and Submitted March 8, 2017 Portland, Oregon
from the United States District Court for the District of
Montana D.C. No. 9:15-cr-00011-DLC-1 Dana L. Christensen,
Chief District Judge, Presiding
Rhodes (argued), Assistant Federal Defender; Anthony R.
Gallagher, Federal Defender; Federal Defenders of Montana,
Missoula, Montana; for Defendant-Appellant.
L. Dishong (argued), Assistant United States Attorney, United
States Attorney's Office, Missoula, Montana, for
Before: Diarmuid F. O'Scannlain, Raymond C. Fisher and
Michelle T. Friedland, Circuit Judges.
panel vacated the defendant's conviction after a bench
trial for killing three grizzly bears in violation of the
Endangered Species Act.
panel rejected the defendant's contention that his
offense was serious, rather than petty, entitling him to a
trial by jury.
panel held that the magistrate judge, who served as the trier
of fact at trial, misconceived the self-defense element of
the offense. The panel held that the "good faith
belief" defense for a prosecution under 16 U.S.C. §
1540 is governed by a subjective, rather than an objective,
standard, and is satisfied when a defendant actually, even if
unreasonably, believes his actions are necessary to protect
himself or others from perceived danger from a grizzly bear.
Because the district court applied an objective standard, and
the error was not harmless, the panel vacated the conviction
and remanded for a new trial.
panel rejected the defendant's contention that, even if
the Constitution does not guarantee his right to a jury
trial, he is entitled to one, because if he is again tried by
a judge, that judge would have access to the defendant's
record of conviction, biasing the trier of fact.
FISHER, Circuit Judge
Wallen appeals his conviction after a bench trial for killing
three grizzly bears in violation of the Endangered Species
Act. Although we reject Wallen's argument that he was
entitled to a jury trial, we hold the magistrate judge, who
served as the trier of fact at trial, misconceived the
self-defense element of the offense, and that error was not
harmless. We hold the "good faith belief" defense
for a prosecution under 16 U.S.C. § 1540 is governed by
a subjective, rather than an objective, standard, and is
satisfied when a defendant actually, even if unreasonably,
believes his actions are necessary to protect himself or
others from perceived danger from a grizzly bear. Because the
district court applied an objective standard, we vacate
Wallen's conviction and remand for further proceedings
consistent with this opinion.
lives in Ferndale, Montana, a place aptly described as
"bear country." In the spring of 2014, local
residents reported the presence of three grizzly bear cubs to
Tim Manley, a grizzly bear management specialist with Montana
Fish, Wildlife & Parks (FWP). These bears were "food
conditioned" and "habituated, " meaning they
wanted unnatural foods like chicken feed and were not afraid
of approaching humans to get them. Residents observed the
bears frolicking in backyards, eating grass and "just
being bears." Others reported the bears for ransacking
chicken coops. None reported aggressive behavior toward
morning of May 27, 2014, Wallen discovered a number of dead
chickens in his yard. The culprits had rammed through the
fence to his chicken coop and killed two-thirds of his
chickens. One perpetrator left behind a paw print that Wallen
concluded belonged to a bear.
Wallen nor his wife, Alison, called Manley or any other
authority after discovering the dead chickens and the paw
print. Instead, they went to work and returned home that
that evening, Wallen and Alison watched their two boys (ages
8 and 11), their 16-year-old daughter (A.B.) and A.B.'s
boyfriend play outside. The three bears then returned,
heading for the chicken coop. The chickens scattered and the
bears gave chase, running within 100 feet of where
Wallen's daughter stood. A.B. screamed and ran into the
house through a glass back door as Wallen got in his truck
and chased the bears away. Meanwhile, Alison called
Manley's cell phone and left a message telling him the
grizzlies had come for their chickens twice and that her
husband was trying to chase them away with the truck. She
asked for advice as to what she and her husband could do
about the bears.
bears returned for a second time 10 to 15 minutes later.
Again, the chickens ran, the bears gave chase and Wallen
frightened them away with his truck.
Wallen chased the bears, they entered the property of the
Wallens' neighbor, Tom Clark. Clark videotaped them
milling about and crossing a nearby highway. At no point did
the bears behave aggressively toward him. He stopped
recording at 9:14 p.m. Shortly thereafter, he heard shots
fired, followed by a roar from the direction of Wallen's
property. As later became clear, the sounds Clark heard were
Wallen shooting and killing the three grizzlies.
has never denied shooting the three bears with an "old,
rusty .22 caliber rifle" after they returned to his
property for a third time that night. He has also never
denied causing the bears' deaths. He has, however,
offered different accounts of the circumstances surrounding
one story on the night of the shooting, when investigators
discovered the remains of one of the bears. When FWP
investigator Charles Bartos interviewed Wallen that evening,
Wallen told Bartos he had found a single bear eating chickens
in his coop and fired two shots to frighten it away. Wallen
told Bartos the bear was walking away as he fired. He did not
mention shooting the other two bears. Bartos later performed
a necropsy on the bear and found two bullet holes "in
the left hind quarter entering towards the stomach area,
" consistent with the bear having been shot from behind.
next day, after remains of a second bear were discovered,
Wallen gave a different account, now admitting he had shot at
all three bears. He told Bartos he had fired at the other
bears as they passed through his property before shooting the
last bear while it ate his chickens.
following day, United States Fish & Wildlife Service
Agent David Lakes interviewed Wallen at his home, and Wallen
once again altered his story. He said he had been picking up
dead chickens near his truck when two bears crossed the
highway in a "mad dash" toward him, while his
family was gathered around the basketball court outside. He
said he grabbed his gun from inside the truck and fired at
the bears. He could not recall where his family went
immediately after he fired the shots. Within minutes,
however, Wallen said a third bear came onto his property and
started chasing the chickens. He told Lakes he shot at this
bear twice, while his family was outside and "right
behind [him]." Wallen also took Lakes outside and showed
him where he was when he shot the bears. Lakes paced off the
area and determined Wallen shot all three bears from a
distance of approximately 40 yards.
of the third bear were discovered around a week later.
was federally charged for killing all three bears in
violation of the Endangered Species Act and was tried by a
magistrate judge, over Wallen's objection and request for
a jury trial.
trial, Wallen asserted he shot the bears in self-defense, to
protect himself and his family. He said he was surrounded by
live chickens when two bears approached from a distance of
approximately 15 feet. He testified he was carrying his gun
on his person. He said he fired two shots from his shoulder
at the bears while backpedaling and remained outside to clean
up dead chickens. Wallen said he was the only person outside
when he shot the third bear. The bear ran toward him and was
a mere 28 feet away when he fired a first shot at it. When
the bear kept coming toward him, he fired a second time from
a distance of 33 feet. He said he was frightened.
daughter and wife also testified at trial. A.B. said she ran
in the house when the first two bears were approximately 15
feet away from Wallen and did not hear a shot until a minute
later. She watched from the house as a third bear came into
the yard while her father was standing in the driveway. She
said Wallen fired a first shot at the third bear when it was
30 to 40 feet away. The last bear "started running
around all over the place" after the first shot and
"jumped up" and ran away after the second shot. She
said everyone except Wallen was inside the home when the
third bear ...