Game processor who said game warden framed him gets day in court -- again

By Chet Brokaw, The Associated Press | Wednesday, November 12, 2008

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PIERRE -- An appeals court soon will decide whether to reinstate the conviction of a Pierre game processor who argued that a federal game warden framed him for possessing untagged geese.

A three-judge panel of the 8th U.S. Circuit Court of Appeals officially gets the case on Wednesday, but it will not rule until later. The panel is not hearing oral arguments in the appeal, partly because game processor Caleb Gilkerson is representing himself without help from a lawyer.

A magistrate judge found Gilkerson guilty of violating the Migratory Bird Treaty Act and fined him $2,100 after a one-day trial last year, but Gilkerson then appealed to U.S. District Judge Charles Kornmann.

Last December, Kornmann threw out Gilkerson's conviction for possessing untagged geese, dismissed the case and ordered that Gilkerson receive a refund of any fines and other costs he had paid.

Kornmann said federal regulations prohibit facilities that handle migratory birds from having untagged geese, and Gilkerson could not be convicted because he is not a facility. Gilkerson is an employee and one of the stockholders of the game-processing shop named Steamboat Game and Fish Inc., the judge said.

In its appeal, the federal government argues that Gilkerson's conviction should be reinstated because federal regulations banning the possession of untagged geese apply both to facilities and people. "These regulations specifically include individuals and allow them to lawfully possess migratory birds for processing only if they are properly tagged," according to the government's written argument.

In addition, the fact that Gilkerson may be an agent of the game-processing corporation should not shield him from criminal liability, the government argues.

Regardless of whether Gilkerson is defined as a migratory bird preservation facility, he committed a criminal offense because he possessed untagged geese, the government contends.

But Gilkerson argues the appeals court should agree with Kornmann's decision to strike down his conviction.

"These regulations specifically apply to the facility. Not to an individual that is an employee of the facility. Especially not an employee where there was not an argument presented in court that claimed he had handled the birds in question," Gilkerson wrote.

Embattled U.S. Fish and Wildlife Service agent Bob Prieksat, whose removal had been sought by Gov. Mike Rounds, testified in the trial that he found untagged geese in Gilkerson's game-processing business in Pierre in December 2006.

Prieksat said those tags are required to identify which hunters have shot birds and whether they have exceeded the bag limit.

Gilkerson testified that he believed Prieksat framed him by removing tags from some geese the agent found in a freezer at the business, which processes wild game and offers guide services for hunting, fishing and other outdoor activities.

The governor had asked the U.S. Fish and Wildlife Service to fire Prieksat or transfer him because Rounds believed Prieksat had been too aggressive and rude in checking whether hunters were complying with the law. An agreement was reached last year that allowed Prieksat to continue supervisory work but limited his work as a field agent.