FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AUSTIN LEE CAREY,

Defendant-Appellant.

No. 18-10188

D.C. No.

1:17-cr-00252-LJO-1

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 DefendantAppellant.

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 oneday 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 casein-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 wellestablished 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. MurguiaRodriguez, 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.