United States v. Charette, 17-30059

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: TALLMAN, Circuit Judge
• Citation: 893 F.3d 1169
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian F. CHARETTE, Defendant-Appellant.
• Docket Number: No. 17-30059,17-30059
• Decision Date: 26 June 2018

893 F.3d 1169

UNITED STATES of America, Plaintiff-Appellee,
v.
Brian F. CHARETTE, Defendant-Appellant.

No. 17-30059

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 29, 2018 Univ. of Idaho Moscow
Filed June 26, 2018

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John Rhodes (argued), Assistant Federal Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Missoula, Montana; for Defendant-Appellant.

Leif M. Johnson (argued), First Assistant United States Attorney; W. Adam Duerk, Assistant United States Attorney; Kurt G. Alme, United States Attorney; United States Attorney's Office, Billings, Montana; for Plaintiff-Appellee.

Before: Richard C. Tallman, N. Randy Smith, and Morgan Christen, Circuit Judges.

TALLMAN, Circuit Judge:

We revisit the irreconcilable tension in the West between protection of threatened species and their interactions with humans and livestock. On May 11, 2014, Brian Charette killed a protected grizzly bear (Ursus arctos horribilis ) that was harassing his horses in a pasture behind his rural home near Ronan, Montana. Charette claimed that he shot and killed the bear after it chased his dogs towards where he was standing and appeared to be climbing the fence into his yard. Following a bench trial, a United States magistrate judge convicted Charette of taking the grizzly bear in violation of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1), and 50 C.F.R. § 17.40(b)(1)(i)(A). The district court subsequently affirmed that conviction. Charette contends the lower courts erred by (1) holding that there was sufficient evidence to "infer[ ] that Charette did not have a permit to shoot the grizzly bear," (2) denying Charette's request for a jury trial because his "Sixth Amendment right ... was not triggered" by the offense, and (3) incorrectly analyzing his self-defense claim under an objective standard, as opposed to the correct subjective standard. For the following reasons, we affirm in part, reverse in part, vacate Charette's conviction, and remand the case for retrial.

I

On the morning of May 11, 2014, Charette and his now ex-wife, Jessica, awoke to barking and commotion behind their home. Looking outside, they spotted an adult grizzly bear with two yearlings in a pasture beyond their fenced-in yard, approximately 30 yards from the home. Because the bears were chasing their horses, Charette went downstairs, grabbed his .270-caliber rifle, and went outside. Then, according to Jessica, Charette shot one of the bears after it stood on its hind legs near the fence. During trial, Tribal Investigator Michael McElderry testified that Charette said "he shot that bear because it was chasing [his] horses" and it "appeared to be climbing the fence." Charette's stepfather, Raymond Carl, was also present that morning, gardening on the other side of the property approximately 100 yards away. Carl testified that, after he heard

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two "warning" shots, he saw one bear chasing a dog towards the home, and then watched a final, third shot kill the bear.

After shooting the bear, Charette and a friend, Jim Inman, used a pickup truck to scare off the two other bears. Then, "[t]hey attached the [dead] bear to the pickup and drug it up to the upper field away from the property," where they buried it. At no point prior to being contacted by law enforcement did Charette report the shooting "because he did not want to go through the hassle." Later investigation could not locate the carcass.

In December 2014, after Charette and his wife divorced, her then-boyfriend contacted law enforcement to report the shooting. On December 8, Tribal Investigator McElderry, Montana Game Warden Ron Howell, and U.S. Fish and Wildlife Service ("FWS") Special Agent Brian Lakes interviewed Charette, who initially denied shooting the bear. Once Agent Lakes informed Charette of the serious nature of the ESA federal investigation, Charette admitted to shooting it. Charette never told investigators—nor did the investigators ask—whether he fired in self-defense. Following a subsequent interview, Charette submitted a signed affidavit explaining in his own words what happened. He stated that the bears were initially chasing the horses, but one of the bears began to chase his dogs back towards the house. As the dogs came into the yard, the bear followed after, and he shot the bear.

On November 2, 2015, the Government charged Charette with one count of unlawfully taking a threatened species in violation of 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1), and 50 C.F.R. § 17.40(b)(1)(i)(A). Throughout the case Charette maintained that he acted in self-defense. He did try twice to change his plea to guilty, admitting under oath that he had no permit to kill a grizzly bear. The magistrate judge, however, refused to accept his guilty plea because Charette would not admit that he "did ... not act in self-defense or in defense of others in shooting and killing that bear." During the plea colloquy, Charette stated that he "didn't shoot [the bear] because it was chasing the horses." Rather he stated, "I shot it because it was running towards me and chasing the dogs that are there to keep ... the bears out of my immediate backyard." The magistrate judge found Charette guilty on May 19, 2016, following a bench trial.

Charette filed a motion for acquittal on May 20, 2016, which the magistrate judge summarily denied. On July 29, 2016, after Charette appealed his conviction to the district court, that court affirmed the magistrate judge's ruling. Charette timely filed his notice of appeal on March 28, 2017, and we have jurisdiction under 28 U.S.C. § 1291.

II

Whether there is sufficient evidence to sustain a conviction is a question of law reviewed de novo . United States v. Clavette , 135 F.3d 1308, 1311 (9th Cir. 1998). Sufficient evidence supports a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Chung , 659 F.3d 815, 823 (9th Cir. 2011) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). If the district court's factual findings were in error, then we must determine whether the error was harmless. 28 U.S.C. § 2111. A defendant's "entitlement to a jury trial is a question of law, reviewed de novo ." Clavette , 135 F.3d at 1309.

We review whether the trial court "misstated an element of the crime" de novo . United States v. McKittrick , 142 F.3d 1170, 1176 (9th Cir. 1998). A factfinder's

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"misconception of an essential element of the crime charged" is "subject to harmless error analysis." United States v. Wallen , 874 F.3d 620, 632 (9th Cir. 2017) (citations and internal quotations omitted).

III

The ESA is designed "to provide a program for the conservation of ... endangered species and threatened species[.]" 16 U.S.C. § 1531(b). The Secretary of the Interior is tasked by Congress with promulgating and enforcing regulations to protect threatened species, 16 U.S.C. §§ 1533(d), 1540(f), and the Secretary in turn has delegated that authority to FWS, 50 C.F.R. § 402.01(b). Congress specified in 16 U.S.C. § 1538(a)(1)(G) that "it is unlawful for any person ... to ... violate any regulation pertaining ... to any threatened species of fish or wildlife[.]"¹ Under regulations authorized by the enabling act, FWS has concluded that for the protection of the species "no person shall take any grizzly bear in the 48 conterminous states of the United States" except for those takings² explicitly authorized under certain exemptions or in self-defense. See 50 C.F.R. § 17.40(b)(1)(i).

A

Charette first asserts that there was insufficient evidence to prove beyond a reasonable doubt that he did not possess a taking permit. "Under a sufficiency of the evidence inquiry, circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction, but mere suspicion or speculation cannot be the basis for...