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

(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

and

(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

(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,

(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,

(5th Cir. 1998) (citing United States v. Dean,

(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,

(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.”

(quotations omitted).

To establish a conspiracy under

, 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,

. The evidence to support a conspiracy conviction need

not show an explicit agreement; a tacit agreement is enough.

United States v. Westbrook,

(5th Cir. 1997).

The government can prove the existence of a conspiracy by

circumstantial evidence alone. Medina,

. “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,

.

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,

(5th Cir. 1983); United States v.

DeSimone,

(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

, 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,

(5th Cir. 1992) (quoting

United States v. Mandujano,

(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,

(5th Cir.

1999)(citing United States v. Morgan,

(5th Cir.

1997)). “Whether the evidence shows one or multiple conspiracies

11 is a question of fact for the jury.”

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,

. 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.

“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,

(5th Cir. 1999) (citing

United States v. Franklin,

(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,

.

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

(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.

(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,

(5th

Cir. 2001). Very few cases have dealt specifically with

interpreting

(g)(3). In United States v. Edwards,

(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,

(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,

, 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,

. 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,

(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.

. Ultimately, however, the court concluded that

the district court’s decision to dismiss based on vagueness was

premature and remanded the case.

. 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,

(9th Cir.

2001) (citing United States v. Ocegueda,

(9th

Cir. 1977) which was based on 922(g)(3)’s predecessor statute of

(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.

. 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,

. 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,

(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

- 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.,

(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.

(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,

(1962), the Supreme Court reviewed a California statute that criminalized the status of being an addict.

. 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.

. 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.

.

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

(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,

(1991) (quoting Blum v. Stenson,

(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,

(1974). Later that same year, the

House amended § 922 by adding 922(g). Gun Control Act of 1968,

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.,

, 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.”

(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,

(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,

(citing United States v. Bass,

(1971)); Rewis v. United States,

(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,

, 784 n.23 (5th Cir. 2000); Adamo

Wrecking Co. v. United States,

(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,

(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,

; Jackson,

.

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

(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

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,

(5th Cir. (1999). "It is sufficient

if the evidence demonstrates a date reasonably near the date

alleged in the indictment." United States v. Bowman,

(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,

(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,

(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

(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

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,

(5th Cir. (1999). "It is sufficient

if the evidence demonstrates a date reasonably near the date

alleged in the indictment." United States v. Bowman,

(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,

(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,

(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