US v. Carey, No. 18-10188 (7-10-19)(M. Smith w/Schroeder & Rakoff). “Chute!”  The defendant lost, but not for want of trying.

The case arises in Yosemite. One wonders whether, if BASE jumper falls in a forest, and the rangers don’t hear him, is it a CFR violation? We will never know, because the rangers found him dangling from his chute in a tree. A production ensued in getting him down. Once on the ground, he was charged with misdemeanor offenses (delivery of a person by parachute and disorderly conduct). 

The defendant had a one-day magistrate bench trial. The government filed a brief stating that it had to prove beyond a reasonable doubt all elements of the offense of illegal BASE jumping. This included not having a permit.  The defendant moved for a judgment of acquittal as the government failed to prove lack of permit. Nonetheless, the court denied the motion and convicted. The court found that having a permit, the “permit exception,” was an affirmative defense, and the defendant had the burden. The district court affirmed.

On appeal, the 9th reasoned that if a statute includes an exception to criminal liability, separate from the elements of the offense, then it had an affirmative defense. As such, the defendant bears the burden. McKelvey v. US, 260 US 353 (1922). This differs from US v. Vuitch, 402 US 62 (1971), which the defendant cited, where the exception is included in the enacting clause. Exception not in the enacting clause — an affirmative defense; exception in the enacting clause — the burden on the prosecution.

The 9th concluded, in this unclear statute, that it more like McKelvey. The exception seems to be separate from the enacting clause that bans the conduct. In US v. Cook, 84 US (17 Wall) 168 (1872), the analysis is whether the offense can not be described without reference to the exception. The 9th does say that the defendant’s position makes sense from a linguistic standpoint, but that a look at “ingredients” renders the exception an affirmative defense. If a person conducts a BASE jump, there is not an assumption the jumper is jumping legally. 

Lastly, the magistrate reading an article in the Fresno Bee did not require recusal. Even though the Court referenced the article, it was just in passing. As the 9th  explained: “We cannot expect judges to live as moles, roving about the limited underground landscape of the official record but never perceiving the illuminated world at the surface.” (25). The 9th did not see any bias nor tainting. However, the 9th did admonish the magistrate court and other judges not to conduct their own investigation and to avoid out of court evidence.

Kudos to Reed Graham, AFPD of Cal E. (Fresno) for a hard fought appeal. As often is the case, it is not the jump that is the problem, but the landing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/10/18-10188.pdf