United States v. Bruguier

• Decision Date: 05 November 2013
• Docket Number: No. 11–3634.,11–3634.
• Citation: 735 F.3d 754
• Parties: UNITED STATES of America, Plaintiff–Appellee v. James BRUGUIER, also known as James Bruguier, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

735 F.3d 754

UNITED STATES of America, Plaintiff–Appellee

v.James BRUGUIER, also known as James Bruguier, Jr., Defendant–Appellant.

No. 11–3634.

United States Court of Appeals,

Eighth Circuit.

Submitted: April 12, 2013.

Filed: Nov. 5, 2013.

Timothy J. Langley, FPD, argued, Sioux Falls, SD (Timothy J. Langley, FPD, on the brief), for Appellant.

Kevin Koliner, USA, argued, Sioux Falls, SD (Thomas J. Wright, USA; Brendan V. Johnson, on the brief), for Appellee.

Before RILEY, Chief Judge, BRIGHT, WOLLMAN, LOKEN, MURPHY, BYE, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

SHEPHERD, Circuit Judge.

A jury convicted James Bruguier of sexual abuse, in violation of 18 U.S.C. § 2242(2); burglary, in violation of S.D. Codified Laws § 22–32–1; aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a); and sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a).¹ The districtcourt sentenced him to 360 months imprisonment followed by five years of supervised release. Bruguier challenges only two of his four convictions on appeal. First, he challenges his sexual abuse conviction under section 2242(2), arguing the jury instructions on that offense erroneously omitted a mens rea element and constructively amended the indictment. Second, he challenges his burglary conviction, arguing insufficiency of the evidence. In addition, Bruguier challenges his sentence. We have jurisdiction under 28 U.S.C. § 1291. Because we hold that the jury instructions erroneously omitted a mens rea element, we reverse his sexual abuse conviction under section 2242(2), remand for a new trial on that count, and consequently vacate his sentence. We affirm his burglary conviction.

I.

Bruguier's sexual abuse conviction under section 2242(2) stems from an incident at Crystal Stricker and her boyfriend Mike Miller's home in Lake Andes, South Dakota, on January 10, 2011. Witnesses testified that Stricker and Tracie Thunder Horse, Miller's sister, returned to Stricker's home after a long night of drinking. Miller was asleep in the house, woke up briefly when they returned, and then went back to bed.

Thunder Horse testified that Bruguier arrived at Stricker's home later that night. She said that Bruguier and Stricker spoke in the living room, while she went into the kitchen. Thunder Horse testified that while she was in the kitchen, she heard “a big boom” and turned around to see Stricker lying on the living room floor. Bruguier “was on top of her, pulling her pants down” and “was starting to have sex with her.” Thunder Horse testified that Stricker's eyes were closed, her head was pushed up against the wall, and she was not moving or speaking. Thunder Horse “got scared” and called for Miller, and Bruguier “told [her] to shut up.”

Miller testified that he was in bed when he heard “a big bang in the living room,” followed by Thunder Horse calling his name. He also heard someone say “Shut up.” Miller went to the living room, where he saw Bruguier having sex with Stricker. Miller testified that Stricker was not moving or speaking, that “her head was tilted towards the vent” on the wall, and that “[h]er eyes were open, but they were glossy red.” Miller grabbed Bruguier's shoulder and told him to leave. He noticed that Bruguier's penis was erect and that Stricker had semen between her legs. Miller described Stricker as “laying like she was knocked out” and “in a daze.” Thunder Horse testified that after Miller threw Bruguier out of the house, Miller “went to [Stricker] and started shaking her ... and calling her name, telling her to get up.”

Stricker testified she was so intoxicated that evening that she did not remember returning home. However, she testified that she did remember standing in her living room near the stereo some time after returning home. The next thing she remembered after that was lying in her own bed while Miller told her what had happened with Bruguier. Stricker testified that she felt “dirty” when Miller told her what Bruguier had done and that she never consented to having sex with Bruguier.

Bruguier testified that Stricker kept asking him to dance after he arrived at her house and that they kissed and had consensual sex. He testified that Stricker was conscious, moving, and moaning throughout their sexual encounter and that she never asked him to stop.

Bruguier's burglary conviction stems from an unrelated incident during the summer of 2010. T.S., who was a minor at the time, testified at trial that she was asleep in her Lake Andes home when she heard a noise and awakened to find Bruguier standing in her room. Bruguier asked T.S. why she was dating her boyfriend instead of him. T.S. testified that she told Bruguier to leave, but he hit her on the head and raped her.

Bruguier stipulated that he is an American Indian and that all alleged events occurred in Indian country.

II.

A.

Bruguier first argues that the jury instructions for his sexual abuse conviction under 18 U.S.C. § 2242(2) were erroneous both because they omitted a mens rea element of the offense and because they constructively amended the indictment. Because we find his mens rea argument dispositive, we need not address his constructive amendment argument. “[A]lthough district courts exercise wide discretion in formulating jury instructions, when the refusal of a proffered instruction simultaneously denies a legal defense, the correct standard of review is de novo.” United States v. Young, 613 F.3d 735, 744 (8th Cir.2010) (internal citation omitted). Thus, we review Bruguier's jury instructions de novo, beginning with the language of the statute.

Section 2242 states in pertinent part:

Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly—

...

(2) engages in a sexual act with another person if that other person is—

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.

§ 2242.

Bruguier contends section 2242(2) requires that the defendant have knowledge of the victim's incapacity or inability to consent. To that end, Bruguier proposed a jury instruction that would have required the jury to find not only that he knowingly engaged in a sexual act with Stricker and that Stricker was incapable of consenting, but also “that James Bruguier knew that Crystal Stricker was physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The district court rejected Bruguier's proposed instruction. Instead, the court construed the applicable elements of section 2242(2) as being (1) that “Bruguier did knowingly cause or attempt to cause Crystal Stricker to engage in a sexual act”; (2) “that Crystal Stricker was physically incapable of declining participation in and communicating unwillingness to engage in that sexual act”; (3) that Bruguier is an Indian; and (4) that the offense took place in Indian country.

The issue before us is whether “knowingly” in section 2242(2) requires only that Bruguier knowingly engaged in a sexual act with Stricker, or whether it also requires that Bruguier knew Stricker was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingnessto engage in, that sexual act.” § 2242(2). This is an issue of first impression for this Court.²

“[D]etermining the mental state required for commission of a federal crime requires construction of the statute and ... inference of the intent of Congress.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (internal quotation marks omitted). “The language of the statute [is] the starting place in our inquiry....” Id. The Supreme Court has stated that courts “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Flores–Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009).³ Moreover, “offenses that require no mens rea generally are disfavored, and [the Supreme Court has] suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples, 511 U.S. at 606, 114 S.Ct. 1793 (internal citation omitted). Thus, pursuant to Staples and Flores–Figueroa, there is a presumption that “knowingly” in section 2242(2) applies to the circumstances following the conjunction “if.” Reading section 2242(2) in “the manner in which the courts ordinarily interpret criminal statutes,” Flores–Figueroa, 556 U.S. at 652, 129 S.Ct. 1886, leads to the conclusion that section 2242(2) requires that Bruguier knew Stricker was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act,” § 2242(2).

We find no reason to depart from the ordinary approach that the Supreme Court articulated in Staples and Flores–Figueroa. The Supreme Court has explained that situations where the term “knowingly” does not apply to all elements that follow it “typically involve special contexts or ... background circumstances that call for such a reading.” Flores–Figueroa, 556 U.S. at 652, 129 S.Ct. 1886. Here, however, neither the “context” nor “background circumstances” lead to the conclusion that “knowingly” in section 2242(2) does not apply to the victim's incapacity or inability to consent. In fact, the context and background circumstances further compel the conclusion that “knowingly” does apply to each element.

Section 2242(2) was passed into law as part of the Sexual Abuse Act of 1986 (“the Act”). See Sexual Abuse Act of 1986, Pub.L. No. 99–646, § 87, 100 Stat. 3592, 3620–24 (codified as amended at 18...