Submitted April 17, 2015
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee: Jason T. Griess, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.
For Rodney Eugene Hughes, Defendant - Appellant: Frederic Montgomery Brown, Brown & Scott, West Des Moines, IA.
Rodney Eugene Hughes, Defendant - Appellant, Pro se, Mayfield, PA.
Before BYE and SMITH, Circuit Judges, and SCHILTZ, District Judge. BYE, Circuit Judge, dissenting.
SCHILTZ, District Judge.
Rodney Hughes was convicted by a jury of eleven felony counts of violating the Lacey Act, 16 U.S.C. § § 3371-3378. The Lacey Act makes it a crime to sell in interstate commerce any wildlife taken in violation of state law, 16 U.S.C. § 3372(a)(2)(A), and further makes it a crime to make or submit any false record with respect to any wildlife that is transported in interstate commerce, 16 U.S.C. § 3372(d)(2). A violation of the Lacey Act can be either a misdemeanor or a felony, depending on whether the market value of the wildlife in question exceeds $350.
Hughes appeals his convictions, arguing that the district court erroneously instructed the jury concerning the market value of the wildlife involved in his offenses. We agree with Hughes that the jury instructions were erroneous and that the error was not harmless. Accordingly, we reverse and remand for a new trial.
During the time relevant to this case, Hughes owned and operated Midwest USA Outfitters (" Midwest" ), which provided guides and other services to hunting parties in Iowa and Missouri. The hunting packages cost between $1,600 and $2,600 per person and included accommodations, meals, hunting stands, field dressing, and carcass-cleaning facilities.
On separate occasions in late 2008, out-of-state hunters hired Midwest to conduct guided deer hunts in Iowa. To hunt buck in Iowa, a hunter must have a buck license or " tag." Iowa residents are automatically entitled to a buck tag (so long as they apply and pay for it), but non-residents must enter a lottery. To ensure that his non-resident clients could hunt buck, Hughes gave them buck tags that belonged to other individuals. After these non-resident clients killed a buck, Hughes (or, at Hughes's instruction, the client) falsely reported to the Iowa Department of Natural Resources that the owner of the tag had killed the buck. The bucks were later transported out of state.
Hughes was indicted for 16 counts of violating the Lacey Act. To establish the market value of the deer, the government offered two kinds of evidence: (1) evidence of the price that Hughes charged for the hunting expeditions and (2) evidence concerning the statutory amounts by which, under Iowa law, a person convicted of unlawfully taking an animal must " reimburse the state . . . ." See Iowa Code § 481A.130. For his part, Hughes offered evidence that the antlers taken from the deer were worth no more than $125 on the open market, and in some cases were worth only a few dollars.
With respect to the market value of the wildlife, the district court instructed the jury as follows:
In determining the market value of the wildlife, you may, but are not required to, consider:
1) the price the wildlife would bring if sold on the open market between a willing buyer and seller;
2) the price a hunter would pay for the opportunity to participate in a hunt ...