United States v. Austin Carey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10188
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-00252-LJO-1

AUSTIN LEE CAREY,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding

Argued and Submitted June 13, 2019
San Francisco, California

Filed July 10, 2019

Before: MARY M. SCHROEDER and MILAN D.
SMITH, JR., Circuit Judges, and JED S. RAKOFF, *
District Judge.

Opinion by Judge Milan D. Smith, Jr.

*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 UNITED STATES V. CAREY

SUMMARY **

Criminal Law

The panel affirmed a conviction for misdemeanor
offenses stemming from an unlawful BASE jump in
Yosemite National Park.

The panel held that the permit exception in 36 C.F.R.
§ 2.17(a)(3) – which prohibits delivering or retrieving a
person or object by parachute, helicopter, or other airborne
means – is an affirmative defense for which the defendant,
not the government, bore the burden of proof.

The panel held that the district court did not abuse its
discretion in deciding that the magistrate judge did not need
to recuse himself pursuant to 28 U.S.C. § 455(a) after
reading a news article about the trial.

COUNSEL

Reed Grantham (argued), Assistant Federal Defender;
Heather E. Williams, Federal Defender; Office of the
Federal Public Defender, Fresno, California; for Defendant-
Appellant.

Jeffrey A. Spivak (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; McGregor W.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. CAREY 3

Scott, United States Attorney; United States Attorney’s
Office, Fresno, California; for Plaintiff-Appellee.

OPINION

M. SMITH, Circuit Judge:

Shortly after park rangers discovered him dangling from
the branches of a tree in Yosemite National Park, Austin
Carey was charged with two misdemeanor offenses
stemming from an unlawful BASE jump. Following a one-
day bench trial, a magistrate judge found Carey guilty on
both counts.

Carey now appeals his conviction, contending that the
government failed to prove each element of 36 C.F.R.
§ 2.17(a)(3) beyond a reasonable doubt, and that the
magistrate judge was required to recuse himself after being
exposed to a potentially prejudicial news article. We
conclude that § 2.17(a)(3)’s permit exception is an
affirmative defense for which Carey, not the government,
bore the burden of proof, and that the magistrate judge’s
reference to the article, though perhaps imprudent, did not
mandate recusal pursuant to 28 U.S.C. § 455(a). We
therefore affirm Carey’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of September 6, 2016, law enforcement
rangers in Yosemite National Park responded to a report of
a person in a parachute hitting a tree. The rangers arrived on
scene to discover Carey suspended in the tree’s branches an
estimated 130 to 150 feet above the ground. With him, the
4 UNITED STATES V. CAREY

rangers found a harness, wingsuit, 1 and parachute—
equipment commonly associated with BASE jumping. 2
After some maneuvering and the employment of rigging
ropes, professional tree-climbing loggers helped Carey
descend to the ground.

Once safely returned to the earth’s surface, Carey was
promptly arrested and charged with violations of 36 C.F.R.
§§ 2.17(a)(3) (delivering a person or object by parachute,
helicopter, or other airborne means) and 2.34(a)(4)
(disorderly conduct by creating a hazardous condition).

The case proceeded to a bench trial before a magistrate
judge on August 9, 2017. Although a pretrial brief filed by
the government indicated that, in order to prove a violation
of § 2.17(a)(3), it had to “establish[] beyond a reasonable
doubt” that the defendant’s act was “[n]ot pursuant to the
terms and conditions of a permit,” the government concedes

1
In the words of the magistrate judge, “a one piece uniform with
material extending from the arms to the ribs and between the legs,
commonly used by BASE jumpers to enable gliding while in the air.”
2
We have explained that

[t]he acronym in BASE jumping refers to the
structures off of which enthusiasts of the extreme sport
jump with the use of a chute: Buildings, Antennas
(radio and television towers), Spans (bridges), and
Earth (cliffs). BASE jumpers have leapt from the
Empire State Building, the Eiffel Tower, Angel Falls
in Venezuela (the highest waterfall in the world), the
98-foot Christ statue in Rio de Janeiro, and the World
Trade Center.

United States v. Albers, 226 F.3d 989, 991 (9th Cir. 2000).
 UNITED STATES V. CAREY 5

that “[a]t trial, [it] did not offer direct evidence in its case-
in-chief that Carey lacked a permit to BASE jump.”

Following the bench trial, Carey moved for acquittal
pursuant to Federal Rule of Criminal Procedure 29, arguing
that the government failed to establish all elements of
§ 2.17(a)(3) because it did not prove that he lacked a permit.
The magistrate judge initially denied the motion, but then
withdrew the denial and indicated that he would address the
motion in his written decision.

The magistrate judge issued his order and judgment on
September 25, 2017, finding Carey guilty on both counts.
The order included a discussion of the proper burden of
proof for § 2.17(a)(3)’s permit exception, with the
magistrate judge concluding, “Defendant bears the burden of
proving that he was permitted to BASE jump.” It also
featured a reference and citation to an article from The
Fresno Bee, published online the same day as the bench trial,
that discussed Carey’s BASE jumping career and the case
against him.

Subsequently, Carey appealed his conviction to the
district court, again claiming that the government had the
burden of proving that he did not have a permit, and also
arguing, for the first time, that the magistrate judge should
have recused himself sua sponte pursuant to 28 U.S.C.
§ 455(a) after being exposed to extrajudicial information—
namely, the Fresno Bee article. The district court denied the
appeal, agreeing with the magistrate judge that “the permit
exception in § 2.17(a)(3) constitutes an affirmative defense
and that the government did not have the burden of proving
the nonexistence of permit,” and concluding that the
magistrate judge “was not required to recuse himself
pursuant to § 455(a).”
6 UNITED STATES V. CAREY

This timely appeal followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo the denial of a motion for a judgment
of acquittal. United States v. Wanland, 830 F.3d 947, 952
(9th Cir. 2016). “The construction or interpretation of a
statute is a question of law that we review de novo.” United
States v. Yong Jun Li, 643 F.3d 1183, 1185 (9th Cir. 2011)
(quoting United States v. Cabaccang, 332 F.3d 622, 624–25
(9th Cir. 2003) (en banc)). “Rulings on motions for recusal
are reviewed under the abuse-of-discretion standard.”
United States v. McTiernan, 695 F.3d 882, 891 (9th Cir.
2012).

ANALYSIS

I. Section 2.17(a)(3)’s Permit Exception

Section 2.17(a)(3) prohibits “[d]elivering or retrieving a
person or object by parachute, helicopter, or other airborne
means, except in emergencies involving public safety or
serious property loss, or pursuant to the terms and conditions
of a permit.” 36 C.F.R. § 2.17(a)(3). Carey argues that,
because the government did not prove beyond a reasonable
doubt that he lacked a permit, it failed to satisfy its burden
of proof as to each essential element of § 2.17(a)(3).

“[N]o person shall be made to suffer the onus of a
criminal conviction except upon sufficient proof—defined
as evidence necessary to convince a trier of fact beyond a
reasonable doubt of the existence of every element of the
offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979).
However, although “the Government must prove beyond a
 UNITED STATES V. CAREY 7

reasonable doubt ‘every fact necessary to constitute the
crime with which [the defendant] is charged,’ ‘[p]roof of the
nonexistence of all affirmative defenses has never been
constitutionally required.’” Smith v. United States, 568 U.S.
106, 110 (2013) (alterations in original) (citation omitted)
(first quoting In re Winship, 397 U.S. 358, 364 (1970); and
then quoting Patterson v. New York, 432 U.S. 197, 210
(1977)).

The dispute on appeal is therefore straightforward: Carey
contends that § 2.17(a)(3)’s permit exception is an element
of the offense, and thus that the government had to prove the
nonexistence of a permit beyond a reasonable doubt, while
the government argues that it is an affirmative defense for
which Carey bore the burden of proof.

At the outset, we note—as Carey understandably
emphasizes—that the government itself indicated in a
pretrial brief that the permit exception constituted an element
of the offense. In a discussion of § 2.17(a)(3), the
government listed “Not pursuant to the terms and conditions
of a permit” as an element that “must be established beyond
a reasonable doubt” “[i]n order to prove this crime.” 3 We
are not obliged, however, to hold the government to this
position, because “[e]ven if a concession is made by the
government, we are not bound by the government’s
‘erroneous view of the law.’” United States v. Miller,
822 F.2d 828, 832 (9th Cir. 1987) (quoting Flamingo Resort,
Inc. v. United States, 664 F.2d 1387, 1391 n.5 (9th Cir.
1982)).

3
The government also included another of § 2.17(a)(3)’s
exceptions—“Without emergency involving public safety or serious
property loss”—in the list of elements.
8 UNITED STATES V. CAREY

Accordingly, we must ascertain in the first instance
which provisions of § 2.17(a)(3) constitute elements of the
offense to determine who had the burden of proving or
disproving the existence of a permit. “The definition of the
elements of a criminal offense is entrusted to the legislature,
particularly in the case of federal crimes, which are solely
creatures of statute.” United States v. Charette, 893 F.3d
1169, 1174 (9th Cir. 2018) (quoting Liparota v. United
States, 471 U.S. 419, 424 (1985)). “To determine the
elements of a crime, ‘the focus of our inquiry is the intent of
Congress.’ We ‘look to the statute’s language, structure,
subject matter, context, and history—factors that typically
help courts determine a statute’s objectives and thereby
illuminate its text.’” Id. (citation omitted) (first quoting
United States v. Nguyen, 73 F.3d 887, 890 (9th Cir. 1995);
and then quoting Almendarez-Torres v. United States,
523 U.S. 224, 228 (1998)).

In support of their respective arguments regarding the
elements of § 2.17(a)(3), each party primarily relies on a
single Supreme Court decision. We briefly review each case
before assessing whether any conflicts exist between them,
and then discuss how the decisions apply in this case.

A. McKelvey

The older of the two cases—the one to which the
government cites—is McKelvey v. United States, 260 U.S.
353 (1922). That case concerned a statute that provided

[t]hat no person, by force, threats,
intimidation, or by any fencing or inclosing,
or any other unlawful means, shall prevent or
obstruct . . . any person from peaceably
entering upon . . . any tract of public land . . .
or shall prevent or obstruct free passage or
 UNITED STATES V. CAREY 9

transit over or through the public lands:
Provided, this section shall not be held to
affect the right or title of persons, who have
gone upon, improved or occupied said lands
under the land laws of the United States,
claiming title thereto, in good faith.

Id. at 356. The defendants challenged the indictment against
them on the ground that “the indictment contains no showing
that the accused were not within the exception made in the
proviso.” Id. at 356–57. The Court rejected this argument,
reaffirming

a settled rule in this jurisdiction that an
indictment or other pleading founded on a
general provision defining the elements of an
offense, or of a right conferred, need not
negative the matter of an exception made by
a proviso or other distinct clause, whether in
the same section or elsewhere, and that it is
incumbent on one who relies on such an
exception to set it up and establish it.

Id. at 357. In short, the Court held that a defendant, not the
government, has the burden of proving an exception to a
provision defining the elements of an offense; in other
words, an affirmative defense. See Dixon v. United States,
548 U.S. 1, 13–14 (2006) (noting “the long-established
common-law rule and the rule applied in McKelvey,” both of
which require the defendant to bear the burden of proving an
affirmative defense (footnote omitted)).

In the decades since McKelvey, our court has frequently
cited to the decision when determining which party bears the
burden of proof for a given statutory exception, and in doing
10 UNITED STATES V. CAREY

so has illuminated the situations where its rule is
appropriately applied. See, e.g., United States v. Guess,
629 F.2d 573, 576 (9th Cir. 1980) (referencing “[t]he well-
established rule [] that a defendant who relies upon an
exception to a statute made by a proviso or distinct clause,
whether in the same section of the statute or elsewhere, has
the burden of establishing and showing that he comes within
the exception” (quoting United States v. Henry, 615 F.2d
1223, 1234–35 (9th Cir. 1980))).

B. Vuitch

Carey, on the other hand, relies on another Supreme
Court decision: United States v. Vuitch, 402 U.S. 62 (1971),
a post-McKelvey case.

There, the statute at issue read,

Whoever . . . procures or produces . . . an
abortion or miscarriage on any woman,
unless the same were done as necessary for
the preservation of the mother’s life or health
and under the direction of a competent
licensed practitioner of medicine, shall be
imprisoned in the penitentiary not less than
one year or not more than ten years.

Id. at 67–68. The Court rejected the argument that “the
statute places the burden of persuasion on the defendant once
the fact of an abortion has been proved,” explaining that “[i]t
is a general guide to the interpretation of criminal statutes
that when an exception is incorporated in the enacting clause
of a statute, the burden is on the prosecution to plead and
prove that the defendant is not within the exception.” Id.
at 69–70.
 UNITED STATES V. CAREY 11

C. Reconciliation

Carey argues that “[o]n its terms, the broad language of
the earlier McKelvey decision is irreconcilable and in direct
conflict with the Supreme Court’s later holding in Vuitch,”
and therefore “the broad language of McKelvey was
abrogated by the Supreme Court in its later in time 1972
Vuitch decision.” He further asserts that our various
opinions relying on and applying McKelvey “are inapposite”
and “not precedent here” because “the issue of McKelvey’s
limited abrogation by Vuitch was never raised or addressed
in those cases.” We need not reach such a dramatic
conclusion; if Carey looks before he leaps, he might see that
the two decisions are not, as he claims, irreconcilable.

McKelvey’s general rule can be characterized as follows:
if a statute includes an exception to criminal liability
separate from the elements of the offense—in other words,
an affirmative defense, see Dixon, 548 U.S. at 13–14—then
a defendant, not the government, must prove the exception
beyond a reasonable doubt. Vuitch addresses a different
scenario; it does not apply when an exception constitutes an
affirmative defense, but instead when “an exception is
incorporated in the enacting clause of a statute” such that the
exception becomes an element of the offense. 402 U.S.
at 70. In such cases, the government must prove (or negate)
the exception beyond a reasonable doubt, as it would any
other element of the offense.

We find no cases holding that Vuitch abrogated
McKelvey, partially or otherwise. 4 This is not surprising,

4
Indeed, the Supreme Court cited to McKelvey and its general rule
after Vuitch, and did not suggest any sort of abrogation or
incompatibility. See Dixon, 548 U.S. 13–14 & n.9.
12 UNITED STATES V. CAREY

since, contrary to Carey’s position, the decisions describe
different circumstances, and are therefore compatible. As
the Eleventh Circuit has explained, “Both the Vuitch and the
McKelvey rules are rules of statutory construction, or
‘general guide[s] to the interpretation of criminal statutes,’”
to be used “when Congress has not made its intent clear.”
United States v. Steele, 147 F.3d 1316, 1319 (11th Cir. 1998)
(en banc) (alteration in original) (quoting Vuitch, 402 U.S.
at 70). The McKelvey rule applies when a statutory
exception is an exception to the elements of an offense; the
Vuitch rule applies when the exception is an element of the
offense.

D. Application

Congress did not clearly assign the burden of proving
§ 2.17(a)(3)’s permit exception. We must therefore
determine whether the exception is best characterized as an
exception to liability under McKelvey or Vuitch, in order to
properly allocate the burden of proof.

The government argues that McKelvey controls here,
noting that § 2.17(a)(3) “sets out a class of prohibited
conduct and then, in a clause set off by commas and
beginning with the word, ‘except,’ provides for an exception
to that general rule.” Carey, by contrast, contends that
§ 2.17(a)(3)’s permit exception “is incorporated within the
clause proscribing the conduct in question” and “mirrors—
both in substance and in structure—the statutory language
that the Vuitch Supreme Court concluded constituted an
element of the offense.” We ultimately agree with the
government that the permit exception is better understood
under McKelvey, and that it therefore constitutes an
affirmative defense.
 UNITED STATES V. CAREY 13

From a purely syntactical standpoint, the statute at issue
here is distinguishable from the Vuitch statute and more like
the McKelvey statute. See Charette, 893 F.3d at 1174
(looking to a statute’s language and structure as part of this
inquiry). The Vuitch statute contained an exception in the
middle of the provision outlining the prohibited conduct. See
402 U.S. at 67–68 (“Whoever . . . procures or produces . . .
an abortion or miscarriage on any woman, unless the same
were done as necessary for the preservation of the mother’s
life or health and under the direction of a competent licensed
practitioner of medicine, shall be imprisoned in the
penitentiary not less than one year or not more than ten
years.” (emphasis added)). Section 2.17(a)(3), by contrast,
first describes the prohibited behavior—“[d]elivering or
retrieving a person or object by parachute, helicopter, or
other airborne means”—and then offers the exception
subsequently—“except in emergencies involving public
safety or serious property loss, or pursuant to the terms and
conditions of a permit.” 36 C.F.R. § 2.17(a)(3); see also
McKelvey, 260 U.S. at 356 (analyzing a statute that included
an exception at the end of the provision). 5

5
At oral argument, the government observed that § 2.17(a)(3) is also
structurally similar to the regulation we analyzed in Charette, which
featured exceptions segregated from the elements of the offense. See
50 C.F.R. § 17.40(b)(1)(i)(A) (“Except as provided in paragraphs
(b)(1)(i)(B) through (F) of this section, no person shall take any grizzly
bear in the 48 conterminous states of the United States.”). But in that
case, we also observed that, “[f]ortunately, Congress explicitly addressed
who bears the burden of proving that a valid permit was in force, and
thus whether the exemption . . . is an element or an affirmative defense.”
Charette, 893 F.3d at 1174; see also 16 U.S.C. § 1539(g) (“[A]ny person
claiming the benefit of any exemption or permit under this chapter shall
have the burden of proving that the exemption or permit is applicable.”);
H.R. Rep. No. 94-823, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N.
1685, 1689 (“Subsection (g) . . . provided for an affirmative defense
14 UNITED STATES V. CAREY

We conclude that this purely syntactical approach is
somewhat revealing, but is not dispositive. Either statute
could be theoretically rewritten to match the structure of the
other, without clearly altering its meaning. Section
2.17(a)(3) is superficially more similar to the McKelvey
statute, but further analysis is needed.

In United States v. Cook, 84 U.S. (17 Wall.) 168 (1872),
the Supreme Court suggested more sophisticated means of
delineating a statute’s enacting clause, and hence whether an
exception falls within it. The Court wrote,

Where a statute defining an offence contains
an exception, in the enacting clause of the
statute, which is so incorporated with the
language defining the offence that the
ingredients of the offence cannot be
accurately and clearly described if the
exception is omitted, the rules of good
pleading require that an indictment founded
upon the statute must allege enough to show
that the accused is not within the exception,
but if the language of the section defining the
offence is so entirely separable from the
exception that the ingredients constituting the
offence may be accurately and clearly
defined without any reference to the
exception, the pleader may safely omit any
such reference, as the matter contained in the

where a prima facie violation of the Act is established whereby the holder
must show that the permit or exemption is applicable.”). Here—
unfortunately—Congress did not provide such clear guidance.
 UNITED STATES V. CAREY 15

exception is matter of defence and must be
shown by the accused.

Cook, 85 U.S. (17 Wall.) at 173–74. Therefore, whether
§ 2.17(a)(3)’s permit exception “constitutes a defense or an
element of the offense under McKelvey turns on whether ‘the
statutory definition is such that the crime may not be
properly described without reference to the exception.’”
United States v. Taylor, 686 F.3d 182, 191 (3d Cir. 2012)
(quoting United States v. Prentiss, 206 F.3d 960, 973 (10th
Cir. 2000)).

The government’s position—that the permit exception is
not an element of the offense, and hence that the McKelvey
rule applies—is stronger. As it correctly notes,

[T]he exception in Section 2.17(a)(3) is both
subsequent to the enacting clause prohibiting
delivery of persons or objects by parachute or
other means and [does] not contain[] any of
the “ingredients of the offense.” If one were
to strike the permit exception from Section
2.17(a)(3), the prohibited activity,
“delivering a person or object by parachute,”
would still be clearly described.

(citation omitted). This conclusion is consistent with our
previous opinions interpreting McKelvey. Section 2.17(a)(3)
“la[ys] out prohibited conduct”—the ingredients of the
offense—“and then provide[s] an escape hatch exception,” a
construct to which we have applied McKelvey and its
progeny. United States v. Hui Hsiung, 778 F.3d 738, 756–
57 (9th Cir. 2015). It broadly prohibits a set of activities,
and then offers a limited exception, which is evidence that
the exception should be construed as an affirmative defense
16 UNITED STATES V. CAREY

rather than as an element of the offense. See United States
v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997) (“Where,
as in this case, the ‘statutory prohibition is broad and an
exception is narrow, it is more probable that the exception is
an affirmative defense.’” (quoting United States v. Freter,
31 F.3d 783, 788 (9th Cir. 1994))). Consequently, we agree
with the government: the exception to § 2.17(a)(3) “is not an
element of the offense, but rather a narrow exception and
escape hatch that Carey was required to prove.” 6

6
We have also suggested “there is good reason to apply” McKelvey
when “[i]t is far more manageable for the defendant to shoulder the
burden of producing evidence” that an exception is satisfied. United
States v. Hester, 719 F.2d 1041, 1043 (9th Cir. 1983). Carey argues that
there are

numerous reasons why the government is better
situated to introduce such evidence: the government
operates the permitting system, the government has
ready access to its own records, the government can
call applicable permit custodians to testify to the
existence or non-existence of a permit, and the
government is best situated to be the ultimate arbiter
as to whether such a permit was issued.

See United States v. Oxx, 56 F. Supp. 2d 1214, 1220 (D. Utah 1999)
(concluding that § 2.17(a)(3)’s permit exception is an element of the
offense in part because “the United States, as the issuer of the permit,
would be in the best position to demonstrate the non-existence of such
authorization”); see also United States v. Kaluna, 152 F.3d 1069, 1079
(9th Cir. 1998) (noting the government’s “ready access to official files
and records” in a discussion of the allocation of burden of proof),
withdrawn on grant of reh’g en banc, 161 F.3d 1225 (9th Cir. 1998).

This conclusion is not unreasonable, but neither is it obvious.
Although the relative burden here might not be as clear-cut as in other
cases where we determined that a defendant, rather than the government,
was in a better position to supply evidence, see, e.g., Hester, 719 F.2d
 UNITED STATES V. CAREY 17

In response, Carey maintains that “there is no basis upon
which one could conclude that the exception language at
issue in Vuitch differs structurally in any meaningful way
from the permit language of section 2.17(a)(3),” arguing in
particular that applying Cook to the statute in Vuitch would
yield the same result as here: “if one were to strike the
exception language of the Vuitch statute beginning with the
word ‘unless,’ the prohibited activity . . . would likewise
‘still be clearly described.’”

From a purely linguistic standpoint, Carey is correct.
But his conclusion ignores the extensive analysis undertaken
by the Vuitch Court, which went far beyond mere semantics
in determining how integral the statute’s exception was to
the offense—in other words, whether the exception was part
of the offense’s “ingredients.” In reaching its decision, the
Court relied not only on statutory structure, but also on other
considerations, legislative history in particular. The Court
wrote,

When Congress passed the District of
Columbia abortion law in 1901 and amended
it in 1953, it expressly authorized physicians
to perform such abortions as are necessary to
preserve the mother’s ‘life or health.’

at 1043 (“It is far more manageable for the defendant to shoulder the
burden of producing evidence that he is a member of a federally
recognized tribe than it is for the Government to produce evidence that
he is not a member of any one of the hundreds of such tribes.”), it seems
just as easy for a defendant to demonstrate that she received a permit as
it would be for the government to demonstrate that she did not. Cf.
Gravenmeir, 121 F.3d at 528 (“That the government could ‘prove the
negative’ in this case . . . does not mean that it would be easier for the
government to do so.”). Accordingly, this consideration does not tip the
scale in either direction.
18 UNITED STATES V. CAREY

Because abortions were authorized only in
more restrictive circumstances under
previous D.C. law, the change must represent
a judgment by Congress that it is desirable
that women be able to obtain abortions
needed for the preservation of their lives or
health. It would be highly anomalous for a
legislature to authorize abortions necessary
for life or health and then to demand that a
doctor, upon pain of one to ten years’
imprisonment, bear the burden of proving
that an abortion he performed fell within that
category.

Vuitch, 402 U.S. at 70 (footnote omitted). The Court also
hinged its decision in part on the unique societal niche filled
by medical professionals:

Placing such a burden of proof on a doctor
would be peculiarly inconsistent with
society’s notions of the responsibilities of the
medical profession. Generally, doctors are
encouraged by society’s expectations, by the
strictures of malpractice law and by their own
professional standards to give their patients
such treatment as is necessary to preserve
their health. We are unable to believe that
Congress intended that a physician be
required to prove his innocence.

Id. at 70–71.

These additional considerations—the history of the
District of Columbia’s abortion laws, societal presumptions
about the medical profession, the strictures of medical
 UNITED STATES V. CAREY 19

malpractice law—suggest that the Vuitch Court did not
simply rely on syntax to find that the statute’s exception was
part of its enacting clause, but instead undertook a more
nuanced examination of the nature of the criminal offense
and the purpose of the exception. Its analysis suggests that
an exception should be considered an element of the offense
when it represents a broader category of behavior than the
offense itself. The Vuitch Court assumed that, if a doctor
performed an abortion, she was likely doing so lawfully, and
for the health of the mother. It was therefore the
government’s burden to disprove the lawfulness of an
abortion, since that exception could be assumed as a baseline
in all cases.

Our court demonstrated this same principle in two 1970s
opinions on which Carey also relies: United States v. King,
587 F.2d 956 (9th Cir. 1978), and United States v. Black,
512 F.2d 864 (9th Cir. 1975). These cases concerned a
controlled substance statute that contained a “medical
exception” permitting “authorize[d] ‘practitioners’ to
dispense controlled substances.” King, 587 F.2d at 962. We
determined that “the Government should have been required
to prove the nonapplicability of the medical exception
beyond a reasonable doubt,” explaining that the irrationality
of the government’s contrary position compelled this result.
Id. at 964. We suggested that, when it is “shown, without
more, that the defendant is a physician duly registered with
the Attorney General to dispense controlled substances,”
then a presumption that the physician did so unlawfully “is
irrational, and hence unconstitutional, because we cannot
say ‘with substantial assurance that the presumed fact [of
nonauthorization] is more likely than not to flow from the
proved fact [of distribution by a practitioner] on which it is
made to depend.’” Id. at 964–65 (alterations in original)
(quoting Leary v. United States, 395 U.S. 6, 36 (1969)); see
20 UNITED STATES V. CAREY

also Black, 512 F.2d at 870–71 (“It is not ‘more likely than
not’ that medical practitioners registered to dispense
controlled substances do so illegitimately and are guilty of a
criminal act; common experience, we think dictates
precisely the opposite conclusion.”).

Given our reading of Vuitch, we conclude that
§ 2.17(a)(3)’s permit exception is not an element of the
offense. The regulation’s legislative history indicates that
permits were intended to be issued only in very limited and
exceptional circumstances. A park superintendent’s
permitting authority was meant to be “limited to the project
requirements of a limited scope and nonrecreational nature
conducted by” either a state or federal entity or a “person
demonstrating a legitimate need that is compatible with park
purposes.” General and Special Regulations for Areas
Administered by the National Park Service, 49 Fed. Reg.
18,442, 18,448 (Apr. 30, 1984) (to be codified at 36 C.F.R.
pts. 1, 2, 7). “Recurrent recreational or commercial use”—
such as Carey’s recreational BASE jumping—“must be set
forth for public deliberation as a proposed rule.” Id. In short,
the regulation “limits the operation and use of aircraft to
designated areas and generally prohibits the air delivery of
persons or property.” General Regulations for Areas
Administered by the National Park Service, 48 Fed. Reg.
30,252, 30,268 (June 30, 1983) (to be codified at 36 C.F.R.
pts. 1–7, 12) (emphasis added).

Accordingly, when a person conducts a recreational
BASE jump in a national park, we cannot assume that she is
doing so legally, since the circumstances when such an act
would be permitted are exceedingly rare. To put it another
way, and to distinguish this case from Vuitch, although we
can presume that doctors behave lawfully and in the best
interests of their patients, we cannot similarly assume that
 UNITED STATES V. CAREY 21

BASE jumpers in national parks are acting in full
compliance with the law, given that recreational permits are
so rarely issued.

Applying the Vuitch rule in these limited circumstances
is consistent with our presumption that where “a statutory
prohibition is broad and an exception is narrow, it is more
probable that the exception is an affirmative defense” and
therefore subject to the McKelvey rule. Freter, 31 F.3d
at 788. In Vuitch, the exception was not narrow; lawful
activity was presumed in most cases, and it was the
prohibited conduct that the Court considered to be narrow.
Here, by contrast, the prohibition against BASE jumping is
broad, and the exception represents a very narrow band of
cases, which indicates that the exception is an affirmative
defense.

In summation, § 2.17(a)(3)’s permit exception is best
understood as an affirmative defense under McKelvey and its
progeny, not an element of the offense under Vuitch. We
therefore conclude, like the magistrate judge and the district
court, that Carey had—and did not meet—the burden of
proof at trial.

II. Recusal

Carey also argues that the magistrate judge should have
recused himself after reading a news article about the trial
prior to issuing his verdict.

A. Standard of Review

At the outset, the parties dispute the proper standard of
review to apply to this claim. The government urges us to
review for plain error, since Carey “fail[ed] to move for
recusal before the trial court.” However, as Carey notes, the
22 UNITED STATES V. CAREY

news article about his case—the source of the purported
bias—did not appear until after the conclusion of trial, and
the magistrate judge’s reference to it was not apparent until
he issued his order and judgment. Carey therefore could not
have moved for recusal before the magistrate judge. Instead,
he properly appealed the conviction and sentence to the
district court. See 18 U.S.C. § 3402 (“In all cases of
conviction by a United States magistrate judge an appeal of
right shall lie from the judgment of the magistrate judge to a
judge of the district court of the district in which the offense
was committed.”). The district court’s order denying
Carey’s appeal is the subject of this appeal, see United States
v. Manning-Ross, 362 F.3d 874, 875 (1st Cir. 2004) (noting
that where a conviction or sentence is rendered by a
magistrate judge, the court of appeals “has jurisdiction to
entertain an appeal only after the district court renders a final
judgment”), and Carey did raise the recusal issue, and so
preserved it, in his initial appeal to the district court.

Accordingly, because we are reviewing the district
court’s denial of Carey’s appeal, where he raised the recusal
issue at the earliest opportunity—and thus cannot fairly be
said to have forfeited the issue, see United States v. Murguia-
Rodriguez, 815 F.3d 566, 574 (9th Cir. 2016) (“Without a
forfeited error, plain error does not apply.”)—we will review
the district court’s decision on the recusal issue for abuse of
discretion. See McTiernan, 695 F.3d at 891.

B. Section 455(a)

Magistrate judges possess the power to conduct trials of
individuals accused of misdemeanors. See 28 U.S.C.
§ 636(a)(3); 18 U.S.C. § 3401. However, “[a]ny justice,
judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his
 UNITED STATES V. CAREY 23

impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a).

“[R]ecusal is appropriate where ‘a reasonable person
with knowledge of all the facts would conclude that the
judge’s impartiality might reasonably be questioned.’”
Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993)
(quoting In re Yagman, 796 F.2d 1165, 1179 (9th Cir.
1986)). Under § 455(a), impartiality must be “evaluated on
an objective basis, so that what matters is not the reality of
bias or prejudice but its appearance.” Liteky v. United States,
510 U.S. 540, 548 (1994); see also In re Murchison, 349
U.S. 133, 136 (1955) (“Such a stringent rule may sometimes
bar trial by judges who have no actual bias and who would
do their very best to weigh the scales of justice equally
between contending parties. But to perform its high function
in the best way ‘justice must satisfy the appearance of
justice.’” (quoting Offutt v. United States, 348 U.S. 11, 14
(1954))). “Disqualification under § 455(a) is necessarily
fact-driven and may turn on subtleties in the particular case.”
United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008).

C. Application

Carey’s bench trial occurred on August 9, 2017, at the
conclusion of which the magistrate judge indicated that he
would take the matter under submission. On that same day,
The Fresno Bee published an online article about Carey’s
exploits and trial, which began, “Austin Carey says he loves
to leap from Yosemite National Park’s towering granite
cliffs. Even a near-deadly plunge in 2015 hasn’t stopped
him from being a BASE jumper.” Pablo Lopez, He Leaps
off Yosemite Cliffs, Knowing It’s Illegal. Can His Court
Case Make BASE Jumping Legit?, Fresno Bee (Aug. 9,
2017, 1:00 PM), http://www.fresnobee.com/news/local/
article166303332.html. The article included Carey’s
24 UNITED STATES V. CAREY

personal history, details of his alleged BASE jumping in
Yosemite, and a discussion of the pending criminal case. Id.
It reported that “[b]efore his trial, Carey, 26, didn’t deny
being a BASE jumper—someone who uses a parachute or
wingsuit to fly off a fixed structure or cliff. . . . Carey said
he has BASE jumped in Yosemite at least 20 times in the
past five years.” Id. The article also noted Carey’s hope that
“his case will draw attention to what he says is an injustice,
and lead[] to legislation that will allow BASE jumping in
Yosemite and other national parks,” and featured a photo of
an individual, purportedly Carey, leaping from Yosemite
National Park’s Half Dome wearing a pink wingsuit. Id.

The following month, on September 25, 2017, the
magistrate judge issued his written order. The order made
explicit reference to the content of the Fresno Bee article,
and included a citation to it, in the introduction to its analysis
section:

The Court’s role is to determine if the
elements of the alleged offenses have been
established and, thus, whether Defendant is
guilty of either or both of them. Absent a
constitutional or other challenge to the
validity or enforceability of the regulations—
and there has been no such challenge here—
the Court will not pass judgment on the
wisdom of the regulations or determine
whether they are inconsistent with [Yosemite
National Park’s] decision not to prohibit
other dangerous activities. In short, while
some, reportedly including Defendant
[footnote citing to Fresno Bee article], might
like to see this case produce an endorsement
of BASE jumping and/or condemnation of
 UNITED STATES V. CAREY 25

the regulation prohibiting it, and others will
seek just the opposite, it will do no such
thing.

The order contained no other apparent references, allusions,
or citations to the article.

We conclude that the district court did not abuse its
discretion when it decided that the magistrate judge did not
need to recuse himself pursuant to § 455(a). It is true that
the Fresno Bee article contained details both prejudicial—
Carey’s admission to the offense—and inflammatory—in
his words, “expressing a knowing desire to break the law.”
This is particularly troubling given that Carey exercised his
Fifth Amendment right to refrain from testifying at trial. But
the district court articulated the correct standard under
§ 455(a), and reasonably concluded that “[t]here is no
indication that the judge’s reading of the article, which he
merely indicates in passing reference in a footnote, had any
bearing on his conclusion or the legal analysis such that it
would show some sort of partiality to a reasonable person
reading the order.”

We agree that a reasonable person would not have
questioned the magistrate judge’s impartiality based solely
on a reference to a potentially prejudicial article that had no
other apparent impact on the verdict. We cannot expect
judges to live as moles, roving about the limited
underground landscape of the official record but never
perceiving the illuminated world at the surface. In our
modern, interconnected, endlessly broadcast world,
complete blinders are impracticable, as a reasonable person
would surely conclude. Moreover, courts have regularly
held that outside knowledge does not on its own prejudice
judicial proceedings. See, e.g., Liteky, 510 U.S. at 554 (“The
26 UNITED STATES V. CAREY

fact that an opinion held by a judge derives from a source
outside judicial proceedings is not a necessary condition for
‘bias or prejudice’ recusal, since predispositions developed
during the course of a trial will sometimes (albeit rarely)
suffice.”); Dean v. Colvin, 585 F. App’x 904, 904–05 (7th
Cir. 2014) (“Judges do not violate the Constitution by
consulting their own funds of knowledge about the world, or
by augmenting that knowledge. . . . No judge is required to
approach a case in complete ignorance. An open mind is
required; an empty mind is not.”). Because a reasonable
observer would conclude that exposure to the Fresno Bee
article neither influenced the magistrate judge’s verdict nor
prevented him from adjudicating Carey’s case impartially,
he was not required to recuse himself.

Carey relies heavily on the Supreme Court’s decision in
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847
(1988), and stresses that no actual bias is needed under
§ 455(a), just the appearance of it. But that decision—in
which the Court addressed “facts [that] create[d] precisely
the kind of appearance of impropriety that § 455(a) was
intended to prevent,” id. at 867—underscores the
reasonableness of the district court’s conclusion here. In
Liljeberg, the Court considered a judge’s fiduciary interest
in litigation over which he was presiding, id. at 866–68—a
far cry from the magistrate judge’s passing reference to the
Fresno Bee article in this case.

We do, however, caution judicial officers against similar
uses of extrajudicial material. The magistrate judge in
Carey’s case served as the trier of fact, and we note that
jurors who sit in that same capacity are directed to “not read,
watch, or listen to any news or media accounts or
commentary about the case or anything to do with it,” and if
they do “happen to read or hear anything touching on [the]
 UNITED STATES V. CAREY 27

case in the media,” must “turn away and report it . . . as soon
as possible.” Manual of Model Criminal Jury Instructions
for the District Courts of the Ninth Circuit § 1.8 (Ninth Cir.
Jury Instructions Comm. 2010). The American Bar
Association places similar restrictions on judges. See Model
Code of Judicial Conduct r. 2.9(C) (Am. Bar Ass’n 2014)
(“A judge shall not investigate facts in a matter
independently, and shall consider only the evidence
presented and any facts that may properly be judicially
noticed.”). So, although we conclude that the magistrate
judge avoided the appearance of bias in this case, we
admonish him in the future to be more circumspect in
referencing or considering facts not properly admitted into
evidence.

CONCLUSION

We conclude that Carey had the burden of proving
§ 2.17(a)(3)’s permit exception, and that the district court
did not abuse its discretion when it determined that the
magistrate judge did not need to recuse himself after reading
the Fresno Bee article.

AFFIRMED.