                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 17-30059
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   9:16-cr-00032-DLC-1

BRIAN F. CHARETTE,
         Defendant-Appellant.              OPINION



      Appeal from the United States District Court
              for the District of Montana
      Dana L. Christensen, Chief Judge, Presiding

        Argued and Submitted March 29, 2018
              Univ. of Idaho Moscow

                    Filed June 26, 2018

     Before: Richard C. Tallman, N. Randy Smith,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Tallman
2                UNITED STATES V. CHARETTE

                          SUMMARY *


                          Criminal Law

    The panel affirmed in part and reversed in part the
district court’s judgment, vacated the defendant’s conviction
for taking a grizzly bear in violation of the Endangered
Species Act, and remanded for retrial.

    The panel held that the plain language and legislative
history of the Endangered Species Act make clear that
permits or other exemptions are affirmative defenses, not
elements of the crime, and that the lower court therefore
improperly placed on the Government the burden of proving
the nonexistence of a permit. Because the defendant
presented no evidence at trial that he possessed a permit, the
panel rejected his argument for reversal on this issue.

    Following United States v. Clavette, 135 F.3d 1308 (9th
Cir. 1998), and United States v. Wallen, 874 F.3d 620 (9th
Cir. 2017), the panel rejected the defendant’s contention that
the “custodial/fines/restitution/supervision penalties” for the
petty offense of taking a grizzly bear are so severe that he
deserves a jury trial under the Sixth Amendment.

    The panel held that the trial court erred in applying an
“objectively reasonable” standard rather than a subjective-
belief standard to the defendant’s self-defense evidence.
The panel held that because the defendant elected not to
testify after the trial court explicitly rejected a subjective


    *
      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. CHARETTE                    3

standard, the trial court’s misstatement of the self-defense
standard was not harmless.


                        COUNSEL

John Rhodes (argued), Assistant Federal Defender; Anthony
R. Gallagher, Federal Defender; Federal Defenders of
Montana, Missoula, Montana; for Defendant-Appellant.

Leif M. Johnson (argued), First Assistant United States
Attorney; W. Adam Duerk, Assistant United States
Attorney; Kurt G. Alme, United States Attorney; United
States Attorney’s Office, Billings, Montana; for Plaintiff-
Appellee.


                         OPINION

TALLMAN, Circuit Judge:

    We revisit the irreconcilable tension in the West between
protection of threatened species and their interactions with
humans and livestock. On May 11, 2014, Brian Charette
killed a protected grizzly bear (Ursus arctos horribilis) that
was harassing his horses in a pasture behind his rural home
near Ronan, Montana. Charette claimed that he shot and
killed the bear after it chased his dogs towards where he was
standing and appeared to be climbing the fence into his yard.
Following a bench trial, a United States magistrate judge
convicted Charette of taking the grizzly bear in violation of
the Endangered Species Act (“ESA”), 16 U.S.C.
§§ 1538(a)(1)(G),        1540(b)(1),     and     50    C.F.R.
§ 17.40(b)(1)(i)(A).       The district court subsequently
affirmed that conviction. Charette contends the lower courts
4              UNITED STATES V. CHARETTE

erred by (1) holding that there was sufficient evidence to
“infer[] that Charette did not have a permit to shoot the
grizzly bear,” (2) denying Charette’s request for a jury trial
because his “Sixth Amendment right . . . was not triggered”
by the offense, and (3) incorrectly analyzing his self-defense
claim under an objective standard, as opposed to the correct
subjective standard. For the following reasons, we affirm in
part, reverse in part, vacate Charette’s conviction, and
remand the case for retrial.

                              I

    On the morning of May 11, 2014, Charette and his now
ex-wife, Jessica, awoke to barking and commotion behind
their home. Looking outside, they spotted an adult grizzly
bear with two yearlings in a pasture beyond their fenced-in
yard, approximately 30 yards from the home. Because the
bears were chasing their horses, Charette went downstairs,
grabbed his .270-caliber rifle, and went outside. Then,
according to Jessica, Charette shot one of the bears after it
stood on its hind legs near the fence. During trial, Tribal
Investigator Michael McElderry testified that Charette said
“he shot that bear because it was chasing [his] horses” and it
“appeared to be climbing the fence.” Charette’s stepfather,
Raymond Carl, was also present that morning, gardening on
the other side of the property approximately 100 yards away.
Carl testified that, after he heard two “warning” shots, he
saw one bear chasing a dog towards the home, and then
watched a final, third shot kill the bear.

    After shooting the bear, Charette and a friend, Jim
Inman, used a pickup truck to scare off the two other bears.
Then, “[t]hey attached the [dead] bear to the pickup and drug
it up to the upper field away from the property,” where they
buried it. At no point prior to being contacted by law
enforcement did Charette report the shooting “because he
                UNITED STATES V. CHARETTE                    5

did not want to go through the hassle.” Later investigation
could not locate the carcass.

    In December 2014, after Charette and his wife divorced,
her then-boyfriend contacted law enforcement to report the
shooting. On December 8, Tribal Investigator McElderry,
Montana Game Warden Ron Howell, and U.S. Fish and
Wildlife Service (“FWS”) Special Agent Brian Lakes
interviewed Charette, who initially denied shooting the bear.
Once Agent Lakes informed Charette of the serious nature
of the ESA federal investigation, Charette admitted to
shooting it. Charette never told investigators—nor did the
investigators ask—whether he fired in self-defense.
Following a subsequent interview, Charette submitted a
signed affidavit explaining in his own words what happened.
He stated that the bears were initially chasing the horses, but
one of the bears began to chase his dogs back towards the
house. As the dogs came into the yard, the bear followed
after, and he shot the bear.

    On November 2, 2015, the Government charged
Charette with one count of unlawfully taking a threatened
species in violation of 16 U.S.C. §§ 1538(a)(1)(G),
1540(b)(1), and 50 C.F.R. § 17.40(b)(1)(i)(A). Throughout
the case Charette maintained that he acted in self-defense.
He did try twice to change his plea to guilty, admitting under
oath that he had no permit to kill a grizzly bear. The
magistrate judge, however, refused to accept his guilty plea
because Charette would not admit that he “did . . . not act in
self-defense or in defense of others in shooting and killing
that bear.” During the plea colloquy, Charette stated that he
“didn’t shoot [the bear] because it was chasing the horses.”
Rather he stated, “I shot it because it was running towards
me and chasing the dogs that are there to keep . . . the bears
6              UNITED STATES V. CHARETTE

out of my immediate backyard.” The magistrate judge found
Charette guilty on May 19, 2016, following a bench trial.

   Charette filed a motion for acquittal on May 20, 2016,
which the magistrate judge summarily denied. On July 29,
2016, after Charette appealed his conviction to the district
court, that court affirmed the magistrate judge’s ruling.
Charette timely filed his notice of appeal on March 28, 2017,
and we have jurisdiction under 28 U.S.C. § 1291.

                              II

     Whether there is sufficient evidence to sustain a
conviction is a question of law reviewed de novo. United
States v. Clavette, 135 F.3d 1308, 1311 (9th Cir. 1998).
Sufficient evidence supports a conviction if “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Chung,
659 F.3d 815, 823 (9th Cir. 2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). If the district court’s
factual findings were in error, then we must determine
whether the error was harmless. 28 U.S.C. § 2111. A
defendant’s “entitlement to a jury trial is a question of law,
reviewed de novo.” Clavette, 135 F.3d at 1309.

    We review whether the trial court “misstated an element
of the crime” de novo. United States v. McKittrick, 142 F.3d
1170, 1176 (9th Cir. 1998). A factfinder’s “misconception
of an essential element of the crime charged” is “subject to
harmless error analysis.” United States v. Wallen, 874 F.3d
620, 632 (9th Cir. 2017) (citations and internal quotations
omitted).
                   UNITED STATES V. CHARETTE                             7

                                   III

    The ESA is designed “to provide a program for the
conservation of . . . endangered species and threatened
species[.]” 16 U.S.C. § 1531(b). The Secretary of the
Interior is tasked by Congress with promulgating and
enforcing regulations to protect threatened species,
16 U.S.C. §§ 1533(d), 1540(f), and the Secretary in turn has
delegated that authority to FWS, 50 C.F.R. § 402.01(b).
Congress specified in 16 U.S.C. § 1538(a)(1)(G) that “it is
unlawful for any person . . . to . . . violate any regulation
pertaining . . . to any threatened species of fish or
wildlife[.]”1 Under regulations authorized by the enabling
act, FWS has concluded that for the protection of the species
“no person shall take any grizzly bear in the 48 conterminous
states of the United States” except for those takings 2




    1
      Section 1540(b)(3) provides that a defendant shall not be subject
to prosecution for violating the ESA “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.” The
regulation, however, provides for self-defense (as it relates to taking
grizzly bears) only if the taking is reported within five days. 50 C.F.R.
§ 17.40(b)(1)(i)(B) (“Grizzly bears may be taken in self-defense or in
defense of others, but such taking shall be reported by the individual who
has taken the bear or his designee within 5 days of occurrence[.]”).
Because the difference between the statute and the regulation is not
before us, we express no opinion on the interaction between these two
provisions.
    2
     “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).
8               UNITED STATES V. CHARETTE

explicitly authorized under certain exemptions or in self-
defense. See 50 C.F.R. § 17.40(b)(1)(i).

                              A

    Charette first asserts that there was insufficient evidence
to prove beyond a reasonable doubt that he did not possess a
taking permit. “Under a sufficiency of the evidence inquiry,
circumstantial evidence and inferences drawn from it may be
sufficient to sustain a conviction, but mere suspicion or
speculation cannot be the basis for creation of logical
inferences.” United States v. Lindsey, 634 F.3d 541, 552
(9th Cir. 2011) (quoting United States v. Bennett, 621 F.3d
1131, 1139 (9th Cir. 2010)) (internal quotation marks and
alterations omitted). Noting that the Government never
asked Charette during its investigation if he had a permit or
provided direct evidence he did not, we assume without
deciding that the district court erred when it inferred proof
of Charette’s lack of a taking permit. However, any such
error was harmless if the Government was not actually
required to prove that Charette lacked a permit. See Neder
v. United States, 527 U.S. 1, 9–10 (1999). Thus, we first turn
to the elements of a grizzly bear taking under our case law
and § 17.40(b).

    Clavette did not require that we decide the elements of
taking a grizzly bear, but it did state that

       the Government must prove, beyond a
       reasonable doubt, that:

       (1) Clavette knowingly killed a bear;

       (2) the bear was a grizzly;
                UNITED STATES V. CHARETTE                      9

        (3) Clavette had no permit from [FWS] to kill
        a grizzly bear; and

        (4) Clavette did not act in self-defense or in
        the defense of others.

135 F.3d at 1311. This recitation of § 17.40(b)’s elements
has been repeated by us and lower courts within our circuit.
See Wallen, 874 F.3d at 627; WildEarth Guardians v. U.S.
Dep’t of Justice, 283 F. Supp. 3d 783, 806 (D. Ariz. 2017).
In Clavette, however, “[t]here [wa]s no dispute that Clavette
knowingly killed a grizzly bear without first obtaining a
permit from [FWS],” and so we analyzed “[t]he only issue
at trial[, which] was whether he acted in self-defense or in
defense of his wife.” 135 F.3d at 1311. Specifically, the
Clavette panel decided whether the evidence was sufficient
to show Clavette had acted in self-defense or defense of
others. Id. at 1311. And because the Clavette panel’s
inclusion of the defendant’s lack of a permit as an “element
of the offense was unnecessary to its holding,” we consider
this recitation “mere dicta,” by which we are not bound. See
United States v. Henderson, 961 F.2d 880, 882 (9th Cir.
1992) (citing Ruff v. Sullivan, 907 F.2d 915, 918 (9th Cir.
1990)); see also Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466,
1472–73 (9th Cir. 1995) (rejecting statements not necessary
to a prior court’s decision as dicta).

    “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.” Liparota v.
United States, 471 U.S. 419, 424 (1985) (citing United States
v. Hudson, 7 Cranch 32 (1812)). To determine the elements
of a crime, “the focus of our inquiry is the intent of
Congress.” United States v. Nguyen, 73 F.3d 887, 890 (9th
Cir. 1995). We “look to the statute’s language, structure,
10             UNITED STATES V. CHARETTE

subject matter, context, and history—factors that typically
help courts determine a statute’s objectives and thereby
illuminate its text.” Almendarez-Torres v. United States,
523 U.S. 224, 228 (1998).

    The plain language and legislative history of the ESA
make clear that permits or other exemptions are affirmative
defenses, not elements of the crime itself. Section
17.40(b)(1)(i)(A) states that “[e]xcept 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.” Accordingly, this language indicates that
a defendant violates the regulation if the defendant
(1) knowingly (2) takes a grizzly bear (3) in the
48 conterminous states of the United States. See In re
Winship, 397 U.S. 358, 364 (1970). In addition to the
exceptions listed in § 17.40(b)(1)(i)(B)–(F), an individual
may apply for and receive a permit for the incidental taking
of a grizzly bear after submitting the required form and a
conservation plan under 50 C.F.R. § 17.32(b). We are
tasked with determining whether the government or the
defendant bears the burden of proof regarding the exception
in § 17.32(b).

    Fortunately, Congress explicitly addressed who bears the
burden of proving that a valid permit was in force, and thus
whether the exemption in § 17.32(b) is an element or an
affirmative defense. Under § 1539(g) of the ESA, Congress
mandates that

       [i]n connection with any action alleging a
       violation of section 1538 of this title, any
       person claiming the benefit of any exemption
       or permit under [the ESA] shall have the
       burden of proving that the exemption or
       permit is applicable, has been granted, and
                   UNITED STATES V. CHARETTE                            11

         was valid and in force at the time of the
         alleged violation.

The House Report on this subsection clarified congressional
intent further. “Subsection (g) . . . provided for an
affirmative defense where a prima facie violation of the Act
is established whereby the holder must show that the permit
or exemption is applicable, has been granted, and is valid and
in force.” H.R. Rep. 94-823, at 6 (1976). 3

    Therefore, because “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally
required,” Patterson v. New York, 432 U.S. 197, 210 (1977),
and Congress has explicitly mandated that “any person
claiming the benefit of any . . . permit under this chapter
shall have the burden of proving that the . . . permit is
applicable,” § 1539(g), Charette should have borne the
burden of proving the existence of a valid permit.
Accordingly, the lower court erred in its formulation of the
elements of the crime, improperly placing the burden of
proving the nonexistence of a permit on the Government.
Therefore, because Charette presented no evidence at trial
that he possessed a permit, we reject Charette’s argument for
reversal on this issue. 4



    3
       In the same House Report, Robert B. Ellert, Acting General
Counsel of the U.S. Department of the Interior (“DOI”), stated that “[the
DOI] understand[s] that the [subsection] . . . is designed to ensure that in
order to prove an offense under the Act, the Government is not required
to prove that no exemption applies and that no permit was granted under
the Act.” H.R. Rep. 94-823, at 10 (1976).
     4
       We may affirm on any grounds supported by the record. Johnson
v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
12              UNITED STATES V. CHARETTE

                               B

    Charette next contends that his Sixth Amendment right
to a jury trial was violated because, although the taking of a
grizzly bear is presumptively a petty offense, “the
custodial/fines/restitution/supervision penalties are so
severe that [he] deserves a jury trial.” As Charette
acknowledges, however, we have already settled that
question. Clavette, 135 F.3d at 1310–11 (“We now hold that
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 or threatened species is
a serious offense.”). And we recently reaffirmed that
decision. Wallen, 874 F.3d at 626–27 (holding that the
defendant “was not entitled to a jury trial” on his grizzly bear
taking charge). Therefore, following the holdings in
Clavette and Wallen, we affirm the lower court rulings that
Charette was not entitled to a jury trial.

                               C

    Finally, Charette asserts the trial court erred when it
analyzed whether he acted in self-defense using an
“objectively reasonable” instead of a “subjectively
reasonable” standard. Under 16 U.S.C. § 1540(b)(3),

       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. (emphasis
       added).
                  UNITED STATES V. CHARETTE                           13

See also § 17.40(b)(1)(i)(B) (“Grizzly bears may be taken in
self-defense or in defense of others, but such taking shall be
reported by the individual who has taken the bear or his
designee within 5 days of occurrence[.]”). 5 We recently
interpreted § 1540(b)(3) in Wallen, holding that the “good
faith belief” standard “requires only a subjective belief in the
need to protect oneself or others,” as opposed to an
“objectively reasonable belief.” 874 F.3d at 628. The
subjective standard “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.” Id. at 623. Therefore, the trial court erred in
applying an objectively reasonable standard to Charette’s
self-defense evidence. 6

    Because the lower court erred in applying an objective
standard to Charette’s self-defense claim, we next decide
whether that error was harmless. Wallen, 874 F.3d at 632.
Here, the trial court explicitly rejected a subjective standard,

    5
      We note again that although § 17.40(b)(1)(i)(B) requires reporting
the taking within five days, § 1540(b)(3) does not.
    6
      We have stated in the past that the lack of a viable self-defense
claim is an element of the crime of taking a grizzly bear, which would
ordinarily place the burden of production and persuasion on the
government. See, e.g., Clavette, 135 F.3d at 1311 (stating that the
government must prove beyond a reasonable doubt that “the defendant
did not act in self-defense or in defense of others”); Wallen, 874 F.3d at
627 (repeating the same). Our prior case law, however, also
acknowledges a shift in the burden of proof from the defendant to the
government, assuming the defendant states a colorable claim of self-
defense. Clavette, 135 F.3d at 1311 (“Because [the defendant] presented
evidence that he acted in self-defense, the Government must disprove
self-defense beyond a reasonable doubt.”); see also Wallen, 874 F.3d at
634 n.3. Because neither party presented arguments regarding this issue,
we need not decide it in light of the remand.
14              UNITED STATES V. CHARETTE

and so Charette “elected not to testify under [defense
counsel’s] advice that the Court’s not going to consider
that.” Therefore, because Charette chose to forego testifying
as he believed the trial court (sitting as factfinder) would not
consider his subjective belief in the need for self-defense, the
trial court’s misstatement of the self-defense standard was
not harmless. It is difficult to fathom how Charette could
raise an effective self-defense claim without testifying as to
his mental state when he decided to shoot the bear.
Accordingly, we reverse the district court’s judgment, vacate
Charette’s conviction, and remand for further proceedings.

  AFFIRMED in part, REVERSED                         in   part,
VACATED and REMANDED.
