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Wednesday, 12 August 2015 14:37

Gaming the system: Hunters snared in Operation Something Bruin claim legal proceedings were unjust

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fr bruinBy Katie Reeder • SMN Intern

Hunters accused in a sweeping bear poaching sting in Western North Carolina have turned the tables on wildlife officers and prosecutors, tarnishing an operation that was initially trumpeted as a victorious round-up of rouge hunters.

“They didn’t realize we were going to fight so hard,” said Linda Crisp, who has rallied hunters across the mountains to speak out, her own husband and son among them.

Operation Something Bruin netted 55 people on various hunting charges during a four-year undercover investigation. Now, two-and-a-half years after the arrests, critics of the operation are decrying it as an overreach of power and a conspiracy between the courts and the agencies to rig the system against the hunters. 

“I thought this was America with freedom and justice for all and that you’re innocent until proven guilty, but you’re guilty until proven innocent,” said Celia Stancil, the wife of one of the convicted hunters. 

Lawyers are not so much claiming their clients are innocent victims but that they have been treated unfairly. 

“I’m not saying everyone in here is lily white,” Allyn Stockton, an attorney for some of the hunters, said at a federal oversight hearing into Operation Something Bruin.

Defense attorneys and those charged, however, have questioned the ethics of the officers, prosecutors and judges involved in the cases — as well as whether the hunting violations warrant such a large-scale undercover operation.

“In a nutshell, it’s probably the largest mass misdemeanor operation in the history of law enforcement,” Stockton said.

While the wildlife agencies behind Operation Something Bruin declined to respond to the allegations directly, Acting U.S. Attorney Jill Westmoreland Rose did address accusations of from hunters that the federal court system handed down unjust sentences.

“The notion that prosecutors were selective in choosing a judge or that innocent people were targeted is not only inaccurate but contrary to the facts laid out in court filings and stated in open court,” she said.  “While it is not unusual for those convicted of a crime to proclaim their innocence, it is unfortunate that these individuals continue to misuse the media to fabricate stories where none exist.”

The Smoky Mountain News conducted an investigation and analysis examining these claims. Why were state charges dismissed in such large numbers? Did the wildlife agencies pressure the prosecution and judges to make sure their operation came away with some convictions?

The answers to many of these questions lay in court documents scattered across Western North Carolina county courthouses as well as the archives of the federal courthouse in Asheville.

Here’s what the newspaper’s investigation found:

• The majority of state charges were dismissed. Of the 35 people charged in North Carolina, only nine of them received any convictions. 

• Most of the people whose cases were taken to the federal level ended up with convictions — 24 people were presented to the U.S. Attorney’s Office for prosecutorial review, and 19 were convicted, although many of those were pleas to minor hunting infractions.

• No felony convictions came as a result of the operation. Defendants were only convicted of misdemeanors and petty offenses. 

• Four of the 24 defendants at the federal level had a trial before a jury. 

 

State charges

The majority of state charges were dismissed. Rusty McLean, a Waynesville defense attorney for several of the hunters, pointed to this fact as evidence that the charges were unfounded. 

Only two men went to trial in North Carolina, and McLean was the attorney in both cases. In one case involving a Haywood County man, McLean never presented his own prepared defense.

He made a motion midway through the trial to dismiss the case for a lack of evidence after cross-examining some of the prosecution’s witnesses. The judge granted the motion. 

“That’s almost unheard of,” McLean said.

Many state court judges in other counties began similarly dismissing the cases in their own courts after this.

“Not one state court judge would consider continuing the prosecution of these cases,” McLean said. 

In North Carolina, 35 people were formally charged, resulting in 167 state charges. Local judges dismissed 119 of those charges. Some of these decisions were based on a lack of sufficient evidence to convict. Nine people were convicted of 46 offenses, but 31 of those offenses came from one person.

Eight people faced charges in Georgia — some of them also facing separate charges in North Carolina. 

It is not unusual, however, for law enforcement to bring a suite of charges against a defendant with every expectation some will be dismissed in plea negotiations.

“You see people get loaded up on charges so it gives the prosecutor an opportunity to negotiate and the defense counsel an opportunity to get certain things dismissed,” McLean explained.

But defendants and their families say this system put them in an unfair position, forcing them into a fight they say they never asked for. 

“It’s just not right to charge people and they have to go out and spend (money) for lawyers and then just drop it. That’s ridiculous,” Celia Stancil said. “What can you do? You can’t plead guilty. You gotta defend yourself when they charge you for stuff that you don’t know what you’ve done.” 

Most of the charges were clustered in Graham, Haywood and Macon counties — where nine, 11 and nine people were charged, respectively. Haywood County convicted the most defendants, convicting four people of one charge each. 

Most of the charges were dismissed because the district attorneys and judges involved did not think the officers’ conduct would withstand scrutiny, said McLean.

“I think they were dismissed because they didn’t want to mess with them and they knew it was a bad situation,” he said. 

This was clearly not the outcome wildlife agencies hoped for. 

“They were disappointed to say the least,” McLean said. 

McLean alleged that once wildlife officers struck out in state court, they figured out a way to move the charges to federal court, in hopes of securing more convictions there.

“It was after that the wildlife officers went to the U.S. Attorneys and created federal crimes they could then prosecute these men for in federal court,” he said. 

This slow unraveling seems to be a trend in many of the Something Bruin cases. The operation was not unsuccessful. Wildlife officers did find hunters who had broken laws, but the operation was not on the grand scale agencies originally claimed. 

Initial press releases from the agencies touted an operation that roped in more than 80 people for about 900 wildlife violations. Officers reported observing 709 violations in North Carolina. Those 709 violations resulted in 167 charges against 35 people, but only 46 of those charges stuck and led to convictions for nine people. 

Major Stephen Adams with the Georgia Department of Natural Resources said the purpose of press releases was to deter other would-be violators. 

“The media plan was to give an overview of the operation and discuss the number and types of charges that were made,” he said. “This number continued to decrease as the charges went through the vetting and oversight process.” 

It was after judges started dismissing state court cases that the federal charges came about.

 

Moving to federal court 

Tracing the trajectory of the different charges through the court system can get a bit hazy. Some defendants moved from state court to federal court while other defendants faced charges that were federal out of the gate. 

Some state charges were dismissed due to a lack of evidence. Others were dismissed because the defendant was facing charges in federal court. 

But just because a defendant faced both state and federal charges did not mean the exact charges he faced in state court were dismissed and moved to federal court. Prosecutors did not simply pick up all the state charges and charge the hunters with the federal equivalent of that state violation. 

The concurrent jurisdiction of state and federal courts created a complicated situation for prosecutors to navigate when deciding what charges to bring against defendants.

“It is my understanding that the respective prosecuting attorneys reviewed all violations prior to charges being filed. It is also my understanding that after charges were filed, some charges were dismissed, many of which referenced the Petite Doctrine, which limits and prioritizes prosecutions if overlapping jurisdiction exists,” said Gordon Myers, executive director of the N.C. Wildlife Resources Commission. 

Federal charges can be brought against people who have broken a federal law, committed a crime on federal land or committed a state violation that crossed state lines, explained McLean. Only the cases that fit at least one of these criteria appeared in federal court. 

For example, a hunter charged with hunting deer at night would have violated a North Carolina law, and his case would proceed through the North Carolina court system. But if this hunter committed this violation in the Nantahala National Forest, the federal court would have jurisdiction and could bring charges against him.   

Most of the Something Bruin cases in federal court got there because the violations occurred on federal land — mostly in the Nantahala National Forest. This explains why several defendants who had charges from Graham and Macon counties also appeared in federal court while no defendants from Haywood County moved to federal court, as those all involved hunting on private land.

Of those who were ultimately charged in both state and federal court, the state charges came first, and after cases were dismissed there, were reopened in federal court.

This shuffling has prompted many critics to say the move to federal court was a play by the agencies to justify the time and money invested in the operation by ensuring they did not come up empty-handed. 

“It was after that the wildlife officers went to U.S. Attorneys and created federal crimes they could then prosecute these men for in federal court,” McLean said. 

The conviction rate was much higher in federal court. Federal prosecutors tend to be more selective in deciding in which cases to bring charges, typically going for the strongest cases they feel confident will result in convictions. Further, many of the defendants with federal charges simply received a citation for their violations and pled guilty without the need for a trial. 

Records from the N.C. Wildlife Resource Commission indicate that 39 charges were brought against 24 individuals in federal court. A total of 19 people were convicted. 

Many of those only faced petty offenses, which rank below misdemeanors and are heard in front of a magistrate judge rather than a jury, and were worked out in plea agreements.

 

Allegations of misuse of petty offense charges 

A handful of hunters charged in federal court chose to fight the charges, however. The first ones to come before a jury didn’t go well for prosecutors and wildlife officers. Juries found the hunters not guilty, or the juries knocked down the severity of the charges.

This prompted prosecutors and wildlife officers to try a new strategy: getting rid of the juries and having magistrates judge hear the remaining cases.

Linda Crisp, whose husband and son were among the hunters redirected from a jury trial to a magistrate judge, claims this was a ploy.

“They were so vindictive and they were just determined someone was going to get time. We won the first two jury trials. They were afraid we would get a third win so they dropped it down to magistrate court,” Linda Crisp said.

Although the Bill of Rights grants the right to a jury, the U.S. Supreme Court has ruled that defendants’ jury trials are unnecessary for petty offenses — offenses that carry less than six months in jail or a $5,000 fine, McLean explained. 

“(The Supreme Court) has interpreted that plain language to say that six months or that fine is not a substantial deprivation of either a man’s freedom or his property,” McLean said.  

But McLean believes that no defendant should be sentenced to jail time without first being convicted by a jury. 

“That is what I dispute,” he said. “That may be what the Supreme Court says the law is, but even a fifth-grader understands the plain language of what those words say.” 

He suggested hunters would have been more likely to get guilty verdicts from a single judge hearing the case than a jury.

The first batch of hunters to have a federal jury trial was Jerry Parker, Brock Parker and Walt Stancil. The jury knocked down felony charges against Jerry and Walt to a misdemeanor, and found Brock not guilty in September 2014.

A Department of Justice press release touted the verdict as a success resulting in two misdemeanor convictions. But the press release failed to mention three defendants were originally charged for felonies, and that one of the three got off completely. 

Chad Crisp had the only other federal jury trial, which occurred later in the same month. He was tried for charges relating to being an unlawful drug user and addicted to a controlled substance while possessing a firearm. The jury found him not guilty of both charges, as the law enforcement officer testifying against him had no hard evidence of his suspicion that Chad was under the influence when they were hunting together.

 

A possible scapegoat 

Crisp still faced a number of federal misdemeanor charges awaiting jury trail, but that’s when the federal prosecutor Richard Edwards decided to change course. He converted the misdemeanor charges into petty offenses, allowing the case to move to a magistrate judge instead. While each of the charges carried no more than a six-month sentence, the judge stacked four five-month sentences back-to-back for a total of 20 months of hard time in federal prison.

“I don’t want to assign ill motives to anybody without good reason. But they basically moved those from district court down to magistrate court to load them up,” Stockton, a defense attorney for some of the other hunters in Something Bruin, alleged in a federal oversight hearing.

“So you are saying they saw people getting off in a jury trial and said ‘Well, let’s just do away with the charges that would entitle them to a jury trial and move them to a magistrate judge where they would get a verdict that’s more favorable.’ Is that what you are saying?” replied U.S. Congressman Mark Meadows, R-Cashiers, who was leading the federal oversight inquiry.

Linda Crisp said her son’s defense attorney was told by wildlife agents, “If we can’t get them time in the big court we’ll get them time in the little court.”

Chad Crisp’s lawyer, Eric Stiles, was concerned the prosecution was unfairly targeting Chad. When the federal prosecutor changed his tack and moved Chad’s case away from a jury and to a magistrate judge, Stiles wrote the prosecutor an email asking why.

“Have I done something to personally offend you and you are wanting to make it harder on Chad?” Stiles asked in a Sept. 19 email to Edwards. “I have offered to work out a plea agreement with you previously, but now it seems that you are just wanting to make a scapegoat out of my client. I know that he has the most liability and I have admitted that. So why the harsh tactics without even trying to work something out?”

“I can guarantee you that there’s no animosity at all about this, nor has Chad been singled out,” Edwards responded. 

Edwards went on to explain it was a way to simplify the process by holding a bench trial rather than a jury trial. 

“That way we could avoid the expense to the court and the parties, to say nothing of the jurors, and the trial would be more significantly streamlined,” Edwards wrote.

“I really don’t mean for this to be harsh tactics at all,” he continued. “He’s not facing any greater number of charges, nor has his maximum exposure gone up. I just view it as a streamlining, since bench trials always are faster than jury trials.” 

The exchange happened on the heels of a jury trial against some other hunters, where jury deliberations lasted two days.

 

Other bench trials 

Chad Crisp wasn’t the only one who ended up at the mercy of a magistrate judge in lieu of a jury trial. Walt Stancil and Chad Crisp’s father, David Crisp, also faced bench trials with no jury in front of U.S. Magistrate Judge Dennis Howell. 

Stancil was originally charged in June 2013 with a misdemeanor for stealing a surveillance camera that belonged to the U.S. Forest Service. Stancil came across the camera in the woods one day and took it without realizing at the time who it belonged to.

The misdemeanor charge was dismissed and the prosecution instead refiled it as a petty offense that alleged Stancil “knowingly and intentionally (removed) property of the United States.”   

Had it been charged as a misdemeanor, Stancil would’ve had the right to a jury trial. 

David Crisp faced charges for two petty offenses — one for illegally baiting bears and the other for digging ginseng in the Great Smoky Mountain National Park. Howell convicted him of the baiting charge and acquitted him of the ginseng charge. Howell sentenced him to 90 days in prison and a $2,000 fine. 

Prior to his trial, David Crisp and McLean filed a motion to grant him a jury trial, which was denied. In support of this motion, McLean argued that being tried and convicted of multiple offenses could lead to a sentence exceeding six months. 

The Supreme Court has held, however, that serving consecutive six-month sentences for multiple petty offenses is permissible and does not entitle the defendant to a jury trial. 

“As much as we may or may not like it they can choose the forum where they are or aren’t going to prosecute or charge these crimes. Whether I like it or not, they do have that prosecutorial discretion,” U.S. Congressman Chris Collins of Georgia said during the federal oversight hearing in June.

While acknowledging previous decisions of the Supreme Court, McLean still argued a person should not have to spend time in jail without being convicted by a jury. 

“Only Congress can correct this abuse of judicial discretion,” McLean replied. “No man should be in prison, not even for a day, unless he is convicted by a jury of his peers. When the federal courts can impose multiple petty offenses exposing persons to months or even years in prison, we must act to preserve the integrity of the judicial system so that citizens will be treated, not with tyranny, but with the grand experiment that our founding fathers envisioned.” 

 

Allegations of judge shopping 

Defense attorneys for the hunters have also claimed that the agencies and prosecution participated in judge shopping, alleging that Howell, who sentenced 12 defendants, is known for handing down harsh sentences that often give people time for violations involving natural resources and public lands.

“This is a judge who has never found anyone not guilty that I am aware of,” Stockton said at a June federal hearing. “He has a propensity for giving jail time.”

According to Stockton, Special Agent Brian Southard with the U.S. Forest Service told Chad Crisp’s lawyer that the charges would be moved down to magistrate court if defendants did not get time in federal district court.

In David Crisp’s October bench trial before Howell, McLean asked Southard if he had ever made such a statement.

“No I never made that,” Southard replied.  

Defense attorneys and their defendants remain skeptical, however. 

“I think the law enforcement officers knew where they could get the most bang for their buck,” Stockton said. 

Most of the defendants convicted of federal charges were sentenced to active time rather than merely fines or probation. Critics have claimed these punishments do not fit the crimes. 

Not everyone Howell sentenced received jail time, but he did sentence 10 defendants to active time, with most of those defendants serving 15 or 30 days.

An email chain from U.S. Assistant Attorney Richard Edwards to Stiles in Jan. 14 suggests that probation in lieu of active time is frowned upon due to higher costs associated with probation. 

“Although up to one year of probation is authorized by statute, Judge Howell never imposes probation in (these) cases because the U.S. Probation Office has convinced the Chief Judge to tell him not to,” Edwards wrote.

Edwards went on to explain that the probation office does not get reimbursed for supervising defendants sentenced to probation for petty offenses. 

“They only get budgeted and reimbursed for supervising in felonies and misdemeanors, not petty offenses and infractions,” he wrote. “So, they’ve managed to get the court to not impose probation in such cases.” 

However, prison time was not the prosecution’s goal. In another email to Stiles, Edwards wrote that the government would prefer the defendants to be banned from national forest lands for one year, surrender their hunting licenses for one year and pay a fine no greater than $1,000. 

“I am happy to ask that the sentence not include incarceration, but several attorneys and I have seen, in similar cases, that such a request by the government doesn’t seem to carry much weight, with some defendants who didn’t even end up killing a bear or assisting in an actual killing nonetheless getting active 30-day sentences,” he wrote. 

In the email, he proposed that he could dismiss the petty offense charges and file misdemeanor charges so that the defendants could be sentenced in front of U.S. District Judge Martin Reidinger, who, Edwards noted, would possibly be more likely to give probation rather than incarceration. 

“The ban and hunting license provisions can only (be) ordered, though, if a defendant is on probation or supervised release,” he wrote. “And Judge Howell is under instructions from the Chief Judge, for budget reasons, not to impose probation in CVB cases.” 

 

Defense attorneys question motives 

Critics of the operation have voiced concern that U.S. Magistrate Judge Dennis Howell has been too harsh with the defendants and is biased toward convicting them. 

Chad Crisp’s 20-month sentence has been the primary example critics have held up as an abuse of judicial power. 

“The defendant and counsel have been unable to locate any record, judgment or other such evidence to indicate that any other defendants have received such a harsh sentence for petty offenses and demand that the government produce some evidence that the sentence in this action conforms with the concepts of due process and equal protection,” Stiles wrote in an appeal to the sentence. 

He pled guilty to seven offenses, and Howell sentenced him to five months in prison each for four offenses. Three of those offenses happened on a single hunt on Dec. 3, 2010. Those charges were hunting bear at night during closed season, hunting deer at night and hunting deer with artificial light. Although Chad Crisp did not kill anything, the law does not require a person to kill any wildlife to be considered hunting. 

The maximum penalty for each of these offenses was six months incarceration. 

The sentence is legal, but does that make it ethical? Such was the sentiment at the June federal oversight hearing. 

“Just because they’re saying, ‘Look, it’s our job’ doesn’t make what’s going on here right,” Stockton said. 

Congressmen Meadows said he was disturbed by it all.

“It was of great concern to me because it appeared that we were intentionally trying to put people in jail instead of allowing them to pay a fine or probation,” Meadows said. 

Meadows contacted Chief Judge Frank Whitney and asked him about the allegation that he had instructed Howell to give jail time rather than probation. 

“Much to his credit, he put forth the day after my phone call a clarification memo… that says we should have all the options. They shouldn’t be forced into jail,” Meadows said. 

He also expressed concern about the legal system and officers working together to exact punishment on defendants. The court system is supposed to function as part of checks and balances, weighing whether a defendant is guilty of what he has been charged with. 

“When we stop that very fundamental principle in our Constitution it is troubling to me,” Meadows said. “The way these particular offenses are stacked, we plan to address that.”

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