                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2217
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Rodney Eugene Hughes

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                              Submitted: April 17, 2015
                                Filed: July 29, 2015
                                  ____________

Before BYE and SMITH, Circuit Judges, and SCHILTZ,1 District Judge.
                              ____________

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.

      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.
§ 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.

                                I. BACKGROUND

       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.




                                         -2-
      Hughes was indicted for 16 counts of violating the Lacey Act.2 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 for the wildlife; or

             3) the State of Iowa’s valuation of the wildlife in state
             prosecutions where such wildlife is unlawfully taken;

      if you find such evidence reasonably establishes a market value for the
      wildlife.

App. 132.


      2
       The indictment included two counts relating to a May 2008 turkey hunt. As
recounted below, the district court later granted Hughes’s motion for acquittal on
those counts.

                                           -3-
       For each count on which the jury convicted Hughes, the jury was given a
special interrogatory to determine the basis on which the jury calculated the market
value of the wildlife. The jury was given the option of checking any or all of the
following: the price the wildlife would bring if sold on the open market by a willing
seller to a willing buyer; the price a hunter would pay for the opportunity to
participate in a hunt for the wildlife; and the State of Iowa’s valuation of the wildlife
in state prosecutions where such wildlife is unlawfully taken.

       At the close of the evidence, the district court granted Hughes’s motion for
acquittal on Counts 9 and 10. The jury convicted Hughes of all remaining counts with
the exception of Count 12. The district court granted Hughes’s post-trial motion for
judgment of acquittal on Counts 1 and 2, leaving Hughes convicted of six counts of
illegally selling wildlife taken in violation of state law and five counts of making or
submitting a false record of wildlife transported in interstate commerce. With respect
to each of the counts of conviction, the jury found that the market value of the wildlife
exceeded $350 based on both (1) the price a hunter would pay for the opportunity to
participate in a hunt for the wildlife and (2) Iowa’s valuation of the wildlife in state
prosecutions where such deer is unlawfully taken. The jury did not base its finding
on the price that the wildlife would fetch on the open market.

      The district court sentenced Hughes to three years’ probation, $7,000 in fines,
and $1,802.50 in restitution. This appeal followed.

                                    II. ANALYSIS

       “We typically review district courts’ rulings concerning contested jury
instructions for an abuse of discretion, and we reverse only when any error was
prejudicial. However, when our review requires statutory interpretation, it is an issue
of law that we consider de novo.” United States v. Petrovic, 701 F.3d 849, 858 (8th
Cir. 2012) (internal quotations, brackets, and citations omitted). “If we conclude that


                                          -4-
the district court’s interpretation of the statute resulted in the omission of a required
element of the offense, we then apply harmless error review.” United States v.
Carlson, 787 F.3d 939, 944-45 (8th Cir. 2015) (citation and quotations omitted).

                                           A.

       Hughes was convicted of violating 16 U.S.C. § 3372(a)(2), which makes it a
crime to sell in interstate commerce any wildlife that was taken in violation of state
law. He was also convicted of violating 16 U.S.C. § 3372(d)(2), which makes it a
crime to make or submit a false record, account, label, or identification of wildlife that
has been or is intended to be transported in interstate commerce. For both crimes, the
distinction between a misdemeanor and a felony rests in part on the market value of
the wildlife. Specifically, 16 U.S.C. § 3373(d)(1)(B) provides for felony-level
penalties for an offender who “knowingly engag[es] in conduct that involves the sale
or purchase of . . . fish or wildlife or plants with a market value in excess of
$350 . . . .” Similarly, 16 U.S.C. § 3373(d)(3)(A)(ii) provides for felony-level
penalties for mislabeling offenses that involve “the sale or purchase, offer of sale or
purchase, or commission of an act with intent to sell or purchase fish or wildlife or
plants with a market value greater than $350 . . . .”

       The Lacey Act does not define “market value.” “When terms used in a statute
are undefined, we give them their ordinary meaning.” Asgrow Seed Co. v.
Winterboer, 513 U.S. 179, 187 (1995). The ordinary meaning of “market value” is
the value set by the market — that is, “[t]he price that a seller is willing to accept and
a buyer is willing to pay on the open market and in an arm’s-length transaction . . . .”
Black’s Law Dictionary 1785 (10th ed. 2014); see also Olson v. United States, 292
U.S. 246, 257 (1934) (defining market value to be “the amount that in all probability
would have been arrived at by fair negotiations between an owner willing to sell and
a purchaser desiring to buy,” taking into account “all considerations that fairly might
be brought forward and reasonably be given substantial weight in such bargaining”);


                                           -5-
Urban Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008)
(“Generally, the fair market value is ‘the price at which property would change hands
in a transaction between a willing buyer and a willing seller, neither being under
compulsion to buy nor to sell and both being informed of all the relevant
circumstances.’”) (quoting Campbell v. Comm’r, 943 F.2d 815, 823 (8th Cir. 1991));
cf. United States v. Butler, 694 F.3d 1177, 1181 (10th Cir. 2012) (“In ordinary usage,
the phrase ‘fair-market retail price’ is most naturally read as the price a willing buyer
would pay to a willing seller for the deer in question.”).

                                           B.

       The government does not appear to disagree with this definition of “market
value.” Instead, the government argues that, to establish that the market value of the
wildlife exceeded $350, all it must do is establish that the price of the guide services
exceeded $350. As the government would have it, the sale of guide services is a sale
that is prohibited under the Act, and a sale of such services for a price in excess of
$350 constitutes a felony under the Act.

      To support its argument, the government cites 16 U.S.C. § 3372(c), which
provides, in relevant part:

             (1) Sale

             It is deemed to be a sale of fish or wildlife in violation of
             this chapter for a person for money or other consideration
             to offer or provide —

                    (A) guiding, outfitting, or other services; or
                    (B) a hunting or fishing license or permit;



                                          -6-
             for the illegal taking, acquiring, receiving, transporting, or
             possessing of fish or wildlife.

      Congress enacted § 3372(c) in response to United States v. Stenberg, 803 F.2d
422 (9th Cir. 1986), in which the Ninth Circuit held that the furnishing of guide
services does not constitute the sale of wildlife within the meaning of the Lacey Act.
See United States v. Atkinson, 966 F.2d 1270, 1273 n.4 (9th Cir. 1992) (“The express
purpose of this amendment was to overturn our holding in Stenberg.”).

        By virtue of § 3372(c), then, the offer or provision of guide services satisfies
the “sale” element of offenses punishable (as either misdemeanors or felonies) under
the Lacey Act. In other words, someone who sells the services of a guide to hunt
wildlife is deemed to be selling the wildlife itself. This is logical; it is reasonable to
consider a portion of the sale price for guide services to be allocated to the wildlife
that is the ultimate object of the hunt. Indeed, the Fifth Circuit interpreted the Lacey
Act in this manner even before Congress amended it. See United States v. Todd, 735
F.2d 146, 152 (5th Cir. 1984) (“A commercial arrangement whereby a professional
guide offers his services to obtain wildlife illegally is an offer to sell wildlife.”).

        This does not mean, however, that the price of the guide services should be
deemed to conclusively establish the market value of the wildlife. Put another way,
it does not make sense to allocate, as a matter of law, one hundred percent of the cost
of the guide services to the wildlife. This case illustrates the point: When a hunter
paid $1,600 to $2,600 to Hughes, the hunter received not just the deer that he or she
killed, but accommodations, meals, hunting stands, field dressing, carcass-cleaning
facilities — and, of course, the services of a professional guide. Clearly, then, the
price of guide services is not the same thing as the market value of wildlife.

      The market value of, say, a whitetail deer with a Boone and Crockett Club score
of 160 is the price that a willing buyer would pay to a willing seller for that deer on


                                           -7-
the open market. That is true whether the deer was killed by a hunter without the help
of a guide, or by a hunter who paid a guide $200 to meet him in a nearby field, or by
a hunter who paid a guide $5000 to provide air transportation to the site of the hunt,
luxury accommodations, gourmet meals, taxidermy services, and other amenities.
Equating the market value of the deer to the price of any guide services would mean
that two defendants who sold deer with identical market values would be treated
differently — one convicted of a felony, the other of a misdemeanor — based not on
the market value of the wildlife, but based on the price of such things as meals and
accommodations.

       Such a result is at odds with the plain language of the statute. The language of
the Lacey Act is clear: a violation is a felony only if the market value of the “fish or
wildlife or plants” exceeds $350. The sale element on which the government relies
is entirely separate from the market-value element that distinguishes felonies from
misdemeanors. The fact that the sale element is satisfied because guide services were
sold does not mean that the market-value element is satisfied.

       “Especially in the interpretation of a criminal statute subject to the rule of
lenity, we cannot give the text a meaning that is different from its ordinary, accepted
meaning, and that disfavors the defendant.” Burrage v. United States, 134 S. Ct. 881,
891 (2014) (internal citation omitted). For that reason, we cannot agree with the
government that selling guide services for more than $350 automatically constitutes
a felony under the Lacey Act.

      Although our holding finds some support in the reasoning of the Tenth Circuit’s
Butler decision, see 694 F.3d at 1180-83, we recognize that cases from the Fifth
Circuit and the Ninth Circuit can be read to support the government’s position, see
United States v. Todd, 735 F.2d 146 (5th Cir. 1984); United States v. Atkinson, 966
F.2d 1270 (9th Cir. 1992). To the extent that these cases hold that a price of guide
services in excess of $350 conclusively establishes a felony violation, we respectfully


                                          -8-
disagree. Our disagreement with these cases may be more apparent than real,
however. As discussed below, we believe that, in determining the market value of
wildlife, the jury may consider evidence of the price of guide services. We agree with
the Fifth and Ninth Circuits that evidence of the price of guide services is relevant to
the market value of the wildlife; we simply do not agree that it is always the same as
the market value of the wildlife (or, for that matter, that it is always the “best
indication of the value of the game,” Todd, 735 F.2d at 152 (emphasis added)).

                                           C.

       The instructions given to the jurors who convicted Hughes should have told
them that the market value of the wildlife was the price that the wildlife would bring
on the open market if sold by a willing seller to a willing buyer. Instead, the district
court instructed the jury that, “[i]n determining the market value of the wildlife, you
may, but are not required to, consider . . . the price the wildlife would bring if sold on
the open market between a willing buyer and seller . . . .” In other words, the jurors
were instructed that, in determining the market value of the wildlife, the jury was “not
required to consider” the market value of the wildlife. This was error.

        The instructions were flawed in another respect. The instructions told the jurors
that, in determining the market value of the wildlife, they could consider three things:
(1) the market value of the wildlife; (2) the price that a hunter would pay for the
opportunity to participate in a hunt for the wildlife; and (3) Iowa’s valuation of the
wildlife under Iowa Code § 481A.130. All three of these options were presented as
equally valid measures of market value. The instructions did not explain to the jury
that its ultimate task was to determine market value as that term is commonly
understood — namely, as the price that a willing buyer would pay to a willing seller
in an arm’s-length transaction. Instead, the instructions permitted the jury to convict
Hughes of a felony even if the jury found that the market value of the wildlife did not
exceed $350, as long as the jury found that the price of the hunt or the amount


                                           -9-
specified under Iowa Code § 481A.130 exceeded $350. While these latter amounts
may be relevant to determining market value, they are not themselves market value.
The district court erred in failing to provide a definition of market value and in
permitting the jury to treat the price of the guide services and the valuation of the
wildlife under Iowa law as substitutes for market value.

       To be clear, we do not agree with Hughes that the jury should not have been
allowed even to consider the price of the guide services or the valuation of the wildlife
under Iowa law. Whether the market value of the wildlife exceeded $350 is a question
of fact. United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir. 1992); cf. United
States v. Oehlenschlager, 76 F.3d 227, 229 (8th Cir. 1996) (the “market value” of
wildlife under § 2Q2.1 of the Guidelines is a question of fact). The Federal Rules of
Evidence set an extremely low threshold in defining what evidence is relevant to a
question of fact: “Evidence is relevant if . . . it has any tendency to make a fact more
or less probable than it would be without the evidence . . . .” Fed. R. Evid. 401(a).
We believe that, at least in mine-run cases, the price of guide services to harvest a
particular type of wildlife will be relevant to the market value of that wildlife.
Common sense and experience tell us that, the more valuable the wildlife, the higher
the price a buyer would likely be willing to pay for the guide services necessary to
obtain it. While it was error to permit the jury to treat the price of the hunt as the same
as the market value of the wildlife, it would not be error to permit a properly
instructed jury to consider evidence of the price of the hunt in determining the market
value of the wildlife.

       Whether the jury should have been allowed to consider the valuation of the
wildlife under Iowa law is a closer question. The government does not seem to
seriously dispute that the (static) amounts set by Iowa Code § 481A.130 have, at best,
only an attenuated connection to (fluid) market values. But, at least on this record, we
are not prepared to hold that statutory valuations have no connection to market values,



                                           -10-
and thus we think it is within the province of the jury to determine how much weight,
if any, to give statutory valuations such as those found in Iowa Code § 481A.130.3

        In this case, though, the jury was not properly instructed as to the meaning of
“market value,” and we cannot say that the error was harmless. Cf. United States v.
Cacioppo, 460 F.3d 1012, 1025 (8th Cir. 2006) (“Any misinstruction may be harmless
if the evidence of guilt is overwhelming.”). Hughes presented (largely uncontested)
evidence that the market value of the antlers taken from each of the deer was far less
than $350, and he also presented evidence that the amounts set forth in Iowa Code
§ 481A.130 do not reflect market value. A jury that was properly instructed as to the
meaning of “market value” may very well have acquitted Hughes of the felony
charges based on this evidence. But because the jury was entitled to consider the
government’s evidence regarding the price of the guide services and the valuation of
the wildlife under Iowa law, it is also possible that a properly instructed jury might
have found that the market value of the wildlife exceeded $350. For that reason, we
cannot remand for entry of judgment on the lesser-included misdemeanors, as Hughes
requests. Instead, we vacate and remand for retrial.

                                      *    *     *

       We vacate Hughes’s felony convictions and sentences and remand to the district
court for a new trial.




      3
       This would especially be true in cases in which direct evidence of the market
value of a particular type of wildlife is lacking because there is no market for that
wildlife (perhaps because it is unlawful to buy or sell that wildlife).


                                          -11-
BYE, Circuit Judge, dissenting.

       I do not believe the district court erroneously instructed the jury when it
allowed them to consider the price a hunter would pay for the opportunity to
participate in a wildlife hunt when determining whether Hughes's Lacey Act violations
were felonies (in excess of $350). As a result, I would affirm Hughes's convictions
and sentence. I therefore respectfully dissent from the decision to vacate the
convictions and reverse and remand for a new trial.

       The Court's primary rationale for reversing the district court is the proposition
that the "sale element" of the Lacey Act "is entirely separate from the market-value
element that distinguishes felonies from misdemeanors." Ante at 8. I respectfully
disagree. The Lacey Act unambiguously states that a person engages in the "sale of
fish or wildlife" whenever, for money or other consideration, the person "offer[s] or
provide[s] . . . guiding, outfitting, or other services" for the purpose of the illegal
taking of wildlife. 16 U.S.C. § 3372(c)(1). That is, the act of guiding or outfitting an
illegal hunt is synonymous with the "sale of fish or wildlife." By defining a "sale of
fish or wildlife" in this broad manner, Congress necessarily intended the price of the
guiding or outfitting services to be considered when determining whether the sale of
the fish or wildlife had a market value in excess of $350. Consequently, I do not
believe there is a distinction between the so-called "market value" and "sale" elements
of the statute.

       The propriety of the district court's instruction, which allowed the jury to
consider the market value of the hunt, is shown by substituting § 3372(c)(1)'s
expanded definition of a "sale of fish or wildlife" into the Lacey Act's relevant
criminal penalty provision under § 3373(d)(1)(B).             As the Court notes,
§ 3373(d)(1)(B) in relevant part provides for felony-level penalties when an offender
"knowingly engag[es] in conduct that involves the sale . . . of . . . fish or wildlife . . .
with a market value in excess of $350." Because § 3372(c)(1) specifically deems the


                                           -12-
act of providing or offering guiding, outfitting, or other services to be a "sale of fish
or wildlife," § 3373(d)(1)(B) must be read as triggering felony-level penalties
whenever an offender "knowingly engag[es] in conduct that involves the [offering or
provision of guiding, outfitting, or other services] with a market value in excess of
$350."

       The illustration used by the Court to suggest the price of guide services is not
the same thing as the market value of wildlife, see ante at 8, is inconsistent with the
statute. As the Court notes, the amendment found at § 3372(c)(1) was in direct
response to a Ninth Circuit decision which held the offering of guiding or outfitting
services did not constitute a sale of wildlife under the Lacey Act. See United States
v. Stenberg, 803 F.2d 422, 437 (9th Cir. 1986). By making the offering of guide
services synonymous with the sale of wildlife, Congress specifically intended the
market value of the guide services to be synonymous with the market value of the
wildlife.

        The difference between my interpretation of the statute and the Court's becomes
transparent by considering this example. Suppose the hunters to whom Hughes had
offered or provided guiding, outfitting, or other services had been unsuccessful in
bagging a deer. In that case there would be no market value of a particular deer for
the jury to consider, only the price of the unlawful hunt. Hughes would nevertheless
still be guilty of violating the Lacey Act because "[i]t is deemed to be a sale of fish or
wildlife in violation of this chapter for a person for money or other consideration to
offer or provide . . . guiding, outfitting, or other services." 16 U.S.C. § 3372(c)(1).
And Hughes would be guilty of a felony level violation of the Lacey Act so long as
that specific type of prohibited sale of fish or wildlife had "a market value in excess
of $350." 16 U.S.C. § 3373(d)(1)(B).

      For the foregoing reasons, I respectfully dissent.
                      ______________________________


                                          -13-
