U.S. v. Piggie, 79-1001

• Citation: 622 F.2d 486
• Decision Date: 21 May 1980
• Docket Number: No. 79-1001,79-1001
• Parties: 6 Fed. R. Evid. Serv. 247 UNITED STATES of America, Plaintiff-Appellee, v. Clifton Cecil PIGGIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 486

622 F.2d 486

6 Fed. R. Evid. Serv. 247

UNITED STATES of America, Plaintiff-Appellee, v. Clifton Cecil PIGGIE, Defendant-Appellant.

No. 79-1001.

United States Court of Appeals Tenth Circuit.

Submitted April 21, 1980.

Decided May 21, 1980.

James P. Buchele, U. S. Atty., and Roger M. Theis, Asst. U. S. Atty., Topeka, Kan., for plaintiff-appellee.

Leonard D. Munker, Federal Public Defender and David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan., for defendant-appellant.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App. P. 34(a); 10th Cir. R. 10(e). The cause is therefore ordered submitted without oral argument.

The defendant was charged with the crime of sodomy pursuant to 18 U.S.C. §§ 2, 7 and 13. The offenses were incorporated in accordance with the law of Kansas where the alleged offenses took place, the particular crimes being defined in 21 K.S.A. § 3506.

Counts I and II charged that on or about the 26th day of April, 1978, within the special maritime and territorial jurisdiction of the United States and in the District of Kansas, the defendant with force or threat of force committed sodomy on the person of Harley Wilmer Catlow. Count III alleged that on the 1st day of May, 1978, the defendant did, within the special maritime and territorial jurisdiction of the United States and in the District of Kansas, with force or threat of force commit sodomy on the person of William Paul Gullett, all in violation of the Kansas statute cited above and 18 U.S.C. §§ 2, 7 and 13. The fourth count was similar. It stated that on the 1st day of May, 1978, within the jurisdiction of the United States and in the District of Kansas, the defendant committed the same offense in violation of the Kansas statute cited above and the United States Code sections. ¹

The jury returned verdicts of guilty as to simple sodomy in Count I and aggravated sodomy with force or threats in each of the other counts.

The record reveals, from the testimony of the alleged victims, the details of the acts in question. The case is extraordinary in that both Catlow and Gullett actually testified to the acts. Other inmates and physicians also testified to other facts. Details of their testimony are not seriously challenged, and thus it is unnecessary to detail the facts. Defendant's contention was that neither force nor threats were used; that the victims consented.

The defendant's contention in this court is that the trial court erred in not instructing the jury that it might, but was not required to, accept as conclusive the court's having judicially noticed that the United States Penitentiary in Leavenworth is an area of special maritime and territorial jurisdiction of the United States.

The complaint here (on this appeal) is that the government failed to offer testimony establishing the location of the Federal Penitentiary as being within the federal maritime and territorial jurisdiction of the United States. The government asked the court to take judicial notice of the fact that the penitentiary was within the special maritime and territorial jurisdiction of the United States and in the District of Kansas. The court did so over the objection of defense counsel. At the same time, so it is contended, the court compounded the error by failing to read to the jury Fed.R.Evid.

201(g), which provides in pertinent part: "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." The jury was properly instructed that the court had taken judicial notice of the fact in question. United States v. Blunt, 558 F.2d 1245 (6th Cir. 1977); United States v. Carter, 430 F.2d 1278 (10th Cir. 1970). The argument from this is that the jury was not allowed to determine the issue as to the location of the penitentiary as a question of fact in accordance with the statute. The defendant, so it is argued, is therefore deprived of an important part of his jury trial.

Considering the mandatory form of the statute, the contention gives some pause and also gives rise to a careful screening of the transcript of testimony. From this latter, we conclude that there is ample evidence in the record which allowed the jury to make the determination as an issue of fact and hence the failure of the court to give the instruction did not create prejudice.

Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial and thus it is within the general definition contained in Fed.R.Evid. 201(b), which provides:

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.

There exists another reason for nonacceptance of the defendant's position and that is the instruction based upon Rule 201(g) requiring the giving of the instruction which says that the jury "may, but is not required to, accept as conclusive any fact judicially noticed." There is no longer any question raised as to the Leavenworth penitentiary being within the territorial jurisdiction of the trial court. Now the argument raised is that the defendant was deprived of his right to a jury trial contrary to the Constitution of the United States. While we do not wish to criticize the Public Defender for raising the question, particularly in view of the fact that this is all he has, we cannot bring ourselves to give effect to it. To do so would be an exercise in the absurd.

There are other reasons. The request for the instruction which the defendant now claims to be a substantial violation of his rights was not even raised in the trial court, and Fed.R.Crim.P. 52 requires that there be a request at the trial level in order for the court to consider it on appeal. This subsection of Rule 52 provides as follows: "(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." A general objection does not, of course, suffice. In order to look at it on appeal, it must appear that the matter was serious. See United States v. Harper, 579 F.2d 1235 (10th Cir. 1978); Lowther v. United States, 455 F.2d 657 (10th Cir. 1972).

As to prejudice, it seems unlikely, in view of the record, and particularly the transcript of testimony, that the jury might have acquitted the defendant had the instruction been given, whereby it would have known that it was not bound by the court's taking judicial notice. Therefore, prejudice is not demonstrated.

The evidence establishing guilt is not merely sufficient, it is overwhelming. Also, the transcript reveals that there is ample evidence in support of the conclusion that Leavenworth is in fact within the United States and the State of Kansas. ^*

The judgment is affirmed.

APPENDIX

The record is replete with evidence and references regarding the location and federal nature of the United States Penitentiary at Leavenworth, Kansas.

The court, in taking judicial notice, instructed the jury as follows:...