296 F.2d 53 (8th Cir. 1961), 16581, Koop v. United States

Docket Nº:16581.
Citation:296 F.2d 53
Party Name:Herman E. KOOP, Jr., Leonard Doubek, Albert J. Peters, Nicholas M. Wenner, Herman E. Koop, Appellants, v. UNITED STATES of America, Appellee.
Case Date:November 13, 1961
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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296 F.2d 53 (8th Cir. 1961)

Herman E. KOOP, Jr., Leonard Doubek, Albert J. Peters, Nicholas M. Wenner, Herman E. Koop, Appellants,

v.

UNITED STATES of America, Appellee.

No. 16581.

United States Court of Appeals, Eighth Circuit.

November 13, 1961

Donald I. Ryan, Brainerd, Minn., made argument for appellant; Ryan, Ryan & Ebert, Brainerd, Minn., with him on the brief.

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John J. Connelly, Asst. U.S. Atty., St. Paul, Minn., made argument for appellee; Clifford Janes, U.S. Atty., St. Paul, Minn., with him on the brief.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

VOGEL, Circuit Judge.

Appellants herein were tried on an information in three counts charging violations of the provisions of the Migratory Bird Treaty Act, 16 U.S.C.A.§§ 703-711, inclusive, regulations promulgated thereunder, and 18 U.S.C.A. § 2.

The first count charged that the appellants Leonard Doubek, Albert J. Peters, Nicholas M. Wenner and Herman E. Koop, Jr., on or about October 7, 1959, at Koop's Ranch, Stearns County, Minnesota, each being a hunter, '* * * did hunt, attempt to kill and take migratory game birds, to wit, wild ducks in an area baited with shelled corn and other grains and feed, which corn and grain were used to and did lure, attract and entice said migratory game birds to, on and over the area where each said defendant hunter was attempting to take said migratory game birds; in violation of 16 U.S.C., 703, 704 and 707, and of Subsection 6.3(b)(9) * * *' of the Migratory Bird Regulations 1959-1960. Upon being found guilty by a jury, each of the appellants was fined $100 and costs in the amount of $85.92.

The second count charged appellants Wenner, Koop, Jr., and Peters with hunting and attempting to kill and take migratory birds, to-wit, wild ducks with the use and aid of live birds as decoys. Appellants were found not guilty thereof.

The third count charged Herman E. Koop, hereinafter referred to as Dr. Koop in order to avoid confusion, and Leonard Doubek with aiding and abetting the commission of the offenses charged in Counts 1 and 2 of the information (18 U.S.C.A. § 2). At the close of the evidence such charge was, on motion of the government, dismissed as to Doubek. Dr. Koop was found guilty by the jury. He was fined $250 and costs in the sum of $85.94.

In this appeal it is claimed that the evidence was insufficient to support the verdicts upon the following grounds:

(1) There was no evidence to sustain the charge that defendants were shooting in a 'baited area'.

(2) There was no evidence to sustain the charge that defendants attempted to kill wild ducks.

(3) These mallard ducks which the defendants shot and shot at were not wild ducks.

(4) The mallard ducks on the premises were more than two generations removed from the wild and did not come under the baiting regulation.

(5) There was no evidence to convict the defendant Doubek.

In considering the insufficiency charge, we have in mind that the government was the prevailing party and is entitled to have the evidence viewed in the most favorable light tending to support the convictions and is entitled to all inferences which may be reasonably drawn in support of the jury's conclusions. Garner v. United States, 8 Cir., 1960, 277 F.2d 242; Northcraft v. United States, 8 Cir., 1959, 271, F.2d 184, 187; Connelly v. United States, 8 Cir., 1957, 249 F.2d 576, 585, rehearing denied December 13, 1957, certiorari denied, 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716, rehearing denied, 356 U.S. 964, 78 S.Ct. 991, 2 L.Ed.2d 1072.

With the exception of the question of the amount of corn or other bait present on the hunting area on October 7, 1959, there is little dispute or contradiction as to the facts testified to by the many witnesses. It is the inferences and conclusions which may be drawn therefrom which cause the difficulty. If the facts and such favorable inferences and conclusions as may be reasonably drawn therefrom would cause reasonable minds to differ, then the question of the guilt or innocence of the appellants was one of

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fact to be determined by the jury and not one of law to be determined by the court.

The testimony discloses that the appellant Dr. Koop is a practicing physician and surgeon living at Cold Spring, Stearns County, Minnesota. In 1945 he began acquiring nearby real estate which ultimately totalled 1,280 acres. Farming attempts were unsuccessful so the property was turned into and operated as a dude ranch and has since been known as Koop's Ranch. On the property Dr. Koop created artificial ponds by damming up certain drainage areas. In 1959, the time with which we are here concerned, there were seven small ponds on the premises. A four-foot-high fence encloses the entire ranch. In order to make the place attractive for ducks, Dr. Koop planted wild feed, including Wisconsin giant rice, wild rice, wild potato, duck potato, celery, etc.

Ever since 1945 Dr. Koop has fed ducks on his ponds. This was generally done by putting corn in the water. Throughout the season of 1959 he fed approximately 250 bushels of corn. His stated purpose was two-fold: One, to keep the ducks alive, and, two, to keep them confined to the area. When they were fed regularly they stayed on the ponds, flying from one of the seven ponds to another but staying in the immediate vicinity.

Dr. Koop's practice over the years was to discontinue feeding the ducks for what he deemed to be a sufficient length of time before the opening day of the hunting season so that there would be no corn left in the ponds. In 1959 he fed the last corn on October 3rd, four days prior to the opening of the hunting season.

All of the seven ponds located on Koop's Ranch were within walking distance of each other. Ducks flew from one pond to another. Pond No. 5, where occurred most of the activity with which we are here concerned, was approximately 100 yards long by 50 yards wide.

Beginning in 1945 Dr. Koop commenced raising mallard ducks. At that time he bought ducklings, confined them for a while and then distributed them out on the different ponds or potholes on his ranch. He claimed to have raised mallard ducks continuously from 1945 to the present. In 1957 and 1958 he incubated eggs taken from captured mallards confined in his duck house. Each fall Dr. Koop would capture some brood stock for the following year. To capture the brood stock he enticed ducks, through feeding, into an open building and then closed the doors. In 1958 he captured about 73 hens and drakes, maintaining them through the winter, confined in a duck house. In the spring of 1959 he bought 50 additional ducks which he put out on his ponds together with the previously captured brood stock from the fall of 1958, thus, he claimed, trying to mix the new stock with the old. He contended that his brood stock in 1959, captured in the fall of 1958, was more than two generations removed from the wild His total brood stock with the 50 ducks purchased for the year 1959 amounted to some 120 ducks. Approximately 80 were hens. They produced an average of ten ducks each. The ducks which were not shot or captured for brood stock migrated in the fall.

Dr. Koop considers his ranch 'a two day hunting place'. He testified, 'After they are bombarded, they get out of there. They leave. I would say they remain in that vicinity about two days and that's it. There is no hunting after that.' He estimated that they shot approximately 20% to 25% of the ducks that he raised. The rest disappeared. He did not know where. He stated that he had no way of knowing if the mallards on his ranch were the mallards that were there the year before. This would seem to refute his assertion that his brood stock was more than two generations removed from the wild. He was unable to distinguish between wild mallards and the mallards that he released nor was there any way that he could identify the

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mallards that he released when they were in the air flying. Until the ducks migrated he claimed that they were his ducks. 'The mallard ducks, until the time they migrate from that ranch, leave the ranch, I consider them to be my ducks.' Sometimes Dr. Koop marked the ducks before he put them out. In 1959 he did no such marking.

At noon on October 7, 1959, the five appellants herein were among the approximately 38 people who were present on the Koop Ranch. Dr. Koop had invited the hunters to his premises for hunting on that date. There was a charge of $25 per person per day for the privilege of hunting on Koop's Ranch. Sometimes this was paid to Mrs. Koop, in whose name title to the ranch was kept. On the morning of that day the appellants, together with the other hunters, met at the ranch buildings where they were instructed by Dr. Koop to check their guns for plugs, to make sure they had hunting licenses and duck stamps, not to shoot illegal birds or to hunt before twelve o'clock noon or after closing time. Thereafter the hunters were distributed so that there were hunters located on each one of the ponds on the Koop Ranch. Appellants Koop, Jr., Wenner and Peters were hunting at pond No. 5. Among them there was more or less of a general agreement that they would shoot only mallard ducks. Such appellants had hunting licenses, duck stamps, wooden decoys, a hunting dog, duck blinds, guns and were seen shooting over pond No. 5.

During the time the appellants and others were shooting on pond No. 5 numerous ducks, mallards, pintails, wood ducks and teal, flew in and out of the pond. The officers found and confiscated six ducks which had been shot at pond No. 5. Of the ducks so confiscated, one was a pintail and five were mallards.

The officers found shelled corn in and near all of the...

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