U.S. v. Zak, CR No. 06-30011-MAP.

• Decision Date: 14 May 2007
• Docket Number: CR No. 06-30011-MAP.
• Citation: 486 F.Supp.2d 208
• Parties: UNITED STATES of America v. Michael J. ZAK, Jr., Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 208

486 F.Supp.2d 208

UNITED STATES of America v. Michael J. ZAK, Jr., Defendant.

CR No. 06-30011-MAP.

United States District Court, D. Massachusetts.

May 14, 2007.

Vincent A. Bongiorni, Springfield, MA, for Defendant.

Nadine Pellegrini, United States Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM REGARDING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, DEFENDANT'S MOTION TO DISMISS

(Dkt. No. 49)

PONSOR, District Judge.

I. INTRODUCTION

In an Information dated May 26, 2006, the government charged Defendant Michael J. Zak, Jr. with five misdemeanors: pursuing, hunting, taking, attempting to take, and attempting to kill great blue herons without permission in violation of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703 and 707(a), (Count One); pursuing, hunting, taking, attempting to take, and attempting to kill ospreys without permission in violation of the MBTA (Count Two); pursuing, hunting, taking, attempting to take, and attempting to kill a single bald eagle without permission in violation of the MBTA (Count. Three); knowingly and with wanton disregard shooting at and killing the same bald eagle in violation of the Bald and Golden Eagle Protection Act ("BGEPA"), 16 U.S.C. § 668(a), (Count Four); and conspiring to violate the MBTA, 18 U.S.C. § 371, (Count Five).

On March 23, 2007, Defendant pled guilty to Counts One, Two, and Five. On March 26, 2007, a jury-waived trial on Counts Three and Four commenced.

At the conclusion of the government's case-in-chief on March 29, 2007, Defendant moved for a judgment of acquittal, or in the alternative for dismissal of Counts Three and Four. Following the arguments of counsel, the court denied Defendant's motion without prejudice and instructed counsel to brief the issues raised by the motion.

On April 2, 2007, Defendant rested, and the court ordered the parties to return on April 10, 2007 for closing arguments. On that day, the court orally denied Defendant's motion for acquittal pursuant to Fed.R.Crim.P. 29. In doing so, however, the court noted that while the government's evidence was sufficient to convict Defendant of both counts, Defendant had made a strong argument that the MBTA Count was a lesser included offense of the BGEPA Count. The court further noted that if it found Defendant guilty of Count Four, it would consider dismissing Count Three.

After counsel made their closing arguments, the court found Defendant guilty of both counts and stated its findings of fact in open court. The court then dismissed Count Three on the basis of multiplicity.

The purpose of this memorandum is to set forth in greater detail the basis for the court's rulings denying Defendant's Rule 29 motion and dismissing Count Three.

II. BACKGROUND¹

Defendant owns and operates the Mohawk Trout Hatchery, a commercial fish growing enterprise located in the southeast corner of a sixty-acre parcel of land in Sunderland, Massachusetts.² On September 27, 2005, United States Fish and Wildlife Service ("USFWS") Agent Thomas Ricardi received information that Defendant was killing protected birds, and he went to the property with USFWS Agent Andrey Guidera to investigate.

As they approached the hatchery from the northwest, the two agents noticed the aroma of dead birds and soon discovered the remains of approximately 250 great blue herons within, or just over the boundary of, Defendant's property. Many of these carcasses were located at the base of a dead pine tree, the top of which was visible from the hatchery. After determining that Defendant had neither applied for nor received a depredation permit allowing him to take herons, Ricardi spearheaded what turned out to be a protracted investigation.

Following September 27, 2005, law enforcement agents surveilled the hatchery regularly. On one occasion, they heard gun shots on the property and observed Defendant yell at blue herons perched in the trees surrounding the hatchery. They also saw Defendant use a firearm, later identified as a .22 caliber Ruger rifle, to shoot into the woods in an apparent attempt to kill a heron.

After the birds migrated for the winter, the agents suspended their investigation. When they returned to the property on March 24, 2006, agents found several fresh heron carcasses, as well as the remains of a red-tailed hawk.

While conducting surveillance on Defendant's property on April 18, 2006, Ricardi observed large numbers of great blue herons and ospreys and caught his first glimpse of three bald eagles — two adults and one juvenile — circling overhead.³

On April 26, 2006, Ricardi saw the same three bald eagles again. Walking the perimeter of the hatchery, Ricardi also discovered three osprey carcasses and the remains of four more blue herons.

The following evening, Thursday, April 27, 2006, Ricardi made a thorough search of the property for evidence. The agents then suspended their surveillance at Defendant's property until Monday, May 1, 2006.

On that morning, Ricardi and USFWS Agent Eric Holmes arrived at the hatchery before dawn and established themselves on the slope of a hill overlooking the hatchery. At approximately 11:30 a.m., Ricardi left this position to look for dead birds.

As he approached the base of the dead pine tree, Ricardi saw a juvenile bald eagle lying face down with its wings shut and feet clenched. Based on the condition of the bird, Ricardi determined that it had been recently killed by a single gun shot. Forensic evidence later revealed that the bullet fragments found in the bird were consistent with .22 caliber ammunition.

On the morning of May 11, 2006, Ricardi led a team of federal and state agents to the hatchery to execute both a search warrant of the property and arrest warrants for Defendant and his son-in-law, Timothy Lloyd. Ricardi and Holmes placed Defendant under arrest at approximately 7:30 a.m. After receiving Miranda warnings, Defendant agreed to speak with the agents.

During the course of the interview, which lasted several hours, Defendant stated that the hatchery had been experiencing problems with predatory birds taking fish from the farm's raceways and that he had been shooting them to "protect his livelihood," even though he knew they were protected by law. When asked why he had not sought to obtain depredation permits, Defendant answered that he believed such permits would put a limit on the number of birds he could kill. Defendant also volunteered that he had considered using protective netting, but determined that installing it would be too expensive.

Agent Holmes then stated that while he could sympathize with Defendant's resentment towards herons and ospreys, given their potential effect on his hatchery business, Defendant had crossed a line by killing a bald eagle. When Defendant appeared surprised by news of the dead eagle, Holmes asked if perhaps Defendant's son-in-law and Co-Defendant Lloyd might have been responsible for shooting the bird.

In response, Defendant stated that he was positive Lloyd did not shoot the eagle. Pointing in the direction of the dead pine tree, Defendant told Holmes that, if the eagle had been discovered in that vicinity, Defendant was "probably the one who shot it." Defendant then added that he typically only had a few seconds to take a shot, and if the eagle was the "big, brown hawk," he probably shot it.

Although the evidence at trial revealed that Defendant was generally fond of eagles, testimony from former hatchery employees established that Defendant enjoyed killing birds — even birds such as red-tailed hawks who did not take his fish — and that he shot at them with abandon. Evidence also revealed that the dead pine tree was called "the hanging tree" since its height made it a favorite perch for birds, where they could be easily shot and where their bodies, caught up in falling, might regularly be seen dangling from branches.

III. DISCUSSION

A. Count Three.

1. The MBTA.

"In 1916, the United States and Great Britain (acting for Canada) negotiated a treaty to protect migratory birds[,] ... whose pilgrimages traverse international borders. To effectuate this commitment, Congress enacted the MBTA in 1918." United States v. Pitrone, 115 F.3d 1, 2 (1st Cir.1997) (internal citations omitted).

According to several commentators, the primary impetus for the legislation was to reduce the country's insect population "and ensure a steady supply of food to sustain the war effort." Benjamin Means, Note, Prohibiting Conduct, Not Consequences: The Limited Reach of the Migratory Bird Treaty Act, 97 Mich. L.Rev. 823, 831 (1998) (citations omitted); see also Hye-Jong Linda Lee, Note, The Pragmatic Migratory Bird Treaty Act: Protecting "Property", 31 B.C. Envtl. Aff. L.Rev. 649, 651-53 (2004) (citations omitted).⁴

In 1936, the United States entered into a second bilateral migratory bird convention with Mexico. See Convention between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, 50 Stat. 1311. Additional bilateral treaties with Japan and the former Soviet Union followed, and "Congress subsequently amended the MBTA to implement the other three conventions." Fund for Animals v. Williams, 246 F.Supp.2d 27, 37 (D.D.C. 2003), vacated on other grounds by Fund For Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C.Cir.2005); see also Convention for the Protection of Birds and Birds in Danger of Extinction and Their Environment, U.S.-Japan, Mar. 4, 1972, 25 U.S.T. 3329; Convention Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R, Nov. 19, 1976, 29 U.S.T. 4647.

The MBTA provides that, "[u]nless and except as permitted by regulations" promulgated by the Secretary of the Department of Interior, "it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, [or] attempt to take ... or kill ... any migratory bird ... included in the terms of the [f...