Appellant, a taxidermist, was convicted of violating the Migratory Bird Treaty Act (the Act) by offering to sell and barter and causing to be transported snowy owls after they became a protected species under the Act in March of 1972. (16 U.S.C. §§ 703 and 707.) We affirm.

The indictment did not allege the time of appellant's taking of the snowy owl. It charged that his acts were done willfully and knowingly. The defendant offered no evidence.

He had been convicted before of similar misdemeanor offenses involving golden eagles and mountain goats, both protected species. He assigns as error the trial court's ruling that evidence of these prior acts would be admissible. They were neither offered nor admitted because, after the ruling, defendant chose not to testify.

Before the start of the trial and again at the close of the government's case, appellant sought a ruling on whether his prior convictions could be introduced for impeachment purposes. The court agreed that they could not be introduced for impeachment purposes but ruled that they would be admissible as prior similar acts.1 Fed.Rules of Evid. 404(b). E.g., United States v. Grammer, 513 F.2d 673, 677 (9th Cir. 1975); Fernandez v. United States, 329 F.2d 899, 908 (9th Cir. 1964). Appellant did not object to the ruling.

Appellant again contends on appeal that the admission of prior misdemeanors for impeachment purposes would be error. The answer is that the trial court's agreement with appellant precludes the need for our review. Since appellant has never objected to the actual basis for the court's ruling we do not review it.

Moreover, we note that the evidence was never presented to the jury. Appellant asserts that this is irrelevant to our review because the ruling effectively prevented him from taking the stand in his own defense. We will not speculate on the reasons for his failure to take the stand, tactical or otherwise. But we note that, if the reason offered by appellant is correct, his decision was an idle gesture. Under the court's ruling, the evidence was admissible regardless of whether appellant testified on his own behalf.

Appellant also assigns as error the testimony of a Federal Wildlife Officer. He testified that, sometime prior to the transactions forming the basis of appellant's conviction, appellant communicated with him because several persons had offered to provide him with snowy owls. Appellant objected to this testimony on the ground that it was probative of scienter which, although alleged in the indictment, was not an element of the offense, a proposition with which several courts have agreed. United States v. Ireland,493 F.2d 1208 (4th Cir. 1973); United States v. Schultze, 28 F. Supp. 234 (D.Ky.1939); United States v. Reese, 27 F. Supp. 833 (D.Tenn.1939).

The court, however, admitted the evidence, not on the element of scienter, but for its probative value on the question of whether the appellant did, in fact, commit the acts charged.² Appellant does not challenge its probity on this issue. The fact that scienter may not be an element of the offense, United States v. Wood, 437 F.2d 91 (9th Cir. 1971), is therefore irrelevant. We agree with the trial court's ruling that the testimony was probative of whether the appellant committed the offense.

Finally, appellant contends that the failure to allege in the indictment that the bird was taken after the effective date of the Act and failure to prove this as an element of the offense warranted dismissal as a matter of law. This position has been adopted by two courts more than 50 years ago. United States v. Marks, 4 F.2d 420 (S.D.Tex.1925); In re Information Under the Migratory Bird Treaty Act, 281 F. 546 (D.Mont.1922); United States v. Fuld, 262 F. 836 (D.Mont.1920). We prefer not to follow those courts.

Rather we agree with the statement in United States v. Blanket, 391 F. Supp. 15 (W.D.Okl.1975), that an indictment under the Act need not allege that the bird was taken after the effective date of the Act. Neither the statute nor the regulation so requires.3

The court in Blanket also noted that the inherent difficulty which would be encountered by the government in proving the time of the bird's taking supports the view that this is not an element of the offense. The purpose of the Act, to protect migratory birds, would be undermined if this burden were placed on the government. Blanket, supra at 19 n.1. Since appellant offered no evidence to support the proposition that the bird was taken before the Act's effective date, there is no need to review the court's refusal to give an instruction that such circumstance, if proven, would constitute a defense.

The judgment of the district court is affirmed.