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Criminal cases against Juneau fishing guide come to a close

Posted: February 2, 2012 - 12:14am

A U.S. District Court judge on Wednesday sentenced a longtime Juneau fishing guide to five years of supervised probation and revoked his fishing and hunting licenses for that time period for violating a federal treaty that prohibits the sale of migratory birds.

That same day, the guide also pleaded guilty in state court to seven counts of hunting and fishing related violations in Alaska. For those offenses, the guide agreed to serve what one prosecutor called one of the longest jail sentences, 280 days with 1,045 suspended, in the history of the state of Alaska for breaking wildlife laws.

Michael P. Duby, 37, was the owner and operator of FishHunter Charters in Juneau. Nine other people in the past two years — including his father, brothers, friends and clients — have been charged or convicted with poaching activities in connection to Duby. Wednesday, as one attorney described it, marked the final pieces to the puzzle as the criminal cases against Duby come to close.

The two-year multi-agency investigation into Duby’s activities, which spanned multiple states, like Montana and Washington, and crossed into federal jurisdiction, all began with a single Wildlife Safeguard tip to the Alaska State Troopers regarding illegal bear hunting in April of 2009.

As Duby’s attorney Brent R. Cole pointed out in court Wednesday, Duby has attempted to resolve all the charges against him since then.

In Montana state court last year, Duby pleaded no contest to four felony charges of illegal possession of game animals in Montana for illegally taking three whitetail deer in 2004, three deer and two antelope in 2005, four deer and seven antelope in 2006 and one deer and nine antelope in 2007, according to local news reports there. He received a 20-year suspended jail sentence and was ordered to pay $15,500 in fines and restitution. He is prohibited from hunting in Montana for life.

In Montana federal court, Duby was charged with violating the federal Lacey Act which prohibits trafficking of wildlife, fish and plants. He was ordered to pay an $8,000 fine.

Closer to home, Duby was indicted by a federal grand jury in June of last year for unlawfully selling migratory birds (magpies), bird parts and bear hide on eBay. Six of the counts were for the illegal sale of migratory birds, with the seventh alleging the sale of illegally taken bear.

Duby pleaded guilty in late September to one of the charges — violating the Migratory Bird Treaty Act. A plea deal dismissed the other six charges.

At his sentencing hearing for that case on Wednesday, prosecutors described Duby as a poacher and as an “unrepentant, undeterred serial wildlife violator.”

“He’s a ‘thrill killer.’ That’s what he likes to do,” Assistant U.S. Attorney Jack Schmidt told Burgess. “He goes out just to kill things. I’ve never seen anything like it before.”

Schmidt went on to say Duby should be held to a higher standard because he makes his living as a fishing guide, and that Duby should be made an example of.

“A strong message needs to be sent by the court,” Schmidt said, requesting four months of jail time and one year of supervised probation.

Schmidt also noted he prosecuted a 2003 case in which Duby was convicted for taking a brown bear (which was shot on Admiralty Island) in a closed area, hunting for brown bear without a guide, unsworn falsification, unlawful possession of a black bear and false statements on three license applications.

“Here he is again, so obviously he didn’t learn his lesson,” Schmidt said.

Defense attorney Cole argued Duby cannot be punished for his entire fish and wildlife misconduct since he’s already been punished for it. He should only be sentenced for the crime he’s pleaded guilty to, Cole said.

“Mr. Duby has made some serious mistakes,” Cole said, but added Duby cooperated with every agency that knocked on his door and gave a confession in 2009. Cole also said Duby does not have a criminal history outside of wildlife law violations.

“The government’s point is that the government wants you to sentence him for all these things he has done,” Cole said.

Cole asked for the judge to accept the probation officer’s recommendation listed in the pre-sentence report, which is five years of supervised probation and a fine.

Duby then said in his own defense he was not unrepentant and undeterred as prosecutors claimed.

“I am deterred,” he said, adding, “I am sorry.” He went on to say that he has given up hunting, it wouldn’t happen again, and that his “livelihood has been destroyed.” He also said the magpies weren’t taken illegally — he had shot them in Washington where it’s legal. Selling them online, however, is illegal. His mother Judy Smith, who flew to Juneau from Seattle to attend the hearing, tearfully told the Empire he didn’t know that was illegal.

“Nobody told him it was against the law,” she said. “I know’s he’s sorry.”

The judge said while it was tempting to look at Duby’s entire track record, it wasn’t fair to punish him again for offenses he has already taken responsibility for. Sentencing guidelines allow for a judge to either impose a jail sentence of one to seven months with one year of supervised release, or one to five years of supervised release with a fine.

“The latter is probably a better approach,” Burgess said, because it involves a longer period of supervision and more restrictions can be imposed with conditions.

Burgess imposed the maximum supervised probation time of five years, and also slapped on a $2,500 fine and 250 hours of community work service. His hunting and fishing licenses are suspended for the five years, though he is eligible to reapply for them after three years.

About 15 local Juneau guides attended Duby’s hearing on Wednesday to protest Duby’s illegal activities, some of whom said they agreed with prosecutors that they would have liked to see some more jail time.

Tina Brown, the president for the Anchorage-based Alaska Wildlife Alliance, said oftentimes the punishment for breaking Alaska wildlife laws is too lenient.

“Duby in particular did not make ‘mistakes,’” she said. “He broke the law.”

Greg Brown, a local guide who owns Weather Permitting Alaska, called Duby’s actions ‘disgraceful’ and his illegal behavior was a ‘terrible tarnish on our industry.’

Shortly after the sentencing hearing, Duby appeared in Juneau District Court before Judge Thomas Nave to plead guilty to seven counts of hunting and fishing related violations in Alaska. Those counts were leveled against him by the Attorney General’s Office of Special Prosecutions earlier this month for black bear baiting without a permit, illegal possession and transport of black bear, and false statements in sport fishing logbooks, Alaska Department of Fish & Game applications and a Permanent Fund Dividend application. All those charges stem from instances spanning from May 2007 to June 2009.

The plea agreement called for Duby to serve a total of 280 days in jail, which Assistant Attorney General Andrew Peterson told the judge was one of the longest jail sentences for fish and wildlife violations in the history of the state.

The agreement also calls for Duby to pay a composite fine of $11,000 and $1,200 in restitution to the state of Alaska Fish and Game Fund for two black bears killed in 2008, and forfeit a $30,000 bond paid for his boat, the Brody, as well as interest on a number of items.

Duby also loses his state hunting privileges for 10 years, and is not allowed to accompany or assist anyone hunting or trapping for the same time frame.

The agreement also revokes his sport fishing privileges for one year, revocation of sport fish guiding privileges for three years, and he may not accompany or assist anyone on a guided sport fishing trip for a period of three years and may not accompany or assist anyone on an unguided sport fishing trip for a period of one year.

In exchange, all charges against Duby’s father, Michael W. Duby, 63, will be dismissed. Michael W. Duby, of Arizona, was charged in December with one count of providing guide services without an operator’s license for his son’s business back in 2008. That’s a class ‘A’ misdemeanor that can carry up to one year in jail and a $10,000 fine. The elder Duby had pleaded not guilty, and a jury trial was scheduled for late February.

Nave accepted the plea agreement, but only because it revoked his fishing and hunting licenses for a period of time. Nave told Duby he would have rejected it otherwise.

Nave went on to tell Duby that as a hunter and fisherman himself, he was “frankly appalled at the conscious effort that ‘these laws apply to everyone else but not me.’” Nave said his “callous disregard” to the state’s conservation efforts left him with the impression Duby had a psychological need to break the law, or at least an inability to obey the law.

“It’s almost like you did this on purpose,” Nave said, noting that his actions left many in the community angry and frustrated.

Duby again apologized, and Cole said in his defense that with the start of the criminal investigation in 2009, “his life came to an end. He’s never going to be a hunter again,” Cole said.

Nave ordered Duby to begin his jail sentence on Feb. 15.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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