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United States v. Wallen

United States District Court, D. Montana, Missoula Division

April 25, 2019

DAN CALVERT WALLEN, Defendant-Appellant.


          Dana L. Christensen, Chief Judge United States District Court

         On July 10, 2018, United States Magistrate Judge Jeremiah C. Lynch convicted Defendant Dan Calvert Wallen of three counts of unlawfully taking a threatened species in violation of the Endangered Species Act ("ESA") and the United States Fish and Wildlife Service's ("USFWS") special rule on the taking of grizzly bears. Wallen appeals this conviction.

         This matter is before the Court on remand following the Ninth Circuit Court of Appeals' determination that the wrong standard was applied when previously deciding that Wallen did not act in self-defense. United States v. Wallen, 874 F.3d 620, 623 (9th Cir. 2017). In Wallen's previous trial, Judge Lynch determined, and this Court affirmed, that Wallen's "good faith belief should be judged by an objectively reasonable standard. The Ninth Circuit overruled that determination, finding that the appropriate "good faith" standard was the defendant's subjective state of mind at the time he committed the offense.

         The sole issue for determination in this trial was if the government proved, beyond a reasonable doubt, that at the time of the offense Wallen subjectively believed, in "good faith," that his actions were necessary to protect himself, his family, or any other individual from bodily harm from a grizzly bear. 16 U.S.C. § 1540(b)(3). Judge Lynch concluded that Wallen did not have this requisite belief when he shot and killed three grizzly bears. Wallen's appeal asserts there was insufficient evidence to prove, beyond a reasonable doubt, that he lacked the subjective good faith belief.

         Wallen's appeal also seeks to preserve his argument that his Fifth Amendment right to due process and Sixth Amendment right to an impartial factfinder were violated. These arguments were previously rejected by the Ninth Circuit on Wallen's appeal of his first conviction. In light of this procedural backdrop, the Court will not address these arguments further.

         Federal Rule of Criminal Procedure 58(g)(2)(B) states "a defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within 14 days of its entry." Judge Lynch had jurisdiction over this matter pursuant to 18 U.S.C. § 3231 and § 3401. This Court has jurisdiction over the appeal of Judge Lynch's decision pursuant to 18 U.S.C. § 3231 and § 3402. On appeal, this Court considers questions of law de novo and factual determinations for clear error. U.S. v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003).


         On December 23, 2014, Wallen was charged by information with violation of 16 U.S.C. § 1538(a)(1)(G), § 1540(b)(1), and 50 C.F.R. § 17.40(b)(1)(i)(A). A bench trial was conducted on March 10, 2015 by Judge Lynch, and Wallen was found guilty on all three counts on March 30, 2015. Judge Lynch sentenced Wallen to a $10 special assessment, a three-year term of probation with 60 days in a residential re-entry center, and $15, 000 in restitution. Wallen appealed Judge Lynch's conviction and sentence to the undersigned. This Court affirmed the conviction. Wallen then appealed to the Ninth Circuit Court of Appeals. On October 25, 2017, the Ninth Circuit filed its opinion vacating Wallen's conviction and remanding the case for the factual determination of "whether Wallen held a subjective 'good faith belief that he was acting to protect himself [or] a member of his ... family . .. from bodily harm' from grizzly bears." Wallen, 874 F.3d at 634 (quoting 16 U.S.C. § 1540(b)(3)).

         Wallen's second bench trial was scheduled to begin on February 21, 2018 with Judge Lynch again presiding. However, the parties agreed to submit the case to the Court on the factual record established at Wallen's 2015 trial. (Doc. 48 at 1-2.) Therefore, Judge Lynch's July 10, 2018 Findings of Fact and Conclusions of Law (Doc. 56), which are the subject of this appeal, are based upon the original trial record, the parties' briefs, and Judge Lynch's contemporaneous impressions of the witnesses at trial. On August 15, 2018, Judge Lynch sentenced Wallen to pay a $10 special assessment and $25, 000 in restitution as well as serve a three-year term of unsupervised probation.


         All parties agree that the three adolescent grizzly bears that Wallen shot were known problem bears, which had become habituated to human food sources and had been frequenting the Ferndale area near Bigfork, Montana between April 2014 and May 2014. Montana's Department of Fish, Wildlife and Parks ("FWP") was aware of these bears' extensive activity in the area prior to May 27, 2014, the day Wallen shot and killed the three bears, and had been unsuccessful in their attempts to capture the bears. Substantial evidence introduced at trial established that these three bears were unlike previous bears the residents of Ferndale had encountered. Tim Manley, FWP's human-bear conflict specialist, confirmed that the bears had "lost wariness of being around people, [and] that they fel[t] comfortable around homes, around people." (ER at 27.) Multiple witnesses at trial testified that this behavior made them more concerned about and fearful of these three bears than other bears that regularly passed through the neighborhood. (Doc. 63 at 12.)

         The bears were at the Wallen residence at least four times on May 27. First, during the early hours of the morning, the bears gained access to the Wallen's chicken coop and killed several chickens. The bears returned around 6:30 in the evening, while the Wallen family and a friend of their teenage daughter were outside in the yard. The bears' arrival caused everyone except Wallen to retreat to the house. At this point, Wallen accessed his vehicle and used it to chase the bears from his property. The bears returned for a third time approximately 10 to 15 minutes later, and Wallen again hazed the bears from his property in his pick-up truck. When the bears had retreated, Wallen retrieved his .22 caliber rifle to escort his daughter's friend to his vehicle.

         Wallen did not return to his house at this point but began removing the dead chickens the bears had previously killed from his yard. The remaining live chickens wandered freely about the yard and Wallen as he worked. During the time Wallen was cleaning up the yard, the first two bears returned. Wallen was surprised by the bears because their approach had been hidden by the garage. At some point after these two bears entered the yard, Wallen shot at the bears with his rifle and the bears fled.

         A short time later, as Wallen continued removing chicken carcasses from the yard, the third bear entered the yard from the same direction as the previous two. This bear's return was also blocked from Wallen's view by the garage, and Wallen was surprised by his arrival. The third bear's behavior may have been erratic and unpredictable, as noted by trial testimony from Wallen and his daughter. Wallen fired at ...

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