United States v. Carey, 1:17-cr-00252-LJO

• Decision Date: 09 May 2018
• Docket Number: 1:17-cr-00252-LJO
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AUSTIN CAREY, Defendant-Appellant.
• Court: U.S. District Court — Eastern District of California

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AUSTIN CAREY, Defendant-Appellant.

1:17-cr-00252-LJO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 9, 2018

ORDER ON APPEAL OF CONVICTION BY MAGISTRATE JUDGE

(ECF Nos. 25, 26, 27)

I. INTRODUCTION

Defendant-Appellant Austin Carey ("Carey") was found guilty of violating 36 C.F.R. § 2.17(a)(3), for delivering a person by parachute or other airborne means in Yosemite National Park, and 36 C.F.R. § 2.34(a)(4), for disorderly conduct, after a bench trial before a United States Magistrate Judge on August 9, 2017. ECF No. 9. On October 20, 2017, following the bench trial, Magistrate Judge Seng sentenced Carey to unsupervised probation for 24 months, a fine of $5,000, and 300 hours of community service. ECF No. 14.¹

Carey appeals his conviction and sentence as well as the order and judgment denyingdefendant's motion for acquittal pursuant to Federal Rule of Criminal Procedure Rule 29. ECF No. 17. Carey appeals his conviction on two grounds. ECF No. 25 at 1. First, Carey argues that his constitutional right to due process was violated because the Magistrate Judge improperly shifted the burden of proof to Carey for an essential element of the offense under § 2.17(a)(3). Id. Second, Carey argues that the Magistrate Judge erred by failing to recuse himself after "improperly reading and considering particularly prejudicial and inflammatory extrajudicial news media" after the close of evidence. Id. Carey requests that the Court vacate his conviction and enter a judgment of acquittal or alternatively remand to a different Magistrate Judge for retrial. Id. Carey filed an opening brief on February 2, 2018. Id. The United States filed its opening brief on February 23, 2018. ECF No. 26. Appellant filed a reply on March 9, 2018. ECF No. 27. For the reasons that follow, the Court affirms Carey's conviction.

II. BACKGROUND

On November 20, 2016, the Yosemite Legal Office filed a two-count criminal complaint charging Carey with delivering a person or object by parachute, helicopter, or other airborne means in violation of 36 C.F.R. § 2.17(a)(3) (Count 1) and for disorderly conduct in violation of 36 C.F.R. § 2.34(a)(4) (Count 2). ECF No. 1. On December 6, 2016, Carey entered not guilty pleas on the two charges. ECF No. 4. The Magistrate Judge held a bench trial on August 9, 2017. ECF No. 20. The United States called only two witnesses: Yosemite National Park Ranger Owen Conlow who arrived at the scene to find Carey up in a tree near a parachute; and Justin Buzzard, a Park Service employee who assisted in removing Carey from the tree. Tr. at 4; 8-33; 34-43.

The following facts are garnered from the trial testimony of Ranger Conlow and Park employee Buzzard. ECF No. 20, ("Tr."). On September 6, 2016, Law Enforcement Rangers responded to reports of a person in a parachute hitting a tree in Yosemite near Housekeeping Camp. Tr. 5-6. Carey was found approximately 130-150 feet up in a tree near a parachute. The tree did not have branches on its lower 50-70 feet and was not climbable without special gear, which Carey was not found to possess. Tr. at 10; 31; 36; 40-41. Park employee Buzzard, a tree worker, was sent to rescue Carey using a special tree climbing system. Tr. 31-43. In addition, on and around Carey's person, a helmet, goggles, harnesses, a wing suit, and parachute was found,identified by Ranger Conlow as gear typically used for BASE jumping² after conducting research. Tr. 8-20. Carey, after declining medical attention, was placed under arrest after being lowered from the tree. Tr. at 18.

The United States did not offer evidence in its case in chief that defendant lacked a permit to BASE jump or faced an emergency. ECF No. 26 at 2. The Defense did not call any witnesses and moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 after the rangers testified. ECF No. 25 at 3. The Magistrate Judge took the matter under submission and issued an order on September 9, 2017 finding Carey guilty on both counts. ECF No. 9.

III. STANDARD OF REVIEW

This Court has jurisdiction over this appeal pursuant to 18 U.S.C. § 3402, which reads: "In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court in which the offense was committed." The district court's review of the Magistrate Judge's judgment is governed by the same standard as an appeal from a judgment of district court to the court of appeals. Fed. Crim. P. 58(g)(2)(D); United States v. Stanton, 501 F.3d 1093, 1099 (9th Cir. 2007). Accordingly, conclusions of law are reviewed de novo and factual findings are reviewed for clear error. See United States v. Vesikuru, 314 F.3d 1116, 1119 (9th Cir. 2002); United States v. Mancia, 720 F. Supp. 2d 1173, 1178 (E.D. Cal. 2010) ("A district court reviews a magistrate's factual findings for clear error and legal conclusions de novo...A claim of insufficient evidence is reviewed de novo").

IV. DISCUSSION

Carey raises two issues on appeal. First, Carey argues that his constitutional right to due process under the Fifth Amendment was violated when the Magistrate Judge shifted the burdenof proof to him of an essential element of the offense under 36 C.F.R. § 2.17(a)(3).³ Carey specifically argues that the government failed to introduce evidence concerning whether he had a permit and that as such the government has failed to prove an essential element of the offense under § 2.17(a)(3).⁴ It is not disputed that the United States did not offer evidence that defendant lacked a permit to BASE jump at trial, however the United States argues that the permit exception in the statute was an affirmative defense, not an element of the offense. ECF No. 26 at 4. In addition, in its closing argument, the government argued it was appropriate to take judicial notice of the fact that BASE jumping is prohibited in Yosemite as proof that no permit could issue. Tr. 58. Second, Carey argues that the Magistrate Judge erred by failing to recuse himself after "improperly reading and considering particularly prejudicial and inflammatory extrajudicial news media" after the close of evidence and before a finding of guilt. ECF No. 25 at 1. The Court addresses each ground for appeal below.

A. Burden of Proof Under 36 C.F.R. § 2.17(a)(3)

36 C.F.R. § 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) (emphasis added). This statute has been interpreted to prohibit BASE jumping. United States v. Albers, 226 F.3d 989, 994 (9th Cir. 2000) ("we conclude that BASE jumping is prohibited under § 2.17(a)(3)"). Whether the government must prove that Carey did not have apermit as an element of the offense is a question of law the Court reviews de novo. United States v. Coutchavlis, 260 F.3d 1149, 1156 (9th Cir. 2001) ("Whether the magistrate judge improperly shifted the burden of proof to the defendant is reviewed de novo"); see United States v. Freter, 31 F.3d 783, 788 (9th Cir. 1994).

"Because the legislature decides what elements constitute a crime, determining what is an element and what is not is a matter of statutory interpretation." United States v. Shafi, 252 F. Supp. 3d 787, 793 (N.D. Cal. 2017). To interpret a criminal statute, other courts have looked to three factors to help determine whether a statutorily created exception constitutes an element of an offense or an affirmative defense: "(1) the language and structure of the statute, (2) the legislative history of the provision, and (3) whether the defendant or the government 'is better situated to adduce evidence tending to prove or disprove the exception.'" Id. (quoting United States v. McArthur, 108 F.3d 1350 (11th Cir. 1997)); see also United States v. Durrani, 835 F.2d 410, 420 (2d Cir. 1987). Neither party disputes the applicability of this three factor analysis.⁵ ECF No. 25 at 8; ECF No. 26 at 4, 8. Although Carey concurrently appears to argue that this case falls squarely within the in Supreme Court's holding in United States v. Vuitch, 402 U.S. 62, 63 (1971) and that "should be the end of the analysis" such that no further factors need be considered, he discusses these other factors as well. ECF No. 27 at 7. The Court does not believe the Supreme Court's holding in Vuitch ends the inquiry and like the Magistrate believes applying this three factor analysis and related statutory interpretation guides is the appropriate approach to determine if the permit exception in § 2.17(a)(3) is an element of the offense that the government had the burden of proving.

1. Language And Structure of Statute

The parties' central disagreement concerns the first factor of this analysis and whether the statutory structure indicates that the permit exception is an element of the offense such that government carries the burden of proof. Carey relies primarily on Vuitch, 402 U.S. at 63, and United States v. Oxx, 56 F. Supp. 2d 1214, 1215 (D. Utah 1999), to argue that the Magistrate Judge erred in holding the government did not have the burden to prove Carey did not have a permit. In Vuitch, a physician was indicted for producing and attempting to produce abortions in violation of a statute that provided:

Whoever, by means of any instrument, medicine, drug or other means whatever, procures or produces, or attempts to procure or produce an abortion or miscarriage on any woman, unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years.

Vuitch, 402 U.S. at 67-68 (emphasis added). The general interpretative rule articulated in Vuitsch is that ...