United States v. Gould

Charles Gould and Joseph Carey (defendants) were tried for conspiring to import and importing cocaine into the United States in violation of the Comprehensive Drug Abuse and Control Act of 1970 (Act). Evidence at trial showed that Gould and Carey enlisted the help of Barbara Kenworthy to smuggle approximately two pounds of cocaine in a pair of hollowed-out platform shoes, which was discovered when a customs agent at Miami airport x-rayed the shoes. Two experts offered testimony identifying the substance in the shoes. One expert testified the substance was sixty percent cocaine hydrochloride and testified the substance was fifty-three percent cocaine. The government did not offer direct evidence showing that the substance cocaine hydrochloride was a derivative of coca leaves. At the conclusion of the trial, the judge instructed the jury that if it found the substance in the shoes to be cocaine hydrochloride, then the substance is a Schedule II controlled substance under the Act. Schedule II however, listed only coca leaves and derivatives thereof, and did not specifically list cocaine hydrochloride. Gould and Carey were convicted and appealed their convictions to the United States Court of Appeals for the Eighth Circuit. Gould and Carey asserted on appeal that the court erred in judicially noticing that cocaine hydrochloride is a Schedule II controlled substance and that the government should have been required to prove this fact. Gould and Carey also asserted as error the judge’s failure to instruct the jury that it could disregard the judicially noticed fact as required by Federal Rule of Evidence (FRE) 201(g).