FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

U NITED S TATES OF A MERICA
, Plaintiff

- Appellee

,

v.

A USTIN L EE C AREY
, 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 U NITED S TATES V

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

COUNSEL

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

Appel l ant.

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.U NITED S TATES V

. C AREY 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 misd emeanor offenses stemming from an unlawful BASE jump. Following a one

day bench trial, a magistrate judge found Carey guilty on
both counts.

Carey now appeals his conviction, contending that the government failed to prove each element of 36 C.F.R. § 2.17( a)(3) beyond a reasonable doubt, and that the magistrate judge was required to recuse himself after being exposed to a potentially prejudicial news article. We
conclude that § 2.17(a)(3)’s permit exception is an affirmative defense for which Carey, not th e 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, the4 U NITED S TATES V

. C AREY

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 Car ey 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 I n 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 re fers 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 T ower, 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).U NITED S TATES V

. C AREY 5

that “[a]t trial, [it] did not offer direct evidence in its case

in

- chief that Carey lack ed 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 g overnment 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 U NITED S TATES V

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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 o f 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 Ci r. 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 th e 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 aU NITED S TATES V

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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 bee n 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 dis pute 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 tha t 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 gove rnment 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 U NITED S TATES V

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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 pe rmit. “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 Lipar ota 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 d ecisions 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 orU NITED S TATES V

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transit over or through the public lands:
Pr ovided, 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
i ndictment 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
affirmativ e 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 doing10 U NITED S TATES V

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so has illuminated the situations where its rule is appropriately applied. See, e.g.

, United States v. Gu ess , 629 F.2d 573, 576 (9th Cir. 1980) (referencing “[t]he well

established rule [] that a defendant who relies upon an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has
the burden of establishing and showing that he comes within the exception” (quoting United States v. Henry , 615 F.2d 1223, 1234

– 35 (9th Cir. 1980))).

B. Vuitch

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

- McKelvey case.

There, the statute at issue read,

Whoever .

. . procures or produces .

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

Id. at 67

– 68. The Court rejected the argument that “the statute places the burden of persuasion on the defendant o nce 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

prov e that the defendant is not within the exception.” Id.

at 69

– 70.U NITED S TATES V

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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 Vu itch ,” 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” bec ause “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 defendan t, 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 U NITED S TATES V

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since, contrary to Carey’s position, the decisions describe different circumstances, and are therefore compatible. As the Eleventh Circuit has explained, “Both the Vuitch a nd 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

Congres s 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 proo f.

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, b y 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.U NITED S TATES V

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From a purely syntactical standpoint, the statute at issue
here is di stinguishable 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 out lining 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
retriev ing 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. § 17.4 0(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 expli citly 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 o f 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 defense14 U NITED S TATES V

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We conclude that this purely syntactical approach is somewhat revealing, but is not dispositive. Either statute
could be theore tically 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

sta tute, 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
define d 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.U NITED S TATES V

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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 18 2, 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 note s,

[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 ex ception 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 broadl y prohibits a set of activities, and then offers a limited exception, which is evidence that the exception should be construed as an affirmative defense16 U NITED S TATES V

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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 agr ee 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) . C arey 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 app licable 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) (c oncluding 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. K aluna , 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 n ot 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.2dU NITED S TATES V

. C AREY 17

In response, Carey maintains that “there is no basis upon
which one could conclude t hat 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 extens ive 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 decisio n, 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 hundred s 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 thi s 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 U NITED S TATES V

. C AREY

Because abortions were authorized only in

m ore 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
le gislature 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 (footnot e 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 medic alU NITED S TATES V

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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 t he 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 base line
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
controll ed 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 th e 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 register ed 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
nonauthorizati on] 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)); see20 U NITED S TATES V

. C AREY

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 readin g 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 superintende nt’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 jum ping

— “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 Are as 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 sh e 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 the ir patients, we cannot similarly assume thatU NITED S TATES V

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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 pre sumption 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 narro w; 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 indi cates 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 magi strate 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 Care y notes, the22 U NITED S TATES V

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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
hav e 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, an d 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 forfei ted the issue, see United States v. Murguia

Rodriguez , 815 F.3d 566, 574 (9th Cir. 2016) (“Without a forfeited error, plain error does not apply.”)

— we will review
the district court’s decision on the recusal issue for abuse of
discretion. See McTiernan , 6 95 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
di squalify himself in any proceeding in which hisU NITED S TATES V

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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 reaso nably 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 we igh 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 ind icated 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/new s/local/ article166303332.html. The article included Carey’s24 U NITED S TATES V

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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 C ourt’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 ofU NITED S TATES V

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

The order contained no other apparent references, allusion s, 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 p rejudicial

— 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 di strict 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 o r 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 pre judicial 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, i nterconnected, 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 (“The26 U NITED S TATES V

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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 (albei t 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 c ase 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 cou rt’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 me dia 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]U NITED S TATES V

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case in the media,” must “turn away and report it .

. . as soon as possible.” Manual of Model Criminal Jury Instruction s 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. S ee Model Code of Judicial Conduct r. 2.9(C) (Am. Bar Ass’n 2014) (“A judge shall not inve stigate 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 h im 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 disc retion when it determined that the magistrate judge did not need to recuse himself after reading
the Fresno Bee article.

AFFIRMED.