929 F.3d 1092
9th Cir.2019Background
- Austin Carey was arrested after rangers found him suspended ~130–150 feet in a tree in Yosemite with BASE-jumping gear; charged with violating 36 C.F.R. § 2.17(a)(3) (air delivery prohibition) and § 2.34(a)(4) (creating a hazardous condition).
- At bench trial the government did not introduce direct evidence that Carey lacked a permit; its pretrial brief had nevertheless listed “not pursuant to the terms and conditions of a permit” as an element to be proved beyond a reasonable doubt.
- Magistrate judge found Carey guilty after trial, concluding Carey bore the burden to prove the permit exception as an affirmative defense; the written opinion cited a Fresno Bee article about Carey.
- Carey appealed, arguing (1) the government had to disprove the permit beyond a reasonable doubt, and (2) the magistrate judge should have recused himself under 28 U.S.C. § 455(a) because he had read the newspaper article.
- The district court affirmed; on further appeal the Ninth Circuit reviewed de novo the allocation of proof and for abuse of discretion the recusal decision.
Issues
| Issue | Plaintiff's Argument (Carey) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Whether § 2.17(a)(3)’s permit exception is an element requiring government proof beyond a reasonable doubt | The permit exception is part of the statute’s enacting clause (Vuitch), so gov’t must prove nonexistence of a permit | The permit phrase is an exception/escape hatch (McKelvey), so it is an affirmative defense and Carey must prove it | The permit exception is an affirmative defense; Carey bore the burden to prove he had a permit |
| Whether the magistrate judge’s citation to a prejudicial news article required recusal under 28 U.S.C. § 455(a) | Judge’s exposure to article about Carey’s admissions and advocacy creates appearance of partiality, requiring recusal | The passing reference did not show influence on decision; no reasonable person would infer partiality | No recusal required; district court did not abuse discretion |
Key Cases Cited
- McKelvey v. United States, 260 U.S. 353 (rule that statutory exceptions distinct from elements are affirmative defenses)
- United States v. Vuitch, 402 U.S. 62 (exceptions incorporated into enacting clause are elements to be proved by prosecution)
- Jackson v. Virginia, 443 U.S. 307 (government must prove every element of an offense beyond a reasonable doubt)
- Smith v. United States, 568 U.S. 106 (proof of nonexistence of affirmative defenses not constitutionally required)
- Dixon v. United States, 548 U.S. 1 (discussing burden allocation for affirmative defenses and McKelvey rule)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (appearance of impropriety standard under § 455)
- Cook v. United States, 84 U.S. (17 Wall.) 168 (test whether exception is inseparable from offense ingredients)
- United States v. Charette, 893 F.3d 1169 (use of statutory text, structure, and history to define elements)