UNITED STATES ARMY COURT OF CRIMINAL APPEALS

                                   Before
                         CONN, HOFFMAN, and GIFFORD
                          Appellate Military Judges

                           UNITED STATES, Appellee
                                     v.
                         Specialist GLENN M. BRADLEY
                        United States Army, Appellant

                                ARMY 20080505

      Headquarters, U.S. Army Air Defense Artillery Center & Fort Bliss
                      Jeffrey R. Nance, Military Judge
          Lieutenant Colonel Newt Hill, Acting Staff Judge Advocate

For Appellant:  Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel
Matthew M. Miller, JA; Major Bradley Voorhees, JA; Colonel Allen F.
Bareford, JA
(on brief).

For Appellee:  Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha
L. Foss, JA; Major Sara M. Root, JA; Captain James M. Hudson, JA (on
brief).

                               27 October 2009

                     -----------------------------------
                            OPINION OF THE COURT
                     -----------------------------------

HOFFMAN, Judge:

      An officer panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of conspiring to introduce and distribute
cocaine and ecstasy on divers occasions,[1] and wrongfully distributing
ecstasy and cocaine on divers occasions, in violation of Articles 81 and
112a, Uniform Code of Military Justice, 10 U.S.C. §§ and 881 and 912a
[hereinafter UCMJ].[2]  The convening authority approved the adjudged
sentence to a bad-conduct discharge, confinement for one year, forfeiture
of all pay and allowances for twelve months, and reduction to Private E1.
This case is before this court for review pursuant to Article 66, UCMJ.

      Appellant alleges his conviction for wrongful distribution of ecstasy,
Specification 2 of Charge II, is legally and factually insufficient because
the government erroneously omitted “3[,]4” on the charge sheet from the
chemical name of ecstasy (3,4-methylenedioxymethamphetamine).


      We agree appellant is entitled to relief but for a reason other than
appellant alleges.  We find the evidence factually and legally insufficient
for Specification 2 of Charge II and for that portion of the Specification
of Charge I which references ecstasy.  When a substance is charged under
Article 112a(b)(3), UCMJ, the government must either introduce evidence
that the purported substance is listed in 21 U.S.C. § 812 [hereinafter the
Controlled Substances Act] or request the trial court take judicial notice
of that fact.[3]  The government did neither in this case.  We will grant
relief in our decretal paragraph.


                                    FACTS

      The government’s primary evidence at trial supporting appellant’s
conviction was appellant’s own sworn statement.  In that statement,
appellant admitted he distributed cocaine and ecstasy to another Soldier in
“about five deals.”  Appellant admitted he knew it was illegal to sell
narcotics; however, he was having financial difficulties.


      The government also called Private (PVT) E1 Christopher M. Carelas and
PVT E2 Ryan J. Crane.  Privates Carelas and Crane testified they first met
appellant at a hotel where they agreed to purchase cocaine and ecstasy from
a third party.  After driving to a location to purchase the drugs, they all
went back to appellant’s apartment and “partied.”  The following day, other
Soldiers heard PVTs Carelas and Crane were able to get drugs and PVT
Carelas approached appellant about purchasing more cocaine and ecstasy.
Privates Carelas and Crane thereafter met appellant at various locations
located on Fort Bliss to purchase cocaine and ecstasy from appellant.
Private Carelas testified he met with appellant “five or six times” in
order to get cocaine or ecstasy for later distribution to other Soldiers.

                                Instructions

      After presentation of the evidence on the merits, the military judge
and counsel held a Rule for Courts-Martial [hereinafter R.C.M.] 802 session
to discuss instructions.  The military judge then detailed and continued
that discussion in an Article 39(a), UCMJ, session:

           DC:  The only instruction we would like you to add to the sheet
           per the discussion in your chambers, the defense believes the
           government has the burden to prove that
           methylenedioxymethamphetamine is in fact Ecstasy or that Ecstasy
           is in fact that substance . . . .


           MJ:  I have denied that request. . . .  Whether the government
           has proven those elements beyond a reasonable doubt or not is a
           factual matter for the members to determine . . . .


           DC:  Understood, sir, and the only other thing is that we had
           discussed back in the chambers regarding the Schedule I
           controlled substance issue, and I understand that you have taken
           that off of ----


           MJ:  Right.  I will not instruct the members that
           methylenedioxymethamphetamine is a Schedule I controlled
           substance under the laws of the United States because I have not
           taken judicial notice that that is the case.


                 Instructions on the Elements of the Offense

      For Specification 2 of Charge II the military judge instructed the
panel:

           [T]he accused is charged with the offense of distribution of
           methylenedioxymethamphetamine (Ecstasy), a Schedule I controlled
           substance [emphasis added].  In order to find the accused guilty
           of this offense, you must be convinced by legal and competent
           evidence beyond a reasonable doubt:


           That on divers occasions, between on or about 1 January 2008 and
           on or about 29 February 2008 at or near Fort Bliss, Texas, the
           accused, distributed some amount, more or less of
           methylenedioxymethamphetamine (Ecstasy), a Schedule I controlled
           substance [emphasis added];


           That the accused actually knew he distributed the substance;


           That the accused knew that the substance was
           methylenedioxymethamphetamine (Ecstasy) or of a contraband
           nature; and


           That the distribution was wrongful.

      The military judge did not at any point take judicial notice or
instruct the members that ecstasy (MDMA) was a controlled substance, and
the government presented no evidence on that issue.

                                     LAW

                        Factual and Legal Sufficiency

      Article 66, UCMJ, requires the courts of criminal appeals to conduct
a
de novo review of the legal and factual sufficiency of each case.  United
States v. Washington, 

, 399 (C.A.A.F. 2002) (citation omitted).
The test for legal sufficiency is whether, considering the evidence in the
light most favorable to the government, a reasonable fact-finder could have
found the essential elements beyond a reasonable doubt.  The test for
factual sufficiency is whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the
witnesses, the court is convinced of the accused’s guilt beyond a
reasonable doubt.  United States v. Turner, 

, 325 (C.M.A. 1987).


      This court must base its decision as to legal and factual sufficiency
on the basis of the “entire record.”  United States v. Adams, 

,
372 (C.A.A.F. 2004) (quoting Article 66(c), UCMJ)).  “The review of
findings—of guilt or innocence—[is] limited to the evidence presented at
trial.”  United States v. Beatty, 

, 458 (C.A.A.F. 2007)
(citations omitted).  “A fact essential to a finding of guilty must appear
in the evidence presented on the issue of guilt; it cannot be extracted
from evidence presented in other proceedings in the case . . . .”  United
States v. Boland, 

, 242 (C.M.A. 1975).


                               Judicial Notice

      Military Rule of Evidence [hereinafter Mil. R. Evid.] 201 authorizes a
military judge to take judicial notice of adjudicative facts and Mil. R.
Evid. 201A authorizes judicial notice of domestic law.  Military Rule of
Evidence 201A(a) also recognizes that domestic law can be an adjudicative
fact if it is a fact of consequence contested at trial.  See United States
v. Ayers, 

, 90-91 (C.A.A.F. 2000) (when an accused is charged
with violation of a general order, the actual order is an adjudicative fact
of consequence and may be judicially noticed).  The procedural requirements
of Mil. R. Evid. 201 apply when a court takes judicial notice of domestic
law.  See Mil. R. Evid. 201A(a).  Pursuant to Mil. R. Evid. 201(c) the
military judge may take judicial notice, whether requested or not.

                                 DISCUSSION

      The merits portion of appellant’s court-martial contains no evidence
that ecstasy is a Schedule I controlled substance, which is an essential
element of the offense.  The trial counsel did not introduce a copy of the
Controlled Substances Act into evidence nor request that the military judge
take judicial notice of the statute.  Indeed, the military judge
affirmatively stated he had not taken judicial notice that ecstasy is a
Schedule I controlled substance.  While the Charge Sheet (DD Form 458, May
2000) properly alleges the essential fact that ecstasy is a Schedule I
controlled substance, the record contains no evidence to support that
allegation.

      In United States v. Williams, 

, 156 (C.M.A. 1977), the
Court of Military Appeals (COMA) reversed a conviction of a Soldier for
violation of a lawful general regulation by selling marijuana when the
record contained no evidence of the Army regulation prohibiting that
activity.  The COMA declined to take judicial notice of the Army’s drug
prohibition regulation or to presume the trial judge took judicial notice
of the regulation.  

 There was no mention at trial and no
evidence of the contents of the regulation; the only reference to the
regulation was in the specification on the charge sheet.

      Similar to Williams, the only evidence presented at trial that ecstasy
was a controlled substance was its reference on the Charge Sheet.  This is
not properly admitted evidence for our Article 66, UCMJ, review.  See
United States v. Hill, 

, 714 (N.M.C.M.R. 1993).  Ecstasy is
neither a named prohibited substance under Article 112a(b)(1), UCMJ, nor
has it been listed on any schedule prescribed by the President for the
purposes of Article 112a(b)(2), UCMJ.  Therefore, in order to convict
appellant, the government must prove that ecstasy was a controlled
substance on Schedule I within the meaning of Article 112a(b)(3), UCMJ.  As
a statutory element of the offense, there is no predicate for our court to
presume that
ecstasy is a Schedule I controlled substance.[4]  The government must
otherwise prove beyond a reasonable doubt every element of an offense.
They failed to do so in this case.  See generally United States v. Burton,

(C.A.A.F. 2009).


      Evidentiary gaps may not be filled in post-trial by appellate courts
when the government fails to make a proper offer of proof at trial.  United
States v. Wootton, 

, 919 (N.M.C.M.R. 1988).  When an accused is
charged with a drug not otherwise listed by Article 112a, UCMJ, the
operative portion of the Controlled Substances Act must be entered into
evidence or the court must take judicial notice the charged substance is
listed in the Controlled Substances Act.  See e.g. United States v.
Wisniewski, 

, 142 (7th Cir. 1984) (district court properly took
judicial notice that the drug was a Schedule I controlled substance);
United States v. Coffman, 

, 194-95 (10th Cir. 1981) (the
district court may instruct the jury that a drug is a controlled substance
listed on a particular schedule); United States v. Gould, 

, 219-
221 (8th Cir. 1976) (trial court properly took judicial notice of fact that
cocaine hydrochloride is a Schedule II controlled substance).


                                 CONCLUSION

      There was no evidence in appellant’s case demonstrating that ecstasy
is a Schedule I controlled substance.  Therefore, there is insufficient
evidence to support appellant’s convictions for wrongful distribution of,
or conspiracy to distribute, ecstasy.  Accordingly, the finding of guilty
to Specification 2 of Charge II is set aside and dismissed.  We affirm the
finding of guilty to Charge I and its Specification except the words:
“and/or wrongful introduction and/or distribution of
methylenedioxymethamphetamine (Ecstasy), a schedule I controlled substance”
and “and/or methylenedioxymethamphetamine (Ecstasy).”


      We have considered the matters personally raised by appellant under
United States v. Grostefon, 

(C.M.A. 1982), and find them
without merit. The
remaining findings of guilty are affirmed.


      As a result of our action on the findings regarding Charge I and
Specification 2 of Charge II, we must reassess the appellant’s sentence.
See United States v. Sales, 

, 307 (C.M.A. 1986); United States
v. Moffeit, 

, 42 (C.A.A.F. 2006).  We are satisfied that the
sentencing landscape in this case has not changed dramatically.  United
States v. Buber, 

, 479 (C.A.A.F. 2006). After reviewing the
evidence presented on the merits and on sentencing, we conclude the
adjudged sentence for the affirmed offenses—conspiracy to introduce and
distribute cocaine on divers occasions and distribution of cocaine on
divers occasions—would have been at least the same as that adjudged by the
members and approved by the convening authority.  

      Senior Judge CONN and Judge GIFFORD concur.

                                  FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court
-----------------------
[1]  The drug 3,4-methylenedioxymethamphetamine, also known as ecstasy or
MDMA, “is an illegal drug that acts as both a stimulant and psychedelic,
producing an energizing effect, as well as distortions in time and
perception and enhanced enjoyment from tactile experiences.”  See U.S. Drug
Enforcement Administration Homepage, Drug Information, at
http://www.usdoj.gov/dea/concern/mdma.html (last visited 8 Oct. 2009); see
also United States v. Fay, 

(C.G. Ct. Crim. App. 2004).  Since
1988, ecstasy has been a Schedule I controlled substance under federal law.
 See generally United States v. Reichenbach, 

(C.M.A. 1989)
(discussing placement of ecstasy on Schedule I).

[2] In addition, appellant was convicted of wrongful introduction of
cocaine and ecstasy; however, those specifications were later dismissed by
the convening authority.

[3] We have considered and rejected the possibility of affirming
appellant’s conviction for the lesser-included offense of attempted
distribution of ecstasy.  We recognize lack of evidence that a substance is
in fact what it is alleged to be does not negate an accused’s intent to
attempt to possess or distribute a controlled substance.  See United States
v. LaFontant, 

(C.M.A. 1983) (Affirming conviction of a lesser-
included offense of attempted possession of LSD where proof of the
substance was in fact LSD lacking.); See also United States v. Lee, 

(C.G. Ct. Crim. App. 2005) (Possession of spore that will develop into
psilocybin mushrooms sufficient to convict of attempted possession of that
controlled substance.)  Unlike LaFontant and Lee, the failure of proof in
this case is not appellant’s intent to distribute a controlled substance,
but proof that ecstasy is in fact a controlled substance under Article
112a, UCMJ.

[4] We note appellant’s confession to distributing ecstasy was admitted
into evidence.  That fact, however, only addresses the knowledge element,
which may be satisfied by proof of appellant’s understanding of a
substance’s contraband nature.  United States v. Mance, 

, 254
(C.M.A. 1988).  That does not, however, relieve the government of offering
evidence on the element that the substance listed in the specification is
in fact a controlled substance under Article 112a (b)(3), UCMJ.  Similarly,
the government may not rely on an inference that ecstasy is a derivative of
a named drug such as methamphetamine in 112a(b)(1), since it offered no
evidence on that theory.  See Reichenbach, 

at 136; United States
v. McCracken, 

, 468 (C.A.A.F. 2009) (“[a]n appellate court may
not affirm an included offense on a theory not presented to the trier of
fact.” (citations and quotation omitted)).