                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                              4
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.



                                       5
                                           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).

                                          7
                                          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

                                            8
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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