United States v. Carey

929 F.3d 1092

UNITED STATES of America, Plaintiff-Appellee,

v.Austin Lee CAREY, Defendant-Appellant.

No. 18-10188

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2019 San Francisco, California

Filed July 10, 2019

Reed Grantham (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Public Defender, Fresno, California; for Defendant-Appellant.

Jeffrey A. Spivak (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney’s Office, Fresno, California; for Plaintiff-Appellee.

Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF,^* District Judge.

M. SMITH, Circuit Judge:

Shortly after park rangers discovered him dangling from the branches of a tree in Yosemite National Park, Austin Carey was charged with two misdemeanor offenses stemming from an unlawful BASE jump. Following a one-day bench trial, a magistrate judge found Carey guilty on both counts.

Carey now appeals his conviction, contending that the government failed to prove each element of 36 C.F.R. § 2.17(a)(3) beyond a reasonable doubt, and that the magistrate judge was required to recuse himself after being exposed to a potentially prejudicial news article. We conclude that § 2.17(a)(3) ’s permit exception is an affirmative defense for which Carey, not the government, bore the burden of proof, and that the magistrate judge’s reference to the article, though perhaps imprudent, did not mandate recusal pursuant to 28 U.S.C. § 455(a). We therefore affirm Carey’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of September 6, 2016, law enforcement rangers in Yosemite National Park responded to a report of a person in a parachute hitting a tree. The rangers arrived on scene to discover Carey suspended in the tree’s branches an estimated 130 to 150 feet above the ground. With him, the rangers found a harness, wingsuit,¹ and parachute—equipment commonly associated with BASE jumping.² After some maneuvering and the employment of rigging ropes, professional tree-climbing loggers helped Carey descend to the ground.

Once safely returned to the earth’s surface, Carey was promptly arrested and charged with violations of 36 C.F.R. §§ 2.17(a)(3) (delivering a person or object by parachute, helicopter, or other airborne means) and 2.34(a)(4) (disorderly conduct by creating a hazardous condition).

The case proceeded to a bench trial before a magistrate judge on August 9, 2017. Although a pretrial brief filed by the government indicated that, in order to prove a violation of § 2.17(a)(3), it had to "establish[ ] beyond a reasonable doubt" that the defendant’s act was "[n]ot pursuant to the terms and conditions of a permit," the government concedes that "[a]t trial, [it] did not offer direct evidence in its case-in-chief that Carey lacked a permit to BASE jump."

Following the bench trial, Carey moved for acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that the government failed to establish all elements of § 2.17(a)(3) because it did not prove that he lacked a permit. The magistrate judge initially denied the motion, but then withdrew the denial and indicated that he would address the motion in his written decision.

The magistrate judge issued his order and judgment on September 25, 2017, finding Carey guilty on both counts. The order included a discussion of the proper burden of proof for § 2.17(a)(3) ’s permit exception, with the magistrate judge concluding, "Defendant bears the burden of proving that he was permitted to BASE jump." It also featured a reference and citation to an article from The Fresno Bee , published online the same day as the bench trial, that discussed Carey’s BASE jumping career and the case against him.

Subsequently, Carey appealed his conviction to the district court, again claiming that the government had the burden of proving that he did not have a permit, and also arguing, for the first time, that the magistrate judge should have recused himself sua sponte pursuant to 28 U.S.C. § 455(a) after being exposed to extrajudicial information—namely, the Fresno Bee article. The district court denied the appeal, agreeing with the magistrate judge that "the permit exception in § 2.17(a)(3) constitutes an affirmative defense and that the government did not have the burden of proving the nonexistence of permit," and concluding that the magistrate judge "was not required to recuse himself pursuant to § 455(a)."

This timely appeal followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo the denial of a motion for a judgment of acquittal. United States v. Wanland , 830 F.3d 947, 952 (9th Cir. 2016). "The construction or interpretation of a statute is a question of law that we review de novo." United States v. Yong Jun Li , 643 F.3d 1183, 1185 (9th Cir. 2011) (quoting United States v. Cabaccang , 332 F.3d 622, 624–25 (9th Cir. 2003) (en banc)). "Rulings on motions for recusal are reviewed under the abuse-of-discretion standard." United States v. McTiernan , 695 F.3d 882, 891 (9th Cir. 2012).

ANALYSIS

I. Section 2.17(a)(3) ’s Permit Exception

Section 2.17(a)(3) prohibits "[d]elivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit." 36 C.F.R. § 2.17(a)(3). Carey argues that, because the government did not prove beyond a reasonable doubt that he lacked a permit, it failed to satisfy its burden of proof as to each essential element of § 2.17(a)(3).

"[N]o person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia , 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, although "the Government must prove beyond a reasonable doubt ‘every fact necessary to constitute the crime with which [the defendant] is charged,’ ‘[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required.’ " Smith v. United States , 568 U.S. 106, 110, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013) (alterations in original) (citation omitted) (first quoting In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; and then quoting Patterson v. New York , 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ).

The dispute on appeal is therefore straightforward: Carey contends that § 2.17(a)(3) ’s permit exception is an element of the offense, and thus that the government had to prove the nonexistence of a permit beyond a reasonable doubt, while the government argues that it is an affirmative defense for which Carey bore the burden of proof.

At the outset, we note—as Carey understandably emphasizes—that the government itself indicated in a pretrial brief that the permit exception constituted an element of the offense. In a discussion of § 2.17(a)(3), the government listed "Not pursuant to the terms and conditions of a permit" as an element that "must be established beyond a reasonable doubt" "[i]n order to prove this crime."³ We are not obliged, however, to hold the government to this position, because "[e]ven if a concession is made by the government, we are not bound by the government’s ‘erroneous view of the law.’ " United States v. Miller , 822 F.2d 828, 832 (9th Cir. 1987) (quoting Flamingo Resort, Inc. v. United States , 664 F.2d 1387, 1391 n.5 (9th Cir. 1982) ).

Accordingly, we must ascertain in the first instance which provisions of § 2.17(a)(3) constitute elements of the offense to determine who had the burden of proving or disproving the existence of a permit. "The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." United States v. Charette , 893 F.3d 1169, 1174 (9th Cir. 2018) (quoting Liparota v. United States , 471 U.S. 419, 424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) ). "To determine the elements of a crime, ‘the focus of our inquiry is the intent of Congress.’ We ‘look to the statute’s language, structure, subject matter, context, and history—factors that typically help courts determine a statute’s objectives and thereby illuminate its text.’ " Id. (citation omitted) (first quoting United States v. Nguyen , 73 F.3d 887, 890 (9th Cir. 1995) ; and then quoting Almendarez-Torres v. United States , 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ).

In support of their respective arguments regarding the elements of § 2.17(a)(3), each party primarily relies on a single Supreme Court decision. We briefly review each case before assessing whether any conflicts exist between them, and then discuss how the decisions apply in this case.

A. McKelvey

The older of the two cases—the one to which the government cites—is McKelvey v. United States , 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922). That case concerned a statute that provided

[t]hat no person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct ... any person from peaceably entering upon ... any tract of public land ... or shall prevent or obstruct free passage or transit over or through the public lands: Provided, this section shall not be held to affect the right or title of persons, who have gone upon, improved or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.

Id. at 356, 43 S.Ct. 132. The defendants challenged the indictment against them on the ground that "the indictment contains no showing that the accused were not within the exception made in the proviso." Id. at 356–57, 43 S.Ct. 132. The Court rejected this argument, reaffirming

a

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