USA v. Dan Wallen

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RAYMOND C. FISHER and MICHELLE T. FRIEDLAND) VACATED; REMANDED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [10630387]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 16-30033

v.

D.C. No.
9:15-cr-00011-DLC-1

DAN CALVERT WALLEN,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted March 8, 2017
Portland, Oregon
Filed October 25, 2017
Before: Diarmuid F. O’Scannlain, Raymond C. Fisher
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Fisher

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UNITED STATES V. WALLEN
SUMMARY *
Criminal Law

The panel vacated the defendant’s conviction after a
bench trial for killing three grizzly bears in violation of the
Endangered Species Act.
The panel rejected the defendant’s contention that his
offense was serious, rather than petty, entitling him to a trial
by jury.
The panel held that the magistrate judge, who served as
the trier of fact at trial, misconceived the self-defense
element of the offense. The panel held that the “good faith
belief” defense for a prosecution under 16 U.S.C. § 1540 is
governed by a subjective, rather than an objective, standard,
and is satisfied when a defendant actually, even if
unreasonably, believes his actions are necessary to protect
himself or others from perceived danger from a grizzly bear.
Because the district court applied an objective standard, and
the error was not harmless, the panel vacated the conviction
and remanded for a new trial.
The panel rejected the defendant’s contention that, even
if the Constitution does not guarantee his right to a jury trial,
he is entitled to one, because if he is again tried by a judge,
that judge would have access to the defendant’s record of
conviction, biasing the trier of fact.

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
*

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UNITED STATES V. WALLEN

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COUNSEL
John Rhodes (argued), Assistant Federal Defender; Anthony
R. Gallagher, Federal Defender; Federal Defenders of
Montana, Missoula, Montana; for Defendant-Appellant.
Megan L. Dishong (argued), Assistant United States
Attorney, United States Attorney’s Office, Missoula,
Montana, for Plaintiff-Appellee.
OPINION
FISHER, Circuit Judge:
Dan Wallen appeals his conviction after a bench trial for
killing three grizzly bears in violation of the Endangered
Species Act. Although we reject Wallen’s argument that he
was entitled to a jury trial, we hold the magistrate judge, who
served as the trier of fact at trial, misconceived the selfdefense element of the offense, and that error was not
harmless. We hold the “good faith belief” defense for a
prosecution under 16 U.S.C. § 1540 is governed by a
subjective, rather than an objective, standard, and is satisfied
when a defendant actually, even if unreasonably, believes his
actions are necessary to protect himself or others from
perceived danger from a grizzly bear. Because the district
court applied an objective standard, we vacate Wallen’s
conviction and remand for further proceedings consistent
with this opinion.
I.
Wallen lives in Ferndale, Montana, a place aptly
described as “bear country.” In the spring of 2014, local
residents reported the presence of three grizzly bear cubs to

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Tim Manley, a grizzly bear management specialist with
Montana Fish, Wildlife & Parks (FWP). These bears were
“food conditioned” and “habituated,” meaning they wanted
unnatural foods like chicken feed and were not afraid of
approaching humans to get them. Residents observed the
bears frolicking in backyards, eating grass and “just being
bears.” Others reported the bears for ransacking chicken
coops. None reported aggressive behavior toward humans.
On the morning of May 27, 2014, Wallen discovered a
number of dead chickens in his yard. The culprits had
rammed through the fence to his chicken coop and killed
two-thirds of his chickens. One perpetrator left behind a paw
print that Wallen concluded belonged to a bear.
Neither Wallen nor his wife, Alison, called Manley or
any other authority after discovering the dead chickens and
the paw print. Instead, they went to work and returned home
that afternoon.
Later that evening, Wallen and Alison watched their two
boys (ages 8 and 11), their 16-year-old daughter (A.B.) and
A.B.’s boyfriend play outside. The three bears then
returned, heading for the chicken coop. The chickens
scattered and the bears gave chase, running within 100 feet
of where Wallen’s daughter stood. A.B. screamed and ran
into the house through a glass back door as Wallen got in his
truck and chased the bears away. Meanwhile, Alison called
Manley’s cell phone and left a message telling him the
grizzlies had come for their chickens twice and that her
husband was trying to chase them away with the truck. She
asked for advice as to what she and her husband could do
about the bears.

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The bears returned for a second time 10 to 15 minutes
later. Again, the chickens ran, the bears gave chase and
Wallen frightened them away with his truck.
After Wallen chased the bears, they entered the property
of the Wallens’ neighbor, Tom Clark. Clark videotaped
them milling about and crossing a nearby highway. At no
point did the bears behave aggressively toward him. He
stopped recording at 9:14 p.m. Shortly thereafter, he heard
shots fired, followed by a roar from the direction of Wallen’s
property. As later became clear, the sounds Clark heard
were Wallen shooting and killing the three grizzlies.
Wallen has never denied shooting the three bears with an
“old, rusty .22 caliber rifle” after they returned to his
property for a third time that night. He has also never denied
causing the bears’ deaths. He has, however, offered different
accounts of the circumstances surrounding the shootings.
He gave one story on the night of the shooting, when
investigators discovered the remains of one of the bears.
When FWP investigator Charles Bartos interviewed Wallen
that evening, Wallen told Bartos he had found a single bear
eating chickens in his coop and fired two shots to frighten it
away. Wallen told Bartos the bear was walking away as he
fired. He did not mention shooting the other two bears.
Bartos later performed a necropsy on the bear and found two
bullet holes “in the left hind quarter entering towards the
stomach area,” consistent with the bear having been shot
from behind.
The next day, after remains of a second bear were
discovered, Wallen gave a different account, now admitting
he had shot at all three bears. He told Bartos he had fired at
the other bears as they passed through his property before
shooting the last bear while it ate his chickens.

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The following day, United States Fish & Wildlife
Service Agent David Lakes interviewed Wallen at his home,
and Wallen once again altered his story. He said he had been
picking up dead chickens near his truck when two bears
crossed the highway in a “mad dash” toward him, while his
family was gathered around the basketball court outside. He
said he grabbed his gun from inside the truck and fired at the
bears. He could not recall where his family went
immediately after he fired the shots. Within minutes,
however, Wallen said a third bear came onto his property
and started chasing the chickens. He told Lakes he shot at
this bear twice, while his family was outside and “right
behind [him].” Wallen also took Lakes outside and showed
him where he was when he shot the bears. Lakes paced off
the area and determined Wallen shot all three bears from a
distance of approximately 40 yards.
Remains of the third bear were discovered around a week
later.
Wallen was federally charged for killing all three bears
in violation of the Endangered Species Act and was tried by
a magistrate judge, over Wallen’s objection and request for
a jury trial.
At trial, Wallen asserted he shot the bears in self-defense,
to protect himself and his family. He said he was surrounded
by live chickens when two bears approached from a distance
of approximately 15 feet. He testified he was carrying his
gun on his person. He said he fired two shots from his
shoulder at the bears while backpedaling and remained
outside to clean up dead chickens. Wallen said he was the
only person outside when he shot the third bear. The bear
ran toward him and was a mere 28 feet away when he fired
a first shot at it. When the bear kept coming toward him, he

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fired a second time from a distance of 33 feet. He said he
was frightened.
Wallen’s daughter and wife also testified at trial. A.B.
said she ran in the house when the first two bears were
approximately 15 feet away from Wallen and did not hear a
shot until a minute later. She watched from the house as a
third bear came into the yard while her father was standing
in the driveway. She said Wallen fired a first shot at the third
bear when it was 30 to 40 feet away. The last bear “started
running around all over the place” after the first shot and
“jumped up” and ran away after the second shot. She said
everyone except Wallen was inside the home when the third
bear was shot. Alison testified she never saw the bears
charge at Wallen or the children. She and the children had
gone inside before the shooting began.
After the close of evidence, Magistrate Judge Jeremiah
Lynch, as factfinder, found the “discrepancies” in Wallen’s
testimony “compel[led]” the conclusion that Wallen’s claim
of self-defense was “simply not credible.” After concluding
the government proved Wallen’s belief that he acted in selfdefense was objectively unreasonable, the magistrate judge
found Wallen guilty.
The judge sentenced Wallen to three years’ probation,
the first 60 days of which were to be served at a pre-release
center, and ordered Wallen to pay $15,000 in restitution.
After the district court affirmed Wallen’s conviction, Wallen
appealed to this court. The magistrate judge stayed Wallen’s
sentence pending appeal.
Wallen makes three arguments on appeal: (1) he should
have been tried by a jury; (2) the magistrate judge did not
correctly identify the elements of his offense, and that error
was not harmless; and (3) the case should be remanded for a

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trial by jury in the interest of justice. We address these issues
in turn.
II.
We begin by addressing Wallen’s contention that his
offense was serious, rather than petty, entitling him to a trial
by jury.
“It is well established that the Sixth Amendment, like the
common law, reserves th[e] jury trial right for prosecutions
of serious offenses, and that ‘there is a category of petty
crimes or offenses which is not subject to the Sixth
Amendment jury trial provision.’” Lewis v. United States,
518 U.S. 322, 325 (1996) (quoting Duncan v. Louisiana,
391 U.S. 145, 159 (1968)). “[T]o determine whether an
offense is petty, we consider the maximum penalty attached
to the offense.” Id. at 326. “An offense carrying a maximum
prison term of six months or less is presumed petty, unless
the legislature has authorized additional statutory penalties
so severe as to indicate that the legislature considered the
offense serious.” Id.
Here, Wallen was convicted for “taking” three grizzly
bears in violation of 16 U.S.C. §§ 1538(a)(1)(G) and
1540(b)(1) and 50 C.F.R. § 17.40(b)(1)(i)(A). 1 This is a
presumptively petty crime because the maximum possible
length of incarceration is six months. See Lewis, 518 U.S. at
326–27; 16 U.S.C. § 1540(b)(1). This presumption can be
overcome by showing the “additional statutory penalties”
associated with taking a grizzly bear are “so severe as to
“The term ‘take’ means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such
conduct.” 16 U.S.C. § 1532(19).
1

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indicate that the legislature considered the offense serious.”
Lewis, 518 U.S. at 326. In United States v. Clavette,
135 F.3d 1308, 1310 (9th Cir. 1998), we considered the
additional statutory penalties authorized by § 1540 and
concluded they did not transform taking a grizzly bear into a
serious crime.
Wallen argues Clavette is “not dispositive” for three
reasons: (A) the five-year term of probation authorized for a
conviction under § 1540 2 is an “additional statutory
penalt[y] so severe as to indicate that the legislature
considered the offense serious”; (B) the $15,000 in
restitution he was ordered to pay likewise amounts to a
sufficiently “severe” “additional statutory penalt[y]”; and
(C) his crime is “serious” because it does not fall within the
class of “petty” offenses defined by 18 U.S.C. § 19. We
reject these arguments because they are foreclosed by
Clavette. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th
Cir. 2003) (en banc). But even if they were not foreclosed,
we would reject them as unpersuasive.
A.
First, Wallen’s argument that his exposure to a five-year
term of probation rendered his crime serious lacks merit
even if Clavette were not controlling. Exposure to lengthy
probation does not make a crime serious. Every federal
misdemeanor offense carries a maximum five-year term of
probation. See 18 U.S.C. § 3561(c)(2). If, as Wallen
contends, exposure to lengthy probation made an offense
serious, only crimes classified as infractions – which carry a
maximum imprisonment term of five days – would be petty.
See id. §§ 3559(a)(9), 3561(c)(3). Limiting “petty” offenses
2

See 18 U.S.C. § 3561(c)(2).

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to infractions is foreclosed by precedent. See, e.g., Lewis,
518 U.S. at 324, 330. Wallen’s argument therefore fails.
B.
Second, even if we were not bound by Clavette, we
would reject Wallen’s contention that the amount of
restitution he was ordered to pay – $15,000 ($5,000 for each
bear) – converts his offense into a serious one, entitling him
to a jury trial. As we explained in United States v. Ballek,
170 F.3d 871, 876 (9th Cir. 1999), “the possibility that the
district court will order restitution, in addition to a six-month
maximum sentence, does not turn an otherwise petty offense
into a serious one, no matter how large the sum involved.”
Restitution “merely reinforces [a defendant’s] existing
moral and legal duty to pay a just debt.” Id. (rejecting the
argument that an order to pay $56,916.71 in restitution made
a crime serious). Clavette held a defendant was not entitled
to a jury trial even though he was ordered to pay restitution
of $6,250 for killing a single grizzly bear, in addition to a
$2,000 fine. See Clavette, 135 F.3d at 1309–10. The same
principle applies here.
C.
Finally, Wallen’s contention that 18 U.S.C. § 19 makes
his crime serious, entitling him to a jury trial, is equally
unpersuasive. Although Wallen contends otherwise, there is
no “Section 19 test” to determine whether a defendant is
entitled to a jury trial. Section 19 says the term “petty
offense” as used in title 18 includes Class B misdemeanors
for which the maximum fine is no greater than $5,000. See
18 U.S.C. §§ 19, 3571(b)(6). Wallen’s offense is a Class B
misdemeanor, see 18 U.S.C. § 3559(a)(7), but the maximum
possible fine is $25,000, see 16 U.S.C. § 1540(b)(1).
Accordingly, Wallen’s offense is not a “petty offense” as

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defined by § 19. But this does not mean, as he contends, that
he is entitled to a jury trial.
Wallen’s reliance on § 19 is misplaced because the
federal statutory definition of “petty offense” under § 19
holds no “talismanic significance” when determining a
defendant’s right to a jury trial. Muniz v. Hoffman, 422 U.S.
454, 477 (1975) (considering an earlier version of § 19,
previously codified at 18 U.S.C. § 1, which set the maximum
fine for a “petty offense” at $500) (“It is one thing to hold
that deprivation of an individual’s liberty beyond a sixmonth term should not be imposed without the protections
of a jury trial, but it is quite another to suggest that,
regardless of the circumstances, a jury is required where any
fine greater than $500 is contemplated.”).
This conclusion is evidenced, in part, by use of the term
“petty offense,” as defined by § 19, in 18 U.S.C. § 3401,
which outlines the jurisdiction of magistrate judges over
criminal misdemeanor trials. Those charged with a
misdemeanor “other than a petty offense” may elect to be
tried before a district judge instead of a magistrate judge.
See id. § 3401(b). Significantly, the magistrate judge must
explain to a defendant charged with a non-petty
misdemeanor “that he has a right to trial, judgment, and
sentencing by a district judge and that he may have a right to
trial by jury before a district judge or magistrate judge.” Id.
(emphasis added). As evidenced by use of the word “may”
in § 3401(b), Congress considered a circumstance in which
a defendant is charged with a non-petty misdemeanor but not
entitled to a jury trial. See id.
As we concluded in Clavette, “the addition of a $25,000
fine to a prison term of not more than six months does not
reflect a clear Congressional determination that violation of
an Interior Department regulation pertaining to endangered

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or threatened species is a serious offense” notwithstanding
“the Congressional definition of ‘petty offenses.’” 135 F.3d
at 1310. Wallen was not entitled to a jury trial.
III.
A.
We next address Wallen’s argument that the district
court misconceived the self-defense element of his offense.
To convict a defendant for knowingly taking a grizzly bear,
the government must prove beyond a reasonable doubt that:
(1) the defendant knowingly killed a bear; (2) the bear was a
grizzly; (3) the defendant did not have permission to kill the
bear; and (4) the defendant did not act in self-defense or in
the defense of others. See Clavette, 135 F.3d at 1311. The
last element, which is the only element at issue here, derives
from a provision added to the Endangered Species Act in
1978. See Endangered Species Act Amendments of 1978,
Pub. L. No. 95-632, § 8, 92 Stat. 3751, 3762 (1978). This
provision states:
Notwithstanding any other provision of this
chapter, it shall be a defense to prosecution
under this subsection if the defendant
committed the offense based on a good faith
belief that he was acting to protect himself or
herself, a member of his or her family, or any
other individual, from bodily harm from any
endangered or threatened species.
16 U.S.C. § 1540(b)(3) (emphasis added); see also 16 U.S.C.
§ 1540(a)(3) (preventing the imposition of civil penalties for
the same reason); 50 C.F.R. § 17.40(b)(1)(i)(B) (“Grizzly
bears may be taken in self-defense or in defense of others
. . . .”). Here, the parties dispute whether the “good faith

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belief” standard requires an objectively reasonable belief, as
the government argues, or requires only a subjective belief
in the need to protect oneself or others, as Wallen maintains.
The magistrate judge and district court applied an objective
test. We conclude that was error.
Congress added the good faith belief defense in 1978,
after an elderly couple was prosecuted for killing a grizzly
bear that had threatened them. See 124 Cong. Rec. 21,584
(1978). But neither the statute nor the regulations say
whether the requisite “good faith belief” must be objectively
reasonable, see 16 U.S.C. § 1540(b)(3); 50 C.F.R.
§ 17.40(b)(1)(i)(B), and we are unaware of any binding case
law addressing that question. We now hold that a subjective
good faith belief suffices to establish self-defense under this
statute.
In adopting an objective reasonableness standard, the
magistrate judge relied on United States v. Keiser, 57 F.3d
847, 851–52 (9th Cir. 1995), which applied the Ninth
Circuit’s model jury instruction for self-defense to a federal
assault charge under 18 U.S.C. § 113 (1992). See United
States v. Wallen, No. 14-45, 2015 WL 1467446, at *6
(D. Mont. Mar. 30, 2015). 3 Because the self-defense
provision in § 113 used different statutory language than the

The magistrate judge, at the government’s urging, may have relied
on Clavette having cited Keiser. If so, that reliance was misplaced.
Clavette noted the burden shifts to the government to disprove selfdefense once a defendant introduces evidence supporting the defense,
citing a footnote in Keiser. See Clavette, 135 F.3d at 1311 (citing Keiser,
57 F.3d at 851 n.4). Clavette did not address the objective
reasonableness standard found in Keiser, however. See id. at 1311–12.
3

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self-defense provision at issue here, we conclude the
magistrate judge’s reliance on Keiser was misplaced.
The self-defense provision in § 113 required the
government to prove the offense was committed “without
just cause or excuse.” 18 U.S.C. § 113(c) (1992). We
upheld a jury instruction making the defense available if the
defendant “reasonably believes that [the force] is necessary”
to protect “against the immediate use of unlawful force.”
Keiser, 57 F.3d at 851 (emphasis added). 4
Were the language of the self-defense provision at issue
here similar to ordinary self-defense provisions, we would
agree with the magistrate judge that Keiser would stand as
persuasive precedent.
Keiser tracks the traditional
understanding of self-defense against aggressors. See
2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (2d
ed. Oct. 2016) [hereinafter LaFave] (“One who is not the
aggressor in an encounter is justified in using a reasonable
amount of force against his adversary when he reasonably
believes (a) that he is in immediate danger of unlawful
bodily harm from his adversary and (b) that the use of such
force is necessary to avoid this danger. It is never reasonable
to use deadly force against his nondeadly attack.” (emphasis
added)). Many modern criminal codes explicitly require a
reasonable belief that physical force against another person

The instruction also said a defendant “must use no more force than
appears reasonably necessary in the circumstances,” and it said deadly
force could not be used unless deadly force was threatened. Keiser,
57 F.3d at 851.
4

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is necessary before its use may be considered justified. See
id. 5
But 16 U.S.C. § 1540(b)(3) is not a standard self-defense
provision, and it does not use standard self-defense
language. In contrast to the former version of § 113 at issue
in Keiser, § 1540(b)(3) provides a defense to those who have
a “good faith belief” in the need to act. 16 U.S.C.
§ 1540(b)(3).
Although “good faith” requirements may be construed in
context as imposing objective standards, statutes referring to
a “good faith belief” ordinarily are construed as calling for a
subjective inquiry. Black’s Law Dictionary defines “good
faith” as a state of mind consisting in “honesty in belief or
purpose” or “absence of intent to defraud or to seek
unconscionable advantage.” Good Faith, Black’s Law
See also, e.g., Ala. Code § 13A-3-23(a) (authorizing force against
what a person “reasonably believes to be the use or imminent use of
unlawful physical force by that other person”); Ariz. Rev. Stat. § 13404(A) (same); Ark. Code Ann. § 5-2-606(a)(1) (same); Colo. Rev. Stat.
§ 18-1-704(1) (same); Conn. Gen. Stat. § 53a-19(a) (same); Fla. Stat.
§ 776.012(1) (same); Ga. Code Ann. § 16-3-21(a) (same); 720 Ill. Comp.
Stat. 5/7-1(a) (same); Ind. Code § 35-41-3-2(c) (same); Iowa Code
§ 704.1(1) (same); Kan. Stat. Ann. § 21-5222(a) (same); La. Stat. Ann.
§ 14:19(A)(1)(b)(i) (same); Me. Rev. Stat. Ann. tit. 17-A, § 108(1)
(same); Minn. Stat. § 609.06(3) (same); Mo. Ann. Stat. § 563.031(1)
(same); Mont. Code Ann. § 45-3-102 (same); N.H. Rev. Stat. Ann.
§ 627:4 (same); N.J. Stat. Ann. § 2C:3-4 (same); N.Y. Penal Law § 35.15
(1) (same); Or. Rev. Stat. § 161.209 (same); S.D. Codified Laws § 2216-35 (same); Tenn. Code Ann. § 39-11-611(b) (same); Tex. Penal Code
Ann. § 9.31(a) (same); Utah Code Ann. § 76-2-402(1) (same); Wash.
Rev. Code § 9A.16.050 (same); Wis. Stat. § 939.48 (1) (same). But see
Model Penal Code § 3.04 (providing that the use of force is justified if
the “actor believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force by such
other person on the present occasion”).
5

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Dictionary (10th ed. 2014). A good faith belief defense
therefore ordinarily depends on a defendant’s subjective
state of mind, and the defense is not automatically precluded
by evidence that the state of mind was objectively
unreasonable. See, e.g., Laffey v. Nw. Airlines, Inc.,
567 F.2d 429, 464 (D.C. Cir. 1976) (interpreting a “good
faith” defense in 29 U.S.C. § 260 as “‘an honest intention to
ascertain what the . . . Act requires and to act in accordance
with it.’ That necessitates a subjective inquiry.” (alteration
in original) (footnote omitted) (quoting Addison v. Huron
Stevedoring Corp., 204 F.2d 88, 93 (2d Cir. 1953))),
overruled on other grounds by McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 134–35 (1988); see also, e.g., Cheek v.
United States, 498 U.S. 192, 202–03 (1991) (holding a
“good-faith belief” that a defendant was not violating the tax
laws, regardless of whether the claimed belief or
misunderstanding was objectively unreasonable, prevented
conviction under a willfulness standard); Rossi v. Motion
Picture Ass’n of Am., 391 F.3d 1000, 1005 (9th Cir. 2004)
(“A copyright owner cannot be liable [under 17 U.S.C.
§ 512(c)(3)(A)(v), which enables copyright owners to act on
a ‘good faith belief,’] simply because an unknowing mistake
is made, even if the copyright owner acted unreasonably in
making the mistake.”); United States v. Powell, 955 F.2d
1206, 1212 (9th Cir. 1991) (holding district court erred by
instructing jury defendants must have held an objectively
reasonable belief to have a good faith defense to the charge
of willfully failing to file a federal tax return) (“The vice of
the jury instruction given is that it did not make clear that the
defendant must demonstrate only that a subjective good faith
belief is held and not that the belief must also be found to be
objectively reasonable.”).
“It is a well-established rule of construction that ‘where
Congress uses terms that have accumulated settled meaning

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under the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning of these terms.’” Neder v. United
States, 527 U.S. 1, 21 (1999) (alterations omitted) (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322
(1992)). As we have said, “the objective reasonableness
standard is distinct from the subjective good faith standard,”
and “Congress understands this distinction.” Rossi, 391 F.3d
at 1004 (holding that “courts interpreting . . . federal statutes
have traditionally interpreted ‘good faith’ to encompass a
subjective standard”). Holding the government to “a lesser
‘objective reasonableness’ standard would be inconsistent
with Congress’s apparent intent” to exempt from
prosecution those defendants who harbor a subjective belief
that force used against grizzly bears is necessary. See id. at
1005. Under Rossi, when Congress enacts a good faith
requirement without expressly incorporating an objective
standard of reasonableness, it “indicates an intent to adhere
to the subjective standard traditionally associated with a
good faith requirement.” Id. at 1004.
During oral argument, the government argued we should
interpret “good faith belief” under § 1540(b)(3) as having an
objective component, similar to the standards we adopted in
Sams v. Yahoo! Inc., 713 F.3d 1175, 1180–81 (9th Cir. 2013)
(applying a good faith reliance defense under the Stored
Communications Act, 18 U.S.C. § 2707(e)), and Jacobson v.
Rose, 592 F.2d 515, 523 (9th Cir. 1978) (applying a good
faith reliance defense under title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. § 2520(d),

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UNITED STATES V. WALLEN

pertaining
to
the
communications). 6

interception

of

electronic

We do not find the government’s argument persuasive.
Sams viewed the privacy protections established by the
Stored Communications Act (SCA) through the lens of the
Fourth Amendment. We noted that “[t]he SCA was enacted
because the advent of the Internet presented a host of
potential privacy breaches that the Fourth Amendment does
not address.” Sams, 713 F.3d at 1179 (quoting Quon v. Arch
Wireless Operating Co., 529 F.3d 892, 900 (9th Cir. 2008)).
We also observed that, “[t]o address these potential privacy
breaches, the SCA ‘creates a set of Fourth Amendment-like
privacy protections by statute, regulating the relationship
Section 2707(e) provides a good faith reliance defense to those
who comply with requests from law enforcement for information stored
electronically. Under § 2707(e):
6

A good faith reliance on –
(1) a court warrant or order, a grand jury subpoena, a
legislative authorization, or a statutory authorization
(including a request of a governmental entity under
section 2703(f) of this title);
(2) a request of an investigative or law enforcement
officer under section 2518(7) of this title; or
(3) a good faith determination that section 2511(3) of
this title permitted the conduct complained of;
is a complete defense to any civil or criminal action
brought under this chapter or any other law.
18 U.S.C. § 2707(e). Section 2520(d) uses similar language, and the
current language is similar to that used by the statute at the time we
decided Jacobson.

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between government investigators and service providers in
possession of users’ private information.’” Id. (quoting Orin
S. Kerr, A User’s Guide to the Stored Communications Act,
and a Legislator’s Guide to Amending It, 72 Geo. Wash. L.
Rev. 1208, 1212 (2004)). And in applying § 2707(e), we
expressly relied on Fourth Amendment case law, citing
United States v. Crews, 502 F.3d 1130, 1136–38 (9th Cir.
2007), where we applied the Fourth Amendment’s exception
to the exclusionary rule for a search conducted in good faith
reliance upon an objectively reasonable search warrant. See
id. at 1181.
Given the SCA’s relationship to the Fourth Amendment,
it is unsurprising that Sams adopted an objective standard of
good faith reliance. That standard comports with the Fourth
Amendment generally. See United States v. Leon, 468 U.S.
897, 922 (1984) (holding the exclusionary rule does not
apply to evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant); Terry v. Ohio,
392 U.S. 1, 22 (1968) (“If subjective good faith alone were
the test, the protections of the Fourth Amendment would
evaporate, and the people would be ‘secure in their persons,
houses, papers and effects,’ only in the discretion of the
police.” (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964))); see
also Riley v. California, 134 S. Ct. 2473, 2482 (2014)
(reiterating that “the ultimate touchstone of the Fourth
Amendment is ‘reasonableness’” (quoting Brigham City v.
Stuart, 547 U.S. 398, 403 (2006))). Just as Leon requires
reasonable reliance on a warrant, the SCA requires
reasonable reliance on a governmental order or request.
Similarly, Jacobson relied on 42 U.S.C. § 1983 cases
when it interpreted the good faith reliance defense under
§ 2520(d). See Jacobson, 592 F.2d at 523. In § 1983 cases,
a defendant could shield himself from liability if he “held a

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UNITED STATES V. WALLEN

subjective belief which was objectively reasonable that he
was acting legally.” Id. Jacobson analogized the good faith
defense under § 1983 to the good faith defense under § 2520,
and therefore applied the § 1983 “formula to the § 2520
context.” Id. 7
By contrast, the good faith belief defense under
§ 1540(b)(3) is not a reliance defense, and it is not related to
either the Fourth Amendment or § 1983. We therefore
construe § 1540(b)(3) in accordance with the general
principle that a good faith belief defense ordinarily depends
on a defendant’s subjective state of mind rather than the
objective reasonableness of the defendant’s belief, see Rossi,
391 F.3d at 1004, not on case law construing the SCA or title
III. For this reason, the government’s reliance on Sams and
Jacobson is unpersuasive. 8
We emphasize that, although the ultimate question is
whether a defendant held a subjective good faith belief, the
objective reasonableness (or unreasonableness) of a claimed
In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the Supreme
Court adopted a purely objective qualified immunity defense for public
officials acting in their official capacities in § 1983 actions. Today, the
good faith defense under § 1983 that we looked to in Jacobson is most
often invoked in § 1983 actions involving private defendants who cannot
avail themselves of the qualified immunity defense. See, e.g., Clement
v. City of Glendale, 518 F.3d 1090, 1096–97 (9th Cir. 2008).
7

The government also relies on Shuler v. Babbitt, 49 F. Supp. 2d
1165 (D. Mont. 1998). Interpreting § 1540(a)(3) – the civil defense for
taking a grizzly bear – Shuler concluded “a person must be in imminent
or immediate danger of bodily harm in order to avail himself of a claim
of self-defense” and cannot benefit from the defense if he or she
“provoked the conflict.” Id. at 1169. Shuler cited no authority for this
conclusion other than the decision of the “Ad Hoc Board of Appeals,
Department of the Interior” in Shuler’s case. Id. at 1168.
8

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belief bears directly on whether that belief was held in good
faith. We and the Supreme Court have already said as much.
In Cheek, 498 U.S. at 203–04, when assessing the
petitioner’s claimed belief that he was in compliance with
the tax code, the Supreme Court explained that “the more
unreasonable the asserted beliefs or misunderstandings are,
the more likely the jury will consider them to be nothing
more than simple disagreement with known legal duties
imposed by the tax laws.” Similarly, in Powell, 955 F.2d at
1212, we held the jury was “not precluded from considering
the reasonableness of the interpretation of the law in
weighing the credibility of the claim that the [defendants]
subjectively believed that the law did not require that they
file income tax returns.” We have also recognized this
principle in maritime cases that turn on “whether the
seaman[] in good faith believed himself fit for duty when he
signed aboard for duty.” Burkert v. Weyerhaeuser S.S. Co.,
350 F.2d 826, 831 (9th Cir. 1965). In Burkert, the “crucial
fact issue before the court was whether or not there existed
reasonable grounds to support [a seaman’s] belief that he
was fit for duty. The absence of such reasonable grounds
would support a finding that [he] did not believe, in good
faith, that he was fit for duty.” Id.
Under the Endangered Species Act, the reasonableness
of a belief that an endangered animal posed a threat is
likewise strong evidence of whether the defendant actually
held that belief in good faith. Consider the example of a
person who goes to the zoo, shoots all the endangered
animals and then claims he believed the animals otherwise
would have escaped and attacked him.
The
unreasonableness of the asserted belief should matter in a
subsequent prosecution under the Endangered Species Act,
as that unreasonableness casts significant doubt on the
sincerity of the claimed belief.

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In sum, we hold the “good faith belief” defense under
§ 1540(b)(3) is available to defendants who, in good faith,
subjectively believe they or others are in danger. A
factfinder “is not precluded from considering the
reasonableness” of this belief “in weighing the credibility of
the claim,” but that factfinder “may not substitute its own
determination of objective reasonableness . . . [for] what the
defendant subjectively believed.” Powell, 955 F.2d at 1212.
This means that traditional aspects of a self-defense claim –
such as the immediacy of the threat, whether the defendant
provoked the conflict or the amount of force used, see
LaFave, supra, § 10:4(b), (d), (e) – may be considered for
the purpose of determining whether a claimed belief was
held in good faith. The standard is subjective, but the
objective reasonableness of the defendant’s claimed belief is
relevant to the factfinder’s assessment of the sincerity of that
claim. Because the magistrate judge did not apply a
subjective good faith standard, he misconceived an element
of Wallen’s offense. We turn to whether that error was
harmless.
B.
The “basic misconception of an essential element of the
crime charged” generally “compels reversal of the
conviction,” whether handed down by a judge or jury.
Wilson v. United States, 250 F.2d 312, 324 (9th Cir. 1958).
Nevertheless, this constitutional error is not “structural,”
requiring automatic reversal, “but instead is subject to
harmless error analysis.” United States v. Conti, 804 F.3d
977, 980 (9th Cir. 2015); see also Neder, 527 U.S. at 15. We
will affirm a conviction when the error is harmless beyond a
reasonable doubt. See Conti, 804 F.3d at 980; see also
United States v. Argueta-Rosales, 819 F.3d 1149, 1156 (9th
Cir. 2016) (“When a district court in a bench trial has made

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a legal error regarding the elements of an offense, the error
is reviewed using the same harmless error standard that
would apply to an erroneous jury instruction.”); United
States v. Liu, 731 F.3d 982, 987, 992 (9th Cir. 2013) (“A
district court’s omission or misstatement of an element of an
offense in the jury instructions is subject to harmless error
review [and] ‘is harmless only if it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’” (quoting United States v.
Munguia, 704 F.3d 596, 603–04 (9th Cir. 2012))).
Here, the magistrate judge rejected Wallen’s claim of
self-defense based on the objective unreasonableness of
Wallen’s purported fear for himself and his family:
The Court concludes the government
satisfied this burden. As set forth above,
Wallen gave materially conflicting versions
of events and was not entirely forthcoming
when he spoke [to] Bartos on the night in
question. The Court concludes based on the
record as a whole, and the substantial
inconsistencies in Wallen’s stories and lack
of credibility, that the government met its
burden of proving beyond a reasonable doubt
that Wallen did not have an objectively
reasonable good faith belief that he was
acting to protect himself or his family from
bodily injury when he shot at the three grizzly
bears.
(Emphasis added.) The error therefore was not harmless.
In arguing otherwise, the government relies on United
States v. Doe, 136 F.3d 631, 636–37 (9th Cir. 1998), but Doe
is inapposite. There, the district court applied a higher

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standard of proof than was required. See id. Because the
correct lower standard was “encompassed within the
higher,” the error was harmless. Id. at 637. Here, by
contrast, the magistrate judge held the government to a lower
standard of proof than was required. Doe does not apply
here.
Next, relying on our sufficiency of the evidence analysis
in Clavette, the government argues the magistrate judge
would have rejected Wallen’s claim of self-defense even if
the court had applied only a subjective good faith belief test
because the court found Wallen not credible. See 135 F.3d
at 1311–12. But the sufficiency of the evidence analysis
asks whether “any reasonable person could have found each
of the essential elements of the offense charged beyond a
reasonable doubt.” Id. at 1311. Here, the question is the
opposite, i.e., whether applying the correct standard, it is
clear beyond a reasonable doubt that the factfinder would
have come to the same conclusion. See United States v.
Montoya-Gaxiola, 796 F.3d 1118, 1124–25 (9th Cir. 2015).
The government’s reliance on Clavette therefore fails as
well.
Applying the correct standard, we conclude a reasonable
factfinder could find the government failed to establish
beyond a reasonable doubt that Wallen lacked a subjective
belief he was in danger. We acknowledge the discrepancies
in the stories Wallen told in the aftermath of the killings. But
regardless of whether the bears were eating chickens;
whether they were 40 yards or just 15 feet away; whether
Wallen grabbed his gun from the pickup truck or carried it
on his person; whether his family was inside or outside;
whether Wallen was surrounded by dead, live or no chickens
at all; whether the last bear ran toward or away from him; or
whether he immediately confessed to killing three bears as

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opposed to one, a reasonable factfinder could find Wallen
acted to protect himself from what he subjectively perceived
as danger. To be sure, given Wallen’s credibility issues, a
factfinder might not believe he was actually fearful. But that
question is for the factfinder to decide. Accordingly, we
cannot say the magistrate judge’s misconception of an
element of the offense was harmless.
IV.
The final issue is whether Wallen is entitled to a jury trial
on remand. Wallen argues that, even if the Constitution does
not guarantee his right to a jury trial, he is entitled to one
because, if he is again tried by a judge, that judge would have
access to his record of conviction. He contends this
information would bias the trier of fact, denying him a fair
trial.
We disagree. An accused is not entitled to a trial by jury
merely because a judge, sitting as a trier of fact, may have
knowledge of the defendant’s record of conviction. See
Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible.”).
V.
We vacate Wallen’s conviction and sentence and remand
to the district court for further proceedings consistent with
this opinion. On remand, the magistrate judge must decide
whether Wallen held a subjective “good faith belief that he
was acting to protect himself [or] a member of his . . . family

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. . . from bodily harm” from the grizzly bears. 16 U.S.C.
§ 1540(b)(3). In assessing the credibility of Wallen’s
claimed belief that shooting the bears was necessary, the
magistrate judge may consider any evidence that it would
have been unreasonable to believe the bears posed a danger
to Wallen or his family.
VACATED AND REMANDED.