U.S.A. v. Bello, 98-1831

• Decision Date: 11 June 1999
• Docket Number: No. 98-1831,98-1831
• Citation: 194 F.3d 18
• Parties: (1st Cir. 1999) UNITED STATES, Appellee, v. JESUS BELLO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

194 F.3d 18 (1st Cir. 1999)

UNITED STATES, Appellee, v. JESUS BELLO, Defendant, Appellant.

No. 98-1831.

United States Court of Appeals for the First Circuit.

Heard June 11, 1999.

Decided Oct. 19, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO.

[Copyrighted Material Omitted] Edgardo Rodrguez-Quilichini, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief for appellant.

Desiree Laborde-Sanfiorenzo, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and Camille Velez-Rive, Assistant United States Attorneys, were on brief for appellee.

Before Selya, Boudin, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Jesus Bello appeals his conviction and sentence for assaulting a fellow prisoner in the Metropolitan Detention Center in Guaynabo, Puerto Rico ("MDC-Guaynabo") in violation of 18 U.S.C. § 113(a)(6). Bello claims that the court erred in taking judicial notice of the jurisdictional element of the offense, namely, that MDC-Guaynabo was within the territorial jurisdiction of the United States. He also claims that the court erred in refusing to instruct the jury on his defenses of self-defense and duress, and in telling the jurors outside of the presence of counsel, in response to a jury inquiry, that self-defense was not applicable in this case. In challenging his sentence, he claims that the court mistakenly believed that it lacked the legal authority to grant a downward departure on grounds of coercion or duress, and that the court erred in refusing to grant a reduction in offense level for acceptance of responsibility. We affirm.

I.

Factual background

At the time of the events in question, Bello was a prisoner confined at MDC-Guaynabo where he worked as a food service orderly, serving food to other prisoners. In this capacity, he was responsible for ensuring that food was distributed to all inmates. The victim of Bello's assault, Domingo Santana-Rosa, was also a prisoner in MDC-Guaynabo. Bello testified that Santana frequently sneaked into the food service line and requested seconds even when all other prisoners had not yet eaten. According to Bello, at around 5:00 PM on July 23, 1996, he refused to serve Santana a second helping at dinner because five other inmates had yet to eat. Santana then told Bello that he and another inmate were "going to crack open [Bello's] head." After making the threat, Santana sat down with several other inmates, including one "Porra." Porra later advised Bello that Santana planned to attack him while Bello was working out in the recreational yard of the prison. Bello testified that he did not report the threat to prison authorities because he feared the repercussions of being labeled a "snitch" by his peers.

On July 25, 1996, at around 11:30 AM, Santana was playing dominoes with other inmates in the recreational yard. Bello noticed Santana's presence, and he became alarmed when he further noticed that the table for playing dominoes, which was ordinarily in the prison's game room, had been moved into the yard where it now stood only a few feet away from where Bello intended to exercise. Bello grabbed a push broom from the corner of the yard and hit the wall of the yard with its handle, stating that it was a good stick for playing baseball. At that point Santana first noticed Bello's presence in the yard, but he continued playing dominoes. Bello removed the handle from the push broom and kept the head. He walked towards Santana and, once behind him, Bello hit him in the back of the head with the push broom head. Santana collapsed, unconscious, and was taken to the hospital where he was operated on to relieve an epidural hematoma (a blood clot under the skull). Santana survived and regained consciousness six days later. The entire incident was captured on videotape.

Bello was indicted on one count of assault within the jurisdiction of the United States (as defined in 18 U.S.C. § 7(3)), in violation of 18 U.S.C. § 113(a)(6). Pursuant to Fed. R. Evid. 201 ("Rule 201"), the government filed a pretrial motion requesting that the court take judicial notice that MDC-Guaynabo is located within Fort Buchanan, a military base on lands "reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof," and thus is within the "special maritime or territorial jurisdiction of the United States." The pretrial motion was accompanied by documentation¹ tending to prove the requisite elements. The court deferred making a ruling on the motion until trial.

At trial, the government presented before the jury the testimony of Alma Lopez, the legal advisor to the warden of MDC-Guaynabo, who stated that the land on which the prison was located was owned by the federal Bureau of Prisons and was formerly part of Fort Buchanan, but was transferred to the Bureau by the Department of Defense. After cross-examining Lopez, defense counsel objected to the court taking judicial notice of the fact that MDC Guaynabo is under the exclusive jurisdiction of the United States. Because Lopez was not in a position to authenticate the documentation submitted with the pretrial motion, the documents were not admitted into evidence. However, the court examined the documents outside the presence of the jury and concluded that it could take judicial notice (based on both the testimony in evidence and the documents) that the MDC-Guaynabo facility was within the jurisdiction of the United States. The court announced to the jury that it was taking judicial notice of this jurisdictional fact, but informed them that they were "not required to accept as conclusive any fact that the Court has judicially noticed." The jury was similarly instructed before it retired to deliberate.

The court denied Bello's request to instruct the jury on his defenses of duress and self-defense, ruling that there were no facts which justified such instructions. During deliberations, the jury requested clarification on the meaning of self-defense. The court responded by informing the jurors that self-defense was not applicable to this case. The jury found Bello guilty of assault.

The court subsequently denied an oral motion by Bello to set aside the verdict on the ground that there was insufficient proof of the jurisdictional element of which the court took judicial notice. Bello then filed a motion for a new trial, arguing that the court erred in failing to instruct on self-defense. The court denied the motion.

Bello was subsequently sentenced to a term of imprisonment of 120 months, 60 months of which was to be served concurrently with the remainder of a previous federal criminal sentence. A supervised release term of 3 years and a special monetary assessment of $100 were also imposed. This appeal ensued.

II.

Judicial notice

Bello argues that the court improperly took judicial notice that the assault occurred "within the special maritime and territorial jurisdiction of the United States."² In so doing, the Court took judicial notice of an element of the offense for which Bello was convicted.³ That fact lends particular significance to the judicial notice issue.

Since the government petitioned, and the trial court ruled, pursuant to Rule 201, we address the conformity of the court's judicial notice determination with that rule. Rule 201 provides in relevant part:

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

. . . .

(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Fed. R. Evid. 201. By its terms, Rule 201 applies only to adjudicative facts, and the parties and the court assumed that the jurisdictional element at issue here involved an adjudicative rather than a legislative fact. They assumed correctly. Whether a fact is adjudicative or legislative depends not on the nature of the fact - e.g., who owns the land - but rather on the use made of it (i.e., whether it is a fact germane to what happened in the case or a fact useful in formulating common law policy or interpreting a statute) and the same fact can play either role depending on context. See Fed.R.Evid. 201, Advisory Committee's note ("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 . . . ."). Where the prison sits is an element of the offense and unquestionably an adjudicative fact,⁴ and we review the trial court's decision to take judicial notice under Rule 201 for abuse of discretion. See United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994); see also Taylor v. Charter Medical Corp., 162 F.3d 827, 829 (5th Cir. 1998) (applying abuse of discretion standard to refusal to take judicial notice).

MDC-Guaynabo's location within the jurisdiction of the United States is the "kind of fact" judicially recognizable under Rule 201(b). To qualify for judicial notice, a fact "must be one not subject to dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The Advisory Committee's note to Rule 201 explains:

The usual method of establishing adjudicative facts is through the introduction of evidence, ordinarily consisting...