UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4780
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT CLAUDE CATHEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:13-cr-01110-HMH-1)
Submitted: June 19, 2015 Decided: July 2, 2015
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Glenn Yarborough, III, LAW OFFICE OF WILLIAM G.
YARBOROUGH, III, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Jamie Lea Nabors
Schoen, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Claude Cathey was convicted, following a jury trial
conducted by a magistrate judge, of illegally baiting a field,
in violation of the Migratory Bird Treaty Act, 16 U.S.C.
§§ 704(b)(2), 707(c) (2012); 50 C.F.R. §§ 20.11, 20.21(i)
(2013). Cathey appealed his conviction to the district court,
which affirmed. He now appeals the district court’s order.
Finding no error, we affirm.
A district court reviewing a trial conducted by a
magistrate judge applies the same standards an appellate court
applies in assessing a criminal judgment imposed by a district
court. United States v. Bursey, 416 F.3d 301, 305 (4th Cir.
2005); see Fed. R. Crim. P. 58(g)(2)(D). In turn, our “review
of a magistrate court's trial record is governed by the same
standards as was the district court's appellate review.”
Bursey, 416 F.3d at 305–06.
I.
Cathey first argues that the magistrate judge abused his
discretion when he allowed into evidence testimony that Cathey
had been previously charged with illegal baiting. We review
evidentiary rulings for abuse of discretion. United States v.
Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). A magistrate judge
abuses his discretion by acting “arbitrarily or irrationally” in
admitting evidence. Id. (internal quotation marks omitted).
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To be admissible under Rule 404(b), evidence must be “(1)
relevant to an issue other than character; (2) necessary; and
(3) reliable.” United States v. Siegel, 536 F.3d 306, 317 (4th
Cir. 2008) (internal quotation marks omitted). “Rule 404(b) is
. . . an inclusive rule, admitting all evidence of other crimes
or acts except that which tends to prove only criminal
disposition.” United States v. Young, 248 F.3d 260, 271-72 (4th
Cir. 2001) (internal quotation marks omitted).
“Evidence sought to be admitted under Rule 404(b) must also
satisfy” Fed. R. Evid. 403. Siegel, 536 F.3d at 319. “Rule 403
only requires suppression of evidence that results in unfair
prejudice—prejudice that damages an opponent for reasons other
than its probative value, for instance, an appeal to emotion,
and only when that unfair prejudice substantially outweighs the
probative value of the evidence.” United States v. Mohr, 318
F.3d 613, 619-20 (4th Cir. 2003) (internal quotation marks and
alteration omitted).
“To be relevant, evidence need only to have any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996) (internal quotation marks
omitted). The greater the similarity between Rule 404(b)
evidence and the fact in question, the more relevant the Rule
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404(b) evidence becomes. United States v. Queen, 132 F.3d 991,
997 (4th Cir. 1997). “Evidence is reliable for purposes of Rule
404(b) unless it is so preposterous that it could not be
believed by a rational and properly instructed juror.” Siegel,
536 F.3d at 319 (internal quotation marks omitted).
We discern no abuse of discretion in the magistrate judge’s
ruling. Cathey challenges the relevancy and reliability of the
evidence. The prior charge, which was for the same offense
under the same statutes and regulations, tended to make it more
probable that Cathey was aware of the regulations on farming
applicable when hunting was anticipated. Thus, this evidence
was relevant to Cathey’s knowledge and intent. Further, we
conclude that the testimony was reliable.
Finally, Cathey asserts that the evidence was unfairly
prejudicial because the testifying officer misstated that Cathey
pleaded guilty to the prior charge. However, this portion of
the testimony occurred outside the presence of the jury and
therefore could not have caused confusion. Moreover, the
magistrate judge limited the Government’s evidence to the fact
of the prior charge and gave two limiting instructions,
including one immediately after the officer’s testimony.
Alternatively, Cathey argues that introducing evidence that
he was charged with illegal baiting violated the pretrial
diversion agreement related to that charge. Other circuits have
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recognized that “[a] pretrial diversion agreement is analogous
to a plea bargain agreement,” and thus is interpreted under the
same standards. United States v. Harris, 376 F.3d 1282, 1287
(11th Cir. 2004); cf. United States v. Gillion, 704 F.3d 284,
292-93 (4th Cir. 2012) (interpreting proffer agreement as
contract). “It is well-established that the interpretation of
plea agreements is rooted in contract law, and that each party
should receive the benefit of its bargain.” United States v.
Dawson, 587 F.3d 640, 645 (4th Cir. 2009) (internal quotation
marks omitted). “Accordingly, in enforcing plea agreements, the
government is held only to those promises that it actually made,
and the government’s duty in carrying out its obligations under
a plea agreement is no greater than that of fidelity to the
agreement.” Id. (internal quotation marks omitted).
While Cathey argues that the Government agreed not to use
the fact that he was charged against him, the agreement states
only that it bars the use of the agreement or any documents
related to Cathey’s participation in the program. Here, the
Government introduced only the fact that Cathey had previously
been charged with illegal baiting, not the agreement or any
information related to Cathey’s participation in the pretrial
diversion program. We therefore conclude that the magistrate
judge did not abuse his discretion in allowing the evidence.
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II.
Cathey next challenges the magistrate judge’s ruling
excluding his proffered expert testimony. We review for abuse
of discretion a decision to exclude expert testimony. United
States v. Garcia, 752 F.3d 382, 390 (4th Cir. 2014). Expert
testimony is admissible if it is reliable and relevant. PBM
Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 123 (4th Cir.
2011). “‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Fed. R. Evid. 401.
The Secretary of the Interior has promulgated two
exceptions to the prohibition on hunting of migratory birds,
permitting such hunting, with exceptions not relevant here, on
or over “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,” and “where grain or other feed has been
distributed or scattered . . . solely as the result of a normal
agricultural operation.” 50 C.F.R. § 20.21(i)(1)(i), (2). The
regulations further limit “normal agricultural planting,
harvesting, or post-harvesting manipulation” and “normal
agricultural operation” to those practices “conducted in
accordance with official recommendations of State Extension
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Specialists of the Cooperative Extension Service of the U.S.
Department of Agriculture.” 50 C.F.R. § 20.11(g), (h).
We discern no abuse of discretion in the magistrate judge’s
decision to exclude Cathey’s proffered expert witness. The
proffered expert, a local farmer, testified that broadcasting
seeds, the method Cathey contended he used when he planted the
field, was an accepted farming practice in the community. The
witness testified, however, that he was not familiar with the
relevant Extension Service recommendations regarding the
planting of wheat crops if the hunting of migratory birds was
anticipated. Thus, the expert’s testimony was not relevant to
whether Cathey planted his wheat crop in accordance with the
Extension Service recommendations.
Cathey contends that United States v. Boynton, 63 F.3d 337,
(4th Cir. 1995), permits local farmers to testify about accepted
community farming practices. We conclude that Boynton is not
applicable here because the regulations have been amended to
“apply an objective standard in determining whether the planting
was done in accordance with official recommendations.” United
States v. Strassweg, 143 F. App’x 665, 666 (6th Cir. 2005)
(internal quotation marks omitted); cf. Falk v. U.S. ex rel.
Dep’t of Interior, 452 F.3d 951, 954-55 (8th Cir. 2006)
(examining plaintiffs’ actions in light of Extension Service
Guidelines).
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III.
Finally, Cathey challenges the sufficiency of the evidence
against him. He first contends that the Government failed to
prove that he was not farming under either exception because the
Extension Guidelines were merely recommendations. Cathey
further argues that incorporating the Extension Service
Guidelines shifts the burden of proof to the defendant.
A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). The jury verdict must by sustained when
“there is substantial evidence in the record, when viewed in the
light most favorable to the government, to support the
conviction.” United States v. Jaensch, 665 F.3d 83, 93 (4th
Cir. 2011) (internal quotation marks omitted). “Substantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (alteration
and internal quotation marks omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Beidler, 110 F.3d at 1067
(internal quotation marks omitted).
In order to establish that Cathey was guilty of baiting a
field for the purpose of hunting migratory birds, the Government
was required to prove that Cathey “place[d] or direct[ed] the
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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) (2012). An area is
considered “baited” when grain that “could serve as a lure or
attraction for migratory game birds” is “placed, exposed,
deposited, distributed, or scattered.” 50 C.F.R. § 20.11(j).
The area “remain[s] a baited area for ten days following the
complete removal” of the grain. Id.
As discussed above, hunting of migratory game birds is
permitted on or over “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,” and “where grain or other feed has been
distributed or scattered . . . solely as the result of a normal
agricultural operation.” 50 C.F.R. § 20.21(i)(1)(i), (2). In
order to fall within these exceptions, the practices must be
“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), (h).
Cathey argues that incorporating these recommendations as
elements of the offense shifted the burden of proof from the
Government, requiring him to prove that he planted his crops in
accordance with the recommendations. We conclude that the
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burden here was properly placed on the Government. The
magistrate judge instructed the jury on multiple occasions that
Cathey was presumed innocent, that he had no burden to produce
any evidence, and that it was the Government’s burden to prove
the elements of the offense beyond a reasonable doubt. In
explaining the elements, the magistrate judge included the two
exceptions predicated on the Clemson Extension Guidelines.
Moreover, we conclude that substantial evidence supports
Cathey’s conviction. The Government’s Extension Guidelines
expert testified that the wheat field failed to meet the
recommendations in four areas: seed germination rate, seed
planting depth, seeding density, and the seed bed. The expert
further testified that top sowing was not a recommended
practice. The investigating officers observed a large quantity
of uncovered wheat seeds on both plowed and unplowed sections of
the field two days prior to and on the morning of the hunt.
Cathey further argues that the Government failed to prove
that the birds killed during the hunt were in fact mourning
doves. “Migratory game birds” is defined as “those migratory
birds included in the terms of conventions between the United
States and any foreign country for the protection of migratory
birds,” including the birds listed in 50 C.F.R. § 10.13. 50
C.F.R. § 20.11(a). Mourning doves are a listed migratory game
bird. 50 C.F.R. § 10.13(c)(1) (2013); see id. § 10.13(b) (“The
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purpose [of this list] is to inform the public of the species
protected by regulations that enforce the terms of the MBTA.”).
We conclude that the Government proved that Cathey baited
the field to allow the hunters to take or attempt to take
mourning doves. Cathey stipulated that he leased the field to
the hunter so that the hunter could use the field to hunt
mourning doves, and that the hunter informed Cathey he planned
to conduct a hunt on November 17, 2012. He also stipulated that
hunters hunted mourning doves over the field on that date.
IV.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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