CAAFlog » September 2013 Term » United States v. Paul

CAAF decided the Air Force case of United States v. Paul, No. 14-0119/AF, 73 M.J. 274 (CAAFlog case page) (link to slip op.), on May 29, 2014. The court reverses the Air Force CCA’s decision that took judicial notice of the fact that 3,4-methylenedioxymethamphetamine (“Ecstasy”) is a controlled substance in order to affirm Appellant’s conviction for wrongful use of the drug in violation of Article 112a. CAAF concludes that “while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.” Slip op. at 15.

Chief Judge Baker writes for a unanimous court.

Appellant was tried by a special court-martial composed of a military judge alone and convicted, contrary to his pleas of not guilty, of multiple offenses including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”) on divers occasions. But the military judge who convicted Appellant did so despite the fact that the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. Nevertheless, the Air Force CCA affirmed the conviction by taking judicial notice of the fact that ecstasy is a controlled substance, finding it to be indisputable.

CAAF then granted review to determine the propriety of the CCA’s approach, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it took judicial notice of an element of a charge in violation of Garner v. Louisiana, 368 U.S. 157 (1961), and Military Rule of Evidence (MRE) 201(c).

Chief Judge Baker’s opinion begins by providing some context: The Government’s case included a civilian witness who testified that she saw “Appellant using ecstasy in his apartment on two separate occasions during the charged time period.” Slip op. at 3. Additionally, the Government introduced text messages obtained from Appellant’s cell phone that discussed using “e” and “rolling.” A footnote explains: “‘rolls’ and ‘rolling’ are common slang associated with ecstasy use.” Slip op. at 4 n.3. But while the parties focused their arguments to CAAF on the fact that the CCA took judicial notice of the scheduled nature of the substance, Chief Judge Baker’s opinion highlights a more foundational point:

Though the charge sheet stated that Appellant did “wrongfully use 3,4-methylenedioxymethamphetamine, a Schedule I controlled substance, commonly known as Ecstasy,” and in closing argument, the Government used a slide that read, “Accused used 3,4-methylenedioxymethamphetamine, commonly known as Ecstasy, Ex or E,” the Government did not enter anything into evidence indicating that Ecstasy is in fact 3,4-methylenedioxymethamphetamine.

Slip op. at 4 (emphasis added). Chief Judge Baker then explains just how wrong the military judge was in finding Appellant guilty of this offense:

The problem in the present case, as the CCA observed, is that the Government did not offer evidence at trial that Appellant used 3,4-methylenedioxymethamphetamine, that 3,4-methylenedioxymethamphetamine is a controlled substance, or that 3,4-methylenedioxymethamphetamine is commonly referred to as ecstasy. To the contrary, the Government offered legally sufficient evidence that Appellant used “ecstasy.” Ecstasy is neither a named prohibited substance under Article 112a, nor has it been listed on any schedule prescribed by the President. . . . In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.

As a result, no rational trier of fact could have found an essential element of the charged offense beyond a reasonable doubt, namely that Appellant used a Schedule I controlled substance.

Slip op. at 7-8. Chief Judge Baker then turns to “whether the CCA could take judicial notice of a fact necessary to establish an element of the offense that the Government failed to establish at trial.” Slip op. at 8. At the outset, CAAF clearly “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.” Slip op. at 10. In other words, CAAF says yes to appellate judicial notice. In this respect, I disagree with Phil’s post titled “No to appellate judicial notice?”

But there are two issues with what the CCA did in this case:

First, whether characterized as a question of fact or law, M.R.E. 201 in this case would require that the Appellant first have notice and an opportunity to be heard. . . . Second, and related, the CCA took judicial notice of an element of the offense.

Slip op. at 11.

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The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

Discussions about this case were had on CAAFLog with Zach’s, “Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused).”

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists.  “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.”  Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.”  Slip op. at 10.  The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.”  Slip op. at 11.  Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice.  Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams.  Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.

The end.

 

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Davis, No. 14-0029/AR (CAAFlog case page): Oral argument audio
United States v. Paul, No. 14-0119/AF (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Air Force case of United States v. Paul, No. 14-0119/AF (CAAFlog case page), on Tuesday, March 4, 2014. Appellant was convicted of multiple offenses, including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”), on divers occasions. But when he was tried by a special court-martial composed of a military judge alone, the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. To affirm the conviction, the AFCCA took judicial notice of the fact that ecstasy is a controlled substance, finding it to be indisputable. CAAF will review this action in the following issue:

Whether the Air Force Court of Criminal Appeals erred when it took judicial notice of an element of a charge in violation of Garner v. Louisiana, 368 U.S. 157 (1961), and Military Rule of Evidence (MRE) 201(c).

The granted issue cites Garner and M.R.E. 201(c) both of which address the procedural requirements to take judicial notice of an adjudicative fact. The Rule states:

(c) When discretionary. The military judge may take judicial notice, whether requested or not. The parties shall be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative fact essential to establishing an element of the case.

Garner involved convictions for disturbing the peace by the petitioners who sat quietly at a racially-segregated lunch counter. The Supreme Court found that no evidence was admitted that would support the convictions, and it concluded that, “There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything.” Garner, 368 M.J. at 173. The same is true of this case, as there was no discussion of ecstasy as a controlled substance during the trial (though a Government witness did briefly mention that Appellant was not prescribed any controlled substances).

The AFCCA also relied on United States v. Williams, 17 M.J. 207 (C.M.A. 1984), which involved a conviction for an assimilated statute that required that the offense (kidnapping) be committed in the special maritime and territorial jurisdiction of the United States. The jurisdictional layout of the base where the offense was committed was complicated and not resolved at trial. The CMA ordered a DuBay hearing, and then declined to take judicial notice of the necessary facts to establishe the jurisdictional element (after concluding that it could take such notice of “indisputable facts”), in part because of the complexity of the question and in part because:

in this case appellant exercised his statutory right to trial by court members, and that right must be protected. Therefore, all factual issues concerning guilt or innocence–including any issue of territorial jurisdiction–must be submitted to the members for determination. Even as to adjudicative facts which the judge judicially notices, the court-martial members have the final word, as they must be instructed under Mil.R.Evid. 201 (g).

Williams, 17 M.J. at 215. But this reason for the court’s caution in Williams is absent from Paul, as Appellant elected to be tried by a military judge alone. Finally, M.R.E. 202 (formerly 201A), specifically applies the procedural requirements of M.R.E. 201 to judicially noticed domestic law when “it is a fact that is of consequence to the determination of the action.” This is a military-specific rule.

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