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 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 S ee 16 U.S.C. § 703;

18 U.S.C. § 2; 50 C.F.R. § 20.21(i). In support of his appeal,2

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 J udge 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 Nor theast

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 hi s 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 across3

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 da y, and the other parties also shot birds. Later

during the hunt, Adams and his hunting party were approached by

Federal and L ouisiana State Wildlife agents. The agents checked

their licenses, counted their birds, and made an inspection of the

field at w hich time they discovered the grain. Also during this

inspection, a dove from Adam’s ga me 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 testifie d that the recommended earliest wheatplanting 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 pl anting.” In support of his

contention that his activities fell under at least one of the two4

exceptions cont ained 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 $1 750 plus a $30

asses sment and placed on one year supervised probation with the

condition that he cannot hunt, go to hunting camps, or c arry a

firea rm 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 bir ds, including

waterfowl, on or over standing crops (including

aquatics), flooded harvested croplands, grain crops properly shoc ked on the field where grown, or grains

found scatt ered solely a s the result of normal

agricultural planting or harvesting ; and

(2) The tak ing 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 this2 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. S ee

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 constitutional question, we resolve this case on other grou nds. 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 w as not allowed to fully develop evidence

showing that his planting methods were commonly used in the area

and t hat 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 t o the optimal

p lanting 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 inter preting the § 20.21(i)6

exceptions have come to different conclusions on whether the tests

for compliance should be objective, with no r egard 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 h unters similar to

Adams that had been convicted of hunting over a baited field. 717

F.2d 955 (6th Cir.19 83). The court noted that the taking of

migratory birds over areas where they are attracted as a natural

a nd ordinary consequence of agricultural practices is clearly

con templated 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.” I d. 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.” I d. 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 “directe d at determining the intent of the person

seeding the land.” Id. at 957.

Under this approach, the Brandt Court maintains that it has7

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

initi ate measures he would not otherwise have taken in the

production of his crops.” I d. at 958. Under this test, the hunter

must ascertain, at his own peril, whether the field has been

improperly baited. The court in B randt affirme d 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

c ourt held that the intent of the person who spread the grain is

not determinative, but rather, the inquiry should ask only whether

t he grain was spread in a method accepted in the co mmunity to

produ ce a crop. S ee id. at 344. As to “bona fide agricultural

operations or procedures,” the court concluded that to forc e 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.” S ee id. I n 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 element8

to th e regulations, the court concluded that a purely objective

test for both exceptions should be used. S ee i d. at 345. The

Fourth Circuit’s test thus states that, “hunting over grain

scattered as the r esult of any one of the number of possible

methods accepted in the community for performing an a gricultural

operation is legal, but hunting over grain scattered as a result of

a met hod which is not accepted as an agricultural method in the

community is not.” I d. 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 stri ct liability view of

the MBTA. According to the district court in this case, “once it

has b een shown that the hunter has something to do, directly or

indirectly, with the placing of bait, the hunter hunts at his own

peril.” S ee 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

c onvicted of a baiting violation under the MBTA, there m ust be a

finding that the hunter at least “should have known” that the birds

were being influenced by the presence of bait. S ee 573 F.2d at

913. Although the precise issue raised in D elahoussaye was not at

issue in this case, the simple fact that we do not adhere to a9

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 genera lly, 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 i n 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 te nding 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 operatio ns 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 “w ithout fraud.”3 Except, o f course, in the situation like the present case

where the spreader and the hunter are one and the same.

10 See B LACK ’ S L AW D ICTIONARY

, 177 (6th ed. 1990); B randt

, 717 F.2d at

958; Boynton

, 63 F.3d at 341. Like the Sixth Circuit in B randt

,

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 scien ter requirement in addition to this circuit’s

Delah oussaye “ 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. S ee generally Brandt

, 717 F.2d

at 958.

In attempting to distinguish “bona fide operations and

procedures” from Adams’ s activities in the present case, the11

Government points to lang uage in B randt that “an operation or

procedure is undertaken in good faith if it is done for a purpose

relat ed 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

reaso ned that to hold otherwise would render the two exceptions

redundant. Yet to construe “operations or procedures” as excluding

actual plan ting, as the Government proposes, would have the

perver se result of protecting good faith activities r elated to

planting while leaving actual good fait h planting unprotected.

Indeed, there are man y agricultural operations or procedures

besides those involving “planting o r 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 subjective12

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 o f 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

opera tion or procedure” exception was never raised at the trial

level. However, the record is clear that Adams repeatedly

addre ssed 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 r egulation 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 or13

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 t he trial

court’ s ultimate findings, Adams maintains that the court

erron eously believed that hunting over a field that was planted

before the recommended planting date would be a violation of the

re gulation 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 opini on 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 support ed 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 rational14

trier of fact could find substantia l evidence indicating the

defendant’s guilt beyond a reasonable doubt after viewing the

evidence in the light most favorable to the Government. S ee 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

sh owing 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

Magis trate 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. S ee F ED

. R. C IV

. E VID

. 4 03. We disagree. The

additional evidence Adams sought to present wen t 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 the4 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 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 reco mmended

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

concl ude 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 r emand for a new trial.

H o wever, the need for a new trial has been obviated by our

determination as set forth below.

The LSU pamphlet and testimony ther eon, 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.” S ee generally Garcia

, 135 F.3d16

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 s ource 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, b oth the Magistrate Judge and the Government admitted that

they did not question Adams’s good fai th intentions for planting

the crop. In the words of B randt

, 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. S ee Brandt

, 717 F.2d at 958.

Therefore, in light of Adams’s subjective good faith and objective

compliance with the agricultural nor ms 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 th e aid of bait,17

and RENDER acquittal on these counts, and REMAND for the limited

purpose o f re-sentencing Adams on count three for unlawfully

possessing a live dove.