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United States v. Spann

United States District Court, Tenth Circuit

July 30, 2013



James P. O'Hara U.S. Magistrate Judge

I. Introduction

The ultimate outcome of this probation-violation matter hinges largely on the meaning of the verb “hunt.” This is something the defendant, William Spann, who’s a professional big-game hunter, was specifically prohibited from doing anywhere in the United States for six months following his recent conviction in this court on a deer-hunting offense.

On June 27 and 28, 2013, the undersigned U.S. Magistrate Judge, James P. O’Hara, conducted an evidentiary hearing under Rule 32.1 of the Federal Rules of Criminal Procedure. The plaintiff, United States of America, appeared through Assistant U.S. Attorney D. Christopher Oakley. Mr. Spann, more commonly known as “Spook” Spann, appeared in person and through counsel, John C. Aisenbrey and Misty Cooper Watt. The court appreciates the prehearing memoranda submitted by counsel, as they were helpful in framing the issues, both factually and legally.[1] The court heard detailed sworn testimony from five witnesses for the government, and another ten for the defense (including Mr. Spann)—the case was well presented from both sides of the aisle. After the evidentiary hearing, counsel filed proposed findings of fact and conclusions of law to further clarify the issues.[2] Oral argument was heard on July 17, 2013; during this second hearing, Mr. Spann elected to present information in mitigation through his attorney instead of testifying again. The court is prepared to rule.

II. Background

As reflected by the presentence investigation report, since approximately 2007 or 2008, Mr. Spann has been self-employed as a professional hunter, operating out of Tennessee.[3] Mr. Spann has been and continues to be involved in a variety of business ventures, some big and some small, but most notably he produces and is the host of a popular television hunting show, “Spook Nation.” This show started around 2009 and is available twice weekly through nationally syndicated cable outlets. Mr. Spann purchases the time for his show from the cable outlets, but receives substantial income from various hunting-related sponsors that considerably exceeds his claimed losses on actual hunting activities.

On November 27, 2012, pursuant to a written agreement with the government under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Spann pleaded guilty to violating the federal wildlife conservation law known as the Lacey Act of 1900, [4]i.e., unlawful transportation in interstate commerce of unlawfully taken wildlife.[5] This is a Class A (the highest level) misdemeanor. More specifically, and as reflected by the presentence investigation report, Mr. Spann admitted that he shot a trophy-quality deer in Kansas by bow and arrow without first securing the necessary hunting license and later transported the deer’s antlers back to Tennessee.[6] Mr. Spann had a videographer film the hunt for the deer, and he made commercial use of that video. Mr. Spann, in pleading guilty, took the position that he had no intent to break the law by shooting the deer in Kansas—he acknowledged that at a minimum he had been negligent, i.e., that he “did not exercise due care in investigating what deer license he needed.”[7]

On November 29, 2012, consistent with the parties’ plea agreement, the government voluntarily dismissed two felony charges which had originated this case and exposed Mr. Spann to five-year prison terms and fines totaling $270, 000.[8] On February 28, 2013, after reviewing the presentence investigation report prepared by the probation office, the court decided to accept the parties’ “11(c)(1)(C)” plea bargain, and thus declined to impose any prison time—instead, Mr. Spann was sentenced to three years of probation, ordered to pay a $10, 000 fine, and required to pay an additional $10, 000 in restitution to the Kansas Department of Wildlife, Parks, and Tourism.[9] As conditions of his probation, among other things, Mr. Spann was ordered not to hunt anywhere in the United States for six months from the date of sentencing (i.e., until August 28, 2013) and, as required of all probationers, ordered not to commit any federal, state, or local crime.

Significantly, the following colloquy occurred at the conclusion of the February 28, 2013 sentencing hearing:

The Court:
In closing, Mr. Spann, I simply want to reiterate what I think we visited about briefly at the initial appearance in this case. Since I don’t know whether any violation of the term of probation and supervision will come back to me or the judge in Tennessee, I simply want to be real clear about the way it works in my court. I expect defendants in my court to be in strict, complete compliance with the conditions of release. So, if you have questions about what you are permitted to do, whether it has to do with hunting, advertising for hunting, or otherwise, I strongly suggest you call Mr. Aisenbrey and Ms. Watt and also your supervising probation officer to get advance clearance. If you assume that you’re entitled to do something and you make the incorrect conclusion, as it’s your view that you did in this case, you will [sic] staring down the barrel of a motion to revoke the probation, which could result in custodial terms. Are we clear on that?
Mr. Spann:
Yes, sir.[10]

Mr. Spann admits he understood on the date he was sentenced that the restrictions imposed by the court on his hunting activities for the specified period was a very important if not the most important term of the sentence.[11]

On June 10, 2013, Mr. Spann’s supervising probation officer filed a petition alleging Mr. Spann had violated his probation by: (1) hunting; and (2) committing a state crime, specifically, violating Tennessee law by “baiting” fields within ten days of hunting turkeys.[12] The violations stemmed from alleged conduct that began on March 30, 2013, i.e., about one month from the date on which Mr. Spann was sentenced. The petition recommended that Mr. Spann’s probation be revoked.

Mr. Spann disputes the government’s contention that while on probation he ever did any “hunting, ” at least as he claims to understand that term. Mr. Spann also denies that he has ever baited turkeys in violation of Tennessee law. Finally, even assuming the court finds Mr. Spann technically violated the conditions of his probation as alleged by the government, he asserts that his probation shouldn’t be revoked and, in any event, the previously mentioned restriction on his hunting activities shouldn’t be extended but minimally.

III. Findings of Fact

This, of course, is a criminal matter. But the stringent standard of “proof beyond a reasonable doubt” that applies at criminal trials doesn’t apply here. That is, with Mr. Spann now before the court as a convicted individual, the government need only prove one or more of the alleged probation violations “by a preponderance of evidence, ” i.e., the less arduous standard that typically applies in a civil case.[13]

The Federal Rules of Evidence do not apply at a probation-violation hearing.[14]Thus, the court may consider reliable hearsay evidence.[15]

The evidence presented during the hearing on June 27 and 28, 2013, was highly conflicting in most material respects. As a practical matter, the court has been called upon to determine and weigh the relative credibility of each of the fifteen witnesses who provided sworn testimony. This is especially so with regard to the baiting allegation and the total conflict between the ...

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