An Edinburg man who earlier this month was found guilty of attempting to take bird feathers, salt crystals and other objects from Sal del Rey in violation of the National Wildlife Refuge System Act is seeking to overturn that conviction.
Eduardo Leal, 52, filed the motion for acquittal Monday via Assistant Federal Public Defender Christopher Gonzalez. Leal is appealing the conviction handed down by U.S. Magistrate Judge J. Scott Hacker on Oct. 4, nearly a month after he presided over Leal’s bench trial.
Hacker found Leal guilty of a federal misdemeanor for attempting to take some 31 bird feathers, salt crystals and pieces of wood from Sal del Rey, one of several natural salt lakes located along State Highway 186 north of Edinburg.
The salt lake and its surrounding environs are part of dozens of tracts of land stretching from Starr County to the Laguna Madre that make up the Lower Rio Grande Valley National Wildlife Refuge System.
Federal law prohibits the removal of items from protected lands, and it was under such law that Leal was cited for two violations last October after a park ranger apprehended him attempting to leave the refuge with a backpack full of items as well as an armful of wood.
However, in the five-page motion accompanying the notice of appeal, Gonzalez argues that the judge erred in his interpretation of the statute governing national refuges and that his client should therefore be acquitted.
The appeal follows an uncommon set of events since the case first came to court in February.
Leal was originally issued two citations in October 2020 — the first for a violation of the refuge systems act, and the second for a violation of the Migratory Bird Treaty Act. Both citations were considered petty offenses and carried monetary penalties totaling about $1,100, according to copies of the citations.
But over the course of several months, Leal vacillated on how he wanted to proceed with the case — first demanding a trial, then seeking a plea deal with prosecutors before again changing his mind and reasserting his right to trial.
At one point, Leal would have had to pay about $550 in fines in exchange for his guilty plea, according to the terms of a plea agreement he ultimately rejected. Instead, he went to trial on Sept. 10.
Hacker found Leal guilty, in part, because Leal did not have authorization to carry out his actions as outlined under a set of exceptions in the statute.
But it’s that very conclusion Hacker used to support his verdict finding which Gonzalez disputes.
Hacker interpreted the exceptions listed in the statute as something the defense could call upon as an “affirmative defense.”
Essentially, an affirmative defense is one in which a defendant does not deny having committed a particular crime, but instead asserts that their actions were justified to the point that they are not criminally liable.
A defendant who claims self-defense as justification for killing a person is one example of an affirmative defense.
Leal doesn’t deny that he possessed the items, nor that he was attempting to take them from the refuge. Indeed, Leal told the park ranger who apprehended him that he had collected the objects for use in creating found art.
Gonzalez argues that Leal would be ill-equipped to identify whether his actions would qualify under the statute’s exceptions for what can and cannot be done on federal land. Instead, that burden falls on the prosecution, “because the Government (is) better positioned than the defendant to know the legal sources governing permissible uses on its own land,” Gonzalez argues.
As such, the statute’s exceptions would make them an “element” of the crime that the government would have to prove occurred in order for Leal to be found guilty.
And therein lay Gonzalez’s second argument to overturn Leal’s conviction — whether prosecutors sufficiently proved their case.
At trial, Assistant U.S. Attorney Devin Walker argued that Leal’s actions were unauthorized because they didn’t line up with activities that are permitted by the statute, such as hunting, fishing or photography.
In the appeal, Gonzalez argues that since the statute does not define the word “hunt,” the court can consider some of its common meanings as defined by Webster’s Dictionary, including, “to search out” and “to attempt to find something.”
“The evidence presented by the Government failed to establish—much less establish beyond a reasonable doubt—that the defendant’s conduct did not constitute hunting activity,” the appeal reads, in part.
However, the U.S. Fish and Wildlife Service’s own literature describes hunting as “the harvesting of wildlife” that serves as “an important wildlife management tool.”
Furthermore, public notices regarding Sal del Rey, specifically, also make clear that hunting refers to the harvesting of whitetail deer, nilgai and feral hogs via firearms or archery on specific dates, and hunters must apply for permits to participate.
“Hunting is NOT allowed (within) 500 feet of the shoreline of the lake,” reads the refuge’s website.
Leal’s motion for acquittal will ultimately be heard before U.S. District Judge Ricardo H. Hinojosa at a date yet to be set; however, it remains unclear what — if anything — will occur at his sentencing hearing, which court records show is still scheduled before Hacker on Friday morning.
Should the sentencing go forward, or should Hinojosa uphold the conviction, Leal faces up to six months in federal prison and up to $5,000 in fines.
