United States of America v. Dan Calvert Wallen

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

4 UNITED STATES V. WALLEN

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.

UNITED STATES V. WALLEN 5

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.

6 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 7

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

8 UNITED STATES V. WALLEN

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

1 “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).

UNITED STATES V. WALLEN 9

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 § 15402 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).

10 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 11

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

12 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 13

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

3 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.

14 UNITED STATES V. WALLEN

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

4 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.

UNITED STATES V. WALLEN 15

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

5 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. § 13-

404(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 § 22-

16-35 (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”).

16 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 17

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),

18 UNITED STATES V. WALLEN

pertaining to the interception of electronic

communications).6

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

6 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):

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.

UNITED STATES V. WALLEN 19

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

20 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

7 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).

8 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.

UNITED STATES V. WALLEN 21

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.

22 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 23

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

24 UNITED STATES V. WALLEN

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

UNITED STATES V. WALLEN 25

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

26 UNITED STATES V. WALLEN

. . . 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.