The Thin Line Between Judicial Notice And Judicial Independence

In sentencing defendants for conspiring to sponsor or exhibit animals in a fighting venture, trial judge acted within his powers when, not using FRE 201 to take judicial notice, but rather conducted his own research and "sua sponte submitted his own [research] report on dog fighting, which he entered into the record as a 'sentencing memorandum'" for background relevant to sentencing the defendants who pleaded guilty to that offense, in United States v. Courtland, __ F.3d __ (7th Cir. April 27, 2011) (Nos. 10-2436, 10-2468, 10-2469)

According to the Seventh Circuit, "[j]udges generally are under no obligation to relate all they have learned about a species of crime from whatever source to those accused of the crime in question. We note with approval that the district court was concerned with giving the parties the opportunity to comment on the general reference material it consulted. To do so here was in keeping with the spirit of, but not required by, the Code of Conduct for United States Judges in the sense that the Code of Conduct requires judges to give parties an opportunity to respond to ex parte communications." In a recent case the circuit explored the relation between judicial notice of adjudicative fact under FRE 201 and judicial use of legislative fact. The lesson that the case illustrated, suggested the circuit, was that "innovative procedures can simetimes be very hellpful and are not to be automatically condemned as without precedent." Courtland, __ F.3d at __ (footnote omitted).

In the case, several defendants pleaded guilty to operating a dog fighting conspiracy of "over 120 pitbulls, most of which were so aggressive that the Humane Society [ultimately] destroyed them." In court sentenced the defendants and they appealed the sentencing, contending that the court improperly had exceeded its powers and had engaged in its own independent research, violating the separation of roles between counsel and adjudicator. The defendants' contentions on appeal concerned the trial judge's action to "sua sponte submit[] his own report on dog fighting, which he entered into the record as a 'sentencing memorandum.'” The reason for this step, the judge explained to the parties, was that the judge's research would be set out in the memorandum and that "the document's purpose was to fulfill '[the court's] sentencing obligation, ... to consider the "the nature and circumstances of the offense“' under 18 U.S.C. § 3553(a)(1). The district court judge indicated that, unlike most crimes with which he dealt, he had little general knowledge of dog fighting and he felt he ought to conduct his own research into the subject. He also stated that the memorandum was 'entered well in advance of the sentencing hearing in the instant case in order to provide the parties with research the Court has gleaned outside the record in this case." Courtland, __ F.3d at__.

The memo the judge filed was a 22-page affair that:

surveyed the history and the present state of dog fighting, in the United States and abroad. The memorandum was marked by a tone of concern and alarm, and it described a host of the worst abuses in the dog fighting world as disclosed in various sources. For one example, the memorandum stated that “[t]o increase aggression, these dogs may be starved, have lit cigarettes burned into their coats, or may be beaten with a variety of crude instruments including broken bottles, pipes, or even machetes.” The memorandum directly linked dog fighting with other crimes, stating “dog fighting is closely associated with some of the most serious crimes plaguing our society and may involve people with extensive criminal backgrounds.” The memorandum occasionally seemed to portray dog fighting as a threat running to the very heart of civil society.... And at one point, the memorandum seemed to be transformed into an exercise in post-apocalyptic vision, describing depressed urban areas where “packs of feral dogs patrol the streets in search of food.”
Courtland, __ F.3d at__.


However, at sentencing the defendants failed to object to the judge's memorandum. Some of the defendants used the memorandum as a basis for arguing that under the court's terminology, the defendants were more in the nature of a “hobbyists” as opposed to a “professional handlers” — terms and distinctions defined in the court's memorandum. On appeal, the defendant's contended that the judge had abused FRE 201 concerning judicial notice and that the memo demonstrated that the court had exceeded its powers under the Constitution, Article III. Defendants contended that the court's memo violated the “broad prohibition upon the courts' exercise of ‘executive or administrative duties of a nonjudicial nature,’ ... to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches.” In particular that judges may not take on a role properly occupied by prosecutors. Courtland, __ F.3d at__ (citing Morrison v. Olson, 487 U.S. 654, 680–81 (1988), In re United States, 345 F.3d 450, 454 (7th Cir. 2003).

The circuit rejected that the trial judge had violated his powers under Article III. Instead, the court viewed the judge's memorandum as an "effort of a judge to inform himself of the subject before him" and as a result it raised "no issues of separation of powers." The Circuit distinguished a case cited by the defendants for their contention that the memorandum was improper. That case, United States v. Figueroa, 622 F.3d 739, 740-41, 743-44 (7th Cir. 2010) (Reversing judge's sentencing because at the sentencing hearing the judge engaged in an “extraneous and inflammatory” lecture, which included “a number of comments about [Figueroa's native] Mexico and ... Mexico's contribution to drug and immigration issues in the United States,” and “reveal[ed] an odd focus on nation-states and national characteristics,” so that the circuit concluded that even though the defendant had been sentenced at the bottom of the guidelines, there was “no way of knowing how, if at all, these extraneous considerations influenced" the defemdamt's sentencing and remanded for resentencing by a different judge.)

In deciding that no error had occurred in the defendants Courtland sentencing, the Seventh Circuit "reject[ed] the defendants' assertion that the district court's filing [of the memorandum on dog fighting] exceeded the powers of the judiciary established in Article III of the Constitution. We emphatically decline this invitation to set limits on a judge's powers to educate himself on matters relevant to sentencing. We find nothing in the cases cited by the defendants or in our own research that directs such restrictions and we are unwilling to recognize significant limitations on the judicial branch in establishing a perspective on charged crimes—particularly little-known crimes." Courtland, __ F.3d at__ (footnote omitted).

Instead, the Circuit found that the:

court's memorandum is apparently sui generis; it is not entirely clear what rule or precedent might govern its propriety. The court obviously did not apply the strictures of judicial notice under Federal Rule of Evidence 201, but the material in the memorandum was not treated as judicially noticed fact. Fortunately, we need not find a home in legal taxonomy for the court's memorandum."
Courtland, __ F.3d at__ (footnotes omitted) (citing Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 Rev. Litig. 131, 169 (2008) (“Principles relevant to judicial research come from the worlds of ethics, evidence, procedure, and the Constitution.”)).


The strictures of FRE 201 references by the Circuit were the provisions of FRE 201(b) which required that a judicially noticed fact be “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.”; the limitations of the FRE 201 were that it was not applicable to legislative facts. As the circuit noted, "[t]he judicial notice rule 'governs only judicial notice of adjudicative facts.' Fed.R.Evid. 201(a). 'Adjudicative facts are simply the facts of the particular case.'” Courtland, __ F.3d at__ (citing United States v. Wolny, 133 F.3d 758, 764 (10th Cir. 1998) (quoting advisory committee notes to Rule 201).

While finding no error, and no judicial notice was taken, the circuit ventured that this did not provide judges unlimited freedom in their reading. Rather, in this instance, the judge's independent research happened to improve the sentencing:

"If the judge in this case had read the same background material and not informed the parties (which is common practice, and not objectionable), it might not have reflected such a sensitive respect for the adversary process. Nevertheless, we do not rule out the possibility that where there has been a “litany of inflammatory remarks,” we cannot be as certain as we are here that they did not influence the sentence. In other words, relevant to our affirmance is our confidence that the district court did not attribute to the defendants the evils related in the “sentencing memorandum.” On the whole, we believe the district court's recourse to, and handling of a “sentencing memorandum” was unusually sensitive to the rights of the parties and provided them and the court with an appropriate perspective on the sentencing task.
Courtland, __ F.3d at__ (citing United States v. Figueroa, 622 F.3d 739, 744 (7th Cir. 2010))

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