United States v. Gregory Obendorf

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30188

Plaintiff-Appellee,

D.C. No.

v. 1:15-cr-00254-BLW-1

GREGORY OBENDORF,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted February 9, 2018

Seattle, Washington

Filed July 9, 2018

Before: Ronald M. Gould, Richard A. Paez,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

2 UNITED STATES V. OBENDORF

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.

COUNSEL

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;

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. OBENDORF 3

Rafael M. Gonzalez Jr., Acting United States Attorney;

United States Attorney’s Office, Boise, Idaho; for Plaintiff-

Appellee.

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.

1

We resolve Obendorf’s other challenges to his conviction and

sentence in a concurrently filed memorandum disposition.

4 UNITED STATES V. OBENDORF

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.

UNITED STATES V. OBENDORF 5

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

6 UNITED STATES V. OBENDORF

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,

post-harvest manipulation or normal soil

stabilization practice[.]

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

UNITED STATES V. OBENDORF 7

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

8 UNITED STATES V. OBENDORF

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.

UNITED STATES V. OBENDORF 9

The instruction for the conspiracy count cross-referenced the

given elements of unlawful baiting, including the so-called

Agricultural Practice Exception.

The jury convicted Obendorf on both counts and he

timely appealed.

STANDARDS OF REVIEW

We review de novo the district court’s interpretation of

the MBTA and its regulations. United States v. Bucher,

375 F.3d 929, 931 (9th Cir. 2004); United States v. Ani,

138 F.3d 390, 391 (9th Cir. 1998). We also review de novo

“whether a jury instruction misstated an element of a

statutory crime.” United States v. Henderson, 243 F.3d 1168,

1171 (9th Cir. 2001). If we identify an instructional error, we

will nevertheless affirm if the error was harmless beyond a

reasonable doubt. Id. We review the district court’s

evidentiary rulings for an abuse of discretion. United States

v. Decoud, 456 F.3d 996, 1010 (9th Cir. 2006). Even if we

find error, we will affirm unless the erroneous evidentiary

ruling “more likely than not affected the verdict.” Id.

(quoting United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.

2004)).

DISCUSSION

Obendorf argues the district court misinterpreted what it

called the Agricultural Practice Exception by imposing a

temporal requirement that the MBTA regulations do not

mandate. For the first time on appeal, the government argues

that what the district court called the Agricultural Practice

Exception—50 C.F.R. § 20.21(i)(1)—applies only to

prosecutions for illegally taking migratory game birds.

10 UNITED STATES V. OBENDORF

According to the government’s argument on appeal,

§ 20.21(i)(1) does not apply to unlawful baiting cases at all,

so even if the district court erred by imposing a temporal

requirement for obtaining recommendations from State

Extension Specialists, the error was harmless.

We agree that § 20.21(i)(1) had no role to play in

Obendorf’s case because the indictment charged him with

baiting, rather than taking, migratory birds. By attempting to

prove that the so-called Agricultural Practice Exception did

not apply, the government assumed a heavier burden than the

law required. Having reviewed the record, we conclude that

the erroneous application of § 20.21(i)(1) to Obendorf’s case

was harmless.

I.

We acknowledge that the government’s chief argument

on appeal is a new one. In the district court, the government

argued that § 20.21(i)(1) and its associated regulations

created a safe harbor, but one for which Obendorf was not

eligible because the State Extension Service had not

previously endorsed his agricultural practices. On appeal, the

government now argues that the safe harbor created by

§ 20.21(i)(1) was never available to Obendorf in the first

place because it does not apply to the charges he faced. “We

apply a ‘general rule’ against entertaining arguments on

appeal that were not presented or developed before the

district court.” In re Mercury Interactive Corp. Sec. Litig.,

618 F.3d 988, 992 (9th Cir. 2010) (quoting Peterson v.

Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998)).

But we have discretion to reach waived issues, and we

exercise that discretion in three circumstances: (1) “in the

‘exceptional’ case in which review is necessary to prevent a

UNITED STATES V. OBENDORF 11

miscarriage of justice or to preserve the integrity of the

judicial process”; (2) “when a new issue arises while appeal

is pending because of a change in the law”; and (3) “when the

issue presented is purely one of law and either does not

depend on the factual record developed below, or the

pertinent record has been fully developed.” Id. (quoting

Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985)).

Here, we exercise our discretion to consider whether

§ 20.21(i)(1) is applicable to unlawful baiting prosecutions

because the question is purely legal, both parties have had an

opportunity to brief the issue on appeal and address it at oral

argument, and resolving this question will serve to clarify the

law. See Mercury Interactive, 618 F.3d at 992. We have a

duty to “say what the law is,” Marbury v. Madison, 1 Cranch

137, 177 (1803), and we would shirk that duty by not

deciding whether § 20.21(i)(1) modifies the MBTA’s ban on

unlawfully baiting migratory birds, 16 U.S.C. § 704(b)(2).

II.

The MBTA is a century-old law implementing a treaty to

save migratory birds from “indiscriminate slaughter.”

Convention Between the United States and Great Britain for

the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16,

1916, 39 Stat. 1702; see also Migratory Bird Treaty Act, ch.

128, 40 Stat. 755, 755–57 (1918) (codified as amended at

16 U.S.C. §§ 703–712).2

2

“The MBTA later incorporated elements of similar bilateral treaties

between the United States and Mexico, Japan, and the Soviet Union.”

United States v. Vance Crooked Arm, 788 F.3d 1065, 1070 n.3 (9th Cir.

2015) (per curiam).

12 UNITED STATES V. OBENDORF

Three statutory provisions are relevant here. First, the

MBTA categorically bans a slew of conduct that could harm

migratory birds—hunting, capturing, killing, possessing,

selling, and more—and it authorizes the Secretary of the

Interior to promulgate regulations permitting activities that

the MBTA would otherwise prohibit, as long as those

activities are consistent with the underlying treaties.

16 U.S.C. § 703(a); see also id. § 704(a) (granting the

Secretary rulemaking authority). Second, the MBTA

separately prohibits any person from taking “any migratory

game bird by the aid of baiting, or on or over any baited area,

if the person knows or reasonably should know that the area

is a baited area.” Id. § 704(b)(1). (The statutory term “take”

means “to pursue, hunt, shoot, wound, kill, trap, capture, or

collect,” or to attempt any of those activities. 50 C.F.R.

§ 10.12.) Finally, the MBTA outlaws baiting migratory birds

so they can be hunted: it bans “plac[ing] or direct[ing] the

placement of bait on or adjacent to an area for the purpose of

causing, inducing, or allowing any person to take or attempt

to take any migratory game bird by the aid of baiting on or

over the baited area.” 16 U.S.C. § 704(b)(2).

The crux of this case lies in the regulations implementing

these three statutory provisions. The MBTA regulations

define “baiting” and “baited area” very broadly. “Baiting” is

the “direct or indirect placing, exposing, depositing,

distributing, or scattering of salt, grain, or other feed that

could serve as a lure or attraction for migratory game birds to,

on, or over any areas where hunters are attempting to take

them.” 50 C.F.R. § 20.11(k) (emphasis added). Consistent

with the definition of “baiting,” a “baited area” is defined as

“any area on which [scattered] salt, grain, or other feed . . .

could serve as a lure or attraction for migratory game birds to,

on, or over areas where hunters are attempting to take them.”

UNITED STATES V. OBENDORF 13

Id. § 20.11(j) (emphasis added). Once an area has been

baited, it is considered a “baited area” that is off-limits to

hunting until ten days after all the bait is removed. Id.

These broad definitions can create potential problems in

agricultural areas. Common farming practices inevitably

leave behind grains and other bird feed in fields, and

migratory game birds are loathe to pass up a free meal.

Because many species, including ducks, find crops like cereal

grains and corn particularly appetizing, at least one other

court has recognized that the “broad definition of baited areas

would seem to preclude the hunting of migratory waterfowl

over all agricultural areas.” M.J. Farms, Ltd. v. U.S. Fish &

Wildlife Serv., 593 F. Supp. 2d 907, 913 (W.D. La. 2008).

Section 20.21(i)(1) attempts to remedy this problem. As

set forth above, that regulation carves out an exception to the

MBTA’s ban on hunting over baited areas. See Migratory

Bird Hunting: Regulations Regarding Baiting and Baited

Areas, 64 Fed. Reg. 29,799, 29,800–01 (June 3, 1999)

(discussing how the regulatory scheme seeks to harmonize

hunting and certain agricultural practices). Section 20.21(i)(1)

provides that, notwithstanding the general prohibition on

hunting over bait, nothing prohibits “the taking of any

migratory game bird” on or over “[s]tanding 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, post-harvest manipulation or normal soil

stabilization practice.” 50 C.F.R. § 20.21(i)(1)(i). This

exception applies so long as the listed areas are “not

otherwise baited.” Id. In other words, farms are not exempt

from the MBTA simply because they are farms. If grain is

14 UNITED STATES V. OBENDORF

scattered as part of a farm’s normal agricultural activities and

migratory birds happen to be drawn to it, the birds are fair

game. But if grain is scattered for the purpose of baiting, the

birds may not be taken.

The parties agree that § 20.21(i)(1) permits hunting over

agricultural lands that might otherwise be off-limits. What

they disagree about—and what we must decide—is whether

§ 20.21(i)(1) also modifies the MBTA’s ban on unlawful

baiting. We conclude it does not.

We begin with the plain language of the regulation.

United States v. Bibbins, 637 F.3d 1087, 1091 (9th Cir.

2011); United States v. Bucher, 375 F.3d 929, 932 (9th Cir.

2004). By its terms, § 20.21 applies only to takings—that is,

hunting, shooting, and similar activities. See 50 C.F.R.

§ 20.21; see also id. § 10.12 (defining “take”). Section 20.21

provides that migratory game birds “may be taken by any

method except those” it specifically prohibits. It then goes on

to identify specific hunting methods that are illegal, like

targeting migratory game birds with machine guns or

explosives. See, e.g., 50 C.F.R. § 20.21(a). Notably, the

regulation is titled “What hunting methods are illegal?” Id.

§ 20.21 (emphasis added).

Consistent with § 20.21’s overall focus on prohibited

hunting methods, § 20.21(i)(1) concerns only hunting over

bait—not baiting by itself. Section 20.21(i) makes plain that

hunting over bait is an illegal hunting method, mirroring the

Act’s statutory prohibition. Compare 50 C.F.R. § 20.21(i)

(“No persons shall take migratory game birds . . . [b]y the aid

of baiting, or on or over any baited area . . . .”), with

16 U.S.C. § 704(b)(1) (“It shall be unlawful for any person to

. . . take any migratory game bird by the aid of baiting, or on

UNITED STATES V. OBENDORF 15

or over any baited area . . . .”). The next subsection,

§ 20.21(i)(1), allows hunting over specified lands that would

otherwise seem to qualify as “baited areas.” 50 C.F.R.

§ 20.21(i)(1). Taken together, this arrangement does not alter

what it means to bait a field, but it tells hunters where they

cannot hunt, before carving out some otherwise-off-limits

areas where they can.

The format of this regulatory scheme also points to the

conclusion that § 20.21(i)(1) does not create an exception to

the Act’s ban on unlawful baiting, and applies only to

unlawful hunting. Chapter I of Title 50 of the Code of

Federal Regulations houses a variety of FWS regulations, and

the MBTA regulations reside in Part 20 of Subchapter B. The

first provision of Part 20 states that “[t]he regulations

contained in this part relate only to the hunting of migratory

game birds.” 50 C.F.R. § 20.1(a) (emphasis added).

Section 20.21 is located within Subpart C of Part 20—titled

“Taking”—alongside restrictions on hunting seasons and how

many birds may be taken in a single day. See id.

§§ 20.20–.26.

Finally, the legislative history of the MBTA and the

history of the regulations that implement it confirm our

reading. Until 1998, unlawful baiting was not a discrete

offense under the MBTA. See Migratory Bird Treaty Reform

Act of 1998, Pub. L. No. 105-312, § 102, 112 Stat. 2956,

2956. Yet a version of § 20.21(i) existed even before

unlawful baiting was separately outlawed. See Migratory

Bird Hunting: Regulations Regarding Baiting and Baited

Areas, 64 Fed. Reg. 29,799, 29,803 (June 3, 1999); see also

United States v. Adams, 174 F.3d 571, 574 (5th Cir. 1999)

(analyzing an earlier version of 50 C.F.R. § 20.21(i)). It

would be difficult to conclude that § 20.21(i) and any of its

16 UNITED STATES V. OBENDORF

subsections create an exception to the MBTA’s ban on

unlawful baiting because the regulation existed in

substantially the same form before baiting became a separate

crime.3

Obendorf argues that our interpretation of § 20.21(i)(1)

would lead to an absurd result because a person could avoid

prosecution for hunting over a farmer’s field by finding

refuge in § 20.21(i)(1), but the farmer could still be

prosecuted for baiting the same field even though he or she

was simply farming the land. His fear is misplaced. To

convict a person of unlawful baiting, the government must

prove that defendant placed bait “for the purpose of causing,

inducing, or allowing any person to take or attempt to take

any migratory game bird by the aid of baiting.” 16 U.S.C.

§ 704(b)(2) (emphasis added). The Act’s mens rea

requirement ensures that innocent farmers are not ensnared.

In sum, we conclude that 50 C.F.R. § 20.21(i)(1) does not

create a so-called Agricultural Practice Exception to the

MBTA’s ban on unlawful baiting; it instead permits hunting

over certain lands that would otherwise be off-limits.4

3

Obendorf suggests FWS simply forgot to account for the change

when it updated its regulations, but FWS published a notice of its rule

change in the Federal Register that explicitly acknowledged the

amendment. See Regulations Regarding Baiting, 64 Fed. Reg. at 29,800

(“[I]t is now a separate offense to place or direct the placement of bait

. . . .”).

4

The Fourth Circuit reached a different conclusion in an unpublished

per curiam opinion in United States v. Cathey, 619 F. App’x 207, 210–11

(4th Cir. 2015) (per curiam). In Cathey, the court affirmed a conviction

for unlawful baiting where the trial involved questions about whether the

defendant’s farming activities fell within the scope of § 20.21(i)(1).

Cathey, 619 F. App’x at 210–12. But Cathey does not analyze the

UNITED STATES V. OBENDORF 17

Consequently, we conclude that § 20.21(i)(1) was not

relevant to the baiting charges Obendorf faced.

III.

The district court’s temporal requirement cropped up in

its jury instructions and in the evidentiary rulings that

prevented Obendorf from eliciting opinions about his

farming practices when he cross-examined the three State

Extension Specialists who testified at trial. The government

argues any error was harmless because § 20.21(i)(1) does not

apply to the baiting charges at issue in this case. We agree

that any error in the jury instructions was harmless. The

evidentiary rulings present a closer question.

The jury instructions saddled the government with a

burden the law does not prescribe: to prove beyond a

reasonable doubt that the so-called Agricultural Practice

Exception did not apply. The instruction for the substantive

baiting charge, which the conspiracy charge cross-referenced,

stated:

In Count Two, Mr. Obendorf is charged

with Placing Bait for Migratory Game Birds,

in violation of the Migratory Bird Treaty Act.

In order for Mr. Obendorf to be guilty of this

charge, the Government must prove each of

the following elements beyond a reasonable

doubt:

threshold question of whether § 20.21(i)(1) applies in unlawful baiting

cases. Insofar as Cathey represents the Fourth Circuit’s considered

judgment on the issue, we reach a different conclusion.

18 UNITED STATES V. OBENDORF

1. That on or about November 2013, Mr.

Obendorf placed or directed the placement

of bait on or adjacent to an area;

2. Mr. Obendorf did so for the purpose of

causing, inducing, or allowing any person

to take or attempt to take any migratory

game bird by the aid of baiting on or over

a baited area; and

3. The Agricultural Practice Exception

does not apply.

If the Government fails to prove any one

of these elements beyond a reasonable doubt,

your verdict on this Count must be Not

Guilty.

This instruction tasked the government with disproving an

exception that did not apply in the first place. Consequently,

we conclude that any error in the jury instructions was

harmless beyond a reasonable doubt. See United States v.

Pheaster, 544 F.2d 353, 362 n.3 (9th Cir. 1976) (finding

harmless error where “[t]he instructions placed a heavier

burden on the government than was proper” and “the

defendants were convicted under [the] heavier standard”).

The district court’s evidentiary rulings are thornier.

Obendorf was not allowed to cross-examine the three State

Extension Specialists who testified at trial about whether his

farming practices comported with their official

recommendations. In one sense, any error on this score was

harmless because no so-called Agricultural Practice

Exception was available to Obendorf. But Obendorf argues

UNITED STATES V. OBENDORF 19

that he was disadvantaged because he was prevented from

eliciting testimony that may have helped show he lacked the

requisite intent to bait the duck field. He also argues that he

was prejudiced because the government effectively invited

him to construct a defense theory around a regulatory safe

harbor that it now maintains does not apply. We are leery of

the government’s shift in position and note that its legal error

surely added to the expense, effort, and time required to

litigate this case. Nevertheless, our review of the record

convinces us that this error did not affect the verdict. United

States v. Decoud, 456 F.3d 996, 1010 (9th Cir. 2006).

To convict Obendorf of illegal baiting, the government

had to prove beyond a reasonable doubt: (1) that Obendorf

baited the duck field, or ordered others to bait the duck field;

and (2) that he did so in order to facilitate hunting aided by

bait. See 16 U.S.C. § 704(b)(2). The evidence establishing

both these elements was extremely strong.

First, the jury heard from multiple witnesses that

Obendorf directed his employees to bait the duck field.

Andrew Deboer, a former Obendorf farmhand, testified that

Obendorf told him to configure the combine harvester used

on the duck field so that it would spill corn kernels onto the

ground to “leave behind the maximum amount of corn for the

ducks.” According to Deboer, this directive was unique to

the duck field: when he harvested other cornfields on

Obendorf’s property, he had to readjust the combine’s

settings and regularly check to ensure that he was not “losing

too much grain.” Another former employee, Herb Troyer,

gave similar testimony. Troyer told the jury that he worked

for Obendorf and his sons for five years, including a stint as

a combine operator. Like Deboer, Troyer testified that he

was supposed to harvest most of Obendorf’s cornfields as

20 UNITED STATES V. OBENDORF

completely as possible, but he received special instructions

from Obendorf about the duck field. For it, Troyer was told

to “open the combine up[,] . . . spilling everything out the

back.”

The jury also heard from Josh Kling, an experienced duck

hunter who worked as a mechanic on Obendorf’s farm for

several years but had since fallen out with Obendorf. Kling

testified that he consulted with Obendorf about how to best

manage the property for duck hunting, and that he and

Obendorf discussed strip combining the duck field but not

Obendorf’s other cornfields. Kling told the jury that he and

Obendorf discussed harvesting the duck field by “clos[ing] up

the combine to kind of let a bunch of the corn blow out the

back of it . . . [t]o leave it on the ground for the ducks, to feed

the ducks.”

Ample evidence also established that Obendorf’s scheme

was designed to lure ducks for hunting. For example, Kling

testified that when “hunting [in the duck field] got bad,”

Obendorf directed him to knock down still-standing corn,

under the guise of creating a “windstorm,” to feed the ducks.

And Andrew Deboer testified that he knew he was illegally

baiting a field used for hunting, but that he did so because

Obendorf told him to. Obendorf’s son Brock also testified on

cross-examination that they strip-combined the duck field

“for hunting purposes.”

On appeal, Obendorf stressed that he would have pursued

a different trial strategy if he had not been led to believe he

could find refuge in a regulatory safe harbor. At oral

argument, he indicated that, but for the government’s

erroneous representation that the Agricultural Practice

Exception was a potential defense, he would have devoted

UNITED STATES V. OBENDORF 21

more energy to undercutting the government’s proof on the

two actual elements of unlawful baiting. But our review of

the record reveals that Obendorf did just that, and the jury

was not persuaded.

First, Obendorf introduced evidence that he was simply

farming and did not intend to bait the duck field for hunting.

He called his son and another employee to testify that they

strip-combined the duck field so that their cattle could eat the

unharvested corn in the spring. Obendorf also called a local

farmer who testified that Obendorf’s farming practices were

not out of the ordinary, and that some spillage from a

combine is inevitable.

Second, Obendorf sought to undermine the credibility of

the government’s witnesses. On cross-examination, he asked

government witnesses about prior convictions, past game

violations, and unsavory personal remarks. One government

witness admitted that employees from the Idaho Department

of Fish and Game occasionally hunted the duck field. And in

his case-in-chief, Obendorf elicited testimony from one of his

employees that investigators threatened the employee into

cooperating. Perhaps most importantly, the jury heard that

Obendorf and Josh Kling—a key government witness who

provided the initial tip that Obendorf was baiting

ducks—were in a “full-blown feud” at the time of trial, and

that Kling cooperated with investigators out of animosity

towards Obendorf.

Finally, the district court did not prevent Obendorf from

challenging the government’s evidence regarding his intent.

The district court explained that Obendorf could, in his case-

in-chief, “introduce evidence from a farmer or farm expert”

that his practices “had legitimate farming purposes other than

22 UNITED STATES V. OBENDORF

baiting a field for hunters,” to rebut the government’s proof

that he intended to lure ducks for hunting. The district court

explained that such testimony was not categorically

precluded, but that it would not be allowed on cross-

examination of witnesses who “were called simply to discuss

the regulatory Agricultural Practice Exception” because it

went beyond the scope of the direct examination. Nothing in

the district court’s ruling prevented Obendorf from calling the

same three State Extension Specialists during his case-in-

chief and asking them to opine on his farming practices. In

fact, the district court concluded, “this ruling does not block

the defense from putting on evidence during their case

regarding the ‘purpose’ element that the Government must

prove.”

* * *

In the end, we cannot see what Obendorf would have

done differently if the parties had not misapprehended the

MBTA regulations. In a trial without the distraction of

§ 20.21(i)(1), the government would have had to prove:

(1) that Obendorf baited the duck field, or ordered others to

bait the duck field; and (2) that he did so in order to facilitate

hunting aided by bait. See 16 U.S.C. § 704(b)(2). The

evidence establishing those elements was extremely strong,

even in the face of Obendorf’s attempts to undercut the

government’s proof. Moreover, the jury instructions treated

the two actual elements of unlawful baiting as wholly discrete

from the so-called Agricultural Practice Exception,

ameliorating any potential for confusion. In the face of

overwhelming evidence establishing that Obendorf baited the

duck field in order to facilitate duck hunting, we conclude

that the erroneous application of § 20.21(i)(1) did not affect

the verdict. See Decoud, 456 F.3d at 1010.

UNITED STATES V. OBENDORF 23

Conclusion

The Migratory Bird Treaty Act regulations do not create

a regulatory exception to the MBTA’s ban on unlawful

baiting. Obendorf was charged with unlawful baiting, not

unlawful hunting, so 50 C.F.R. § 20.21(i)(1) could not have

immunized his conduct. Although the parties

misapprehended the law below, any error was harmless.

Accordingly, Obendorf’s conviction is AFFIRMED.