This Association and many dedicated members have been working hard to try to educate members of Congress on what we feel is wrong with this legislation. It has been difficult, yet at times encouraging.
We live in a different and ever­changing world. We have lost the ability as a government, as a society, and as individuals to say what is right and what is wrong, what is ethical and what is not, what is moral and what is immoral. We now feel it necessary to explain, justify, even redefine, in an attempt to make our behavior, our decisions, our choices, acceptable. Even honesty is old fashioned. Compromising one's values and beliefs for some political gain is abhorrent to me.

The issue at hand is not about winning or losing, making more baiting cases or less baiting cases. It is all about fairness and ethics in the sport (privilege) of hunting and the decision to allow a practice that will, without a doubt, result in the killing of more waterfowl at a time when the conservation of this resource is of paramount importance.

My warmest regards to those who cared deeply enough to speak out, who truly realize how this action weakens the sport of hunting, and weakens what heretofore has been regarded as the premier natural resource conservation agency in the world. To those who sat and continue to sit by thinking that this unimportant, I say ``shame on you,'' and to those in Washington who hold titles such as Senator, Congressman, Director, Chief, and other such titles, I say such titles do not a leader make.True leaders possess true values and we all know what they are...or do we???

FORMER AGENT KELVIN SMITH PLEADS GUILTY

For more than five years, we in Service law enforcement, especially in Region 5, and particularly in Pennsylvania, have lived and worked in the mocking
shadow of one of our own gone very bad.

KELVIN SMITH, a former Special Agent with the Service, has entered a conditional guilty plea to four felony counts explained below in the U.S. Attorney's Press Release. We who worked with KELVIN (on that rare occasion when he did) are not surprised by this outcome, only by the fact that it has taken so long for it to happen.

A Harrisburg Patriot News article stated that the judge
had noted SMITH's failure to disclose outside sources
of income to either the IRS or the Fish and Wildlife
Service and had abused his use of government owned
vehicles and equipment. ``Attempting to resolve the
matter, authorities gave SMITH a chance to plead
guilty to either ethics violations or tax evasion, instead
of pursuing the more serious charges now pending---
an offer SMITH refused,'' VANASKIE wrote.

In his second interview by the FBI, SMITH was asked
to assist in the investigation because he was a law
enforcement officer. SMITH refused, saying he was a
Muslim first.

Under sentencing guidelines, SMITH could be sentenced to less than two years in jail at his hearing
scheduled for January 18th, pending the appeal.

PRESS RELEASE
September 30, 1998
U.S. Department of Justice
Office of the United States Attorney
Middle District of Pennsylvania

DAVID M. BARASCH, United States Attorney for the
Middle District of Pennsylvania, announced that a local U.S. Fish and Wildlife Service Officer entered a conditional plea of guilt Tuesday afternoon to charges he lied about training he provided terrorists plotting to bomb New York City area landmarks and to concealing their semiautomatic rifles in order to avoid their seizure by the FBI.

On February 26, 1996, KELVIN E. SMITH (All emphasis in the original), age 44, R.D. #2, Cold Storage Road, New Bloomfield, PA, was named in a four­count indictment returned by a Middle District of Pennsylvania grand jury.The first three counts charged SMITH with making FALSE STATEMENTS, 18 U.S.C. 1001. A fourth count charged SMITH with DESTRUCTION OR REMOVAL OF PROPERTY TO AVOID SEIZURE, in violation of 18 U.S.C. 2232(a). The False Statement Counts alleged SMITH lied to the FBI in February, March and June of 1993, about the nature and extent of paramilitary training SMITH provided a group of individuals then under FBI investigation for suspected terrorist activities. The counts alleged that SMITH, who was a federally licensed firearms dealer, concealed the fact he had purchased semiautomatic assault rifles, semiautomatic handguns and ammunition for their use at SMITH's Perry County, PA, residence in early 1993.

Six members of the group trained by SMITH were Islamic political extremists who were indicted by the Southern District of New York in 1993 and subsequently convicted of engaging in a seditious conspiracy to commit acts of urban terrorism, including
the assassination of President Mubarak of Egypt, the bombing of the World Trade Center, the Lincoln Tunnel,the Holland Tunnel, the George Washington Bridge, and the United Nations Building in Manhattan.Three other trainees were convicted on other charges.

During the change of plea hearing before the HONORABLE THOMAS I. VANASKIE on Tuesday afternoon in Scranton, SMITH admitted that on four weekends between January 8 and February 7, 1993, he gave the trainees extensive firearms and paramilitary style training at his remote, 25­acre Perry County residence. The training included the firing of semi-automatic assault rifles, commando style shooting exercises, intense physical fitness training, hand­to­hand combat techniques, martial arts instruction, pepper mace training, and mock nighttime assaults on a nearby electric power substation. SMITH purchased a MAK­90 semiautomatic assault rifle, 3 SKS semi-automatic assault rifles, two .45 caliber semi-automatic handguns, more than 2,000 rounds of ammunition, and $1,900 worth of repelling equipment for the trainee's use with cash supplied by the trainees.

During one of the mock assaults, SMITH was approached by a Pennsylvania State Police Trooper at the electric substation and questioned regarding his activities. SMITH satisfied the trooper by identifying himself as a Fish and Wildlife Service (FWS) Officer and by claiming to be watching for deer poachers. After the trooper departed, SMITH used his undercover FWS van to transport the trainees back to his residence.

After SMITH was approached by the FBI on February 18, 1993, and his cooperation was solicited,  SMITH used his undercover FWS telephone to alert the trainees they were under FBI scrutiny. After the World Trade Center bombing on February 26, 1993, the FBI again approached SMITH on March 17, 1993, explaining they suspected some of the trainees may have had a role in the bombing. SMITH again lied, telling the agents he gave the trainees basic, ``Boy Scout'' type training. Thereafter, SMITH delivered repelling equipment he had purchased for the trainees under the name of the FWS and with a substantial government discount, to one of their leaders in New York City.

On June 24, 1993, the FBI arrested several trainees as they mixed explosives in a Queens ``Safehouse.'' Around the same time, the FBI developed information that the trainees had transported their own semi­ automatic assault rifles to SMITH's residence and that SMITH had disposed of the rifles in order to avoid their seizure by the FBI. On June 26, 1993, SMITH was reinterviewed by the FBI and he denied the allegations. A subsequent search of his property was fruitless.

However, during the guilty plea hearing on Tuesday, SMITH admitted that the trainees had, if fact, brought 3­4 SKS assault rifles to his home in early February of1993 and that following his initial interview with the FBI, he disposed of them by throwing them off the Commodore Perry Bridge into the Delaware River near Chester, PA. An extensive search of the river in October of 1994 by a team of FBI divers using sophisticated underwater detection equipment failed to  produce the weapons.

Since his indictment, SMITH has been on unpaid, administrative leave from his job as a Special Agent with the Fish and Wildlife Service. Each count carries a maximum penalty of five years incarceration and a $250,000 fine. During the hearing the government told JUDGE VANASKIE there was no evidence SMITH was aware the trainees planned to blow up New York City landmarks or assassinate President Mubarak. According to SMITH, the trainees told him they wanted the paramilitary training so they could fight as mercenaries in Bosnia.

SMITH pleaded guilty to his indictment on the condition he be permitted to appeal JUDGE VANASKIE's September 18, 1998, Opinion and Order precluding him from presenting a ``lesser harms'' defense. The proposed defense was based on SMITH's claim he committed the crimes in order to avoid physical harm from the trainees. In precluding the defense, JUDGE VANASKIE found SMITH failed to present prima facie evidence he was aware of any specific threat and he had no viable legal alternatives. Trial was scheduled to begin in U.S. District Court in Harrisburg on October 5, 1998.
The case was investigated by the Harrisburg and Manhattan Offices of the FBI with assistance of the Department of the Interior's Inspector General's Office. The case is being prosecuted by Assistant U.S. Attorney KIM DOUGLAS DANIEL.
Submitted by Dick Hart, Mercer, PA.

It regrettably appears that this thing is a done deal. This is a sad day for the sport of hunting and the long­standing honorable tradition of fair chase. Do you think any of these legislators ever stopped to imagine how a game warden could actually prove that a hunter ``knew'' that an area was baited? It would be like asking the police officer to prove that a driver ``knew'' that he/she was exceeding the speed limit or he/she ``new'' that a tail light was inoperable.

If Congress adopts the lesser standard of``should have known'' which was addressed in the Delahoussaye decision, there must be a collateral regulatory requirement whereby the hunter is required to ``clear'' the area of illegal devices prior to hunting. Without such a requirement, the law becomes unenforceable because, once again, how can an officer prove that anyone should have known. The Delahoussaye decision only applies in the 5th Circuit. The rest of the nation has no Delahoussaye decision to require hunters to``clear'' their areas prior to hunting. In other words, it would be a disaster to take away strict liability without imposing some affirmative responsibility on the individual hunter.

The Justices, in deciding Delahoussaye, mandated the minimum scienter ``should have known'' standard for those hunters ``properly wishing to clear their areas.'' The Justices also said that it was ``reasonable to require hunters to clear their areas.''Therefore, if a hunter does not make a reasonable effort to clear his/her area prior to hunting, and it is found to be baited, the strict liability standard should be applied. If a hunter decides not to clear the area before hunting, it only makes common sense that the game warden should not be required to prove scienter. The current proposal falls woefully short of the precedent set by the Delahoussaye court because there is no requirement that the hunter clear the area prior to hunting. Clearing the area entails asking about that which is luring birds to the area and physically inspecting the area for bait.

Why is a hunter being held to a lesser standard for bait than he/she is for shooting hours or bag limits? It is because everyone understands the fact that a hunter should check the shooting times before hunting and consult a wristwatch while hunting to confirm shooting hours. No one would suggest that the hunter that didn't bother to check the shooting time, and went afield on a cloudy day with no watch, deserves a break when he/she says ``I didn't know it was after shooting hours.''

Think about it...how would the game warden substantiate that the hunter knew, or should have known, it was after shooting hours.Without being a mind reader, it would be pretty tough. About the only way I know of would be to consider the degree of darkness, whether or not the hunter had a watch, and whether or not he/ she admitted knowledge of the official shooting hours.

Many times I asked early or late shooters if they knew when shooting time began or ended, and they typically responded, ``No, I haven't got a clue.'' Honestly, should I give this irresponsible hunter a break or should I give a ticket? Late shooting is no different than baiting or any other regulatory offense and should not be treated any different. The same premise holds true on a baited field, like the Dixie County dove shoot. When I ask a hunter who is standing in the bait if he made any effort to clear the area prior to hunting and the reply is ``No, I did not,'' does this irresponsible hunter deserve a break for a ticket?

Under the Delahoussaye guidelines I could justifiably decide to issue a citation if the area is baited and the hunter made no effort to clear the area. Under the Congressman Young guidelines, I could not as the hunter has no mandated responsibility to clear the area and I would have to prove scienter independent of the fact that the hunter neither asked nor looked before hunting. I would be required to prove a state of mind which is a pretty tall order. It is such a tall order that I question whether or not there is an unwritten motive hereto render the baiting regulations unenforceable.

I strongly believe that most of those championing the scienter requirement would really prefer to just legalize baiting. Did you ever wonder why so many of these Congressmen's friends are getting caught hunting on baited fields? It is because baiting is rampant, it's socially acceptable, and influential people gravitate to such hunts.The baiting is actually done for their benefit!  This proposed change will alter investigative procedures regarding migratory bird enforcement. It forces agents to get inside the heads of violators in order to prove knowledge and intent.

The only way to do this is for agents to go undercover and participate in the illegal hunts which will proliferate under the relaxed regulations. Undercover activities entail videos, recordings, and the potential for very embarrassing testimony.  Imagine the Dixie County dove shoot which consisted of over one hundred well connected hunters, many of whom were drunk, being infiltrated by a few undercover agents. It would be easy to slip camouflaged agents into a crowd of hunters, most of whom don't even know each other.

These alternatives and the  repercussions should be considered before statutory changes occur. Undercover operations typically end with indictments. Baiting citations usually end with a forfeiture of collateral.You think we have problems now, just wait and see what happens under the new requirements. It was interesting to note the discussion about increased penalties. I think that the felony provisions of the existing MBTA should be enhanced to include the offenses of ``knowingly'' taking migratory game birds by the aid of bait, or on or over a baited area.

Traditionally, all felony offenses require knowledge, while misdemeanor regulatory offenses do not. Lesser strict liability baiting offenses should continue to be treated as misdemeanors.The``big hammer'' lies in the felony conviction and the consequences thereof. Loss of  voting privileges, right to possess firearms, etc. Courts rarely impose the maximum sentence to migratory bird violators under the $5,000/6­month standard of the existing Class B misdemeanor; therefore, don't expect to see a great increase in penalties if the ante is raised to the proposed status of a Class A misdemeanor of $10,000/1 year. 
Submitted by Frank Simms, Glynco, GA.

JOE OLIVEROS APPRECIATES ALL THE SUPPORT

Joe was diagnosed with cancer in early September. The news not only shocked Joe's friends and colleagues but Joe and his family as well. Joe went to the doctor to check for a possible ulcer when the doctors located a cancerous tumor in his stomach. Joe was immediately scheduled for surgery and had the tumor removed. During the surgery, on September 26, the doctors removed the lower part of Joe's esophagus, entire stomach and two lymph nodes behind his stomach.The doctors also found cancer in Joe's liver.

Two days after the surgery Joe's attitude and appearance were unbelievable. He was able to take limited visitors and joked with everyone who came. He has continued to regain his strength and improve daily. The major hurdle now is being able to eat enough food orally to keep his strength up. Some swelling occurred in his upper intestine which is hampering the food when it passes through his system.The doctors are addressing this problem and hopefully it will be resolved shortly.

Joe has now been released from the hospital and has started chemotherapy treatments. This has been an incredible shock to everyone involved and to everyone who knows Joe. Joe appreciates everyone who has sent cards, called, and even visited.The support has been great. Correspondence can be sent through the Jacksonville LE office at:
6620 Southpoint Drive South
Suite 310
Jacksonville, FL 32216
Submitted by Joe Pilgrim, Jacksonville, FL

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