Most duck hunters in North Carolina are familiar with the baiting charges that have been filed against several large waterfowl hunting clubs along the coast. The “supplemental feeding” of these birds to attract them into the shooting range of the member’s shotguns has been a common practice that’s been going on since duck and goose hunting became a major sport along our coast. Game wardens nicknamed the coast of North Carolina “The Gold Coast” because of the golden glow of the corn that was used to attract waterfowl to the area each winter.
For the information of the novice to the baiting of waterfowl controversy, it’s not against the law to feed migratory waterfowl. It is against the law to take (shoot or attempt to shoot) these birds over or with the aid of bait. If the game wardens could show that the hunters who were charged with baiting violations either knew or should have known that they were violating the law by using bait, the fines and sentences were severe.
While the North Carolina law on shooting waterfowl on or with the aid of bait draws a well defined limit of responsibility of knowing whether or not bait is present within a 300 yard area around the hunting blind, federal laws leave this well defined area open to the subjective opinion of the game warden (federal agent).
Smart waterfowl hunters soon learned to inspect the areas where they were planning to hunt to be sure that someone hadn’t placed bait in the immediate area. In spite of state laws prohibiting the harassment of hunters some anti-hunting organizations still use the placing of bait to stop sportsmen from using their blinds.
One hunter who had given up waterfowl hunting because he was afraid that he might inadvertently get into a baiting situation recently said, “It ain’t worth it anymore. I can’t afford to hire attorneys to fight the federal attorneys who are paid with our tax money.”
With heavy fines, loss of hunting privileges for a year or more hanging over their heads, it wasn’t unusual for some “well-heeled” waterfowlers who were charged with baiting violations to hire a good attorney to help fight the charges in court. Others, even though they felt that they were innocent, simply paid the fine, suffered the loss of hunting privileges and embarrassment of being on probation and hoped that the incident would soon be forgotten.
One of the noted baiting cases of 2008 involved Mr. James Johnson of Virginia Beach, VA, several of his guests and two of his employees of Coastland Corporation, which owns several thousand acres of marsh and woodlands along the coast of N.C. In this particular case Mr. Johnson plead guilty to the charges and received a substantial fine, loss of hunting privileges for one year and probation for one year.
This looks straight forward enough on the surface but when Mr. Johnson’s Attorney, Joe Cheshire from Raleigh, asked that Mr. Johnson’s sentence be adjusted to comply with a similar sentence that was imposed on another hunting club it was denied when it appeared that U.S. District Court Judge Terrence Boyle couldn’t remember that case even though it took place in his courtroom.
In that case The Jones Island Hunting Club in Pamlico County was not closed down for hunting and no individual was charged. That club got a corporate plea and was never prevented from hunting for a period of time.
In a recent press release it was announced that Attorney Walter D. Kelley has filed an official complaint to Mary Patrice Brown, Acting Counsel with the U.S. Department of Justice against both AUSA Kocher and Agent Baker.
Walter D. Kelley, Jr., himself a former U.S. District Court Judge and now a lawyer with the Jones Day Law Firm in Washington, DC, has filed a formal complaint with the Department of Justice Office of Professional Responsibility asking for disciplinary action and punishment against Assistant U.S. Attorney Barbara Kocher and U.S. Fish and Wildlife Agent Jack Baker for giving and abetting false statements that led to the questionable convictions and the improper sentencing of several defendants accused of violation federal duck hunting laws. The letter also requests that the convictions and sentences be vacated.
Kelley states that Attorney Kocher lied to Judge Terrence Boyle during the sentencing of James Johnson at a hearing in Federal Court in Elizabeth City, North Carolina in March of 2008 and that Federal Agent Baker, knowing the truth, remained silent while standing before the Judge. Johnson, who was hunting for ducks on land he and his company own in Pamlico County in January of 2007, was convicted along with two guest of “shooting over bait.”
The alleged bait (corn) was more than 600 yards away from his blind, well beyond the 300-yard NC state law limit. The federal law is a more subjective matter of opinion and the law relies in part on the opinion of the federal prosecutor and federal game warden.
Mr. Johnson agreed to plead guilty on advice of his attorney because he did not anticipate, according to Kelley, that Attorney Kocher and Federal Agent Baker would lie about another case prosecuted by Attorney Kocher and Federal Agent Baker in Judge Boyle’s court.
In that case, United States v. Jones Island Club, Inc., Judge Boyle accepted a corporate plea that included a fine but no loss of hunting privileges by anyone in the club. Assistant U.S. Attorney Kocher was the prosecutor and Jack Baker was the Federal Agent in the Jones Island case.
In court for Mr. Johnson’s sentencing, however Attorney Kocher told Judge Boyle that he had shut down the Jones Island Club’s hunting privileges for two years. Baker was standing next to Kocher and failed to correct her misstatement. After hearing it, however, Judge Boyle then sentenced Johnson to a fine, the loss of hunting privileges for a year and other restrictions.
In his letter to the Department of Justice, Kelley says that Kocher’s “falsehood was material as it gave Judge Boyle the misimpression that taking away Mr. Johnson’s hunting privileges was necessary in order to avoid sentencing disparity” with the Jones Island case. Kelley further states that “making false representations in fact…violates the law, as well as the standards of conduct expected of Assistant United States Attorneys and government agents involved in criminal prosecutions.”
Kelley writes that Johnson’s “personal liberty was taken away by the U.S. government.” Kelley ask for discipline of Kocher and Baker and for the court to “vacate Mr. Johnson’s conviction” as well as those of his guest and two employees of Johnson’s who were assisting in retrieving downed birds that day.
For more information about the Walter D. Kelley letter of complaint to the DOJ, contact Sabrina Zimring of Rubin Communications Group at 757-456-5252 or at Sabrina@rubin communications.com.
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