UNITED STATES, Appellee 

v. 

Charles W. PAUL, Airman 

U.S. Air Force, Appellant 

No. 14-0119 

Crim. App. No. S32025 

United States Court of Appeals for the Armed Forces 

Argued March 4, 2014 

Decided May 29, 2014 

BAKER, C.J., delivered the opinion of the Court in which 

ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined. 

Counsel

For Appellant: Captain Christopher James (argued); Major Zaven 

T. Saroyan (on brief). 

For Appellee: Captain Matthew J. Neil (argued); Colonel Don M. 

Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R. 

Bruce, Esq. (on brief) 

Military Judge: Jeffrey A. Ferguson 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 

 
United States v. Paul, No. 14-0119/AF 

2

Chief Judge BAKER delivered the opinion of the Court. 

Airman Charles W. Paul was convicted by a military judge, 

contrary to his plea, of one specification of using ecstasy in 

violation of Article 112a of the Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 912a (2012).1 The adjudged and 

approved sentence included a bad-conduct discharge, five months 

of confinement, and reduction to E-1. Appellant argued before 

the United States Air Force Court of Criminal Appeals (CCA) that 

the evidence was legally insufficient to support his conviction 

on the ecstasy charge. The CCA affirmed, holding that a 

reasonable factfinder could have found the essential elements 

beyond a reasonable doubt. United States v. Paul, No. ACM 

S32025, 2013 CCA LEXIS 747, at *2, *10 (A.F. Ct. Crim. App. Aug. 

23, 2013) In doing so, the CCA took judicial notice of the fact 

that ecstasy is a Schedule I controlled substance. Paul, 2013 

CCA LEXIS 747, at *10. 

 We granted review on the following issue: 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED 

WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE 

IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 

(1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c). 

 

1

 Appellant was also charged with two specifications of violating 

an order by smoking spice (Article 92, UCMJ, 10 U.S.C. § 892 

(2012)); one specification of using marijuana (Article 112a, 

UCMJ); and one specification of soliciting fellow servicemembers 

to disobey a general order by smoking spice (Article 134, UCMJ, 

10 U.S.C. § 934 (2012)). He pled guilty to smoking spice and 

was convicted by the military judge, contrary to his pleas, of 

the remaining charges.
United States v. Paul, No. 14-0119/AF 

3

 We conclude that the evidence presented at trial was not 

legally sufficient to support a conviction for using 3,4-

methylenedioxymethamphetamine in violation of Article 112a, 

UCMJ. We further hold that the CCA erred in taking judicial 

notice of a missing element of the crime charged. 

BACKGROUND 

Appellant was charged with one specification of using 3,4-

methylenedioxymethamphetamine on diverse occasions. The 

specification read: 

In that AIRMAN CHARLES W. PAUL, United States Air 

Force, 355th Aircraft Maintenance Squadron, DavisMonthan Air Force Base, Arizona, did, at or near 

Tucson, Arizona, on diverse occasions between on or 

about 1 June 2011 and on or about 31 July 2011, 

wrongfully use 3,4-methylenedioxymethamphetamine, a 

Schedule I controlled substance, commonly known as 

Ecstasy, Ex or E. 

Appellant was tried before a military judge alone at DavisMonthan Air Force base in Arizona on January 4 and 5, 2012. As 

part of the prosecution’s case, a civilian witness, Holly Kern, 

testified that she had seen Appellant using ecstasy in his 

apartment on two separate occasions during the charged time 

period. Ms. Kern described the tablets, explained her role in 

procuring them, and detailed the drug’s effects when she took 

the same pills herself. In addition, she testified to seeing 

Appellant put the substance into his mouth under the belief that 
United States v. Paul, No. 14-0119/AF 

4

it was ecstasy. The Government also admitted into evidence 

several text messages sent from Appellant’s phone2

 stating: 

I’m gonna reward myself with some e tonight. 

Hey grab me 4 rolls3

 when you get yours. . . . I’m 

being a designated driver tonight so I need some E. 

[We] are excited about rolling. . . . We aren’t gonna 

have any of my military friends over here for obvious 

reasons. 

 Though the charge sheet stated that Appellant did 

“wrongfully use 3,4-methylenedioxymethamphetamine, a Schedule I 

controlled substance, commonly known as Ecstasy,” and in 

closing argument, the Government used a slide that read, 

“Accused used 3,4-methylenedioxymethamphetamine, commonly known 

as Ecstasy, Ex or E,” the Government did not enter anything into 

evidence indicating that Ecstasy is in fact 3,4-

methylenedioxymethamphetamine.4

 The military judge granted the 

Government’s motion to take judicial notice of a general order 

prohibiting use, possession, distribution, or purchase of spice. 

However, the military judge did not take judicial notice of 

anything else. 

 

2

 The messages were obtained by investigators through a 

consensual search of Appellant’s phone. 

3

 Ms. Kern testified that “rolls” and “rolling” are common slang 

associated with ecstasy use. 

4

 As discussed below, ecstasy is not listed in Schedule I. 
United States v. Paul, No. 14-0119/AF 

5

 The military judge convicted Appellant of all charges, 

including use of ecstasy. Appellant appealed to the CCA, 

arguing that the evidence was legally insufficient to support 

the ecstasy conviction. The CCA stated that “[t]he fact that 

Ecstasy is a Schedule I controlled substance is an essential 

element of the offense charged” and agreed that no evidence of 

this fact was introduced at trial. It rejected the notion that 

the military judge did or was entitled to take judicial notice, 

sub silentio, that ecstasy is a Schedule I controlled substance. 

However, noting that “judicial notice in this case involves a 

question of domestic law rather than an adjudicative fact,” and 

that “there is no question that Ecstasy is a Schedule I 

controlled substance under the laws of the United States,” the 

CCA decided to take “the extraordinary step of judicially 

noticing domestic law on appeal.” The CCA determined that, had 

the Government requested that the military judge take judicial 

notice of this fact, the military judge would have done so. The 

CCA approved the findings and the sentence of the military 

judge. 

DISCUSSION 

Legal Sufficiency

Before ruling on the granted issue, we first address the 

threshold question raised by Appellant before the CCA: Was the 
United States v. Paul, No. 14-0119/AF 

6

evidence presented at trial legally sufficient to support the 

ecstasy conviction? 

The test for legal sufficiency is “‘whether, after viewing 

the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.’” United States v. 

Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). Article 112a, UCMJ, has 

two related elements: (1) use of a controlled substance, that 

is (2) wrongful. The term “controlled substance” is defined in 

Article 112(a), UCMJ, in three ways: (1) by what is listed in 

the text of the article, (2) through reference to a schedule as 

prescribed by the President, and (3) through reference to 

Schedules I through V of the Controlled Substances Act.5 As 

 

5

 Specifically, Article 112a, UCMJ, provides: 

(a) Any person subject to this chapter who wrongfully 

uses, possesses, manufactures, distributes . . . a 

substance described in subsection (b) shall be 

punished as a court-martial may direct. 

(b) The substances referred to in subsection (a) are 

the following: 

(1) Opium, heroin, cocaine, amphetamine, lysergic 

acid diethylamide, methamphetamine, 

phencyclidine, barbituric acid, and marijuana and 

any compound or derivative of any such substance. 

(2) Any substance not specified in clause (1) 

that is listed on a schedule of controlled 
United States v. Paul, No. 14-0119/AF 

7

stated in the specification, 3,4-methylenedioxymethamphetamine 

is a Schedule I controlled substance. The substance 3,4-

methylenedioxymethamphetamine is also commonly referred to as 

ecstasy. 

The problem in the present case, as the CCA observed, is 

that the Government did not offer evidence at trial that 

Appellant used 3,4-methylenedioxymethamphetamine, that 3,4-

methylenedioxymethamphetamine is a controlled substance, or that 

3,4-methylenedioxymethamphetamine is commonly referred to as 

ecstasy. To the contrary, the Government offered legally 

sufficient evidence that Appellant used “ecstasy.” Ecstasy is 

neither a named prohibited substance under Article 112a, nor has 

it been listed on any schedule prescribed by the President. 

Schedule I does not list ecstasy by name, or link the term to 

3,4-methylenedioxymethamphetamine. See 21 C.F.R. § 1308.11 

(2013). Nowhere did the Government -- through expert testimony, 

through stipulation on the part of Appellant, or through 

requesting that the military judge take judicial notice -- 

establish that ecstasy and 3,4-methylenedioxymethamphetamine are 

 

substances prescribed by the President for the 

purposes of this article. 

(3) Any other substance not specified in clause 

(1) or contained on a list prescribed by the 

President under clause (2) that is listed in 

schedules I through V of section 202 of the 

Controlled Substances Act (21 U.S.C. 812). 
United States v. Paul, No. 14-0119/AF 

8

the same thing. Nor did the military judge indicate that he was 

taking judicial notice of this on his own motion. In short, the 

Government’s evidence did not make the essential connections 

among ecstasy, 3,4-methylenedioxymethamphetamine, and 

Schedule I. 

As a result, no rational trier of fact could have found an 

essential element of the charged offense beyond a reasonable 

doubt, namely that Appellant used a Schedule I controlled 

substance. 

Judicial Notice 

The question raised by the granted issue is whether the CCA 

could take judicial notice of a fact necessary to establish an 

element of the offense that the Government failed to establish 

at trial. This Court reviews questions of law de novo. United 

States v. Springer, 58 M.J. 164, 167 (C.A.A.F. 2003). 

Judicial notice is regulated by Military Rules of Evidence 

(M.R.E.) 201 and 202:6

 

Rule 201. Judicial Notice of Adjudicative Facts 

(a) Scope. This rule governs judicial notice of an 

adjudicative fact only, not a legislative fact. 

 

6

 Executive Order 13643, issued on May 15, 2013, contains the 

current version of M.R.E. 201 and M.R.E. 202. Since the CCA 

issued its decision on August 23, 2013, we apply this most 

recent version. Exec. Order No. 13,643, 78 Fed. Reg. 29,561 

(May 21, 2013). 
United States v. Paul, No. 14-0119/AF 

9

(b) Kinds of Facts that May Be Judicially Noticed: The 

military judge may judicially notice a fact that is not 

subject to reasonable dispute because it: 

(1) is generally known universally, locally, or 

in the area pertinent to the event; or 

(2) can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned 

(c) Taking Notice. The military judge: 

(1) may take judicial notice whether requested or not; 

or 

(2) must take judicial notice if a party requests it 

and the military judge is supplied with the necessary 

information. 

The military judge must inform the parties in open 

court when, without being requested, he or she takes 

judicial notice of an adjudicative fact essential to 

establishing an element of the case. 

(d) Timing. The military judge may take judicial notice at 

any stage of the proceeding. 

(e) Opportunity to Be Heard. On timely request, a party is 

entitled to be heard on the propriety of taking judicial 

notice and the nature of the fact to be noticed. If the 

military judge takes judicial notice before notifying a 

party, the party, on request, is still entitled to be 

heard. 

(f) Instructing the Members. The military judge must 

instruct the members that they may or may not accept the 

noticed fact as conclusive. 

Rule 202. Judicial Notice of Law 

(a) Domestic Law. The military judge may take judicial 

notice of domestic law. If a domestic law is a fact that 

is of consequence to the determination of the action, the 

procedural requirements of Mil. R. Evid. 201 -- except Rule 

201(f) -- apply. 
United States v. Paul, No. 14-0119/AF 

10

 As a threshold matter, we affirm that an appellate court 

can take judicial notice of law and fact under certain 

circumstances. M.R.E. 201 mentions only the military judge when 

outlining the proper procedure for taking judicial notice. 

However, case law is well settled that both military and 

civilian appellate courts may take judicial notice of 

indisputable facts. In Heller v. New York, for example, a case 

concerning the seizure of film reels in an obscenity case, the 

Supreme Court took judicial notice of the fact that such films 

“may be compact, readily transported for exhibition in other 

jurisdictions, easily destructible, and particularly susceptible 

to alteration.” 413 U.S. 483, 493 (1973). In addition, the 

Notes of Advisory Committee on Rules for Fed. R. Evid. 201 state 

that “judicial notice may be taken at any stage of the 

proceedings, whether in the trial court or on appeal.” Although 

the M.R.E. does not contain a similar note, this Court has 

consistently recognized the ability of appellate courts to take 

judicial notice of indisputable facts. In United States v. 

Williams, for example, despite finding that the jurisdictional 

questions at issue in the case were disputable, the Court stated 

that “[w]e are convinced, however, that this Court is entitled 

to take judicial notice of indisputable facts.” 17 M.J. 207, 

214 (C.M.A. 1984).7

 

 

7

 See also United States v. Erickson: 
United States v. Paul, No. 14-0119/AF 

11

The problem in this case is that the CCA took the 

“extraordinary step” of taking judicial notice of an element not 

proven by the Government. The CCA justified this step, in part, 

by noting that it was taking judicial notice of a question of 

domestic law and not an adjudicative fact. However, this 

analysis fails for two reasons. First, whether characterized as 

a question of fact or law, M.R.E. 201 in this case would require 

that the Appellant first have notice and an opportunity to be 

heard. On adjudicative facts this is always the case. Id. 

However, as M.R.E. 202 states, it is also the case “[i]f a 

domestic law is a fact that is of consequence to the 

determination of the action.” Second, and related, the CCA took 

judicial notice of an element of the offense.8 

 

Appellant has provided no information on appeal that would 

undermine the validity of his acknowledgement at trial as 

to the harmful effects of inhalation of nitrous oxide. On 

the contrary, we take judicial notice of the fact that a 

number of states have recognized the harmful effects by 

criminalizing inhalation of nitrous oxide. 

61 M.J. 230, 233 (C.A.A.F. 2005). 

8

 The issue before the CCA might have been framed as a question 

of indisputable adjudicative fact: Are ecstasy and 3,4-

methylenedioxymethamphetamine the same substance? It might also 

have been framed, as the CCA chose to interpret it, as a 

question of domestic law: Is ecstasy a statutorily regulated 

Schedule I controlled substance for the purposes of Article 

112a, UCMJ? 
United States v. Paul, No. 14-0119/AF 

12

It is a fundamental principle of due process that in order 

to prove its case, the government must present evidence at trial 

supporting each element of the charged offenses beyond a 

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). 

Further, “[t]he review of findings -- of guilt or innocence -- 

[is] limited to the evidence presented at trial.” United States 

v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citation 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, 1 M.J. 241, 242 (C.M.A. 1975). 

In Garner v. Louisiana, the Supreme Court made clear these 

principles apply to the taking of judicial notice on appeal: 

To extend the doctrine of judicial notice to the length 

pressed by the respondent would require us to allow the 

prosecution to do through argument to this Court what it is 

required by due process to do at the trial, and would be 

“to turn the doctrine into a pretext for dispensing with a 

trial.” Furthermore, unless an accused is informed at the 

trial of the facts of which the court is taking judicial 

notice, not only does he not know upon what evidence he is 

being convicted, but, in addition, he is deprived of any 

opportunity to challenge the deductions drawn from such 

notice or to dispute the notoriety or truth of the facts 

allegedly relied upon. 

368 U.S. 157, 173, (1961) (citation omitted).9

 When judicial 

notice of an element is taken outside the context of the trial 

 

9

 The issue granted in this case references the CCA’s alleged 

violation of the Supreme Court’s decision in Garner. However, 

we do not find Garner on point for two reasons. First, Garner
United States v. Paul, No. 14-0119/AF 

13

itself, the defendant is denied his due process right to 

confront or challenge an essential fact establishing an element, 

whether or not the fact is indisputable. 

 Thus, even if, as asserted by the CCA, “there is no 

question that Ecstasy is a Schedule I controlled substance under 

the laws of the United States” and “had the Government requested 

the military judge to take judicial notice that Ecstasy is a 

Schedule I controlled substance at trial, the military judge 

would have done so, even over a possible objection by the 

defense” an accused is entitled to have each element of the 

charged crime established at trial. Paul, 2013 CCA LEXIS 747, 

at *10. 

This conclusion is consistent with longstanding case law. 

In United States v. Williams, we reviewed the appellant’s 

convictions for larceny, in violation of Article 121, UCMJ, 10 

U.S.C. § 921, and sale of marijuana in violation of Article 92, 

UCMJ (disobeying a general order). 3 M.J. 155, 156 (C.M.A. 

1977). At trial, before a military judge alone, the government 

 

addressed whether a higher court can assume that the trial court 

took judicial notice of a fact rather than the right of the 

higher court to take judicial notice of that fact. Garner, 368 

U.S. 157 at 173. In United States v. Irvin, this Court 

dismissed the notion that a military judge could take judicial 

notice “‘by implication’” and neither party is arguing before 

this Court that the military judge did so in this case. 21 M.J. 

184, 186 (C.M.A. 1986). Secondly, unlike in this case, the 

question in Garner -- the state of racial tensions and relations 

in the South -- concerned a matter of subjective judgment open 

to dispute. Garner, 368 U.S. at 173. 
United States v. Paul, No. 14-0119/AF 

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failed to introduce into evidence a copy of the regulation the 

appellant had allegedly violated or to request that the military 

judge take judicial notice of the regulation. Id. Nor was 

there any indication that the military judge took judicial 

notice of the regulation on his own motion. Id. This Court 

found that, absent proof of this element of the crime, the 

record was legally insufficient to warrant conviction, stating 

that “[c]learly where the matter to be judicially noticed is 

essential to the case in order for the act to become criminal, 

it must be reflected in the record of trial and cannot be later 

assumed.” Id. (citation omitted). Rather than opting to take 

judicial notice of the regulation itself, this Court found that: 

Judicial notice is a procedure for the adjudication of 

certain facts or matters without the requirement of formal 

proof. It cannot, however, be utilized as a procedure to 

dispense with establishing the government’s case. Absent 

clear indication on the record that the trial judge 

properly judicially noticed a regulation in a prosecution 

for a violation of Article 92(1), we must hold that the 

judge did not have before him any evidence that what the 

accused did was a crime. . . . 

. . . . 

As the evidence of record is legally insufficient to 

sustain a finding of guilty of failure to obey a lawful 

general regulation, we are required to dismiss that charge. 

Id. at 157 (citations omitted). Like the regulation at issue in 

Williams, the fact that ecstasy is a Schedule I controlled 

substance is an essential element that was not established in 
United States v. Paul, No. 14-0119/AF 

15

the Government’s case, let alone proved beyond a reasonable 

doubt.10 

As a result, we hold that while a CCA might generally take 

judicial notice of an undisputed fact or question of domestic 

law that is important to the resolution of an appellate issue, 

it cannot take judicial notice of facts necessary to establish 

an element of the offense. 

DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is reversed as to Specification 1 of Charge II 

and the sentence. The finding of guilty to Specification 1 of 

 

10 We note as well that the position is consistent with the Army 

Court’s handling of a similar issue. In United States v. 

Bradley, the Army CCA faced a set of facts almost identical to 

those set forth in this case and reached a conclusion identical 

to that in Williams. 68 M.J. 556, 557, 560 (A. Ct. Crim. App. 

2009). Among other charges, the appellant was convicted, 

contrary to his pleas, of wrongfully distributing ecstasy on 

divers occasions in violation of Article 112a, UCMJ. Id. 

However, during the merits part of the court-martial, the 

government offered no evidence that ecstasy was a Schedule I 

controlled substance, nor did it request that the military judge 

take judicial notice of this fact. Citing Williams, the Army 

CCA found that: 

As a statutory element of the offense, there is no 

predicate for our court to presume that ecstasy is a 

Schedule I controlled substance. The government must 

otherwise prove beyond a reasonable doubt every element of 

an offense. They failed to do so in this case. 

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. 

Id. (footnote and citations omitted). 
United States v. Paul, No. 14-0119/AF 

16

Charge II is set aside and the specification is dismissed. The 

decision as to the remaining findings of guilty is affirmed. 

The record of trial is returned to the Judge Advocate General of 

the Air Force for remand to the Court of Criminal Appeals for 

reassessment of the sentence.