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United States v. Charette

United States District Court, D. Montana, Missoula Division

March 15, 2017

BRIAN F. CHARETTE, Defendant-Appellant.


          Dana L. Christensen, Chief Judge

         Defendant Brian F. Charette ("Charette") appeals his judgment and sentence, entered July 20, 2016, by Magistrate Judge Jeremiah C. Lynch. For the reasons that follow, the Court affirms.


         On the morning of May 11, 2014, Charette and his wife awoke to their dogs barking loudly. They went downstairs, looked out a window, and saw a sow grizzly bear with her two yearlings outside their home in rural Ronan, Montana. Charette testified at trial that from the back windows of his house he saw the grizzly bear rear up and stand on or climb the horse pasture fence on his property. Charette grabbed his .270 rifle and shot the sow. Charette explained that he and his friend, James Inman, drove a pickup truck into the pasture and hauled the sow's corpse to the rear of the pasture, toward the tree-line.

         Ms. Charette, Charette's wife at the time of the incident and now ex-wife, testified that they woke up to dogs barking and a commotion outside their home. Ms. Charette said she saw three grizzly bears chasing horses in the pasture about 20 to 30 yards from the house, but that the bears were not advancing toward the house. Ms. Charette remembered a gun shot and saw a bear falling down. However, she testified that the Defendant and her have only vaguely mentioned the incident since that day.

         Rusty Carl, Charette's step-father, was staying at a cabin on Charette's property with Charette's mother at the time of the incident. Carl was outside gardening that morning. Carl indicated that he heard a gun shot and a commotion, looked up, and saw a bear chasing a dog on the pasture side of the fence. Carl then heard a second gun shot and saw a bear go down at the fence line.

         On December 9, 2014, Tribal Fish and Game for the Confederated Salish and Kootenai Tribes did an initial search for the grizzly bear's carcass where Charrette indicated he disposed of the body. Due to heavy snow, the carcass was not found. Two more attempts to find the carcass were also unsuccessful.

         After being federally indicted, Charette attempted to plead guilty on two occasions to the offense. However, Magistrate Lynch did not accept the pleas because Charette equivocated on whether he had acted in self-defense or defense of others. The court then set the matter for a bench trial, at the conclusion of which the magistrate judge found Charette guilty of one count of unlawful taking of a threatened species in violation of the Endangered Species Act. 16 U.S.C. §§ 1538(a)(1)(G) and 1540(b)(1). Charette's attorney submitted an oral motion for acquittal at trial, the court reserved ruling, and later denied the Rule 29 motion. (Doc. 3-1 at 106-114.) Charette was sentenced to six months of imprisonment and ordered to pay $5, 000 in restitution. Charette appeals from the judgment and sentence.


         Federal Rule of Criminal Procedure 58(g)(2)(A) provides that a party "may appeal an order of a magistrate judge to a district judge ... if a district judge's order could similarly be appealed." The magistrate judge had jurisdiction over this matter pursuant to 18 U.S.C. §§ 3231 and 3401. Thus, this Court has jurisdiction over Charette's appeal under 18 U.S.C. §§ 3231 and 3402. The Court considers questions of law de novo and reviews factual determinations for clear error. U.S. v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003).


         Charette raises three issues on appeal: (1) that the trial court's denial of a jury trial violated his constitutional rights; (2) that the trial court erred in defining the elements of his charged offense; and (3) that the trial court erred in denying Charette's Rule 29 motion for a judgment of acquittal.

         I. Sixth Amendment Right to Trial by Jury

         Charette argues that he was denied his constitutional right to a jury trial. This issue was not fully briefed, because Charette's counsel acknowledged this Court's ruling in United States v. Wallen, 2016 WL 282851 (D. Mont. 2016), and simply raised this issue to preserve it for appeal. The Court adheres to its decision in Wallen that this offense is considered a petty offense and not a serious offense because it carries a maximum sentence of six months. 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1); Lewis v. United States,518 U.S. 322, 326-327 (1995) ("An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional ...

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