United States v. Parker, CRIMINAL CASE NO. 2:13-cr-15-MR

• Decision Date: 03 June 2015
• Docket Number: CRIMINAL CASE NO. 2:13-cr-15-MR
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES OF AMERICA v. JERRY FRANCIS PARKER (1) WALTER HENRY STANCIL (4)

UNITED STATES OF AMERICA
v.
JERRY FRANCIS PARKER (1) WALTER HENRY STANCIL (4)

CRIMINAL CASE NO. 2:13-cr-15-MR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRYSON CITY DIVISION

June 3, 2015

MEMORANDUM OF DECISION AND ORDER

THIS MATTER is before the Court on the motions for post-verdict acquittal filed by Defendants Jerry Francis Parker and Walter Henry Stancil pursuant to Federal Rule of Criminal Procedure 29. [Docs. 131 and 132]. The Government has responded to the Defendants' motions. [Doc. 136].

PROCEDURAL HISTORY

Defendants Jerome Brock Parker, Jerry Francis Parker, Carl Wesley Junaluska II,¹ Walter Henry Stancil, and Walter Cale Stancil,² were named in a two-count Indictment returned by the grand jury in this District on June 4, 2013. [Doc. 1]. All five men were charged in Count One with a two-object

Page 2

conspiracy to violate wildlife laws and regulations in derogation of the Lacey Act.³ The grand jury alleged that from October 24, 2011, to October 28, 2011, in two separate incidents - one occurring in North Carolina and one occurring in Georgia - the defendants conspired to sell, acquire, receive, and transport American black bear, with a market value in excess of $350, by providing guiding services for money and other consideration, knowing the bear to have been taken, possessed, transported, and sold in violation of state and federal law. [Id. at 1-5]. Count Two contained a Lacey Act violation and alleged the Parker Defendants should be punished federally, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 5-6].

On December 4, 2013, in nearly identical motions and memoranda, the Parkers⁴ moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [Docs. 77-81]. The Government responded by filing its Memorandum in Opposition together with exhibits. [Docs. 82; 83]. The Court heard arguments from counsel for all

Page 3

parties on March 24, 2014, regarding Defendants' dismissal motions. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant Jerry Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [Doc. 92] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [Doc. 92-1]. On that same day, Defendant Jerome Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [Doc. 93] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [Doc. 94]. The Government responded with separate memoranda filed April 3, 2014, and April 18, 2014. [Docs. 95; 96]. The Court conducted a second hearing on the Defendants' dismissal motions on May 29, 2014.

On August 1, 2014, in accordance with a lengthy Memorandum of Decision, the Court entered an Order denying the Parkers' motions to dismiss for lack of subject matter jurisdiction. United States v. Parker, 36 F.Supp.3d 550 (W.D.N.C. 2014). The Parkers and Walter Henry Stancil proceeded to trial September 3, 2014. Following the close of the evidence, the Court instructed the jury. In particular, and with regard to Count One of the Indictment,⁵ the Court charged the jury:

Page 4

I will now read Count One of the bill of indictment, the statutes the defendants are charged with violating, and the essential elements of the offense charged in Count One. Keep in mind as I read these instructions that when you go into the jury room, you will have a copy of the indictment so you do not need to try to memorize exactly how the charges are laid.

Count One of the indictment reads as follows:

From on or about October 24, 2011, through on or about October 28, 2011, in Macon County, within the Western District of North Carolina, and Rabun County, within the Northern District of Georgia, and elsewhere, the defendants, JERRY FRANCIS PARKER, JEROME BROCK PARKER, and WALTER HENRY STANCIL, did unlawfully, willfully, knowingly and intentionally combine, conspire, confederate and agree with one another and with others known and unknown to the Grand Jury to knowingly sell, acquire, receive, and transport wildlife that is, American black bear, with a market value in excess of $350, by providing guiding services for money and other consideration, knowing the wildlife to have been taken, possessed, transported, and sold [ ] in [an unlawful manner under state laws and regulations]; and to knowingly sell, acquire, receive, and transport in interstate commerce wildlife with a market value in excess of $350, that is, American black bear, which the defendants knew was taken, possessed, sold and transported [ ] in [an unlawful manner under state laws and regulations.]

OVERT ACTS
1) JERRY FRANCIS PARKER was an owner and operator of War Paint Kennels, a hunting guide service located in Rabun County, Georgia. On or about October 24, 2011, in Rabun County, JERRY FRANCIS PARKER received $1500 in cash to provide a multi-day guided bear hunt to a customer ("the customer") whom he knew to be a North Carolina resident and

Page 5

to be licensed to hunt only in North Carolina. The customer had arranged for this hunting trip through telephone and email communications between himself in the Western District of North Carolina and JERRY FRANCIS PARKER in Georgia.

2) Later in the day on or about October 24, 2011, JEROME BROCK PARKER guided the customer on a bear hunt in Macon County, North Carolina, in the Nantahala National Forest. JEROME BROCK PARKER directed the customer to shoot an American black bear, and the customer did so, killing it. That bear was a juvenile, weighing less than the 50 pounds minimum required by North Carolina law. North Carolina law limits a hunter to taking only one bear per season. JEROME BROCK PARKER informed the customer that he could tag and report the bear, in compliance with state wildlife laws, but that if the customer wanted a bigger bear they could get one. JEROME BROCK PARKER called his father, JERRY FRANCIS PARKER, and explained what had happened, and JERRY FRANCIS PARKER told the customer that it was up to the customer to decide what to do, but if the customer wanted to keep hunting, they could get him another bear. After that conversation, JEROME BROCK PARKER advised the customer to hide the bear carcass in a cave, not report it, and to continue hunting. The customer then hid the carcass in a cave and continued hunting.

3) On or about October 25 and 26, 2011, JERRY FRANCIS PARKER arranged for other persons whose identity is known to the Grand Jury to guide the customer on bear hunts in Macon County, North Carolina, but no bear was taken.

4) On or about October 27, 2011, JERRY FRANCIS PARKER guided the customer on a bear hunt in Macon County, North Carolina, but this hunt was unsuccessful. JERRY FRANCIS PARKER then drove the customer into Rabun County, Georgia, and guided him on a bear hunt there, although he knew the customer did not have a Georgia hunting license. That hunt, too, was unsuccessful.

5) Later on or about October 27, 2011, JERRY FRANCIS PARKER arranged for WALTER HENRY STANCIL to take the

Page 6

customer on a bear hunt in Rabun County, Georgia. STANCIL took the customer to a location in Rabun County and directed the customer to an area where STANCIL maintained a bait site, using a chocolate product as the bait. Georgia law prohibits the use of any type of bait to concentrate the bear population in any area or to lure them to any location that gives or might give a hunter an unnatural advantage when hunting bear. STANCIL described the various bears that frequented that site and gave the customer instructions on which ones should or should not be shot. Later that day, at that site, the customer shot and killed an adult black bear. WALTER HENRY STANCIL and his adult son, Walter Cale Stancil assisted the customer in transporting the bear carcass to the residence of JERRY FRANCIS PARKER, using Walter Cale Stancil's Toyota truck. JERRY FRANCIS PARKER and the customer processed the bear carcass. PARKER directed the customer to falsely report that the bear had been taken in North Carolina by "punching" his North Carolina license and reporting the kill to North Carolina wildlife authorities within 48 hours.

6) On or about October 28, 2011, the customer transported the skin and meat from the bear from Rabun County, Georgia, into Macon County, North Carolina.

OBJECT OF THE CONSPIRACY
It was the object of the conspiracy that the defendants sell wildlife with a market value in excess of $350, that is, American black bears, by conducting hunting guide services within the Nantahala National Forest in the Western District of North Carolina, and in the Northern District of Georgia, in which the wildlife was taken in violation of applicable federal or state law. All in violation of Title 18, United States Code, Section 371.

Sept. 5, 2014, Trial Transcript at 108-112]. In addition to instructing the jury as to the elements pertaining to the felonious conspiracy alleged in Count One, the Court instructed the jury as to the elements pertaining to the lesser-

Page 7

included misdemeanor conspiracy subsumed within Count One. [Id. at 119-121].

The jury returned its verdicts as to each Defendant on September 8, 2014. [Doc. 130]. Further, on its Verdict Sheet, the jury made findings on each Overt Act alleged against the three Defendants as well as each Object of the Conspiracy. [Id. at 1-2]. The jury acquitted Defendant Jerome Brock Parker of all charges contained in each Count of the Indictment. [Id. at 4; 7]. The jury acquitted Defendant Jerry Francis Parker of all charges related to the first object of the conspiracy in Count One, the felony charge contained in the second object of the conspiracy in Count One, and the charge contained in Count Two. The jury, however, convicted Defendant...