U.S. v. Jones

• Decision Date: 31 July 1978
• Docket Number: No. 77-5269,77-5269
• Parties: , 3 Fed. R. Evid. Serv. 386 UNITED STATES of America, Plaintiff-Appellant, v. William Allen JONES, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 219

580 F.2d 219

49 A.L.R.Fed. 904, 3 Fed. R. Evid. Serv. 386

UNITED STATES of America, Plaintiff-Appellant, v. William Allen JONES, Jr., Defendant-Appellee.

No. 77-5269.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1978.

Decided July 31, 1978.

John H. Cary, Jr., U. S. Atty., Ray H. Ledford, Asst. U. S. Atty., Chattanooga, Tenn., Robert E. Simpson, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff-appellant.

H. H. Gearinger, Chattanooga, Tenn., for defendant-appellee.

Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Appellee William Allen Jones, Jr. was convicted by a district court jury of illegally intercepting telephone conversations of his estranged wife and of using the contents of the intercepted communications, in violation of 18 U.S.C. §§ 2511(1)(a) and (d) (1976). ¹ The proofs at trial showed only that the telephone which Jones had tapped was furnished by South Central Bell Telephone Company. Other than this fact, the government offered no evidence to show that South Central Bell was at the time a "person engaged as a common carrier in providing or operating . . . facilities for the transmission of interstate or foreign communications." 18 U.S.C. § 2510(1). See also 18 U.S.C. § 2510(10) and 47 U.S.C. § 153(h), defining common carrier.

Following the jury verdict of guilty on three of the five counts of the indictment, Jones' counsel moved the court for a new trial on the ground that the government had altogether failed to prove that the wire communication which the defendant tapped came within the definition of Section 2510. Upon a careful review of the evidence, United States District Judge Frank Wilson agreed and entered a judgment of acquittal. ² The government has appealed. ³

It is not seriously disputed that an essential element of the crimes charged, and one which the government was obligated to prove beyond a reasonable doubt, was that the conversation which was tapped was a "wire communication" as defined in the Act. Instead, the issue is whether the abbreviated proof offered by the government was minimally sufficient for the Prima facie case which the government was obligated to place before the jury. In other words, was the proof that the tapped telephone was installed and furnished by "South Central Bell Telephone Company," without more, sufficient to enable the jury to find as a matter of fact that South Central Bell was a common carrier which provided facilities for the transmission of interstate or foreign communications? The government contends that, construing that evidence in the light most favorable to it, these facts could be permissibly inferred by the jury without any other proof.

The government's argument is essentially twofold. First, it urges that South Central Bell's status may reasonably be characterized as a fact within the common knowledge of the jury and that no further record evidence was necessary. Failing that, the government urges that such a fact is the proper subject of judicial notice which may be taken at any stage of the proceeding, including appeal, under Federal Rule of Evidence 201(f).

The government's first argument finds some support in Wigmore. 9 Wigmore on Evidence § 2570 at 542-43 (3d ed. 1940). Similarly, the legislative history of the Federal Rules of Evidence indicates that, even in criminal cases, "matters falling within the common fund of information supposed to be possessed by jurors need not be proved." Advisory Committee Note to Federal Rule of Evidence 201(g) (1969 draft), Quoted, 1 Weinstein's Evidence 201-2 (1977). As that Note further indicates, however, such matters "are not, properly speaking, adjudicative facts but an aspect of legal reasoning." Id. Thus, while the jury may properly rely upon its own knowledge and experience in evaluating evidence and drawing inferences from that evidence, ⁴ there must be sufficient record evidence to permit the jury to consult its general knowledge in deciding the existence of the fact.

While Wigmore notes that "(t)he range of (a jury's) general knowledge is not precisely definable," Wigmore, supra, § 2570 at 546, "the scope of this doctrine is narrow; it is strictly limited to a few matters of elemental experience in human nature, commercial affairs, and everyday life." Id. at 544. This category of fact is not so much a matter of noticing facts outside the record as it is a matter of the communication value of the words used, which can only be understood in the light of the common experience of those who employ them. See generally K. Davis, Administrative Law Text § 15.06 at 305 (3d ed. 1972).

While the issue is not without difficulty, we are satisfied that South Central Bell's status as a "common carrier . . . providing . . . facilities for the transmission of interstate . . . communications" is a fact which, if to be established without direct or circumstantial proof, ⁵ must be governed by the judicial notice provisions of the Federal Rules of Evidence. ⁶

The government did not at any time during the jury trial specifically request the district court to take judicial notice of the status of South Central Bell. Nevertheless, it relies upon the provisions of Rule 201(f) which state that "(j)udicial notice may be taken at any stage of the proceeding." It is true that the Advisory Committee Note to 201(f) indicates that judicial notice is appropriate "in the trial court Or on appeal." (Emphasis added). See 1 Weinstein's Evidence P 201(06) (1976). It is also true that the language of 201(f) does not distinguish between judicial notice in civil or criminal cases. ⁷ There is, however, a critical difference in the manner in which the judicially noticed fact is to be submitted to the jury in civil and criminal proceedings:

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(g). Thus under subsection (g) judicial notice of a fact in a civil case is conclusive while in a criminal trial the jury is not bound to accept the judicially noticed fact and may disregard it if it so chooses.

It is apparent from the legislative history that the congressional choice of language in Rule 201 was deliberate. In adopting the present language, Congress rejected a draft of subsection (g) proposed by the Supreme Court, which read:

The judge shall instruct the jury to accept as established any facts judicially noticed.

The House Report explained its reason for the change:

Rule 201(g) as received from the Supreme Court provided that when judicial notice of a fact is taken, the court shall instruct the jury to accept that fact as established. Being of the view that mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial, the Committee adopted the 1969 Advisory Committee draft of this subsection, allowing a mandatory instruction in civil actions and proceedings and a discretionary instruction in criminal cases.

H.Rep. No. 93-650, 93d Cong., 1st Sess. 6-7 (1973), U.S.Code Cong. & Admin.News 7075 7080 (1974). Congress intended to preserve the jury's traditional prerogative to ignore even uncontroverted facts in reaching a verdict. The legislature was concerned that the Supreme Court's rule violated the spirit, if not the letter, of the constitutional right to a jury trial by effectively permitting a partial directed verdict as to facts in a criminal case. ⁸

As enacted by Congress, Rule 201(g) plainly contemplates that the jury in a criminal case shall pass upon facts which are judicially noticed. This it could not do if this notice were taken for the first time after it had been discharged and the case was on appeal. We, therefore, hold that Rule 201(f), authorizing judicial notice at the appellate level, must yield in the face of the express congressional intent manifested in 201(g) for criminal jury trials. To the extent that the earlier practice may have been otherwise, ⁹ we conceive that it has been altered by the enactment of Rule 201.

Accordingly, the judgment of the district court is affirmed.

1 Prior to trial, the district court had granted Jones' motion to dismiss the indictment, concluding that Section 2511 did not criminalize interspousal wiretaps placed on telephones in the marital home. We reversed, holding that we could not create judicially an interspousal immunity which Congress itself had not chosen to recognize. United States v. Jones, 542 F.2d 661 (6th Cir. 1976). Accordingly, the dismissal was vacated and the cause remanded to the district court for trial.

2 Although Jones' counsel challenged the sufficiency of the government's proof in a motion for new trial, the district court expressly ruled upon it as a motion for judgment of acquittal. After the Supreme Court's decision in Burks v. United States, --- U.S. ----, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), it is immaterial that counsel selected a motion for new trial as the vehicle for disputing the sufficiency of the evidence. Id. at ----, 98 S.Ct. 2141. Where the evidence is in fact insufficient, the only just remedy is a judgment of acquittal, however the issue is brought to the court's attention.

3 Jones' suggestion that we lack jurisdiction to entertain the government's appeal is without merit. Where the jury returns a verdict of guilty, but the trial court thereafter enters a judgment of acquittal for insufficiency of the evidence, the government may appeal, and reinstatement of the jury verdict thereafter would not offend the Double Jeopardy Clause. Burks v. United States, supra, --- U.S. at ----, 98 S.Ct. 2141; United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United...