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).

40 Responses to “Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused)”

  1. k fischer says:

    I had a case just like this back in ’06,.where during my 917 motion the judge said “You heard [the witness] testify what goes up must come down!”. Thankfully my client fired a fake handgun, was fully acquitted and despite the rumors in the Columbus, Georgia area, I did not whip out a fake handgun and shoot it in the long gone hallowed courtroom where LT Calley was tried….although that would have been pretty cool.

  2. RKincaid3 says:

    Query:  why would an appellate court find it necessary to take notice of anything outside of the record at all?  They should have just noted that the record was silent on the missing fact; that the government failed to prove a required element; and then they could have achieved the same result.  Oh, but tha we had a disciplined judiciary that knew how to wield the authority it actually has better than authority it doesn’t have.
     
    Both this and the other recent appellate judicial notice cases bother me. In both, the courts went out of their way to do much more than review the record of trial–they are trying too hard to have their auhority both heard and felt.  Not good.  Totally unnecessary.
     
    What is next–issuing judicial opinions without an actual case in controversy?

  3. anon says:

    “There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.”
    Unless I’m reading the opinion incorrectly, the government appellate counsel wished the AFCCA essentially to take judicial notice that there is an inherent danger to firing a weapon in the air because the bullet (if you are to believe Newton) will eventually come down . . . something not addressed at trial.  The AFCCA attempted to consider the government’s point by ascertaining whether the fact (not introduced at trial) “is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.”  By doing so, AFCCA needed to go outside the appellate record because this point was not argued at trial.  Now TJAG certifies because they argue the AFCCA went outside the appellate record.  Yossarian whistles respectfully . . . 

  4. RKincaid3 says:

    Anon:  great application of pop culture!  The problem is that even if one cede’s the point that the

    AFCCA attempted to consider the government’s point by ascertaining whether the fact (not introduced at trial) “is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.

    the analysis necessarily ended with “yes, what goes up must and will come down” as such cannot reasonably be doubted.  The problem is that the court went beyond that simple question and researched facts behind the dangers of the bullet’s impact with human flesh upon descent.  That conclusion is subject to much reasonable debate, apparently, as there are experts on both sides of the issue. 
     
    The court simply should have returned the case on the record it was presented.  It’s job is not to save the lower court proceedings from errors that both the TC and the MJ should have caught.  Insulating such mistakes from the natural and necessary consequences keeps the lesson hidden and unapplied to and by those who most need taught.

  5. k fischer says:

    I’m more concerned about the sentence modification.  So, Burns was facing 12 months and a BCD, but the AFCCA found him guilty of a lesser included that had a max punishment of Reduction to E-1 and 3 months in jail.  I’m glad the AFCCA agreed that Burns shouldn’t get the BCD (sarcasm font), but how can they say that he would have still served 35 days in jail when the max sentence was only 90 days and a reduction?  Seems they should have reduced the confinement, as well, or just ordered a rehearing on the sentence.  Does it sound like the AFCCA realized that they shot Burns such a solid that they decided he still should have been an E-1 and gone to jail?
     
    b/t/w/ I heard that the convening authority accepted Sinclair’s deal.
     
    And to lighten up anyone’s Monday, here is the 917 motion from the verbatim transcript of the full acquittal in US v. Banks:
     
     DC:  Sir, could I redo my 917 motion?
         MJ:  Sure.
         DC:  With regards to Specifications 1, 2 of Charge I as well as Specification 1 of Charge II, I request a motion for a—excuse me—a finding of Not Guilty on those specifications because the government has not offered any evidence that this handgun was real.  There is no slug; there’s no weapon.  Sergeant Anderson—excuse me, Sergeant Banks took the stand, testified that that is the weapon that he fired that night.—-
         MJ:  How about Sergeant Bowser?
         WIT: He said he wasn’t for sure.
         MJ:  He said “What goes up must come down.”  He thought in his opinion it was a real weapon as Sergeant Gmitter.
         DC:  Right, sir, but they—but they’re not for sure.  I mean we showed them the blank gun, and they said “it could have been; it might not have been.”  I mean it’s pure speculation.
         MJ:  They’re both MPs; they both took the stand and testified in their opinion they thought what was fired by Sergeant Banks was a real weapon.  Am I supposed to just ignore that evidence?
         DC:  In the context—Your Honor, I would ask you to put the evidence—-
         MJ:  Under the legal standard of Rule 917 is that not an inference of what was fired was a real weapon?
         DC:  Sir, it’s not a reasonable inference.
         MJ:  You’re kidding me.  That’s not a reasonable inference, when you got two or three witnesses who say they thought what was fired was a real weapon?
         DC:  Sir, in this context, in this case, specifically limited to this case, yes, it’s an unreasonable inference because that does look like a real handgun.  I understand that.  However, certainly there would be something to show that a round was fired, a round hit someplace.  There is no evidence whatsoever to show that.  All you have is three MPs that say on a dark night somebody fired a shot into the air and that’s it.
         MJ:  You expect someone who fires a shot in the air somehow the government is supposed to find that slug?
         DC:  Yes, sir.
         MJ:  They are?
         DC:  Yes, sir.
         MJ:  Okay.  If we go out here right now, Captain Fischer, and you take a 9 millimeter pistol in the middle of freaking Doughboy Field and you fire a round in the air do you think—what are the possibilities that we will find that slug?
         DC:  Sir, with the resources the government has with CID and MPI they should be able to find it.  They absolutely should be able to find it with a metal detector or something.  But in this case, Your Honor—-
         MJ:  Are you serious?
         DC:  Yes, sir, I am.
         MJ:  Okay, all right.
         DC:  And especially considering all of the testimony you heard about a replica handgun, even the victim himself said “I knew he had a replica handgun; he showed it to me; I’ve seen it before; I can identify it.”  And how often do we have an accused that takes the stand and testifies under oath “this is the weapon.”  And we had a demonstration; it sounds loud.
         MJ:  But that doesn’t mean that they—I mean they cannot believe him, just as I personally don’t believe Sergeant Anderson.  I believe he perjured himself here today, but—-
         DC:  Sir, that would be unreasonable for the panel to come back and—-
         MJ:  Well, it may be—you may not like it.  It may be not the outcome you wish, but that’s not the standard here.  The standard is has the government shown an inference of all the facts they need to prove all the elements in this case, and my legal opinion as the military judge in this case they have proved, at least they’ve shown an inference as to all of the facts for the elements, you know, without question.  There is no doubt in my mind that they’ve done that.  Now, they may not—the panel—based on the forcefulness of your argument and the facts that you may bring out to them they clearly may acquit Sergeant Banks of all these charges.  I mean you’ve got a defense in this case it seems to me, but I’m not going to dismiss these charges based on the fact that the government couldn’t find a slug.  I mean—-
         DC:  Your Honor, I guess what it comes down to is—-
         MJ:  I mean you’ve got to be kidding me, right.
         DC:  No, Your Honor.  All the government has is a loud bang.
         MJ:  Look, you’re making a final argument to me.  I’m not the fact finder in this case; I’m the military judge.
         DC:  Yes, sir.
         MJ:  [Pointing to the jury box.]  That’s who you need to make the big bang argument to, not me, all right?
         DC:  Yes, sir.
         MJ:  Okay.  Look, one thing I do not want the government to do though—yes, you got something? [looking at defense counsel who is still standing]
         DC:  No, I’m going to sit down.
       MJ:  Good[.]

  6. Cloudesley Shovell says:

    So, k fischer, do you refer to US v Banks as your “Big Bang Theory” case?
     
    And you should get this part printed up, framed, and hang it on your wall.  I’m still laughing.
    DC:  No, I’m going to sit down.    MJ:  Good[.]

  7. ResIpsaLoquitur says:

    Maybe Trial Counsel should have asked for judicial notice of the Mythbusters: http://mythbustersresults.com/episode50
    I think maybe it would have been a cleaner argument to argue that even if there were a possibility of lethal injury from a bullet fired up, trial counsel hadn’t proven the statistical likelihood that a descending bullet would kill someone.  I imagine that there’s a risk anytime you fire a bullet that you might hit a person.  Maybe you could get a weird ricochet in a firing range.  Maybe you’re deer hunting and the object you’re shooting at isn’t actually a deer, but a person carrying a deer.  (I’ve seen video of this–with enough cover, a person with a deer over their shoulders can look surprisingly like a deer.)  
    So I’d have argued something like “The odds of a bullet fired up actually hitting someone may be so remote as to not be “under circumstances to endanger life,” any more than the odds of getting in a car.

  8. Dwight Sullivan says:

    Contrary to some of the positions advanced above, there is nothing either unusual or improper about an appellate court’s observation that a particular publication not included in the record below provides an example of a point being discussed.  It would be difficult to review a few consecutive cases in United States Reports without finding a citation to some study or article that was not part of the record below.  Two of my law school professors published an important article arguing that courts should treat social science studies in a manner similar to the way they use judicial precedent.  John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986).  But one need not going nearly so far to reject the notion that citing a study that wasn’t part of the record as an example of why a particular matter isn’t uncontroverted reveals an undisciplined judiciary wielding authority it doesn’t have.  It is also important to note that unlike most appellate courts, Courts of Criminal Appeals do have factfinding authority.  Whether those courts can use that factfinding authority to find proof of an element not presented below is a different legal issue than whether they can cite a study not included in the record below (I’m assuming). 
    Judge Weber, who authored the Burns opinion, is a fine attorney and fine appellate judge.  While relatively new to the Air Force Court, he has already authored an impressive body of case law.  Ironcially enough, as an Air Force appellate government counsel, he successfully defended CAAF’s jurisdiction to reverse a CCA’s exercise of its power to set aside findings on grounds other than legal error in United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).  (I was the counsel on the losing end of that stick.) 

  9. Tami says:

    “[F]reaking Doughboy field….”
     
    I LOVE IT!  Who was the MJ?
     
     MJ: Okay. If we go out here right now, Captain Fischer, and you take a 9 millimeter pistol in the middle of freaking Doughboy Field and you fire a round in the air do you think—what are the possibilities that we will find that slug?
     
    KFischer, if you had brought up that the MJ was encouraging you to commit a crime, you might have won your 917 motion!  :)  A conversation such as:
     
    DC:  Your honor, are you suggesting I commit a crime to prove my client’s innocence?
     
    MJ:  No.
     
    DC:  So to clarify, if I go out right now to the middle of freaking Doughboy Field and fire a 9 mm round into the air, then that is not a crime?
     
    MJ:  [Probable silence].
     
    DC:  Then your Honor, I respectfully request you grant my RCM 917 motion.  Whether the alleged weapon was real or fake is irrelevant, as shooting a round in the air in the middle of Doughboy Field is not a crime.
     
    MJ:  Touche.

  10. Zachary D Spilman says:

    To add to Dwight’s point, the certified issue also does some violence to the English language:

    …BY RELYING UPON FACTS NOT ESTABLISHED IN THE RECORD IN FINDING APPELLANT’S CONVICTION NOT FACTUALLY SUFFICIENT.

    Relying on additional facts to find insufficient facts?

    The key holding of the majority is that:

    the Government chose to charge the appellant with willfully and wrongfully discharging a firearm under such circumstances as to endanger human life. That decision carries with it a burden of proof as to the element of endangerment to human life, as words have meaning. The Government then elected not to introduce any evidence that might satisfy this burden.

    Slip op. at 6. That’s a straightforward analysis of the sufficiency of the evidence, and it reveals that the majority’s discussion of the Government argument that “what goes up must come down,” and the objectively questionable danger of failing bullets, is dicta. 

    Assuming there’s nothing else to this case, it would be nice to see CAAF summarily affirm.

  11. Phil Cave says:

    Is this another example of a government lulled into not effectively prosecuting by an overly solicitous judicial system.  Another ineffectiveness of trial counsel case, for which the TC likely got a positive bullet on their OPR?  See United States v. Hornback. for how solicitous of the government the trial and appellate courts may be perceived, not just to us, but to the public.
    The appellate process is designed to affirm convictions more than reverse, absent substantial error, etc., etc., etc.  This is a matter of wise judicial and social policy.  But, at some point is the prosecution so accustomed to winning, regardless of the way they prosecute the game that they forget to play?

  12. Zeke says:

    The government accusing its own courts of committing miscarriages of justice is . . . interesting.

  13. Christopher Mathews says:

    The government’s argument to the CCA — that the missing element of danger to human life is satisfied simply because it’s obvious that what goes up must come down (slip op. at 5) — would necessarily require the court to conclude that it’s equally obvious that a falling bullet could hurt someone.  As I read it, that’s essentially a request for judicial notice of an adjudicative fact “not subject to reasonable dispute” under the Rules.  Mil.R.Evid. 201(b).  The CCA could not honor the government’s request because the government did not provide sourcing “whose accuracy cannot reasonably be questioned” and the supposed fact is not one that is “generally known.”  The court evidently looked to see whether it could find a consensus on this point and concluded it could not. 
    Footnote 3 doesn’t appear to be anything more than the court’s aside explaining why it couldn’t get over the hurdle the government wanted.  Even better is the passage that immediately follows the footnote:  “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.”  Even if you struck the footnote from the opinion, the bottom line from the CCA is that the government just failed to carry its burden. 

  14. Anon says:

    Mr. Sullivan, I don’t dispute that the CCA can review studies not introduced at trial to resolve certain issues. . . My point is (if I have one) the flawed logic in advancing the position that common knowledge dictates that a fired weapon upward will endanger human life and then certifying the issue to CAAF when the CCA attempts (I agree in dicta) to resolve the issue of whether this constitutes common knowledge by considering studies that were not admitted at trial.  I know that there is (or should be) significant evaluation of the underlying legal issue prior to certification by TJAG and I question how this one got through that process.

  15. Dwight Sullivan says:

    Anon, yours wasn’t the position with which I took issue.  You raise a good point; in the Department of the Navy, the practice is to provide opposing counsel with an opportunity to comment on certification requests before consideration by the Judge Advocate General.  That’s a practice the other Services would benefit by emulating.

  16. Zeke says:

    [I]n the Department of the Navy, the practice is to provide opposing counsel with an opportunity to comment on certification requests before consideration by the Judge Advocate General.  That’s a practice the other Services would benefit by emulating.

    If the cert is for an Article 62 appeal, CAAFs rules [Rule 19(b)(1)] also require the cert petition to be accompanied by the government’s full initial brief and joint appendix.  In contrast, normal certs allow the government to submit its initial brief sometime later after cert has been filed.  I wonder if the purpose of special treatment for government Article 62 appeals is to make sure TJAG is fully briefed on the merits of the government’s case prior to bringing it before CAAF.  If so, then why not the same process for all certifications?  Should the gov’t brief it out, present the package to TJAG, and afford the defense an opportunity to respond prior to certification?  I wonder what sort of processes exist in the federal civilian jurisdiction to determine the propriety of the government pursue appeals or extraordinary writs, etc?  Are ours equivalent?  If not, why not?

  17. slyjackalope says:

    They might want to ask Shannon Smith “whether bullets falling from the sky present any appreciable threat to human life.”  Oh wait, they can’t because she’s dead.
    http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=2154&issue_id=82010
     

  18. Christopher Mathews says:

    In lieu of a seance, slyjack, the prosecution might consider presenting some evidence on the subject.  Just a thought.

  19. stewie says:

    Evidence that bullet was fired up into the air? What gun did it come from?
    But, as CM says, evidence…or a medium…something.

  20. slyjackalope says:

    Or, better yet, how about the court recognize that the prosecution did present at least some evidence that the accused engaged in inherently dangerous conduct by firing a pistol into the air in a populated area and the panel found him guilty of it.  The panel obviously took its responsibilities seriously in this case since the members acquitted the accused of the more serious charge.
    My point is common sense tells you that shooting a firearm up in the air in a populated area causes a threat to human life.  What does the prosecution have to do, call an expert witness to testify about something that the panel already knows?  Why don’t we call experts to testify that water’s wet, the sky is blue, there’s 24 hours in a day, etc?

  21. RKincaid3 says:

    Skyjackalope:   Ummm—in a word–YES!  Because one or two have died in the past from a similar action, and because some have also survived similar circumstances, the conclusion is disputed and not certain or definite.   As such, the government must put on evidence to support the conclusion, which is in fact the subject of dispute between reasonable people.  

  22. Zachary D Spilman says:

    Actually, slyjackalope, it seems that the CCA recognizes precisely the opposite:

    The Government then elected not to introduce any evidence that might satisfy this burden.

    Slip op. at 6 (emphasis added).

    You say:

    The panel obviously took its responsibilities seriously in this case since the members acquitted the accused of the more serious charge.

    Speculative nonsense. Moreover, he was acquitted of assault by pointing a loaded firearm after the Government declined the judge’s offer to instruct on assault by pointing an unloaded firearm. 

    You say: 

    My point is common sense tells you that shooting a firearm up in the air in a populated area causes a threat to human life.  

    This is exactly the problem in Frey, captured in my argument preview in these sentences:

    Like juries, court-martial panels are rightly reminded that their common sense belongs with them in the deliberation room. But common sense is used to evaluate legally competent evidence, not as a substitute for that evidence.

  23. Charlie Gittins says:

    I have been in Kuwait during Desert Storm when clowns were firing AK’s into the air all night and never heard of anyone being injured.  You can watch the news and see third-world douche bags firing AKs in the air all the time and I have never once read or heard about anyone being killed, injured or even hit in such circumstances.  I think the G needed actual evidence of dangerousness and they failed to present it.  They should lose.  The military appellate courts are far too willing to save incompetent or inexperienced prosecutors at the expense of actual justice and the rights of the accused to have proof of all elements beyond a reasonable doubt.  It is a problem that also finds some traction with trial judges, unwilling to let TCs fail.

  24. stewie says:

    Multiple people have died from drinking too much water.  Therefore, common sense tells us that drinking water causes a threat to human life.

  25. anon81 says:

    Interestingly enough, there are many studies on this. Here’s one discussing the lethality of celebratory gunfire: http://www.annalsthoracicsurgery.org/article/S0003-4975(06)00831-9/fulltext
    The article notes that following the Gulf War, 20 people died in Kuwait as a result of this practice.

  26. A.Firefly says:

    What rule/doctrine says a court cannot cite to a study that says bullets falling from the sky are often nonlethal, when the court says it can’t find the appellant’s particular bullet was dangerous to anyone because the Government didn’t give them anything?  The cited study doesn’t add or subtract facts from the record; it underscores the significance of the non-evidence.

  27. Christian Deichert says:

    Found this study last night that spells out bullet speeds and the physics of terminal velocity on falling bullets.  It was in small enough words that my non-scientific mind was able to grasp it.
     
    http://forensicoutreach.com/the-falling-bullet-myths-legends-and-terminal-velocity/
     
    I didn’t catch the Mythbusters episode on this, but they came back with the result that the “falling bullets kill” myth was busted and plausible and confirmed.  Busted in that they bounced a 9mm round traveling at terminal velocity off a pig’s head without breaking the skin, plausible in that they determined that bullets fired into the air do not necessarily come straight down (and so can travel faster than terminal velocity), and confirmed in that there are verified medical cases of deaths from celebratory gunfire.
     
    http://kwc.org/mythbusters/2006/04/episode_50_bullets_fired_up_vo.html
     
    And that’s all the science my grey matter can take for today.  Back to something easier, like post-trial processing…

  28. stewie says:

    I assume it’s all about the angle.  Straight-up and down means the only velocity is terminal velocity.  A different angle means you add on some portion of velocity from the round itself, smaller angle = greater velocity (and probably shorter distance before impacting something).
     
    A complicated way of saying you need more than simply saying “he shot it in the air” to get to “unsafe to human life.”

  29. slyjackalope says:

    Under the same reasoning some individuals commenting on this blog seem to be using, why wasn’t the prosecution required to call an expert witness or present some other evidence in the Potter case (or any of the cases cited in Potter)?  Although the facts in Potter and those other cases are admittedly more egregious, the simple fact remains that in each one of them not one shred of direct evidence was presented that anyone actually faced any danger from the firearm being discharged.
     
    In Burns, the court said that “the Government produced no evidence to demonstrate that the lone gunshot into the air caused residents to experience any risk to life.”  The court reasoned, “This may be unnecessary in cases where a servicemember fires toward a building or a car, as the danger to human life in such situations may be self-evident.”  The court held, “Where the shot was aimed in the air, however, some evidence was necessary to demonstrate a risk to human life.”
     
    Why isn’t it likewise self-evident that a shot fired into the air in a populated area has just as much potential for harming someone as firing rounds through a door into a room where no one is present?
     
    The panel in the Burns case was entitled to draw a reasonable inference based on common sense that had any person been present within the trajectory of the round fired (either on the way up or the way down), that person could have been harmed.  It’s ridiculous for the court to say that the prosecution presented no evidence.  The evidence presented in the Burns case was of the same nature presented in Potter; the accused willfully discharged a firearm with no legal justification or excuse in an area where at least one person could have been present within the trajectory of the round fired.
     
    Even in the portion of Hatcher’s Notebook cited by the court, on average a .30 caliber bullet fired straight up into the air will come back down at approximately 300 feet per second.  In this case, the accused fired a 380 round into God knows which direction in the air.  Does anyone want a 95 grain piece of copper and lead coming out of the sky at 300 fps toward (giving a worst case scenario) a baby’s eye or temple.  In the Potter case, at the least the possible victim would have had the door (and possibly the door handle and anything else present in the room) to slow the bullet down.  In the Burns case, the possible victim only had wind resistance and gravity on the way up (countered by acceleration caused by gravity on the way down).
     
    Furthermore, even if the prosecution had called an expert witness in the Burns case, what would the expert have testified to?  “I have no clue what angle the round was fired at (since it was never recovered), so all I can do is guess whether there was sufficient velocity on the way down to harm anyone.  It’s possible it could have harmed someone, and it’s also possible it couldn’t have harmed someone.”
     

  30. Zachary D Spilman says:

    Ahhh United States v. Potter, 35 C.M.R. 243 (C.M.A. 1965). After Airman Potter poured a glass of milk onto Airman McDowell’s head, and Airman McDowell responded by hurling a glass at Potter, Airman Potter went and got his gun and:

    Unable to find McDowell in the mess hall, accused, accompanied by Airman Carrethers, then proceeded to his intended victim’s barracks. There, he made several unsuccessful attempts to enter McDowell’s room and, finally, with Carrethers standing near him, fired five shots through its door. All the missiles passed completely through the portal, four eventually coming to rest in the room, and the fifth passing through the chamber’s screened window in the direction of a vehicular parking lot behind the barracks. It is these shots which form the basis for accused’s conviction of willful discharge of a firearm in specification 2 of the Charge.

    Potter, 35 C.M.R. at 244. About this the Court of Military Appeals observed:

    Military barracks are not to be converted into unofficial ranges and their inhabitants required to undergo the risk of falling victim to stray bullets unless actual risk is shown. The correct standard is, as alleged and proven here, “under circumstances such as to endanger human life,” that is, not that such life was in fact endangered, but that, from the circumstances surrounding the wrongful discharge of the weapon, it may be fairly inferred that the act was unsafe to human life in general.

    Id. at 245-46.

    If Potter is what motivated the certifications of Burns, an oral argument at CAAF would be quite the spectacle.

  31. A.Firefly says:

    I see the relevance of Potter:  Just like people ordinarily live in a barracks room, they ordinarily live outside somewhere up in the air.

  32. Mike Berens says:

    Deichert…you wildman!

  33. Christopher Mathews says:

    Furthermore, even if the prosecution had called an expert witness in the Burns case, what would the expert have testified to?  “I have no clue what angle the round was fired at (since it was never recovered), so all I can do is guess whether there was sufficient velocity on the way down to harm anyone.  It’s possible it could have harmed someone, and it’s also possible it couldn’t have harmed someone.”
    So the only proper course of action for the CCA was to take judicial notice of an adjudicative fact that even a prosecution expert would have sworn was uncertain.  
    Wait, what?

  34. slyjackalope says:

    Christopher Mathews:  How could you come to that conclusion based off of what I posted?  Did I say anything about taking judicial notice of any fact?  Was judicial notice even an issue raised by anyone at trial?
     
    Rather, what I posted was that the evidence presented was sufficient for the panel to reasonably infer based on common sense that a bullet falling from the sky has the potential to harm someone.  Panels are allowed (and expected) to make conclusions regarding whether facts have been sufficiently proven.  Appellate courts are expected to give deference to the panel’s factual determinations regarding whether the elements of the offense have been proven beyond a reasonable doubt unless no reasonable factfinder could have concluded such based on the evidence presented.
     
    Regarding my description of possible expert testimony, that was for the purpose of showing expert testimony likely would not have been helpful in this case due to “[in]sufficient facts or data….”  That does not mean that insufficient evidence was presented at trial for the panel to have convicted the accused, but merely that the evidence presented wasn’t the type an expert could have helped them understand in this case.  Expert help wasn’t necessary anyway.
     
    All the prosecution was required to prove regarding this issue was a “reasonable potentiality for harm to human beings in general….”  The court in Burns cited the correct standard, but failed to recognize that the panel properly applied it.
     

  35. Zachary D Spilman says:

    Appellate courts are expected to give deference to the panel’s factual determinations regarding whether the elements of the offense have been proven beyond a reasonable doubt unless no reasonable factfinder could have concluded such based on the evidence presented.

    That’s the test for legal sufficiency. The CCA resolved this case on factual sufficiency grounds, where it stepped into the shoes of the finder of fact and took “a fresh, impartial look at the evidence, applying neither a presumption of innocence nor a presumption of guilt to make our own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” Slip op. at 2 (marks and citations omitted).

  36. Anon says:

    I am hoping that in this case justice is upheld. It seems to me as if the 3rd specification of this charge was not met. That is the government’s burden to carry and they did not do so. Regardless of wether it is “common sense” that a falling bullet can injure someone, it is in fact still their obligation to prove that beyond a resonable doubt. Reasonable doubt is not “common sense” as far as I am concerned. Things like this set a presedence for the government to be able to enter a case, mearly state facts and get a conviction. They did not meet their burden. Potter fired into a possibly occupied barracks in an attempt to hurt someone. It seems to me as if Burns fired into the air after an argument with no intent on hurting anyone. The last time I check no human life occupies the sky. Again, common sense and beyond a reasonable doubt are not the same and the government is basically saying that here. THis is negligence, not endangerment to human life.

  37. Christopher Mathews says:

    I think, slyjack, that the problem here may be that you misapprehend the role of this particular appellate court.  The service courts of criminal appeals are not “expected to give deference” to the trial court’s findings.  They can affirm only the findings of guilt that they determine to be “correct in law and fact.”  To do so, they are perfectly entitled to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,” while allowing for the fact that the trial court saw and heard the witnesses and the CCA did not.  Article 66(c).   Here, the CCA simply concluded the evidence at trial wasn’t enough to convince them beyond a reasonable doubt that the discharge of the weapon was under the circumstances “unsafe to human life in general.” 
    Although the CCA agreed with the government position that whatever goes up must come down, it declined to judicially notice that whatever comes down can kill you.  Things fall out of the sky all the time without killing people, as my friends in the snow belt can attest.  Sure, bullets are different; so is hail.  The CCA wanted evidence on the lethality of the particular falling objects in question, and the government didn’t present any.  You may think the appellate court was wrong to be unconvinced, just as you might have thought that the court members would have been wrong to return a “not guilty” finding.  That’s okay; everyone is entitled to an opinion.  Some just have more legal consequence than others. 
    It will be interesting to see whether CAAF tells the CCA that Article 66 be damned, it should have been convinced of the appellant’s guilt.  I’ll be surprised if that’s what happens.

  38. Anon says:

    Chris you have worded what I cannot in legal terms. I couldn’t have put it any better. Especially, “It will be interesting to see whether CAAF tells the CCA that Article 66 be damned, it should have been convinced of the appellant’s guilt.”

  39. Anon says:

    What is alarming to me is that an Airman who hurt not one soul recieves this punishment but an adulterous sexual predator gets a reprimand and a pay reduction for 4 months. That is a complete and total outrage. The UCMJ is made to severely punish the enlisted but allow the higher ranking officers to do as they please.