NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 25, 2009
Decided February 26, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2666
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Evansville Division.
v.
No. 3:07CR00028‐001
JUAN A. ARROYO,
Defendant‐Appellant. Richard L. Young,
Judge.
O R D E R
Following a controlled buy of methamphetamine from Juan Arroyo, police executed
a search warrant for Arroyo’s apartment in Evansville, Indiana, and found 691 grams of
methamphetamine, drug paraphernalia, and nearly $14,000 in currency. Arroyo was taken
to the police station where, after receiving Miranda warnings, he admitted that the
methamphetamine was the bulk of two pounds he bought for distribution several months
earlier. Arroyo later denied that he ever gave this confession and pleaded not guilty to
charges of distribution of methamphetamine and possession with intent to distribute. See 21
U.S.C. § 841(a)(1). After a two‐day jury trial, he was found guilty on both counts. The
district court sentenced Arroyo to two concurrent terms of 120 months’ imprisonment, well
below the guidelines range of 151 to 188 months.
No. 08‐2666 Page 2
Arroyo filed a notice of appeal, but his appointed counsel moves to withdraw
because he is unable to discern a nonfrivolous basis for the appeal. See Anders v. California,
386 U.S. 738 (1967). We invited Arroyo to comment on counsel’s submission, see CIR.
R. 51(b), but he has not responded. Our review is limited to the potential issues identified
in counsel’s facially adequate brief. United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.
2002).
At trial the district court took judicial notice, and instructed the jury to accept as fact,
that methamphetamine is a Schedule II controlled substance and that Evansville is located
in the Southern District of Indiana. Counsel posits that the classification of
methamphetamine and the boundaries of the judicial district are “elements” of § 841(a)(1),
and thus he questions whether Arroyo could challenge his convictions on the ground that
removing these issues from the jury’s consideration deprived him of his Sixth Amendment
right to a jury trial. Counsel also questions whether the court violated Federal Rule of
Evidence 201(g) by not giving the jury an option to disregard the facts judicially noticed.
Counsel concludes that the court committed error but reasons that an appellate argument
would be frivolous because Arroyo was not prejudiced. We agree with counsel that an
argument about the court’s use of judicial notice would be frivolous, but counsel’s premise
that the court committed error is incorrect.
Judicial notice is a doctrine that authorizes the finder of fact to waive proof of facts
that cannot reasonably be contested. See FED. R. EVID. 201; Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.
1997). But Rule 201, which governs a district court’s use of judicial notice, applies only to
adjudicative facts, which are “simply the facts of the particular case” or, stated differently,
“those to which the law is applied in the process of adjudication.” FED. R. EVID. 201
advisory committee’s note; see Gen. Elec. Capital Corp., 128 F.3d at 1081; Ind. Harbor Belt R.R.
Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990). By contrast, the classification of
methamphetamine, see 21 U.S.C. § 812; 21 C.F.R. § 1308.12(d)(2), and the geographic
boundaries of the judicial district encompassing Evansville, see 28 U.S.C. § 94(b)(3), are not
elements of § 841(a)(1) or adjudicative facts; these are legislative facts for the court to decide,
see United States v. Williams, 442 F.3d 1259, 1261 (10th Cir. 2006) (“Statutes are considered
legislative facts . . . and courts may take notice of legislative facts.”); United States v. Coffman,
638 F.2d 192, 194‐95 (10th Cir. 1981) (explaining that district court may take judicial notice
of statutes and regulations and thus may instruct jury that drug is a controlled substance
and listed on a particular schedule); see also United States v. Wisniewski, 741 F.2d 138, 142 (7th
Cir. 1984) (district court properly took judicial notice that drug was a Schedule I controlled
substance); United States v. Rumell, 642 F.2d 213, 216 (7th Cir. 1981) (district court properly
took judicial notice that Indianapolis is located in Southern District of Indiana). The district
court defined methamphetamine as a Schedule II controlled substance and conveyed that
No. 08‐2666 Page 3
Evansville is in the Southern District of Indiana; the court did not invade the jury’s province
to decide whether the substance Arroyo possessed was in fact methamphetamine or
whether his possession actually occurred in Evansville and thus within the district.
Counsel has not identified any other potential issue, and thus, we GRANT the
motion to withdraw and DISMISS the appeal.