Federal Authorities Accused of Lying
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 with the Hornthal, Riley, Ellis & Maland firm in Elizabeth City, 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 from Raleigh, 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.
The letter of complaint to the Department of Justice, the transcripts of the trials and a full copy of this press release are available for review by interested reporters. Please see transcripts below, or contact Sabrina Zimring of Rubin Communications Group at 757-456-5212 or Sabrina@rubincommunications.com to receive them.
