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United States v. Hogan

July 12, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

R. BRUCE HOGAN, ROBERT A. HOGAN, WILLIAM W. CURTIS, AND RANDY L. VOGEL,

DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 95 CR 30014--Richard Mills, Judge.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

EVANS, Circuit Judge.

ARGUED MAY 22, 1996

DECIDED JULY 12, 1996

This case is duck soup--misdemeanor convictions, only fines imposed, and a challenge on appeal only to the sufficiency of the evidence. We affirm.

The 1994 duck hunting season in central Illinois opened on October 27. On that day, Bruce and Robert Hogan, along with William Curtis, Randy Vogel, and other members of the Long Lake Hunt Club, went hunting on club grounds located along the Illinois River near the town of Browning in Schuyler County. The ducks, it seems, came out ahead, losing only two hens and a drake to the hunters. Compared to these slim losses, nine duck hunters were bagged on a bevy of charges.

The Hogans, Curtis, and Vogel were convicted following a bench trial before Judge Richard Mills in the district court. The charges included violations of 16 U.S.C. sec. 703, a class B misdemeanor, which carries a penalty of up to six months imprisonment and a $5,000 fine. The Hogans were each fined $1,100; Curtis was fined $1,000; and Vogel $2,100.

In this appeal, the four defendants contend that the evidence was insufficient to sustain their convictions. The government, however, citing United States v. Hickok, 77 F.3d 992 (7th Cir. 1996), argues that the defendants failed to preserve the issue because they didn't renew their motion for a judgment of acquittal following the close of all the evidence or within the seven-day period set out in Rule 29(c) of the Federal Rules of Criminal Procedure. Accordingly, the government contends that the convictions cannot be disturbed absent a manifest miscarriage of justice. At oral argument, the defendants conceded that a waiver occurred.

We disagree. The rule that a motion for a judgment of acquittal must be made to preserve the issue of evidence sufficiency on appeal has general applicability in criminal cases, most of which are tried to juries. It is inapplicable in this case, however, which was tried to the court. In United States v. South, 28 F.3d 619 (7th Cir. 1994), we determined that in a case tried to the court it is unnecessary to move formally for a judgment of acquittal. As far back as United States v. Hon, 306 F.2d 52, 54 (7th Cir. 1962), overruled on other grounds, 507 F.2d 22 (7th Cir. 1974), we stated:

[T]here can be little or no need for a formal motion for a judgment of acquittal in a criminal case tried to a court without a jury upon the defendant's plea of not guilty. The plea of not guilty asks the court for a judgment of acquittal and a motion to the same end is not necessary. See also United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993).

Our task on appeal, therefore, is to review all the evidence and the reasonable inferences that can be drawn from that evidence in the light most favorable to the government. United States v. Pritchard, 745 F.2d 1112 (7th Cir. 1984). We must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Gonzalez, 933 F.2d 417 (7th Cir. 1991).

Looking at the evidence, we cannot find that it is insufficient. The elements of a violation of 16 U.S.C. sec. 703 are that the area was baited; that the defendants took or attempted to take migratory birds over the baited area; and that, in fact, the birds involved were migratory birds. The offense is a strict liability crime; a defendant is responsible whether or not he knew the area was baited. In this case, the defendants were hunting ducks; ducks are migratory birds. Thus, the only issue is whether the area was in fact baited.

As we have noted, the defendants involved in this appeal were members of the Long Lake Hunt Club. Long Lake consists of an upper and a lower lake. The incidents with which we are concerned occurred on the lower lake, the site of three duck blinds. According to the testimony of Virgil Gobel, the caretaker of the club and a witness for the defense, prior to the hunting season certain preparations are made. When the water level in the river is high during the spring, the area is under water. As the river recedes, the lake levels also go down. When the area is sufficiently dry, the club plants millet, also known as bird seed. The only conceivable purpose for planting millet is to attract ducks and other migratory waterfowl. In 1994, according to the log kept by Mr. Gobel, planting was done at the upper lake on July 6 and at the lower lake on approximately July 18. Once the crops grow and prior to the hunting season, the crop is mowed. Then, if the club is to avoid violating the baiting laws, the vegetation must be cleaned up so that once hunting begins, the area is not baited.

On September 30, just short of a month prior to the start of the 1994 duck hunting season (recall we said it began on October 27), United States Fish and Wildlife agents conducted a routine air patrol over the Illinois River. When they passed over Long Lake, they saw mowed areas of a planted crop around duck blinds. They photographed the area. During the next few weeks, the Illinois Department of Conservation determined which sites in the state would be inspected for baiting violations. Long Lake was chosen. In carrying out the inspection on October 24, officers walked into the Long Lake club and saw mowed millet stalks and seeds floating throughout an area in which there were ...


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