              Case: 15-15686     Date Filed: 05/23/2017   Page: 1 of 5



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-15686
                           ________________________

                   D.C. Docket No. 4:11-cr-00022-HLM-WEJ-5


UNITED STATES OF AMERICA,
                                                                Plaintiff-Appellee,

                                      versus

JAMES CHAPMAN,
                                                            Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________
                                (May 23, 2017)


Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      James Chapman appeals his convictions for conspiracy to distribute and

dispense Oxycodone, Hydrocodone with Acetaminophen (Lorcet), and Alprazolam

(Xanax) for other than a legitimate medical purpose and not in the usual course of

professional practice, in violation of 21 U.S.C. §§ 846 and 841, and for 48 specific

prescribing acts of the same substances for other than a legitimate medical purpose
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and not in the usual course of professional practice. Chapman raises five

arguments on appeal; we address them serially.

       Chapman argues that the district court committed reversible error when it

instructed the jury that Bartow County and Cartersville were located in the

Northern District of Georgia. It further instructed that the jury was free to

disregard “the Court’s declaration of evidence.” He asserts that the instruction

invaded the province of the jury and eliminated the element of venue, which

deprived him of due process.

       We have stated that a judge may not decide a disputed fact and instruct a

verdict in whole or in part. United States v. Goetz, 746 F.2d 705, 708 (11th Cir.

1984) (citing Roe v. United States, 287 F.2d 435, 440 (5th Cir. 1961)1). However,

we also have held that the court may take judicial notice of certain universally

undisputed facts. Federal Rule of Evidence 201 governs judicial notice and covers

only adjudicative facts, not legislative facts. In United States v. Bowers, 660 F.2d

527 (5th Cir. Unit B Sept. 1981), 2 we employed the Eighth Circuit’s distinction

between legislative and adjudicative facts: “Legislative facts are established truths,


1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
2
       In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), this circuit
adopted as binding precedent decisions issued by Unit B of the former Fifth Circuit after
September 30, 1981.
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facts[,] or pronouncements that do not change from case to case but apply

universally, while adjudicative facts are those developed in a particular case.” 660

F.2d at 530-31 (quoting United States v. Gould, 536 F.2d 216, 220 (8th Cir.

1976)). In that case, we reasoned that because Fort Benning’s status as being

under federal jurisdiction was well established and would not change from case to

case, it was a legislative fact appropriate for judicial notice and thus not bound by

Rule 201’s strictures. Id. at 531. The district court in Bowers instructed the jury

that “Fort Benning, Georgia, is on land which is property of the United States and

is under the jurisdiction of (the) United States.” Id. at 530. We held there was no

error, even though the district court failed to advise the jury that it was not required

to accept as conclusive the judicially noticed fact. Id. at 530-31 (citing

Fed.R.Evid. 201(g), renamed 201(f) in 2011).

       Under the binding authority of Bowers, the location of Bartow County and

Cartersville within the Northern District of Georgia falls under this definition of

legislative facts. Thus, the court’s instruction was of a legislative fact and it did

not invade the jury’s province for two reasons. First, the court noticed a legislative

fact, the legal status of the place where the crime was alleged to have occurred, but

left to the jury the factual determination that the crime had occurred there. 3 See


3
      That this was a matter of law is especially true in the case of the notice that Bartow
County fell in the Northern District of Georgia because that is found in 28 U.S.C. § 90(a)(3): “(a)
The Northern District comprises four divisions. . . (3) The Rome Division comprises the
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United States v. Hernandez-Fundara, 58 F.3d 802, 810 (2d Cir. 1995). Thus, the

court did not take from the jury the determination that the crime took place in the

Northern District. Second, although it was not required to abide by the constraints

of Fed.R.Evid. 201(f) because it noticed legislative facts, the district court included

in its instruction to the jury that section’s limitation on judicial notice in a criminal

case: “[i]n a criminal case, the court must instruct the jury that it may or may not

accept the noticed fact as conclusive.” Fed.R.Evid. 201(f). Other circuits have

held that the inclusion of this nonconclusive language ensures that the court has not

improperly removed an element from the jury, in the context of adjudicative facts.

See United States v. Bello, 194 F.3d 18, 25-26 (1st Cir. 1999); United States v.

Jones, 580 F.2d 219, 223-34 (6th Cir. 1978). We therefore reject Chapman’s

argument that the court’s instruction violated his right to due process.

       Next, Chapman argues that the Government did not prove that he was aware

of the illegal conspiracy and failed to prove that he willfully joined it. Although

Chapman challenges the sufficiency of the evidence, we conclude that his

challenge is wholly without merit. The Government’s evidence, if not

overwhelming, was extremely strong and more than ample to support the verdict.

Similarly, Chapman’s challenge to the district court’s admission of co-conspirator



counties of Bartow, Catoosa, Chattooga, Dade, Floyd, Gordon, Murray, Paulding, Polk, Walker,
and Whitfield.”
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statements is wholly without merit. Again, there was ample evidence—completely

aside from the co-conspirator statements themselves—to establish that Chapman

was aware of and joined the conspiracy and that the co-conspirator statements were

made in furtherance of the conspiracy. Chapman’s challenge to the district court’s

failure to hold a Franks v. Delaware hearing is foreclosed by our recent decision in

United States v. Votrobek, 847 F.3d 1335, 1342-44 (11th Cir. 2017). Finally, we

cannot conclude that the district court abused its discretion in admitting evidence

concerning Chapman’s alcohol use.

AFFIRMED.




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