Janay Brun, part 3
As I reviewed my transcripts from the USFWS investigation I was reminded of two mistakes which seemed innocuous at the time, but less so when the investigation was closed and no one else was prosecuted. The first one occurred in my first interview with the USFWS Special Agents (SAs). They had asked me to give them some background on myself so I was talking about how I taught myself how to TRACK cats and I often traveled to the borderlands to TRACK. In the transcript the transcriber (most interviews were taped without interviewees’ consent or awareness) turned TRACK into TRAP so the sentence now read: “… just started looking for lion traps and teaching myself how to trap.” This mistake was supposed to be corrected but as I am quoting from the transcripts provided in my FOIA request it obviously wasn’t. The next mistake occurred in the summary notes written by one of the USFWS SAs regarding my last interview. In it the SA writes, “BRUN said she was the only one carrying the scat that day and was the only one aware of scat placed at the snare that eventually caught the jaguar.” The first part of that sentence is true but the last part is false, I did not say that. I, McCain, and Smith were all aware that McCain directed me to place scat out by this snare and that I followed his directive. Fortunately, the interview was recorded and transcribed correctly. I’ve never understood how such a key point in my case could be interpreted/documented by the SA in such a blatantly wrong way.
For close to a year I was constantly preparing for trial. The AZ U.S. Attorneys Office had balked at my attorney’s offer of Diversion in the beginning and I reciprocated when they offered me a plea deal. My attorney was curious as to why the U.S. Attorneys Office was so intent on prosecuting me since I had followed my supervisor’s directive and believed at the time that permits were in place. He spoke to the Assistant U.S. Attorney’s boss about it and she said the push was coming from her boss in Phoenix. Even my pre-trial and diversion officer couldn’t understand why I was being prosecuted after she read the summary of the case file.
My trial was delayed several times for various reasons. One was to prepare for a Motion to Dismiss. Since AZGFD and the USFWS consistently claimed that AZGFD had a permit to intentionally and unintentionally capture a jaguar then why was I charged with Endangered Species violations? One of the permits the agencies cited as their authority to trap Macho B, the Section 6 Agreement, even had a portion authorizing AZGFD to: “use live traps, pitfalls, mistnets, handheld implements, radiotelemetry, videotape, infrared and digital cameras, vocalization tape playback, pit-tags, and other standard, accepted scientific techniques to conduct population surveys, monitor populations, capture, weigh, measure, photograph, map locality and distribution information, and mark and immediately release unharmed at the capture site unlimited numbers of all sex and age classes of mammals.” We argued that the use of scent lures, even jaguar scat, could be defined as a “standard, accepted scientific technique” and it’s use was not prohibited in any of the AZGFD or USFWS permits. In addition, it was questioned why I was being charged because jaguar scat did not capture Macho B, an authorized AZGFD snare did. Furthermore, several AZGFD and USFWS officials had knowledge of Macho B’s presence near the snares and chose not to shut them down and all preparations for Macho B’s capture, including the placement and activation of the snares were undertaken by AZGFD employees, which included McCain. Also, McCain had sought out jaguar scat from zoos, had brought the scat to be used in the field, and had directed me to place the scat. So how could I be charged with a violation for following a directive given to me by my supervisor whom was also pulling double duty as a state employee with AZGFD and in the presence of Smith, a state employee? In the end, the Motion to Dismiss was denied by the judge because it was determined what and whom was authorized under the permits would have to be decided by a jury.
Authorized by AZGFD Agent
So I would have to prove my activity was authorized by AZGFD by proving that McCain was their agent at the time he directed me to place the scat. At this point, AZGFD had disowned McCain. But McCain had been an agent of AZGFD prior to the snaring project. He was on the scientific advisory board for the AZGFD/NMGFD Jaguar Conservation Team and AZGFD, along with USFWS were the largest sources of funding for BJDP, a project turned over to McCain. But in regard to the snaring project, McCain’s actual boss, Kirby Bristow viewed McCain as an AZGFD employee/agent wether he was under contract or not. So did Ron Thompson, the guy McCain viewed to be his boss on the snaring project. And according to former AZGFD Endangered Species Coordinator, Terry Johnson:
He (McCain) may not be our employee, but is he our agent? Yeah, he’s our agent, in my opinion…I don’t care that McCain did not submit a billing to his company for his time spent. McCain is out there advising our employees, and we’re responsible for that. We’re responsible for the decisions to reopen the snares. We’re responsible for how the jaguar was handled when it did. We’re responsible for not having our protocols in place.
USFWS SA: “You’re responsible for the scat being placed, if he directed it, if he’s your agent?”
Johnson: “We’re accountable for it.”
And finally, even former AZ U.S. Attorney Dennis Burke viewed McCain to be a state employee. He refers to McCain in a May 15, 2010 Reuters article: “One of the state officials employed to protect our endangered wildlife instead endangered this same wildlife.”
My final trial date had been reassigned to April 2011. In March, the Assistant U.S. Attorney prosecuting the case called my attorney and offered Diversion. I took it as the charges were guaranteed to be dropped against me and I would be ensured to have a clean record. I entered a Diversion Agreement with the AZ U.S. Attorneys Office in May 2011. In exchange for taking responsibility for my action of placing scat at a snare as directed (which I had done from the beginning when I reached out to Tony Davis of the AZ Daily Star) the charges would be dropped and I would serve a one year “lite” probation which included not working with big cats during this time period. A Diversion Agreement is NOT a plea agreement and I did not plead guilty to the charges.
My Diversion probation ended May 2012.