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United States v. Obendorf

United States Court of Appeals, Ninth Circuit

July 9, 2018

United States of America, Plaintiff-Appellee,
Gregory Obendorf, Defendant-Appellant.

          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.



         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]



         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.


         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, ...

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