JAMES P. O'HARA, Magistrate Judge.
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.
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.
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,
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.
Significantly, the following colloquy occurred at the conclusion of the February 28, 2013 sentencing hearing:
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.
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.
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.
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.
The Federal Rules of Evidence do not apply at a probation-violation hearing.
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 testimony of Mr. Spann and that of his former videographer and principal accuser, Thomas Southerland.
Based on a preponderance of the evidence presented, the court finds that the material facts of this case are as follows:
Agents of the Tennessee Wildlife Resource Agency ("TWRA") and the United States Fish and Wildlife Services ("USFWS") opened an investigation of Mr. Spann's activities during Tennessee's spring 2013 turkey season, which started on March 30, 2013.
On March 30, 2013, Mr. Spann drove another hunter, Travis Faulkner, Mr. Faulkner's son James, one of James' friends, and Mr. Faulkner's cameraman to one of Mr. Spann's properties so they could hunt turkeys. Mr. Spann told the group where the property lines were, led them into the woods to show them where they could go, and stayed behind them during the hunt.
On April 2, 2013, Alex Rutledge, who's a professional turkey hunter, accompanied members of the music group "Bush Hawg" to hunt turkeys at the Graveyard.
On April 4, 2013, a mobile posting to Mr. Spann's Facebook page said, "Turkeys ain't talking to me today. Really hurts."
Mr. Spann testified that he does not post any information on Facebook, he does not know how to log on to the system, and others operate his page for him.
On April 5, 2013, Mr. Spann purchased five bags of scratch grain feed from a feed store.
According to Douglas Hall, the owner of the feed store, Mr. Spann told Mr. Southerland to put two bags of feed on Uncle Connor's property and that Mr. Spann would take the other three to his house to feed geese.
Later the same day, Mr. Southerland is seen on surveillance cameras at the Graveyard spreading bait.
Surveillance-camera footage at the Sawmill also shows Mr. Spann's truck enter the Sawmill, Mr. Spann remove an item from the back of his truck, and then Mr. Spann toss something onto the ground.
On April 12, 2013 (i.e., within ten days of Mr. Southerland distributing scratch grain at the Graveyard per Mr. Spann's directive), Jake Locker and Rusty Smith, quarterbacks with the National Football League's Tennessee Titans, went turkey hunting at the Graveyard.
During the Locker-Smith hunt, Mr. Spann physically possessed a mechanical, hand-held device often used by hunters to "call" turkeys (by imitating a turkey's gobbling), but Mr. Spann denies he used that device before Mr. Locker shot his turkey.
Later that morning, Mr. Smith also shot and killed a turkey at the Park.
TWRA Officer Shawn Karns testified concerning his later interview of Mr. Locker about the April 12, 2013 hunt at the Graveyard.
Officer Karns also testified about his interview of Jason Dotson (also known as "J.D."), the videographer who had been hired to replace Mr. Southerland and who filmed the April 12, 2013 hunts at the Graveyard and the Park by Messrs. Locker and Smith. During this interview, Mr. Dotson told Officer Karns that Mr. Spann had called turkeys during the hunt and that Mr. Spann generally directed the hunt as neither Mr. Locker nor Mr. Smith had been to those hunting locations before.
Mr. Dotson's belated equivocation during the recent evidentiary hearing about what he told Officer Karns isn't credible. Notably, the record contains an e-mail dated March 22, 2013, that Mr. Dotson sent to Mr. Spann, stating in pertinent part: "I want you to know and trust me that things that happen in the field will stay in the field. No talking out of school and no Kansas BS ever again."
On April 12, 2013, Jerious Norwood, a hunting friend of Mr. Spann's who was in town for the same charity event as Messrs. Locker and Smith, went turkey hunting on Mr. Spann's property with Mr. Southerland.
On April 20, 2013, surveillance-camera footage shows Mr. Spann's truck back into an area at the Sawmill, two men get out of the truck, and one of them take something and make a motion with his arm.
Additional surveillance-camera footage from that day shows Mr. Spann and his son at the Graveyard.
On April 22, 2013, government agents reported that they recovered scratch feed from the Sawmill and the Graveyard.
On or around April 22, 2013, Mr. Spann's attorney, Mr. Aisenbrey, e-mailed Mr. Spann a copy of the Tennessee statute that defines "hunting."
On April 24-25, 2013, Brian Stephens and Billy Lawson hunted on Mr. Spann's property.
On May 1, 2013, Mr. Spann sent a text message to David Welch, an occasional cameraman and employee of Mr. Spann.
On May 2, 2013, Scott Esker and his brother hunted at the Sawmill with Messrs. Spann and Dotson.
As earlier indicated, the government specifically asserts Mr. Spann violated his probation by: (1) hunting; and (2) baiting turkeys in violation of Tennessee's hunting laws. The government's proffered evidence in support of these allegations includes Mr. Spann's purchase of large amounts of turkey bait; Mr. Spann's distribution of the bait; and extensive surveillance video of Mr. Spann wearing camouflage, a turkey vest, and binoculars, and holding a decoy bag while exiting a hunting location, along with surveillance video of Mr. Spann dressed in camouflage exiting a hunting location with a dead turkey in hand. The government concedes there's no evidence that Mr. Spann ever pulled the trigger on a gun pointed at a turkey during his probationary period—indeed, the government concedes there's no evidence that Mr. Spann even carried a gun in a hunting field since he was placed on probation. But the government still asserts Mr. Spann "hunted," by "calling turkeys, carrying hunting equipment, carrying dead turkeys, and placing feed" on hunting locations.
"Generally, conditions of probation and supervised release are interpreted `in light of common sense.'"
Mr. Spann testified in response to questions posed by the court that, in his mind, hunting involves carrying and shooting a weapon at wildlife. But, as a matter of law, hunting isn't limited to the precise act of pulling the trigger on a gun or using a bow and arrow to shoot at wildlife. Rather, as discussed in detail below, hunting has been defined as searching for or pursuing wildlife. The broad legal definition of hunting shouldn't come as any surprise to Mr. Spann, who has hunted throughout the United States (indeed, internationally) and whose entire livelihood depends on the notion that he's an expert on getting in the right position to pull the trigger or shoot the arrow. Having closely observed Mr. Spann while he testified, the court has considerable reservations about the credibility of his stated belief that hunting only involves carrying and shooting a gun at wildlife. For the sake of its rulings in this case, the court will essentially accept Mr. Spann's legal position that he acted with an empty head and white heart. But legally, Mr. Spann's subjective intent is irrelevant to whether he engaged in activity that violated the conditions of probation. His subjective intent at most is relevant to how to deal with any violation that's found. That is, in this situation there's no requirement of mens rea or specific intent to violate one's probation. In the post-conviction context, similar to the pre-conviction situation in most cases, ignorance of the law—whether willful, wanton, or just negligent—isn't a legitimate excuse for illegal behavior, because people are expected to make themselves aware of the laws which apply to them.
As mentioned above, hunting has been interpreted by federal courts to mean searching for or pursuing wildlife.
Similar to the evidence in Jarrell, in the present case Mr. Spann was caught on a surveillance video along with other men walking through a hunting location. In addition, Mr. Spann was dressed in camouflage, a turkey vest, and wearing binoculars around his neck. Although there's no evidence that Tennessee fish and game officials got a warrant for this surveillance, the so-called exclusionary rule that would provide a criminal defendant a remedy for any Fourth Amendment violation doesn't apply to probation revocation proceedings.
Even if Mr. Spann acted only as a guide to the other men he took out to hunt his properties (and he freely admits to this much), his actions still constitute "hunting." In United States v. Sanford, the issue before the court was whether a hunting guide's actions constituted "hunting."
The foregoing cases make clear it's not necessary for Mr. Spann to be armed or to actually kill an animal in order to be "hunting." It's sufficient that he participated in a hunt, dressing in camouflage and other hunting equipment in order to pursue animals for himself or others to kill.
The courts in both Sanford and Jarrell interpreted "hunting" within the specific context of federal statutes. However, Mr. Spann's activities meet other definitions of hunting as well. "Hunt" has been defined broadly by some dictionaries to include the general pursuit of wild animals or game.
Even the physical conduct that Mr. Spann has admitted (e.g., setting out a turkey decoy in a field and using a calling device while turkeys were still in clear view on the hunting field), falls squarely within the broad purview of "hunting" as that term is defined both in Tennessee and under federal law.
Indeed, Mr. Spann's esteemed counsel in this case have been unable to point to any jurisdiction in the United States that defines hunting as narrowly as their professional-hunter client. As earlier indicated, the evidence shows without dispute that Mr. Spann has hunted throughout this country and also internationally, and that he's no stranger to the fact that hunting is an activity heavily regulated by these various jurisdictions. Especially given (1) the hunting-related nature of Mr. Spann's recent conviction, (2) the court's explicit admonition at sentencing about the importance of Mr. Spann consulting his supervising probation officer and lawyers about hunting-related activities while on probation, and (3) Mr. Spann's ready access to lawyers in both Tennessee and in this court to advise him on such matters, it's a bit of a stretch for Mr. Spann to suggest that he somehow was free while on probation to define hunting however he saw fit. Mr. Spann ignored the court's admonishment—he contacted neither his supervising probation officer nor his lawyers in this case before engaging in the activities that led to the filing of the instant revocation petition. So, while some in the hunting community might rightly complain that it's difficult (or even too difficult) to comply with the technical aspects of hunting laws in the various states, it's pretty obvious here that Mr. Spann proceeded at his own peril. Despite the state of the record in this case, the court has given Mr. Spann the benefit of the doubt and refrained from finding him to be a liar on the issue of whether he believed in his own mind that he unlawfully hunted while on probation. But the most charitable thing that can be said here is that, whatever Mr. Spann's purported prowess out in the field might be, when it comes to making any reasonable effort to comply with the applicable laws, hopefully he's among the most careless of hunters.
Independent of Mr. Spann's hunting, the evidence shows that Mr. Spann violated his probation by committing a new state crime. Tennessee Wildlife Resources Commission Proclamation 12-05, Section II, ¶5, states, "No person shall make use of bait to take wildlife unless the bait has been removed and any electronic feeder disabled at least 10 days prior to hunting." Mr. Spann illegally had turkey bait distributed by one of his employees, Mr. Southerland, at hunting properties to which he had access. Mr. Southerland testified that during the approximately five years he was employed by Mr. Spann it was not uncommon for Mr. Spann to instruct him to bait turkey hunting fields even in close proximity to hunting season.
Mr. Southerland testified he was specifically instructed by Mr. Spann on April 5, 2013, to distribute scratch grain as turkey bait at the Graveyard and the Park where Mr. Spann frequently hunted. Although the parties disagree about the full nature and extent of Mr. Spann's involvement, there's no dispute that about a week later, on April 13, 2013, Mr. Spann accompanied Mr. Norwood to those two fields to hunt turkeys. In contrast to what Mr. Spann said about whether his activities while on probation constituted hunting, he admits he knew it was against Tennessee law to hunt on a baited field within ten days of such grain being laid out.
Mr. Spann argues for a variety of reasons that Mr. Southerland's testimony lacks credibility. Most significantly, Mr. Spann asserts prejudice arising out of their soured employer-employee relationship. Further, Mr. Spann implies Mr. Southerland may have harbored some kind of grudge because Mr. Spann previously had declined to promote a hunting business venture Mr. Southerland had with a Tennessee wildlife official. Having carefully observed both Mr. Southerland and Mr. Spann while testifying on this particular point (which is one of the two most crucial points in the case), and having weighed their testimony in light of the record as a whole, the court finds Mr. Southerland very credible and Mr. Spann not credible. Significantly, Mr. Southerland's testimony that he baited the properties was credibly corroborated by the Tennessee wildlife officials who testified that they personally observed turkey bait on those properties during their covert investigative work on this case.
The court assumes Mr. Spann testified truthfully about some things involved in this case. But it's very difficult to put much stock in most of what he says. First, although Mr. Spann may not be atypical in the reality TV business in this regard (whether the shows involve bachelorettes, stranded survivors on faraway islands, or hunting game in the wild), his basic business model is inconsistent with the notion of always telling the truth. As was testified at some length by Mr. Spann,
And second, in a related vein as relates to Mr. Spann's credibility, the record contains a fair amount of facially incriminating transmissions directly or indirectly attributed to Mr. Spann via Facebook postings and text messages about him being involved in hunting while on probation. According to Mr. Spann and his wife, he's computer-illiterate and none of these factually inaccurate postings were made by Mr. Spann—instead, the postings were made by Mrs. Spann, other members of the family, or business associates. Taking at face value the testimony of Mr. Spann and the other witnesses whom he called on this issue, they would have the court believe that virtually everything that appears on Mr. Spann's Facebook page and text messages is essentially make-believe. Notably the record is devoid of any reasonably contemporaneous objection or disavowal by Mr. Spann of the postings, who presumably would have some concern they might later result in him going to prison for violating probation. To be sure, Mr. Spann can't be the only so-called celebrity who has others handle such things for marketing and merchandising objectives that may be entirely legitimate. Regardless of whether these make-believe social media postings might concern Mr. Spann's hunting sponsors (or should concern his hunting fans), this way of doing business does fairly call into question whether Mr. Spann has any difficulty with creating and maintaining a public persona that's based on fabrication instead of truth.
Mr. Spann seems to have a stable, loving family, is unquestionably successful in business, is meaningfully involved with a local charity, and appears to be well-liked by some minor celebrities and some of his peers in the professional hunting community. These, of course, are all commendable things. But basically what Mr. Spann has asked the court to do here is ignore a mountain of incriminating evidence and then take his word that he's telling the truth about not hunting or baiting turkeys, even though his basic way of doing business depends on subtle deception. Given the record presented, the court respectfully submits that Mr. Spann asks too much.
Mr. Spann demonstrated no remorse for his conduct during the recent hearings in court. Other than grudgingly admitting that perhaps he committed a technical violation of Tennessee hunting laws by setting up a decoy in a field (supposedly because the decoy was broken and his unverified assumption that hunters whom he accompanied wouldn't have been able to set it up themselves), Mr. Spann refused to accept responsibility for his conduct, particularly with regard to the baiting of turkeys. As earlier indicated, the court ultimately declined but came very close to finding that Mr. Spann knowingly gave false testimony under oath in this case. Simply put, the court finds Mr. Spann's attitude about this entire matter to be arrogant.
Based on the violation report, the evidence presented, and the previously stated findings of fact and conclusions of law, the court rules by a preponderance of the evidence that Mr. Spann violated the terms of his probation by: (1) hunting in the United States within six months from the date of his sentencing; and (2) independent of the first violation, by baiting turkeys, which is a crime under Tennessee law.
The question remains of what to do with Mr. Spann. The court has considered the nature and circumstances of the above-described violations, the personal characteristics of Mr. Spann, and the sentencing objectives and factors required by 18 U.S.C. § 3553(a). The court has also considered the advisory, non-binding Chapter 7 policy statements issued by the Sentencing Commission under 28 U.S.C. § 994(a)(2). In this regard, the parties agree that, assuming the court finds a violation, it arises out of a misdemeanor and thus is a Grade C violation (the lowest level) under the Sentencing Guidelines. There's no dispute Mr. Spann falls into Criminal History Category I (the least serious category). Under these circumstances, the Sentencing Guidelines suggest (but don't require) a custodial sentence of three to nine months.
The court declines to adopt the recommendation of the supervising probation officer in her petition that Mr. Spann's probation be revoked. Likewise, the court declines to follow the government's suggested disposition, i.e., that Mr. Spann's probation be modified in two specific respects, i.e., by sending him to prison for three months and prohibiting him from hunting anywhere until his current term of probation expires on February 28, 2016.
Mr. Spann has argued that, assuming any probation violation is found, no time in custody is appropriate and "a minimal extension of the no hunting condition is the punishment that meets the offense."
Mr. Spann shall remain on probation until February 28, 2016 on all the conditions previously imposed.
IT IS SO ORDERED.
