US v. Charette, No. 17-30059 (6-26-18)(Tallman w/N. Smith & Christen).

The 9th affirms in part and reverses in part a conviction and remands. This case involves the killing of a Ursus asctos horribilis (grizzly bear) for supposedly harassing a horse and then charging the defendant’s home. This is a second time for the case. The defendant was charged and convicted under 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1) and 50 CFR 17.40(b)(1)(I)(A) for unlawfully taking a threatened species. The defendant was convicted by a magistrate judge for this misdemeanor.

The defendant argued that the government must prove the defendant lacked a permit for the taking of a grizzly bear. Since the government did not, there should be an acquittal for insufficient evidence. The 9th affirms the denial of acquittal for insufficient evidence. There was not insufficient evidence because the defendant bore the burden. The 9th rules that a permit is an affirmative defense, and so the burden is not on the government.

However, the 9th finds error that the magistrate used an objective person standard for self-defense instead of a subjective standard. The statute here allows a “good faith belief” which is subjective. The error was not harmless.

The 9th also held that the penalties of the misdemeanor were not so severe as to require a jury trial.

Congrats to AFPD John Rhodes of the Federal Defenders of Montana.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/26/17-30059.pdf