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United States of America v. Jcs andrew "Andy" Elchos and Theodore "Ted" Elchos

January 19, 2012


The opinion of the court was delivered by: David Bramlette United States District Judge


This cause is before the Court on Appeal from United States Magistrate Judge Sumner's Ruling and Sentence filed pursuant to Rule 58(b)(2)(B) of the Federal Rules of Criminal Procedure. Having carefully considered said Appeal, the Government's response thereto, applicable statutory and case law, and being otherwise fully advised in the premises, the Court finds as follows:

I. Facts and Procedural History

According to the record below, Andy Elchos, former game warden for the State of Mississippi, became the target of a Mississippi Department of Wildlife investigation after agent Gary Smith overheard a conversation between Tim Hodnett and Mark Necaise regarding illegal hunting activity. Tr. 10. Accordingly, working as a confidential informant in cooperation with Smith, Hodnett invited Andy Elchos to participate in a duck hunt during the special "teal season." Tr. 9. Prior to the hunt, Hodnett informed Andy Elchos in a phone conversation, which was recorded by Hodnett and submitted as evidence at trial, that he had illegally baited the pond where they would be hunting. Tr. 17. Further, on the night before the hunt, Agent Smith testified that he visited the pond and took photographs of the probable location of the hunters and samples of the bait (soybeans) lying on the banks of the pond.*fn1 Tr. 19.

On September 17, 2006, Tim Hodnett and his son led Andy Elchos and his brother Ted Elchos on a duck hunt at a pond near his home in Sharkey County, Mississippi. According to Hodnett, it was apparent to the hunters that the pond was baited.*fn2 Hodnett testified at trial that the hunters killed twenty-eight (28) ducks during the morning hunt. Of those twenty-eight (28), Hodnett claimed that he and his son were responsible for killing seven (7) teal, and that the remaining ducks, which were comprised of teal, wood ducks, and shovelers, had been shot by Andy and Ted Elchos. Tr. 27. Immediately after the ducks had been retrieved from the pond, Hodnett surreptitiously took the birds to Smith, who was undercover nearby, so that Smith could take pictures of them. Tr. 76-77. Smith laid out the ducks on the tailgate of Hodnett's truck and photographed them before instructing Hodnett to return to the other hunters with the ducks.*fn3 Tr. 24, 27.

Later that evening, the hunters returned to the baited pond and resumed their hunt. Tr. 28. Following the afternoon hunt, the hunters went back to Hodnett's home to clean the ducks. Tr. 28. While there, Hodnett's girlfriend took pictures of the hunters standing on the back deck of Hodnett's home with the ducks visible in the background.*fn4 Tr. 35. Once informed by Hodnett that the hunters had departed from his residence, Smith went to Hodnett's home to photograph the discarded carcasses. Tr. 30. Pictures introduced at trial showed that seventeen (17) teal, fifteen (15) wood ducks, and three (3) shovelers had been killed during the morning and afternoon hunts. In addition to taking the pictures, Smith bagged the carcasses as evidence. Tr. 37. Smith testified at trial that he later compared the carcasses to the pictures of the twenty-eight (28) ducks he had photographed after the morning hunt and that the carcasses were consistent with the ducks in the photographs. Tr. 38. Before leaving, Smith returned to the scene of the hunt and took pictures of the bait floating in the pond directly below the blind and the discharged shotgun casings lying nearby.*fn5 Tr. 30-31. He also took pictures of the blind where the hunters were stationed. Tr. 30.

At the conclusion of the bench trial, Magistrate Judge Sumner found the Appellants Andy and Ted Elchos guilty of five counts of violating the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703, et. seq. and its attendant regulations. See 50 C.F.R. § 20.21, et seq. Specifically, Judge Sumner found that the Appellants hunted over bait (Count 1), hunted in a closed season (Count 2), exceeded the bag limit (Count 3), exceeded the field limit (Count 4), and exceeded the possession limit for a single day (Count 5). Andy Elchos was sentenced to thirty (30) days in jail, two (2) years probation, no migratory bird hunting while on supervision, and a $3,000 fine. Ted Elchos was sentenced to two (2) years probation and a $3,000 fine. Following their sentences, the Appellants perfected their Appeal, which is now before the Court.*fn6

II. Standard of Review

"Pursuant to Rule 58(g)(2)(D) of the Federal Rules of Criminal Procedure, when reviewing a conviction by a magistrate judge the 'scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge.'" United States v. Jackson, 470 F. Supp. 2d 654, 656 (S.D. Miss. 2007). An appellate court reviews the trial court's evidentiary determinations for abuse of discretion. United States v. Sanders, 343 F.3d 511, 517 (5th. Cir. 2003). (citing United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994)). If the reviewing court finds that the trial court has abused its discretion, the court will not reverse if it deems the error to be harmless. Sanders, 343 F.3d at 517.

With regard to the sufficiency of the evidence, the magistrate court's conclusion is subject to the "any substantial evidence" standard. United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002) (citing United States v. Ceballos--Torres, 218 F.3d 409, 411 (5th Cir. 2000), amended by 226 F.3d 651 (5th Cir. 2000). "Evidence is sufficient to support a conviction if any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt." Morgan, 311 F.3d at 613 (Ceballos--Torres, 218 F.3d 409 at 411). The appellate court "examines the evidence as a whole, construing it in the light most favorable to the government." Morgan, 311 F.3d at 613.

III. Discussion

Appellants allege that the trial court (1) should have granted Andy Elchos's Motion in Limine to exclude certain audio tapes,(2) improperly admitted hearsay into evidence, (3) erred in denying their Motion for Acquittal based on the insufficiency of the evidence, (4) and erred in denying their Motion for Acquittal because no federal agent personally observed any violations of the MBTA. Of these alleged errors, the first two challenge the trial court's evidentiary determinations and are therefore reviewed for abuse of discretion. The allegation that the trial court lacked sufficient evidence to support a conviction is evaluated under the "any substantial evidence" standard. The Appellants' fourth allegation is a question of law, reviewed de novo, but is plainly without merit and is dismissed without discussion.*fn7

1. Whether the Trial Court Abused Its Discretion in Denying Andy Elchos's Motion in Limine to Exclude Certain Audio Recordings

"'Admission of tape recordings falls within the 'sound discretion' of the trial court.'" Thompson, 130 F.3d 676, 683 (5th Cir. 1997) (quoting United States v. White, 116 F.3d 903, 920 (D.C. Cir. 1997) (per curiam)). The preeminent requirement for the admissibility of audio recordings is reliability. Thompson, 130 F.3d at 683. The government bears the burden of showing that the recordings are "accurate, authentic, and trustworthy." Id. Once the proper foundation has been laid, the party challenging the recordings must show that they are inaccurate. Id. (citing United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986). A trial court's decision to admit audio tapes over the objection that they are inaudible is ...

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