* Judge of the United States Court of Inter n ational Trade,

sitting by designation. REVISED, July 25, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60333

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARRY LEE; DANNY J. RUSSO; JEFFREY

BARNES; DWIGHT BLACKWELL; MICHAEL

BLACKWELL; ALFRED L. FELDER, JR.;

PETER J. HAHN; JOHN C. FELDER, JR.; JAN

H. BARNES; STEVEN V. SLATON; ALFRED

FELDER; and JACK BASS,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Mississippi

June 26, 2000

Before POLITZ and DAVIS, Circuit Judges, and RESTANI, * Judge.

DAVIS, Circuit Judge:

Eleven of the twelve appellants were convicted of hunting over

a baited field in violation of 16 U.S.C. §§ 703 and 707(a) and 50

C.F.R. § 20.21(I). Jack Bass was convicted of aiding and abetting

his co-defendants in hunting over a baited field. For the reasons

assigned, we affirm all convictions.

I.1 The regulation prohibiting the taking of migratory game birds

over a baited area then provided an exception for birds, except

waterfowl, taken:

on or over 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)(2) (1996).

2 On September 20, 1997, the opening day of that year’s dove

hunting season, a dove hunt was held on property leased by

defendant Jack Bass in Pike County, Mississippi. After purchasing

the requisite hunting licenses, the defendants and others met near

the leased property, introduced themselves, and engaged in idle

conversation for about an hour and a half. During the afternoon,

most of the hunters entered the leased acreage from the side near

the road where they had parked their vehicles. Several of the men

noticed a substantial amount of wheat seed scattered on the freshly

harrowed land and promptly asked Bass whether it was legal to hunt

over the wheat seed. Bass assured them that the wheat had been

distributed strictly according to accepted agricultural practices

and was legal. 1

T he leased property consisted of 50 acres near the Bogue

Chitto River and had been leased by Bass for the purpose of growing

vegetables. The western border of the property is in a straight

line measuring approximately 690 yards. The southern border, also

in a straight line, is approximately 430 yards and intersects the

western border at a right angle. The eastern border extends2 Permitting a maximum of three shells when fully loaded in

chambers and magazines.

3 Corn chop s are broken pieces of corn that are suitable only

for feeding animals.

3 northward for approximately 450 yards before a wooded area cuts

into what would otherwise be a nearly perfect rectangle. The tree

line extends to the West approximately 140 yards, forming what

frequently was described at trial as the “peninsula,” before

sloping northwest to meet the north border.

On the afternoon of the hunt, Wildlife Conservation Officers

Lane Ball, Jimmy Hutson, and Don Foreman of the Mississippi

Department of Wildlife, Fisheries, and Parks were patrolling in the

area. The sound of gunshots drew them to the acreage leased by

Bass. They watched the hunters from a woode d area for about 15

minutes and then entered the field from the west and began to check

licenses. Ball walked toward the northeast corner, Hutson walked

south, and Foreman went to the center of the field. The officers

determined that each of the hunters had the appropriate license and

that all guns were properly “plugged.” 2

While walking across the field Foreman noticed some corn

chops 3 near the center of the field. Upon further inspection, the

officers found four areas in which corn chops had been scattered.

Each of the three largest areas had a diameter of approximately 20

to 30 yards, with chopped corn in a “V” or “U-shaped” pattern. The

officers did not testify as to the size of the smaller area. The4 The four hunters were Lee, Hahn, Russo, and Slaton. Lee had

changed his hunting position and had ridden a four-wheeler to the

new position shortly before the officers arrived.

5 Th e three hunters were Jeff Barnes, Michael Blackwell, and

Dwight Blackwell.

4 officers also found a small label from a “Performa Brand Feeds” bag

of corn chops.

The officers testified that when they entered the field four

of the hunte rs were within 20 or 30 yards from one of the areas

where the corn was located, 4 three hunters were within 50 yards of

the corn, 5 and the others were between 75 and 200 yards away. The

officers testified that they could see the corn chops from a

distance of 30 yards.

All of the 23 hunters were charged, 2 2 with hunting over a

baited field and Jack Bass with aiding and abetting that hunting.

Eleven pled guilty; twelve, including Bass, pled not guilty and

were tried before a magistrate judge.

The government produced the testimony of Lee Wilson and

C harles Travis, employees of the Natural Resources Conservation

Service, an agency of the U.S. Department of Agriculture. Wilson

and Travis had, at Bass’ request, conducted surveys of the tract

four days before the hunt. Both Wilson and Travis saw corn chops

in the field. Travis testified that there was “a long shot

possibility” that a person in the vicinity of the c orn would not

have se en it. Neither Wilson nor Travis noticed the corn until

they were standing directly over it.5

Each defendant testified that he did not see any corn in the

field, stating unequivocally that if he had seen any illegal bait

his participation in the hunt would have ended immediately.

Several hunters testified that they looked at the ground while

walking to their hunting stations. However, each of the hunters

also stated that they did not deliberately seek to ascertain if the

field was illegally baited.

The magistrate judge found that the wheat seed operation was

performed in accordance with normal agricultural practice and did

not constitute bait under the statute. He found, however, that the

cracked corn consti tuted illegal bait. The magistrate judge

discussed the requisite standard of knowledge as set forth in

United States v. Delahoussaye

, 573 F.2d 910 (5th Cir. 1978), and

applying that standard, held that:

The ruling of the Court is that even in light

of Delahousa y , [sic] and even given the fact

that the Fifth Circuit departs from the strict

liability standard applied in all other

Circuits of the United States in the

Delahousey [sic] case, there is still a

requirement in the Fifth Circuit that a hunter

hunting over a field, and I say even a large

field, make a reasonable inspection of the

field to try to see if it is a legally planted

field, which was not done in this instance.

So, in summary, t he finding of the Court is

that each of the defendants is guilty as

charged in the bill of information because of

the corn chops and the finding of the Court

that the corn chops would have been reasonably

ascertainable with a reasonable and diligent

inspection of the field by the hunters, which

I think is the only reasonable interpretation6 given to Delahousey [sic].

The convictions were affirmed on appeal to the district court.

This timely appeal followed.

II.

We review the defendants’ convictions for sufficiency of the

evidence. U nited States v. Adams

, 174 F.3d 571, 578 (5th Cir.

1999); United States v. Sylvester

, 848 F.2d 520, 522 (5th Cir.

1988). Under this standard of review we will affirm the

magistrate’s findings if they are supported by substantial

evidence. A dams

, 174 F.3d at 578. To reverse the defendants’

convictions, this Court must conclude that no rational trier of

fact could find substantial evidence establishing the defendants’

guilt beyond a reason able doubt. I d. This Court considers the

evidence in the light most favorable to the verdict, deferring to

the reasonable inferences of fact drawn by the trial court. U nited

States v. Cardenas , 9 F.3d 1139, 1156 (5th Cir. 1993).

At the time these events occurred, the regulations promulgated

under the Migratory Bird Treaty Act prohi bited the taking of

migratory game birds:

[b]y the aid of baiting, or on or over any

baited area. As used in this paragraph,

“baiting” shall mean the placing, exposing,

depo siting, distributing, or scattering of

shelled, shucked, or unshucked corn, wheat or

other grain, salt or other feed so as to

constitute for such birds a lure, attraction

or enticement to, on, or over any areas where

hunters are attempting to take them; and

“baited area” means any area where shelled,

shucked, or unshucked corn, wheat, or other7 grain, salt, or other feed whatsoever capable

of luring, attracting, or enticing such birds

is directly or indirectly placed, exposed,

deposited, distributed, or scattered ....

50 C.F.R. 20.21(I)(1996).

In Delahoussaye , this Court held that, in order for a hunter

to violate the federal prohibition on the use of bait, “[at] a

minimum the bait

... must have been so situated that [its] presence

could reasonably have been ascertained by a hunter properly wishing

to check the area of his activity for illegal devices.” 573 F.2d

at 912. This Court rejected a strict liability rule, explaining

that such an interpretation “would simply render c riminal

conviction an unavoidabl e occasional consequence of duck hunting

and deny the sport to those such as, say, judges who might find

such a cons equence unacceptable.” I d. at 912-13. On the other

hand, the Court noted that “to require a higher form of scienter

--

actual guilty knowledge -- would render the regulations very hard

to enforce and would remove all incentive for the hunter to clear

the area, a precaution which can reasonably be required.” Id. at

913.

In the instant case, the magistrate judge, rulin g from the

bench, stated that:

[t]he two things that are most damaging to the

defendants in this case,

. .. insofar as the

evidence, is (1) the tag from the bag.

Somebody obviously went out there with

commercially prepared corn chops in that bag,

tagged as corn chops, and threw it out for the

purpose of baiting doves on this field. The

second thing that is the most damaging of all8 ... is the testimony of the two witnesses who

went out there to do the survey .... Both of

these witnesses, independently, and in widely

disparate locations, noticed corn chops on the

ground and they weren’t looking for corn

chops.

The Magistrate Judge also found that “the corn chops were

readily ascertainable and findable and observable by someone with

reasonable diligence.” He further emphasized that:

every single one of these defendants admitted

on the stand tha t they made no effort

whatsoever to walk around this field and check

it out for illegal baiting, but that they all

primarily relied on two things

- ( 1) their

c asual traverse of the field in an effort to

find a g ood place to hunt, and (2) the

representations of Judge Bass that he had

cultivated the field in accordance with the

Federal regulations.

Appellants argue that they saw no grain from their hunting

positions or as they walked or rode t o these positions.

Accordingly, Appellants contend that substantial evidence does not

support their convictions. However, Appellants ignore our

precedent which requires hunters to make a reasonable inspection of

the area to be hunted. Delahoussaye , 573 F.2d at 912-913; United

States v. Sylvester

, 848 F.2d 520, 523 (5th Cir. 19 88)(affirming

the district court’s holding that “with little effort, they [guest

hunters] could have made a zigzag inspection and d iscovered the

presence of the wheat ...” because under Delahoussaye hunters must

make some effort to determine if the field is baited).

The trial judge

-- who heard the witnesses

-- is in a much

better position than we to evaluate whether the hunters conducted9

a reasonable inspection of the field. Except in extraordinary

circumstances factual findings such as this must be left in the

factfinder’s hands. Consistent with Delahoussaye ’s reasoning, we

reiterate th at the migratory game laws outlawing hunting over a

baited field would have no force if a hunter could be

automatically exonerated if he did not see the bait. 573 F.3d at

913.

We conclude that, when viewed in the light most favorable to

the verdict, the convictions are based on substantial evidence.

The conservation officers found four large areas covered with corn

chops near the middle of the hunted portion of the field. They

also found a tag from a bag of corn chops in the area where the

corn chops were scattered. Several days before the hunt, USDA

agents, who were not looking for illegal bait, saw the corn chops.

One of the areas covered with corn chops was located 20-30 yards

directly in front of one of the hunting parties. The conservation

officers testified that the corn chops were visible from 20-30

yards. The evidence revealed that the hunt occurred in the

afternoon during daylight hours and that the h unters were not

prevented from walking in the 50 acre field by inclement weather or

for any other reason. In sum, substantial evidence supports the

magistrate’s finding that a reasonable inspection of the field6 We also reject appellants’ argument that the evidence failed

to establish that the small amount of corn

-- in relation to the

relatively large amount of legally planted wheat

-- would have

attracted the doves. The statute does not require that the bait

successfully attract birds to the field. The statute only requires

proof of hunting over grain or other feed capable of luring birds

into the field where the grain was placed. 50 C.F.R.

20.21(I)(1996).

10 would have disclosed the illegal bait. 6

In addition to the hunters who were convicted of hunting over

a baited field, Jack Bass was charged and convicted of aiding and

abetting his co-defendants in hunting over a baited field. We

c onclude that there was sufficient evidence to support that

conviction based on the evidence that Bass arranged the hunt,

invited the hunters, assisted the hunters during the hunt, and was

either aware of the presence of the bait or could have discovered

it had he made a reasonable inspection.

III.

For the reasons stated above, all convictions are AFFIRMED.7 Contract Courier Services, Inc. v. Research and Special Programs Admin.

,

924 F.2d 112 (7 th Cir. 1991).

8 United States v. Restrepo-Granda , 575 F.2d 524, 528 (5th Cir.) cert.

denied , 439 U.S. 935, 99 S.Ct. 331, 58 L.Ed.2d 332 (1978). POLITZ, Circuit Judge, dissenting:

I must respectfully dissent.

In affirming the convictions of these defendants, the majority

h as abandoned Delahoussaye ’s holding and guiding principle: tha t

the “should have known” form of scienter is a necessary element of

the offense of hunting over a baited fiel d. Indeed, the phrase

“should have known” is conspicuously absent from the panel opinion.

Exactly what a hunter should know is not clear. Without doubt, the standard

requires less than actual knowledge. “‘Knew’ and ‘did not know but should have

known’ are different. One refers to actual and the other to imputed knowledge –

which is to say no knowledge, accompanied by circumstances that lead the legal

system to treat ignorance the way it treats knowledge.” 7 One circumstance in

which the law equates ignorance with knowledge is when the defendant takes

affirmative steps to shield himself from that knowledge. 8 In such cases, the

defendant is charged with knowing what he deliberately has prevented himself

from learning. D elahoussaye does not address this situation, and indeed the

government has made no such allegation against the appellants in the case at bar.

Another such circumstance arises when the defendant is under a duty to make a9 United States v. Bader

, 956 F.2d 708, 710 (7 th Cir. 1992) (“‘Should have

known’ is closer to negligence than knowledge.”).

10 Contract Courier Services, Inc. , 924 F.2d 112. Our prior cases have not

held that a duty to inspect is inherent in the should have known standard. In U nited

States v. Garrett

, 984 F.2d 1402 (5 th Cir. 1993), we applied the “sh o uld have

known” standard to the prohibition under the Federal Aviation Act, 49 U.S.C. §

1472(l ), against attempting to board an aircraft while carrying a concealed

dangerous weapon. Regina Kay Garrett was stopped by New Orleans airport

security while attempting to board an airplane when the security guard monitoring

the X-ray scanner noticed a dark mass in her hand bag. She consented to a search

and a hand gun was discovered. Garrett said she had forgotten the gun was in her

purse and asserted that she could not be convicted under § 1472(l ) without proof

she had actual knowledge that the gun was in her purse. We concluded that the

statute did not require actual knowledge , and instead applied the “should have

known” standard, concluding that Garrett’s case was “most akin to Delahoussaye .”

We found that there was sufficient evidence to support the magistrate’s

finding that Garrett should have known she was carrying a gun when attempting to

board the airplane. This evidence consisted of facts that would have caused a

reasonable person to inspect their own hand bag. Garrett acknowledged that she

had placed the gun in the bag herself and had simply forgotten about it. She also

admitted that she knew at the time that she previously had carried the gun in that

bag. Further, there were two large signs in the area of the security checkpoint that

12 reasonable inquiry, but has failed to do so, and knowledge of the actual facts would

hav e been obtainable by such an inquiry. In these cases, unlike the deliberate

ignorance cases, the defendant is not charg e d with having knowledge but is

nonetheless criminally liable for having the less culpable mental state of

neglige nce. 9 Such an instance might arise either because the defendant has

knowledge of circumstances that ordinarily would lead a prudent person to conduct

an investigation, or because the law creates such a duty. 10 Again, the governmentshould have reminded Garrett of the need to check her bag. The G arrett court did

not read a duty to inspect into Delahoussaye ’s “should have known” standard. If

it had, there would have been no need to discuss the foregoing evidence because

she could have been found guilty based entirely on her failure to know the contents

of her purse.

Se e also, U nited States v. King

, 1992 WL 73358 (E.D. La. April 2, 1992)

(finding defendant should have known bait was present, not because he should have

inspected the area, but because he was 400 yards from a plai nly visible grain

elevator, the whole area reeked of grain, and the birds had begun flying in patterns

consistent with bait influence).

11 Delahoussaye , 573 F.2d at 912.

13 does not allege the former circumstance. The prosecution does not suggest that any

of the defendants were aware of f acts that should have made them suspect the

presence of bait or made them aware of the need to investigate further. Instead, the

gove rnment insists, and the majority holds, that D elahoussaye and Sylvester impose

on every hunter a legal duty to inspect the entire area hunted, even if the hunter has

no reason to suspect that bait might be present. I cannot agree that Delahoussaye

,

Sylvester

, or right reason supports the imposition of such a duty.

In drawing its conclu s ions, the majority relies on the following language

from Delahoussaye :

We also conclude that [at] a minimum the bait or the callers must have been

so situated that their presence could reasonably have been ascertained by a

hunter properly wishing to check the area of his activity for illegal devices. 11

Far from imposing a universal duty to inspect, I understand this passage to limit the12 Delahoussaye , 573 F.2d at 912.

14

scope of the hunter’s criminal liability. To be sure, the hunters in D elahoussaye

were under a duty to inspect their hunting area, but the duty arose because they had

reason to suspect that their hunting area was baited. They were hunting less than

300 yards from calling live dec oys and piles of cracked corn, “with ducks flying

directly over [their] blind to these enticements.” 12 The above-cited passage makes

clear, however, that the hunters would not have been liable under § 703 if the bait

and callers had been p ositioned where they could not have been found during a

reasonable inspection. This much is evident from the court’s use of the phrase “at

a minimum.” I understand that passage to state the rather obvious point that we

will not say the hunter “should have known” that which he could not discover. In

fact, the Delahoussaye court went on to explain that “there could be no justice” in

convicting one who has been barred by a property line from ascertaining that birds

were being pulled over him by bait hidden from view.

As the majority notes, the D elahoussaye court rejected actual guilty

knowledge as the level of scienter in order to preserve the “incentive for the hunter

to clear the area, a prec aution which can reasonably be required.” At best, it is

ambiguous as to when that incentive exists. I am persuaded that Judge Gee13 S.Rep. No. 445, 99 th Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 6114,

6128 (“Nothing in this amendment is intended to alter the ‘strict liability’ standard

for misdemeanor prosecutions under 16 U.S.C. § 707(a), a standard which has been

upheld in many Federal court decisions”).

15 intended to preserve the incentive for the hunter to clear the area under

circumstances where he should have known that bait mi ght be present. This

reading is most consistent with the should have known standard announced earlier

in the opinion and would, of course, have been undermined if the court had adopted

a requi rement of actual knowledge. Others, including the majority, believe that

Judge Gee was r eferring to the hunter’s incentive to inspect under all

circumstances. Given this ambiguity, the most that can be said of D elahoussaye is

that it left the door open for later cases to impose a duty to inspect and to define its

parameters.

J udge Gee had an opportunity to revisit this issue ten years later in his

writings in Sylvester

. He acknowledged that his opinion in D e lahoussaye was

“[u]nique among the Circuits” in that it did not apply a strict liability standard.

Perhaps for this reason, and perhaps because the Congress recently had expressed

its preference for a strict liability standard under § 703, 13 Judge Gee moved our

standard closer to strict liability by reading an inspection requirement into

Delahoussaye

. He stopped short of strict liability, however, by requiring only a14 Witnesses estimated that the entire field contained a tot al of about five

pounds of corn, or “enough to fill a bucket.” I also note that the testimony of the

surveyors, upon which the magistrate relied heavily in concluding that the corn was

“readily as certainable,” was that they did not see the corn until after they had

stepped out of their trucks and were standing directly on top of it looking down at

the ground. The only witness who testified that the corn was visible from any

distance was Officer Lane Ball, who, rather than actually discovering the corn from

a distance of 30 yards, estimated that he could have seen the corn from 30 yards

16 minimal inspection. The district court in S ylvester had concluded that the hunters

traversed close to the baited area and that they could have discovered the bait with

“little effort” or a “zig-zag” inspection. Judge Gee agreed, stating that

Delahoussaye requires hunters to make “some effort” to detect bait.

Neither Delahoussaye nor Sylvester can fairl y be read to impose a duty to

inspect more than the area around a hunting position and th e path the hunter

traversed to get there. Although each of the appellants conceded he had not

conducted an inspection, the essential question herein is not whether such an

inspe ction was made, but whether such an inspection would have revealed verboten

bait. Clearly this is not the case for the majority of the appellants, who were never

within 50 yards of any of the areas containing corn. Even if they had expended

“some effort” or had undertaken a “zig-zag” inspection, whatever that is, it is not

likely that they would have discovered the distant minimal amount of chopped

corn. 14after he already knew it was there. In fact, several of the defendants testified that

Officer Don Foreman, the conservation agent who happened upon the corn, had

difficulty locating it again when the defendants asked to see it.

15 Delahoussaye , 573 F.2d at 912.

16 Uni ted States v. Ardoin , 431 F.Supp. 493 (W.D. La. 1977) (holding that

“baited area” included pond neighboring a lake where there had been illegal bait

prior to the day of the hunt).

17 The majority reads an even greater requirement into D elahoussaye by

redefining the scope of the required inspection in terms of reasonableness. My

principal objection to this approach is that it is impracticable. The majority has

failed to give hunters dedicated to legal hunting any guidance as to the scope of a

reasonable inspection. Is a person invited to hunt at the King Ranch in Texas liable

for grain that might exist anywhere on the nearly one million acres the ranch is

reported to include? How much of the ranch is it “reasonable” to inspect? The

geographic scope of liability cannot reasonably be defined with reference to § 703's

requirement that the hunting take place over a “baited area,” because the “baited

area” includes the entire area over which the bait might exercise an attraction 15 and

can extend miles away from the bait. In fact, “baited area” has been held to include

areas where there is no bait at all. 16

The majority seems to suggest that the reasonableness of an inspection is an

issue of fact that can be resolved by trial judges, taking into account such factors17 Delahoussaye , 573 F.2d at 912.

18 While reasonable hunters typically inspect their hunting areas for their own

safety a nd the safety of others, the panel opinion makes it clear that the duty to

clear the area of bait is bro ader than that. Each of the appellants, while

acknowledging that he had not looked specifically for bait, testified that he

inspected the ground on the way to his hunting position to make sure the field was

18 as weather cond itions, available daylight, and the condition of the hunted area.

This approach is similar to the manner in which we have defined “baited area,”

which, as Judge Gee noted, “is not subject to exact definition and may expand or

contract with changes of wind and weather, but hunters must make many such

judgments as these in order to hunt at all.” 17 Unlike the determination of the area

over which bait might exercise an attraction, however, the determination as to how

a court might define a legally imposed duty to inspect a field is not one that would

perm it me to say so glibly “hunters must make many such judgments as these in

order to hunt at all.” This underscores the circularity in the majority’s resolution.

Sylvester rejected reasonableness as the ultimate determinant as to whether a

hunter must conduct an inspection. Instead, it imposed a duty to inspect as a matter

of administrative convenience. The majority now defines this legally imposed duty

in terms of what the reasonable hunter would do under the circumstances. But the

reasonable hunter wants only to comply with the law; he has no reason to inspect

for bait apart from his legally imposed duty to do so. 18 Indeed, if conducting suchsafe. The fact that each of these experienced hunters believed that no more than

a cursory inspection of the field was nece ssary in order to guard their own wellbeing belies the notion that an exhaustive inspection of the entire area is somehow

inherently reasonable.

19 16 U.S.C. § 704 now reads:

(b) It shall be unlawful to –

(1) take an y migratory game bird by the aid of baiting or on or over any

baited area, if the person knows or reasonably should know that the area is

a baited area.

19 an inspection was something a reasonable hunter did, our opinions would not have

to impose a duty to do it. This problem is exacerbated by the fact that in the 22

years since Delahoussaye was decided, this court and its subordinate courts have

not once considered whether an inspection undertake n by a hunter was

“reasonable.”

By extending the duty to inspect from the minimal i nspection required in

Sylvester to the broader inspection required in this case, the majority has virtually

eclipsed the should have known standard and moved this circuit very close to the

former strict liability standard that applied in several of the other circuits. As I

understand the majority’s approach, a hunter is strictly liable for any ascertainable

amounts of illegal bait that might exist in a largely undefined area. Although it is

too late for these appellants, Congress recently has provided relief under § 704 by

adopt i ng a “reasonably should have known” form of scienter similar to the one

previously applied in this circuit. 1 9 Because of this fortunate legislative20

intervention, what I view as the unworkable standard in the panel opinion will have

little opportunity to work mischief to responsible, well-intentioned hunters. That

is a consummation much to be desired.