Argued
and Submitted February 9, 2018 Seattle, Washington
Appeal
from the United States District Court for the District of
Idaho, No. 1:15-cr-00254-BLW-1 B. Lynn Winmill, Chief
District Judge, Presiding
Greg
S. Silvey (argued), Silvey Law Office Ltd., Boise, Idaho, for
Defendant-Appellant.
Varu
Chilakamarri (argued), Emily A. Polachek, and Andrew C.
Mergen, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Jeffrey H. Wood, Acting Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Christian S.
Nafzger, Assistant United States Attorney; Rafael M. Gonzalez
Jr., Acting United States Attorney; United States
Attorney's Office, Boise, Idaho; for Plaintiff-Appellee.
Before: Ronald M. Gould, Richard A. Paez, and Morgan
Christen, Circuit Judges.
SUMMARY
[*]
Criminal
Law
Affirming
a conviction for illegally baiting ducks in violation of the
Migratory Bird Treaty Act, and conspiring to do the same, the
panel held that an "agricultural practice
exception" set forth in 50 C.F.R. § 20.21(i)(1)
applies to unlawful taking, but not unlawful baiting, and
thus could not have immunized the defendant's conduct.
The
panel concluded that although the parties misapprehended the
law in the district court by treating § 20.21(i)(1) as
applicable to the defendant's case, the error was
harmless.
OPINION
CHRISTEN, CIRCUIT JUDGE:
Defendant-Appellant
Gregory Obendorf is an Idaho farmer who was convicted of
illegally baiting ducks in violation of the Migratory Bird
Treaty Act (MBTA), 16 U.S.C. §§ 703-712, and
conspiring to do the same. Obendorf denied that he was
baiting ducks and argued that he was simply farming his land.
At trial, Obendorf sought to cross-examine government
witnesses about the propriety of his farming practices, but
the district court would not allow the inquiry. He appeals
that ruling and a jury instruction. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm Obendorf's
conviction.[1]
BACKGROUND
I.
Obendorf's
farm lies just north of the Boise River, near the town of
Parma, Idaho. Hundreds of thousands of ducks pass by the farm
during their annual migration each fall. One of
Obendorf's fields is about fifteen acres in size and
planted with corn. It has come to be known as the duck field,
and it figures prominently in this case.
A few
times a year, federal agents from the U.S. Fish and Wildlife
Service (FWS) patrol the river valleys of southwestern Idaho
by airplane, looking for signs of waterfowl baiting. On
November 15, 2013, FWS Special Agent Scott Kabasa and two of
his colleagues flew over Obendorf's farm. Such flights
are routine, but Kabasa paid special attention to
Obendorf's farm during the November 15 flight because he
had received a number of tips that Obendorf was baiting ducks
on his property. As the plane passed over Obendorf's
farm, Kabasa noticed several large piles of corn in the duck
field, including a pile near a hunting pit blind. Kabasa also
noticed the duck field had been harvested differently from
other fields on Obendorf's farm. Most of Obendorf's
cornfields were fully harvested, but the duck field was
"strip combined"-meaning it was harvested in
alternating strips such that many rows were left untouched.
That
night after dark, Kabasa and Brian Marek, a conservation
officer with the Idaho Department of Fish and Game, snuck
onto Obendorf's farm to take a closer look. Kabasa and
Marek counted six large piles of loose corn kernels on the
duck field, including one "within shot-shell range"
of the pit blind. They also inspected the strip-combined rows
in the duck field and observed "an exorbitant
amount" of corn kernels littering the ground under the
stalks. Kabasa later testified that "the vastness of the
corn that was on the ground was unbelievable." The
agents walked Obendorf's other cornfields, which, unlike
the duck field, appeared neatly combined and fully harvested.
Before leaving, the agents installed a disguised camera
called a Plotwatcher in the duck field, pointed it at the pit
blind, and programmed it to take and store photographs every
few seconds.
State
and federal officials returned to Obendorf's farm several
more times in the ensuing weeks. On one trip, Kurt Stieglitz,
an investigator with the Idaho Department of Fish and Game,
installed a second Plotwatcher. Investigators spoke with
several current and former Obendorf employees about
Obendorf's activities in the duck field. Investigators
also met with Obendorf several times during the
investigation. Obendorf gave Kabasa and others a tour of his
farm, including the duck field, in January of 2014. Obendorf
also reached out to Marek several times even after retaining
an attorney.
II.
Nearly
two years after the investigation began, Obendorf was charged
in a two-count indictment. The first count alleged that
Obendorf conspired over several years to bait the duck field
and lure ducks for hunting by directing his employees to
harvest the duck field wastefully, in violation of 18 U.S.C.
§ 371 (the general federal conspiracy statute). The
second count charged Obendorf with baiting the duck field in
November of 2013 to facilitate hunting in the same fashion,
in violation of 16 U.S.C. § 704(b)(2), the anti-baiting
provision of the MBTA. Both offenses are Class A
misdemeanors. See id. § 707(a), (c); 18 U.S.C.
§§ 371, 3559(a)(6).
The
indictment also introduced a wrinkle that gave rise to this
appeal. In a series of paragraphs titled "Relevant
Laws and Regulations," the indictment set forth the
MBTA's ban on unlawful baiting, the statutory basis for
FWS's authority to enforce the MBTA, and several
regulatory definitions. One provision cited in this section
of the indictment was 50 C.F.R. § 20.21(i)(1)(i), which
the indictment quoted in its entirety. That regulation
provides:
Migratory birds on which open seasons are prescribed in this
part may be taken by any method except those prohibited in
this section. No persons shall take migratory game birds:
(i) By the aid of baiting, or on or over any baited area,
where a person knows or reasonably should know that the area
is or has been baited. However, nothing in this paragraph
prohibits:
(1) the taking of any migratory game bird, including
waterfowl, coots, and cranes, on or over the following lands
or areas that are not otherwise baited areas-
(i) Standing crops or flooded standing crops (including
aquatics); standing, flooded, or manipulated natural
vegetation; flooded harvested croplands; or lands or areas
where seeds or grains have been scattered solely as the
result of a normal agricultural planting, harvesting,
...