Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused)
In United States v. Paul, No. 14-0119/AF (CAAFlog case page), CAAF is reviewing whether the Air Force CCA erred in taking judicial notice of a fact necessary to prove an element (that 3,4-methylenedioxymethamphetamine (“Ecstasy”) is a controlled substance), after the trial counsel failed to either present evidence to prove this fact at trial or ask the trial judge to take judicial notice. During the oral argument of Paul at CAAF, the Air Force appellate government counsel (the very tenacious Captain Neil) mounted a vigorous defense of the CCA’s ability to take such judicial notice in the face of significant skepticism from the bench.
But just a week after the oral argument in Paul, the Air Force JAG certified a case to CAAF with a rather entertaining issue statement:
No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED A MISCARRIAGE OF JUSTICE BY REACHING ITS ERRONEOUS FACTUAL INSUFFICIENCY CONCLUSION AND BY RELYING UPON FACTS NOT ESTABLISHED IN THE RECORD IN FINDING APPELLANT’S CONVICTION NOT FACTUALLY SUFFICIENT.
What could prompt such an emotional issue? Appellee got into an argument, and then he fired a single shot from his pistol into the air near his apartment complex. For this, Appellee was convicted of one specification of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life, in violation of Article 134. He was sentenced to confinement for 35 days, reduction to E-1, and a bad-conduct discharge. On review, the majority of a three-judge panel of the AFCCA determined that:
the Government failed to demonstrate that the appellant’s act of firing a single shot into the air was unsafe to human life in general. The Government’s evidence on this element rested almost entirely upon one witness’s testimony about the act itself along with an aerial photograph depicting that the appellant fired his shot in the midst of a multi-building apartment complex. Under the facts of this case, this is an insufficient basis to conclude that human life was endangered by the appellant’s actions.
United States v. Burns, No. S32084, slip op. at 4 (A.F.Ct.Crim.App. Dec. 18, 2013) (link to slip op.). The court found the conviction factually insufficient but it affirmed a conviction of the lesser-included offense of discharging a firearm through negligence. That offense does not carry with it the possibility of a punitive discharge. So, the CCA affirmed all of the sentence except the bad-conduct discharge.
Is this the miscarriage of justice warranting such a breathless certification to CAAF?
The certified issue also accuses the CCA of “relying upon facts not established in the record.” That accusation might have something to do with this conclusion of the CCA:
It may seem obvious that, as the Government claims on appeal, “What goes up must come down,” but there appears to be some scientific dispute as to whether bullets falling from the sky present any appreciable threat to human life. We pass no judgment on the scientific principles involved in falling bullets, but the idea that a bullet shot into the air presents a safety threat to human life is not so self-evident that the Government did not need to introduce any evidence on this point.
Slip op. at 5. A footnote adds:
For a study by a historical military firearms expert, see Julian S. Hatcher, HATCHER’S NOTEBOOK 510 (3d ed. 1962) (generally concluding that falling .30-caliber bullets do not attain sufficient velocity to break the skin).
Slip op. at 5 n.3. So the CCA consulted the outside-the-record Hatcher’s Notebook to guide its deliberations on the dangers of falling bullets. The dangers – by the way – that the Government didn’t even try to prove at trial. Is this really worthy of a certification?
Well, if the CCA explained that it was taking judicial notice of the fact that a bullet shot straight up into the air is not an appreciable threat to human life as it falls, then presumably the Government would feel quite differently about this case.
Or maybe the Government would be satisfied by an explanation that the CCA was merely relying on its common sense and knowledge of the ways of the world to reach its conclusion about falling bullets. You know, just like the trial counsel invited the members to do in the Air Force case of United States v. Frey, No. 14-0005/AF (CAAFlog case page).