US v. Orme

• Decision Date: 19 May 1994
• Docket Number: Crim. No. S 93-0496.
• Citation: 851 F. Supp. 708
• Parties: UNITED STATES of America v. Edgar J. ORME, III.
• Court: U.S. District Court — District of Maryland

851 F. Supp. 708

UNITED STATES of America v. Edgar J. ORME, III.

Crim. No. S 93-0496.

United States District Court, D. Maryland.

May 19, 1994.

Lynne A. Battaglia, U.S. Atty., Robert M. Thomas, Jr., Asst. U.S. Atty., Baltimore, MD, for plaintiff.

Stephen S. Boynton, Vienna, VA, for defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

This is an appeal by one of several defendants convicted after a non-jury trial before the Honorable Daniel E. Klein, Jr., United States Magistrate Judge, on criminal charges under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, et seq., arising from a waterfowl hunting episode that took place on the Jamaica Point Farm at Trappe, Maryland, on January 20, 1993. The Magistrate Judge's findings of fact and conclusions of law were set forth in a reported opinion, United States v. Dize, 839 F.Supp. 1170 (D.Md.1993). Only the defendant Orme has appealed, pursuant to 18 U.S.C. § 3402. The Government has filed an answering brief. The Local Rules of this Court do not provide either for a reply brief or oral argument as a matter of right in such appeals, and the Court sees no need for either in this case.

The standard of review on appeal from a conviction entered by a Magistrate Judge is well-settled. That is, his conclusions of law are subject to de novo review, while his findings of fact are reviewed only for clear error, just as would be the case were the matter on appeal from a District Court bench trial to a Court of Appeals. See, e.g., United States v. Ramirez, 555 F.Supp. 736, 739 (E.D.Cal.1983). Of course, "clear error," as defined by the Supreme Court in Anderson v. Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504, 1511-13, 84 L.Ed.2d 518 (1985), is more than a difference of opinion between the original fact-finder and the appellate reviewer; to be clearly erroneous, a finding must leave the reviewer with a "definite and firm conviction that a mistake has been committed." Id. at 573, 105 S.Ct. at 1511.

The appellant points specifically to three errors in the judgment below and raises a challenge to the sentence in passing. These matters will be discussed seriatim. In resolving the issues, this Court has read, viewed, or otherwise considered the entire transcript of the multi-day trial, as well as the other exhibits forwarded by Mr. Orme's counsel, including charts, photos, surveys, a videotape, and the autobiography of the then-owner of Jamaica Point Farm, the late Mr. Osbourne "Os" Owings, The Wizard is Os, privately published by its author in 1990.

First, the defendant challenges his convictions for aiding and abetting. It was admitted at trial that he was present and hunting at the Farm on January 20, 1993. It was also established to the satisfaction of the Magistrate Judge, who did not clearly err in so finding, that Mr. Orme was de facto the manager of the hunting operations on the Jamaica Point Farm, vice its owner, Mr. Owings (originally charged here, but deceased before trial). Mr. Orme admitted placing corn out to feed waterfowl, though well before the 10-day period preceding the hunting date that amounts to baiting. There was a photograph taken by a federal game warden of corn-spreading activity on the Farm on January 17, 1993, three days before the hunt. The operator of the machinery could not be identified from the photograph, but there was evidence that corn was spread on the Farm only by Mr. Orme and Mr. Grafton (a co-defendant). Additionally, the evidence showed that Mr. Orme, though he hunted the Farm on January 20, was not to be found there when game wardens "raided" the operation, but was soon after found by a game warden meeting with another person who had been on the Farm on January 20, under odd circumstances. That is, the warden had followed a truck off the Farm, observed its driver make a phone call at a pay phone, and later observed its driver meeting with Mr. Orme at a restaurant, whereupon the man in the truck and Mr. Orme drove to a meeting place in Easton, behind some storage sheds. There, the warden confronted Mr. Orme, who acknowledged that he had been on the Farm, but said he had left early to go to a job site.

The defendant's principal argument against the seventeen findings of guilt on the aiding and abetting charges is that, in that there was no evidence that Mr. Orme placed any corn or other feed on January 17 (the operator of the baiting tractor being unidentified), but only that he did so well before the 10-day period when its placement could have constituted baiting, he could not have aided and abetted, as charged.

The difficulty with this argument is that, to sustain the convictions, the Government was not obliged to prove beyond a reasonable doubt that it was Mr. Orme who actually placed the corn on January 17. Rather, the Government needed only to prove that Mr. Orme aided and abetted others in the taking of waterfowl with the aid of bait or on or over a baited area, as defined in 50 C.F.R. § 20.21(i).

Although baiting is an offense as to which there is no scienter element to be proved, the Court is of the opinion that proof of aiding and abetting in such cases requires at least the degree of scienter that the Magistrate Judge implicitly found it to, in his discussion of the issue, by referring to cases such as Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir.1985). Those cases, as the Magistrate Judge properly noted, punish as aiders and abettors only those who "knowingly associate themselves with and participate in the...