United States v. Earl Love ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3386
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United States of America
Plaintiff - Appellee
v.
Earl F. Love
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 24, 2021
Filed: December 14, 2021
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Earl F. Love of assault in violation of 18 U.S.C. § 113(a)(6).
The district court1 sentenced him to 84 months in prison, consecutive to a prior
sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
I.
Love was serving a sentence at the U. S. Medical Center for Federal Prisoners
in Springfield, Missouri. He entered the room of another inmate and attacked him,
causing severe injuries, emergency intubation, and facial reconstruction surgery.
Love was charged with assault resulting in serious bodily injury at a place within the
special maritime and territorial jurisdiction of the United States.
At trial, the government requested judicial notice that the United States has
special maritime and territorial jurisdiction over the Center. Love countered that the
Sixth Amendment required the government to prove this jurisdiction as an element
of the offense. During the first day of trial, three witnesses from the Center—a
nursing supervisor, a special investigator, and a special investigative supervisor
technician—testified about the “federal nature” of the Center. The government
presented no other evidence about special maritime and territorial jurisdiction. On
the second day, the district court said, based on its extensive historical research about
the Center, it would take judicial notice of special maritime and territorial
jurisdiction. It denied Love’s motions for acquittal on the basis of insufficient
evidence of special maritime and territorial jurisdiction. The court instructed the
jury that the Center was within special maritime and territorial jurisdiction. The jury
convicted. Love appeals, arguing that the district court violated his Sixth
Amendment rights by its judicial notice of special maritime and territorial
jurisdiction.
For a conviction under 18 U.S.C. § 113(a)(6), the government must prove: (1)
an intentional assault of another person (2) who suffered serious bodily injury (3)
within the special maritime and territorial jurisdiction of the United States. Cf.
United States v. Stymiest, 581 F.3d 759, 766 (8th Cir. 2009) (identifying elements
of § 113(a)(6) where assault occurred in “Indian country”). This appeal involves
only the third element.
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The Enclave Clause of the United States Constitution empowers the federal
government to acquire land within a state. U.S. Const. art. I, § 8, cl. 17; Paul v.
United States, 371 U.S. 245, 264 (1963). For the United States to exercise
jurisdiction over the acquired land, the state must agree to it, and the federal
government must accept it. Paul, 371 U.S. at 264 (holding that, without state assent
to federal jurisdiction, the federal government is “an ordinary proprietor”); Adams
v. United States, 319 U.S. 312, 314-15 (1943) (holding that federal jurisdiction
requires acceptance by the federal government). State agreement may be expressed
by consent at the time of acquisition, or by cession of legislative authority after a
nonconsensual acquisition. Kleppe v. New Mexico, 426 U.S. 529, 542 (1976);
United States v. Brown, 552 F.2d 817, 820 (8th Cir. 1977). For land acquired before
1940, federal acceptance of jurisdiction is presumed in the absence of contrary
evidence. United States v. Redstone, 488 F.2d 300, 302 (8th Cir. 1973). For land
acquired after 1940, there is a presumption against federal acceptance of
jurisdiction. Id., citing 40 U.S.C. § 255 (enacted 1940) (now 40 U.S.C. § 3112)
(statute requiring the federal government to “indicate acceptance of jurisdiction on
behalf of the Government by filing a notice of acceptance with the Governor of the
State or in another manner prescribed by the laws of the State where the land is
situated”).
Love agrees that Missouri consented to federal jurisdiction over the Center.
See § 11072, RSMo 1929 (now § 12.010, RSMo 2016); and § 11073, RSMo 1929
(now § 12.020, RSMo 2016). He disputes federal acceptance.
The district court resolved this issue by judicial notice that the Center land
was acquired by the federal government before 1940. It gave this instruction:
The United States Medical Center for Federal Prisoners in Springfield,
Missouri is a place that falls within the special maritime and territorial
jurisdiction of the United States. Therefore, if you find beyond a
reasonable doubt that the act alleged occurred at the United States
Medical Center for Federal Prisoners in Springfield, Missouri, the third
element of the offense has been met.
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II.
Love contends that this instruction deprived him of his right to a jury trial.
This court reviews claims of constitutional error de novo. United States v. Wessels,
539 F.3d 913, 914 (8th Cir. 2008).
Because this Circuit has not addressed who decides whether a particular place
is “within the special maritime and territorial jurisdiction of the United States,” the
district court applied United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.
1995). Like Love, Hernandez-Fundora was convicted under 18 U.S.C. § 113 for
attacking another prisoner at a federal correctional institution. Hernandez-
Fundora, 58 F.3d at 804. Like here, “the district court took judicial notice that [the
institution] fell within the special maritime and territorial jurisdiction of the United
States, and therefore instructed the jury that if it found ‘beyond a reasonable doubt
that the act alleged occurred [there],’ the jurisdictional element of the offense had
been met.” United States v. Davis, 726 F.3d 357, 365 (2d Cir. 2013) (alterations
added), summarizing Hernandez-Fundora, 58 F.3d at 809. On appeal, Hernandez-
Fundora argued that the jurisdictional element was improperly removed from the
jury. Hernandez-Fundora, 58 F.3d at 809.
The Second Circuit decided that special maritime and territorial jurisdiction
is a question of law:
[T]o determine whether a crime took place within the special maritime
and territorial jurisdiction of the United States requires two separate
inquiries: one to determine the “locus of the crime” and one to
determine the existence vel non of federal jurisdiction. While the
former is plainly a factual question for the jury to decide, the latter—
turning on a fixed legal status that does not change from case to case
and involving consideration of source materials (such as deeds, statutes,
and treaties) that judges are better suited to evaluate than juries—has
always been treated in this Circuit as a legal question that a court may
decide on its own.
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Davis, 726 F.3d at 368, summarizing Hernandez-Fundora, 58 F.3d at 810. The
court added that the legal question of special maritime and territorial jurisdiction
“requires the determination of legislative facts, rather than adjudicative facts,”
relying on this court’s definitions. Hernandez-Fundora, 58 F.3d at 811, quoting
United States v. Gould, 536 F.2d 216, 220 (8th Cir. 1976). The Second Circuit
concluded that because Federal Rule of Evidence 201 applies only to adjudicative
facts, a district court need not submit judicially noticed legislative facts to the jury.
Id. at 812. In short, Hernandez-Fundora’s Sixth Amendment claim failed because
(1) special maritime and territorial jurisdiction is a question of law (2) that turns on
legislative facts (3) that need not be submitted to the jury.
Eighth Circuit precedent aligns with each point. First, federal jurisdiction
over a particular place is a question of law. Offenses within the Major Crimes Act
have a jurisdictional element like the one in 18 U.S.C. § 113(a). For instance, 18
U.S.C. § 1153(a) penalizes Indians who commit certain crimes (including felony
assault under section 113) “within the Indian country.” Whether a crime is within
the Indian country is a bifurcated inquiry: “[I]t is for the court, not the jury, to
determine whether that land is in Indian country. This question . . . is analytically
distinct from . . . whether the crime in fact occurred on a particular piece of land or
within a particular area. The latter question—the location of the crime—is certainly
a factual issue for the jury.” United States v. Stands, 105 F.3d 1565, 1575-76 (8th
Cir. 1997) (alteration added). Stands cited Hernandez-Fundora for the proposition
that “[i]n other factual situations, courts have held that the existence of jurisdiction
over crimes committed in a particular geographic area is a question for the court.”
Id. at n.7, citing Hernandez-Fundora, 58 F.3d at 809-10. See also United States v.
Jackson, 853 F.3d 436, 438 n.2 (8th Cir. 2017) (“The court determines whether a
particular piece of land is in Indian country; the jury then decides whether the crime
in fact occurred on that land.”), discussing United States v. Jackson, 697 F.3d 670(8th Cir. 2012).
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Second, facts that resolve the special maritime and territorial jurisdiction
question are legislative, not adjudicative.
Adjudicative facts have been described as follows: ‘When a court . . .
finds facts concerning the immediate parties who did what, where,
when, how, and with what motive or intent the court . . . is performing
an adjudicative function, and the facts are conveniently called
adjudicative facts . . . . They relate to the parties, their activities, their
properties, their businesses.’ Legislative facts, on the other hand, do
not relate specifically to the activities or characteristics of the litigants
. . . . 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.
Gould, 536 F.2d at 219-20, citing and quoting 2 K. Davis, Administrative Law
Treatise § 15.03 (1958), and footnoting Fed. R. Evid. 201, Notes of Advisory
Committee. In Gould, this court concluded that cocaine hydrochloride’s derivation
from coca leaves “simply cannot be appropriately categorized as an adjudicative
fact. It does not relate to ‘who did what, where, when, how, and with what motive
or intent’ . . . . [It] is a universal fact that is unrelated to the activities of the parties
to this litigation.” Id. at 220 (alteration added). It is “preposterous” to allow a jury
to find that coca leaves qualify as a controlled substance in one proceeding, but not
in another. Id. at 221. Equally here, whether a particular facility is within federal
jurisdiction is a universal truth.
Third, judicially noticed legislative facts need not be submitted to the jury:
“The district court [] may take judicial notice of facts. These facts may be either
adjudicative or legislative . . . . Rule 201 [] does not extend to legislative facts, and
a district court is not obligated to inform the jury that it could disregard the judicially
noticed fact.” United States v. Lopez, 880 F.3d 974, 982 (8th Cir. 2018) (alterations
added) (affirming judicial notice of “a legislative fact—that Sioux City lies within
the geographic bounds of the Northern District of Iowa.”). See also Gould, 536 F.2d
at 221 (“It is clear to us that the District Court took judicial notice of a legislative,
rather than an adjudicative, fact in the present case and rule 201([f]) is inapplicable.
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The District Court was not obligated to inform the jury that it could disregard the
judicially noticed fact.”) (alteration added).
A district court may take judicial notice that a place is within the special
maritime and territorial jurisdiction of the United States and not submit that issue to
the jury, without violating a defendant’s Sixth Amendment rights.
Even so, Love argues that the district court abused its discretion by reviewing
materials outside the evidence and not identifying them. In light of counsel’s lengthy
colloquies with the district court and the absence of any specific objection about the
materials reviewed, this court’s review is at most for plain error. See EEOC v. HBE
Corp., 135 F.3d 543, 551 (8th Cir. 1998) (“A timely and specific objection is
necessary for a successful evidentiary appeal in the absence of plain error.”), citing
Fed. R. Evid. 103. In any event, we need not address the way the district court took
judicial notice, because this court takes judicial notice of special maritime and
territorial jurisdiction over the Center. “Judicial notice may be taken at any stage of
the proceeding, including on appeal, as long as it is not unfair to a party to do so and
does not undermine the trial court’s factfinding authority.” United States v. Jones,
574 F.3d 546, 551 n.2 (8th Cir. 2009). On appeal, the government presents, for the
first time, several public records, including a certified copy of the deed conveying
the Center land to the United States in 1931—when federal acceptance of
jurisdiction was presumed. See United States v. Eagleboy, 200 F.3d 1137, 1140 (8th
Cir. 1999) (public records may be cited for the first time on appeal). Accord Davis,
726 F.3d at 367-69 (judicial notice of special maritime and territorial jurisdiction
taken by Court of Appeals based on documents submitted by the government for
first time on appeal).
III.
Love also challenges the denial of his motions for judgment of acquittal.
“Under Federal Rule of Criminal Procedure 29(a), a district court must grant a
defendant’s motion for judgment of acquittal where the evidence is insufficient to
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sustain a conviction.” United States v. Hardin, 889 F.3d 945, 949 (8th Cir. 2018).
Love argues that the evidence at trial—testimony from three witnesses about the
“federal nature” of the Center—was insufficient for a reasonable jury to find, beyond
a reasonable doubt, that the Center was within the special maritime and territorial
jurisdiction of the United States.
“It is a uniform course of appellate review procedure to decline to review
questions not necessary to a decision of an appellate court.” Caldwell v. DeWoskin,
831 F.3d 1005, 1009 n.5 (8th Cir. 2016), quoting Highland Supply Corp. v.
Reynolds Metals Co., 327 F.2d 725, 729 (8th Cir. 1964). In light of the conclusion
above about judicial notice, this court need not address whether the evidence at trial
was sufficient for a jury to find that the Center is within the special maritime and
territorial jurisdiction of the United States. See United States v. Johnson, 738 F.
Appx. 798, 799 (4th Cir. 2018) (declining to address sufficiency argument because
district court properly took judicial notice that a VA hospital was within the special
maritime and territorial jurisdiction of the United States); United States v. Styles, 75
F. Appx. 934, 935 (5th Cir. 2003) (same). See also Davis, 726 F.3d at 371 (affirming
§ 113(a)(6) conviction based on appellate court’s judicial notice of special maritime
and territorial jurisdiction, despite insufficient evidence presented at trial); United
States v. Redmond, 748 F. Appx. 760, 761-62 (9th Cir. 2018) (“Redmond argues the
government did not provide sufficient evidence to show the assault occurred within
the ‘special maritime and territorial jurisdiction’ of the United States . . . . We do not
need to address Redmond’s sufficiency of the evidence claim, however, because we
can and do take judicial notice that the United States Penitentiary USP at Victorville
(‘USP Victorville’) is within the special maritime and territorial jurisdiction of the
United States.”).
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The judgment is affirmed.
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