Full opinion text
OPINION MacBRIDE, Chief Judge. Defendants are charged in a twelve count information with misdemeanor violations of a Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq.; the alleged violations arise from the application of a registered pesticide to an alfalfa field and the subsequent death of a number of American widgeon, a water fowl protected under the MBTA. Defendants have responded with a number of pretrial motions. The defendants are Corbin Farm Service (CFS), a dealer and distributor of pesticides; John Richard Harris, a CFS employee who provided pesticide advice to farmers with the expectation that they would purchase from CFS; Patrick William Feeney, the owner of the alfalfa field; and Frank Harry Michaud, Jr., the licensed aerial operator who sprayed the field. The twelve count information alleges in Count 1 that CFS, through its agents and employees, violated FIFRA by causing a registered pesticide to be applied in a manner contrary to its labeling. Count 2 alleges that Harris, Feeney and Michaud also violated FIFRA by applying or causing the pesticide to be applied contrary to its labeling. Finally, Counts 3 through 12 charge Harris, Feeney, and Michaud with violations of the MBTA because of the death of American widgeon; each count alleges the death of one bird. Defendants attack the information on a number of points. This court will examine the challenge to the FIFRA counts first, then the attack on the MBTA, and finally the remaining pretrial motions. MOTIONS TO DISMISS THE FIFRA COUNTS Defendants CFS, Harris and Michaud move to dismiss the FIFRA counts on the ground that the statute and the label are unconstitutionally vague in that they fail to describe the proscribed conduct sufficiently to enable affected persons to know in advance the activities they may legally pursue. Section 136j(a)(2)(G) of FIFRA provides: (a) In general— (2) It shall be unlawful for any person— (G) to use any registered pesticide in a manner inconsistent with its labeling The label on the pesticide applied to Feeney’s field states in pertinent part: For water fowl protection do not apply . . on fields where water fowl are known to repeatedly feed. This quote from the label appears in the briefs of the United States and the defendants, not in the information. Since the parties agree on the quotation, this court will assume that it is correctly quoted. The vagueness doctrine is essentially a reflection of “[t]he underlying principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972), quoting United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). The Colten Court added: The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. Id. Two justifications support the vagueness doctrine. First, vague laws trap the innocent — it is essential that laws “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Second, vague laws impermissibly delegate policy decisions as to what is prohibited to police, judges and juries for resolution on an ad hoc basis with the danger of arbitrary and discriminatory application — laws must “provide explicit standards for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). In evaluating whether a statute is void for vagueness, the court should not be too demanding. In United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963), holding that the words “unreasonably low prices” in the Robinson-Patman Act were not vague, the Court stated: The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language, [citations] Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation, [citations] Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed, [citations] In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Thus, if people of ordinary intelligence “must necessarily guess at its meaning and differ as to its application,” a statute is void for vagueness. Id. Defendants CFS and Harris point out that at least some of the words or phrases challenged as vague are part of the label rather than the statute itself. Since the label was written by the manufacturer and submitted to the EPA for approval, defendants urge that it is not entitled to the presumption of validity that attaches to a congressional enactment. FIFRA provides that a manufacturer seeking registration of a pesticide must file a complete copy of the label with the EPA. 7 U.S.C. § 136a(c)(l)(C). The Administrator of the EPA registers the pesticide if he determines that its label complies with the Act’s requirements. Id. § 136a(c)(5)(B). If the label does not comply with the Act, the Administrator is required to deny registration. Id. § 136a(c)(6). It is clear that the label itself was not enacted by Congress and is not entitled to the “strong presumptive validity” applicable to congressional action. The label was, however, examined by the Administrator under the procedures set forth by Congress. The label should be accorded a presumption of validity like that attaching to an administrative regulation adopted pursuant to power granted by Congress. E. g., Ramirez v. Immigration and Naturalization Service, 550 F.2d 560, 563 (9th Cir. 1977); United States v. Boyd, 491 F.2d 1163, 1167 (9th Cir. 1973). It may be that the label, written as it was by a private manufacturer, should not be accorded the full measure of presumptive validity that would attach to a regulation prepared by the agency itself, but the Act requires the Administrator to examine such labels and determine their conformity to the Act. This court will not assume that the Administrator failed to carry out his responsibilities. Accordingly, this court will presume that the label is valid, giving substantially the same weight to that presumption as it would to a regulation. Defendants attack the statute itself and the labeling on a number of grounds, each testing a particular word or phrase for vagueness. This court will examine each of these contentions seriatim, applying the vagueness doctrine as set forth in the Supreme Court decisions above. (1) “inconsistent with its labeling” Defendant Michaud asserts that the FIFRA prohibition on the use of a pesticide “in a manner inconsistent with [its labeling]” is vague because of the word “inconsistent.” It is difficult to discern the source of the asserted vagueness. Both Black’s Law Dictionary and Webster’s Dictionary define “inconsistent” to mean “contrary to” or “incompatible with.” It is clear enough that, if one applies a pesticide in a way contrary to the directions on the label, one has violated the statute. The legislative history of this provision includes some discussion of the word “inconsistent.” [I]t is the belief of the Committee that the use of the word “inconsistent” should be read and administered in a way so as to visit penalties only upon those individuals who have disregarded instructions on a label that would indicate to a man of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment. Thus, for example, it would be expected that use of a general, unrestricted pesticide registered for use on enumerated household pests to exterminate a pest not specified on the label would not be inconsistent with the labeling. On the other hand, the use of even a general use pesticide in a manner inconsistent with a specified caution or restriction on the label should be considered inconsistent with the labeling. S.Rep.No.838, reprinted in 1972 U.S.Code Cong. & Admin.News pp. 3993, 4008. Defendants here are charged with a use inconsistent with a specific instruction on the label. This court finds no unconstitutional vagueness in the word “inconsistent.” Michaud also states that the word “inconsistent” is vague when viewed in the context of the “four different labels in a very short time span” that he asserts have been used on this pesticide. It may be that there have been a number of different labels on the particular pesticide and even that the application of the pesticide might have been consistent with one or more of the labels. Even if true, the different labels are irrelevant. The question is whether the application was inconsistent with the labeling on the particular container(s) of pesticide applied to the field in this case. If Michaud seeks to find vagueness in the existence of more than one label, he must provide evidence as to what each of the labels stated, when the labels were used, and whether the application was inconsistent with one label but consistent with another. In the absence of that evidence, this court finds no vagueness in the word “inconsistent.” (2) “repeatedly feed” Defendants CFS, Harris and Michaud urge that the words “repeatedly feed” are unconstitutionally vague. Analysis of this question must look to whether the words are vague on their face and whether the words are vague as applied to these defendants under the circumstances. On their face, the words are not vague; they encompass situations in which water fowl feed in an area with sufficient frequency and regularity as to permit one to say they repeatedly feed there. Certain cases are clearly within or clearly without the meaning of “repeatedly feed”; a field in which water fowl have fed only once or twice in the last 3 or 4 years would be recognized as outside the meaning by persons of ordinary intelligence while a field in which the birds feed morning and evening year round would be immediately recognized as within the meaning. The harder question is whether the words “repeatedly feed” are vague as applied to these defendants. As in the National Dairy Products case, the words must be examined to determine whether they sufficiently warned these defendants that their conduct was within the prohibition. 83 S.Ct. at 598. The question is necessarily one of mixed law and fact; that is, how frequently did the water fowl feed in this field and is this frequency such as would be understood by the man of ordinary intelligence to fall within the meaning of the term “repeatedly.” The United States has made an offer of proof as to the evidence relating to the frequency with which water fowl fed in the particular field and the general area. This offer includes the following: (1) at least one witness saw “a substantial quantity of birds” feeding in the field on March 14 through 16 and on March 20; the spraying took place on March 21; (2) duck damage in the field on March 22 is said to provide evidence that ducks had been feeding in the field for three to four weeks; (3) the defendants made statements concerning the prior presence of water fowl in the field; and (4) statistics which show the average water fowl population in March in the Sacramento National Wildlife Refuge, which is less than three miles from Feeney’s field. United States’ Brief, Sept. 30, 1977. There are certain questions raised by parts of the offer of proof as to admissibility and probative value, but the offer is sufficient to demonstrate that there is a real possibility that water fowl did feed repeatedly in the field. A final decision on this question will require the taking of evidence; this evidence could be heard at a preliminary hearing and it must be heard at the trial itself. F.R. Crim.P. 12(e) provides: A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party’s right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. The Advisory Committee Notes to this Rule state that “subdivision (e) confers general authority to defer the determination of any pretrial motion until after verdict.” The principles expressed by the case law and commentators indicate that this is a case in which deferral of the motion to dismiss on the ground that the words “repeatedly feed” are vague as applied would be appropriate. The evidence must necessarily be presented at the trial itself, and judicial economy would be served by avoiding an evidentiary hearing on the same evidence. See, e. g., United States v. Treadway, 312 F.Supp. 307 (E.D.Va.1970); United States v. Fargas, 267 F.Supp. 452 (S.D.N.Y.1967); 1 Wright & Miller, Federal Practice and Procedure: Criminal § 194. Accordingly, decision on whether the words “repeatedly feed” are vague as applied is deferred until the evidence has been received at the trial. (3) “known to repeatedly feed” Defendants’ next challenge is to the word “known” in the label; they urge that the word is unconstitutionally vague in that it fails to indicate who must know that the water fowl repeatedly feed. The concept of knowledge appears at two points; the label on the pesticide states that it is not to be used where water fowl are “known to repeatedly feed,” and the criminal penalty section of FIFRA under which defendants are charged provides that a person “who knowingly violates any provision of this subchapter shall be guilty of a misdemeanor.” 7 U.S.C. § 1367(b). The position of the United States is that the requirement “known to repeatedly feed” is satisfied if anyone has knowledge of the repeated feeding, regardless of the individual defendants’ knowledge. As to the word “knowingly” in section 1367, the United States urges that only general intent is required and that mens rea is satisfied by a showing that defendants knew they were dealing with a pesticide. Defendants CFS, Harris and Michaud reject both positions. They assert that the words “known to repeatedly feed” must mean knowledge by the person who uses the pesticide: the person charged with violation of the statute. Moreover, defendants urge that the words “knowingly violates” in section 1367 add support to the requirement of actual knowledge, and they seek to distinguish the cases cited by the United States. As to the word “known” in the label, the United States argues: this knowledge requirement has nothing to do with the individual state of mind or knowledge of the user. Instead it details the appropriate circumstances under which the pesticide can be applied. That the label prohibits the use of the pesticide in circumstances where anyone has knowledge of the existence of repeatedly feeding water fowl, irrespective of the individual user’s knowledge is consistent with the label’s use of the subjunctive words “are known” instead of language which would more precisely apply to a user's knowledge; as, for example, “Where you know that water fowl repeatedly feed.” United States Brief, Dec. 12, 1977, at 13. Defendants CFS and Harris read the label differently: The person reading the label perceives it as an instruction addressed to himself. “For water fowl protection do not apply . on fields where water fowl are known to repeatedly feed.” Read in this light, the wording suggests to the reader that he is to query himself, where he feels he has the requisite familiarity with the area, as to whether it is known that waterfowl repeatedly feed on the particular field. Perhaps the user who knows that he is unfamiliar with the area has a duty to inquire as to information known to the community, but the person who reasonably believes that he does know what is generally known in the community, is not required to burn back to town and make inquiries of other community members in order to determine the reputation of the field in the community. Defendants’ CFS and Harris Brief, Nov. 22, 1977, at 7. This discussion appears to accept the use of a community knowledge standard with the requirement that the individual user have actual knowledge of that community knowledge. Defendants CFS and Harris imply that an individual could be guilty of a violation by application of a pesticide to a field generally believed by the community to be one in which water fowl fed repeatedly even if the individual himself knew that the commonly-held belief was incorrect. Defendant Michaud rejects both the interpretation of the United States and that of CFS and Harris. He argues that the United States must prove that he personally knew that water fowl repeatedly fed in the field in order to establish his guilt. The parties cite only one case construing the word “known”: Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), which held the following statute unconstitutionally vague: “Any person not engaged in any lawful occupation, known to be a member of any gang ... is declared to be a gangster.” The Court found the words “known to be a member” ambiguous because it was not clear “whether that reputation must be general or extend only to some persons.” Id. at 621. The case is of little assistance here because the word “known” definitely did not apply to personal knowledge of the person charged. This court has considered the defendants’ argument that the word “knowingly” in section 1367 should be interpreted to increase the scienter requirement in this case. The argument is without merit. The penalty provisions of section 1367 were drafted in a general fashion to encompass the wide variety of possible violations of FIFRA. Congress did not contemplate the conjunction of the word “knowingly” with a label direction including the word “known.” Instead, Congress was enacting a general provision, using the word “knowingly” as it had in the context of other statutes creating malum prohibitum crimes. The word was used to reflect the requirement that general intent be proved in order to establish a violation. Although no relevant case law exists construing this particular statute, it clearly falls within the framework of other regulatory statutes. In United States v. International Minerals & Chem. Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971), the Court examined the mens rea requirements applicable to a violation of a regulation of the ICC charged under 18 U.S.C. § 834(f) which provides that whoever “knowingly violates any such regulation” is guilty of a crime. The Court held that knowledge of the facts is required, that is, a general intent to do the actions constituting the violation, but that a specific intent to violate the law or a knowledge of the regulation is not a necessary element of the crime. The Court stated: dangerous or deleterious devices or products or obnoxious waste materials are involved, [and] the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. Id. at 1701-02. The mens rea requirement in the word “knowingly” would protect a person believing in good faith that he was dealing with distilled water rather than the corrosive liquids covered by the regulation. Id. at 1701. The same interpretation of the word “knowingly” has been applied in a number of other cases involving regulatory statutes and malum prohibitum crimes. It is clear that the word “knowingly” in section 136/ should be interpreted in the same fashion; it requires proof that the defendants knew they were dealing with a pesticide when they sprayed the field or caused it to be sprayed. The more difficult question is the interpretation of the word “known” in the label. Certain types of proof would clearly be sufficient. If the United States could show actual personal knowledge arising from the defendants’ own frequent sightings of water fowl in the field, there would be no dispute as to the application of criminal penalties. The same result should apply to proof of their actual knowledge of other evidence of the birds’ presence, such as duck damage to the field. Similarly, proof that the defendants knew that others believed that water fowl repeatedly fed in the field should be sufficient. Such actual knowledge of the beliefs of others would put the defendants on notice that water fowl were in the field with at least some frequency; in such a case, the defendants would act at their peril if they did not examine the field prior to spraying. Moreover, knowledge in this case cannot be limited to positive knowledge; it must include “the state of mind of one who does not possess positive knowledge only because he consciously avoided it.” United States v. Jewell, 532 F.2d 697, 702 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Given that the types of proof above are obviously sufficient to justify a conviction for use of the pesticide in a manner inconsistent with the instruction not to apply it where water fowl are known to feed repeatedly, the statute as it incorporates the label is not vague on its face. The United States seeks, however, to apply a broader construction of the word “known” to include knowledge by anyone, not necessarily including the individual defendants here. It is that construction which defendants assert would be unconstitutionally vague. The .United States’ interpretation goes too far; if the defendants reasonably believed that water fowl did not repeatedly feed in the field, then the fact that some other person unknown to the defendants believed that water fowl repeatedly fed in the field should not be a basis for conviction. The central concept is reasonableness. For example, in United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922), the defendant appealed his conviction for sale of narcotics, claiming in part that he did not know what he was selling. The Court declared: where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. The means were present whereby the defendants could determine whether water fowl had been feeding repeatedly in the field and an unreasonable failure to do so cannot free them from liability. However, a final ruling on the nature of the knowledge requirement in the word “known” as applied to these defendants must be deferred until after evidence has been received on the extent of their knowledge, their ability to determine the facts, and the reasonableness of their actions given the facts. Once that evidence has been taken, it can be determined whether the label’s language would necessarily be vague as applied to these defendants under the circumstances in which they acted. It may be that the proof amassed by the United States will satisfy the standards discussed above as to the types of proof that would clearly be sufficient. If so, a ruling on the constitutionality of applying criminal penalties to persons with less knowledge would be unnecessary. At this point, it is sufficient to state that the knowledge requirement falls between the position argued by the United States and the position offered by defendant Michaud. (4) “to use any registered pesticide” The defendants also challenge the interpretation that the United States seeks to apply to the word “use” in 7 U.S.C. § 136j(a)(2)(G) which makes it illegal “to use any registered pesticide in a manner inconsistent with its labeling.” Defendants CFS and Harris urge that the word “use” cannot be interpreted to apply to the dealer that sells the pesticide and the adviser who merely advises a farmer with respect to it because a third party, either the farmer or the pesticide applier, is the “user.” The United States offers little briefing on this question, contending that it is inappropriate to raise it prior to trial because it involves factual questions. The United States’ position is incorrect; defendants argue that the statute cannot be applied to impose criminal penalties on persons other than the actual users of the pesticide. The legal question as to the definition of the word “use” and the asserted unconstitutional vagueness in imposing criminal penalties on those who sell a pesticide or provide advice concerning its properties is properly before the court on a motion to dismiss. The word “use” is not defined in the Act itself, but the EPA has defined it by regulation: The term “use” means any act of handling or release of a pesticide, or exposure of man or the environment to a pesticide through acts, including but not limited to: (1) Application of a pesticide, including mixing and loading and any required supervisory action in or near the area of application; (2) Storage actions for pesticides and pesticide containers; and (3) Disposal actions for pesticides and pesticide containers. [Use as defined here incorporates application . . . . Many aspects of use do not include application (e. g., storage, transportation) . . . .] 40 C.F.R. § 162.3(oo) (1976) (brackets in original). This definition has been adopted by the Office of Enforcement in the enforcement of pesticide labeling violations under section 136j(2)(a)(G). See Pesticide Enforcement Policy Statement No. 7, 42 Fed.Reg. 21496 n.2 (Apr. 27, 1977). EPA policy statements indicate by implication that the word “use” is not meant to apply to a pesticide dealer or adviser merely because of the sale or giving of advice: FIFRA enforcement liability for the misuse of pesticides falls primarily upon the pesticide user or applicator. Particularly where the pesticide application involves a deviation from the uses which are allowed on the accepted label, any person who mixes, loads, applies, stores, or disposes of any registered pesticide in a manner inconsistent with its labeling may be subject to civil or criminal sanctions under FIFRA. Pesticide Enforcement Policy Statement No. 5, 41 Fed.Reg. 41142, 41146 (Sept. 21, 1976). The deviation referred to in this quotation is the use of a pesticide against a pest not named as one for which the pesticide is to be used. As defendants CFS and Harris point out, the word “use” could properly be applied to a pesticide seller who stores the pesticide in a manner inconsistent with the label or who spills it and fails to dispose of the spill properly. The United States does not dispute defendants’ interpretation of the word “use”; instead, it points to 18 U.S.C. § 2, the aiding and abetting statute, as the source of criminal liability on the part of defendants CFS and Harris. This court has considered the possible interpretations of the word “use” and finds that a person who sells a pesticide, without more, cannot be said to “use” the pesticide in a manner inconsistent with its label on the grounds that the buyer is guilty of inconsistent use. The opposite interpretation would make the seller strictly liable for criminal sanctions because of the violations of its buyers. The same rule applies under 18 U.S.C. § 2; a mere seller cannot be criminally liable for the inconsistent use of a pesticide as an aider and abetter simply because of the sale itself. In this case, however, the seller CFS employed Harris, a pesticide adviser, and the United States’ offer of proof includes the following: (1) that Harris, a licensed pesticide adviser, offered Feeney [the field owner] a selection of pesticides, including Furadan, from which Feeney made his selection, (2) that Harris inspected the field on March 12 or 13 and at that time advised Feeney to irrigate it before the Furadan was applied so that there would not be a run-off with a resulting fish kill, (3) that Harris visited the field on March 18 after it had been irrigated, but did not get out of his motor vehicle to inspect the field, (4) that Harris delivered 14 gallons of Furadan and his recommendations as to use to Michaud [the applicator], and said recommendations did not include any warning against the use of Furadan where waterfowl might be endangered. United States’ Brief, Sept. 30, 1977, at 4. This offer of proof directly raises the question whether Harris and, through Harris, CFS could be criminally liable under 18 U.S.C. § 2. The aiding and abetting statute provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 18 U.S.C. § 2(a). FIFRA provides: Section 1361(b)(4) of When construing and enforcing the provisions of this subchapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, or failure of such person as well as that of the person employed. There is no dispute that Harris was employed by CFS; accordingly, if Harris is liable directly or under the aiding and abetting statute, then CFS is also liable by virtue of section 1361 (b)(4). The question, then, is whether Harris can be prosecuted for the violation arising from the inconsistent “use” of the pesticide either on the ground that he was sufficiently involved in the selection and application of the pesticide that he may be deemed to have “used” it or on the ground that he aided and abetted in the “use.” As the United States points out, these questions involve the proof that will be presented at trial and cannot be fully resolved at this point in the prosecution. Certain aspects of the questions, however, involve purely legal decisions and can be resolved at this time. The first of these legal questions is whether one who advises as to the use of a pesticide can be deemed to “use” the pesticide within the meaning of the Act. The EPA interpretation of the statute indicates that an adviser who is significantly involved in the use of a pesticide can be a “user” for purposes of criminal liability. In a 1977 policy statement, the EPA states: The responsibility for the safe and efficacious aerial application of the pesticide . may rest with either the applicator or the knowledgeable expert or both, as the equities and the circumstances may require. FIFRA enforcement liability for the misuse of pesticides falls primarily upon the pesticide user or applicator, and not upon the knowledgeable expert who has recommended such use. . [T]he expert who recommends and personally supervises the aerial application of [a pesticide not labeled for aerial application but meeting the requirements specified in the statement] is himself considered to “use” the pesticide within the meaning of FIFRA section [136j](a)(2)(G), and is, thus, subject to FI-FRA enforcement liability for any misuse of the pesticide which occurs under his supervision. Pesticide Enforcement Policy Statement No. 7, 42 Fed.Reg. 21496, 21499 (Apr. 27, 1977). This interpretation is entitled to great weight. E. g., Brubaker v. Morton, 500 F.2d 200, 202 (9th Cir. 1974) (“A court faced with a problem of statutory construction should give great deference to the interpretation of a statute by the officers or agency charged with its administration.”); see Hart v. McLucas, 535 F.2d 516, 520 (9th Cir. 1976). This court finds no basis on which to reject the EPA interpretation. One who is personally involved in recommending the use and supervising or overseeing the circumstances of the use of a pesticide cannot, as a matter of law, escape criminal liability for the use of a pesticide in a manner inconsistent with its label on the ground that he did not himself use the pesticide. At the other extreme one who has no personal knowledge of the location where the pesticide is to be used and merely answers a farmer’s query about available pesticides by stating that there are five pesticides authorized for a particular use would not be criminally liable. Thus, whether a particular adviser can be criminally liable for an inconsistent use of a pesticide which he has advised another to use depends on the extent of the adviser’s personal involvement in the application of the pesticide and knowledge of the facts surrounding that application. Defendants’ assertion that an adviser cannot be criminally liable, as a matter of law, is incorrect. The other legal question presented by the defendants in connection with whether Harris can be prosecuted for a “use” inconsistent with the label concerns the nature of the scienter requirement. Defendants urge that the United States must demonstrate that Harris actually knew that water fowl repeatedly fed in the particular field. As discussed earlier, actual personal knowledge is not required. At the least, deliberate ignorance would be sufficient. The earlier discussion of the knowledge requirement in the word “known” is applicable here, and defendants are incorrect in their interpretation that the statute and label require actual knowledge. As a final matter, the parties raise questions concerning the mens rea requirements for conviction as an aider and abetter under 18 U.S.C. § 2(a). The defendants urge that the violation must be willful, while the United States argues that no higher state of mine is required for an aider and abetter than is required for a principal. The Ninth Circuit has discussed the nature of the scienter requirement for aiding and abetting in two recent cases that are relevant here. In United States v. Short, 493 F.2d 1170 (9th Cir.), unrelated motion granted, 500 F.2d 676 (9th Cir.), cert. denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974), the court held: It is the aider and abettor’s state of mind, rather than the state of mind of the principal, that determines the former’s liability. . . . “[An] aider and abettor is made punishable as a principal . and the proof must encompass the same elements as would be required to convict any other principal.” Id. at 1172, quoting Hernandez v. United States, 300 F.2d 114, 116 (9th Cir. 1962). In United States v. McDaniel, 545 F.2d 642 (9th Cir. 1976), a felon was convicted of transporting firearms and his wife was convicted of aiding and abetting. The jury asked whether one could be convicted of aiding and abetting without knowledge that a crime was being committed, and the judge answered “yes.” The Ninth Circuit reversed, stating: Presumably, the court interpreted the jury’s question as asking whether the aider and abetter must know that the activity was a crime. It is true that ignorance of the law is no excuse, but the jury’s question was not that simple. . The mens rea of aiding and abetting is “guilty knowledge.” Grant v. United States, 291 F.2d 746, 749 (9th Cir. 1961). Barbara, in order to be found guilty, must at least have assisted Ulysses in the transportation of the firearms knowing that he was transporting firearms. We said recently that one acting with “criminal intent and design to assist the perpetrators” is guilty of aiding and abetting. United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). But see Weedin v. United States, 380 F.2d 657, 660 (9th Cir. 1967). A defendant to be an aider and abetter must know that the activity condemned by the law is actually occurring and must intend to help the perpetrator. R. Perkins, Criminal Law 645 (1969). By its answer to the jury’s question, the court could have caused the jury to disregard the requisite scienter elements which the jury had to find in order to convict Barbara. Id. at 644. From these and related cases, it is clear that the aider and abetter need not know that the activity constitutes a crime but must know the facts essential to constitute the activity a crime. Applying the law reflected in these cases to this case, the United States must show the same extent of knowledge on the part of Harris as aider and abetter as it must show to obtain a conviction as a principal. The scienter requirement for an aider and abetter in McDaniel was that she know that firearms were being transported; here the requirement is that Harris know that he was dealing with a pesticide. Moreover, the United States must establish the same extent of knowledge as to the repeatedly feeding water fowl for an aider and abetter as is required for a principal. The only difference is that Harris need not be shown to have “used” the pesticide; he need only have aided and abetted that use. (5) “acting for or employed by” As a final matter, defendants challenge the Government’s interpretation of principal-agent liability provided in section 1367 (b)(4). That section provides: When construing and enforcing the provisions of this subchapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, or failure of such person as well as that of the person employed. 7 U.S.C. § 1367 (b)(4). The parties are agreed that this section permits the imposition of criminal liability on CFS upon a determination that its employee Harris is subject to criminal liability. The dispute over the interpretation of section 1367 (b)(4) arises from the United States’ position that Michaud, the applicator, can be viewed as a person “acting for” both CFS and Feeney in applying the pesticide so that the criminal liability of CFS and Feeney can be found in the acts or omissions of Michaud. Defendant Feeney, the field owner, states that Michaud was acting as an independent contractor in spraying the field, but Feeney does not dispute that Michaud might be proved to have “acted for” Feeney. Thus, the central question is whether the language in section 1367(b)(4) permits the interpretation sought by the United States: that Michaud was “acting for” CFS. The language of section 1367(b)(4) was taken directly from section 135f(d) of FI-FRA, enacted in 1947, which remains in force with the additional regulation imposed by section 136 et seq. No published opinion construes the meaning of section 135f(d) or section 1367(b)(4). The parties have not cited any legislative history or administrative interpretation of those sections, and this court has been unable to discover any relevant information from those sources. An examination of other criminal provisions of Title 7 reveals that similar language appears in at least six other statutes; these provisions, however, have one difference in that they specify that the person “acting for or employed by” another person is “within the scope of his employment.” For example, section 87d of the United States Grain Standards Act provides: When construing and enforcing the provisions of this chapter, the act, omission, or failure of any official, agent, or other person acting for or employed by any association, partnership, or corporation within the scope of his employment or office shall, in every case, also be deemed the act, omission, or failure of such association, partnership, or corporation as well as that of the person. 7 U.S.C. § 87d. See also id. §§ 4, 63, 153, 223,473c-3. This distinction may indicate a greater liability of an employer under the two FIFRA criminal provisions in that they do not require that the person employed by or acting for another person be acting within the scope of his employment, but it offers little assistance in determining the nature of the words “acting for.” No cases could be found that have construed the “acting for” portion of these six sections of Title 7. The similar provisions in other Titles also failed to offer guidance for the interpretation of section 1367 (b)(4); minor differences in the formulation of the provisions did not permit meaningful inferences and again no relevant case law could be found. See 21 U.S.C. §§ 63, 461, 1041(a); 47 U.S.C. § 217. Accordingly, this court must determine the meaning of the words “acting for” in section 1367 (b)(4) without the assistance of legislative history, administrative interpretation or prior case law. This determination is made within the framework set forth in the decisions of other courts faced with the same problem: a criminal statute should be strictly construed and any ambiguities should be resolved in favor of lenity. E. g., United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971). It is the opinion of this court that, in applying the pesticide, Michaud was “acting for” Feeney because Michaud was applying the pesticide to Feeney’s field for Feeney’s benefit and was paid by Feeney. The fact that Michaud is said to have been an independent contractor rather than an employee is of no significance here because the section uses the disjunctive “acting for or employed by.” Similarly, Harris was acting for or employed by CFS within the meaning of the section; the briefs of CFS, Harris and the United States all agree that Harris was employed by CFS. The relationship between CFS and Michaud is more difficult. The United States argues that Michaud was “acting for” CFS in applying the pesticide. It appears from the briefs that Feeney selected Michaud as the person to apply the pesticide and that Harris or CFS delivered the pesticide to Michaud with certain instructions for its use. This relationship, standing alone, is insufficient to establish that Michaud was “acting for” CFS or Harris. One who purchases a product or uses a product purchased by another cannot be said to be “acting for” the seller of the product based solely on that use. Some additional relationship between the user and the seller must be shown. It may be proof at trial could establish the existence of that additional relationship. At this point, however, it is clear that, as a matter of law, the words “acting for” do not encompass a pesticide applicator whose only relationship with the seller of the pesticides is that he applies them to the field for the benefit of the owner of that field as the independent contractor of the owner. The fact that CFS cannot be held liable under section 1367(b)(4) for the acts of Michaud solely because CFS sold the pesticide does not indicate that the FIFRA count against CFS should be dismissed. CFS may be liable for a FIFRA violation based on the actions of its employee Harris, either under the aiding and abetting statute or under section 1367(b)(4). This question of principal-agent liability under section 1367(b)(4) is the final question raised by the defendants in connection with their motion to dismiss the FIFRA counts. Although this court has rejected certain interpretations of the statute asserted by the United States, those decisions do not justify dismissal of the FIFRA counts as to any of the defendants. The provisions of FIFRA and the language of the label are not unconstitutionally vague on their face; whether the words “repeatedly” and “known” are vague as applied cannot be determined until after evidence is taken, and decision on those two questions is deferred until after trial. Defendants’ motion to dismiss is denied. MOTIONS TO DISMISS THE MBTA COUNTS In addition to alleging violation of FI-FRA, the information charges defendants, Feeney, Harris and Michaud with ten counts for violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq. Each count charges the death of a single American widgeon, a bird protected under the MBTA. Defendants raise several grounds for dismissal of these counts, and the court will examine them seriatim. (1) Multiplicity Defendants argue that multiple counts are charged improperly for a single transaction. The parties are agreed that there was only one application of pesticide. Defendants argue that, if there is only one act, there can be only one count charged no matter how many birds are killed by that act. The United States responds that each death is a separate violation of the statute so that separate counts are proper. Section 703 of the MBTA provides in part: Unless and except as permitted by regulations made as hereinafter provided in sections 703 to 711 of this title, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, or any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions [for the protection of migratory birds]. The penalty provision of the MBTA provides in part: Except as otherwise provided in this section, any person, association, partnership, or corporation who shall violate any provisions of said conventions or of sections 703 to 711 of this title . . . shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500 or be imprisoned not more than six months, or both. 16 U.S.C. § 707(a). The question to be decided is what is the “unit of prosecution” intended by Congress — each dead bird or each act resulting in the death of one or more birds? Historically, it appears that defendants have been charged with only one count even when more than one bird was involved, although in certain cases the United States has treated all the birds killed on one day as one count and charged multiple counts because violations occurred on more than one day. For example, in Rogers v. United States, 367 F.2d 998 (8th Cir. 1966), no challenge was raised on multiplicity grounds even though the first count charged the unlawful sale of four ducks on January 23, 1964, the second charged the unlawful sale of one duck and two geese on November 11, 1964, the third charged the unlawful sale of 39 ducks and 20 geese on January 12, 1965, and the fourth charged unlawful possession of more than the prescribed limit of ducks and geese. In a few cases, it is not clear from the opinion how the counts were drawn; in United States v. Gigstead, 528 F.2d 314 (8th Cir. 1976), three counts charged the unlawful possession of protected birds but the decision does not explain whether three different dates of possession or three birds on the same date were alleged. Recently, however, there has been a change in the enforcement of the MBTA, and multiple counts have been charged in circumstances similar to those in this case. The United States provided copies of certain recent decisions involving multiple counts, but these decisions are of negligible precedential value because the propriety of multiple counts was not raised. At best, these case demonstrate that the United States has begun to charge multiple counts in cases of this type in which defendants have taken only one action resulting in the death of more than one bird. The United States also cites one case in which the question was raised tangentially: United States v. FMC Corp., 428 F.Supp. 615 (W.D.N.Y. 1977). The bird deaths in this case resulted from birds drinking waste water from the defendant’s production of pesticides poured into a lagoon. In FMC Corp., the counts were charged by species — for example, count 1 was for the death of approximately 26 Canadian geese on April 23,1975, count 2 was for the death of approximately 12 migratory ducks on the same date, and count 7 was for the death of one Canadian goose on May 7, 1975. The defendant sought a bill of particulars to determine whether a single course of conduct resulted in all the deaths; defendant then urged that a single course of conduct can result in only one offense under the Act. The court ruled against the defendant, apparently from the bench, and the case went to trial and the defendant was found guilty on some counts but not guilty on others. It appears that the court found multiple counts were proper because the defendant was tried on all the counts and found guilty on a number of them. In the published decision, which concerns defendant’s motions to suppress and for a jury trial, the court queried: “If 1,000 birds had been found dead at the lagoon, would defendant be subject to a $500.00 penalty for each? It may well be appropriate to have a different unit for sentencing.” Id. at 617 n. 2. This comment implies that the court considered each bird death to be the appropriate “unit of prosecution” although not the appropriate “unit for sentencing.” In the absence of a written opinion on this issue, this court is unable to find precedential value in the FMC Corp. decision. Defendants here argue that FMC Corp. was correct in combining all deaths within a single species on a single day into one count. Although it is true that the defendant in FMC Corp. was so charged, the case offers no support for the proposition that the Act requires that approach. The court made no decision on that point because it was not raised. Defendants’ primary argument is the Congress did not intend that prosecutions should be brought separately for each bird death. They state that the “unit of prosecution” is the action resulting in the bird death or deaths. Defendants discuss analogous cases which they argue establish that multiple counts are improper, and they use the legislative history of the MBTA to demonstrate their interpretation of the congressional intent. In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the defendant was convicted of two counts under the Mann Act for the simultaneous transportation of two women across a state line. The Supreme Court held that, although Congress could declare that simultaneous transportation of two women would constitute two violations, Congress had not done so clearly. The Court held that criminal statutes are to be read “with the saving grace of common sense” but that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . .” Id. at 622. In United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), 32 counts were charged for violations of the Fair Labor Standards Act; counts 1 through 6 alleged minimum wage violations, one per week for six weeks; counts 7 through 26 charged overtime pay violations, one per week for 20 weeks; and counts 27 through 32 charged record keeping violations, two each for two employees. The district court dismissed all but three counts, holding that the course of conduct rather than the separate actions within the course of conduct constituted the offense. The Supreme Court affirmed. Defendants cite the following language in the Supreme Court’s decision: when choice has to be made between two readings of what conduct Congress has . made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. Id. at 229. The Court ruled, however, that a decision as to the proper “unit of prosecution” must be made with reference to congressional intent in the particular statute and stressed the fact that each problem of statutory construction is unique. This case provides the approach to be taken when congressional intent is not clear, but it offers little guidance for the construction of the penalty provisions of the MBTA. The defendants and the United States cite a variety of other cases from which they seek to draw analogies applicable to the instant case. An examination of these cases confirms the approach taken in the Universal C.I.T. case: the critical factor is congressional intent but, when that intent is not expressed clearly and without ambiguity, a “rule of lenity” requires that doubts be resolved against multiple counts. Accordingly, this court will examine congressional intent in the MBTA within the analytical framework set forth in Universal C.I.T. Looking first at the language of the MBTA itself, it is clear that Congress intended to make the unlawful killing of even one bird an offense. Section 703 and section 707 both use the words “any migratory bird,” and section 703 adds the words “any part, nest, or egg of any such bird.” Section 703 was amended in 1974 to remove the words “any part, nest, or egg of any such bird[s]” and place in their stead the present language. Act of June 1, 1974, Pub.L.No.93-300, § 1, 88 Stat. 190. The primary purpose of that amendment was to amend the Act to conform the Act to the terms of the convention with Japan adopted on March 4, 1972. The change from plural to singular was made apparently to conform to the similar language in other sections of the Act, not to alter the substantive meaning of section 703. Both before and after the amendment, section 703 prohibited the killing of “any migratory bird.” Section 703 makes it clear that killing a single bird is sufficient to create criminal liability; the section does not, however, indicate that killing more than one bird constitutes more than one criminal offense. Standing alone, the language could be interpreted either way. In such a case, the court should examine congressional intent. The MBTA was enacted originally in 1918 to implement the provisions of a 1916 convention between the United States and Great Britain. The purpose of that convention was one “of saving from indiscriminate slaughter and of insuring the preservation of such migratory birds.” 1916 Convention Preamble, reprinted in H.R.Rep.No.243, 65th Cong., 2d Sess. 3 (1918). Since then, the Act has been amended to implement two other conventions: the 1936 convention with Mexico which states its purpose is to protect the named species of migratory birds “in order that the species may not be exterminated,” 1936 Convention Preamble, 50 Stat. 1311, and the 1972 convention with Japan entered into “to cooperate in taking measures for the management, protection, and prevention of the extinction of certain birds.” 1972 Convention Preamble, TIAS No. 7990 (Mar. 4, 1972). The 1972 convention states that protection of migratory birds is desirable because “birds constitute a natural resource of great value for recreational, aesthetic, scientific, and economic purposes.” Id. The language of the conventions supports the conclusion that Congress was concerned with protecting each bird; this conclusion is particularly supported by the concern over extinction of whole species because the loss of even a few birds might spell the end of the species. The United States argues that the manifest concern over the possible extinction of whole species indicates that severe penalties should be visited upon those whose actions cause the death of many birds, endangering the species. This is an appealing argument — the person who kills many birds should logically be subjected to more severe penalties than the person who kills only one bird. Congress, however, did not express itself clearly on this point. Despite the discussions in the legislative ■ history concerning the fear that other species would follow the passenger pigeon into extinction, the legislative history of the Act does not demonstrate that Congress contemplated multiple counts for a single act in violation of the Act. The most serious questions about the United States interpretation of the Act are raised by the 1960 Amendments. The original penalty provision in the Act created a misdemeanor for a violation of the Act with a fine of $500.00 or imprisonment for six months or both; the provision was very similar to the language of section 707(a) under which these defendants are charged. In 1960, Congress amended section 707 to create a felony with a fine of $2000.00 and imprisonment of two years or both for persons who take migratory birds with intent to sell or barter or who sell or barter migratory birds. 16 U.S.C. § 707(b). In addition, the amendment provided for forfeiture of the guns, nets and other equipment, and the vehicles, vessels and other means of transportation used by a person engaged in the taking, killing or pursuing of migratory birds with intent to sell or barter. Id. § 707(c). The Senate Report prepared in connection with the 1960 Amendments states that they were necessary because [ujnder existing law, an individual who hunts migratory birds for pleasure and who takes one more bird than the limit, or who hunts a few minutes before or after sunset, is liable to the same penalties as a person who slaughters these wildfowl for commercial purposes as a means of livelihood. This bill would authorize more severe penalties for these market hunters and would provide for forfeiture of guns and equipment used by such persons if they were found guilty. . Your committee agrees that heavier penalties, together with the forfeiture of boats, guns, and other equipment used by commercial hunters should be a deterrent to those engaged in this illegal traffic, and is a needed addition to existing law. S.Rep.No.1779, 86th Cong., 2d Sess. (1960), reprinted in 1960 U.S.Code Cong. & Admin. News pp. 3459, 3460. The discussion in the Senate Report implies that Congress did not interpret the Act to provide for separate counts for each bird death; the implication is strongest in the statement that market hunters are subject to the same penalties as pleasure hunters who kill one bird in violation of the Act. Since a market hunter kills a number of birds, under the United States’ interpretation, he would be subject to multiple counts. If this had been understood as the proper interpretation in 1960, then the need to amend the Act to increase the penalties would not have existed: A separate count could have been charged for each bird taken by a market hunter. If Congress had intended to increase the penalties and, at the same time, had understood that the Act then existing provided for multiple counts, it is difficult to understand why the Senate Report did not discuss multiple counts or why Congress felt the need to amend the Act. One could argue that the 1960 Amendments might be distinguished on the ground that they did not alter the basic penalty provisions of the Act, now codified in section 707(a), under which the defendants are charged. Using this logic, the relevant congressional intent is that expressed in 1918 when the provisions were enacted. The 1918 legislative history is not helpful, however, because it speaks only of the need to prevent the “indiscriminate slaughter of birds,” the same language that appears in the 1916 convention which the Act implemented. H.R.Rep.No.243, supra at 2. Although this language reflects a concern about multiple deaths, it does not demonstrate a congressional intent to make each death a separate offense, at least when all the deaths are caused by a single act. Another possible ground for distinguishing the implication from the 1960 Amendments is to interpret them as permitting multiple counts for each bird killed by a market hunter. Under this