may please the court good morning your honor i have oddest case of my career we have a case with a completely blank slate there's no law on this anywhere a few  unpublished decisions i have the dubious distinction of representing the only man in america and probably the world who has ever received what would be a jail sentence for beating ducks we have a situation we have a regulatory scheme that nobody can agree how it works in the district court we have the government volunteer in that there is an agricultural exception to the prohibition against baiting docs they come up with this idea they say this can be a safe haven for mr open door if they produce jury instructions with this they go out and find the some extension specialists and put  on their witness list column during trial then when we appeal the fact that the district court did not implement the agricultural exception the way we believe it should have been now on appeal the government says well the agricultural exception doesn't apply to baiters it only applies to hunters so that would be harmless error anyway what's your position on that council does it apply yes yes with an explanation i understand how the reg is written and it's you know not written for lawyers it's you know why does it apply your time's ticking why does that apply it applies because well we have a district judge that applied it it applies because that's what makes sense it applies because there was the shift in ninety in ninety eight bating previously was not a legal  right and so that was changed in because of there was kind of two ships passing in the night of the regulations are being amended at the same time there's a new statute coming out that criminalizes baiting i mean that explains why baiting does not get expressly mentioned in the regs but as i briefed it the the logical inconsistency is of having an agricultural exception for only the hunter and not the farmer does not make any sense where the if the same farming practice it would be in defense to the hunter to be there it would not be a defense for the farmer to have done that but if this if the government were to charge aiding and abetting baiting which apparently happens a lot a lot of these cases seem to be out of the south and they're mourning dove cases and some just districts seem to charge aiding and abetting baiting or i'm sorry hunting over bait all of a sudden then it's a defense again and a lot of my arguments in this case are just straight forward of it just can't be that way what about the express language that we have to work with the express language says what i think it's something to the effect of what manners of take our legal bait correct if you lose on this argument then what if we decide that everybody in the district court made same error then what what should we do i think it still gets reversed and sent back because i mean this this is invited air doesn't seem to be the word for it to explain this but i mean the government came up with this i mean the defendant never seemed like the government just took on a greater burden right so they took out what's a defense was based on it well he was way way way way way way the government seems to me the government took on a greater burden it didn't have as i read the statute they didn't have to do with they did but they did evidence here was was pretty strong from the witnesses who testified that it reasonable jury i don't care how i instruct them could conclude that he was responsible that they did the field so explain to me why it's why it's not harmless ok because in when the full trial transcript is read i mean the the full defense is going to be getting expert witness testimony from the extension agents on the stand that these various practices are recommended so i mean just so when half of the defense is being removed i mean we can't look in retrospect well some of these some of those witnesses were on the stand right and they could not be cross examined the judge the judge right was not what the judge would not let the defense cross examine the extension specialists as to whether these would be recommended practices or not because the judge ruled the reckon official recommendations had to precede the farming conduct which was the the big point of the appeal up until the respondents brief so the judge would not let them testify to that i mean that gut the prepared defense so at this point i mean i don't mean to make ok so what so that evidence would have allowed the a reasonable jury to conclude what the jury could have concluded that what happened would have followed a official recommendation and therefore the agricultural exception would have applied so what he was doing was consistent with what the recommended  time correct and those recommended practices were to were to harvest your field the way he did correct it would have produced the defense and you know i'm not trying to make light of this but if we remember the line from decades ago the most terrifying words in the english language are i'm from the government and i'm here to help you and here we have the government saying this is a safe haven for mr open door if he proves this and now here we are a couple years later and the government saying the same party i mean i know that the department of justice in washington thinks they're not the same as the usas in in in the sticks in boise but it's the same party it's the united states they change their corn a combine could leave that here's a field where just a bad driver could leave this amount here any testimony about how long one was left in the field i don't recall any testimony like that the point is there are i mean there are other defenses to this he chose a primary defense i mean there were some secondary things going on but he chose a primary defense that all of a sudden if this network says it doesn't because of this was well i mean he could have there were a few witnesses but there could have been in by the way i wasn't trial counsel but there there were you know more people testifying to give you an example for i thought that i read that there was evidence that some witness who was involved in the harvest for your client said that the told him to harvest in a way to leave a lot of grain on the field so yes a witness said that he told him that yeah so what what's the defense if that's true wasn't the defense is it wasn't true of the witness i mean it was a dirty case i mean the one primary state's witness i mean i mean says he's in a full blown feud with mr open door for turning them into fishing game we have you know felon witnesses we have other witnesses were our game violators i mean that while this is a duck case it looks a lot like a like a drug case in terms of the players of the government's witnesses i mean so i mean basically the that the classic snitch crosses weren't really being done because they thought they had a defense up until during cross examine of these witnesses all of a sudden they can't cross in the way they thought and couldn't get thank you your honors my name is virgil kemarre for the united states your honors in this case the judge below decided over a seven day jury trial and carefully went through all of the instructions and the evidence before him there was a tremendous amount of evidence showing that mr open door had a specific intent this is a specific intent crime under section seven zero four two of the statute and they showed beyond a reasonable doubt that mr open door scattered the bait for the purpose of allowing others to come in and hunt council in order to bait the corn house to be left in the field for ten days right yes was that shown yes could you give me just the record cites to show that that that you tied that up to show that there was an intent to leave the corn in the field and permit hunting during that interval the three i'll have to go to the brief your honor but the three for the twenty thirteen baiting which was what was the bait at issue ok there were three hunters the dated within the time period from when they discovered when agent an agent merrick and found the corn on the field and then when they put the camera in they saw the corn literally on the field and then within ten days three hunters came in and and hunted ok so that's what i need to just just the interval because because i'm concerned that the government of your time is ticking so i'm just concerned that the government has really switch gears here that exception we're talking about was in the indictment from from the very beginning of the case and and defense counsel has made clear that his argument is that there could have been perhaps another defense and i'm and i'm trying to figure out what that might have been if you have a response to that i think the only other defense if you agree that the safe harbor does not apply to hunters is that he didn't have the specific intent and what i want you to respond to is my concern that the government is that this could be interpreted as a shell game if the government is a moving target for him why should i not be concerned about the unfairness of that your honor i think there was no prejudice below the government did take on an extra burden and i think that is because there was a prior prior cases in this area were all under a prior regime where our betters were generally charged under aiding and abetting hunter and they were charged under the hunter's defenses and those were what were looked at but i think looking at this case now we realize that actually this exception does not apply to baiters but this court doesn't of course have to get to that because mr open door was given the benefit of that safe harbor below he was given the benefit of that and we proved that not only did he have the specific intent to scatter the grain for the purpose of beating but that he also didn't have any agricultural purpose for baiting and the except that his argument if you could respond is that this is one allowed to respond because the judge made a different ruling which is as you that the agricultural witnesses weren't allowed to respond because the judge indicated that practice the effect fishel practice had to be one that was already fairly committed to paper somewhere right so i think there are two separate issues if the safe harbor applies which witness which is how the district court proceeded below then the question is how does that actually regulation apply and if you're going to rely on a recommendation as you're safe harbor the district court correctly ruled that that recommendation ought to exist at the time that you rely on somewhere it can be in writing or orally and it was our burden to prove that he didn't have that it was are going to be a customary practice of existed at the time well under that was the old regime but under the one nine hundred ninety nine regulations you have to show they want to have an object standard so you have to show that it was recommended by the state extension service well but that's the whole rub right and that's what that prize is really getting at if the state extension service had said yes this is something that has done this cut this practice is customary combine in every other row for example what would be the right answer then again the i think that judge will was correct in ruling that for if for something to be conducted in accordance with an official recommendation our argument is that recommendation had to exist time you not answer my question does that mean it has to be in writing somewhere or posted on a website somewhere while the extension specialist testify that they provide official recommendations in writing and orally as farmer education so if somebody calls though does it mean that has to have happened they have to written have written it in paper or actually given that advice to someone that's what i'm trying to get yes that is how it was construed below that it has to have been given officially either verbally or on the phone is the position and i think that think that it had to have actually been given that it had to be in existence meaning it was given at some point to somebody it was in writing or or orally and i think that makes sense that the recommendation has to exist at the time that you rely on it from the hunters perspective of a hunter wants to figure out and gauge what the if he's exercising reasonable diligence and wants to figure out if he's hunting over a baited field and he sees corn scattered on the ground then it makes sense from his perspective go ahead finish it makes sense from his perspective that you would gauge your conduct based on the recommendations that exist at the time not to think of what an ex but let me ask you this so the government did take on this extra burden yes but it seems like it should have the this exception should have a part in this trial in other words how how what is his fields this is a specific intent crime and so he could have shown and the judge below said he actually didn't have to show that he followed any any official recommendations he could have shown anything to rebut the specific intent for gather for scattering the grain for this suppose he wanted to show that he did what he did the way he harvested his fields was just you know the customary normal practice that everybody had recommended and they were just doing it as a as even they just happen to be extra you don't just corn just happened to be left in the field as a baiter he certainly could have done that this is a specific intent crime so it's a high burden for the government and he actually put on two farmers after the state extension service issue was resolved he put on farmers gerald ruth and he put on his own cattle ranchers and others to show that to try to explain what he might have been doing that it might have been for some other agricultural reason and that would have been evidence that the jury considered to rebut the specific intent but then i mean the fact that he was following customary practices doesn't seem to be an affirmative defense he doesn't i mean it may not be considered an affirmative defense it would be in evidence to rebut the strong showing of intent that we  not every crime necessarily has an affirmative defense although if you tried to do that would he be in time to some sort of instruction about what normal practice is mean not under the current regulations because he wouldn't by now i mean if you will how is the jury supposed to know that if he says so let's that the government has to negate the agricultural practices but it also includes that the government has to show that he scattered the grain for the purpose of allowing others to come in and hunt and so he could have shown and he tried to show that he didn't scatter the grain for that purpose instead maybe it was experimental farming who knows he could have provided any other reasons and as defense counsel also notes he spent a lot of time trying to rebut the credibility of the of the government's witnesses so that also is a  argument if you will but the but the point is that there was absolutely no prejudice here so what was all the evidence showed that he did this intentionally there was three witnesses who testified that he told them to scatter the grain for the purposes of allowing the ducks to come in he told a double we're too sick to operate this combine by closing up the seven the chaffer and letting sixty five percent of the corn all of that right as long as it was  folks weren't allowed to to hunt within ten days right yes yes this rule has nothing to do with farming however they want farm i guess i was going to i mean i think you're right there there was really compelling evidence that there was an intent to leave an excessive amount of corn  that november twentieth agent and others from the state idaho game inspected the property and they saw as they describe it an exorbitant amount of corn kernel on the ground the record cites for that's the part i'm giving you what i'm trying to shine to me i have to get the other part of the equation yes your honor i'm on page seven we say four days later november twenty fourth about four days after they saw the corn on the ground and that the field was flooded an open door for invited in three hunters he invited in michael rust that's e r to forty two to forty russ testify that he had one of the best hunting days of his life and then oberndorf invited tony alonzo that same day to hunt the field that's at yard three twenty two mark how it was another person that opened or if invited to hunt that if they have not been misled into thinking this was a defense they could have spent more time put more energy into developing strategies to discredit the witnesses for the prosecution well there's no evidence that they had anything that they were hiding that there was any other evidence that they would have put forward to rebut the strong showing of specific intent in this case there's basically no prejudice they had a matter of time they had this was a seven day jury trial they put on eleven witnesses they put on several members of the employees his cattle rancher other farmers to both to show that he didn't have this intent to scatter the grain and to try to rebut the credibility of the government's witnesses there's absolutely nothing here that they claim they would have showed to disprove the intent that mr open doors had to scatter that grain and you know if there was an error the error below again it would be kit would be looked at under the harmless error or error standard and they have put nothing forth except the bald assertion that they would have had a different trial strategy i also think it's important that the agricultural exception but it involves the same kind of evidence that you would use to rebut a showing of specific intent the same evidence to show that you might have been following either an officially recommended practice or some other kind of either cultural practice that's the same kind of evidence that would actually go to rebut any specific content so there was absolutely no prejudice below and in fact we proved more than we needed to counsel thank you very much appreciate your you bonus minutes i think that your honor you hit the nail on the head here i mean i don't think that the government again what we call an invited error led down the garden path what not i mean here several years later in  retrospect i think it's impossible for the government to say beyond reasonable doubt that it's error in coming up with that what you claim mean the ag exception applied to the bader can be shown beyond a reasonable doubt to have not constitutional error for for my purposes here at least and again this is a rare situation where where we're changing at this point we simply don't know i mean if something happened in the middle of trial that changed everything and we don't know what would have happened but for it's not like a few months left to prepare for trial i mean different things happen there isn't the case could have investigated different ways council actually got it wrong i didn't say they spent a lot of time trying to discredit the snitch witnesses they didn't they could have spent more time doing that the investigation treating it like the classic dope case and i mean they called a couple farmers i mean this is a it's a rural community also it was interesting one of the soil specialist was from that little town where mr opened our farm i mean  this isn't just grasping at straws or throwing out speculation there actually was a way to present the defense if they would have known they needed to present it i think through your extended time i'm fraid as ron we appreciate the for traveling all the way from washington d c thank you your honor we should thank you the case of open doors shall be submitted