Federal Authorities accused of lying

FEDERAL AUTHORITIES ACCUSED OF LYING IN
NORTH CAROLINA DUCK HUNTING CASE

A federal prosecutor and a fish and wildlife agent have been accused of lying and abetting a lie
before U.S. District Judge Terrence Boyle in a 2008 North Carolina duck hunting case involving
James E. Johnson, Jr. and others in Pamlico County, NC.
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 against Assistant U.S. Attorney Barbara
Kocher and U.S. Fish and Wildlife Agent Jack Baker for giving and abetting false statements in a
federal duck hunting case involving Johnson, two guests and two employees. Kelley’s letter states:
“We recently obtained proof that the Assistant United States Attorney who handled Mr. Johnson’s
case lied to the United States District Court about events material to the case and that a Fish and Wildlife
Service Agent who knew the truth stood next to the AUSA in Court and, by his silence, knowingly
abetted that lie.”
That case required that the government prove that under all of the facts and circumstances the
ducks were being “lured” into the hunting area. That required a credible and accurate assessment of the
facts by the game warden in order to obtain a conviction. The prosecutor’s and federal agent’s
truthfulness are now called into question based on Federal Court transcripts obtained that show they lied
and abetted a lie in Federal Court. The letter requests that the convictions and sentences be vacated.
Kelley states that Assistant U.S. 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
2007, was convicted along with two guests of “shooting over bait.” Two employees were also charged
and convicted in the case.
The alleged bait (corn) was more than 600 yards away from Johnson’s blind, well beyond the 300-
yard NC state law limit. The federal law is a more subjective matter of opinion, and the court relies in
part on the opinion of the federal prosecutor and the federal game warden. Johnson agreed to plead guilty
on advice of his attorney because the law is subjective and is a matter of opinion, and Johnson believed
that the game warden’s testimony would be the determining factor. Johnson, says Kelley, did not
anticipate that Assistant U.S. Attorney Kocher and Federal Agent Baker would lie, which according to
Federal Court transcripts obtained by Kelley proves they did, about another case prosecuted by Assistant
U.S. Attorney Kocher and Federal Agent Baker in Judge Boyle’s court in March, 2007. In that case,
United States v. Jones Island Club, Inc., Judge Boyle accepted a corporate plea agreement that included a
fine but no loss of hunting privileges by anyone or the Club. Assistant U.S. Attorney Kocher was the
prosecutor and Federal Agent Jack Baker was the Federal Agent in the Jones Island case.
Court transcripts for the Jones Island case state that according to Federal Agent Baker; “The day
we took it down there were 18 hunters.” Yet no individuals were named or charged and only the
president of the Jones Island Club, Ross Lampe, went to court. Assistant U.S. Attorney Kocher and
Federal Agent Baker agreed not to charge any individuals, and requested the Court to accept the
corporate plea and not restrict any hunting by the members or the club in general:
“Ms. Kocher: Your honor, the government recommends a $25,000 fine with no attempt at
restricting the hunting of this area. It is something we have negotiated with the Defendant, and we both
present it to you today.”
“The Court: I know what I am going to do. I’m going to put them on probation, but I’m not going
to embargo them from hunting, and I’m going to allow them to continue to operate as they are intended
for the next two years …”
In court for Mr. Johnson’s sentencing, however, the transcript shows that Assistant U.S. Attorney
Kocher told Judge Boyle that he had shut down the Jones Island Club’s hunting privileges for two years.
Federal Agent Baker was standing next to Assistant U.S. Attorney Kocher and failed to correct her
false statement.
“The Court: Didn’t the club get closed down for a period of time?”
“Mr. Cheshire [Johnson's lawyer]: No sir, I don’t believe it did. It paid a large fine and –”
“The Court: Well, didn’t it get closed down? Sure it did.”
“Ms. Kocher: It did, Your Honor. There is no hunting on the club for a two year period.”
After hearing this and not remembering the Jones Island case correctly, Judge Boyle then
sentenced Johnson to a $7,500 fine, the loss of his hunting privileges for a year, and other restrictions.
In his letter to Department of Justice, Kelley says that Assistant U.S. Attorney 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 of fact…violates the law, as well as 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
asks for discipline and punishment of Assistant U.S. Attorney Kocher and Federal Agent Baker and
for the Court to “vacate Mr. Johnson’s conviction” as well as those of his guests and two employees of
Johnson’s who were assisting in retrieving downed birds that day.
Mike Sanders, the lawyer for two of the defendants, was present in the courtroom when Judge
Boyle was misled and misinformed by Assistant U.S. Attorney Kocher and Federal Agent Baker about
the Jones Island case. Sanders was also defense counsel in the Jones Island case. Sanders, having
represented Jones Island in its case, knew the truth, yet he also failed to speak out on his clients’ behalf
and correct the record, according to Kelley’s letter.
One of the defense lawyers, Joe Cheshire, argued to the judge that the Jones Island Club had not
been shut down, and his client had told him “a million times” that the Jones Island club had not been
shut down. However, Cheshire did not have with him in court the transcripts of the Jones Island case.
Neither Cheshire nor Sanders asked the Court to actually check the record in the Jones Island case,
request a recess so that they could ascertain the facts or themselves and their defendant clients, or follow
up after the hearing and prove that Assistant U.S. Attorney Kocher had lied to the Court and Federal
Agent Baker had abetted that lie to the Court.
“Events like the one described (in the letter) are unfortunate and mandate public corrective action
that inspires confidence in the Department of Justice and in the court rulings the U.S. Attorney and DOJ
procure,” writes Kelley.