NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

DAN CALVERT WALLEN, 

Defendant-Appellant.

No. 19-30098 

D.C. No. 

9:15-cr-00011-DLC-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Argued and Submitted June 2, 2020

Portland, Oregon

Before: BERZON, COLLINS, and VANDYKE, Circuit Judges.

Concurrence by Judge VANDYKE

This is the second appeal from a district court order affirming Defendant Dan 

Calvert Wallen’s conviction. We have jurisdiction under 28 U.S.C. § 1291. We

reverse and remand. 

Wallen shot three adolescent grizzly bears.

1

 After a bench trial, the

* This disposition is not appropriate for publication and is not precedent except as provided by 

Ninth Circuit Rule 36-3.

1 Because the parties are familiar with the facts, we recite them here only as necessary.

FILED

JAN 12 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

magistrate judge found Wallen did not act in self-defense and convicted him on 

three counts of unlawfully taking a threatened species. The district court affirmed 

the conviction. On the first appeal this court determined the magistrate judge 

incorrectly applied an objective good faith standard instead of a subjective good 

faith standard when analyzing whether Wallen acted in self-defense. United States 

v. Wallen, 874 F.3d 620, 632 (9th Cir. 2017). The case was remanded.

Wallen was tried again, on the same record, before the same magistrate 

judge. This time, the magistrate judge rejected his self-defense claim on the basis 

that “Wallen’s lack of credibility and inconsistent statements demonstrate that he 

did not in good faith believe shooting the bears was necessary to protect himself or 

his family.” United States v. Wallen, 2018 WL 3360766, at *6 (D. Mont. July 10,

2018) (emphasis added). Wallen was convicted on all three counts a second time. 

The district court affirmed Wallen’s conviction. This appeal followed. 

On appeal from the district court’s order affirming a misdemeanor 

conviction, we perform a second tier of appellate review, and we apply to the

magistrate judge’s decision the same standard used by the district court, but without 

any deference to the district court’s conclusion. See Fed. R. Crim. P. 58(g)(2)(D).

We review the magistrate judge’s legal conclusions de novo, as the prior Ninth 
3 

Circuit panel did in the earlier appeal.

2

 See Wallen, 874 F.3d at 623. 

Here, the magistrate judge erred by determining that Wallen’s lack of 

credibility alone was dispositive and rendered other evidence concerning his good

faith irrelevant. Specifically, after concluding that Wallen lacked credibility, the 

magistrate judge improperly disregarded other relevant evidence because that 

“evidence is not relevant to Wallen’s credibility.” Wallen, 2018 WL 3360766, at 

*6. That was error. See Wallen, 874 F.3d at 632 (“We emphasize that, although 

the ultimate question is whether a defendant held a subjective good faith belief, the 

objective reasonableness (or unreasonableness) of a claimed belief bears directly 

on whether that belief was held in good faith.”). The magistrate judge committed 

legal error by expressly disregarding other evidence that was relevant to the 

objective reasonableness of Wallen’s claim of self-defense—and therefore to his 

subjective belief—just because it wasn’t relevant to his credibility. The magistrate

judge should have considered whether, despite Wallen’s credibility issues, this 

other evidence raised a reasonable doubt as to his subjective good faith.

Reviewing the sufficiency of the evidence de novo, we conclude that there is 

sufficient evidence to convict. See United States v. Clavette, 135 F.3d 1308, 1311 

(9th Cir. 1998). Wallen’s original account to the investigator on the night of the 

2 While the precise standard of review we apply to the magistrate judge’s findings of fact in a case 

like this is not settled law in this circuit, we do not reach the magistrate judge’s factual 

determinations because this case turns on a legal error.
4 

shootings—that “he had found a single bear eating chickens in his coop and fired 

two shots to frighten it away” and that “the bear was walking away as he fired,” 

Wallen, 874 F.3d at 624—is enough to constitute sufficient evidence for a rational 

fact finder to conclude that he shot the bear to frighten it away from eating his 

chickens, not because he perceived himself or his family to be in immediate danger. 

See Jackson v. Virginia, 443 U.S. 307, 318–19 & n.8 (1979). And the many 

changes in Wallen’s story, see Wallen, 874 F.3d at 633; see also Wallen, 2018 WL 

3360766, at *2–3, could surely support a rational fact finder’s conclusion that the 

story Wallen told at trial, in which first two and then one bears charged him, in 

separate instances, when he fired, see id. at *3, was not true, undermining the 

likelihood that he harbored the relevant subjective belief that he needed to shoot the 

bears to protect himself or others from imminent harm. See Wallen, 874 F.3d at 

628, 632.

The magistrate judge’s narrow legal error was to treat the well-supported

adverse credibility finding as dispositive, rejecting other evidence—for example,

the perceptions of Wallen’s wife—only as not pertinent to Wallen’s credibility,

without considering whether it was still pertinent to Wallen’s subjective belief. See

Wallen, 2018 WL 3360766, at *6. On remand, the trier of fact could not convict

based on an adverse credibility finding without then completing the analysis by

connecting that finding to the elements of the good faith defense, including taking
5 

account of evidence as to Wallen’s state of mind other than his own statements.

REVERSED and REMANDED. 
United States v. Wallen

19-30098

VANDYKE, Circuit Judge, concurring. 

I agree with the memorandum disposition, including its conclusion that there 

is sufficient evidence to convict Wallen on this record. I write separately because of 

a pragmatic concern unique to this case, its procedural history, and the fact that 

Wallen is not entitled to a jury trial on remand under our precedent. 

In sharp contrast to the extremely demanding beyond-a-reasonable-doubt

burden of proof that the trier of fact is required to apply in convicting a criminal 

defendant, the sufficiency-of-evidence standard that we apply on appeal after

conviction is a relatively easy standard to meet because of the appropriate deference 

allowed once someone has already been convicted—usually by a jury of his peers. 

In ordering remand for legal error when a jury will be the finder of fact, there is little 

risk that the court of appeals’ sufficiency determination will be misinterpreted or 

somehow misapplied by a new jury as a license to simply reconvict the criminal 

defendant without properly applying the demanding legal standard or fully 

considering all the relevant facts in the case. But when, like here, a judge is sitting 

as a finder of fact, there is a practical risk that the judge might, perhaps even 

unconsciously, take our sufficiency conclusion as a license to summarily reconvict 

the defendant on remand and thus fail to give the criminal defendant the full process

demanded by our laws and Constitution. 

FILED

JAN 12 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

That would obviously be improper, but the case history here gives me special 

concern for that possibility. As I read Judge Christensen’s most recent decision in 

this case, he properly considered objective evidence as evidence of good faith and 

he properly said that credibility cannot independently serve as a basis to meet the 

government’s burden of proof. Judge Christensen observed “that the threat to

Wallen and any family present during the encounters was likely immediate, that 

Wallen did not provoke the conflict with the bears, and that the amount of force 

Wallen used ... was not excessive.” United States v. Wallen, 2019 WL 1858393, at 

*4 (D. Mont. Apr. 25, 2019). He also said, “the record clearly reflects that [Wallen] 

was reasonably fearful.” Id. at *5. But then Judge Christensen put too much weight 

on the magistrate judge’s credibility finding—much like the magistrate judge’s legal 

error noted by the majority—and he “significant[ly]” relied on a misstatement of 

fact.

1

 See id.

Given this case’s history and multiple remands, I don’t think it hurts to

emphasize what should be obvious: if Wallen is retried for a third time, the trier of

1 The government misspoke by telling the district court and our court that on the 

night of the bear shooting, Wallen never said that he was fearful, felt threatened, or 

that his family was threatened by the bears when he shot them. The record shows 

that the local game warden repeatedly testified that Wallen told him on the night of 

the shooting that “he was afraid of [the bears]” and afraid for “[h]is children and the 

neighbors that were playing in the yard.” In his review of the magistrate judge’s 

decision, Judge Christensen relied on the government’s misstatement as a 

“significant” reason for his decision affirming Wallen’s conviction. 
3

fact must rigorously apply the demanding standard of proof for a criminal defendant, 

and not simply rely on our sufficient evidence determination as a license to 

summarily reconvict him.