U.S. v. Adams

• Decision Date: 03 May 1999
• Docket Number: No. 98-30719,98-30719
• Citation: 174 F.3d 571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Arville ADAMS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 571

174 F.3d 571

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Arville ADAMS, Jr., Defendant-Appellant.

No. 98-30719.

United States Court of Appeals Fifth Circuit.

May 3, 1999.

Cristina Walker, Assistant U.S. Attorney, Shreveport, LA, for Plaintiff-Appellee.

Fred Royce McGaha, Monroe, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before DAVIS, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Jerry Arville Adams ("Adams") appeals his conviction on two counts of violating the Migratory Bird Treaty Act ("MBTA") for taking doves with the aid of bait and aiding and abetting others in taking doves with the aid of bait. ¹ See 16 U.S.C. § 703; 18 U.S.C. § 2; 50 C.F.R. § 20.21(i). In support of his appeal, Adams argues that: (1) 16 U.S.C. § 703, as further defined by 50 C.F.R. § 20.21(i), is unconstitutionally vague as applied to him in this case, (2) the Magistrate Judge erred in determining that intent is not an element of the offense for which he was convicted, (3) the Magistrate Judge erred in allowing a certain witness to testify as an expert, (4) the Magistrate Judge erred in finding that his method of planting winter wheat for grazing cattle was not a "normal agricultural planting," (5) the Magistrate Judge erred in finding that his method was not a "bona fide agricultural operation or procedure," (6) the Magistrate Judge erred in relying on an LSU Agricultural Extension Service manual on optimum-yield planting dates to determine that he was hunting over a baited field as a matter of law, and (7) the Magistrate Judge erred in not allowing him to introduce evidence on the procedures commonly used to plant winter wheat in his area. After careful review, we reverse Adams's conviction.

I. FACTS AND PROCEDURAL BACKGROUND

The material facts of this case are not disputed among the parties. During the last week in August, 1997, defendant Adams prepared a field of approximately 18-19 acres in Northeast Louisiana for the planting of winter wheat to graze his cattle on during the upcoming winter. Adams prepared the field at the instruction of his father, who had farmed all his life and who customarily planted the winter wheat field in late August. Adams disked the field, fertilized the field, scattered 33 bags of wheat across the field with a spreader in the customary manner and when his spreader broke, he scattered two remaining bags of wheat across the field "as uniformly as possible." Because of this, the Wildlife agents investigating the field noted that certain areas of the field had higher concentrations of grain than others. Despite the uneven distribution, the eventual result was a lush and uniform field of winter wheat.

On September 6, 1997, Adams, his wife, his father-in-law and his brother-in-law went out to dove hunt on the field. Adams shot 12 doves that day, and the other parties also shot birds. Later during the hunt, Adams and his hunting party were approached by Federal and Louisiana State Wildlife agents. The agents checked their licenses, counted their birds, and made an inspection of the field at which time they discovered the grain. Also during this inspection, a dove from Adam's game bag took off and flew away after being removed from his bag. Apparently, Adams thought the bird was dead after he had knocked it to the ground with a shot. On the basis of this bird, the agents charged Adams with possession of a live dove in violation of 50 C.F.R. § 20.38.

In addition to being charged with possession of a live dove, Adams was also charged with taking doves with the aid of bait and aiding and abetting others in taking doves with the aid of bait. Trial was held before a magistrate judge, where special agent Kash Schriefer of the U.S. Fish and Wildlife Service and county agent John Barnett both testified that the recommended earliest wheat-planting date was September 20. Based on an LSU Extension Service pamphlet, Barnett testified that planting wheat prior to September 20 was not a "normal agricultural planting." In support of his contention that his activities fell under at least one of the two exceptions contained in the statute, Adams sought to introduce certain demonstrative evidence and testimony of other farmers that Adams's planting was in accordance with the common procedures used in the area. The Magistrate Judge did not allow Adams to introduce the evidence and found him guilty on all three counts. Adams was sentenced to pay a fine totaling $1750 plus a $30 assessment and placed on one year supervised probation with the condition that he cannot hunt, go to hunting camps, or carry a firearm along with the standard conditions of probation. Adams appealed to the district court which affirmed his conviction, substantially adopting the findings of the Magistrate Judge. This appeal followed.

II. DISCUSSION

Adams first challenges 50 C.F.R. § 20.21(i) as being unconstitutionally vague as it was applied to him. The relevant portions of the regulation provide:

No person shall take migratory game birds:

. . . . .

(i) By the aid of baiting, or on or over any baited area.... However, nothing in this paragraph shall prohibit:

(1) The taking of all migratory game birds, including waterfowl, on or over standing crops (including aquatics), flooded harvested croplands, grain crops properly shocked on the field where grown, or grains found scattered solely as the result of normal agricultural planting or harvesting; and

(2) The taking of all migratory game birds, except waterfowl, on or over any lands where shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed has been distributed or scattered as the result of bona fide agricultural operations or procedures. ...

50 C.F.R. § 20.21(i) (emphasis added). Rather than decide this constitutional question, we resolve this case on other grounds. ² See generally ACORN v. Edwards, 81 F.3d 1387, 1390 (5th Cir.1996)(noting that federal courts have a duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration). Like the flush of a convey of quail, a number of reversible issues materialize in this appeal.

In Adams's first non-constitutional challenge, he contends that the Magistrate Judge erred in determining that intent is not an element of the offense for which he was convicted. Because of this ruling, Adams was not allowed to fully develop evidence showing that his planting methods were commonly used in the area and that his intentions were to grow the best possible stand of winter wheat that he could. Accepting an LSU Agricultural Extension pamphlet as conclusive proof on the matter, the Magistrate Judge found that Adams was hunting over bait as a matter of law because he had planted the wheat prior to the optimal planting date of September 20. In addition to not letting Adams put on evidence to show that his planting was "normal," neither the Government nor the two lower courts sufficiently addressed whether Adams's planting was a "bona fide" agricultural operation or procedure.

Two cases from other circuits interpreting the § 20.21(i) exceptions have come to different conclusions on whether the tests for compliance should be objective, with no regard to the defendant's level of intent or knowledge, or subjective, with the intent of the person that spread the grain determining whether a violation had occurred. It should be noted, however, that both circuits in which these cases were decided adhere to a strict liability view of the MBTA.

In United States v. Brandt, the Sixth Circuit considered a vagueness challenge to the exceptions by dove hunters similar to Adams that had been convicted of hunting over a baited field. 717 F.2d 955 (6th Cir.1983). The court noted that the taking of migratory birds over areas where they are attracted as a natural and ordinary consequence of agricultural practices is clearly contemplated as acceptable under the statute. Further, "[t]he statute only seeks to preclude the taking of migratory birds which have been intentionally lured to an area by bait." Id. at 957. Because of this, the court concluded, "[t]he Secretary's intent is not to distinguish between orthodox and unorthodox farming practices, but to distinguish between areas to which birds are attracted as a consequence of farming, and areas to which birds are intentionally lured by baiting." Id. at 958. Therefore, the Sixth Circuit held that the exceptions did not require a hunter to engage in a complex inquiry to determine the confines of customary agrarian practices, but rather the inquiry should be a subjective interpretation "directed at determining the intent of the person seeding the land." Id. at 957.

Under this approach, the Brandt Court maintains that it has not changed the Sixth Circuit's strict liability view of the Act. Regardless of the hunter's intent or knowledge of the bait, the hunter could still be convicted depending on the intent of the person spreading the grain. "In such a case, the relevant inquiry would be whether the farmer's desire to attract birds caused him to initiate measures he would not otherwise have taken in the production of his crops." Id. at 958. Under this test, the hunter must ascertain, at his own peril, whether the field has been improperly baited. The court in Brandt affirmed the defendant's conviction, holding that "the intent of the person seeding the field is simply a fact to be proven as in any trial involving intent as an element of the offense." Id.

The same issue arose again twelve years later in United States v. Boynton, but contrary to the holding in Brandt, the Fourth Circuit used an objective standard to determine the applicability of the two exceptions. 63 F.3d 337 (4th Cir.1995). In regard to the "normal agricultural planting or harvesting" exception, the court held that the intent of the...