United States v. Gregory Obendorf ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30188
Plaintiff-Appellee, D.C. No.
1:15-cr-00254-BLW-1
v.
GREGORY OBENDORF, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted February 9, 2018
Seattle, Washington
Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.
Gregory Obendorf was convicted of unlawfully baiting migratory ducks to
facilitate hunting, in violation of 16 U.S.C. § 704(b)(2), and conspiring to do the
same. He appeals his conviction and sentence. We have jurisdiction under 28
U.S.C. § 1291, and we affirm. We resolve Obendorf’s challenge to the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court’s interpretation of the Migratory Bird Treaty Act regulations in a
concurrently filed opinion.
1. The district court did not abuse its discretion, see United States v.
Torralba–Mendia, 784 F.3d 652, 659 (9th Cir. 2015), by admitting evidence of the
corn piles over Obendorf’s objections. The corn-pile evidence was relevant to the
conspiracy charge and not unfairly prejudicial under Rule 403. Andrew Deboer
testified that he created the corn piles on his own initiative to “impress the boss”
after he was instructed to harvest the duck field in a manner designed to attract
ducks. Although the government’s theory of the case involved a more subtle form
of baiting, Obendorf is liable for the reasonably foreseeable criminal acts of his co-
conspirators in furtherance of the conspiracy. See United States v. Bingham, 653
F.3d 983, 997 (9th Cir. 2011). The district court instructed the jury that it could
consider Deboer’s testimony and the photograph of the corn piles only if the jury
found that there was a conspiracy to place bait, that Obendorf and Deboer were
members of the conspiracy, and that Deboer’s actions were within the scope of the
conspiracy and reasonably foreseeable to Obendorf. In light of the limiting
instruction that we presume the jury followed, see United States v. Mende, 43 F.3d
1298, 1302 (9th Cir. 1995), the district court did not abuse its discretion by
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concluding that the risk of unfair prejudice did not substantially outweigh the
probative value of the corn-pile evidence, see Fed. R. Evid. 403.
2. Obendorf’s sentence of 15 days of community confinement is not
substantively unreasonable. See United States v. Ressam, 679 F.3d 1069, 1088
(9th Cir. 2012) (en banc) (“[O]ur review of the substantive reasonableness of a
sentence is deferential and will provide relief only in rare cases.”). The U.S.
Sentencing Guidelines recommended a sentence between 18 and 24 months, and
the Guidelines themselves account for the need to avoid unwarranted disparities in
sentencing. See United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010).
The record reveals that the district court considered Obendorf’s circumstances and
the 18 U.S.C. § 3553(a) factors before pronouncing a sentence.
The district court did not abuse its discretion when imposing the challenged
special conditions of Obendorf’s probation. See United States v. Bolinger, 940
F.2d 478, 480 (9th Cir. 1991) (“The sentencing judge has broad discretion in
setting probation conditions . . . .”). The three-year ban on obtaining hunting and
fishing licenses is reasonably related to Obendorf’s wildlife crimes and comports
with the limitations set forth in 18 U.S.C. § 3563(b). The same is true of the
prohibition on baiting or feeding waterfowl. Obendorf suggests this condition
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prevents him from farming, but we think it plain that the condition proscribes only
intentional feeding or baiting, whether direct or indirect.
Finally, the $40,000 fine is not unreasonable. See United States v. Orlando,
553 F.3d 1235, 1239–40 (9th Cir. 2009). The amount of the fine corresponds to
the pre-sentence report’s estimate of the market value of the ducks taken. The
district court declined to enhance Obendorf’s sentence under U.S. Sentencing
Guideline § 2Q2.1(b)(3)(A)(ii) based on that figure because such an enhancement
would have increased Obendorf’s Total Offense Level by six points, and the
district court did not find the ducks’ value established by clear and convincing
evidence. See United States v. Gardenhire, 784 F.3d 1277, 1280 n.3 (9th Cir.
2015). However, we review the fine for reasonableness and fidelity to the factors
in 18 U.S.C. §§ 3553(a) and 3572(a)—not to determine whether it is supported by
clear and convincing evidence. See Orlando, 553 F.3d at 1239–40. Obendorf has
not shown that the fine is unreasonable.
AFFIRMED.
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