and Submitted June 13, 2019 San Francisco, California
from the United States District Court for the Eastern
District of California Lawrence J. O'Neill, Chief
District Judge, Presiding D.C. No. 1:17-cr-00252-LJO-1
Grantham (argued), Assistant Federal Defender; Heather E.
Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.
Jeffrey A. Spivak (argued), Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor W. Scott, United
States Attorney; United States Attorney's Office, Fresno,
California; for Plaintiff-Appellee.
Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit
Judges, and JED S. RAKOFF, [*] District Judge.
panel affirmed a conviction for misdemeanor offenses stemming
from an unlawful BASE jump in Yosemite National Park.
panel held that the permit exception in 36 C.F.R. §
2.17(a)(3) - which prohibits delivering or retrieving a
person or object by parachute, helicopter, or other airborne
means - is an affirmative defense for which the defendant,
not the government, bore the burden of proof.
panel held that the district court did not abuse its
discretion in deciding that the magistrate judge did not need
to recuse himself pursuant to 28 U.S.C. § 455(a) after
reading a news article about the trial.
SMITH, CIRCUIT JUDGE.
after park rangers discovered him dangling from the branches
of a tree in Yosemite National Park, Austin Carey was charged
with two misdemeanor offenses stemming from an unlawful BASE
jump. Following a one-day bench trial, a magistrate judge
found Carey guilty on both counts.
now appeals his conviction, contending that the government
failed to prove each element of 36 C.F.R. § 2.17(a)(3)
beyond a reasonable doubt, and that the magistrate judge was
required to recuse himself after being exposed to a
potentially prejudicial news article. We conclude that §
2.17(a)(3)'s permit exception is an affirmative defense
for which Carey, not the government, bore the burden of
proof, and that the magistrate judge's reference to the
article, though perhaps imprudent, did not mandate recusal
pursuant to 28 U.S.C. § 455(a). We therefore affirm
AND PROCEDURAL BACKGROUND
morning of September 6, 2016, law enforcement rangers in
Yosemite National Park responded to a report of a person in a
parachute hitting a tree. The rangers arrived on scene to
discover Carey suspended in the tree's branches an
estimated 130 to 150 feet above the ground. With him, the
rangers found a harness, wingsuit,  and parachute- equipment
commonly associated with BASE jumping.After some
maneuvering and the employment of rigging ropes, professional
tree-climbing loggers helped Carey descend to the ground.
safely returned to the earth's surface, Carey was
promptly arrested and charged with violations of 36 C.F.R.
§§ 2.17(a)(3) (delivering a person or object by
parachute, helicopter, or other airborne means) and
2.34(a)(4) (disorderly conduct by creating a hazardous
case proceeded to a bench trial before a magistrate judge on
August 9, 2017. Although a pretrial brief filed by the
government indicated that, in order to prove a violation of
§ 2.17(a)(3), it had to "establish beyond a
reasonable doubt" that the defendant's act was
"[n]ot pursuant to the terms and conditions of a
permit," the government concedes that "[a]t trial,
[it] did not offer direct evidence in its casein-chief that
Carey lacked a permit to BASE jump."
the bench trial, Carey moved for acquittal pursuant to
Federal Rule of Criminal Procedure 29, arguing that the
government failed to establish all elements of §
2.17(a)(3) because it did not prove that he lacked a permit.
The magistrate judge initially denied the motion, but then
withdrew the denial and indicated that he would address the
motion in his written decision.
magistrate judge issued his order and judgment on September
25, 2017, finding Carey guilty on both counts. The order
included a discussion of the proper burden of proof for
§ 2.17(a)(3)'s permit exception, with the magistrate
judge concluding, "Defendant bears the burden of proving
that he was permitted to BASE jump." It also featured a
reference and citation to an article from The Fresno
Bee, published online the same day as the bench trial,
that discussed Carey's BASE jumping career and the case
Carey appealed his conviction to the district court, again
claiming that the government had the burden of proving that
he did not have a permit, and also arguing, for the first
time, that the magistrate judge should have recused himself
sua sponte pursuant to 28 U.S.C. § 455(a) after being
exposed to extrajudicial information- namely, the Fresno
Bee article. The district court denied the appeal,
agreeing with the magistrate judge that "the permit
exception in § 2.17(a)(3) constitutes an affirmative
defense and that the government did not have the burden of
proving the nonexistence of permit," and concluding that
the magistrate judge "was not required to recuse himself
pursuant to § 455(a)."
timely appeal followed.
AND STANDARD OF REVIEW
jurisdiction pursuant to 28 U.S.C. § 1291.
review de novo the denial of a motion for a judgment of
acquittal. United States v. Wanland, 830 F.3d 947,
952 (9th Cir. 2016). "The construction or interpretation
of a statute is a question of law that we review de
novo." United States v. Yong Jun Li, 643 F.3d
1183, 1185 (9th Cir. 2011) (quoting United States v.
Cabaccang, 332 F.3d 622, 624-25 (9th Cir. 2003) (en
banc)). "Rulings on motions for recusal are reviewed
under the abuse-of-discretion standard." United
States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012).
Section 2.17(a)(3)'s Permit Exception
2.17(a)(3) prohibits "[d]elivering or retrieving a
person or object by parachute, helicopter, or other airborne
means, except in emergencies involving public safety or
serious property loss, or pursuant to the terms and
conditions of a permit." 36 C.F.R. § 2.17(a)(3).
Carey argues that, because the government did not prove
beyond a reasonable doubt that he lacked a permit, it failed
to satisfy its burden of proof as to each essential element
of § 2.17(a)(3).
person shall be made to suffer the onus of a criminal
conviction except upon sufficient proof-defined as evidence
necessary to convince a trier of fact beyond a reasonable
doubt of the existence of every element of the offense."
Jackson v. Virginia, 443 U.S. 307, 316 (1979).
However, although "the Government must prove beyond a
reasonable doubt 'every fact necessary to constitute the
crime with which [the defendant] is charged,'
'[p]roof of the nonexistence of all affirmative defenses
has never been constitutionally required.'"
Smith v. United States, 568 U.S. 106, 110 (2013)
(alterations in original) (citation omitted) (first quoting
In re Winship, 397 U.S. 358, 364 (1970); and then
quoting Patterson v. New York, 432 U.S. 197, 210
dispute on appeal is therefore 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.
outset, we note-as Carey understandably emphasizes-that
the government itself indicated in a pretrial brief
that the permit exception constituted an element of the
offense. In a discussion of § 2.17(a)(3), the government
listed "Not pursuant to the terms and conditions of a
permit" as an element that "must be established
beyond a reasonable doubt" "[i]n order to prove
this crime." We are not obliged, however, to hold the
government to this position, because "[e]ven if a
concession is made by the government, we are not bound by the
government's 'erroneous view of the law.'"
United States v. Miller, 822 F.2d 828, 832 (9th Cir.
1987) (quoting Flamingo Resort, Inc. v. United
States, 664 F.2d 1387, 1391 n.5 (9th Cir. 1982)).
we must ascertain in the first instance which provisions of
§ 2.17(a)(3) constitute elements of the offense to
determine who had the burden of proving or disproving the
existence of a permit. "The definition of the elements
of a criminal offense is entrusted to the legislature,
particularly in the case of federal crimes, which are solely
creatures of statute." United States v.
Charette, 893 F.3d 1169, 1174 (9th Cir. 2018) (quoting
Liparota v. United States, 471 U.S. 419, 424
(1985)). "To determine the elements of a crime, 'the
focus of our inquiry is the intent of Congress.' We
'look to the statute's language, structure, subject
matter, context, and history-factors that typically help
courts determine a statute's objectives and thereby
illuminate its ...