United States v. Obendorf, No. 16-30188 (Christen with Gould and Paez) --- The Ninth Circuit affirmed misdemeanor convictions for conspiracy to bait, and for baiting, an area of a farm for the purpose of hunting ducks in violation of the Migratory Bird Treaty Act. The defendant, an Idaho farmer, was sentenced to three years of probation and fined $40,000 following a seven-day jury trial. The court held that because a regulatory exception for hunting over ceretain farmland did not apply to the baiting charges in this case, the jury was properly instructed and as a result any limitation on the scope of cross-examination of government expert witnesses was harmless.　

The defendant's farmland lies underneath the migratory path of certain ducks. During the annual fall harvest, he would usually completely harvest the corn in his fields. But in a certain section of the farm near a pit blind, he would only harvest every other row (or direct his employees to harvest only every other row, hence the conspiracy charge), and leave massive amounts of corn on the ground to attract the ducks that would pass overhead. Inspectors from the federal Fish and Wildlife Service and from the state department of fish and game placed cameras on the defendant's field in order to monitor the activity near the hunting blind. As a result, the defendant was charged with two misdemeanor counts of conspiracy to bait the field, and of baiting the field, in violation of the Migratory Bird Treaty Act.　

At trial, the parties agreed that in order for the government to obtain a conviction, it would have to prove that the regulatory exception that allows hunting over farmland where migratory birds would feed did not apply if the birds were feeding on standing crops that were left behind as part of a normal agricultural practice. In order to prove that this exception did not apply, the government called three expert witnesses from the University of Idaho's agriculture department to testify that the defendant's farming practices in the area of his farm near the hunting blind were not normal. The defendant sought to cross-examine these witnesses in order to get them to offer an opinion that they were normal, but the judge did not allow him to do so. In addition, multiple witnesses testified that the defendant had ordered his employees to plow the area near the hunting blind so as to bait it for the passing ducks. The jury convicted the defendant on both counts after a seven-day trial, and he was sentenced to three years of probation and to pay a fine of $40,000.　

On appeal, the government argued for the first time that the exception for normal agricultural practices did not apply to charges of unlawful baiting. The Ninth Circuit allowed the government to change its theory of the case on appeal, because the change was purely legal and addressing the government's new-found argument would allow the court to clarify the law. Then the court agreed with the government that the exception only excused charges of unlawful hunting (or "taking" of migratory birds), not unlawful baiting. Thus the court held that any error in instructing the jury on the government's trial theory was harmless (because the government's trial theory effectively amounted to the government assuming the burden of proving more than was legally necessary to obtain a conviction).　

The court also held that any error in limiting the defendant's cross-examination of the government's agricultural experts was harmless. Since the exception did not apply to the baiting charges, there was no error in preventing him from eliciting their opinion that his farming practices were normal. And to the extent that cross-examination of these witnesses could have shed light on the defendant's intent, the court held that the testimony from his (possibly disgruntled) employees about his express directives to bait the hunting blind was overwhelming.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/16-30188.pdf