good morning i'm jon rose from his office of the federal defenders of montana i represent brian charette i would like to reserve two minutes for vital for this case is about the separation of powers the executive branch has failed its burden of it's failed on appeal to comply with procedural rules and now it's asking the judicial branch to bail it out the government offer no evidence that mr shriver did not have a permit to take a grizzly bear  it let me tell you what my problem with their couple of nights circuit cases that seem to say directly that there are four elements to the crime that your client was convicted but it seems to me that in both of those cases the panels were not being asked to decide whether or not the possession of a take permit is either an affirmative defense or an element of the crime when i look at the statutory provision that i asked you both the panel asked you to review prior to your argument here today it clearly says it's an affirmative defense why should we not decide in this case and clarify ninth circuit law that there are only three elements to  taking under title sixteen and that if mr charette wanted to raise the defense that he had a permit it was his burden under the statute to do so and he failed to do so case had no permit that's the problem i'm having it simply wasn't an issue that the panel had to decide then we get back to the separation of powers paul well let me let me approach it a little bit differently they don't need to prove the element about the permit why is that not a harmless error so because of the separation of powers i was just a minute didn't address harmless fare don't aggress separation of powers that's where he started out i think that's a great clarion call for your side but address harmless error this is a harmless error analysis because our most error analysis can should be made as to the elements whether they were proven or claim and so at that particular point in time i'm still saying to myself well i'm saying why is this not a harmless error what what what makes it not harmless  it's not structural water so that is not automatic reversal instead it's a harmless error analysis so even if there wasn't enough evidence why is it not a harmless error if you're going to cut out the per as an element and you're correct but it i guess ok then i'm correct but i guess i'm not cutting it out all i'm saying to you and i'm trying to ask you the very straight question if in fact whether the state proved did or did is harmless error then i don't have to worry about that there's enough and there's enough evidence to convict on the other parts and we can go on now to the self defense theory but i just wanted your question are your answer about that because there's no question that the ex wife was going to testify and your client says well i just well plead guilty there's no question that your client should just he wasn't going to go through the hassle of trying to go through this situation there's no question he first denied then admitted when he was told that he was going to have a false statement penalty that he did this and there's no question that he never said he had a permit and there's no question that after hearing the elements of the prove he never said anything about it he was never born to the limits of what we're going to just a minute and then we go in front of the judge and try to admit his guilt a couple of times without w there is evidence about that the efforts made to find the bear to find where it was buried and we know the date when those efforts were made and it was many weeks later right why would we've got to find that there's harmless there  he should've been held to a subjective standard and he's got what you know alaska we would say is a classic example of a very dangerous circumstance where the dog brings the bear back to the person and somebody gets mauled and that's a pretty common scenario and it's one that alaska has in common with montana  understand that but if you win on that right isn't there still the problem of there's nothing in the record to indicate that this was reported within five days and there's a very strong indication that that was not the case there is nothing in the record regarding reporting one way or the so what day the shot right after shot ruge which is circumstantial evidence that he's trying to hide the fact that he killed the grizzly bear from those who might be inquiring about the shooting very strong self defense defense right there you have a pretty strong fact pattern it's compelling you don't decide findings of fact but is it a compelling shelling effect if i give you that i still run into the problem of he would need to your client elected not to testify we are going to testify because his counsel told him the court would not consider his subjective testimonial self defe know i don't think you can consider those proceedings without violating the right to trial ok i understand but all i'm trying to suggest is is it a harmless fair if your client life would have said well there's no reason for me to tell my story here because it's an objective standard rather than a subjective standard and therefore i won't testify whereas if he didn't know that was a subjective about the burden of proof and i have from alaska i'm with you on the compelling see factual circumstance but if the government if the government took on a burden that wasn't really its burden right and so your client wasn't on notice that was his bur the defendant and he must establish by i apply hundreds of the evidence his belief that he shot in self defense at which point then the government has to respond in some way to self defense the burden is on the government is not on a different case counsel species that empowered the department here to promulgated regulations for violation of which congress said would be a misdemeanor so i mean i'm not sure i buy your soumik to an act of congress that empowers the agency to prescribe regulations to protect this feces for violation of which wise a misdemeanor offense but the agency didn't have to do that the authority to issue rules and regulations to protect natural resources and wildlife and makes it a crime to violate those regulations and i'm struggling to see how the he had no permit so he would in essence have subjected himself to perjury to raise the affirmative defense at trial that's number one number two no but i guess all we're going to again if you're really good if you're really dressing also a question i'm not sure that with the government's burden but even though all the court gave that is the instruction that it was the government's burden it's harmless error because the government didn't have the burden and so therefore we can go past that air right that's true and it is and that's all i was trying to do with that you know my second question was longer there yes let's go to self defense it seems to me that on self defense one good hundred case law suggests that the government had to prove that it wasn't acting in self defense because the government never objected to that instruction that we did not the government never said i don't have the burden to prove that he didn't act in self defense that's true and the government didn't appeal that instruction a isn't that true instead the government appeal it all we do not appeal a so therefore how can the devil is the government suggesting in this particular matter that there's any real problem with this instruction district court actually discussed the elements in it were yes and we did not appeal that word or we were used and in that just like in a normal jury instruction he laid out what your elements were you're going to have to prove it and he determined after going through all of that that you were going to have to prove it and you assume that and you haven't appealed it so why are we here arguing that at all from the government the government either had a duty to prove it or do something to object to it to give an arguer arguments on appeal our position your honor was that there needed to be as as judge home and suggested a threshold showing we presented to the district court the traditional self defense argument that there needs to be some predicate showing that there is a belief in self defense that the government must then disprove it's not clear in the wall in case and it and it certainly is something that deserves clarification  this is just harmless fair yes my problem with that if it is in harmless air in this particular case this defendant went before the judge on two occasions and tried to change his pleading not  did and the court would not allow him to change plea because the court had one idea of what he had to do to change is plea and he had another the court's idea was that it had to be an affective self defense that would be applied to give a statement and he was always under the idea you know i did all of this in self defense and so the court in both times because it was always in his mind subjective and always in the court's mind of ject if said you can't change your police and then we go to trial and when we get to trial then right in the middle of the trial and right in the middle of arguing about this there's this note on page one eleven and i know the government does emphasize throughout this case this morning that mr shred never said hey i did this in self defense and then they get the lawyer so i'm having to myself a hard time seeing how this is a part of this can't be harmless error if he didn't testify because he thought it was going to be objective standard of proof for the subjective clear he didn't put in the record anything about why he didn't report her what he might have done to her order or anything he stood stock with an objective analysis on whether he had self defense and all of his defense as he showed when he went for the police here in twice and as he showed what he was taught to do is attorney i want to tell my story and money story is this bear the bear was over the fence in the pasture the bear turd chased my dogs i gave two warning shots the bear or you're deploying climb the feds thirty feet away and it would not leave and it was climbing the fence that's his testimony now to me if you add to that his subjective idea about that and he gets up and this allowed to testify about that that may overpower what we've got here that's why i'm trying to figure out this can't be harmless error in this situation that's certainly what the court did wall and i would only like to point the court to the record of page sixty six despite so even if he testified he says look i was afraid t the problem is and he didn't or that the problem is he didn't get to give all of his testimony about that report and even if he did he would have been able to rule he would have been able to testify he still did not report why because he didn't want to house him with the all the overall inference that the court made i think that which was safe was that he was hiding this that and that simply goes to whether or not he had a good faith belief that he ever get to explain what this asshole was that he ever get to talk about what his side of the story was you know because the judge said it's all objective i think i agree that the judge made a legal air on that issue and the question then becomes what harm was it to this case and even if i could even have standing back the defendant had the opportunity to say i was scared to death that still would not have been the full defense because he didn't make that report and furthermore i mean the record is clear it is under spewed here he was standing on the back step of his house and now i know that requires a factual inference but simply stepping out of the backs just step of the house would raise a situation where he could simply go back in and he had the opportunity or not it was just trusting that he ought to have to stay at his house to let us horses get run over by a bear or it and the question here then is this really goes to whether it prejudices the defendant to apply that bird now and it does not and for the reasons and i just one of the summarized very quickly he admitted he didn't have a permit so he wouldn't couldn't raise regulations and if i could read from from seventeenth so we can point thirty two these are the the regulations promulgating the permit exception to the taking requirement and in the second circuit sentence of those regulations it says that such permits shall be governed by the provisions of this section unless the special rule the political the wildlife appearing in city forty otherwise provides so our reading of that statute is that the secretary in an acting these permit exceptions actually withdrew grizzly bears and recreated that special rule and it is under that special rule which the district court did touch on where is that is the only authority for taking a player in this case let me ask you a showing then at that point the government does undertake the burden again beyond a reasonable doubt which will show that it is self defense so is that the way it is i think that's the way it is were  this particular situation if the government undertook that burden in the beginning it is no burden that would be any different that it would be made if he'd made a poem in a primary showing up  it probably doesn't make much difference in this case so then really the jury instruction could have been correct even though the government it is a self defense and the government only takes a burden shifts back well and i just to make sure i'm clear here i read section fifteen thirty nine g s to apply to the permit defense or the exemption defense i don't accept i don't believe it applies separately to self defense that's the way i read it the court may disagree and switch that burden but even and the reason i say that is because clearly in most of the self defense cases there is this burden shifting process that is the process that we basically argued to the court when this case open right and in the exemption is the hardship exemption in that section and the permit requirements or those set forth in fifteen thirteen seventeen point three two or the special rule and since we  special rule takes grizzly bears out of permits that's the only place where a permit can be found here and so on are those regulations the only basis for individual human behavior at this time was self defen end seventeen point four zero and that's the i think that's the proper reading of how all these regulations go together and for that reason there is no harm on the permit issue whatsoever and the self defense issue i think really turns on the issue  christian race which is you still have with that we would ask the court  your time one thing i want to clarify on the record and this is in the record mr charette did not say i don't want to report to fish and wildlife i don't want to go through the hassle reporting to fish and wildlife that's a federal agency didn't say i don't want to report to fish and wildlife which could be considered i think you're reading too much into too much jurisdictional knowledge into your current state regardless that's what's in the record that's what the government and what you think you mean with respect to the argument that was raised that there is no way anybody could get in taking permit the government keeps confusing honey with taking an even if hunting permits interfere with with polar bear grizzly bear habitat cars a filing of an environmental impact statement and an assessment of whether or not it's likely that the bear population is going to be injured and so it's wait it's right to even raise all the permit issues i want to say one thing about that i filed my written rule twenty nine motion the day after the trial right after you cannot get a hold of the prosecutor the prosecutor in brief says the judge will the next day which basically precluded the government from raising all these theories it's presenting on appeal the reality was the court ruled three days later at four in the afternoon in the