Sunday, July 21, 2019

Case o' The Week: Ninth Rejects Gov't Position on Elements (yet Defense Takes the Dive!) - Carey, Statutory Interpretation, and Affirmative Defenses

“[I]f Carey looks before he leaps, he might see that the two decisions are not, as he claims, irreconcilable.”
  United States v. Carey, 2019 WL 2998728 (9th Cir. July 10, 2019), decision available here.

 Players: Decision by Judge M. Smith, joined by Judge Schroeder and SD NY DJ Rakoff.
   Hard-fought appeal (with admirably sophisticated statutory challenges) by AFPD Reed Grantham, Eastern District of California Federal Public Defender.

Mr. Austin Lee Carey
Facts: Carey was found suspended, high in a Yosemite tree. Id. at *1. He had a harness, wingsuit, and parachute – gear used for “BASE” jumping. Id. 
  Carey was rescued and charged with misdemeanors, including 36 CFR § 2.17(a)(3), “delivering a person by . . . airborne means . . . except pursuant to . . . a permit.” Id. at *2.
  In its pretrial brief the government explained that the government had to prove beyond a reasonable doubt that Carey did not have a permit. Id.
  The government failed to so prove in the bench trial: Carey moved for a Rule 29 acquittal. Id. The motion was denied in a written order by the Magistrate Judge.  Id.

Issue(s): “The dispute on appeal is . . . 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.” Id. at *3.

Held:In summation, § 2.17(a)(3)’s permit exception is best understood as an affirmative defense under McKelvey . . . , not an element of the offense under Vuitch. We therefore conclude, like the magistrate judge and the district court, that Carey had—and did not meet—the burden of proof at trial.” Id. at *8.

Of Note: Don’t dismiss this parachute-permit case as a minor misdo opinion. Carey is an important decision on statutory analysis and affirmative defenses.
  On appeal Carey persuasively argued that the Supreme Court’s 1971 Vuitch decision required the permit issue to be treated as an element: after all, it was embedded in the regulation itself.
  The government (less-persuasively) turned to the 1922 McKelvey case from the Supremes, arguing that the permit was just an affirmative defense.
  In a decision of first impression, Judge M. Smith unfortunately agrees with the government, finds no conflict between these two SCOTUS decisions, and gives the nod to the old McKelvey approach as applied to this regulation.
  The Ninth assures us that this outcome is straightforward (though the Court struggles through many pages of analysis to finally get to the government’s position). 
  Carey merits a close read when affirmative defenses are in dispute – the McKelvey / Vuitch tension remains, and other regs or statutes may produce a different outcome for the element / affirmative defense debate.   

How to Use: Wait – how’d the Ninth get to this issue? Recall that the AUSA assured the Magistrate Judge that the government bore the burden of proving the lack of a permit. How does the government now win on appeal? Because government concessions are not (necessarily) waivers or forfeitures -- what would be plain error for the defense is just a misstep for the government. 
  The Ninth explains that the Court is “not obliged . . . to hold the government to this [trial] position, because even if a concession is made by the government, we are not bound by the government’s ‘erroneous view of the law.’” Id. at *3 (quotations and citations omitted).
   This is an aggravating rule, and one that will not save every mistake by an AUSA, but beware of the government’s “second bite at the appellate apple” as as you mull trial strategies.
For Further Reading: During the trial proceedings, the Magistrate Judge read an article about Mr. Carey in the Fresno Bee -- and then cited it in his written order denying the Rule 29 motion! Id. at *9. (Imagine if a jury’s guilty verdict form referenced a newpaper article not in evidence . . . .)
   The article’s hearsay recitation contained deeply prejudicial information that was not part of the bench trial. Despite this “troubling” reliance on facts not on evidence, the Ninth just “admonish[ed] [the Magistrate Judge] in the future to be more circumspect in referencing or considering facts not properly admitted into evidence.” Id. at *11.
  The Ninth then upheld the denial of Carey’s recusal motion. Id.
  The Fresno Bee article that was read and cited by the M.J. (with videos of Mr. Carey plummeting off of Yosemite peaks) is available here 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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