following the bench

trial, he was found guilty on both counts and was sentenced to

concurrent terms of three years’ probation for each count. As a

condition of probation, Herrera was ordered to pay a fine of

$15,000.

Herrera contends there was insufficient evidence to support

his convictions. As to count one, he asserts there was

insufficient evidence that he acted willfully or that he knew that

Salinas was not licensed in federal court and had not filed a

motion to practice pro haec vice. Regarding count two, he claims

the Government failed to prove he wilfully disobeyed the order

disqualifying the Firm from representing Gonzalez.

3 This case having been tried to the court, we review the

evidence to determine whether the district court’s findings are

supported by substantial evidence. United States v. Ybarra,

(5th Cir. 1995), cert. denied,

(1996).

The convictions will be upheld if the evidence is sufficient to

justify the conclusion that Herrera was guilty beyond a reasonable

doubt. Id. The evidence is viewed in the light most favorable to

the Government, with deference accorded reasonable inferences drawn

by the district court. Id.

Salinas, who was not admitted to practice in federal court,

filed a notice of appearance for Gonzalez on the same day the order

denying Herrera’s motion for substitution was entered. Shortly

thereafter, Salinas retained Hershberger to act as local counsel.

Also, an order was filed denying Salinas’ entry of appearance and

Herrera’s motion for substitution; and the magistrate judge

testified it is standard practice for the clerk’s office to notify

affected parties of its orders. Further, as discussed infra,

Salinas testified that some of the entries listed in his affidavit,

which was reviewed by Herrera, represented work performed by

Herrera. Hershberger’s affidavit indicated that Herrera was still

involved in the case as late as May 1998, long after the 2 March

order denying his appearance.

Based on this evidence, it was reasonable for the district

court to conclude: as both the Firm’s name partner and Salinas’

4 supervising attorney, Herrera was aware of Salinas’ activities;

and, by continuing to represent Gonzalez after being ordered not to

do so, Herrera acted wilfully. In short, sufficient evidence

supported Herrera’s convictions.

Concerning the evidence, and Salinas’ testimony at the fee

hearing, a transcript of the hearing was admitted without objection

at the bench trial. At that fee hearing, when asked whether

Herrera examined the fee affidavit before it was filed, Salinas

answered: “Yes, he did. To my knowledge, yes, he did”. Herrera

challenges the admission at trial of Salinas’ statement regarding

Herrera’s review of the fee affidavit; but, because Herrera failed

to so object at trial, we review only for plain error. FED. R.

EVID. 103; FED. R. CRIM. P. 52; e.g., United States v. Cantu,

(5th Cir.), cert. denied,

(1999). In a bench

trial, any error the district judge makes in admitting evidence is

harmless if there is other admissible evidence sufficient to

support the conviction. E.g., United States v. Cardenas,

(5th Cir. 1993), cert. denied,

(1994).

Even without the challenged statement, there was ample evidence to

support Herrera’s convictions. Accordingly, even assuming error,

it was harmless. Therefore, Herrera’s substantial rights were not

affected. There was no plain error.

Next, Herrera asserts the district court erred by relying upon

extra-record evidence to deny his post-trial motion for judgment of

5 acquittal, or in the alternative, a new trial. The alleged extra-

record facts were judicially noticed by the district court. In any

event, even without these facts, there was ample evidence to

support Herrera’s convictions.

Herrera contends his sentence to a fine and probation is

illegal, claiming § 401 permits a fine or imprisonment, but not

both. Because this issue is raised for the first time on appeal,

we again review only for plain error. FED. R. CRIM. P. 52; E.g.,

United States v. Guerrero,

(5th Cir. 1999).

Pursuant to § 401, a district court can “punish by fine or

imprisonment, at its discretion , ... contempt of its authority”.

(Emphasis added.) See, e.g. Campbell v. Keystone Aerial Surveys,

Inc.,

, 1005 n.11 (5th Cir. 1998). Our court has not

addressed whether a fine can be imposed as a condition of probation

in a § 401 case. In the light of

(b), any error

was not “clear” or “obvious”. See

(b) (allowing

district court to impose conditions of probation at its

discretion). Therefore, there was no plain error.

In addition, Herrera asserts that, as owner and sole partner

of the Firm, he was the Firm’s alter ego. Because the district

court imposed a $5,000 fine against the Firm, Herrera contends his

sentence of probation and $15,000 fine constitute double punishment

in violation of the Double Jeopardy Clause of the Fifth Amendment.

Again, because Herrera did not raise this issue in district court,

6 we review only for plain error. Herrera asserts that United States

v. Woods,

(5th Cir. 1991), cert. denied,

(1992), implies that punishing a defendant and his alter ego

corporation would violate double jeopardy. Because Herrera is

unable to establish an error, much less a plain error, this claim

also fails.

Herrera contends count one of the information failed to state

an offense and was, thus, jurisdictionally defective. To be

sufficient, an information must allege each material element of the

offense. United States v. Cabrera-Teran,

(5th

Cir. 1999). The elements of contempt under

(3) are:

a reasonably specific order; violation of the order; and the

willful intent to do so. Cooper v. Texaco, Inc.,

, 72

n.3 (5th Cir. 1992).

The district court found that Herrera violated its local rules

by aiding and abetting Salinas’ unauthorized practice of law, and,

thus, was guilty as to count one. Herrera’s contention that a

local rule is not an order is without merit. A local rule is the

equivalent of a standing order of the district court, Jones v.

Central Bank,

(5th Cir. 1998); and a standing

order is an order for § 401(3) purposes. Seymour v. United States,

(5th Cir. 1967).

Herrera also asserts, again for the first time on appeal, that

his conviction on count one should be reversed due to the variance

7 between the charge and the evidence presented at trial. Again, we

review only for plain error. A defendant’s substantial rights are

affected if the defendant is surprised at trial or placed in risk

of double jeopardy. United States v. Ramirez,

(5th Cir.), cert. denied,

(1998).

Herrera claims he was surprised at trial because he assumed

count one alleged he was not licensed by the Western District of

Texas. The record reveals otherwise. The Government filed an

advisory memorandum that recited count one of the information, and

identified Salinas as the party unauthorized to practice in federal

court. A copy of the memorandum was mailed to Herrera. Because

Herrera received sufficient notice of the offense alleged in count

one and failed to establish a double jeopardy violation, his

substantial rights were not violated. Again, there was no plain

error.

AFFIRMED

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