Court upholds farmer’s conviction for ‘baiting’ ducks

An appeals court has upheld the conviction of an Idaho farmer for baiting ducks.

Despite a legal error during trial, an Idaho farmer was properly convicted of illegally baiting ducks by leaving unharvested corn in a field, according to a federal appeals court.

In 2016, a jury found Gregory Obendorf guilty of two counts of violating the Migratory Bird Treaty Act through such actions as leaving certain rows of corns standing and calibrating a combine harvester to spill the crop on a field near Parma, Idaho.

Obendorf was sentenced to 15 days in jail, 200 hours of community service, three years of probation and a $40,000 fine, though the jail time and community service were postponed while he challenged the verdict before the 9th U.S. Circuit Court of Appeals.

The 9th Circuit has now ruled that both federal prosecutors and Oberdorf’s defense attorney “misapprehended” the law but the “error was harmless” and didn’t affect the jury’s decision.

The confusion in Obendorf’s trial concerned an “agricultural practice exception” to the Migratory Bird Treaty Act, a statute that aims to protect ducks and other bird species from excessive killing.

The judge overseeing the trial did not allow Obendorf’s attorney to cross-examine three University of Idaho Extension agents who had testified that he didn’t follow normal agricultural practices.

Planting, harvesting, post-harvest manipulation and soil stabilization practices are exempted from the MBTA’s prohibition against taking birds from baited areas, as long as the practices are officially recommended by the state’s Extension Service.

However, that exemption only applies to the unlawful hunting, or “taking,” of migratory birds in a baited area, not to the statute’s prohibition against baiting itself, the 9th Circuit said.

The agricultural practice exception “permits hunting over certain lands that would otherwise be off-limits” because they contain crops while still banning farmed fields from being baited, according to the ruling.

Although the exemption was “not relevant to the baiting charges Obendorf faces,” the error was harmless in regard to jury instructions because the government was “tasked with disproving an exception that did not apply in the first place,” the 9th Circuit said.

The 9th Circuit also rejected the argument Obendorf was prejudiced by the mistake because his legal theory centered on a “regulatory safe harbor” that didn’t actually exist.

Regardless of the exemption, the evidence was still “extremely strong” that Obendorf baited a field to facilitate hunting, the ruling said.

For example, employees of the farm testified Obendorf told them to configure combine settings to leave maximum corn behind for ducks in a certain field, while elsewhere they were expected to harvest as much as possible.

While the judge didn’t allow three Extension specialists who served as prosecution witnesses to be cross-examined by Obedorf’s attorney, they could still have been called as direct defense witnesses regarding farm practices, the 9th Circuit said.

“In the end, we cannot see what Obendorf would have done differently if the parties had not misapprehended the MBTA regulations,” the ruling said.

Under federal sentencing guidelines, Obendorf faced substantially more time behind bars than 30 days sought by prosecutors, according to a court brief filed by the government.

Due to his criminal history — two convictions for driving while intoxicated and one conviction for involuntary manslaughter while driving intoxicated — the federal guidelines recommended two years in prison, the government brief said.

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