United States v. Needham

23 M.J. 383, 1987 CMA LEXIS 258

• Court: United States Court of Military Appeals
• Decided: March 30, 1987
• Docket: No. 51,565; ACM 24416
• Status: Published

Opinion

OPINION OF THE COURT

SULLIVAN, Judge:

Appellant was tried by general court-martial at Mountain Home Air Force Base, Idaho. Pursuant to his pleas, he was found guilty of wrongful distribution of lysergic acid diethylamide (LSD), wrongful possession of marihuana, and two specifications of wrongful use of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced by a panel of officer members to a bad-conduct discharge, confinement for 15 months, forfeiture of $300.00 pay per month for 15 months, and reduction to airman basic. The convening authority approved, and the Court of Military Review affirmed, the findings and sentence. 19 M.J. 640.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE FOR SENTENCING APPELLATE EXHIBITS II AND III (EXCERPTS FROM DRUG ENFORCEMENT MAGAZINE AS TO LSD AND MARIHUANA, RESPECTIVELY).

The facts of this case are as follows: On July 8, 1983, appellant and two companions drove off Mountain Home Air Force Base to an abandoned Titan III missile site to smoke a joint of marihuana. Then on July 13, 1983, appellant transferred four hits of LSD to an informant for the Air Force Office of Special Investigations (OSI). This transaction took place at appellant’s on-base residence under controlled OSI observation. The informant turned the drugs over to a special agent, who in turn forwarded the items to the laboratory for testing. Three of the four items were consumed in testing. The fourth was introduced as a prosecution exhibit. Finally, appellant admitted, after proper rights’ advisement, to using and possessing marihuana in his residence during the month of November 1983. He consented to a search of his residence which produced, among other things, drug paraphernalia and marihuana residue in many forms. Appellant also tested positive for tetrahydrocannabinol (THC) by urinalysis.

During presentencing, trial counsel requested the military judge to take judicial notice of two extracts (attached to the record as Appellate Exhibits II and III and appended to this opinion) from Drug Enforcement magazine, a periodical published by the Drug Enforcement Agency, Department of Justice. One offers an analysis of the history, nature, and effects of LSD use, while the other discusses the same with respect to marihuana use. Over defense objections under Mil.R.Evid.

* 201 (dealing with judicial notice), 401 and 402 (on the question of relevance), and 403 (as to probative value), the military judge edited portions of the extracts and took judicial notice of the remainder. Trial counsel was then only allowed to read the retained portions to the court members. Later, those members were instructed to consider what was read to them as evidence with the understanding that they did not have to accept the contents as conclusive.

We agree with the court below and reject appellant’s argument that such evidence is irrelevant for sentencing because he was convicted of distributing, not using, LSD. In United States v. Vickers, 13 M.J. 403, 406 (C.M.A.1982), Chief Judge Everett expressed the unanimous view that

regardless of the plea, the prosecution after findings of guilty may present evidence which is directly related to the offense for which an accused is to be sentenced so that the circumstances surrounding that offense or its repercussions may be understood by the sentencing authority.

In the instant case, appellant distributed LSD to a fellow servicemember who could have been a user or could have been a subsequent distributor to other service-members. Such a potential for harm is a circumstance surrounding the offense and, therefore, properly before the sentencing authority. To hold otherwise would require the trier-of-fact to operate in a vacuum and be insulated from the reality of the drug epidemic in our society. Its admission is consistent with the need to afford those vested with sentencing responsibility available information which addresses all the aspects of the crime so that an appropriate punishment may be decided.

We also reject appellant’s Mil.R. Evid. 403 argument that the prejudicial effect of this information far outweighs “its probative value.” Obviously, this type of information does not help the defense cause and as such is prejudicial. However, it was not "unduly” prejudicial. See United States v. Abel, 469 U.S. 45, 55, 105 S.Ct. 465, 470, 83 L.Ed.2d 450 (1984). We find no abuse of discretion under Mil.R.Evid. 403 in the military judge’s decision to admit this evidence.

That brings us to the real question in this case: Are the exhibits proper matters for judicial notice under Mil.R.Evid. 201, entitled “Judicial Notice of Adjudicative Facts”? Under subsection (b) the following language appears:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known universally, locally, or in the area pertinent to the event or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Appellant generally states that “some” of the facts in the exhibits are subject to reasonable dispute, without further defining the alleged gray areas. He also complains that he was denied a confrontation right by failure to disclose the identity of the persons making the assessments displayed in the exhibits. He cites Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); United States v. Williams, 17 M.J. 207 (C.M.A.1984); United States v. Brown, 11 M.J. 263 (C.M.A. 1981).

We have some doubt whether a Drug-Enforcement-Administration publication, as compared to a learned treatise, meets the source requirement of Mil.R.Evid. 201(b)(2) in the context of a drug prosecution. However, it is not clear on the record whether this publication was a source within the meaning of this prong of the rule or simply a convenient vehicle for communicating facts to be judicially noticed under Mil.R. Evid. 201(b)(1). In any event, this issue was not adequately developed at trial and has not been directly pursued on appeal. Mil.R.Evid. 103(a)(1).

Turning to appellant’s specific claims, we note that resolution of this case would necessarily require consideration of the entire record of trial for prejudice. See Mil.R. Evid. 103(a). Certain actions taken by the military judge which dampen the effects of the extracts and by defense counsel which reflect an absence of prejudice are readily apparent. First, the members never saw the exhibits because the judge limited trial counsel to oral presentation only. Second, the military judge at the request of the defense deleted what he believed to be irrelevant portions from the extracts. In accord with our earlier discussion on relevance, we believe he excluded all that was necessary. Third, the military judge instructed the members that they could consider the matters judicially noticed, but they did not have to accept them as conclusive. Fourth, prior to taking judicial notice, the military judge provided defense counsel with a fair opportunity to challenge the matters asserted in the extracts. Both extracts contain background information, the accuracy of which could be easily verified or challenged by reference to medical or pharmaceutical literature. Fifth, we note that the record shows that appellant did not at trial, and does not on appeal, identify as inaccurate any of the unedited statements in the extracts. If the true question on this appeal is one involving reliability of information, then appellant did have an adequate opportunity to “set the record” straight. At best, his failure to seize upon the opportunity to meaningfully respond in these circumstances suggests that any error which may have occurred was harmless. We so hold.

The decision of the United States Air Force Court of Military Review is affirmed.

Chief Judge EVERETT and Judge COX concur.

APPENDIX

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Manual for Courts-Martial, United States, 1969 (Revised edition).