I was an attorney of record for Bob Kern and participated in his defense in the trial in Houston. There is much to learn from this unprecedented case that may go unknown unless it is shared here and now.
The trial was in Houston because that is the port the trophies were imported through. Of course, that added enormous cost to the defense for the hearings and motions before the trial and during the trial itself. Hunters may wish to consider this when importing their trophies. Brokers like Bob Kern have no control over what port the trophies will be imported through. It is generally best to have local counsel. But when that counsel is across the country, the communication and preparation can’t be as thorough. Make no mistake about it: Defending yourself can cost you every cent you have. These are the laws hunters themselves passed.
A Lacey Act violation is a felony when it is knowingly committed even though the foreign law that is allegedly violated is a minor offense, no matter how minor. You read that correctly. The foreign country need not care, want to prosecute or cooperate in the prosecution. In this case, no one in all of Russia had ever been penalized for the Russian misdemeanor before the US Law Enforcement’s Fire & Ice investigation began. The Russian authorities themselves had not instigated the investigation. To the contrary, the local Russian authorities oversaw the hunt and government entities operated the helicopters and directed the alleged criminal conduct. None of those mitigating facts deterred the prosecution one iota. Lesson: The letter of the local regulation, not the custom, practice or even the will of the foreign government controls.
Bob Kern did not pull the trigger. He was prosecuted for aiding others, particularly for knowingly aiding in the importation after the fact. Lesson: Assisting someone else who has committed a minor offense is a felony when you know the animal was taken illegally. That includes importation of the trophy at a later date thousands of miles away. It could be your employee helping, or one hunter assisting another. If your hunting buddy has violated the local law, distance yourself completely. Perhaps brokers can protect themselves by prohibiting or preventing the import of any trophy they or their employees and agents learn to have been taken illegally. Remember, in the instant case, the grand jury refused the charges against the hunters that pulled the triggers, yet the US government separately prosecuted both the company and individual for assisting the hunters with importation after the alleged violations.
Penalties for recreational hunters, guides, and in this instance, a broker company and broker, are almost always disproportionate to the underlying offense. Bob Kern faced a fine of $250,000 and five years imprisonment. Under the sentencing guidelines, he most certainly would have had to serve hard time in jail had he been convicted. He would have been a felon with no right to vote or even be in constructive possession of any firearm. That would make it another felony to be in the same household as someone else’s firearms, like his wife’s or clients’. Such heavy penalties place a defendant at a disadvantage in plea-bargaining negotiations once he or she is threatened with prosecution. There is nothing more disproportionate under the law. Of course, under the law, the jurors are also instructed that they are not to consider the seriousness of the penalties, only whether or not a violation has occurred.
In Bob’s case, 12 jurors unanimously found him and his company not guilty after a week-long trial. Don’t think for a moment that the trial was easy. The entire jury pool had to be exhausted to select the 12 jurors and two alternates. During jury selection, there was an unusually certain and instantaneous bias against trophy hunting. I’ve never seen so many hands come up so quickly as when the prospective jurors were asked if they were opposed to trophy hunting. The judge, the senior judge in that circuit court, said he had never before exhausted a jury panel in the selection process. Believe me, it was plain frightening. Over objections, the trophies were on display in front of the jury throughout much of the trial. No, it was not easy. The prosecution could not resist painting a picture of dead, lifeless moose dangling below a helicopter even though it was being transported by the local Russian government to children at an orphanage in southern Siberia who would otherwise not have any meat for months.
In short, it is not easy to get a fair trial. The conviction rate in federal court is above 90%. It is not where you ever want to be. Don’t violate any foreign law or law of another state. If in doubt, don’t bring the trophy or meat (any product) home because that is when jurisdiction attaches and the time for prosecution starts running. In this instance, the species were common moose and sheep that were to be taken by the local government anyway to feed the local people. Had the game been listed species, as is often the case, it would have been even more difficult to get a fair trial. In that instance, the time limits on prosecution may also not run as long as the trophy is in your possession, yet disposing of it can be considered destruction of evidence, which is another crime.
Because of all this, I suggest a high level of care on the part of hunters who hunt out-of-state and in foreign lands. By that I mean avoid even the appearance of unlawful activity of any kind. Be on the defensive. Don’t attempt to import a trophy or assist others (attempt is a full offense under the Lacey Act) when in any doubt whatsoever about the underlying hunt.
A final word about this case which some see as a black eye to the hunting community: The hunters did not get the hunt they wanted or expected or that their broker thought they were to get. It was the first opening tourist hunt there and the longstanding legal practice was for the government itself to helicopter-hunt for meat (a “meat hunt”) to feed the local people. The hunters did what they were told to do by agents of the state and were told that it was legal as well. All said, remember that even though the method or manner in which a hunt is conducted does not feel right, or other hunters or brokers may complain, it is not necessarily illegal. – John J. Jackson, III.