In March the U.S. Ninth Circuit Court of Appeals will consider the appeal of a man convicted of killing three grizzly bears that had been killing his chickens in the Ferndale area in May 2014.
Oral arguments in the case of Dan Calvert Wallen, 56, are set to be heard at the federal Pioneer Courthouse in Portland, Oregon on March 8 at 9 a.m.
Wallen was found guilty in a bench trial by a single judge in May 2015 of killing three grizzly bears a year earlier in the Ferndale area with a .22 rifle. The bears had been getting into his chicken coop.
His defense counsel argues that the case should have been heard by a jury and that Wallen’s claims of self-defense should have been considered.
Under federal law, lone judges can consider misdemeanor cases in federal court in which a defendant faces “petty” consequences, which are defined as a maximum sentence of six months of incarceration and a fine of up to $5,000. Wallen’s attorney argues that he should have been granted a trial by a jury of his peers because his sentence – $15,000 in restitution and three years probation – was beyond the measure of “petty” consequences.
“Here, the custodial/fines/restitution/supervision penalties are so severe that Wallen deserves a jury trial,” wrote John Rhodes, of the Federal Defenders of Montana, in the appeal. “The maximum fine is $25,000 per count. And the government values restitution at $10,000 per bear.”
Rhodes also argues that Wallen had a good case for self-defense. Federal law requires that violators of the Endangered Species Act be found to not have “a good faith belief” that he or she is acting to protect himself, herself or others from bodily harm.
According to the appeal in an affidavit Wallen wrote that, “I was fearful for myself and my family.”
“The district court ignored it,” Rhodes wrote of the affidavit. “And the investigating agent never questioned Wallen about fear, even after he wrote out the affidavit.”
Rhodes argued that even if the court doubted Wallen’s testimony, others who spoke at trial established the bears, which Wallen claimed were 20-30 feet away when he fired the final shots, were a threat.
“Numerous neighbors testified of being scared of the bears,” Rhodes wrote. “Witnesses or defendants can lack credibility and still have a subjective good faith fear of wild animals, particularly three grizzly bears that return to their property four times in less than 24 hours, including three times when themselves and/or family members are outside of their home, where the bears speedily approached them.”
The prosecution has countered Rhodes’ arguments in briefs and supported the judge’s guilty verdict.
“This determination was based on factual findings that Wallen’s testimony that he acted in self-defense was not credible,” Assistant U.S. Attorney Megan L. Dishong wrote. “The trial court noted that ‘Wallen has given three accounts of the events’ surrounding the shooting of the bears.”
The federal government also argues that it is well established through case law that a single count of an Endangered Species Act violation does not warrant a jury trial and that Wallen should not have been given a trial simply because the cumulative potential punishment for the three charges he was convicted of are in excess of what is typically considered “petty.”
Wallen asks for a jury trial as remedy in the case.
Reporter Megan Strickland can be reached at 758-4459 or firstname.lastname@example.org.