United States v. Corbin Farm Service, Patrick William Feeney, Frank Harry Michaud, Jr., and John Richard Harris

This is an appeal by the United States from a judgment of the district court dismissing nine counts of an information filed against defendants for multiplicity. The sole issue is whether the proper unit of prosecution for the killing of ducks under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 et seq., is each duck killed. The district court ruled that multiple bird deaths resulting from a single transaction cannot be separately charged under the MBTA. We affirm.

The defendants were each involved in various capacities with the application of Furadan 4, a registered pesticide, to an alfalfa field which allegedly caused the death of more than 1,000 American Wigeons, a migratory duck. Corbin Farm Service is the dealer/distributor of the Fura-dan. John Richard Harris is an employee of Corbin who provided pesticide advice to farmers with the expectation that they would purchase from Corbin. Patrick W. Feeney is the owner of the alfalfa field which was sprayed. Frank H. Michaud, Jr., is the licensed aerial operator who sprayed the field.

The United States, contending it has prosecutorial discretion to charge a violation of the MBTA for each individual duck killed chose ten…