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United States v. Wallen

United States Court of Appeals, Ninth Circuit

October 25, 2017

United States of America, Plaintiff-Appellee,
v.
Dan Calvert Wallen, Defendant-Appellant.

          Argued and Submitted March 8, 2017 Portland, Oregon

         Appeal 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

          John Rhodes (argued), Assistant Federal Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Missoula, Montana; for Defendant-Appellant.

          Megan L. Dishong (argued), Assistant United States Attorney, United States Attorney's Office, Missoula, Montana, for Plaintiff-Appellee.

          Before: Diarmuid F. O'Scannlain, Raymond C. Fisher and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated the defendant's conviction after a bench trial for killing three grizzly bears in violation of the Endangered Species Act.

         The panel rejected the defendant's contention that his offense was serious, rather than petty, entitling him to a trial by jury.

         The 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.

         The 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.

          OPINION

          FISHER, Circuit Judge

         Dan 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.

         I.

         Wallen 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 humans.

         On the 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.

         Neither 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 afternoon.

         Later 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.

         The 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.

         After 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.

         Wallen 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 the shootings.

         He gave 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.

         The 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.

         The 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.

         Remains of the third bear were discovered around a week later.

         Wallen 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.

         At 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.

         Wallen's 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 ...


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