Petition for Writ of Certiorari — Victor Everette Silvers, Petitioner v. United States
Supreme Court briefAug 21, 2025
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APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the Sixth Circuit,
dated February 20, 2025............................................ 1a
APPENDIX B: Opinion & Order of the
United States District Court for the
Western District of Kentucky, dated
March 30, 2023 .......................................................... 55a
APPENDIX C: Judgment in Criminal Case
of the United States District Court for
the Western District of Kentucky,
dated May 4, 2023 ..................................................... 75a
APPENDIX D: Order of the United States
Court of Appeals for the Sixth Circuit
denying petition for rehearing
en banc, dated March 25, 2025 ................................ 91a
APPENDIX E: Transcript of Evidentiary
Hearing Regarding Government’s Motion
for Judicial Notice of the United States
District Court for the Western District of
Kentucky, dated November 28, 2022..................... 93a
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1a
APPENDIX A
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32 .1(b)
File Name: 25a0035p.06
UNITED STATES COURT OF APPEAL
FOR THE SIXTH CIRCUIT
No. 23-5427
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR EVERETTE SILVERS,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Kentucky at Paducah.
No. 5:18-cr-00050-1—Benjamin J. Beaton,
District Judge.
Argued: December 10, 2024
Decided and Filed: February 20, 2025
Before:
MOORE, CLAY, and THAPAR, Circuit Judges.
*
*
*
OPINION
KAREN NELSON MOORE, Circuit Judge.
Brittney Silvers, an active member of the United States
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Army, was shot and killed while living on Fort Campbell,
an Army base on the border of Kentucky and Tennessee.
A jury found Brittney’s estranged husband, Victor Silvers (“Silvers”), guilty of her premeditated murder.
Following his conviction, the district court sentenced
Silvers to life in prison.
On appeal, Silvers challenges his conviction and sentence on three grounds. First, he argues that the district
court erred in taking judicial notice of the fact that Fort
Campbell was within the United States’ special maritime and territorial jurisdiction. Second, he argues that
the district court abused its discretion in denying Silvers’s motion to exclude a juror who wore a shirt supporting military veterans during the trial and who had
served in the United States Navy, and in failing to ask a
broader question during voir dire about prospective jurors’ prior military service. Third, he challenges the constitutionality of his mandatory life sentence, arguing
that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Because the district court did not err in taking judicial notice of the fact of the United States’ jurisdiction
over Fort Campbell, nor did it abuse its discretion in
denying Silvers relief based on Juror 5’s alleged bias, we
AFFIRM his conviction. And because Silvers’s life sentence is constitutional under binding Supreme Court
precedent, we also AFFIRM his sentence.
I.
FACTUAL BACKGROUND
A. The Murder of Brittney Silvers
On the evening of October 14, 2018, neighbors found
Brittney Silvers outside her apartment at 4217 Contreras Court, Fort Campbell, Kentucky with multiple gunshot wounds. R. 307 (PSR at ¶ 38) (Page ID #2168).
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Despite neighbors’ attempts to resuscitate her, Brittney
Silvers was pronounced dead shortly after being transported by EMS to the Blanchfield Army Community
Hospital. Id. Brittney Silvers’s boyfriend, James Keating, was also found at the scene with a gunshot wound to
his leg. Id.
Special Agents of the Military Police responded to
the scene. Id. at ¶ 39 (Page ID #2169). When they arrived, they saw a man sitting in a car parked in Brittney
Silvers’s driveway who was being held at gunpoint by
Military Police officers. Id. Agents noted that the man
was shaking and mumbling “where is my wife, is my wife
okay?” and removed him from the car and arrested him.
Id. The man in the car was Victor Everette Silvers (“Silvers”), Brittney Silvers’s estranged husband. Id. at ¶ 39,
41 (Page ID #2169).
Victor and Brittney Silvers were married in December 2011. R. 342 (Trial Tr. II at 14) (Page ID #2539).
Brittney Silvers was a logistics specialist with the
United States Army and was stationed at Fort Campbell, an Army installation located on the border of Kentucky and Tennessee. Id. at 14-15 (Page ID #2539-40).
Although the two initially lived together on the base, at
some point, they separated and Silvers moved to Clarksville, Tennessee. R. 349 (Trial Tr. V at 93-95) (Page ID
#3157-59). Both began dating other people, and Brittney
Silvers began a relationship with Keating. Id. at 94-95
(Page ID #3158-59).
In September 2018, Brittney Silvers sought and obtained an emergency protection order after Silvers
called both Brittney Silvers and her mother and threatened Brittney Silvers’s life and that of Keating. R. 342
(Trial Tr. II at 16-17, 78) (Page ID #2541-42, 2603); R. 343
(Trial Tr. III at 50) (Page ID #2739). A judge converted
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that order into a domestic violence protection order on
October 9, 2018 following a hearing that Silvers failed to
attend. R. 342 (Trial Tr. II at 85-87) (Page ID #2610-12).
The order restrained Silvers from having any physical
contact with Brittney Silvers and forbade Silvers from
possessing any firearms. Id. at 85-86 (Page ID #261011).
At trial, several eyewitnesses—including Keating—
testified about the events of the night of October 14,
2018. All testified that Silvers was the person who had
shot Brittney Silvers three times in the head and chest
and who had shot Keating in the leg. Id. at 114 (Page ID
#2639); R. 343 (Trial Tr. III at 54-55) (Page ID #2743-44).
Although Silvers initially denied any involvement with
the shootings, he later admitted to shooting Brittney Silvers and intending to kill Keating. R. 349 (Trial Tr. V at
105-06, 108) (Page ID #3169-70, 3172).
B. The Proceedings Below
A grand jury indicted Silvers on November 13, 2018
on counts of first-degree murder, attempted first-degree
murder, domestic violence, violation of a protection order, possession of a firearm by a prohibited person, and
the carry, use, and discharge of a firearm during a crime
of violence. R. 14 (Indictment at 1-5) (Page ID #66-70).
The government filed a second superseding indictment
on November 8, 2022, that adjusted one count of the
carry, use, and discharge of a firearm during a crime of
violence to the carry, use, and discharge of a firearm during a crime of violence resulting in death. R. 239 (Second
Super. Indictment at 1-5) (Page ID #1480-84).
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1. Motion for Judicial Notice and Evidentiary
Hearing
Four of the seven counts of the superseding indictment—Counts One (first-degree murder), Two (attempted murder), Three (domestic violence), and Four
(violation of a protection order)—included as an element
of the charge that the crime took place within the special
maritime and territorial jurisdiction of the United
States. 18 U.S.C. §§ 1111(b); 1113; 2261(a)(1); 2262(a)(1).
In charging Silvers, the government alleged that the
crime had occurred on Fort Campbell, a military base
over which the federal government exercises jurisdiction. See generally R. 239 (Second Super. Indictment).
Prior to Silvers’s trial, the government moved the
district court to take judicial notice of the fact that
Brittney Silvers’s apartment at 4217 Contreras Court,
Fort Campbell, Kentucky, and the immediate vicinity,
was within the special maritime and territorial jurisdiction of the United States. R. 184 (Mot. for Jud. Not. at 111) (Page ID #999–1009). Silvers opposed the motion, arguing that the question should instead be presented to
the jury. R. 209 (Opp. to Jud. Not. at 1-12) (Page ID
#1119-30).
The district court held a hearing on the motion at
which it reviewed the government’s proffered evidence
of the federal government’s jurisdiction over Fort
Campbell and heard arguments from both parties as to
whether the question was suited for resolution by the
judge or a jury. See generally R. 292 (Jud. Not. Hr’g
Tr.). The government presented three witnesses, all
members of the Army Corps of Engineers: the Corps’s
chief of the Military Branch in the Real Estate Division
in the Louisville District, who testified that the United
States had exclusive jurisdiction over Fort Campbell, id.
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at 5 (Page ID #1837); a Corps surveyor, who identified
the tract of land where Brittney Silvers lived as being
within Fort Campbell, id. at 9-10 (Page ID #1841-42);
and a Corps realty specialist, who, using historical documents, testified that the United States had accepted jurisdiction over the land that would become Fort Campbell, id. at 26, 30 (Page ID #1858, 1862). Specifically, the
real-estate specialist showed (1) the 1942 final deed
transferring the land to the United States; and (2) a series of letters between the Secretary of War and Kentucky’s then-governors in which the Secretary of War
accepted jurisdiction over the land that would become
Fort Campbell. Id. at 23-26 (Page ID #1855-58); R. 3555 (Deed at 1-4) (Page ID #3412-15), 355-6 (Apr. 28, 1945
Letter) (Page ID #3416), 355-7 (Aug. 3, 1945 Letter)
(Page ID #3417), 355-11 (Mar. 29, 1943 Letter) (Page ID
#3448), 355-12 (Jan. 3, 1944 Letter) (Page ID #3449). Silvers challenged the authenticity of all of the letters. R.
292 (Jud. Not. Hrg. Tr. at 26-27, 49-51) (Page ID #185859, 1881-83).
After considering the evidence and arguments from
both parties on the motion, the district court summarily
overruled Silvers’s objection and granted the government’s motion. Id. at 57 (Page ID #1889). At trial, the
district court gave the following instruction to the jury
as to the first-degree murder charge:
The fourth element refers to the special maritime and territorial jurisdiction of the United
States. 4217 Contreras Court is located within
the special maritime and territorial jurisdiction
of the United States. If you find beyond a reasonable doubt that the crime occurred at 4217
Contreras Court, that is sufficient to find that it
occurred within the special maritime and territorial jurisdiction of the United States.
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R. 350 (Trial Tr. VI at 27) (Page ID #3246). The district
court further specified that this jurisdiction instruction
applied to the attempted-murder charge, the domesticviolence charge, and the violation of a protection order
charge. Id. at 30-32 (Page ID #3249-50). Following Silvers’s trial, the district court issued a supplemental opinion and order setting forth its reasoning and reaffirming
its decision to grant the government’s motion to “take
judicial notice that 4217 Contreras Court at Fort Campbell, Kentucky, is within the special maritime and territorial jurisdiction of the United States.” R. 316 (Juris.
Order at 1-11) (Page ID #2240-50).
2. Voir Dire and Questioning of Juror 5
Following the district court’s resolution of both parties’ pretrial motions, Silvers’s case proceeded to trial.
Both parties submitted proposed voir dire questions for
the district court’s consideration. R. 160-1 (Def. Juror Q.
at 1-10) (Page ID #675-86); 225 (Govt. Voir Dire at 1-4)
(Page ID #1272-75). Each proposed questionnaire suggested some version of the same question: whether any
prospective juror, or someone close to them, had served
in the United States military. R. 160-1 (Def. Juror Q. #14
at 5) (Page ID #679) (“Have you, an immediate family
member or anyone close to you ever served in the U.S.
military? If so, please describe the branch of service,
rank, place of service, dates of service, and the type of
discharge received … .”); R. 225 (Govt. Voir Dire Q. #9
at 2) (Page ID #1273) (“Have you or anyone close to you
been a member of the United States Military? What
branch?”). During voir dire, the district court asked a
slightly different version of the question:
Does anyone here, or anyone in your immediate
family, work with the United States Justice
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Department, the U.S. Army, the FBI, the ATF,
or the Christian County Sheriff’s Office?
R. 341 (Trial Tr. I at 111) (Page ID #2451). Neither party
objected to the district court’s question, and a jury was
seated and sworn.
Silvers’s trial began on November 29, 2022. On the
first day of trial, the defense brought to the district
court’s attention that one of the jurors, Juror 5, was
wearing a shirt made by Til Valhalla Project (“TVP”), a
company that donates its proceeds to honor fallen soldiers. R. 342 (Trial Tr. II at 99-100) (Page ID #2624-25).
Silvers asked the district court to question Juror 5 as to
whether the shirt had any significance to him and
whether the subject matter of the trial affected his
choice to wear it. Id. at 100 (Page ID #2625). At the end
of the day, the district court asked Juror 5 to stay back
and engaged him in the following line of questioning:
[THE COURT]: You’re Juror Number 5; correct?
A JUROR: Yes, sir.
THE COURT: Someone in the court noticed the
TVP shirt that you’re wearing today, and I think
that may—do you know what the Valhalla Project is?
A JUROR: Yeah, it’s just the clothing line that’s
ran by veterans.
THE COURT: Okay. And we’ve heard some
testimony and discussion yesterday about military personnel and so forth. Out of curiosity, is
there any connection between your wearing
that shirt today and anything going on in the
case?
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A JUROR: No. The only thing is I’m a veteran,
that’s all.
THE COURT: Okay. And when did you serve?
I think you told me yesterday, but I can’t recall.
A JUROR: No, the only questions you asked
yesterday was Army. I’m with the Navy.
THE COURT: I see. I see. Okay. And I apologize for misremembering.
Id. at 156 (Page ID #2681). When asked why he had chosen to wear that specific shirt to trial, Juror 5 responded
that he worked in fields such that most of his clothes
were dirty and that his “clean stuff is usually this.” Id.
at 157 (Page ID #2682). The district court then asked
Juror 5 whether his past military experience had any
bearing on his ability to be a fair and impartial juror in
the case:
THE COURT: If I had asked yesterday the
question “Was anyone here—not just Army,
but, you know, served in the military?” And you
would have said yes and I followed up and asked
you, “Is there anything about your service or
folks you know that would affect your ability to
serve as a fair and impartial juror in a case that
involves the military—the Army context instead of another branch,” would you—how
would you have responded?
A JUROR: I don’t think it’ll affect me whatsoever.
Id. The district court then excused Juror 5, and neither
party raised an objection to Juror 5’s continued service
on the jury. Id. at 158 (Page ID #2683).
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The next morning, however, Silvers moved to dismiss Juror 5 on the ground that he had been dishonest
during voir dire by failing to disclose his time in the
Navy. R. 343 (Trial Tr. III at 9) (Page ID #2698). Silvers’s argument was that, even though the district court
had asked potential jurors only about any connection to
the Army, other potential jurors had volunteered their
connections to other branches of the military, and Juror
5 should have done the same. Id. at 9-10 (Page ID #269899). In response to this argument, the district court
went through each of the responses that potential jurors
had given involving other branches of the military. Id.
at 10-12 (Page ID #2699-701). The district court then
stated,
I disagree [that I was speaking of the military].
I think I was clearly speaking about the Army.
That led to some answers that were broader, but
I believe all the answers that we received were
connected in one way or another to the fact—the
items I mentioned specifically—Fort Campbell,
law enforcement, Army.
Id. at 12 (Page ID #2701). The district court thus concluded that Juror 5 had not made any “tacit misrepresentation” by failing to answer the voir dire question and
found Juror 5’s explanation for having worn the TVP
shirt credible. Id. The district court then denied Silvers’s motion to strike the juror. Id.
Silvers’s trial continued. Then, on the sixth and final
day of trial, the jury returned a verdict of guilty as to all
seven counts. R. 282 (Verdict at 1-7) (Page ID #1736-42).
3. Sentencing
Before Silvers’s sentencing, the Probation Office
submitted a Presentence Investigation Report (“PSR”)
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computing Silvers’s total offense level as 43 and his criminal history category as II, with a resulting Guidelines
range of life imprisonment. R. 307 (PSR at ¶ 76, 91, 121)
(Page ID #2174, 2179, 2183). More important than the
advisory Guidelines range in calculating that sentence,
however, was the fact that Silvers’s conviction for firstdegree murder under 18 U.S.C. § 1111(b) carried a mandatory life sentence. Id. at ¶ 119 (Page ID #2183). Silvers’s conviction for the carry, use, and discharge of a
firearm during a crime of violence—the attempted murder of Keating—under 18 U.S.C. § 924(c)(1)(A)(iii) also
carried a mandatory consecutive term of imprisonment
of 120 months. Id. at ¶ 119-20; R. 239 (Second Super.
Indictment at 5) (Page ID #1484).
At sentencing, Silvers argued that the mandatory
life sentence accompanying his conviction under
§ 1111(b) was unconstitutional because it constituted
cruel and unusual punishment in violation of the Eighth
Amendment. R. 344 (Sent’g Tr. at 32-33) (Page ID
#2823-24). The district court, recognizing that the life
sentence was “extremely serious and severe,” nevertheless concluded that it was “not unconstitutional in light
of the precedent that the lawyers have discussed, and
it’s not disproportionate to the extremely serious crimes
at issue here.” Id. at 37 (Page ID #2828). The district
court then imposed a sentence of life imprisonment for
Brittney Silvers’s murder plus a consecutive term of ten
years of imprisonment for the discharge of a firearm during the attempted murder of Keating. Id. at 38 (Page ID
#2829); R. 325 (Judgment of Sent. at 3) (Page ID #2297).
The district court specified that this sentence was to run
concurrently with a twenty-year sentence, a ten-year
sentence, and a second sentence of life imprisonment on
the other counts of conviction. R. 344 (Sent’g Tr. at 38)
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(Page ID #2829). Silvers timely appealed. R. 326 (Notice
of Appeal at 1) (Page ID #2303).
II. DISCUSSION
A. Judicial Notice of Jurisdiction
The first issue that Silvers raises on appeal is
whether the district court erroneously determined that
Fort Campbell, the Kentucky Army base where
Brittney Silvers was killed, was within the special maritime and territorial jurisdiction of the United States and
improperly instructed the jury to take judicial notice of
that fact instead of submitting that question to the jury.
Before analyzing this question of first impression in our
Circuit, we pause to clarify what it means for a particular
location to be within the federal government’s special
maritime and territorial jurisdiction.
1. Defining Special Maritime and Territorial
Jurisdiction
Four of the seven counts of Silvers’s conviction—his
convictions under 18 U.S.C. § 1111(b) (murder), § 1113
(attempted murder), § 2261(a)(1) (domestic violence),
and § 2262(a)(1) (violation of a protection order)—include as a necessary element that the crime took place
“within the special maritime and territorial jurisdiction
of the United States.” So, to obtain a conviction under
18 U.S.C. §§ 1111(b), 1113, 2261(a)(1), or 2262(a)(1), the
government must prove that the crime took place within
the federal government’s “special maritime and territorial jurisdiction.” In relevant part, federal law defines
“special maritime and territorial jurisdiction of the
United States” as
[a]ny lands reserved or acquired for the use of
the United States, and under the exclusive or
concurrent jurisdiction thereof, or any place
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purchased or otherwise acquired by the United
States by consent of the legislature of the State
in which the same shall be, for the erection of a
fort, magazine, arsenal, dockyard, or other needful building.
Id. § 7(3).
As the district court observed, “[c]ounterintuitively,
perhaps, the acquisition of land or exercise of control by
the U.S. government does not create even a presumption that federal jurisdiction applies there.” R. 316 (Juris. Order at 2) (Page ID #2241) (citing United States v.
Williams, 17 M.J. 207, 211 (C.M.A. 1984) (“Although
some may assume that a military installation automatically comes within Federal jurisdiction, that assumption
is incorrect.”)). Instead, pursuant to statute, to show
that a particular location is within the special maritime
and territorial jurisdiction of the United States, the government must prove that (1) the state in which the atissue land is located has consented to transfer the land
to the jurisdiction of the United States and (2) that the
federal government has accepted that transfer of jurisdiction. 40 U.S.C. § 3112(b); see Paul v. United States,
371 U.S. 245, 264 (1963) (“Since 1940 Congress has required the United States to assent to the transfer of jurisdiction over the property, however it may be acquired.”)
In Silvers’s case, the district court determined,
based upon evidence that the government presented at
an in-depth pretrial evidentiary hearing, that Kentucky
had agreed to transfer Fort Campbell to the federal government and that the federal government had
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acquiesced to that transfer.1 R. 316 (Juris. Order. at 8)
(Page ID #2247). At trial, the district court told the jury
that 4217 Contreras Court is within the United States’
special maritime and territorial jurisdiction, thus directing the jury to find that the jurisdictional element of the
charged crimes had been satisfied if the jury found beyond a reasonable doubt that the crime occurred at 4217
Contreras Court. R. 350 (Trial Tr. VI at 27) (Page ID
#3246).
On appeal, Silvers argues that the district court
erred in making this determination because whether the
federal government accepted the transfer of jurisdiction
was a question of fact that should be submitted to the
jury, not a question of law for the court to decide. We
turn to that question next.
2. Standard of Review
Silvers’s challenge to his conviction is a constitutional one: whether, under Apprendi v. New Jersey, 530
U.S. 466 (2000), and United States v. Gaudin, 515 U.S.
506 (1995), the Fifth and Sixth Amendments require that
a jury, not a judge, determine beyond a reasonable doubt
that a location is within the special maritime and territorial jurisdiction of the United States. We review constitutional questions de novo. United States v. Blackwell,
459 F.3d 739, 752 (6th Cir. 2006). We therefore review
afresh whether the district court properly instructed the
jury to take judicial notice of the jurisdictional status of
1
Both below and on appeal, Silvers concedes that the government has proven that Kentucky consented to the transfer of jurisdiction over Fort Campbell to the United States. Appellant Br. at
28; R. 209 (Opp. to Jud. Not. at 3 n.2) (Page ID #1121). He contests
only the government’s accession.
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Fort Campbell instead of submitting the question to the
jury.
3. Permissibility of Taking Judicial Notice of
Special Maritime or Territorial Jurisdiction
We first consider the constitutional backdrop underlying Silvers’s claim. In Gaudin, the Supreme Court
held that the Due Process Clause of the Fifth Amendment and the Sixth Amendment right to a jury trial “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the
crime with which he is charged, beyond a reasonable
doubt.” 515 U.S. at 510. As a result, the Court held that,
where materiality—a mixed question of law and fact—
was an element of the charged offense, the defendant
had “the right to have a jury determine … his guilt of
every element of the crime with which he is charged,”
including the materiality of his allegedly false statements. Id. at 512, 522–23. Subsequently, in Apprendi,
the Supreme Court cited Gaudin for the proposition
that, “[t]aken together, [the Sixth and Fourteenth
Amendments] indisputably entitle a criminal defendant”
to a jury determination of guilt as to each element of the
offense charged. 530 U.S. at 477. The Court thus determined that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at
490.
Silvers argues that Gaudin and Apprendi require us
to hold that, because federal jurisdiction is a necessary
element of several of the offenses with which Silvers was
charged, the question of whether a particular location—
in this case, Fort Campbell—is within the United States’
territorial jurisdiction must be proven to the jury
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beyond a reasonable doubt. Appellant Br. at 25, 29-34.
The government disagrees, arguing that neither case addressed the issue of special maritime and territorial jurisdiction and thus they “do not apply to the question
now before this [c]ourt.” Appellee Br. at 25.
We disagree with the notion that Gaudin and Apprendi are inapplicable to the case at bar simply because
the cases did not address the very same subject. Both
cases, and their progeny in our circuit, stand for the important proposition that each essential element of a
crime with which a criminal defendant is charged must
be proven to a jury beyond a reasonable doubt. And the
jurisdictional element of a number of federal crimes—
four crimes charged here—is one such essential element.
Critically, however, the jurisdictional element of
crimes such as § 1111 includes two separate inquiries:
first, whether the parcel of land falls within the United
States’ special maritime and territorial jurisdiction; and
second, whether the alleged offense occurred within that
area. See United States v. Gabrion, 517 F.3d 839, 871
(6th Cir. 2008) (Moore, J., concurring). Silvers is correct
that the second inquiry is a question of fact that, under
Gaudin and Apprendi, must be submitted to the jury
and proven beyond a reasonable doubt. But the first inquiry—the pure question of a location’s jurisdictional
character—is a legal question, one which turns on legislative, not adjudicative, fact.
We first distinguished between adjudicative and
legislative facts in Dayco Corp. v. Federal Trade Commission, 362 F.2d 180 (6th Cir. 1966). There, we stated
that “ ‘ legislative facts’ involve generalized factual propositions which could form the basis for a legislative ruling which would have application to some class of situations, while ‘adjudicative facts’ relate to, and are
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determinative of, one individual situation or course of
conduct.” Id. at 186. Several years later, in Toth v.
Grand Trunk Railroad, we defined “adjudicative facts”
as “the facts of the particular case” and “legislative
facts” as “facts ‘which have relevance to legal reasoning
…, whether in the formulation of a legal principle or ruling by a judge … or in the enactment of a legislative
body.’ ” 306 F.3d 335, 349 (6th Cir. 2002) (quoting Fed.
R. Evid. 201, advisory committee’s note (1972)); see also
Ohio v. Collins (In re Madeline Marie Nursing Homes),
694 F.2d 433, 445 n.13 (6th Cir. 1982) (similarly quoting
the advisory committee note to Federal Rule of Evidence 201 for the proposition that there are “fundamental differences between adjudicative facts and legislative
facts” in that adjudicative facts, but not legislative facts,
relate to a particular case). Most recently, in United
States v. Miller, we defined the terms again, referring to
“legislative fact[s]” as those “[]to be decided uniformly[]” and “adjudicative fact[s]” as those “[]to be decided anew by hundreds of district judges[.]” 982 F.3d
412, 430 (6th Cir. 2020). The general principle that adjudicative facts relate to the particular facts of a specific
case while legislative facts relate to universally established facts that do not change from case to case thus appears to be well settled in this court.
Whether something is an adjudicative or legislative
fact has crucial implications; namely, under Federal Rule
of Evidence 201—the rule that governs judicial notice—
a district court must instruct a jury that it may disregard
a judicially noticed adjudicative fact, but need not do the
same for a judicially noticed legislative fact. Fed. R.
Evid. 201(a) (“This rule governs judicial notice of an adjudicative fact only, not a legislative fact.”); id. at (f) (“In
a criminal case, the court must instruct the jury that it
may or may not accept the noticed [adjudicative] fact as
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conclusive.”). The rule thus highlights the difference between these two categories of facts: one (adjudicative
facts) concerns facts that must be proven to a jury beyond a reasonable doubt, and the other (legislative facts)
concerns facts which a court may conclude exist as a matter of law.
The pertinent question before us, then, is whether
the existence of special maritime or territorial jurisdiction of the United States is an adjudicative fact or a legislative fact. We conclude that it is the latter.
In reaching this conclusion, we look first to the
caselaw in this court, of which there is little. First, in
United States v. Harris, a case in which the government
had presented no evidence that Hamilton County, Ohio
was within the Southern District of Ohio, we held that a
“[d]istrict [c]ourt may take judicial notice of established
geographical facts” without need for those facts to be
proven to a jury beyond a reasonable doubt. 331 F.2d
600, 601 (6th Cir. 1964) (per curiam). Two subsequent
opinions hinted that the same was true in the specific
context of the fact of special maritime and territorial jurisdiction. United States v. Blunt, 558 F.2d 1245, 1247
(6th Cir. 1977) (per curiam) (stating, in dicta, that a “district court would have been correct in taking judicial notice under Rule 201, Federal Rules of Evidence, of the
fact that the [Federal Correctional Institution in Lexington] was within the territorial jurisdiction of the
United States”); United States v. Booth, No. 905748,
1991 WL 119530, at *5-6 (6th Cir. July 3, 1991) (table)
(holding that “[w]hether a United States [Army base] is
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within the special maritime and territorial jurisdiction of
the United States is a legal issue, not a factual issue”).2
Most recently, in United States v. Gabrion, we addressed a related issue: whether a district court erred
in concluding, following an evidentiary hearing, that the
United States had concurrent jurisdiction over a portion
of the Manistee National Forest where the body of
Gabrion’s victim had been found. 517 F.3d at 845. We
concluded that, as a matter of law, the federal government may exercise concurrent legislative jurisdiction
over national forests. Id. at 848 (Batchelder, J.); 857
(Moore, J., concurring).3 And in an opinion concurring in
the judgment, we addressed the specific jurisdictional
question raised here, stating that “in evaluating the [issue of special maritime or territorial jurisdiction] we
must review both legal conclusions of the district court
and factual conclusions of the jury.” Id. at 870 (Moore,
J., concurring). Although stating that “[w]hether the
government proved that Gabrion murdered Timmerman
on a parcel of national forest land over which the federal
government has criminal jurisdiction is an element of the
offense, which the government must prove to the jury
beyond a reasonable doubt,” the concurrence also noted
that the jurisdictional element contains two separate inquiries: whether the parcel of land falls within the
2
Booth, although directly on point, is an unpublished opinion
over thirty years old. It was also decided years before either
Gaudin or Apprendi. So although persuasive to some degree, Booth
does not decide this case.
3
A majority of the panel also agreed that, for reasons that do
not apply here, the location where Gabrion allegedly murdered the
victim was within the special territorial and maritime jurisdiction of
the United States. Gabrion, 517 F.3d at 856-57 (Batchelder, J.); 864
(Moore, J., concurring ).
20a
United States’ special maritime and territorial jurisdiction, and whether the alleged offense happened within
that parcel. Id. at 871 (citing United States v. Prentiss,
206 F.3d 960, 967 (10th Cir. 2000), vacated on other
grounds by United States v. Prentiss, 256 F.3d 971, 981
(10th Cir. 2001) (en banc) (“While the court may determine, as a matter of law, the existence of federal jurisdiction over a geographic area, whether the locus of the
offense is within that area is an essential element that
must be resolved by the trier of fact.”)). Our decision in
Gabrion—which, notably, was decided after both
Gaudin and Apprendi—thus seems to follow our prior
intimation that we should treat the jurisdictional issue
as a legal one.
The available out-of-circuit authority bolsters this
conclusion. Two circuits have thus far directly decided
this question in precedential opinions. First, in United
States v. Davis, a case concerning the very same jurisdictional issue raised here, the Second Circuit held that
to determine whether a crime took place within
the special maritime and territorial jurisdiction
of the United States requires two separate inquiries: one to determine the “locus of the
crime” and one to determine the existence vel
non of federal jurisdiction. See [United States v.
Hernandez-Fundora, 58 F.3d 802, 810 (2d Cir.
1995)]. While the former is plainly a factual
question for the jury to decide, the latter—turning on a fixed legal status that does not change
from case to case and involving consideration of
source materials (such as deeds, statutes, and
treaties) that judges are better suited to evaluate than juries—has always been treated in this
Circuit as a legal question that a court may decide on its own.
21a
726 F.3d 357, 368 (2d Cir. 2013). Critically, the Second
Circuit noted that “[n]othing in Apprendi or its progeny
called this distinction into question, let alone suggested
that questions of law must be submitted to the jury under the Sixth Amendment.” Id. Accordingly, the Second Circuit held that “we may take judicial notice on appeal of whether a particular piece of land falls within the
special maritime and territorial jurisdiction of the
United States.” Id.
Second, and most recently, in United States v. Love,
the Eighth Circuit held that “[a] district court may take
judicial notice that a place is within the special maritime
and territorial jurisdiction of the United States and not
submit that issue to the jury, without violating a defendant’s Sixth Amendment rights.” 20 F.4th 407, 412 (8th
Cir. 2021). In so holding, the Eighth Circuit determined
that, based on that court’s caselaw, “federal jurisdiction
over a particular place is a question of law.” Id. at 411.
Next, the Eighth Circuit determined that “facts that resolve the special maritime and territorial jurisdiction
question are legislative, not adjudicative” because
“whether a particular facility is within federal jurisdiction is a universal truth.” Id. at 411-12. Finally, the
Eighth Circuit stated that “judicially noticed legislative
facts need not be submitted to the jury.” Id. at 412.4
4
Two other circuits have addressed this question in non-precedential opinions issued after Gaudin and Apprendi. In United
States v. Arroyo, the Seventh Circuit held that, where a district
court had taken “judicial notice, and instructed the jury to accept as
fact, that Evansville is located in the Southern District of Indiana,”
the district court “did not invade the jury’s province to decide …
whether [Arroyo’s] possession actually occurred in Evansville and
thus within the district” because “the geographic boundaries of the
judicial district encompassing Evansville … [is] not [an] element[]
22a
Silvers argues that these cases are unpersuasive because they “simply fail to account for Gaudin.” Appellant Br. at 30. As an initial matter, the Second Circuit’s
decision in Davis did address Apprendi, holding that the
defendant had “cite[d] no authority for the proposition
that Apprendi and its progeny cast into doubt decisions
about whether, and when, a court may take judicial notice of a legislative fact, and … we have found no such
authority ourselves.” Davis, 726 F.3d at 367-68. More
importantly, in each case, the court determined that the
jurisdictional question was a legal one, thus removing
the issue from the purview of Gaudin and Apprendi.
In the alternative, Silvers argues that we should
look instead to the Ninth Circuit’s decision in United
States v. Read, 918 F.3d 712 (9th Cir. 2019), a case that,
if read liberally, stands for the opposite conclusion than
that reached by the Second and Eighth Circuits. In
Read, the Ninth Circuit reviewed a defendant’s challenge to the sufficiency of the evidence used to convict
him under 18 U.S.C. § 113(a), “which prohibits an assault
‘within the special maritime and territorial jurisdiction
of the United States.’ ” Id. at 717 (quoting 18 U.S.C.
of [the statute] or adjudicative fact[]”; but “legislative fact[] for the
court to decide.” 310 F. App’x 928, 929-30 (7th Cir. 2009).
Additionally, in United States v. Styles, the Fifth Circuit held
the same as the Second and Eighth Circuits, writing that because
“[a] district court may take judicial notice of the legislative fact that
a federal installation is under federal jurisdiction[,] … [t]he district
court did not err by taking notice that the VA Hospital in Styles’s
case was within the special territorial jurisdiction of the United
States.” 75 F. App’x 934, 935 (5th Cir. 2003) (per curiam). Importantly, however, pursuant to Fifth Circuit rules, Styles holds no
precedential value. Id. at 935 n.*. Moreover, Styles appears to be
in conflict with the Fifth Circuit’s earlier, published opinion in
United States v. Perrien, 274 F.3d 936 (5th Cir. 2001), discussed infra.
23a
§ 113(a)). In reviewing Read’s claim that the government had presented insufficient evidence that the assault took place within the federal government’s jurisdiction, the Ninth Circuit held that “[t]he existence of
federal jurisdiction over the place in which the offense
occurred is an element of the offenses defined at 18
U.S.C. § 113(a), which must be proved to the jury beyond
a reasonable doubt.” Id. at 718 (citing Gaudin, 515 U.S.
at 510). But the Ninth Circuit then held that, because
“uncontradicted testimony from inmates or employees
at a federal prison can establish” the required jurisdictional element, the government had, by eliciting testimony that the defendant was an inmate at the Phoenix
federal prison at the time of the assault, adequately
demonstrated that the federal prison “was under federal
jurisdiction at the time Read allegedly committed the assault.” Id.5
Unlike the Second and Eighth Circuits, the Ninth
Circuit in Read made no distinction between the two inquiries included in the jurisdictional element: the existence of jurisdiction and the locus of the alleged crime.
And unlike the case at bar, in Read, the government’s
jurisdictional evidence—which was in the form of testimony from the defendant and a correctional officer that
Read “was an inmate of the Phoenix federal prison at the
time of the assault”—was uncontested. Id. (internal
quotation marks omitted). So the Read court did not, at
least not clearly, decide the issue of whether a judge may
determine the existence of special maritime or
5
The Ninth Circuit also held that “the jury was properly instructed that the government had to prove the assaults took place
in FCI-Phoenix,” suggesting that the key issue for the jury to resolve was the physical location where the assaults took place.
See Read, 918 F.3d at 719.
24a
territorial jurisdiction and take judicial notice of that
fact where the government’s evidence of jurisdiction is
contested.
Silvers also directs us to the D.C. Circuit’s decision
in United States v. Khatallah, 41 F.4th 608 (D.C. Cir.
2022) (per curiam), in support of his argument. There,
the D.C. Circuit addressed the question of whether, on
plain-error review, a defendant was entitled to a new
trial because the district court did not instruct the jury
about a jurisdictional element of the statute under which
the defendant was charged. 41 F.4th at 627. The defendant was convicted under 18 U.S.C. § 1363, “which criminalizes the malicious destruction of buildings and property ‘within the special maritime and territorial jurisdiction of the United States.’ ” Id. at 624 (quoting 18 U.S.C.
§ 1363). In bringing the charge, however, “the government relied only on the diplomatic premises definition of
the special jurisdiction,” which “applies to ‘offenses committed by or against a national of the United States’ on
the premises of U.S. diplomatic facilities abroad.” Id.
(quoting 18 U.S.C. § 7(9)). But when both parties jointly
proposed the jury instructions, neither party—nor the
district court—recognized that the instructions omitted
any mention of the requirement that the offense be committed “by or against a national of the United States.”
Id. at 627-28. So, when the district court, instructing the
jury as to the statute’s special jurisdictional element,
“omit[ted] the preface that the crime in question must
be committed ‘by or against a national of the United
States,’ ” the D.C. Circuit concluded that the district
court had left out an essential element of the charge that
the government was required to prove, and that the jury
had to find, beyond a reasonable doubt. Id. at 628
25a
(quoting 18 U.S.C. § 7(9)). The D.C. Circuit thus held
that the district court’s instructions were erroneous.
Id.6
Although it addresses a similar issue to that raised
in this case, Khatallah is distinguishable. Unlike this
case, Khatallah involved the erroneous omission from
the jury instructions of a statutory element of a charged
crime. No party noticed that a required element of the
charged crime was omitted from the jury instructions,
nor was the error corrected at any point before the jury
announced its verdict finding Khatallah guilty of Count
16. The question in Khatallah was therefore whether it
was plain error for a district court to “omit[] a factual
element that the jury had to find in order to convict
Khatallah of violating” the statute, id. at 628—that is,
whether the district court erred by failing to inform the
jury that it must find that the government had proved
that the offense was “committed by or against a national
of the United States” in order to find Khatallah guilty.
See 18 U.S.C. § 7(9). The D.C. Circuit answered that
question in the affirmative. Khatallah, 41 F.4th at 628.
Here, the district court did not omit any factual element from the jury instructions. Put otherwise, the jury
in this case was made aware that the statute under
which Silvers had been charged required that the murder must have been committed at a location within the
6
Despite concluding that the omission was in error and “assum[ing] for the purpose of [the] appeal that the error was plain,”
the D.C. Circuit nevertheless concluded that Khatallah failed to
demonstrate that the error had affected his substantial rights because he failed to demonstrate “a ‘reasonable probability’ that the
jury would have acquitted him of Count 16 if properly instructed.”
Khatallah, 41 F.4th at 628–30. The D.C. Circuit therefore found
that Khatallah could not meet all four prongs of plain-error review
and declined to vacate his conviction. Id. at 630.
26a
special maritime and territorial jurisdiction of the
United States. Having already determined in a pretrial
ruling that Fort Campbell was within the special maritime and territorial jurisdiction of the United States,
however, the district court instructed the jury that
“4217 Contreras Court is located within the special maritime and territorial jurisdiction of the United States”
and that, if the jury found beyond a reasonable doubt
that Brittney Silvers’s murder had occurred there, “that
is sufficient to find that it occurred within the special
maritime and territorial jurisdiction of the United
States.” R. 350 (Trial Tr. VI at 27) (Page ID #3246). Unlike the district court in Khatallah, then, the district
court in this case did not neglect to inform the jury of
any required factual element of the charged crime; instead, the district court, having concluding on its own
that 4217 Contreras Court was within the special territorial and maritime jurisdiction of the United States, informed the jury of the element and instructed that the
jury should find the element to have been satisfied if
they found that the crime in fact occurred at 4217 Contreras Court. Had the district court, like the district
court in Khatallah, neglected to inform the jury that the
statute required the murder to have been committed
within the special maritime and territorial jurisdiction of
the United States, we would have concluded, like the
Khatallah court, that such omission was in error. But
because the facts of this case differ in this material way
from those present in Khatallah, the cases are distinguishable.
Finally, Silvers points us to the Fifth Circuit’s decision in United States v. Perrien, 274 F.3d 936 (5th Cir.
2001). In that case, decided shortly after Apprendi, the
Fifth Circuit noted in a footnote that the holdings of
Gaudin and Apprendi called into question that circuit’s
27a
prior caselaw holding that “the preponderance of the evidence standard applies to the jurisdictional elements” of
certain statutes. Id. at 939 n.1. Concluding that “the requirement that [an] assault be committed ‘within the
special maritime and territorial jurisdiction of the
United States’ is unambiguously included in the offensedefining part of the statute,” the Fifth Circuit “question[ed]” its precedent, stating that it “doubt[ed] that a
mere preponderance of the evidence on this element
could suffice to support a guilty verdict.” Id.
As of now, however, the Fifth Circuit has yet to take
up Perrien’s invitation to overrule the circuit’s precedent. And aside from one unpublished, and therefore
nonprecedential, case, no panel of the Fifth Circuit has
even discussed the Perrien footnote. See United States
v. Bailey, 169 F. App’x 815, 821 (5th Cir. 2006) (“We
share the Perrien court’s concerns and likewise note the
Supreme Court’s discussions of the right to proof beyond
a reasonable doubt afforded by the Due Process Clause
and the Sixth Amendment.”). So, while Fifth Circuit authority tilts in the direction of the outcome that Silvers
urges, it does so with insufficient weight to persuade us
to depart from the Second and Eighth Circuits.
The available authority in our circuit, as well as the
modest weight of the on-point authority in other circuits,
leads us to the ultimate conclusion that the question of
the existence of special maritime or territorial jurisdiction is a legal question, turning on the immutable, universal fact of the jurisdictional character of a particular
location. As a result, we conclude that a district court
may determine the legal question of the existence vel
non of federal jurisdiction and direct a jury to take judicial notice of the existence of that jurisdiction without
violating the constitutional command set forth by
Gaudin and Apprendi. We do not reach this conclusion
28a
lightly; Silvers’s argument, which urges us to consider
carefully the constitutional implications of the removal
of the jurisdictional question from the purview of the
jury, is a fair and reasonable one. But our determination
that the question of special maritime or territorial jurisdiction is a legal question vitiates Silvers’s constitutional
concern. We therefore affirm the district court’s decision to take judicial notice that Brittney Silvers’s apartment on Fort Campbell was within the United States’s
territorial jurisdiction.
B. Juror Bias
The next issue Silvers raises on appeal is whether
the district court erred in denying Silvers’s motion to
dismiss Juror 5 when it was revealed, during trial, that
Juror 5 had served in the Navy and by failing to ask potential jurors about prior military service during voir
dire.
“[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961).
“When a juror’s impartiality is at issue, the relevant
question is ‘did a juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality
have been believed.’ ” United States v. Lanham, 617
F.3d 873, 882 (6th Cir. 2010) (quoting Dennis v. Mitchell,
354 F.3d 511, 520 (6th Cir. 2003)).
Here, neither party disputes that Juror 5, when
questioned, assured the court that he could “serve as a
fair and impartial juror in a case that involves the military” despite having served in the Navy for five years.
R. 342 (Trial Tr. II at 157) (Page ID #2682). But Silvers
argues that the district court erred in accepting Juror 5’s
assurance of impartiality and should have instead
29a
dismissed Juror 5 for bias against Silvers. Appellant Br.
at 53. Silvers also argues that the district court erred in
asking potential jurors during voir dire only whether
they had served in the United States Army as opposed
to asking a broader question about prior military service. Id. For the reasons set forth below, we conclude
that the district court committed no reversible error on
either count.
1. Standard of Review
We review a district court’s decision to deny a motion for relief—in this case, a motion to dismiss a juror—
because a juror failed fully to disclose information during
voir dire for an abuse of discretion. See Jones v. Kent
County, 115 F.4th 504, 517 (6th Cir. 2024). We apply the
same abuse-of-discretion standard in reviewing a district court’s voir dire of the jury venire. United States
v. Guzman, 450 F.3d 627, 629 (6th Cir. 2006). “An abuse
of discretion occurs when we are left with the definite
and firm conviction that the [district] court … committed a clear error of judgment in the conclusion it reached
… or where it improperly applies the law or uses an erroneous legal standard.” Rikos v. Procter & Gamble Co.,
799 F.3d 497, 504 (6th Cir. 2015) (quoting United States
v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)). “Only in
the case of manifest error will we overturn a finding of
juror impartiality.” Guzman, 450 F.3d at 629.
The government argues that Silvers failed to raise a
challenge to the district court’s question during voir
dire, and that we should therefore consider the issue forfeited instead of reviewing the district court’s decision
for an abuse of discretion. Appellee Br. at 37. “When a
party neglects to advance a particular issue in the lower
court, we consider that issue forfeited on appeal.” Greer
v. United States, 938 F.3d 766, 770 (6th Cir. 2019). We
30a
review forfeited claims under the plain-error standard of
review. United States v. Burrell, 114 F.4th 537, 549 (6th
Cir. 2024). We are inclined to agree with the government—during voir dire, no objection was lodged to the
at-issue question by either party, nor did Silvers object
when the district court concluded questioning on the
Army service issue. R. 341 (Trial Tr. I at 111, 116) (Page
ID #2451, 2456-58) (asking if “[a]nyone else” had Army
connections to report). However, we need not decide the
issue, because even under the more lenient abuse-of-discretion standard, Silvers’s challenge fails.
2. The District Court’s Impartiality Ruling
Although neither party explicitly frames it as such,
the issue presented here is one of alleged juror nondisclosure. The legal framework under which we evaluate
claims of juror nondisclosure comes from McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984). “Under McDonough, for a prospective juror’s
nondisclosure to warrant a new trial, a defendant must
show that (1) the juror ‘failed to answer honestly a material question on voir dire,’ and (2) ‘a correct response
would have provided a valid basis for a challenge for
cause.’ ” English v. Berghuis, 900 F.3d 804, 813 (6th Cir.
2018) (quoting McDonough, 464 U.S. at 556). Put differently, “the nondisclosure must have denied the defendant his Sixth Amendment right to an impartial jury.” Id.
Silvers argues that the district court abused its discretion in finding that Juror 5 honestly answered the district court’s question about military service during voir
dire. Appellant Br. at 56, 61. In support of this argument, Silvers claims that, even though the district
court’s question during voir dire was whether any potential juror, or anyone in their immediate family, had
“work[ed] with … the U.S. Army,” R. 341 (Trial Tr. I at
31a
111) (Page ID #2451), the court “had actually broadened
the inquiry” by asking follow-up questions of other jurors that mentioned military service. Appellant Br. at
56. Specifically, the district court asked one juror who
had served in the Army and worked for the Bureau of
Prisons whether they had “had any other law enforcement or military-related job” since leaving the Bureau
in 1990. R. 341 (Trial Tr. I at 112) (Page ID #2452). Another juror volunteered to the court that her husband
was a retired marine, id. at 51 (Page ID #2391), and another juror volunteered to the court that he was a defense contractor supplying food service personnel at
Fort Campbell and Fort Bragg, id. at 113 (Page ID
#2453).
Silvers’s argument that the district court implicitly
“broadened the inquiry” into potential jurors’ military
service is unavailing. The district court, when confronting this argument below, went through each question
and answer that defense counsel had proffered as having
broadened the inquiry into military service writ large.
R. 343 (Trial Tr. III at 10-12) (Page ID #2699-701). The
district court then stated,
I disagree [that I was speaking of the military].
I think I was clearly speaking about the Army.
That led to some answers that were broader, but
I believe all the answers that we received were
connected in one way or another to the fact—the
items I mentioned specifically—Fort Campbell,
law enforcement, Army.
Id. at 12 (Page ID #2701). That the district court would
ask only about service in the Army, and that potential
jurors would understand the district court’s question as
asking only about service in the Army, relates to the
32a
circumstance that the case involved a member of the
Army who was killed while serving and living on an
Army base.
In any event, we review for an abuse of discretion
the district court’s determination that Juror 5 had not
“made any tacit misrepresentation by not speaking up in
response to the question about the Army.” Id.; see Kent
County, 115 F.4th at 517. In finding that Juror 5—who
had never worked for the Army, and therefore did not
answer in the affirmative when asked if he had worked
for the Army—answered the court’s questions honestly,
we are not convinced that the district court “committed
a clear error of judgment in the conclusion it reached.”
Rikos, 799 F.3d at 504. The district court’s determination that Juror 5 had answered its question honestly was
within the court’s discretion. And because we find no
error in the district court’s decision as to this first prong
of the McDonough test, we need not proceed to the second. We therefore affirm the district court’s denial of
Silvers’s motion to dismiss Juror 5 for bias.
3. The Voir Dire Question
Having found no error in the district court’s bias determination, we next address Silvers’s challenge to the
district court’s questioning during voir dire. Pursuant
to Rule 24 of the Federal Rules of Criminal Procedure,
the district court “may examine prospective jurors or
may permit the attorneys for the parties to do so.” Fed.
R. Crim. P. 24(a)(1). If a trial judge decides to examine
prospective jurors himself—which the district court
elected to do here—the judge “must at the very least solicit questions from both parties’ attorneys,” but “is by
no means required to ask these question[s] unless he
deems them ‘proper’ or otherwise helpful to the voir dire
process.” United States v. Sheldon, 223 F. App’x 478,
33a
481 (6th Cir. 2007) (citing Rosales-Lopez v. United
States, 451 U.S. 182, 189 (1981) (plurality op.) (emphasis
in original)).
“Because the obligation to empanel an impartial jury
lies in the first instance with the trial judge, and because
he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.” RosalesLopez, 451 U.S. at 189. “In reviewing the district court’s
voir dire in this case,” then, “we must determine
whether the court ‘abused the broad discretion vested in
[it] … in [its] impaneling of [the] jury,’ … remaining
mindful of the fact that a district court ‘retains great latitude in deciding what questions should be asked on voir
dire.’ ” United States v. Middleton, 246 F.3d 825, 834
(6th Cir. 2001) (first quoting United States v. Phibbs, 999
F.2d 1053, 1071 (6th Cir. 1993); and then quoting Mu’Min
v. Virginia, 500 U.S. 415, 424 (1991)).
Silvers argues that the district court abused this
broad discretion by failing to “conduct[] an inquiry about
panel members’ potential bias for military victims and
witnesses.” Appellant Br. at 63. As a threshold matter,
although Federal Rule of Criminal Procedure 24(a)(2)
provides that a district court that elects to conduct voir
dire must permit attorneys for both parties to ask or
submit further questions of the venire, neither counsel
for the defense nor counsel for the government asked or
submitted any additional questions about any potential
juror’s prior military service after the district court conducted voir dire. And although defense counsel—or
even the government—would likely have asked a different, broader question than asked by the district court,
“[a] proffered voir dire question is not constitutionally
required simply because it ‘might be helpful in assessing
whether a juror is impartial’; instead a question is
34a
constitutionally compelled only where the ‘failure to ask
[that] question [] … render[s] the defendant’s trial fundamentally unfair.’ ” Beuke v. Houk, 537 F.3d 618, 637
(6th Cir. 2008) (quoting Mu’Min, 500 U.S. at 425-26).
Here, the district court asked a detailed, specific question—“Does anyone here, or anyone in your immediate
family, work with the United States Justice Department, the U.S. Army, the FBI, the ATF, or the Christian
County Sheriff’s Office?”, R. 341 (Trial Tr. I at 111)
(Page ID #2451)—intended to evaluate whether any
member of the venire had an impermissible bias in favor
of the United States Army. The question was closely
tailored to the facts of Silvers’s case, which involved the
murder of an active-duty member of the Army at an
Army base. So, while Silvers’s preferred question
“might have helped to expose juror bias[es]” in favor of
the military at large, “its omission [did] not result in a
fundamentally unfair trial, and therefore it [was] not
constitutionally compelled.” Beuke, 537 F.3d at 637.
Silvers contends that our holding in United States v.
Laird, 239 F. App’x 971 (6th Cir. 2007), counsels the opposite conclusion. Laird is an unpublished case in which
we held that a district court abused its discretion in failing, in a drug trafficking case, to question prospective
jurors about their attitudes towards narcotics-related
crimes. Id. at 975. In Laird, we concluded that the district court’s voir dire question—”[A]nybody have anything in their background or anything of that nature that
would not allow them to sit on this kind of case? Anybody has been charged with such a crime [possession
with intent to distribute cocaine and possessing a firearm in furtherance of a drug trafficking crime] themselves or anything of that nature[?]”—was “too general
to elicit responses from the prospective jurors which
would indicate a potential bias against individuals
35a
charged with a drug offense.” Id. at 973, 975. Determining that “the district court should have conducted a more
probing inquiry into the prospective jurors[’] state of
mind as it relates to drug-related offenses,” we held that
the district court had abused its discretion. Id. at 975.
We conclude that the district court’s question in
Laird materially differs from the voir dire question at
issue in this case. Unlike the question in Laird, which
we found “too vague to alert a potential juror, who is
likely a legal novice, that the questioner is inquiring
about their biases or prejudices,” id. at 975, the question
that the district court asked here was specific and clearly
intended to inquire as to the prospective jurors’ potential bias in favor of any of the listed institutions. In fact,
Silvers’s issue with the district court’s question is that it
was too specific— focusing only on the Army, the branch
of the military implicated in this case, instead of the entire military—not too broad or vague. And Silvers cites
no legal authority for the proposition that a district court
abuses its discretion by asking a question on voir dire
that is too closely tailored to the facts of a case.
Silvers is correct that an adequate voir dire is required to “ensur[e] ‘a fair trial by a panel of impartial,
“indifferent” jurors.’ ” Guzman, 450 F.3d at 630 (quoting
Irvin, 366 U.S. at 722). But he is incorrect in asserting
that the voir dire questioning in his case was constitutionally inadequate. The district court asked a detailed
question about potential jurors’ prior involvement with
the Army in order to expose any impermissible bias in
favor of the victim due to her status as an active-duty
member of the Army. That the court’s question focused
on the particular branch of the military in which
Brittney Silvers served was not an abuse of the district
court’s broad discretion in conducting voir dire. We
therefore affirm the district court.
36a
C. Constitutionality of Silvers’s Mandatory Life
Sentence
The final issue that Silvers raises on appeal is
whether his mandatory life sentence under 18 U.S.C.
§ 1111(b) violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. We review de
novo constitutional challenges to sentences, including
challenges to the constitutionality of a sentence under
the Eighth Amendment. United States v. Jones, 569
F.3d 569, 573 (6th Cir. 2009).
The Eighth Amendment provides that “[e]xcessive
bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S.
CONST. amend. VIII. “In reviewing Eighth Amendment
challenges, this circuit has adhered to the ‘narrow proportionality principle’ articulated in Harmelin v. Michigan.” United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97
(1991) (Kennedy, J., concurring)). That principle “requires a defendant to show that the term [of imprisonment] is grossly disproportionate to the crime.” United
States v. Potter, 927 F.3d 446, 454 (6th Cir. 2019) (citing
Ewing v. California, 538 U.S. 11, 20, 23 (2003) (plurality
op.)).
Here, Silvers argues that his mandatory life sentence for first degree murder is “cruel and disproportionate” as applied to the facts of his case. Appellant Br.
at 67. But Silvers’s argument faces “insurmountable obstacles before this court.” Potter, 927 F.3d at 454. This
is because, as Silver concedes, his argument is foreclosed
by our decision in Hill. Appellant Br. at 64 (“Silvers
acknowledges [Harmelin] and [Hill], which the Court
may read to foreclose his challenge.”). In Hill, we evaluated the defendant’s argument that his mandatory life
37a
sentence for a third felony drug conviction violated the
Eighth Amendment. 30 F.3d at 50. Applying the “narrow proportionality principle” set forth in Harmelin, we
compared the circumstances underlying Harmelin’s conviction (first offense, simple possession) to those underlying the defendant’s conviction (his third felony offense,
for conspiracy to distribute, more than 25 times the
amount of narcotics attributed to the defendant in Harmelin if applying a 100:1 crack to powder cocaine ratio)
and determined that “the circumstances underlying [the
defendant’s] conviction and sentence are more egregious
than those that justified the life sentence imposed in
Harmelin.” Id. at 50-51. On that basis, we concluded
that the defendant’s “mandatory life sentence did not violate the Eighth Amendment.” Id. at 51.
Applying our reasoning in Hill to the case at bar, we
conclude that the circumstances underlying Silvers’s
conviction and sentence—i.e., that Silvers was convicted
of the premeditated murder of his estranged wife, as
well as the attempted murder of Keaton, domestic violence, and violation of a protection order, among other
related crimes—are certainly more egregious than those
present in Harmelin. Additionally, although we have
not specifically held that a mandatory life sentence for
first-degree murder is constitutional, many of our sister
circuits have. See, e.g., United States v. Sierra, 933 F.3d
95, 98-99 (2d Cir. 2019); United States v. Chavez, 894 F.3d
593, 609 (4th Cir. 2018); United States v. LaFleur, 971
F.2d 200, 211 (9th Cir. 1991); United States v. Forbes, 282
F. App’x 324, 325 (5th Cir. 2008) (per curiam).
Silvers argues that we should nevertheless reconsider our holding in Hill. Appellant Br. at 64. But “[a]
panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United
38a
States Supreme Court requires modification of the same
decision or this Court sitting en banc overrules the prior
decision.” Salmi v. Sec’y of Health & Hum. Servs., 774
F.2d 685, 689 (6th Cir. 1985). Hill is a published opinion
that neither the Supreme Court nor this court, sitting en
banc, has called into question. Hill thus binds us here.
We therefore affirm Silvers’s sentence as constitutionally sound.
III.
CONCLUSION
For the reasons set forth above, we AFFIRM Silvers’s convictions and sentence.
39a
CONCURRENCE
THAPAR, Circuit Judge, concurring in part and
concurring in the judgment. Victor Silvers murdered his
estranged wife on an Army base. After a jury convicted
him, he was sentenced to life in prison without the possibility of parole. On appeal, he challenges three aspects
of his conviction. The majority is right to reject them all.
But because I would resolve some of the claims differently, I respectfully concur in part and concur in the
judgment.
I.
On the night of October 14, 2018, Brittney Silvers
was found lying outside her home dying of a gunshot
wound. Brittney was a logistics specialist with the
United States Army and lived on Fort Campbell, a military base straddling the border of Kentucky and Tennessee. Soon after she was shot, Military Police arrived
on the scene. They found a man sitting in a parked car
in Brittney’s driveway, surrounded by neighbors with
their guns drawn. That man was Victor Silvers (“Silvers”), Brittney’s estranged husband.
A grand jury indicted Silvers for first-degree murder under 18 U.S.C. §§ 1111(a), (b).1 Section 1111 requires the government to show that the crime occurred
within the special maritime and territorial jurisdiction of
the United States. 18 U.S.C. § 1111(b). Here, the government alleged that the murder occurred at Brittney’s
house on 4217 Contreras Court, which was located on the
Fort Campbell military base. Thus, because the military
1
Silvers also was indicted for attempted first degree murder
(of Brittney’s boyfriend), domestic violence, violation of a protective
order, possession of a firearm by a prohibited person, and the carry,
use, and discharge of a firearm during a crime of violence.
40a
base fell within the special maritime and territorial jurisdiction of the United States, the government could
prosecute Silvers.
Before trial, the United States asked the district
court to take judicial notice that Brittney’s address fell
within the special maritime and territorial jurisdiction of
the United States. Silvers opposed the motion, arguing
that the Sixth Amendment required a jury to find this
jurisdictional element. The court held an evidentiary
hearing. There, the government introduced testimony
from witnesses in the Army Corps of Engineers and government documents showing the transfer of the land
from Kentucky to the United States in 1942. Silvers objected to the authenticity of these documents.
After hearing evidence and arguments from both
sides, the court overruled Silvers’ objections and found
that Brittney’s home fell within the special maritime and
territorial jurisdiction of the United States. The court
made clear that it was taking judicial notice only of the
jurisdictional status of the land; it was leaving for the
jury to determine whether the events in question actually occurred at 4217 Contreras Court.
Following a six-day trial, the jury found Silvers
guilty on all seven counts. The court sentenced him to
mandatory life in prison, as required by 18 U.S.C.
§ 1111(b).2
Silvers presses three arguments on appeal. First,
that the jury must decide the jurisdictional status of the
location where Silvers murdered Brittney. Second, that
his mandatory life sentence was unconstitutional. And
2
The court also added a mandatory 10-year consecutive term
for Silvers’ conviction for using a firearm during a crime of violence.
See 18 U.S.C. § 924(c)(1)(A)(iii).
41a
third, that the district court abused its discretion by refusing to dismiss a juror for bias and failing to inquire
about his military service. I address each claim in turn.
II.
First, Silvers asks us to hold that the Sixth Amendment required a jury to determine that 4217 Contreras
Court fell within the special maritime and territorial jurisdiction of the United States. His argument is simple:
jurisdiction is an element of the crime for which he was
charged, and the Sixth Amendment requires the jury to
find all the elements of a crime.
Silvers is right that the Sixth Amendment requires
the jury to find all the elements of a crime. See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). But the relevant
element of the crime here is that the alleged murder occurred within the special maritime and territorial jurisdiction of the United States. See 18 U.S.C. §§ 1111(a),
(b). It’s a different question, however, whether the land
on which the alleged murder occurred fell within special
maritime and territorial jurisdiction. That’s not a required element in the text of § 1111. Rather, it’s a legal
question that goes to the jurisdictional status of the land
on which the crime allegedly occurred.
So, following the Supreme Court’s instructions, I
would look to history and tradition to determine who decides factual questions bearing on the jurisdictional status of land. And history makes clear that the court can
make this finding. Thus, I agree with the majority that
the district court could take judicial notice that 4217
Contreras Court fell within the special maritime and territorial jurisdiction of the United States.
42a
A.
Silvers’ challenge hinges on whether the judge or
jury may decide the jurisdictional status of a given piece
of land. Silvers says the jury; the government says the
judge. As the majority properly recognizes, there’s no
Sixth Circuit precedent that resolves this dispute.
Where, then, should a court turn?
The Supreme Court has told courts to look to historical evidence to determine the scope of the Sixth Amendment’s right to a jury trial. In United States v. Gaudin,
the Supreme Court emphasized that historical practice
gives meaning to that right. 515 U.S. 506, 515 (1995).
And Gaudin relied on this history to reiterate that the
Sixth Amendment mandates that a jury must find all the
elements of a crime to secure a conviction. Id. So too in
Apprendi v. New Jersey. There, the Court invoked a
“historical foundation” to support its interpretation of
the Sixth Amendment. 530 U.S. at 477. Fast forward
another twenty years, and the Supreme Court still uses
historical practice to define the contours of the Sixth
Amendment. Erlinger v. United States, 602 U.S. 821,
828-32 (2024); see also id. at 862-67 (Kavanaugh, J., dissenting).
For good reason, we usually focus on history when
dealing with the Constitution. See, e.g., Vidal v. Elster,
602 U.S. 286, 295-99 (2024) (looking to history to examine
the interplay of the First Amendment and trademark
rights); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1, 24 (2022) (same, for the scope of the Second
Amendment); Town of Greece v. Galloway, 572 U.S. 565,
575-77 (2014) (same, for the Establishment Clause);
Crawford v. Washington, 541 U.S. 36, 42-50 (2004)
(same, for the Confrontation Clause).
43a
Following this consistent command, courts must
look to history to determine who can find the jurisdictional status of a piece of land—judge or jury?
B.
History reveals that a judge can determine jurisdictional status without running afoul of a defendant’s right
to a jury trial.
i.
Both federal and state courts have long taken judicial notice of geographical facts giving rise to jurisdictional status—judicial notice that’s akin to whether a
particular location falls within special maritime or territorial jurisdiction. Cases demonstrating this principle
fall into several categories: judicial notice that land falls
within a given jurisdiction, judicial notice of admiralty
jurisdiction, judicial notice of a navigable river, and judicial notice of Indian country.
a.
The best example of a court judicially noticing a fact
giving rise to a jurisdictional element is Jones v. United
States, 137 U.S. 202 (1890). In Jones, the federal government indicted the defendant for murder on the Caribbean Island of Navassa. How did the United States have
the power to try someone for a crime on this piece of
land? A law called the Guano Islands Act allowed the
president to declare that the United States possessed
any island with guano deposits. See 48 U.S.C. § 1411.
(Guano is bird excrement used to make fertilizer and
gunpowder.) The Act asserted federal criminal jurisdiction over all such islands. Id. § 1417. And, because there
was guano on Navassa, and the President declared the
United States possessed it, the government thought it
had criminal jurisdiction.
44a
The Supreme Court agreed. 137 U.S. at 211-12. In
holding that the Act could confer jurisdiction, the Supreme Court reasoned that “[a]ll courts of justice are
bound to take judicial notice of the territorial extent of
the jurisdiction exercised by the government whose
laws they administer.” Id. at 214. And the Court described how judges can draw from diverse sources, including laws, treaties, and proclamations from outside
the evidentiary record. Id. Thus, the Jones Court resolved the jurisdictional status itself through judicial notice, rather than leaving it to a jury. The Court looked
at documents showing that the island of Navassa contained guano and actions by the President showing that
the United States had claimed authority over Navassa.
Based on those sources, the court found federal criminal
jurisdiction over the case. Id. at 217, 224.
The Supreme Court also took judicial notice of facts
giving rise to admiralty jurisdiction. See Peyroux v.
Howard, 32 U.S. 324 (1833). In Peyroux, the question
was whether a steamboat in New Orleans fell within the
federal admiralty jurisdiction. The dispute boiled down
to a factual question about geography: federal admiralty
jurisdiction was proper if the water level of the Mississippi River in New Orleans rose and fell with the Gulf’s
changing tides. Id. at 342. The Supreme Court held that
it could answer this question through judicial notice. Id.
Even though the Court cautioned that it normally
couldn’t take judicial notice of factual questions, the
Court explained that it was “bound to take notice of public facts and geographical positions.” Id. Based on its
study of a book called “Stoddard’s Louisiana,”3 the Court
3
“Stoddard’s Louisiana” refers to the 1812 book Sketches, Historical and Descriptive, of Louisiana, by Major Amos Stoddard.
Born in Connecticut, Stoddard fought in the American Revolution.
William Willis, A History of the Law, the Courts, and the Lawyers
45a
satisfied itself that the river level in New Orleans ebbed
and flowed with the Gulf’s tide. Id. at 343. Thus, the
Court confirmed that the case fell within the federal admiralty jurisdiction.
To be sure, Peyroux is a civil case—and because the
court sat in admiralty jurisdiction, the defendant didn’t
have a right to a jury trial. See Parsons v. Bedford,
Breedlove & Robeson, 3 Pet. 433, 446-47 (1830) (Story,
J.). So, it doesn’t speak directly to whether a judge may
determine the jurisdictional status of land in a criminal
case. Nevertheless, Peyroux teaches that federal courts
have the authority to judicially notice geographical facts
that form the basis of the court’s jurisdiction. See 32 U.S.
at 343.
of Maine 180 (1863). He then clerked at the Supreme Court of Massachusetts in Boston before opening his own law practice in the
town of Hallowell, Maine. Id. A man of “fine personal appearance,”
Stoddard had “more taste for military life than for the quiet pursuit
of his profession in a remote country village.” Id. He rejoined the
military, where he distinguished himself as a “man of talents.” Id.
He was killed in 1813 at the Battle of Fort Meigs during the War of
1812. Id. Seeking to foster the American public’s understanding of
Louisiana’s “climates, soils and productions, the magnitude and importance of its numerous rivers, and its commercial and other natural advantages,” Stoddard published his Sketches in 1812. Amos
Stoddard, Sketches, Historical and Descriptive, of Louisiana vi
(1812). In the preface to his work, Stoddard worried that his long
period of military service, during which he was “wholly secluded
from the literary world,” would not bode well for his “literary attempt.” Id. at viii. He professed modest aims for his book: “I expect
not the approbation of scientific men, though I hope to escape their
censure. If they cannot think favorably of my genius or erudition, I
trust they will at least commend my industry and motives.” Id.
They did. Stoddard would no doubt have been gratified to know
that the Supreme Court of the United States treated “[t]he authority of Mr. Stoddard” as a basis for answering questions of federal
law. Peyroux, 32 U.S. at 343.
46a
What’s more, judicial notice didn’t end at the coastline. Courts have long taken judicial notice of what lands
constituted “Indian country” in federal criminal prosecutions. Early federal statutes, such as the General
Crimes Act of 1817, conferred federal jurisdiction over
certain crimes that occurred in “Indian country.” See 18
U.S.C. § 1152. But Congress didn’t provide a clear definition of that term, so “the courts then proceeded to define Indian country judicially.” David H. Getches et al.,
Cases and Materials on Federal Indian Law 349 (1979).
In Donnelly v. United States, for example, the Supreme Court determined that the United States had jurisdiction over a murder that occurred on an Indian reservation in northern California. 228 U.S. 243 (1913). The
defendant had argued that the land on which the murder
occurred wasn’t Indian country. Id. at 268. But the
Court held otherwise. Id. at 268-69. Thus, the jurisdictional status of the land wasn’t a question for the jury.
See also United States v. Pelican, 232 U.S. 442, 451-52
(1914) (reversing district court’s determination that the
land in question was not Indian country).
Other courts did the same. For example, in Beebe v.
United States, the defendant was indicted for murder in
Indian country. 11 N.W. 505 (Dakota 1882). The Supreme Court of the Territory of Dakota (an Article I
court) declared its intention to “take judicial notice of Indian reservations, and of public leading proclamations
affecting matters relative to its jurisdiction.” Id. at 510.
In doing so, the court relied on “authentic public documents.” Id. Thus, the court did not submit the jurisdictional status of the land as a question to the jury.
So too in United States v. Leathers, 26 F. Cas. 897
(D. Nev. 1879) (No. 15,581). There, the jury found the
defendant guilty of introducing liquor into Indian
47a
country and trading without a license. Id. at 897. After
the jury found a series of “[s]pecial issues of fact,” the
government moved for judgment from the court. Id. In
so doing, the court had to determine that the land on
which the jury found the crime to have occurred was Indian country and thus subject to federal jurisdiction. Id.
The court concluded that it was. Id. at 900. This division
of findings among court and jury matches the division in
Silvers’ case, albeit in reverse order: the jury first found
that the crime occurred at a given place, and the court
then determined that this place fell within Indian country.4
In sum, all these cases show that federal courts routinely determined the jurisdictional status of a piece of
land.
b.
State cases paint a similar picture: courts consistently took judicial notice of facts giving rise to jurisdictional elements.5
4
This division continues to this day in the Indian country context. See, e.g., United States v. Jackson, 853 F.3d 436, 438 n.2 (8th
Cir. 2017) (“The court determines whether a particular piece of land
is in Indian country; the jury then decides whether the crime in fact
occurred on that land.”); United States v. Roberts, 185 F.3d 1125,
1139 (10th Cir. 1999) (same); United States v. Stands, 105 F.3d 1565,
1575 (8th Cir. 1997) (same).
5
It’s true that these state cases weren’t interpreting the Sixth
Amendment’s right to jury trial, which the Supreme Court only incorporated against the states in 1968. See Duncan v. Louisiana, 391
U.S. 145 (1968). But early state practice can still be relevant as to
the scope of the Sixth Amendment. The constitutions of the early
states all required some form of jury trial. Id. at 153. And a jury
trial was among the most precious rights in early America. Id. at
151. See also Parsons, 3 Pet. at 446 (“The trial by jury is justly dear
to the American people” and “secured in every state constitution in
48a
The best example of a state court taking jurisdictional notice of the status of land is State v. Wagner, 61
Me. 178 (1873). There, the state of Maine indicted a defendant for murder on an island called Smutty Nose.
The defendant objected to the jurisdiction of the Maine
state court, since he claimed the state hadn’t shown that
Smutty Nose was actually located in Maine. Id. at 18182. Moreover, just as Silvers does here, the defendant
argued that the jurisdictional status of a relevant piece
of land was a jury question. Id. at 183. The Maine Supreme Court disagreed, holding that jurisdiction was a
question for the judge. Id. at 184. The court observed
that the “question of jurisdiction in this case turned entirely upon the construction of the ancient charters and
grants,” which was not “a matter for the jury to determine.” Id. Instead, the construction of those documents
was “purely a question of law for the court.” Id. Why?
Because “once settled,” their meaning “must be deemed
settled forever, and not subject to the varying verdicts
of successive juries whenever a person charged with a
crime sees fit to claim to throw in a denial of jurisdiction.” Id. at 185. Unsurprisingly, the impracticability of
leaving these inquiries to the jury mirrors the district
court’s reasoning here.
New York’s highest court took a similar view. See
People v. Godfrey, 17 Johns. 225 (N.Y. 1819). In Godfrey, a defendant argued that New York state courts
lacked jurisdiction over his indictment for murder in
Fort Niagara, which the defendant claimed fell within
federal jurisdiction. The court combed through historical documents and treaties to conclude that New York
had jurisdiction. Id. at 230-33. This wasn’t a question
the union.”) (Story, J.). So, early state practices are still relevant to
how the Sixth Amendment would have been understood.
49a
for the jury to decide. Once the court was “perfectly satisfied” that the state had jurisdiction, “nothing remain[ed] but that judgment be passed” upon the defendant. Id. The court could take judicial notice of the land’s
status; the court didn’t need to leave the question for the
jury.
State courts likewise took judicial notice of facts relating to river navigability. In Commonwealth v. King,
a defendant was indicted in Massachusetts for running a
steamboat without a license on waters within the state’s
jurisdiction. 22 N.E. 905, 905 (Mass. 1889) (syllabus).
But the state only had jurisdiction if the river—here, the
Connecticut River—wasn’t navigable where the defendant operated his steamboat. Id. at 906. If the river was
navigable, by contrast, then it would fall within the federal admiralty jurisdiction—not Massachusetts’ jurisdiction. The court held that the lower court might take judicial notice that the river wasn’t navigable. Id. “It is
well known,” explained the court, that “the waters of the
Connecticut river, at the place where it is alleged that
the defendant’s steam-boat was employed, can be used
by vessels only for” intra-state transportation. Id.
Those waters were thus “not within the maritime jurisdiction of the United States.” Id. Nowhere did the court
say that a jury would have to decide the question of navigability (and thus jurisdictional status). Rather, the
Justices of the Massachusetts Supreme Judicial Court
were free to make this determination for themselves,
without violating the defendant’s state constitutional
right to a jury trial.
All told, courts throughout history have taken judicial notice of facts establishing the jurisdictional status
of given geographical features. The Supreme Court long
ago summarized this trend: “[C]ourts of the United
States take judicial notice of the ports and waters of the
50a
United States where the tide ebbs and flows, of the
boundaries of the several States and judicial districts,
and of the laws and jurisprudence of the several States
in which they exercise jurisdiction.” Brown v. Piper, 91
U.S. 37, 42 (1875). A leading 19th century evidence treatise agreed: “Courts also take notice of the territorial
extent of the jurisdiction and sovereignty, exercised de
facto by their own government.” Simon Greenleaf, 1 A
Treatise on the Law of Evidence ch. 2, § 6 (3d. ed. 1846).
This mass of evidence confirms what the majority holds.
c.
Finally, there’s one more 19th-century Supreme
Court case that discusses judicial notice: United States
v. Jackalow. 66 U.S. 484 (1861). While Jackalow teaches
that the jury must find venue in a criminal case, it says
nothing about the Sixth Amendment and the jurisdictional status of land.
In Jackalow, the defendant was charged in federal
court in New Jersey with piracy on board a vessel in the
Long Island Sound. Id. at 485. Why a New Jersey federal court? Under an 1820 act, any defendant who committed robbery on the “high seas” outside the boundaries of a state could be tried in the federal district court
in which he was found (here, that was New Jersey). See
“An act to protect the commerce of the United States,
and punish the crime of piracy,” Pub. L. 16-113, § 3, 3
Stat. 600 (1820). Thus, the key question was whether, at
the time of the alleged offense, the ship’s location was
within the boundaries of a state. Jackalow, 66 U.S. at
486. The ship in question here was somewhere in the
Long Island Sound, between New York and Connecticut. Id. at 487.
The Court held that the jury had to determine
whether this location fell within a state. The Court
51a
began by stating that “the boundary of a State, when a
material fact in the determination of the extent of the
jurisdiction of a court, is not a simple question of law.”
Id. Thus, a jury should find the relevant facts. As the
Court put it: the “ascertainment” of the location’s geographical status “belongs to the jury.” Id. “All the testimony bearing upon this question, whether of maps,
surveys, practical location, and the like, should be submitted to them under proper instructions to find the
fact.” Id. at 487-88.
Those few sentences appear to support Silvers’ argument that a jury must determine the jurisdictional
status of a piece of land. But Jackalow is about venue,
not jurisdiction.
Remember that the relevant question in Jackalow
was whether the defendant committed the crime outside
the boundaries of a state. If so, Congress had prescribed
that he could be tried in the state in which he was caught.
What gave Congress authority to do so? The Venue
Clause of the Constitution. This provision mandates
that when a defendant commits an offense outside any
state, “the trial shall be at such place or places as the
Congress may by law have directed.” U.S. Const. art.
III, § 2, cl. 3. Thus, the Jackalow Court asked whether,
“in view of this provision of the Constitution,” the defendant committed his offense outside of any state. 66
U.S. at 486. That is, the key question was the proper
venue for the trial. The Court held that the judge had to
submit the issue of venue to the jury rather than determine it himself. Id. at 488.
This reading of Jackalow—as a venue rather than a
jurisdiction case—coheres with subsequent caselaw. It’s
black-letter law that the government must prove venue
to the jury by a preponderance of the evidence. See, e.g.,
52a
United States v. Petlechkov, 922 F.3d 762, 770 (6th Cir.
2019); see also 2 Charles Alan Wright & Arthur Miller,
Federal Practice & Procedure § 307 (4th ed. 2024). And
courts have long understood Jackalow to be a case about
venue, not jurisdiction. See, e.g., Smith v. United States,
599 U.S. 236, 250 (2023) (calling Jackalow a case about
“venue error”); United States v. Perez, 280 F.3d 318, 330
n.8 (3d Cir. 2002) (describing Jackalow as a case about
whether “venue existed”); United States v. Matos-Luchi, 627 F.3d 1, 14 (1st Cir. 2010) (Lipez, J., dissenting)
(same). Perhaps that’s why, in the subsequent Guano Islands Act case, Jones v. United States, the Supreme
Court felt free to disregard Jackalow when it held that
“[a]ll courts of justice are bound to take judicial notice of
the territorial extent” of legal boundaries. 137 U.S. at
214.
The distinction between jurisdictional status and
venue also makes sense from first principles. The jurisdictional status of the land relates to the authority of a
court to hear a particular case. 2 Wharton’s Criminal
Procedure § 10:1 (14th ed. 2023). That’s a quintessential
legal question: Does the law give the court authority?
Venue, however, relates to the proper place for trial
within a given jurisdiction. Id. In other words, among
the courts that have legal authority over the defendant,
the proper venue depends on the geographical location
of the crime. Id. That’s a factual question that depends
on the site of the crime—and thus is a natural fit for the
jury to determine. The legal issue of the jurisdictional
status of the land, by contrast, is a better fit for the court
to adjudicate.
In sum, Jackalow is a case about venue, not jurisdiction. It therefore has no bearing on whether courts have
traditionally submitted the question of the jurisdictional
status of land to the jury.
53a
*
*
*
In conclusion, historical practice supports the majority’s conclusion that the district court could take judicial
notice that 4217 Contreras Court fell within the special
maritime and territorial jurisdiction of the United
States.
III.
Silvers also argues that the imposition of a mandatory life sentence is unconstitutional under the Eighth
Amendment’s prohibition on “cruel and unusual punishments.” U.S. Const. amend. VIII. He claims that his
punishment is “disproportionate and cruel.” Appellant
Br. at 64. He is wrong.
The Supreme Court has told us that the Eighth
Amendment contains a “narrow proportionality principle” that prohibits a term of imprisonment from being
“grossly disproportionate” to the crime. United States
v. Potter, 927 F.3d 446, 454 (6th Cir. 2019) (citing Ewing
v. California, 538 U.S. 11, 20 (2003) (plurality)). And, as
Silvers acknowledged in his briefing, two relevant cases
using the proportionality framework foreclose his challenge. In one of those cases, the Supreme Court upheld
a mandatory life sentence for a defendant convicted of
possessing 672 grams of cocaine. Harmelin v. Michigan,
501 U.S. 957, 961, 996 (1991). And in the other, United
States v. Hill, our circuit upheld a mandatory life sentence for a third felony drug conviction. 30 F.3d 48, 5051 (6th Cir. 1994). The present facts, which involve Silvers’ premeditated murder of his estranged wife and attempted murder of her boyfriend, are far more egregious than the crimes in those cases. Thus, precedent
makes clear that Silvers’ sentence isn’t grossly disproportionate to his heinous crime.
54a
To be sure, as Justice Scalia has made clear, the
“proportionality principle” has no basis in the text, history, or tradition of the Eighth Amendment. See Harmelin, 50 U.S. at 965 (opinion of Scalia, J.). And as
judges, we’re not authorized or equipped to weigh what
sentence is proportionate to the severity of a given
crime. Cf. Nat’l Republican Senatorial Comm. v. FEC,
117 F.4th 389, 400 (6th Cir. 2024) (en banc) (Thapar, J.,
concurring) (emphasizing that judicial balancing tests
“sit[] in tension with the historically derived nature of
our constitutional rights” and “strain[] courts’ institutional competence”). Rather, the Eighth Amendment
“leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize
the penalty.” Miller v. Alabama, 567 U.S. 460, 504 (2012)
(Thomas, J., dissenting) (citation omitted). It’s Congress’s job—and not ours—to determine the appropriate
length of the sentence for the murder Silvers committed.
But the Supreme Court has interpreted the Eighth
Amendment otherwise. And under that framework, I
agree with the majority that Silvers’ punishment isn’t
grossly disproportionate to his crime.
IV.
Finally, I agree with the majority’s resolution of Silvers’ jury bias claim. The juror at issue honestly answered the district court’s questions during voir dire.
And the district court did not abuse its discretion by failing to inquire about military service more generally.
*
*
*
I thus respectfully concur in the majority’s analysis
of the jury bias claim and concur in the judgment as to
the remaining claims.
55a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
No. 5:18-cr-50
UNITED STATES OF AMERICA,
Plaintiff,
v.
VICTOR EVERETTE SILVERS,
Defendant.
Filed March 30, 2023
OPINION & ORDER
Is the U.S. Army base at Fort Campbell, Kentucky
under federal jurisdiction? And in a federal criminal
case, does the judge or the jury answer that question?
These two queries are raised by the United States’
motion to take judicial notice that “4217 Contreras
Court, Apartment F,” where the conduct at issue in this
case occurred, is “a place within the special maritime and
territorial jurisdiction of the United States.” Motion for
Judicial Notice (DN 184) at 2 (quotation marks omitted).
The jurisdictional status of Fort Campbell is important to this Court, which hears all manner of cases
arising from Fort Campbell.1 That status is also
1
Recent Fort Campbell cases litigated in the Western District
of Kentucky address offenses such as the theft of federal property,
United States v. Morava, No. 5:18-mj-1; possession of drug
56a
important to this case, which concerns charges that Victor Silvers traveled to the base and committed several
serious offenses on post. The federal murder, attempted-murder, firearm, and domestic-violence
charges against him (Counts 1–5) all allege that these offenses occurred within the federal government’s “special
maritime and territorial jurisdiction.” See, e.g., 18
U.S.C. § 1111(b) (criminalizing murder committed
within the special maritime and territorial jurisdiction of
the United States); Second Superseding Indictment (DN
239) at 1–2 (charging that these five offenses occurred at
Fort Campbell, a place within “the special maritime and
territorial jurisdiction of the United States”). And 18
U.S.C. § 7(3) defines the “special maritime and territorial jurisdiction” to include “lands reserved or acquired
for the use of the United States, and under the exclusive
or concurrent jurisdiction thereof.”
The United States’ trial proof included evidence that
the alleged crimes “took place on the Fort Campbell,
Kentucky military installation, at and in the immediate
vicinity of 4217 Contreras Court, Apartment F, Fort
Campbell, Kentucky.” Motion at 2. The jury considered
(among other things) whether the events took place at
that street address. See Jury Instructions (DN 281) at
6. According to Silvers, however, the Sixth Amendment
of the U.S. Constitution required the jury to also decide
whether this portion of Fort Campbell is part of the designated federal jurisdictional territory. The Government, in contrast, urged the judge rather than jury to
decide (or at least instruct) that 4217 Contreras Court is
paraphernalia, United States v. Sherman, No. 5:18-mj-8; non-domestic assault, United States v. Fanene, 5:18-mj-21; and DUI,
United States v. Henrich, 5:18-po-48.
57a
part of the special maritime and territorial jurisdiction
of the United States.
Before trial, the Court granted Silvers’s request for
an evidentiary hearing and then largely granted the
Government’s motion regarding Fort Campbell’s jurisdictional status. The Court instructed the jury on the
legal status of the locus of the crime: “4217 Contreras
Court is located within the special maritime and territorial jurisdiction of the United States.” Id. And the
Court asked the jury to answer the factual question
whether it found “beyond a reasonable doubt that the
crime occurred at 4217 Contreras Court.” Id. The jury
answered yes and convicted Silvers on all seven counts.
The Court now offers this supplemental opinion to
explain the basis for its ruling in greater detail.
A. Whose law applies? This motion and the defense’s opposition don’t raise the question whether state
rather than federal criminal statutes apply to the alleged
murder and attempted murder on post. At least not directly. On a day-to-day basis, no one doubts that federal
(including Army) laws and regulations control. The defense offers no affirmative argument to call this state of
affairs into question. Nor does it contend, as a factual
matter, that the Contreras Court address falls outside
the boundaries of Fort Campbell as a matter of geography. Hearing Transcript (DN 292) at 20:23–21:16.
But the defense maintains that the Government
hasn’t established (or couldn’t establish) beyond a reasonable doubt the prerequisites of special maritime and
territorial jurisdiction, which turn on legal documents
and decisions made generations ago. The land that comprises Fort Campbell was not federally controlled before
World War II—at least not as the collective territory we
know today. During the war years, the United States
58a
acquired various plots in Kentucky and Tennessee for
use in the war, cobbling them together into what was
once Camp Campbell and is now Fort Campbell. Hearing Tr. at 30:04–31:19; Gov’t Exs. 2–3, 8.
Counterintuitively, perhaps, the acquisition of land
or exercise of control by the U.S. government does not
create even a presumption that federal jurisdiction applies there. “Although some may assume that a military
installation automatically comes within Federal jurisdiction, that assumption is incorrect.” United States v. Williams, 17 M.J. 207, 211 (C.M.A. 1984). Indeed, since 1940,
federal law “presume[s] that jurisdiction has not been
accepted.” 40 U.S.C. § 3112 (formerly 40 U.S.C. § 255)
(emphasis added).2 So the United States doesn’t exercise jurisdiction over all land it owns or controls within
the several states; sometimes the feds have the status of
mere landowners or proprietors. See United States v.
Davis, 726 F.3d 357, 364 (2d Cir. 2013) (citing Paul v.
United States, 371 U.S. 245, 264 (1963)).3
2
Section 3112(b) provides:
When the head of a department, agency, or independent
establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or
secure, from the State in which land or an interest in land
that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of,
any jurisdiction over the land or interest not previously
obtained. The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of
acceptance with the Governor of the State or in another
manner prescribed by the laws of the State where the land
is situated.
3
Silvers concedes the property in question “is situated on Fort
Campbell” and owned by the United States. Opp. at 2 n.1. He also
59a
Overcoming this presumption of state control and
establishing federal jurisdiction depends on a two-step
process: the state must agree to the transfer of jurisdiction and the federal government must accept jurisdiction. See § 3112(b); Paul, 371 U.S. at 264. The state must
provide “consent to, or cession of, any jurisdiction.”
§ 3112(b). And the head of a federal agency (“or other
authorized officer…”) indicates acceptance of jurisdiction by filing a notice with the Governor or following any
other process set out in the State’s laws. Id.
Establishing state relinquishment and federal acceptance is not always obvious. This determination “is
often complex,” and “federal courts can get the jurisdictional analysis wrong.” United States v. Banks, No. 2050175, 2022 WL 3278942, at *4 (9th Cir. Aug. 11, 2022)
(Koh, J., concurring). Indeed, federal courts have on several occasions held that federal jurisdiction did not apply
at federal institutions on federally owned land. See Davis, 726 F.3d at 364 (collecting cases). And courts of appeals have rejected jury instructions that merely ask, for
example, whether the alleged offense “occurred in a federal prison on federal land.” Id. at 361, 365. Such an instruction, as explained above, asks the wrong question.
And as explained below, it also asks the wrong decisionmaker.
B. Who decides? The defense urges the Court to
adopt an outlier position not supported by any precedent
cited in these proceedings. No judge, it would appear,
has tasked a jury with answering the question whether
a particular plot is part of federal jurisdiction based on
the legal sufficiency of state accession and federal
accepts that Kentucky ceded jurisdiction over the property before
1954. Id. at 3 n.2.
60a
acceptance under § 3112(b). Indeed, the pattern jury instructions of five circuits follow a different distinction
that resonates with common-sense notions about the
roles of judge and jury: lay jurors determine where acts
occurred as a matter of fact while the judge decides the
legal status (state or federal) of that location.4 Under the
two-prong test introduced above, the latter determination depends on the time and manner of the state’s purported relinquishment and the United States’ purported
acceptance of the land in question.
A consistent body of caselaw mirrors these instructions. Although the Sixth Circuit lacks a pattern instruction for these special-jurisdictional offenses, three
of its decisions have committed to the judge the question
whether jurisdiction has transferred from a state to the
federal government.
Most recently, in United States v. Gabrion, the court
of appeals interpreted the word “jurisdiction” in
18 U.S.C. § 7 to refer to a sovereign’s “legislative jurisdiction”—in other words, the federal government’s “authority … to make its law applicable to persons or activities” at a particular spot. 517 F.3d 839, 845 n.5 (6th Cir.
2008). The court then held that the crime occurred
within the federal government’s territorial jurisdiction
4
Seventh Cir. Crim. Pattern Jury Instructions at 598; Eighth
Cir. Crim. Pattern Jury Instructions at 351–52 (stating that “the issue of federal jurisdiction is a question of law to be determined by
the court,” but allowing that a judge may nevertheless include
a jury instruction related to this point); Ninth Cir. Crim. Pattern
Jury Instructions at 370–71 (but see United States v. Read, 918 F.3d
712, 718 (9th Cir. 2019) (describing existence of federal jurisdiction
as element of § 113(a) to be proved to the jury)); Tenth Cir. Crim.
Pattern Jury Instructions at 188–89; Eleventh Cir. Crim. Pattern
Jury Instructions § O45.2 at 2.
61a
based on the status of the national forest where the jury
found the crime occurred. Id. at 848.
In United States v. Booth, a Sixth Circuit panel described as “a legal issue, not a factual issue,” the question
“whether [the] United States Naval Air Station” where
the charged crime was committed was “within the special maritime and territorial jurisdiction of the United
States.” 936 F.2d 573, 1991 WL 119530, at *6 (6th Cir.
1991) (table). The court affirmed the district court’s direct instruction to the jury that the Naval Air Station
was within our special maritime and territorial jurisdiction. Id. at *5–6.
And in United States v. Blunt, the Sixth Circuit
stated (without much explanation) that a “district court
would have been correct in taking judicial notice under
Rule 201, Federal Rules of Evidence, of the fact that the
Federal Correctional Institution” in Lexington “was
within the territorial jurisdiction of the United States.”
558 F.2d 1245, 1247 (6th Cir. 1977). See also United
States v. Harris, 331 F.2d 600, 601 (6th Cir. 1964) (“The
District Court may take judicial notice of established geographical facts.”).
Other circuits are in accord. Judges rather than juries have determined, for example, whether Fort Leavenworth or the Blue Ridge Parkway are part of the federal maritime and territorial jurisdiction. See United
States v. Miller, 499 F.2d 736, 739 (10th Cir. 1974);
United States v. Lavender, 602 F.2d 639, 641 (4th Cir.
1979). And whether the town of Cherokee, North Carolina, is found within the Cherokee Indian Reservation.
See United States v. Lossiah, 537 F.2d 1250, 1251 (4th
Cir. 1976); see also United States v. Cook, 922 F.2d 1026,
1031 (2d Cir. 1991) (cataloguing holdings that the question whether a crime occurred in Indian country is a
62a
matter of law for the court). And whether the federal
prisons in Brooklyn and Raybrook, New York are part
of the special maritime and territorial jurisdiction. Davis, 726 F.3d at 366; United States v. Hernandez-Fundora, 58 F.3d 802, 812 (2d Cir. 1995). And whether the
U.S. Medical Center for Federal Prisoners is within the
special federal jurisdiction. United States v. Love, 20
F.4th 407, 412 (8th Cir. 2021).
It’s easy enough to imagine a different rule, in which
prosecutors and defense lawyers put on evidence of legal
ownership and control for lay jurors to weigh. But the
complexity and unfamiliarity of the “proof” offered during the pretrial hearing in this case illustrates the daunting task that would await jurors in the alternative universe proposed by the defense. Do aging legal documents—such as land titles and agency filings—establish
whether a particular letter or deed or order (or combination thereof) was legally effective in transferring state
jurisdiction to the federal government at a particular
plot of land? As discussed below, that determination
turns on repeated correspondence between the Secretary of War and Governor of Kentucky, circa 1942. For
better or worse, precedent has consistently decided
against tasking lay jurors with this fundamentally legal
assignment. See Getty Petroleum Marketing v. Capital
Terminal Co., 391 F.3d 312, 331–32 (1st Cir. 2004) (Lipez, J., concurring) (discussing the impracticality of jury
deliberations over legal questions otherwise subject to
judicial notice); cf. United States v. Durham, No. 3:21-cr12, 2023 WL 1926893, at *11–12 (W.D. Ky. Feb. 11, 2023)
(discussing similar challenges in the Armed Career
Criminal context). And these administrability concerns
are compounded by the interest in consistent rulings on
the jurisdictional status of federal property—a determination that should be uniform rather than case-specific
63a
in order to avoid uncertainty and inconsistency regarding law-enforcement and prosecutorial actions. See
Love, 20 F.4th at 412.
Rather than citing any specific judicial authority to
the contrary, Silvers appeals generally to the Apprendi
and Gaudin decisions assigning fact-finding duties to juries under the Sixth Amendment. Hearing Tr. 47:20–24;
Opposition (DN 209) at 10. But Apprendi dealt with factual determinations about elements of criminal offenses,
not legal questions about federal jurisdiction. 530 U.S.
466, 469 (2000). And Gaudin held only that in false-statement prosecutions the element of “materiality” is
a mixed question of law and historical fact for the jury.
515 U.S. 506, 518–19 (1995). These decisions did not address judicial notice of “legislative facts,” such as those
relating to “geography and jurisdiction.” Davis, 726
F.3d at 367 (quoting Landell v. Sorrell, 382 F.3d 91, 135
n.24 (2d Cir. 2002)); see also United States v. Styles, 75
F. App’x 934, 935 (5th Cir. 2003) (Apprendi “had no effect on whether the district court could take judicial notice” of the jurisdictional status of a federal hospital).
Silvers asks the Court to treat these opinions, which address related but distinct questions, as tacitly overruling
longstanding authority rejecting judicial notice of legislative facts.
C. Judicial Notice of Legislative Facts. The jurisdictional status of a particular location on federal
property is just such a legislative fact: an “established
truth, fact, or pronouncement that does not change from
case to case but applies universally,” rather than a fact
“developed in a particular case.” Davis, 726 F.3d at 366
(cleaned up). Legislative facts are ones of which a judge
may take notice independent of a jury. Here, the Government asked the Court to take notice of the jurisdictional status of Fort Campbell and instruct the jury that
64a
“the alleged crimes took place within the Special Maritime and Territorial Jurisdiction of the United States” if
the jury found that the charged conduct took place at
4217 Contreras Court. Motion at 9. This is consistent
with the Sixth Circuit’s approval of judicial notice, since
Apprendi, to establish that a crime occurred within the
special maritime and territorial jurisdiction of the
United States. See Gabrion, 517 F.3d at 848.
The best reading of the governing caselaw is that judicial notice of jurisdictional status is a question of legislative fact, not a so-called “adjudicative fact” that judges
may notice, if at all, under Federal Rule of Evidence 201.
See Marshall v. Bramer, 828 F.2d 355, 357 (6th Cir. 1987)
(“Federal Rule of Evidence 201, which treats judicial notice, ‘governs only judicial notice of adjudicative facts.’”)
(quoting FED. R. EVID. 201(a)). An adjudicative fact is
one that addresses “the particular event which gave rise
to the lawsuit and … help[s] explain who did what, when,
where, how, and with what motive and intent.”
2 MCCORMICK ON EVIDENCE § 328 (8th ed.). Because notice of adjudicative facts follows Rule 201, and notice of
legislative facts does not, the procedures to take notice
differ. See, e.g., Davis, 726 F.3d at 367 (“[A] ‘legislative
fact’ … may be judicially noticed without being subject
to the strictures of Rule 201.”). The most salient difference, at least for present purposes, is that in a federal
criminal case the judge advises the jury that it may find
an adjudicative fact established: “In a criminal case, the
court must instruct the jury that it may or may not accept the noticed fact as conclusive.” FED. R. EVID.
201(f).
“[W]hether a location falls within the ‘special maritime and territorial jurisdiction of the United States’ is
a ‘legislative fact’ not controlled by Rule 201.” WRIGHT
& MILLER, 21B Fed. Prac. & Proc. Evid. § 5103 (2d ed.).
65a
The circuits that have considered this issue have largely
allowed judicial notice of jurisdictional status outside of
Rule 201. See, e.g., Love, 20 F.4th at 411–12 (jurisdictional status is a legislative fact not subject to Rule 201
requirements); Davis, 726 F.3d at 367–68 (same). Indeed, five circuits’ pattern jury instructions allow for judicial determination of jurisdictional status. Seventh
Cir. Crim. Pattern Jury Instructions at 598 (18 U.S.C.
§§ 1111–12) (jurisdictional status determined by judicial
notice); Eighth Cir. Crim. Pattern Jury Instructions,
Committee Commentary, at 348, 352 (§ 7) (jurisdictional
status is a matter of law determined by the court); Ninth
Cir. Crim. Pattern Jury Instructions, Committee Commentary, at 370–71 (§ 1111) (same); Tenth Cir. Crim.
Pattern Jury Instructions at 189 (§ 1111) (instructing
that charged location is within jurisdiction); Eleventh
Cir. Crim. Pattern Jury Instructions § O45.2 at
2 (same).5
Consistent with this treatment, courts have addressed unproven, or even unraised, legislative facts on
appeal by judicial notice outside the bounds of Rule 201.
5
To be sure, some decisions go the other way, describing jurisdictional determination as one of “adjudicative fact” under Rule 201.
See, e.g., United States v. Anderson, 528 F.2d 590, 591–92 (5th Cir.
1976) (court could take judicial notice under Rule 201 that FCI-Tallahassee is within the special territorial jurisdiction of the United
States). But these opinions tend not to confront the adjudicative/legislative distinction, perhaps grabbing Rule 201 off the rack
as the only codified variety of judicial notice on offer. And other
courts have called into question whether the jurisdictional status of
rather more obscure locations is appropriate for judicial notice at
all. See United States v. Bello, 194 F.3d 18, 22–23 (1st Cir. 1999)
(expressing doubt that any “reasonable person” has ever heard of
MDC-Guaynabo, let alone knows its jurisdictional status as within
the special maritime and territorial jurisdiction of the United
States).
66a
See, e.g., Davis, 726 F.3d at 367–68; WRIGHT & MILLER
§ 5110.1.6 Such questions often concern “non-evidence
facts,” such as those implicating venue, to which Rule
201 doesn’t apply. WRIGHT & MILLER § 5103; United
States v. Robinson, 858 Fed. App’x 627 (4th Cir. 2021)
(no obligation under FED. R. EVID. 201(f) to charge jury
with deciding whether to accept judicially noticed fact
regarding venue). And whatever weight one gives to
the Rule 201’s advisory note, which in places reads more
like a blurb for Professor Davis’s law-review articles
than a normal advisory comment, it also supports this
approach: “Adjudicative facts are simply the facts of the
particular case. Legislative facts, on the other hand, are
those which have relevance to legal reasoning and the
lawmaking process….” FED. R. EVID. 201 advisory committee’s note (1972). If nothing else, this discussion underscores the distinction between legislative and adjudicative facts—only the latter of which is governed by
Rule 201.
While the Sixth Circuit precedent is less than crystal clear, it supports taking notice of jurisdictional status
without a submission to the jury. Two of the decisions
cited above, Gabrion and Booth, reflected judicial notice
of a location’s jurisdictional status without submission to
the jury—that is, as a matter of legislative rather than
adjudicative fact. And the circuit has elsewhere noted
that Rule 201 applies to adjudicative facts only, and has
cautioned that judicial notice should generally not be
used to establish the governing law in a case. See Toth
6
See, e.g., United States v. Johnson, 738 Fed. App’x 798, 799
(4th Cir. 2018); United States v. Tisdale, 7 F.3d 228 (4th Cir. 1993)
(table); United States v. Gaither, 83 F.3d 416 (4th Cir. 1993) (table);
United States v. Bowers, 660 F.2d 527, 530–31 (5th Cir. 1981); United
States v. Styles, 75 Fed. App’x 934, 935 (5th Cir. 2003).
67a
v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002).
Blunt, described above, did invoke Rule 201—but
merely held that the trial judge wouldn’t have erred in
taking judicial notice under that provision. 558 F.2d at
1247. This earlier opinion didn’t address, much less reject, the longstanding custom of taking judicial notice of
legislative facts such as these. This governing caselaw
is therefore consistent with the out-of-circuit precedent
noticing jurisdictional status as a matter of legislative
fact.
D. Is Fort Campbell within the United States’
Special Maritime and Territorial Jurisdiction?
As noted earlier, § 3112 requires the Government to
show that the state agreed to transfer jurisdiction and
the federal government accepted that transfer. Based
on the Court’s review of the arguments, record, and testimony offered in connection with this motion and at the
pretrial hearing, the Government has satisfied § 3112’s
two prongs here. Its witness, James Phillips, explained
that 4217 Contreras Court is located on a parcel acquired
by the United States under the War Powers Condemnation Act in 1942. See Gov’t Exs. 2–5; Hearing Tr. at 9:06–
10:20. And the Government provided documentary evidence showing both state consent and federal acceptance.
The first prong is uncontested: Silvers didn’t resist
the Government’s position that Kentucky consented to
federal jurisdiction over the lands comprising the military base at Fort Campbell. Opp. at 3 n.2. And for good
reason: Kentucky’s consent is straightforward, statutory, and undisputed. K.R.S. § 3.010 states that the
“Commonwealth of Kentucky consents to the acquisition
by the United States of all lands and appurtenances in
this state, by condemnation, gift or purchase, which are
68a
needful to their constitutional purposes, but said acquisition shall not be deemed to result in a cession of jurisdiction by this Commonwealth.” Courts—including the
U.S. Supreme Court—have recognized that § 3.010 (and
its predecessor, § 2376 of Carroll’s Kentucky Statutes) is
legally effective in supplying the Commonwealth’s consent to federal jurisdiction. See Howard v. Commissions
of Sinking Fund of City of Louisville, 344 U.S. 624, 625
(1953) (addressing the jurisdictional status of a naval
ordnance plant in Louisville).
As to the second, the Government’s documents indicate that the Secretary of War repeatedly accepted federal jurisdiction over Camp Campbell and other federal
areas acquired for military purposes before April 1945.
Records show that the United States paid $26,233 to acquire approximately 325.10 acres on May 5, 1942 from
Ella S. Ledford. See Deed to Tract 4C-16 (DN 184-5);
1942 Att’y Gen. Letter to Sec. of War (DN 184-1); War
Dept. Distribution of Purchase Title Papers (DN 184-4).
These “4C-16” documents show that the United States
acquired the land at Contreras Court for military purposes.
And other documents show that the Secretary of
War accepted jurisdiction over these and all other lands
in Kentucky acquired for military purposes. Fort Campbell alone measures approximately 36,000 acres in Kentucky—in addition to considerably more in Tennessee.
See Motion for Judicial Notice (DN 184) at 3 n.3. The
Secretary of War and Governor didn’t exchange correspondence in response to each individual acquisition,
opting instead to state their positions categorically.
Then-Secretary Henry Stimson sent a letter to Kentucky Governor Simeon Willis accepting “exclusive jurisdiction over all lands acquired by [the United States]
for military purposes within the Commonwealth of
69a
Kentucky, title to which has heretofore vested in the
United States and over which exclusive jurisdiction has
not heretofore been obtained.” April 28, 1945 Stimson
Letter (DN 184-6) (judicial acceptance letter maintained
in Army Corps of Engineer files).
The Government also introduced an essentially identical letter, from August 3, 1945, communicating the
same acceptance of exclusive jurisdiction over all federally acquired lands where jurisdiction hadn’t already
been specifically accepted. August 3, 1945 Stimson Letter (DN 184-7) (letter from Secretary of War Stimson to
Governor Willis). Why two similar letters mere months
apart? The records and testimony indicate this was a
belt-and-suspenders approach by the War Department:
similar letters accepting exclusive jurisdiction were sent
by Stimson to Willis and his predecessor in March 1943,
January 1944, and May 1944.7 Contrary to Silvers’s suggestion, these cumulative and consistent documents
evincing broad acceptance of jurisdiction—extending
from the 1940s to the 80s—support rather than undermine the Government’s showing.
7
See Gov’t Ex. 8 (Revised Jurisdiction Summary for Fort
Campbell, Kentucky and Tennessee) (January 17, 1985), Ex. 9 (Revised Jurisdiction Summary, Fort Campbell, Kentucky and Tennessee) (December 5, 1975); Ex. 11 (Letters from Stimson to Willis
dated April 28, 1945, August 3, 1945, and January 3, 1944 and to
Governor Keen Johnson dated March 19, 1943); see also Exs. 13–14
(similar records maintained at Blue Grass Army Depot, rather than
Fort Campbell, evincing federal intent in 1943 to accept federal jurisdiction over Kentucky lands acquired for military purposes).
These letters formed the basis of a judicial finding in the Eastern
District of Kentucky that the Blue Grass Army Depot was a federal
enclave for purposes of federal question jurisdiction. See Watkins
v. Safety-Kleen Systems, Inc., No. 5:08-cv-224, 2008 WL 4073554, at
*4–5 (E.D. Ky. 2008).
70a
The only necessary logical step is a short one indeed.
True, no letter states explicitly that the federal government accepts jurisdiction specifically over Plot 4C-16 in
Christian County. Unsurprisingly, the United States instead speaks in the aggregate: accepting jurisdiction
over all lands acquired for military purposes. And the
other documents listed above show that the United
States did in fact acquire Plot 4C-16 for military purposes. No argument or document presented to the Court
suggests that shouldn’t suffice under 40 U.S.C. § 3112.
In response, the defense argues that these documents showing transfer and acceptance are inadmissible
because they are unauthenticated, inadmissible hearsay,
and violate the best evidence rule. Opp. 5–7.8 These evidentiary principles are likely inapplicable in this context
because the ordinary rules of evidence do not apply to
determinations of law or judicial notice of legislative
facts. According to the Advisory Committee, “the judge
is unrestricted in his investigation and conclusion” related to “judicial access to legislative facts …. render[ing] inappropriate any limitation in the form of indisputability … and any requirement of formal finding….” FED. R. EVID. 201 advisory committee (1972)
(quotations omitted); see also 1 MUELLER & KIRKPATRICK, Fed. Evid. § 2:12 (4th ed.) (‘[T]he Rules do not regulate … any aspect of noticing legislative facts”); cf. FED.
R. EVID. 1101(d) (evidence rules “do not apply to
… court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility … and
miscellaneous proceedings….”).
8
The defense also indicated that it would raise a Confrontation
Clause challenge, but did not set out any such argument in the response brief. See Opp. at 2. So this argument is abandoned.
See United States v. Watson, 716 F. App’x 499, 502 (6th Cir. 2017).
71a
In any case, Silvers’s evidentiary objections fail on
their merits.
As to hearsay, the Government’s custodial witness—Charlie Effinger—demonstrated that the Army
Corps of Engineers maintained these titles and letters
as part of standard military recordkeeping practice.
Hearing Tr. at 22:25–26:12, 28:21–23. And the various
governmental entities created these documents at the
time of the transfer as part of their regular course of record-keeping. Based on the documents and testimony
considered at the jurisdictional hearing, these are commonplace files kept for decades in the ordinary course by
the U.S. Army Corps. So these documents are excluded
from the rule against hearsay under FED. R. EVID.
803(6). See, e.g., United States v. Pacheco, 466 F. App’x
517, 523–24 (6th Cir. 2012) (admitting regularly-kept
FDIC record under 803(6)).
As to the best-evidence rule, the only basis for such
a challenge is that the original letters must be provided.
FED. R. EVID. 1002; Opp. at 4–8. But the Government
has presented photocopies of the original Stimson letters
and sale documents. And “duplicate[s]” are “admissible
to the same extent as the original unless a genuine question is raised about the original’s authenticity.” FED. R.
EVID. 1003. Based on the Court’s review of the testimony and objections, the defense has raised no serious
doubts about the authenticity of these documents, which
appear regular, official, and mutually reinforcing. The
Court harbors no real doubts (and cannot imagine any
explanation) that the documents are not what they purport to be.
As to authenticity, the Government has presented
testimony from a custodian that these records come
from a public office where official papers are kept.
72a
Hearing Tr. at 22:25–26:12, 28:21–23 (testimony of Effinger); Reply at 2–3 (discussing source of records). So
the records are presumed authentic. FED. R. EVID.
901(7) (evidence that public record is regularly kept supports authenticity); MCCORMICK ON EVID. § 226; see also
United States v. Lopez, 762 F.3d 852, 862 (9th Cir. 2014)
(testimony of custodial officer sufficient to certify authenticity of public record). The defense offers no compelling evidence to the contrary. Counsel pointed to differences between these letters (DNs 6 & 7) and others
sent by Henry Stimson. See Hearing Tr. 42:07–18, 51:05–
11 (parsing letterhead and signatures used in Stimson
correspondence). But none show differences between
these and other acceptance letters sent by Stimson as
the Secretary of War. That these letters bear different
letterhead than a small selection of other letters, or contain typed or traced rather than handwritten signatures,
does not create any serious concern that they are forgeries or inauthentic in some other way. Opp. at 7–8 (comparing Defense Ex. 3). Some of these differences are
slight or imperceptible, and arguably support rather
than undermine the letters’ authenticity. See GE Franchise Commercial LLC v. Wormsby, 2016 WL 4181192,
at *4 (D. Ariz Aug. 8, 2016).9
9
At argument defense counsel cited neighboring Kentucky
statutes, K.R.S. §§ 3.090 and 3.100, which purportedly cast doubt on
the reliability of the Commonwealth’s relinquishment and the
United States’ acceptance of jurisdiction. Hearing Tr. at 51:05–24.
These statutes, nowhere mentioned in Silvers’s papers, do not appear to have been passed until 1954—after state relinquishment and
federal assumption of jurisdiction. See K.R.S. § 3.090 (“effective
June 17, 1954”). Counsel nevertheless implied that the Governor
may not have properly transmitted the United States’ request to
the next session of the General Assembly or published the Commonwealth’s acceptance. This suspicion apparently rests on the absence
of a section of the Kentucky Revised Statutes (3.010-.110) specifying
73a
Other differences between various documents are
similarly insignificant. Two exhibits—6 and 7—were
substantively identical letters from Stimson to Willis,
though they contained different dates and different
modes of state acknowledgement. Silvers identifies
nothing of import to be drawn from the difference between acceptance by seal versus signature. The upshot
of each is identical: the Secretary of War accepted jurisdiction over all lands in Kentucky acquired for military
purposes.10
that Kentucky ceded jurisdiction over Fort Campbell. No material
in the record, however, indicates that the Governor violated or thenexisting state law created any such procedural requirement. Nor
do these statutory citations, without more, call into question the accuracy or effectiveness of the 1940s records the Government relies
on.
10
Alternatively, Silvers argued that even if the jurisdictional
element were susceptible to judicial notice, the Court should’ve declined because the Government has failed to show that the jurisdictional status of Fort Campbell “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Opp. at 1–2 (citing FED. R. EVID. 201(b)(2)). In response,
the Court held a thorough pretrial hearing to allow the defense to
air all its potential objections. As discussed below, however, Silvers
didn’t identify any countervailing evidence or flaws in the Government’s submissions sufficient to call into question the accuracy and
ascertainability of Fort Campbell’s jurisdictional basis.
74a
CONCLUSION
For these reasons and those discussed during the
pretrial hearing, the Court granted the Government’s
motion that the Court take judicial notice that 4127 Contreras Court at Fort Campbell, Kentucky, is within the
special maritime and territorial jurisdiction of the
United States.
[Signature]
_____
Benjamin Beaton, District Judge
United States District Court
March 30, 2023
75a
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
Case Number: 5:18-CR-50-1-BJB
US Marshal No: 19518-033
UNITED STATES OF AMERICA,
v.
VICTOR EVERETTE SILVERS
Filed May 4, 2023
Counsel for Defendant: Angela M. Rea
Counsel for the United States:
Seth A. Hancock (USA)
Court Reporter: Dena Legg
(For offenses committed on or
after November 1, 1987)
JUDGMENT IN A CRIMINAL CASE
THE DEFENDANT:
Pursuant to plea agreement
Pleaded guilty to count(s)
Pleaded nolo contendere to count(s) which was accepted by the court.
Was found guilty by a jury on December 7, 2022
on Counts 1-7 of the Second Superseding Indictment after a plea of not guilty.
76a
ACCORDINGLY, the Court has adjudicated that the defendant is guilty of the following offense(s):
Title / Section
and Nature of
Offense
Date Offense
Concluded
Count
FOR CONVICTION OFFENSE(S) DETAIL—SEE
COUNTS OF CONVICTION ON PAGE 2
The defendant is sentenced as provided in pages 2
through 8 of this Judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
The defendant has been found not guilty on count(s)
Count(s)
(Is) (are) dismissed on the motion of the
United States.
IT IS ORDERED that the defendant shall notify the
United States Attorney for this district within 30 days
of any change of name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid. If ordered to pay
restitution, the defendant shall notify the Court and the
United States Attorney of any material change in the defendant’s economic circumstances.
3/30/2023
Dates of Imposition
of Judgement
[Signature]
Benjamin Beaton,
District Judge
United States District Court
77a
COUNTS OF CONVICTION
Title / Section
and Nature
of Offense
Date Offense
Concluded
Count
18:1111(a) and (b) FIRST DEGREE MURDER (PREMEDITATED)
10/14/2018
1ss
18:1113 ATTEMPTED MURDER
10/14/2018
2ss
18:2261(a)(1) and (b)(1) DOMESTIC
VIOLENCE
10/14/2018
3ss
18:2262(a)(1) and (b)(1) VIOLATION OF PROTECTION ORDER
10/14/2018
4ss
18:922(g)(8) and 924(a)(2) POSSESSION OF A FIREARM BY A
PROHIBITED PERSON
10/14/2018
5ss
18:924(c)(1)(A)(iii) and 924(j)(1)
USE/CARRY/DISCHARGE
FIREARM DURING AND IN
RELATION TO A CRIME OF VIOLENCE—RESULTING IN
DEATH
10/14/2018
6ss
18:924(c)(1)(A)(iii)
USE/CARRY/DISCHARGE
FIREARM DURING AND IN
RELATION TO A CRIME OF VIOLENCE
10/14/2018
7ss
78a
IMPRISONMENT
The defendant is hereby committed to the custody
of the Federal Bureau of Prisons to be imprisoned for a
total term of Life imprisonment on Counts 1, 3, 4,
and 6 to run concurrently, 20 years on Count 2 to
run concurrently, 10 years on Count 5 to run concurrently, and 10 years on Count 7 to run consecutively.
The Court makes the following recommendations to the Bureau of Prisons: The Court recommends the Defendant is housed at a facility with educational programming. The Court also recommends the Defendant is housed in a facility as close
as possible to Jacksonville, Florida.
The defendant is remanded to the custody of
the United States Marshal.
The defendant shall surrender to the United States
Marshal for this district:
at A.M. / P.M. on
as notified by the United States Marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
Before 2:00 p.m. on
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services
Office.
The defendant shall continue under the terms
and conditions of his/her present bond pending surrender to the institution.
79a
RETURN
I have executed this judgment as follows:
Defendant delivered on
To
at
, with a certified copy of this
judgment.
____________________________
UNITED STATES MARSHAL
By _________________________
Deputy U.S. Marshal
80a
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be
on supervised release for a term of: 3 years.
MANDATORY CONDITIONS
1.
You must not commit another federal, state or local
crime.
2.
You must not unlawfully possess a controlled substance.
3.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test
within 15 days of release from imprisonment and at
least two periodic drug tests thereafter, as determined by the court.
The above drug testing condition is suspended, based on the court’s determination that
you pose a low risk of future substance abuse.
4.
You must make restitution in accordance
with 18 U.S.C. §§ 3663 and 3663A or any other
statute authorizing a sentence of restitution.
(check if applicable)
5.
You must cooperate in the collection of DNA
as directed by the probation officer.
6.
You must comply with the requirements of the
Sex Offender Registration and Notification Act (34
U.S.C. § 20901, et seq.) as directed by the probation
officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside,
work, are a student, or were convicted of a qualifying offense.
81a
7.
You must participate in an approved program for domestic violence.
You must comply with the standard conditions that have
been adopted by this court as well as with any other conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply
with the following standard conditions of supervision.
These conditions are imposed because they establish the
basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and
bring about improvements in your conduct and condition.
1.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your release from imprisonment, unless the probation officer instructs you to
report to a different probation office or within a different time frame.
2.
After initially reporting to the probation office, you
will receive instructions from the court or the probation officer about how and when you must report
to the probation officer, and you must report to the
probation officer as instructed.
3.
You must not knowingly leave the federal judicial
district where you are authorized to reside without
first getting permission from the court or the probation officer.
4.
You must answer truthfully the questions asked by
your probation officer.
82a
5.
You must live at a place approved by the probation
officer. If you plan to change where you live or anything about your living arrangements (such as the
people you live with), you must notify the probation
officer at least 10 days before the change. If notifying the probation officer in advance is not possible
due to unanticipated circumstances, you must notify
the probation officer within 72 hours of becoming
aware of a change or expected change.
6.
You must allow the probation officer to visit you at
any time at your home or elsewhere, and you must
permit the probation officer to take any items prohibited by the conditions of your supervision that he
or she observes in plain view.
7.
You must work full time (at least 30 hours per week)
at a lawful type of employment, unless the probation
officer excuses you from doing so. If you do not have
full-time employment you must try to find full-time
employment, unless the probation officer excuses
you from doing so. If you plan to change where you
work or anything about your work (such as your position or your job responsibilities), you must notify
the probation officer at least 10 days before the
change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated
circumstances, you must notify the probation officer
within 72 hours of becoming aware of a change or expected change.
8.
You must not knowingly communicate or interact
with someone you know is engaged in criminal activity. If you know someone has been convicted of a
felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
83a
9.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer
within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous
weapon (i.e., anything that was designed, or was
modified for, the specific purpose of causing bodily
injury or death to another person such as nunchakus
or tasers).
11. You must not act or make any agreement with a law
enforcement agency to act as a confidential human
source or informant without first getting the permission of the court.
12. If the probation officer determines that you pose a
risk to another person (including an organization),
the probation officer may require you to notify the
person about the risk and you must comply with that
instruction. The probation officer may contact the
person and confirm that you have notified the person
about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
SPECIAL CONDITIONS OF SUPERVISION
14. The defendant shall participate in a domestic violence counseling program approved by the U.S. Probation Office and shall pay the costs of said program.
15. The defendant shall participate in a communitybased mental health treatment program approved
by the U.S. Probation Office. The defendant shall
contribute to the Probation Office’s cost of services
rendered based upon his/her ability to pay as reflected in his/her monthly cash flow as it relates to
the court-approved sliding fee scale.
84a
16. The defendant shall submit his or her person, property, house, residence, vehicle, papers, computers
[as defined in 18 U.S.C. § 1030(e)(1)], other electronic communications or data storage devices or
media, or office to a search conducted by the United
States Probation Officer. Failure to submit to a
search may be grounds for revocation of release.
The defendant shall warn any other occupants that
the premises may be subject to searches pursuant to
this condition. An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that the defendant has violated a condition of their release and that the areas to be
searched may contain evidence of this violation.
Any search must be conducted at a reasonable time
and in a reasonable manner.
17. The defendant shall have no contact with the victim,
including correspondence, telephone contact to include text messaging, or communication through
third party, except under circumstances approved in
advance and in writing by the probation officer in
consultation with the treatment provider.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a
written copy of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.
Upon a finding of a violation of probation or supervised
release, I understand that the Court may (1) revoke supervision, (2) extend the term of supervision and/or (3)
modify the conditions of supervision.
85a
These conditions have been read to me. I fully understand the conditions and have been provided a copy of
them.
Defendant
Date
U.S. Probation Officer
/Designated Witness
Date
86a
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of
payments set forth on Sheet 5, Part B.
Totals:
Assessment
$ 700.00
Fine
Restitution
The fine and the costs of investigation, prosecution, incarceration and supervision are waived
due to the defendant’s inability to pay.
The determination of restitution is deferred.
An Amended Judgment in a Criminal Case (AO
245C) will be entered after such determination.
Restitution is not an issue in this case.
The defendant shall make restitution (including
community restitution) to the following payees in
the amount listed below.
Criminal debt may be paid by check or money order
or may be paid online at www.kywd.uscourts.gov (See
Online Payments for Criminal Debt). Your mail-in or
online payment must include your case number in the exact format of DKYW518CR000050-001 to ensure proper
application to your criminal monetary penalty. If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless
specified otherwise in the priority order or percentage
payment column below. However, pursuant to 18 U.S.C.
§ 3664(I), all nonfederal victims must be paid in full prior
to the United States receiving payment.
87a
Name
of Payee
** Total
Amount
of Loss
Amount of
Restitution Ordered
Priority
Order Or
Percentage
Of Payment
If applicable, restitution amount ordered pursuant
to plea agreement……… $
The defendant shall pay interest on any fine of more
than $2,500, unless the fine is paid in full before the
fifteenth day after the date of judgment, pursuant to
18 U.S.C. 3612(f). All of the payment options on
Sheet 5, Part B may be Subject to penalties for default and delinquency pursuant to 18 U.S.C. 3612(g).
The court determined that the defendant does
not have the ability to pay interest and it is ordered that:
The interest requirement is waived for the
Fine and/or
Restitution
The
interest
Fine and/or
requirement
for
the
Restitution is modified as
follows:
* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18,
United States Code, for offenses committed on or after
September 13, 1994 but before April 23, 1996.
88a
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment
of the total criminal monetary penalties shall be due as
follows:
A
Lump sum payment of
immediately, balance due
not later than
$
700
due
, or
in accordance with E, below.
B
Payment to begin immediately (may be
combined with C, D, or E below); or
C
Payment in (E.g. equal, weekly, monthly,
quarterly) installments of $
Over a period of
(E.g. months or years)
year(s) to commence
(E.g., 30 or 60 days)
after
The date of this judgment, or
D
Payment in (E.g. equal, weekly, monthly,
quarterly) installments of $
Over a period of
(E.g. months or years)
year(s) to commence
(E.g., 30 or 60 days)
after
Release from imprisonment to a
term of supervision; or
E
Special instructions regarding the payment
of criminal monetary penalties:
Any balance of criminal monetary penalties
owed upon incarceration shall be paid in
quarterly installments of at least $25 based
on earnings from an institution job and/or
community resources (other than Federal
Prison Industries), or quarterly installments of at least $60 based on earnings from
a job in Federal Prison Industries and/or
community resources, during the period of
89a
incarceration to commence upon arrival at
the designated facility.
Upon commencement of the term of supervised release, the probation officer shall review your financial circumstances and recommend a payment schedule on any outstanding balance for approval by the court.
Within the first 60 days of release, the probation officer shall submit a recommendation to the court for a payment schedule, for
which the court shall retain final approval.
Unless the court has expressly ordered otherwise in
the special instructions above, if this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons Inmate Financial Responsibility Program, are to be made to the United States
District Court, Gene Snyder Courthouse, 601 West
Broadway, Suite 106, Louisville, KY 40202, unless
otherwise directed by the Court, the Probation Officer, or the United States Attorney.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties
imposed.
Joint and Several
Defendant and Co-Defendant Names and Case
Numbers including defendant number), Total Amount,
Joint and Several Amount, and corresponding payee, if
appropriate.
The defendant shall pay the cost of prosecution.
90a
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest in the following property to the United
States: The Court enters forfeiture against the Defendant, without objection, in accordance with the
preliminary order filed by the United States, and
will issue a final order of forfeiture in accordance
with the Government’s notice regarding forfeiture
(DN 317) and FRCrP 32.2(c).
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) community restitution, (6) fine
interest, (7) penalties, and (8) costs, including cost of
prosecution and court costs.
91a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-5427
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR EVERETTE SILVERS,
Defendant-Appellant.
Filed March 25, 2025
ORDER
BEFORE: MOORE, CLAY, and THAPAR, Circuit
Judges.
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the case. The petition then was circulated to
the full court. No judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
[Signature]
Kelly L. Stephens, Clerk
93a
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
Case No. 5:18-CR-00050-BJB
UNITED STATES OF AMERICA,
Plaintiff,
v.
VICTOR EVERETTE SILVERS,
Defendant.
November 28, 2022
TRANSCRIPT OF EVIDENTIARY HEARING
REGARDING GOVERNMENT’S MOTION FOR
JUDICIAL NOTICE
BEFORE
HONORABLE BENJAMIN BEATON
UNITED STATES DISTRICT JUDGE
***
[3] (Begin proceedings in open court at 2:45 p.m.)
THE COURT: All right. Anything we need to
talk about before you put on your witnesses?
MR. HANCOCK: Well, one little thing, Judge,
if I can approach.
THE COURT: Fine.
94a
MR. HANCOCK: Ms. Taylor with Corps of Engineers or one of their attorneys is present, and she can
explain this, if need be, but this is the Toohey letter that
limits the Corps of Engineers employees’ testimony
here. And I’m ready to proceed if the defense is.
THE COURT: All right. You may call your first
witness.
MR. HANCOCK: Thank you, Judge.
(JACKIE PRESTON, called by the Government,
sworn.)
DIRECT EXAMINATION
BY MR. HANCOCK:
Q. Ma’am, could you state your name for the record,
please.
A. Jackie Preston.
Q. Can you spell your name for us, please.
A. Jackie, J-A-C-K-I-E, Preston, P-R-E-S-T-O-N.
Q. Thank you, ma’am. How are you employed?
A. With the Army Corps of Engineers.
Q. Okay. And what do you do for the Army Corps of
Engineers?
A. I’m the chief of the Military Branch in the Real Estate [4] Division in the Louisville District.
Q. Okay. And tell us what you do in that position.
A. Well, basically, in the Military Branch, we oversee
the real estate for all the military installations in the area
of our responsibility—excuse me—and that entails disposals, acquisitions, use of the property by other entities, that type of thing.
95a
Q. And what is the—I guess the overarching Army
Corps of Engineers’ responsibilities with regard to real
estate that’s owned by the government or the United
States Army?
A. I don’t know if I understand your question.
Q. I’ll ask it a different way. Do you-all keep records?
Does the Army Corps of Engineers keep records in relation to this real property that’s owned?
A. Yes, we do.
Q. Why is that?
A. We are mandated by general orders from the Secretary of the Army to maintain—well, we have the real estate responsibility, the chief of engineers does, which is
Corps of Engineers, for among other—construction, engineering, that type thing, but also for real estate. So it’s
our responsibility to keep the real estate records for acquisitions, disposals, use of other—by other entities,
that type thing.
Q. Okay. And so is Fort Campbell, Kentucky, within
the Louisville District?
[5] A.
It is.
Q. Okay. And what is your understanding, if any, with
regards to the jurisdictional status of Fort Campbell?
MS. STEVENS: Objection. Your Honor, that’s
for the court to decide.
THE COURT: Yes. I thought your position
was it was for the jury to decide.
MS. STEVENS: Or the finder of fact, Your
Honor.
96a
THE COURT: There you go. Who owns Fort
Campbell, is that—
MR. HANCOCK: I think that’s part of it.
I think that’s part of it, Judge.
THE COURT: All right. Who has—who exercises jurisdiction over Fort Campbell? I don’t think he’s
going to the ultimate question even if maybe the question was a little imprecise perhaps.
So let’s just—I think we all will have a chance to talk
about what I decide and what the jury decides and so
forth. So go ahead, but what she answers to that question isn’t gonna resolve anything. So go ahead.
BY MR. HANCOCK:
Q. Ms. Preston, what is your understanding as to the
jurisdictional status of Fort Campbell, Kentucky?
A. We have exclusive jurisdiction.
Q. Okay. And how long have you been with the Army
Corps of [6] Engineers?
A. Next month it will be 40 years.
Q. Okay. And have you been dealing with these real
estate matters for the entirety of your career?
A. I have.
Q. Okay. I believe—
MR. HANCOCK: And, Ms. Crockett, you can
tell me what exhibit number this is—in Docket Number
223—I believe this was filed as Exhibit 1 to that. I believe this is the General Order that Ms. Preston was referring to, yeah, the General Order. It’s 223-1.
Q. Ms. Preston, I’ll give you a chance to look at that and
ask if you recognize it.
97a
A. I do.
Q. What is it?
A. It’s the General Order. I can see it.
MR. HANCOCK: All right. And, Ms. Crockett,
could you take us to page—I believe it’s 18 within the
exhibit with particular note of paragraph 36(b)(5).
Q. And, Ms. Preston, in paragraph 36(b)(5) there, does
that accurately summarize the Army Corps of Engineers’ duty?
A. Yes, it does.
Q. All right. And that says that you’re responsible for,
quote, “Acquiring, managing the title, granting the use,
and disposing of real property”?
[7] A.
Uh-huh, yes.
MR. HANCOCK: I believe that’s all the questions I have for Ms. Preston at this time.
THE COURT: Okay. Any cross?
CROSS-EXAMINATION
BY MS. STEVENS:
Q. Good afternoon, Ms. Preston.
A. Hi.
Q. So you’ve been in your position for the past 40 years;
correct?
A. I have been in the Real Estate Division for the past
40 years, not this exact position.
Q. Was the Army Corps of Engineers in charge of this
same position or a similar position back in the early
1940s?
98a
A. I don’t know.
Q. Docket Number 223, Exhibit 1, the General Order,
what’s the date on that General Order, ma’am?
A. I don’t know.
MS. STEVENS: Mr. Hancock—
MR. HANCOCK: Can you pull that up.
MS. STEVENS: It was on page 1, Ms. Crockett,
in the upper right.
A. 6 March 2020.
Q. Thank you, ma’am. Do you know whether such General Order existed back in the early 1940s?
[8]
THE COURT: I do not know.
MS. STEVENS: That’s all I have. Thank you,
Your Honor.
THE COURT: Okay.
MR. HANCOCK:
That’s all I have.
Thank you, Ms. Preston.
(JAMES CARTER PHILLIPS, called by the Government, sworn.)
DIRECT EXAMINATION
BY MR. HANCOCK:
Q. Sir, could you state your name for us.
A. My name’s James Carter Phillips.
Q. All right. And could you spell your first and last
names for the record.
A. J-A-M-E-S P-H-I-L-L-I-P-S.
Q. All right. And how are you employed, sir?
99a
A. I’m a land surveyor with the U.S. Army Corps
of Engineers.
Q. Okay. How long have you been a surveyor?
A. Been a licensed surveyor since September 2003.
Q. And how long have you worked for the Corps of Engineers?
A. Since May of 2018.
Q. What sort of professional licensures, certifications,
training do you have to have to be a land surveyor?
A. You got to pass a test that’s from the state, and in
my case, I’m licensed in Tennessee.
Q. Okay. And what are your job duties as a surveyor
for the [9] Corps of Engineers?
A. Well, mostly what I do is—we have these maps and
land records, and a lot of stuff I do is land descriptions.
But I basically help the—and support real estate and the
fact that I identify things on the maps for real estate specialists.
Q. Okay. As a part of this case, were you asked to locate a particular address at Fort Campbell, Kentucky,
on the greater sort of land acquisition maps?
A. That’s correct, yes.
Q. Okay. And the address we’re talking about here is
4217F Contreras Court, Fort Campbell, Kentucky; correct?
A. That’s correct, yes.
Q. And were you able to locate that on the land acquisition maps?
A. Yes, I was.
100a
MR. HANCOCK: Okay. And, Ms. Crockett, I’d
ask if you would pull up Government’s Exhibit 2, and I’m
gonna ask Mr. Phillips if he can identify that for us.
A. Yeah, that’s one of the land acquisition maps.
There’s, like, 20 some sheets total for Fort Campbell, but
that’s the one that I identified.
MR. HANCOCK: And if we can pull up Government’s Exhibit 3, Ms. Crockett.
Q. Can you identify that, sir?
A. Yeah, that’s the map I made to overlay the previous
exhibit [10] with some imagery so that we could see
what we was talking about.
Q. Okay. So if I’m looking at this map correctly, it appears that 4217 Contreras Court is this tract 4C-16 that’s
listed below this Ella S. Ledford.
A. That’s correct.
Q. And have you also had occasion to see the land description in the deed for this?
A. Yes.
Q. All right.
A. That’s part of the—on those maps, I think of them as
a map that keeps track of title. And if you want to get
into the details, you got to identify that tract number and
pull the deed and then look at it for the details on the
boundary.
Q. Okay. Anything about the deed description make
you think that the land acquisition map and where
you’ve located this is not accurate?
A. That is an accurate map.
101a
MR. HANCOCK: Okay. That’s all the questions I have for Mr. Phillips.
CROSS-EXAMINATION
BY MS. STEVENS:
Q. Good afternoon, Mr. Phillips.
A. Hello.
Q. Mr. Phillips, as a land surveyor licensed in Tennessee, are [11] you also, by virtue of your job with the
Corps of Engineers, licensed to perform your duties
across state lines?
A. Well, I’m in the Federal District. And as far as when
you’re a surveyor in—working for the government, you
only have to be licensed in a state or the Washington District of Columbia to have this position.
Q. I imagine, in your position as a surveyor, you look at
deeds as part of your duties.
A. That’s correct.
Q. What was the date on the deed that you examined
that was underlying Government’s Exhibit 2?
A. I’d have to see that deed to refresh my memory, but
if I remember correctly, they’re in the ’40s.
Q. The deed is in the 1940s?
A. I believe so, their acquisition deeds.
Q. Okay. And 4217 Contreras Court, the testimony you
gave today, was that located in the Government’s Exhibit 2 that you showed us in 2018?
A. If you’re asking me was that specific address shown
on that map, no. What I did was overlaid that map onto
the imagery of—whatever the current image we had.
I don’t know the date of that imagery.
102a
Q. You overlaid a map dated from when?
A. It would have been whatever imagery we had. As
far as the software, we use Art Map.
[12]
THE COURT: Can we just put it back on the
screen?
MS. STEVENS: Yes, Your Honor.
BY MS. STEVENS:
Q. Okay. When you describe overlaying a map on the
imagery, could you explain that for us?
A. I took this map you see right here, and we have software that’s called Art Map in which we can go pull the
latest imagery. Now, whatever that imagery that is—
say, roughly 2020—and I’m not sure the exact date—and
I took that map and overlaid it onto that site.
Q. And what imagery did you overlay onto the site?
Where did you get that?
A. It’s in our software.
Q. And what is the date for that imagery?
A. Approximately 2020. I don’t know the exact date.
THE COURT: What’s the date on this exhibit
we’re looking at now?
THE WITNESS: You’d have to look at it.
It would be down here in the lower right, in that area.
Maybe scroll around to our left. Actually, there’s a date.
It looks like maybe ’47, but these get—as acquisitions
get—if by chance something happens or they do get updated, that would have been the date at that time.
103a
BY MS. STEVENS:
Q. Do you know whether this deed has been updated
since that [13] time?
A. The deed’s not, but this map—like, if you want to
look over here in the lower left, there may be some other
dates, and you would have to look at this, the lower left.
Q. And then when you described earlier overlaying imagery, is that—what exhibit is that that you created?
MR. HANCOCK: That’s Exhibit 3, Cristy.
MS. STEVENS: Can you please pull up Exhibit—
THE COURT: Hold on. I have another question about this before we move on. Can you go back.
Can you tell from this exhibit which land is being acquired? Is the point of this map to show the acquisition
of land by the United States?
THE WITNESS: It’s a way we keep track of it,
yes. It’s a map—there’s more sheets, but I would know
by looking at that deed and I confirm it. By being a land
surveyor using my skills, you pull that 4C-16 and then I
pull the deed and then I read that land description to
confirm what I’m seeing.
THE COURT: All right. And you see where
that Ledford tract is shaded?
THE WITNESS: Correct.
THE COURT: What does that mean?
THE WITNESS: That shading right there—we
would look in that legend. That was transferred from
the U.S. Army’s control to the Air Force, and I believe
104a
that would be indicated [14] down in one of those symbols in the lower left.
THE COURT: And is that the acquisition that
the right-hand column is referring to?
THE WITNESS: The acquisition is the deed itself, which would be tract 4C-16.
THE COURT: So are you talking about the
whole thing or just that shaded area?
THE WITNESS: No, that whole tract, 4C-16.
That’s the deed of acquisition. The shaded area would
have been the transfer from the U.S. Army to the
U.S. Air Force.
THE COURT: So does this exhibit tell us that
in December 31st, 1947, the United States owned this
land, and it was transferred between the Army and the
Air Fo
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