                        UNITED STATES, Appellee

                                    v.

                       Charles W. PAUL, Airman
                      U.S. Air Force, Appellant

                              No. 14-0119

                        Crim. App. No. S32025

       United States Court of Appeals for the Armed Forces

                         Argued March 4, 2014

                         Decided May 29, 2014

BAKER, C.J., delivered the opinion of the Court in which
ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant: Captain Christopher James (argued); Major Zaven
T. Saroyan (on brief).

For Appellee: Captain Matthew J. Neil (argued); Colonel Don M.
Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R.
Bruce, Esq. (on brief)


Military Judge:   Jeffrey A. Ferguson



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Paul, No. 14-0119/AF

      Chief Judge BAKER delivered the opinion of the Court.

      Airman Charles W. Paul was convicted by a military judge,

contrary to his plea, of one specification of using ecstasy in

violation of Article 112a of the Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 912a (2012).1   The adjudged and

approved sentence included a bad-conduct discharge, five months

of confinement, and reduction to E-1.   Appellant argued before

the United States Air Force Court of Criminal Appeals (CCA) that

the evidence was legally insufficient to support his conviction

on the ecstasy charge.   The CCA affirmed, holding that a

reasonable factfinder could have found the essential elements

beyond a reasonable doubt.   United States v. Paul, No. ACM

S32025, 2013 CCA LEXIS 747, at *2, *10 (A.F. Ct. Crim. App. Aug.

23, 2013)   In doing so, the CCA took judicial notice of the fact

that ecstasy is a Schedule I controlled substance.   Paul, 2013

CCA LEXIS 747, at *10.

    We granted review on 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).

1
  Appellant was also charged with two specifications of violating
an order by smoking spice (Article 92, UCMJ, 10 U.S.C. § 892
(2012)); one specification of using marijuana (Article 112a,
UCMJ); and one specification of soliciting fellow servicemembers
to disobey a general order by smoking spice (Article 134, UCMJ,
10 U.S.C. § 934 (2012)). He pled guilty to smoking spice and
was convicted by the military judge, contrary to his pleas, of
the remaining charges.

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United States v. Paul, No. 14-0119/AF

        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.

                              BACKGROUND

        Appellant was charged with one specification of using 3,4-

methylenedioxymethamphetamine on diverse occasions.    The

specification read:

        In that AIRMAN CHARLES W. PAUL, United States Air
        Force, 355th Aircraft Maintenance Squadron, Davis-
        Monthan Air Force Base, Arizona, did, at or near
        Tucson, Arizona, on diverse occasions between on or
        about 1 June 2011 and on or about 31 July 2011,
        wrongfully use 3,4-methylenedioxymethamphetamine, a
        Schedule I controlled substance, commonly known as
        Ecstasy, Ex or E.

Appellant was tried before a military judge alone at Davis-

Monthan Air Force base in Arizona on January 4 and 5, 2012.      As

part of the prosecution’s case, a civilian witness, Holly Kern,

testified that she had seen Appellant using ecstasy in his

apartment on two separate occasions during the charged time

period.    Ms. Kern described the tablets, explained her role in

procuring them, and detailed the drug’s effects when she took

the same pills herself.    In addition, she testified to seeing

Appellant put the substance into his mouth under the belief that




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United States v. Paul, No. 14-0119/AF

it was ecstasy.    The Government also admitted into evidence

several text messages sent from Appellant’s phone2 stating:

       I’m gonna reward myself with some e tonight.

       Hey grab me 4 rolls3 when you get yours. . . . I’m
       being a designated driver tonight so I need some E.

       [We] are excited about rolling. . . . We aren’t gonna
       have any of my military friends over here for obvious
       reasons.

       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.4    The military judge granted the

Government’s motion to take judicial notice of a general order

prohibiting use, possession, distribution, or purchase of spice.

However, the military judge did not take judicial notice of

anything else.




2
  The messages were obtained by investigators through a
consensual search of Appellant’s phone.
3
  Ms. Kern testified that “rolls” and “rolling” are common slang
associated with ecstasy use.
4
    As discussed below, ecstasy is not listed in Schedule I.

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United States v. Paul, No. 14-0119/AF

     The military judge convicted Appellant of all charges,

including use of ecstasy.   Appellant appealed to the CCA,

arguing that the evidence was legally insufficient to support

the ecstasy conviction.   The CCA stated that “[t]he fact that

Ecstasy is a Schedule I controlled substance is an essential

element of the offense charged” and agreed that no evidence of

this fact was introduced at trial.   It rejected the notion that

the military judge did or was entitled to take judicial notice,

sub silentio, that ecstasy is a Schedule I controlled substance.

However, noting that “judicial notice in this case involves a

question of domestic law rather than an adjudicative fact,” and

that “there is no question that Ecstasy is a Schedule I

controlled substance under the laws of the United States,” the

CCA decided to take “the extraordinary step of judicially

noticing domestic law on appeal.”    The CCA determined that, had

the Government requested that the military judge take judicial

notice of this fact, the military judge would have done so.    The

CCA approved the findings and the sentence of the military

judge.

                            DISCUSSION

Legal Sufficiency

     Before ruling on the granted issue, we first address the

threshold question raised by Appellant before the CCA:    Was the



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United States v. Paul, No. 14-0119/AF

evidence presented at trial legally sufficient to support the

ecstasy conviction?

       The test for legal sufficiency is “‘whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’”    United States v.

Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).    Article 112a, UCMJ, has

two related elements:    (1) use of a controlled substance, that

is (2) wrongful.    The term “controlled substance” is defined in

Article 112(a), UCMJ, in three ways:    (1) by what is listed in

the text of the article, (2) through reference to a schedule as

prescribed by the President, and (3) through reference to

Schedules I through V of the Controlled Substances Act.5      As



5
    Specifically, Article 112a, UCMJ, provides:

       (a) Any person subject to this chapter who wrongfully
       uses, possesses, manufactures, distributes . . . a
       substance described in subsection (b) shall be
       punished as a court-martial may direct.

       (b) The substances referred to in subsection (a) are
       the following:

            (1) Opium, heroin, cocaine, amphetamine, lysergic
            acid diethylamide, methamphetamine,
            phencyclidine, barbituric acid, and marijuana and
            any compound or derivative of any such substance.

            (2) Any substance not specified in clause (1)
            that is listed on a schedule of controlled

                                  6
United States v. Paul, No. 14-0119/AF

stated in the specification, 3,4-methylenedioxymethamphetamine

is a Schedule I controlled substance.   The substance 3,4-

methylenedioxymethamphetamine is also commonly referred to as

ecstasy.

     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.

Schedule I does not list ecstasy by name, or link the term to

3,4-methylenedioxymethamphetamine.    See 21 C.F.R. § 1308.11

(2013).    Nowhere did the Government -- through expert testimony,

through stipulation on the part of Appellant, or through

requesting that the military judge take judicial notice --

establish that ecstasy and 3,4-methylenedioxymethamphetamine are

            substances prescribed by the President for the
            purposes of this article.

            (3) Any other substance not specified in clause
            (1) or contained on a list prescribed by the
            President under clause (2) that is listed in
            schedules I through V of section 202 of the
            Controlled Substances Act (21 U.S.C. 812).


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United States v. Paul, No. 14-0119/AF

the same thing.   Nor did the military judge indicate that he was

taking judicial notice of this on his own motion.   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.

Judicial Notice

     The question raised by the granted issue is 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.    This Court reviews questions of law de novo.   United

States v. Springer, 58 M.J. 164, 167 (C.A.A.F. 2003).

     Judicial notice is regulated by Military Rules of Evidence

(M.R.E.) 201 and 202:6

     Rule 201.    Judicial Notice of Adjudicative Facts

     (a) Scope. This rule governs judicial notice of an
     adjudicative fact only, not a legislative fact.




6
  Executive Order 13643, issued on May 15, 2013, contains the
current version of M.R.E. 201 and M.R.E. 202. Since the CCA
issued its decision on August 23, 2013, we apply this most
recent version. Exec. Order No. 13,643, 78 Fed. Reg. 29,561
(May 21, 2013).

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United States v. Paul, No. 14-0119/AF

     (b) Kinds of Facts that May Be Judicially Noticed: The
     military judge may judicially notice a fact that is not
     subject to reasonable dispute because it:

           (1) is generally known universally, locally, or
           in the area pertinent to the event; or

           (2) can be accurately and readily determined from
           sources whose accuracy cannot reasonably be questioned

     (c)   Taking Notice. The military judge:

           (1) may take judicial notice whether requested or not;
           or

           (2) must take judicial notice if a party requests it
           and the military judge is supplied with the necessary
           information.

           The military judge must inform the parties in open
           court when, without being requested, he or she takes
           judicial notice of an adjudicative fact essential to
           establishing an element of the case.

     (d) Timing. The military judge may take judicial notice at
     any stage of the proceeding.

     (e) Opportunity to Be Heard. On timely request, a party is
     entitled to be heard on the propriety of taking judicial
     notice and the nature of the fact to be noticed. If the
     military judge takes judicial notice before notifying a
     party, the party, on request, is still entitled to be
     heard.

     (f) Instructing the Members. The military judge must
     instruct the members that they may or may not accept the
     noticed fact as conclusive.

     Rule 202.   Judicial Notice of Law

     (a) Domestic Law. The military judge may take judicial
     notice of domestic law. If a domestic law is a fact that
     is of consequence to the determination of the action, the
     procedural requirements of Mil. R. Evid. 201 -- except Rule
     201(f) -- apply.



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United States v. Paul, No. 14-0119/AF

       As a threshold matter, we affirm that an appellate court

can take judicial notice of law and fact under certain

circumstances.    M.R.E. 201 mentions only the military judge when

outlining the proper procedure for taking judicial notice.

However, case law is well settled that both military and

civilian appellate courts may take judicial notice of

indisputable facts.    In Heller v. New York, for example, a case

concerning the seizure of film reels in an obscenity case, the

Supreme Court took judicial notice of the fact that such films

“may be compact, readily transported for exhibition in other

jurisdictions, easily destructible, and particularly susceptible

to alteration.”    413 U.S. 483, 493 (1973).   In addition, the

Notes of Advisory Committee on Rules for Fed. R. Evid. 201 state

that “judicial notice may be taken at any stage of the

proceedings, whether in the trial court or on appeal.”    Although

the M.R.E. does not contain a similar note, this Court has

consistently recognized the ability of appellate courts to take

judicial notice of indisputable facts.    In United States v.

Williams, for example, despite finding that the jurisdictional

questions at issue in the case were disputable, the Court stated

that “[w]e are convinced, however, that this Court is entitled

to take judicial notice of indisputable facts.”    17 M.J. 207,

214 (C.M.A. 1984).7

7
    See also United States v. Erickson:

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United States v. Paul, No. 14-0119/AF

     The problem in this case is that the CCA took the

“extraordinary step” of taking judicial notice of an element not

proven by the Government.   The CCA justified this step, in part,

by noting that it was taking judicial notice of a question of

domestic law and not an adjudicative fact.   However, this

analysis fails for two reasons.    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.   On adjudicative facts this is always the case.   Id.

However, as M.R.E. 202 states, it is also the case “[i]f a

domestic law is a fact that is of consequence to the

determination of the action.”   Second, and related, the CCA took

judicial notice of an element of the offense.8




     Appellant has provided no information on appeal that would
     undermine the validity of his acknowledgement at trial as
     to the harmful effects of inhalation of nitrous oxide. On
     the contrary, we take judicial notice of the fact that a
     number of states have recognized the harmful effects by
     criminalizing inhalation of nitrous oxide.

61 M.J. 230, 233 (C.A.A.F. 2005).
8
  The issue before the CCA might have been framed as a question
of indisputable adjudicative fact: Are ecstasy and 3,4-
methylenedioxymethamphetamine the same substance? It might also
have been framed, as the CCA chose to interpret it, as a
question of domestic law: Is ecstasy a statutorily regulated
Schedule I controlled substance for the purposes of Article
112a, UCMJ?


                                  11
United States v. Paul, No. 14-0119/AF

     It is a fundamental principle of due process that in order

to prove its case, the government must present evidence at trial

supporting each element of the charged offenses beyond a

reasonable doubt.   In re Winship, 397 U.S. 358, 364 (1970).

Further, “[t]he review of findings -- of guilt or innocence --

[is] limited to the evidence presented at trial.”   United States

v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citation omitted).

“A fact essential to a finding of guilty must appear in the

evidence presented on the issue of guilt; it cannot be extracted

from evidence presented in other proceedings in the case.”

United States v. Boland, 1 M.J. 241, 242 (C.M.A. 1975).

     In Garner v. Louisiana, the Supreme Court made clear these

principles apply to the taking of judicial notice on appeal:

     To extend the doctrine of judicial notice to the length
     pressed by the respondent would require us to allow the
     prosecution to do through argument to this Court what it is
     required by due process to do at the trial, and would be
     “to turn the doctrine into a pretext for dispensing with a
     trial.” Furthermore, unless an accused is informed at the
     trial of the facts of which the court is taking judicial
     notice, not only does he not know upon what evidence he is
     being convicted, but, in addition, he is deprived of any
     opportunity to challenge the deductions drawn from such
     notice or to dispute the notoriety or truth of the facts
     allegedly relied upon.

368 U.S. 157, 173, (1961) (citation omitted).9   When judicial

notice of an element is taken outside the context of the trial


9
  The issue granted in this case references the CCA’s alleged
violation of the Supreme Court’s decision in Garner. However,
we do not find Garner on point for two reasons. First, Garner

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United States v. Paul, No. 14-0119/AF

itself, the defendant is denied his due process right to

confront or challenge an essential fact establishing an element,

whether or not the fact is indisputable.

     Thus, even if, as asserted by the CCA, “there is no

question that Ecstasy is a Schedule I controlled substance under

the laws of the United States” and “had the Government requested

the military judge to take judicial notice that Ecstasy is a

Schedule I controlled substance at trial, the military judge

would have done so, even over a possible objection by the

defense” an accused is entitled to have each element of the

charged crime established at trial.   Paul, 2013 CCA LEXIS 747,

at *10.

     This conclusion is consistent with longstanding case law.

In United States v. Williams, we reviewed the appellant’s

convictions for larceny, in violation of Article 121, UCMJ, 10

U.S.C. § 921, and sale of marijuana in violation of Article 92,

UCMJ (disobeying a general order).    3 M.J. 155, 156 (C.M.A.

1977).    At trial, before a military judge alone, the government

addressed whether a higher court can assume that the trial court
took judicial notice of a fact rather than the right of the
higher court to take judicial notice of that fact. Garner, 368
U.S. 157 at 173. In United States v. Irvin, this Court
dismissed the notion that a military judge could take judicial
notice “‘by implication’” and neither party is arguing before
this Court that the military judge did so in this case. 21 M.J.
184, 186 (C.M.A. 1986). Secondly, unlike in this case, the
question in Garner -- the state of racial tensions and relations
in the South -- concerned a matter of subjective judgment open
to dispute. Garner, 368 U.S. at 173.

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United States v. Paul, No. 14-0119/AF

failed to introduce into evidence a copy of the regulation the

appellant had allegedly violated or to request that the military

judge take judicial notice of the regulation.    Id.     Nor was

there any indication that the military judge took judicial

notice of the regulation on his own motion.    Id.     This Court

found that, absent proof of this element of the crime, the

record was legally insufficient to warrant conviction, stating

that “[c]learly where the matter to be judicially noticed is

essential to the case in order for the act to become criminal,

it must be reflected in the record of trial and cannot be later

assumed.”   Id. (citation omitted).    Rather than opting to take

judicial notice of the regulation itself, this Court found that:

     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. Absent
     clear indication on the record that the trial judge
     properly judicially noticed a regulation in a prosecution
     for a violation of Article 92(1), we must hold that the
     judge did not have before him any evidence that what the
     accused did was a crime. . . .

            . . . .

          As the evidence of record is legally insufficient to
     sustain a finding of guilty of failure to obey a lawful
     general regulation, we are required to dismiss that charge.

Id. at 157 (citations omitted).    Like the regulation at issue in

Williams, the fact that ecstasy is a Schedule I controlled

substance is an essential element that was not established in



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United States v. Paul, No. 14-0119/AF

the Government’s case, let alone proved beyond a reasonable

doubt.10

     As a result, we hold 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.

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 1 of Charge II

and the sentence.   The finding of guilty to Specification 1 of

10
  We note as well that the position is consistent with the Army
Court’s handling of a similar issue. In United States v.
Bradley, the Army CCA faced a set of facts almost identical to
those set forth in this case and reached a conclusion identical
to that in Williams. 68 M.J. 556, 557, 560 (A. Ct. Crim. App.
2009). Among other charges, the appellant was convicted,
contrary to his pleas, of wrongfully distributing ecstasy on
divers occasions in violation of Article 112a, UCMJ. Id.
However, during the merits part of the court-martial, the
government offered no evidence that ecstasy was a Schedule I
controlled substance, nor did it request that the military judge
take judicial notice of this fact. Citing Williams, the Army
CCA found that:

     As a statutory element of the offense, there is no
     predicate for our court to presume that ecstasy is a
     Schedule I controlled substance. The government must
     otherwise prove beyond a reasonable doubt every element of
     an offense. They failed to do so in this case.

          Evidentiary gaps may not be filled in post-trial by
     appellate courts when the government fails to make a proper
     offer of proof at trial.

Id. (footnote and citations omitted).

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United States v. Paul, No. 14-0119/AF

Charge II is set aside and the specification is dismissed.   The

decision as to the remaining findings of guilty is affirmed.

The record of trial is returned to the Judge Advocate General of

the Air Force for remand to the Court of Criminal Appeals for

reassessment of the sentence.




                                16
