## Facts

- Charles Gould and Joseph Carey were prosecuted in federal court for conspiracy to import cocaine from Colombia and for importing cocaine into the United States.
- The scheme used a courier, Barbara Kenworthy, who transported cocaine concealed in two pairs of hollowed-out platform shoes.
- U.S. Customs discovered the cocaine in Kenworthy’s shoes at the Miami airport upon her return from Colombia.
- Kenworthy cooperated with law enforcement and participated in a controlled delivery using substitute material.
- The controlled delivery led to the arrest of David Miller in Des Moines; Miller pleaded guilty and testified for the government.
- Kenworthy was not charged, though she was identified as a co-conspirator.
- At trial, the district court took judicial notice that cocaine hydrochloride is a Schedule II controlled substance and instructed the jury that, if it found the substance was cocaine, then cocaine is a Schedule II substance under federal law.
- During cross-examination, the defense attempted to question Miller about prior, unrelated smuggling; Miller invoked the Fifth Amendment, and the court limited that line of questioning.

## Issues

1. Whether the district court erred by taking judicial notice that cocaine hydrochloride is a Schedule II controlled substance under federal law.
2. Whether the court erred by instructing the jury to treat the noticed schedule classification as conclusive rather than optional in a criminal case.
3. Whether limiting cross-examination after the cooperating witness invoked the Fifth Amendment violated the defendants’ confrontation rights.

## Decision

- The Eighth Circuit affirmed the convictions.
- The court held it was proper to take judicial notice that cocaine hydrochloride is a Schedule II controlled substance.
- The court held the jury could be instructed to accept that schedule classification as binding because it is a legislative fact (a matter of law), not an adjudicative fact subject to Federal Rule of Evidence 201’s criminal-case limitation.
- The court held the restriction on cross-examination was not reversible error because the excluded inquiry concerned collateral, unrelated conduct and the defendants retained a meaningful opportunity to attack the witness’s credibility as to the charged events.

## Legal Principles

- Adjudicative facts concern case-specific who/what/when/where matters typically decided by the factfinder; legislative facts are general, fixed propositions that do not vary by case and may function as law-like premises.
- Federal Rule of Evidence 201’s criminal requirement that the jury “may, but is not required to” accept a judicially noticed fact applies to adjudicative facts, not legislative facts.
- A controlled substance’s schedule classification established by statute/regulation may be treated as a legislative fact suitable for judicial notice and conclusive instruction once the jury finds the identity of the substance.
- Confrontation Clause limits are not violated by restricting impeachment on collateral matters, even where a witness invokes the Fifth Amendment, so long as the defense has sufficient latitude to test credibility and bias on matters tied to the charged conduct.

## Conclusion

The court upheld the convictions, ruling that cocaine’s Schedule II classification could be judicially noticed and treated as conclusive because it is a legislative fact, and that limiting cross-examination about a cooperating witness’s unrelated prior smuggling did not materially impair the defendants’ ability to challenge credibility on the charged offenses.


United States v. Gould, 536 F.2d 216 (8th Cir. 1976)