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.