United States v. Adams

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-30719

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

VERSUS

JERRY ARVILLE ADAMS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Louisiana

May 3, 1999

Before DAVIS, STEWART, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Jerry Arville Adams (“Adams”) appeals his conviction
on two counts of violating the Migratory Bird Treaty Act (“MBTA”)
for taking doves with the aid of bait and aiding and abetting
others in taking doves with the aid of bait.1 See 16 U.S.C. § 703;
18 U.S.C. § 2; 50 C.F.R. § 20.21(i). In support of his appeal,

1
He was also convicted on one count of possessing a live dove
in violation of 50 C.F.R. § 20.38, but does not challenge it on
appeal.

1
Adams argues that: (1) 16 U.S.C. § 703, as further defined by 50
C.F.R. § 20.21(i), is unconstitutionally vague as applied to him in
this case, (2) the Magistrate Judge erred in determining that
intent is not an element of the offense for which he was convicted,
(3) the Magistrate Judge erred in allowing a certain witness to
testify as an expert, (4) the Magistrate Judge erred in finding
that his method of planting winter wheat for grazing cattle was not
a “normal agricultural planting,” (5) the Magistrate Judge erred in
finding that his method was not a “bona fide agricultural operation
or procedure,” (6) the Magistrate Judge erred in relying on an LSU
Agricultural Extension Service manual on optimum-yield planting
dates to determine that he was hunting over a baited field as a
matter of law, and (7) the Magistrate Judge erred in not allowing
him to introduce evidence on the procedures commonly used to plant
winter wheat in his area. After careful review, we reverse Adams’s
conviction.
I. FACTS AND PROCEDURAL BACKGROUND
The material facts of this case are not disputed among the
parties. During the last week in August, 1997, defendant Adams
prepared a field of approximately 18-19 acres in Northeast
Louisiana for the planting of winter wheat to graze his cattle on
during the upcoming winter. Adams prepared the field at the
instruction of his father, who had farmed all his life and who
customarily planted the winter wheat field in late August. Adams
disked the field, fertilized the field, scattered 33 bags of wheat
across the field with a spreader in the customary manner and when
his spreader broke, he scattered two remaining bags of wheat across

2
the field “as uniformly as possible.” Because of this, the
Wildlife agents investigating the field noted that certain areas of
the field had higher concentrations of grain than others. Despite
the uneven distribution, the eventual result was a lush and uniform
field of winter wheat.
On September 6, 1997, Adams, his wife, his father-in-law and
his brother-in-law went out to dove hunt on the field. Adams shot
12 doves that day, and the other parties also shot birds. Later
during the hunt, Adams and his hunting party were approached by
Federal and Louisiana State Wildlife agents. The agents checked
their licenses, counted their birds, and made an inspection of the
field at which time they discovered the grain. Also during this
inspection, a dove from Adam’s game bag took off and flew away
after being removed from his bag. Apparently, Adams thought the
bird was dead after he had knocked it to the ground with a shot.
On the basis of this bird, the agents charged Adams with possession
of a live dove in violation of 50 C.F.R. § 20.38.
In addition to being charged with possession of a live dove,
Adams was also charged with taking doves with the aid of bait and
aiding and abetting others in taking doves with the aid of bait.
Trial was held before a magistrate judge, where special agent Kash
Schriefer of the U.S. Fish and Wildlife Service and county agent
John Barnett both testified that the recommended earliest wheat-
planting date was September 20. Based on an LSU Extension Service
pamphlet, Barnett testified that planting wheat prior to September
20 was not a “normal agricultural planting.” In support of his
contention that his activities fell under at least one of the two

3
exceptions contained in the statute, Adams sought to introduce
certain demonstrative evidence and testimony of other farmers that
Adams’s planting was in accordance with the common procedures used
in the area. The Magistrate Judge did not allow Adams to
introduce the evidence and found him guilty on all three counts.
Adams was sentenced to pay a fine totaling $1750 plus a $30
assessment and placed on one year supervised probation with the
condition that he cannot hunt, go to hunting camps, or carry a
firearm along with the standard conditions of probation. Adams
appealed to the district court which affirmed his conviction,
substantially adopting the findings of the Magistrate Judge. This
appeal followed.
II. DISCUSSION
Adams first challenges 50 C.F.R. § 20.21(i) as being
unconstitutionally vague as it was applied to him. The relevant
portions of the regulation provide:
No person shall take migratory game birds:
* * *
(i) By the aid of baiting, or on or over any baited
area.... However, nothing in this paragraph shall
prohibit:
(1) The taking of all migratory game birds, including
waterfowl, on or over standing crops (including
aquatics), flooded harvested croplands, grain crops
properly shocked on the field where grown, or grains
found scattered solely as the result of normal
agricultural planting or harvesting; and
(2) The taking of all migratory game birds, except
waterfowl, on or over any lands where shelled, shucked,
or unshucked corn, wheat or other grain, salt, or other
feed has been distributed or scattered as the result of
bona fide agricultural operations or procedures....
50 C.F.R. § 20.21(i) (emphasis added). Rather than decide this

4
constitutional question, we resolve this case on other grounds.2
See generally Acorn v. Edwards, 81 F.3d 1387, 1390 (5th
Cir.1996)(noting that federal courts have a duty to avoid
constitutional issues that need not be resolved in order to
determine the rights of the parties to the case under
consideration). Like the flush of a convey of quail, a number of
reversible issues materialize in this appeal.
In Adams’s first non-constitutional challenge, he contends
that the Magistrate Judge erred in determining that intent is not
an element of the offense for which he was convicted. Because of
this ruling, Adams was not allowed to fully develop evidence
showing that his planting methods were commonly used in the area
and that his intentions were to grow the best possible stand of
winter wheat that he could. Accepting an LSU Agricultural
Extension pamphlet as conclusive proof on the matter, the
Magistrate Judge found that Adams was hunting over bait as a matter
of law because he had planted the wheat prior to the optimal
planting date of September 20. In addition to not letting Adams
put on evidence to show that his planting was “normal,” neither the
Government nor the two lower courts sufficiently addressed whether
Adams’s planting was a “bona fide” agricultural operation or
procedure.
Two cases from other circuits interpreting the § 20.21(i)

2
The two reported circuit-level cases that have considered this
specific question have both concluded that the two exceptions
contained in § 20.21(i) are not unconstitutionally vague. See
United States v. Boynton, 63 F.3d 337, 345 (4th Cir.1995); United
States v. Brandt, 717 F.2d 955, 959 (6th Cir.1983).

5
exceptions have come to different conclusions on whether the tests
for compliance should be objective, with no regard to the
defendant’s level of intent or knowledge, or subjective, with the
intent of the person that spread the grain determining whether a
violation had occurred. It should be noted, however, that both
circuits in which these cases were decided adhere to a strict
liability view of the MBTA.
In United States v. Brandt, the Sixth Circuit considered a
vagueness challenge to the exceptions by dove hunters similar to
Adams that had been convicted of hunting over a baited field. 717
F.2d 955 (6th Cir.1983). The court noted that the taking of
migratory birds over areas where they are attracted as a natural
and ordinary consequence of agricultural practices is clearly
contemplated as acceptable under the statute. Further, “[t]he
statute only seeks to preclude the taking of migratory birds which
have been intentionally lured to an area by bait.” Id. at 957.
Because of this, the court concluded, “[t]he Secretary’s intent is
not to distinguish between orthodox and unorthodox farming
practices, but to distinguish between areas to which birds are
attracted as a consequence of farming, and areas to which birds are
intentionally lured by baiting.” Id. at 958. Therefore, the Sixth
Circuit held that the exceptions did not require a hunter to engage
in a complex inquiry to determine the confines of customary
agrarian practices, but rather the inquiry should be a subjective
interpretation “directed at determining the intent of the person
seeding the land.” Id. at 957.
Under this approach, the Brandt Court maintains that it has

6
not changed the Sixth Circuit’s strict liability view of the Act.
Regardless of the hunter’s intent or knowledge of the bait, the
hunter could still be convicted depending on the intent of the
person spreading the grain. “In such a case, the relevant inquiry
would be whether the farmer’s desire to attract birds caused him to
initiate measures he would not otherwise have taken in the
production of his crops.” Id. at 958. Under this test, the hunter
must ascertain, at his own peril, whether the field has been
improperly baited. The court in Brandt affirmed the defendant’s
conviction, holding that “the intent of the person seeding the
field is simply a fact to be proven as in any trial involving
intent as an element of the offense.” Id.
The same issue arose again twelve years later in United States
v. Boynton, but contrary to the holding in Brandt, the Fourth
Circuit used an objective standard to determine the applicability
of the two exceptions. 63 F.3d 337 (4th Cir.1995). In regard to
the “normal agricultural planting or harvesting” exception, the
court held that the intent of the person who spread the grain is
not determinative, but rather, the inquiry should ask only whether
the grain was spread in a method accepted in the community to
produce a crop. See id. at 344. As to “bona fide agricultural
operations or procedures,” the court concluded that to force the
government to prove an intent element, when Congress intended
misdemeanor violations of the MBTA to be regulatory, strict
liability crimes would be an “absurd result.” See id. In light of
the majority of Federal Circuits interpreting the MBTA as a strict
liability offense along with no indication by the Fish and Wildlife
Service to make such a “radical” change as adding an intent element

7
to the regulations, the court concluded that a purely objective
test for both exceptions should be used. See id. at 345. The
Fourth Circuit’s test thus states that, “hunting over grain
scattered as the result of any one of the number of possible
methods accepted in the community for performing an agricultural
operation is legal, but hunting over grain scattered as a result of
a method which is not accepted as an agricultural method in the
community is not.” Id. at 344. The district court’s opinion cites
Boynton and holds that the intent of the person spreading the grain
has no affect on the inquiry. However, much of the rationale in
Boynton stems from the Fourth Circuit’s strict liability view of
the MBTA. According to the district court in this case, “once it
has been shown that the hunter has something to do, directly or
indirectly, with the placing of bait, the hunter hunts at his own
peril.” See Yandell v. U.S. By and Through Dept. of Interior, 550
F.Supp. 572, 577 (N.D. Miss.1982). The district court’s adoption
of a strict liability view of the MBTA is inconsistent with Fifth
Circuit precedent. “Unique among the circuits, we require a
minimum level of scienter as a necessary element of an offense of
the MBTA.” United States v. Sylvester, 848 F.2d 520, 522 (5th
Cir.1988)(referring to the standard set forth in the earlier Fifth
Circuit case of United States v. Delahoussaye, 573 F.2d 910 (5th
Cir.1978). In Delahoussaye, we held that for a hunter to be
convicted of a baiting violation under the MBTA, there must be a
finding that the hunter at least “should have known” that the birds
were being influenced by the presence of bait. See 573 F.2d at
913. Although the precise issue raised in Delahoussaye was not at
issue in this case, the simple fact that we do not adhere to a

8
strict liability view of the act suggests that the district court’s
reliance on Boynton was misplaced. However, rather than end the
inquiry with Delahoussaye and § 20.21 generally, we must now
consider whether intent is relevant specifically to the exceptions
of § 20.21(i). The Government contends that a purely objective
test should be used for both exceptions, while Adams contends that
the subjective element of the planter’s intent should be relevant
to the inquiry.
We first agree that an objective test should be used to
determine if an activity constitutes a “normal agricultural
planting or harvesting” under § 20.21(i)(1). Under such a test, an
activity will be deemed “normal” if it could be thought consistent
with the commonly accepted methods used in the area to produce a
crop. Normal area planting dates, seed distribution, seed bed
preparation, application rates, seed vitality, and eventual yields
and results, among others, are factors to consider in determining
if a method is accepted in the area. Unlike the approach taken in
the magistrate court below, a defendant will be able to introduce
relevant evidence he may have tending to show that the field was
prepared in a locally accepted manner.
In regard to the second exception, whether the bait was
scattered as the result of “bona fide agricultural operations or
procedures” under § 20.21(i)(2), the better reasoned view is that
the subjective intent of the person planting the field should be
considered in light of the objective agricultural norms used in the
area. This standard introduces both subjective and objective
elements into the inquiry. The Latin words “bona fide” included in
the hunting regulations mean “in good faith” or “without fraud.”

9
See BLACK’S LAW DICTIONARY, 177 (6th ed. 1990); Brandt, 717 F.2d at
958; Boynton, 63 F.3d at 341. Like the Sixth Circuit in Brandt,
the subjective prong of the test we adopt is not a mens rea
standard. It looks at the intent of the person scattering the
grain, not the intent of the hunter.3 In other words, it does not
incorporate a scienter requirement in addition to this circuit’s
Delahoussaye “should have known” standard; it simply recognizes
that the language of the exception requires an inquiry into the
intent of the planter to determine whether the activity in question
was conducted pursuant to a “bona fide agricultural operation or
procedure.” This approach maintains fidelity to the common
understanding of “bona fide” as meaning “good faith.” Neither the
government in this case nor the Fourth Circuit in Boynton argued
that “bona fide” should be given any other meaning than “good
faith.” It is therefore difficult to square the Fourth Circuit’s
purely objective test with the plain language of the regulation.
We thus hold that part of the inquiry into whether an act is
“bona fide” or not requires the government to prove that the
spreader’s intentions were not in good faith. Stated another way,
the government must prove, “as in any other case where intent is an
element of the offense,” that the farmer’s acts were merely a sham
to attract migratory birds to hunt. See generally Brandt, 717 F.2d
at 958.
In attempting to distinguish “bona fide operations and
procedures” from Adams’s activities in the present case, the

3
Except, of course, in the situation like the present case
where the spreader and the hunter are one and the same.

10
Government points to language in Brandt that “an operation or
procedure is undertaken in good faith if it is done for a purpose
related to the growing of crops, for example, erosion control.”
717 F.2d at 958. The Government argues that this language
distinguishes actual planting (which is what Adams was doing) from
activity related to actual planting (such as erosion control).
This interpretation, however, essentially reads the words “bona
fide” out of the regulation. At best, the Government treats “bona
fide” as synonymous with “normal” and argues that the only real
distinction between the two exceptions is the distinction between
“planting” on the one hand and “operations or procedures” on the
other. In accepting the Government’s position, the district court
reasoned that to hold otherwise would render the two exceptions
redundant. Yet to construe “operations or procedures” as excluding
actual planting, as the Government proposes, would have the
perverse result of protecting good faith activities related to
planting while leaving actual good faith planting unprotected.
Indeed, there are many agricultural operations or procedures
besides those involving “planting or harvesting.” In those
instances, the “normal agricultural planting and harvesting”
exception, by its very terms, cannot apply. See United States v.
Manning, 787 F.2d 431, 436 (8th Cir.1986). However, planting and
harvesting are by definition agricultural operations and
procedures. We therefore find no reason why a planting or
harvesting cannot be analyzed under each exception in § 20.21(i).
By treating the LSU Extension Service’s recommended optimal
planting dates as determinative on the question of both the
agricultural practices of the community and Adams’s own subjective

11
good faith, the Magistrate Judge and district court left Adams
without a reasonable opportunity to steer between lawful and
unlawful conduct. A reasonable person might well inquire with the
Fish and Wildlife Service to determine what planting practices are
considered “normal” within the area, but a reasonable person cannot
be expected to seek outside counsel on the question of his own
intentions. While Adams’s failure to comply with the LSU Extension
Service’s date recommendation may hypothetically indicate a lack of
good faith on his part, Adams was at least entitled to have the
courts below consider the evidence of his good faith in growing the
wheat.
The Government also contends that the “bona fide agricultural
operation or procedure” exception was never raised at the trial
level. However, the record is clear that Adams repeatedly
addressed this issue. Regardless, the Government’s argument is
based on the assumption that the two exceptions are affirmative
defenses rather than elements of the offense itself. Nothing in
the text of the regulation supports this interpretation. Indeed,
the regulation expressly states that “nothing in this paragraph
shall prohibit” hunting under either of the two exceptions. 50
C.F.R. § 20.21(i). The language is flatly inconsistent with the
contention that the exceptions are affirmative defenses rather than
elements of the crime itself. The regulation indicates by its own
language that its prohibition does not extend to the two
circumstances set forth in the exceptions. The onus is therefore
on the Government to prove that neither circumstance existed in the
present case.
Adams next asserts that, regardless of whether an objective or

12
subjective test is used, the district court erred in finding that
his activities did not fall under the two exceptions. Directly
challenging the sufficiency of the evidence to support the trial
court’s ultimate findings, Adams maintains that the court
erroneously believed that hunting over a field that was planted
before the recommended planting date would be a violation of the
regulation regardless of whether the field was planted as an
otherwise “normal agricultural planting” or “bona fide agricultural
operation or procedure.” This notion caused the judge to exclude
from evidence testimony by other area cattle farmers as to their
normal agricultural planting operations, to exclude photographs of
the field in question showing a uniform lush stand of winter wheat
resulting from the methods utilized, to exclude evidence of
planting dates used by other area cattle farmers in Northeast
Louisiana and to exclude evidence of other factors farmers consider
for planting such as weather, anticipated rainfall and the farmer’s
desire for an early or late crop.
The Magistrate Judge was of the opinion that the practices
utilized by the defendant may have been perfectly fine for farming
purposes but were not considered “normal” for purposes of hunting
over planted fields. In other words, what is “normal” and “bona
fide” for farming is not the same thing as “normal” and “bona fide”
for hunting. For hunting purposes, the only relevant inquiry was
whether it was planted prior to September 20.
The standard of review for a finding of guilt at a bench trial
is whether the conviction is supported by substantial evidence.
See United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993).
To reverse such a conviction, we must conclude that no rational

13
trier of fact could find substantial evidence indicating the
defendant’s guilt beyond a reasonable doubt after viewing the
evidence in the light most favorable to the Government. See United
States v. Garcia, 135 F.3d 951, 955 (5th Cir.1998).
Under the correct legal standard that considers evidence of
Adams’s subjective intent, as well as Adams’s proffered evidence
showing conformity to the accepted practices in the area, we
believe that no rational trier of fact could support the
conviction. Both courts below accepted as conclusive proof that
any planting before September 20 was baiting regardless of evidence
that it was done in complete conformance with the agricultural
norms of the area. According to the district court, it upheld the
Magistrate Judge’s refusal to allow Adams to introduce evidence
because to do otherwise would have been a “waste of time or a
needless presentation of cumulative evidence” under Federal Rule of
Evidence 403. See FED. R. CIV. EVID. 403. We disagree. The
additional evidence Adams sought to present went directly to
whether a violation of the statute occurred or not.
Adams planted his winter wheat the same time of year each year
the same way his father had done all his farming life. As part of
their livelihood, Adams’s family planted their winter wheat at the
time they felt would best ensure their cattle enough forage to make
it through the winter. The Government does not dispute that the
eventual result of Adams’s planting was a uniform lush field of
winter wheat. Adams was also paid by others in the area to do
their planting because they knew his methods would produce good
results. He disked the field, fertilized the field, scattered 33
bags with a spreader, and when the spreader broke, he scattered the

14
two remaining bags with the aid of his truck. Requiring Adams to
wait for his spreader to be repaired to have his planting
considered normal is not required under the facts of this case.
The Government’s star piece of evidence was the LSU Extension
Service pamphlet setting out September 20 as the recommended
earliest planting date for optimal production of winter wheat.4
This pamphlet is evidence that could be considered to determine if
Adams’s planting was normal. However, the opinions therein do not
conclude the issue as a matter of law. It is just one piece of
evidence to be weighed in determining if the planting was normal.
Nowhere in the record has there been properly developed any showing
that this informational pamphlet should have the force of law or
deserve the deference of an official agency interpretation of its
own regulations. We thus conclude that the court’s exclusive
reliance on this pamphlet as determinative of the issue was error.
This error would normally result in a remand for a new trial.
However, the need for a new trial has been obviated by our
determination as set forth below.
The LSU pamphlet and testimony thereon, along with the fact
that certain areas of the field had higher concentrations of grain
than others, precludes us from granting Adams an acquittal based on
the “normal agricultural planting” exception. We cannot say that
no rational trier of fact could find beyond a reasonable doubt that
Adams’s planting was not “normal.” See generally Garcia, 135 F.3d

4
It is not entirely clear from the record if the pamphlet was
actually admitted into evidence, or just referred to by the
Government’s witnesses. It is undisputed, however, that Adams had
no knowledge of the pamphlet prior to hunting over his field.

15
at 955.
On the other hand, the Government has failed to sufficiently
address and prove that Adams’s field was not planted as the result
of a “bona fide agricultural operation or procedure.” This point
was apparently lost in the lower court’s determination that intent
played no role in the inquiry. There is no dispute that Adams
planted his field first and foremost with the good faith intention
of providing a source of food for his cattle during the upcoming
winter. It is also uncontested that Adams distributed the wheat
seed during his planting and knew of its presence while hunting
there. However, nothing in the briefs or the record suggests that
the Government introduced or attempted to introduce evidence that
Adams acted other than in good faith in planting his field. In
fact, both the Magistrate Judge and the Government admitted that
they did not question Adams’s good faith intentions for planting
the crop. In the words of Brandt, Adams’s desire to attract birds
did not cause him to initiate measures he would not otherwise have
taken in the production of his crops. See Brandt, 717 F.2d at 958.
Therefore, in light of Adams’s subjective good faith and objective
compliance with the agricultural norms of the area, and because
there is no evidence from which a rational trier of fact could find
that Adams’s planting was not the result of a “bona fide
agricultural operation or procedure,” we reverse Adams’s conviction
and render acquittal on both counts.
III. CONCLUSION
For the foregoing reasons, we REVERSE Adams’s convictions on
count one for taking doves with the aid of bait and count two for
aiding and abetting others in taking doves with the aid of bait,

16
and RENDER acquittal on these counts, and REMAND for the limited
purpose of re-sentencing Adams on count three for unlawfully
possessing a live dove.

17