United States v. Robert Cathey , 619 F. App'x 207 ( 2015 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4780
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ROBERT CLAUDE CATHEY,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Anderson.     Henry M. Herlong, Jr., Senior
    District Judge. (8:13-cr-01110-HMH-1)
    Submitted:   June 19, 2015                    Decided:   July 2, 2015
    Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    William Glenn Yarborough, III, LAW OFFICE OF WILLIAM G.
    YARBOROUGH, III, Greenville, South Carolina, for Appellant.
    William N. Nettles, United States Attorney, Jamie Lea Nabors
    Schoen, Assistant United States Attorney, Greenville, South
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Robert Claude Cathey was convicted, following a jury trial
    conducted by a magistrate judge, of illegally baiting a field,
    in   violation     of    the     Migratory      Bird     Treaty     Act,   16   U.S.C.
    §§ 704(b)(2),      707(c)       (2012);       50    C.F.R.    §§ 20.11,      20.21(i)
    (2013).     Cathey appealed his conviction to the district court,
    which    affirmed.       He    now    appeals      the   district    court’s    order.
    Finding no error, we affirm.
    A    district       court       reviewing      a    trial    conducted     by   a
    magistrate judge applies the same standards an appellate court
    applies in assessing a criminal judgment imposed by a district
    court.     United States v. Bursey, 
    416 F.3d 301
    , 305 (4th Cir.
    2005); see Fed. R. Crim. P. 58(g)(2)(D).                     In turn, our “review
    of a magistrate court's trial record is governed by the same
    standards     as   was     the       district      court's    appellate     review.”
    
    Bursey, 416 F.3d at 305
    –06.
    I.
    Cathey first argues that the magistrate judge abused his
    discretion when he allowed into evidence testimony that Cathey
    had been previously charged with illegal baiting.                          We review
    evidentiary rulings for abuse of discretion.                      United States v.
    Benkahla, 
    530 F.3d 300
    , 309 (4th Cir. 2008).                     A magistrate judge
    abuses his discretion by acting “arbitrarily or irrationally” in
    admitting evidence.        
    Id. (internal quotation
    marks omitted).
    2
    To be admissible under Rule 404(b), evidence must be “(1)
    relevant to an issue other than character; (2) necessary; and
    (3) reliable.”         United States v. Siegel, 
    536 F.3d 306
    , 317 (4th
    Cir. 2008) (internal quotation marks omitted).                 “Rule 404(b) is
    . . . an inclusive rule, admitting all evidence of other crimes
    or     acts   except     that   which    tends    to   prove    only     criminal
    disposition.”     United States v. Young, 
    248 F.3d 260
    , 271-72 (4th
    Cir. 2001) (internal quotation marks omitted).
    “Evidence sought to be admitted under Rule 404(b) must also
    satisfy” Fed. R. Evid. 403.            
    Siegel, 536 F.3d at 319
    .        “Rule 403
    only requires suppression of evidence that results in unfair
    prejudice—prejudice that damages an opponent for reasons other
    than its probative value, for instance, an appeal to emotion,
    and only when that unfair prejudice substantially outweighs the
    probative value of the evidence.”                United States v. Mohr, 
    318 F.3d 613
    , 619-20 (4th Cir. 2003) (internal quotation marks and
    alteration omitted).
    “To be relevant, evidence need only to have any tendency to
    make the existence of any fact that is of consequence to the
    determination of the action more probable or less probable than
    it would be without the evidence.”              United States v. Aramony, 
    88 F.3d 1369
    ,   1377     (4th   Cir.    1996)    (internal     quotation    marks
    omitted).       The     greater   the    similarity    between    Rule     404(b)
    evidence and the fact in question, the more relevant the Rule
    3
    404(b) evidence becomes.                United States v. Queen, 
    132 F.3d 991
    ,
    997 (4th Cir. 1997).              “Evidence is reliable for purposes of Rule
    404(b)      unless    it    is     so     preposterous         that    it    could    not    be
    believed by a rational and properly instructed juror.”                                
    Siegel, 536 F.3d at 319
    (internal quotation marks omitted).
    We discern no abuse of discretion in the magistrate judge’s
    ruling.      Cathey challenges the relevancy and reliability of the
    evidence.       The prior charge, which was for the same offense
    under the same statutes and regulations, tended to make it more
    probable that Cathey was aware of the regulations on farming
    applicable when hunting was anticipated.                          Thus, this evidence
    was   relevant       to    Cathey’s       knowledge      and    intent.        Further,      we
    conclude that the testimony was reliable.
    Finally,      Cathey       asserts     that      the    evidence       was    unfairly
    prejudicial because the testifying officer misstated that Cathey
    pleaded guilty to the prior charge.                        However, this portion of
    the testimony        occurred       outside       the    presence       of   the     jury   and
    therefore      could       not     have    caused       confusion.           Moreover,      the
    magistrate judge limited the Government’s evidence to the fact
    of    the    prior        charge    and     gave     two       limiting       instructions,
    including one immediately after the officer’s testimony.
    Alternatively, Cathey argues that introducing evidence that
    he    was    charged       with    illegal     baiting         violated       the    pretrial
    diversion agreement related to that charge.                           Other circuits have
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    recognized that “[a] pretrial diversion agreement is analogous
    to a plea bargain agreement,” and thus is interpreted under the
    same standards.       United States v. Harris, 
    376 F.3d 1282
    , 1287
    (11th Cir. 2004); cf. United States v. Gillion, 
    704 F.3d 284
    ,
    292-93   (4th     Cir.   2012)     (interpreting     proffer   agreement     as
    contract).       “It is well-established that the interpretation of
    plea agreements is rooted in contract law, and that each party
    should receive the benefit of its bargain.”                United States v.
    Dawson, 
    587 F.3d 640
    , 645 (4th Cir. 2009) (internal quotation
    marks omitted).      “Accordingly, in enforcing plea agreements, the
    government is held only to those promises that it actually made,
    and the government’s duty in carrying out its obligations under
    a plea agreement is no greater than that of fidelity to the
    agreement.”      
    Id. (internal quotation
    marks omitted).
    While Cathey argues that the Government agreed not to use
    the fact that he was charged against him, the agreement states
    only that it bars the use of the agreement or any documents
    related to Cathey’s participation in the program.                 Here, the
    Government introduced only the fact that Cathey had previously
    been   charged    with   illegal    baiting,   not   the   agreement   or   any
    information related to Cathey’s participation in the pretrial
    diversion program.        We therefore conclude that the magistrate
    judge did not abuse his discretion in allowing the evidence.
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    II.
    Cathey     next      challenges       the     magistrate         judge’s       ruling
    excluding his proffered expert testimony.                         We review for abuse
    of discretion a decision to exclude expert testimony.                            United
    States v. Garcia, 
    752 F.3d 382
    , 390 (4th Cir. 2014).                                Expert
    testimony is admissible if it is reliable and relevant.                               PBM
    Products, LLC v. Mead Johnson & Co., 
    639 F.3d 111
    , 123 (4th Cir.
    2011).      “‘Relevant evidence’ means evidence having any tendency
    to make the existence of any fact that is of consequence to the
    determination of the action more probable or less probable than
    it would be without the evidence.”               Fed. R. Evid. 401.
    The      Secretary      of   the       Interior         has     promulgated      two
    exceptions to the prohibition on hunting of migratory birds,
    permitting such hunting, with exceptions not relevant here, on
    or   over    “lands    or    areas       where   seeds       or     grains   have    been
    scattered     solely    as    the     result       of    a    normal      agricultural
    planting, harvesting, post-harvest manipulation or normal soil
    stabilization practice,” and “where grain or other feed has been
    distributed or scattered . . . solely as the result of a normal
    agricultural operation.”          50 C.F.R. § 20.21(i)(1)(i), (2).                    The
    regulations      further      limit        “normal       agricultural          planting,
    harvesting,      or    post-harvesting           manipulation”           and     “normal
    agricultural     operation”         to     those     practices         “conducted      in
    accordance     with    official      recommendations           of    State     Extension
    6
    Specialists of the Cooperative Extension Service of the U.S.
    Department of Agriculture.”         50 C.F.R. § 20.11(g), (h).
    We discern no abuse of discretion in the magistrate judge’s
    decision      to   exclude   Cathey’s     proffered         expert    witness.       The
    proffered expert, a local farmer, testified that broadcasting
    seeds, the method Cathey contended he used when he planted the
    field, was an accepted farming practice in the community.                            The
    witness testified, however, that he was not familiar with the
    relevant       Extension     Service      recommendations            regarding       the
    planting of wheat crops if the hunting of migratory birds was
    anticipated.        Thus, the expert’s testimony was not relevant to
    whether Cathey planted his wheat crop in accordance with the
    Extension Service recommendations.
    Cathey contends that United States v. Boynton, 
    63 F.3d 337
    ,
    (4th Cir. 1995), permits local farmers to testify about accepted
    community farming practices.              We conclude that Boynton is not
    applicable here because the regulations have been amended to
    “apply an objective standard in determining whether the planting
    was done in accordance with official recommendations.”                            United
    States   v.    Strassweg,    143   F.     App’x      665,    666    (6th   Cir.    2005)
    (internal quotation marks omitted); cf. Falk v. U.S. ex rel.
    Dep’t    of    Interior,     
    452 F.3d 951
    ,    954-55       (8th    Cir.    2006)
    (examining     plaintiffs’     actions        in   light    of     Extension      Service
    Guidelines).
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    III.
    Finally, Cathey challenges the sufficiency of the evidence
    against him.        He first contends that the Government failed to
    prove that he was not farming under either exception because the
    Extension       Guidelines     were       merely    recommendations.               Cathey
    further      argues    that      incorporating          the    Extension       Service
    Guidelines shifts the burden of proof to the defendant.
    A   defendant    challenging        the    sufficiency    of     the   evidence
    faces a heavy burden.          United States v. Beidler, 
    110 F.3d 1064
    ,
    1067 (4th Cir. 1997).           The jury verdict must by sustained when
    “there is substantial evidence in the record, when viewed in the
    light      most    favorable     to    the       government,     to     support      the
    conviction.”        United States v. Jaensch, 
    665 F.3d 83
    , 93 (4th
    Cir.    2011)     (internal    quotation        marks   omitted).          “Substantial
    evidence     is   evidence     that   a    reasonable     finder      of    fact    could
    accept as adequate and sufficient to support a conclusion of a
    defendant’s guilt beyond a reasonable doubt.”                       
    Id. (alteration and
        internal      quotation       marks       omitted).           “Reversal       for
    insufficient evidence is reserved for the rare case where the
    prosecution’s       failure    is   clear.”        
    Beidler, 110 F.3d at 1067
    (internal quotation marks omitted).
    In order to establish that Cathey was guilty of baiting a
    field for the purpose of hunting migratory birds, the Government
    was required to prove that Cathey “place[d] or direct[ed] the
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    placement of bait on or adjacent to an area for the purpose of
    causing, inducing, or allowing any person to take or attempt to
    take any migratory game bird by the aid of baiting on or over
    the baited area.”       16 U.S.C. § 704(b)(2) (2012).             An area is
    considered “baited” when grain that “could serve as a lure or
    attraction   for    migratory    game     birds”     is   “placed,    exposed,
    deposited, distributed, or scattered.”               50 C.F.R. § 20.11(j).
    The area “remain[s] a baited area for ten days following the
    complete removal” of the grain.         
    Id. As discussed
       above,   hunting       of   migratory   game   birds    is
    permitted on or over “lands or areas where seeds or grains have
    been scattered solely as the result of a normal agricultural
    planting, harvesting, post-harvest manipulation or normal soil
    stabilization practice,” and “where grain or other feed has been
    distributed or scattered . . . solely as the result of a normal
    agricultural operation.”        50 C.F.R. § 20.21(i)(1)(i), (2).               In
    order to fall within these exceptions, the practices must be
    “conducted in accordance with official recommendations of State
    Extension Specialists of the Cooperative Extension Service of
    the U.S. Department of Agriculture.”           50 C.F.R. § 20.11(g), (h).
    Cathey argues that incorporating these recommendations as
    elements of the offense shifted the burden of proof from the
    Government, requiring him to prove that he planted his crops in
    accordance   with     the   recommendations.         We   conclude    that    the
    9
    burden     here     was       properly      placed     on      the    Government.              The
    magistrate judge instructed the jury on multiple occasions that
    Cathey was presumed innocent, that he had no burden to produce
    any evidence, and that it was the Government’s burden to prove
    the   elements      of    the    offense      beyond      a    reasonable         doubt.        In
    explaining the elements, the magistrate judge included the two
    exceptions predicated on the Clemson Extension Guidelines.
    Moreover,    we       conclude      that   substantial         evidence         supports
    Cathey’s     conviction.              The    Government’s           Extension         Guidelines
    expert     testified       that       the    wheat   field          failed       to    meet   the
    recommendations          in    four     areas:     seed       germination          rate,      seed
    planting depth, seeding density, and the seed bed.                                    The expert
    further     testified          that    top     sowing         was    not     a        recommended
    practice.     The investigating officers observed a large quantity
    of uncovered wheat seeds on both plowed and unplowed sections of
    the field two days prior to and on the morning of the hunt.
    Cathey further argues that the Government failed to prove
    that the birds killed during the hunt were in fact mourning
    doves.     “Migratory game birds” is defined as “those migratory
    birds included in the terms of conventions between the United
    States and any foreign country for the protection of migratory
    birds,” including the birds listed in 50 C.F.R. § 10.13.                                       50
    C.F.R. § 20.11(a).             Mourning doves are a listed migratory game
    bird.     50 C.F.R. § 10.13(c)(1) (2013); see 
    id. § 10.13(b)
    (“The
    10
    purpose [of this list] is to inform the public of the species
    protected by regulations that enforce the terms of the MBTA.”).
    We conclude that the Government proved that Cathey baited
    the   field    to    allow   the   hunters    to   take     or    attempt   to     take
    mourning doves.        Cathey stipulated that he leased the field to
    the   hunter    so   that    the   hunter     could   use    the    field   to     hunt
    mourning doves, and that the hunter informed Cathey he planned
    to conduct a hunt on November 17, 2012.               He also stipulated that
    hunters hunted mourning doves over the field on that date.
    IV.
    Accordingly,      we   affirm   the     district      court’s      order.     We
    dispense      with    oral   argument       because    the       facts    and     legal
    contentions are adequately presented in the material before this
    court and argument will not aid the decisional process.
    AFFIRMED
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