United States District Court, D. Montana, Missoula Division
ORDER AND OPINION
L. Christensen, Chief Judge
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
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.
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.
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.
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
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.
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).
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
Sixth Amendment Right to Trial by Jury
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 ...