United States v. Obendorf
| Decision Date | 09 July 2018 |
| Docket Number | No. 16-30188,16-30188 |
| Citation | 894 F.3d 1094 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gregory OBENDORF, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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 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:
50 C.F.R. § 20.21(i)(1)(i). The indictment also set forth in full the regulatory definitions of terms like "normal agricultural planting, harvesting, or post-harvest manipulation" and "baited area." As relevant here, whether a practice constitutes "normal agricultural planting, harvesting, or post-harvest manipulation" or a "normal soil stabilization practice" turns on whether the practice is "conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture." 50 C.F.R. § 20.11(g), (i).
Obendorf's case went to trial. Over the course of seven days, a jury heard testimony from state and federal wildlife agents, Obendorf employees, and local residents. As the indictment foreshadowed, 50 C.F.R. § 20.21(i)(1) played a central role in Obendorf's prosecution. The government's trial brief characterized § 20.21(i)(1) as a potential "safe haven" from an unlawful baiting conviction, and the district court instructed the jury on the first day of trial that the government had to prove "the agricultural practice exception"—the court's term for § 20.21(i)(1) —"does not apply." Consistent with that view, the prosecutor explained to the jury during his opening statement that the MBTA regulations create a "normal agricultural practices exception" that allows farmers to work their land without fear of prosecution under the MBTA, so long as their practices are in accordance with official recommendations from State Extension Specialists of the Cooperative Extension Service.
The government called three State Extension Specialists from the University of Idaho in an attempt to prove that Obendorf did not qualify for what it referred to as § 20.21(i)(1)'s safe haven. All three witnesses testified that no then-existing official recommendations of the Cooperative Extension Service endorsed Obendorf's farming practices. On cross-examination, Obendorf tried to elicit an official opinion regarding his farming practices, but the government objected and argued that his questions were irrelevant and beyond the scope of direct examination. The district court agreed. It ruled that the "safe harbor" does not apply unless the farmer "obtain[s] the official recommendation before ... engag[ing] in a practice." In other words, the district court ruled that any post-hoc endorsement from a State Extension Specialist would not bring Obendorf within the safe harbor.
The district court instructed the jury along the same lines. For the substantive baiting count, the jury instructions required the government to prove three elements beyond a reasonable doubt: (1) that Obendorf baited ducks or directed others to do the same; (2) that he did so for the purpose of facilitating a hunt aided by bait; and (3) that the "Agricultural Practice Exception" did not apply. The district court instructed the jury that the so-called Agricultural Practice Exception permits a farmer whose lands are not otherwise baited to, among other things, scatter seeds or grains "solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization practice." The instructions also included the district court's temporal requirement:
A farmer's manipulation or practice constitutes a "normal agricultural planting, harvesting, post-harvest manipulation" or "normal soil stabilization practice" only if it is conducted according to the State Extension Service Specialists' official recommendations, whether verbal or in writing. Those official recommendations must be in existence at the time the farmer engages in his manipulation or practice.
The instruction for the conspiracy count cross-referenced the given elements of unlawful baiting, including the so-called Agricultural Practice Exception.
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