U.S. v. Coffman, s. 79-1760

• Decision Date: 16 January 1981
• Docket Number: 79-1761,Nos. 79-1760,s. 79-1760
• Citation: 638 F.2d 192
• Parties: 7 Fed. R. Evid. Serv. 839 UNITED STATES of America, Plaintiff-Appellee, v. Donna Dale COFFMAN, Joan Marie Turner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 192

638 F.2d 192

7 Fed. R. Evid. Serv. 839

UNITED STATES of America, Plaintiff-Appellee, v. Donna Dale COFFMAN, Joan Marie Turner, Defendants-Appellants.

Nos. 79-1760, 79-1761.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Nov. 19, 1980.

Decided Dec. 17, 1980.

Rehearing Denied Jan. 16, 1981.

Philip A. Cherner of Feuer, Flossic & Rich, Denver, Colo. (Dana L. Larson, Denver, Colo., with him on briefs), for defendants-appellants.

Carole C. Dominguin, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with her on brief), for plaintiff-appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The defendants-appellants, Coffman and Turner, seek review of judgments of conviction for violation of 21 U.S.C. § 841(a)(1) which is possession with intent to distribute a controlled substance, namely lysergic acid diethylamide, commonly known as LSD. The arrests herein followed a period of surveillance of several purchases by an undercover agent. Thereafter a warrant was issued to search the defendants' dwellings and automobiles. In connection with the arrests on January 25, 1979 a quantity of LSD was found on the defendants' premises. The indictment was returned April 12, 1979, 77 days after arrest. The trial started July 2, 1979, 80 days after indictment and 154 days after arrest.

Advanced by the defendants as grounds for reversal are the following:

1. That the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. was violated and that dismissal was therefore required because the trial commenced after the date specified in the statute (July 1, 1979) as the commencement of sanctions.

2. That the trial court erred in instructing the jury that judicial notice established that LSD was a Schedule I controlled substance.

3. That the evidence was insufficient to establish a valid chain of custody for certain of the exhibits.

4. That the entry and search was conducted without complying with the so-called "no knock" statute, 18 U.S.C. § 3109 (1976).

5. That the defendants were denied a fair trial because the witness sequestration order was violated, and also because the prosecution's expert failed to provide all the reports and notes for the defendants.

I. WERE THE SPEEDY TRIAL SANCTIONS RETROACTIVE SO AS TO RELATE BACK?

The contention is that the dismissal sanctions of the Speedy Trial Act which became effective on July 1, 1979 applied to cases pending on July 1st as opposed to cases commenced after July 1st. Defendants argue that the time started to run long before July 1st as to cases which had been processed prior to that date. Thus, the argument continues, when the July 1, 1979, effective date came along the sanction was immediately applicable.

The time periods were in effect prior to July 1, 1979 but the sanctions were not, hence the periods were merely guidelines. The probable reason for this was to accustom the authorities to the workings of the program. The Act had been phased-in over a period of five years. In the light of these background facts the defendants' interpretation is neither logical nor valid. If the case is pending July 1, 1979 the effective date of sanctions would become retroactive to various dates depending on the date that the case was commenced. The result would be confusing and would require a variety of reviews, all of which would be at odds with the plain meaning of the statute including the phase-in provision.

In our view these sanctions are first effective as to cases which are filed on and after July 1, 1979 and the recent decisions support this view. United States v. Fielding, 630 F.2d 1357 (9th Cir. 1980); United States v. Carreon, 626 F.2d 528 (7th Cir. 1980); Government of the Canal Zone v. Martinez, 620 F.2d 502 (5th Cir. 1980); United States v. Vanella, 619 F.2d 384 (5th Cir. 1980); United States v. Barboza, 612 F.2d 999 (5th Cir. 1980).

It is to be further explained that the defendants have not contended there was a violation of the Sixth Amendment right nor have they cited the Barker v. Wingo, test 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1970). Accordingly it is unnecessary to proceed further on this issue. ¹

II.

IS THERE MERIT IN THE CONTENTION OF DEFENDANTS THAT JUDICIAL

NOTICE WAS INAPPLICABLE TO STATUTORY SCHEDULE I

LIST OF SCHEDULE I AS A CONTROLLED SUBSTANCE?

We conclude that this contention is lacking in merit.

On the day prior to closing arguments the trial judge was asked by the government to instruct the jury as a matter of law that LSD was a Schedule I controlled substance. Defendants argued that evidence was required to establish that LSD was a controlled substance and secondly, that it was on listed Schedule I of the statutes on the date of the offense; or, in other words, the judge should submit to the jury whether in this case the substance should be considered a Schedule I controlled substance.

The defendants' counsel made closing arguments to the effect that the government had failed to prove that LSD was on Schedule I. Thereafter, the court in its charge to the jury stated that as a matter of law LSD is a Schedule I controlled substance, but that as a matter of fact the jury must find the substance in this case to have been LSD.

The defendants have made three arguments. They first contend that the judge could not take judicial notice that LSD as a matter of law was a Schedule I controlled substance. On this they say that only adjudicative facts can be judicially noticed under the Fed.R.Evid. 201.

The second argument is that if it was proper to take judicial notice that LSD is a Schedule I controlled substance that the court erred in not giving the cautionary instruction contained in Fed.R.Evid. 201(g) which provides that the court shall instruct the jury that it may, but it is not required to, accept as conclusive any facts judicially noticed.

Third, that because of the confusion resulting in defendants' counsel's argument before the jury that there must be proof of the scheduling, defendants' counsel's argument looked foolish and prejudiced the clients.

Judicial notice must be taken of relevant contents of the Federal Register. This is by statute 44 U.S.C. § 1507. That the courts are allowed to take judicial notice of statutes is unquestionable. Furthermore the statute allows the taking of judicial notice of the regulations. Consequently no error exists in instructing that LSD is a Schedule I controlled substance. See United States v. Berrojo, 628 F.2d 368 (5th Cir. 1980); United States v. Gould, 536 F.2d 216 (8th Cir. 1976); United States v. Levin, 443 F.2d 1101 (8th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 260 (1971); United States v. Spence, 425 F.2d 1079 (5th Cir. 1970). In United States v. Gould, supra, the court said:

It is clear that the reach of rule 201 extends only to adjudicative, not legislative, facts. Consequently, the viability of the defendants' argument is dependent upon our characterization of the fact judicially noticed by the District Court as adjudicative, thus invoking the provisions of Rule 201(g).... Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case. Applying these general definitions, we think it is clear that the District Court in the present case was judicially noticing a legislative fact.... The District Court was not obligated to inform the jury that it could disregard the judicially noticed fact. In fact, to do so would be preposterous, thus permitting juries to make conflicting findings on what constitutes controlled substances under federal law.

536 F.2d at 219-21.

"Because it is abundantly clear that (the substance) is in fact a controlled substance, the absence of the 201(g) instruction, if it is to be considered error, does not rise to the level of plain error and no request for the instruction was made at trial." 628 F.2d at 370.

III.

ALLEGED ERROR RESULTED FROM THE CONFUSION IN THE CLOSING ARGUMENTS.

The review of the transcript does not reveal that any prejudice resulted from this discussion. Part of the defendants' argument covered only one page of the transcript and most of what was said by counsel was true, i. e. that there was not evidence as to the scheduling of LSD. There was objection by the prosecutor interrupting defense counsel that the United States was relying on scheduling of LSD as a matter of law. It cannot, therefore, be said that both sides understood that the judge was not going to instruct that LSD was on Schedule I.

The court did offer the defendants an opportunity to make further arguments. They declined. Hence, the defendants have failed to demonstrate prejudice which would justify a reversal. F.R.Crim.P. 30, United States v. Lyles, 593 F.2d 182 (2nd Cir. 1979), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789, cert. denied, Johnson v. United States, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 794, cert. denied, Holder v. United States, 444 U.S. 847, 100 S.Ct. 94, 62 L.Ed.2d 61 (1979); United States v. Kostoff, 585 F.2d 378 (9th Cir. 1978).

There is one other matter that should be considered in the area of judicial notice. Counsel has made the point repeatedly that laws cannot be judicially noticed. We disagree. The general rule is set forth in Wigmore. Vol. 9, Wigmore on Evidence, § 2573, p. 551. The author's words are:

A court may be expected to dispense with the production of evidence on the law of its own sovereignty; or it must be credited with the knowledge of it, or at least with competent knowledge where to search for it. No evidence of it need therefore be offered and the counsel's reference during a trial to the text or copy of the statute, or informing the judge, must be regarded as a judicial license to counsel to employ that evidence which the judge would in theory seek for himself.

IV.

CHAIN OF CUSTODY.

Defendants...