United States v. Specialist GLENN M. BRADLEYUnited States v. Specialist GLENN M. BRADLEY
OPINION OF THE COURT
An оfficer panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiring to introduce and distribute cocaine and ecstasy on divers occasions, 1 and wrongfully distributing ecstasy and cocaine on divers occasions, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a [hereinafter UCMJ]. 2 The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for one year, forfeiture of all pay and allowances for twеlve months, and reduction to Private El. This case is before this court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.
Appellant alleges his conviction for wrongful distribution of ecstasy, Specification 2 of Charge II, is legally and factually insufficient because the government erroneously omitted “3[,]4” on the charge sheet from the chemical name of ecstasy (3, 4-methylenedioxymeth-amphetamine).
We agree appellant is entitled to relief but for a reason other than appellant alleges. We find the evidence factually and legally insufficient for Specification 2 of Charge II and for that portion of the Specification of Charge I which references ecstasy. When a substance is charged under Article 112a(b)(3), UCMJ, 10 U.S.C. § 912a(b)(3), the government must either introduce evidence that the purported substance is listеd in 21 U.S.C. § 812 [hereinafter the Controlled Substances Act] or request the trial court take judicial notice of that fact. 3 The government did neither in this case. We will grant relief in our decretal paragraph.
FACTS
The government’s primary evidence at trial supporting appellant’s conviction was appellant’s own sworn statement. In that statement, appellant admitted he distributed cocaine and ecstasy to another Soldier in “about five deals.” Appellant admitted he knew it was illegal to sell narcotics; however, he was having finanсial difficulties.
The government also called Private (PVT) El Christopher M. Carelas and PVT E2 Ryan J. Crane. Privates Carelas and Crane testified they first met appellant at a hotel where they agreed to purchase cocaine and ecstasy from a third party. After driving to a location to purchase the drugs, they all went back to appellant’s apartment and “partied.” The following day, other Soldiers heard PVTs Carelas and Crane were able to get drugs and PVT Carelas approached appellant about purchasing more cocaine and *558 ecstasy. Privates Carelas and Crane thereafter met appellant at various locations located on Fort Bliss to purchase cocaine and ecstasy from appellant. Private Carelas testified he met with appеllant “five or six times” in order to get cocaine or ecstasy for later distribution to other Soldiers.
Instructions
After presentation of the evidence on the merits, the military judge and counsel held a Rule for Courts-Martial [hereinafter R.C.M.] 802 session to discuss instructions. The military judge then detailed аnd continued that discussion in an Article 39(a), UCMJ, session:
DC: The only instruction we would like you to add to the sheet per the discussion in your chambers, the defense believes the government has the burden to prove that methylenedioxymethamphetamine is in fact Ecstasy or that Ecstasy is in fact that substance....
MJ: I have denied that request.... Whether the government has proven those elements beyond a reasonable doubt or not is a factual matter for the members to determine....
DC: Understood, sir, and the only other thing is that we had discussed back in the chambers regаrding the Schedule I controlled substance issue, and I understand that you have taken that off of ---
MJ: Right. I will not instruct the members that methylenedioxymethampheta-mine is a Schedule I controlled substance under the laws of the United States because I have not taken judicial notice that that is the case.
Instructions on the Elements of the Offense
For Specification 2 of Charge II the military judge instructed the panel:
[T]he accused is charged with the offense of distribution of methylenedioxymeth-amphetamine (Ecstasy), a Schedule I controlled substance [emphasis added]. In order to find the accused guilty of this offense, you must be cоnvinced by legal and competent evidence beyond a reasonable doubt:
That on divers occasions, between on or about 1 January 2008 and on or about 29 February 2008 at or near Fort Bliss, Texas, the accused, distributed some amount, more or less of methylenedioxymeth-amphetamine (Ecstasy), a Schedule I controlled substance [emphasis added];
That the accused actually knew he distributed the substance;
That the accused knew that the substance was methylenedioxymethamphetamine (Ecstasy) or of a contraband nature; and That the distribution was wrongful.
The military judge did not at any point take judicial notice or instruct the members that ecstasy (MDMA) was a controlled substance, and the government presented no evidence on that issue.
LAW
Factual and Legal Sufficiency
Article 66, UCMJ, requires the courts of criminal appeals to conduct a de novo review of the legal and factual sufficiency of each case. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.2002) (citation omitted). The test for legal sufficiency is whether, considering the evidence in the light most favorable to the government, a reasonable fact-finder could have found the essential elements beyond a reasonаble doubt. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is convinced of the accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987).
This court must basе its decision as to legal and factual sufficiency on the basis of the “entire record.”
United States v. Adams,
Judicial Notice
Military Rule of Evidence [hereinafter Mil. R. Evid.] 201 authorizes a military judge to take judicial notice of adjudicative facts and Mil. R. Evid. 201A authorizеs judicial notice of domestic law. Military Rule of Evidence 201A(a) also recognizes that domestic law can be an adjudicative fact if it is a fact of consequence contested at trial.
See United States v. Ayers,
DISCUSSION
The merits portion of appellant’s court-martial contains no evidence that ecstasy is a Schedule I controlled substance, which is an essential element of the offense. The trial counsel did not introduce a copy of the Controlled Substances Act into evidence nor request that the military judge take judicial notice of the statute. Indeed, the military judge affirmatively stated he had not taken judicial notice that ecstasy is a Schedule I controlled substance. While the Charge Sheet (DD Form 458, May 2000) properly alleges the essential fact that ecstasy is a Schedule I controlled substance, the record contains no evidence to support that allegation.
In
United States v. Williams,
Similar to
Williams,
the only evidence presented at trial that ecstasy was а controlled substance was its reference on the Charge Sheet. This is not properly admitted evidence for our Article 66, UCMJ, review.
See United States v. Hill,
Evidentiary gaps may not be filled in post-trial by aрpellate courts when the government fails to make a proper offer of proof at trial.
United States v. Wootton,
CONCLUSION
There was no evidence in appellant’s case demonstrating that ecstasy is a Schedule I controlled substance. Therefore, there is insufficient evidence to support appellant’s convictions for wrongful distribution of, or conspiracy to distribute, ecstasy. Accordingly, the finding of guilty to Specification 2 of Charge II is set aside and dismissed. We affirm the finding of guilty to Charge I and its Specification excеpt the words: “and/or wrongful introduction and/or distribution of methylenedioxymethamphetamine (Ecstasy), a schedule I controlled substance” and “and/or methylenedioxymethamphetamine (Ecstasy).”
We have considered the matters personally raised by appellant undеr
United States v. Grostefon,
As a result of our action on the findings regarding Charge I and Specification 2 of Charge II, we must reassess the appellant’s sentence.
See United States v. Sales,
Judge Stockel took final action in this case prior to her retirement.
Notes
. The drug 3, 4-methylenedioxymethampheta-mine, also known as еcstasy or MDMA, "is an illegal drug that acts as both a stimulant and psychedelic, producing an energizing effect, as well as distortions in time and perception and enhanced enjoyment from tactile experiences."
See U.S. Drug Enforcement Administration Homepage, Drug Infоrmation,
at http://www.usdoj.gov/ dea/concern/mdma.html (last visited 8 Oct. 2009);
see also United States v. Fay,
. In addition, appellant was convicted of wrongful introduction of cocaine and ecstasy; however, those specifications were later dismissed by the convening authority.
.We have considered and rejected the possibility of affirming appellant’s conviction for the lesser-included offense of attempted distribution of ecstasy. We recognize lack of evidence that a substance is in fact what it is alleged to be does not negate an accused’s intent to attempt to possess or distribute a controlled substance.
See United States v. LaFontant,
. We note appellant's confession to distributing ecstasy was admitted into evidence. That fact, however, only addresses the knowledge element, which may be satisfied by proof of appellant's understanding of a substance’s contraband nature.
United States v. Mance,