It’s not every day that you read a published appellate opinion that says “evidence at trial in this case was not sufficient to satisfy the jurisdictional element of the offense of conviction,” and then goes on to affirm the conviction. But that’s what happened in the Second Circuit’s decision Wednesday in United States v. Corey Davis.
It’s a decision that is probably of interest only to criminal-defense nerds, admin-law nerds and Enclaves-Clause nerds, but I suspect that there are a higher-than-normal proportion of each reading this blog. The case was a federal prosecution for assault within the “special maritime and territorial jurisdiction of the United States,” which is defined by statute to include:
Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.
(This section closely tracks the Enclaves Clause of the Constitution, which is sometimes jokingly called the Magazines Clause. Other sections include things like the high seas, American spaceships, and certain “island[s], rock[s], or key[s] containing deposits of guano.”)
Most importantly, the special territorial jurisdiction of the United States does not include all federally-owned land; the land has to be held under “exclusive or concurrent jurisdiction” and acquired “by consent of the legislature of the state.” This requires an investigation of when and under what conditions the land was acquired and held. But at trial the prosecution only presented evidence that the assault took place in “a federal prison on federal land.” The defendant pointed out that this was not enough to satisfy the jurisdictional element of the offense, and the judge (wrongly) disagreed, and instructed the jury that being on federal land was enough. Hence the Second Circuit’s conclusion that there was insufficient evidence at trial.
But the Second Circuit found a way to save the conviction. On appeal it decided to take “judicial notice” of the fact that the prison had been purchased and held under circumstances that satisfied the statute. Judicial notice basically means that a fact is so indisputably true that the Court can find it to be true even though it wasn’t proven — after reviewing some records provided by the government, the Second Circuit concluded that the prison was plainly part of the special territorial jurisdiction of the United States.
Here the court triggered an obscure procedural problem. There’s a federal rule of evidence dealing with judicial notice of “an adjudicative fact,” which the Second Circuit couldn’t comply with here. The rule requires that “In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive,” since a defendant has a right to have facts — even obvious facts — tried to a jury, not a judge. But since the Second Circuit came up with the whole judicial notice thing on appeal, nobody told the jury about any of this.
So the Second Circuit concluded that the legal status of the prison was a so-called “legislative fact,” and hence immune to Rule 201. And what’s the difference between the two? According to the Advisory Committee notes to Rule 201:
Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.
Finally, one might ask: Was the Second Circuit right? I think this is a tricky question. The Second Circuit relies on a previous case, Hernandez-Fundora, that in turn relies on an excerpt from Professor Kenneth Culp Davis’s treatise, saying:
Whether 123 C Street is inside or outside the city is a question about 123 C Street, not about a party. The question whether X lives in the city is a question of adjudicative fact, but, even though X lives at 123 C Street, the fact that that address is within the city is not an adjudicative fact.
And some other courts have agreed with the Second Circuit’s approach. On the other hand, the First Circuit has disagreed, holding that the jurisdictional status of land is an “adjudicative fact” (in United States v. Bello), as has Professor William Carter (in an article cited and rejected by the Second Circuit).
And the advisory notes to Rule 201 also rely on a different discussion from an earlier version of Davis’s treatise:
“When a court or an agency finds facts concerning the immediate parties—who did what, where, when, how, and with what motive or intent—the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. * * *
“Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.”
And looking at that part, when the Second Circuit takes judicial notice of when the property was purchased, and under what circumstances, those do seem to go to “who did what … when, how” and relating to the “properties” of the “parties.” That would make it an adjudicate fact, which means that in a criminal case the jury has to be given a chance to make up its own mind about it.
Despite the non-intuitive result and the circuit split, I have a hard time imagining this is the kind of case the Supreme Court is likely to grant. But I wouldn’t mind being wrong, and it sounds like the lower courts (including trial courts) could use some guidance about how to try these cases.