                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3039
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Larry Rouillard

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                             Submitted: March 16, 2012
                              Filed: January 24, 2014
                                    [Published]
                                  ____________

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
                              ____________

PER CURIAM.

       Larry Rouillard brings this appeal following his conviction of sexual abuse of
an incapacitated person in violation of 18 U.S.C. § 2242(2) and 18 U.S.C. § 1153.
Rouillard argues the district court erred in refusing to give Rouillard’s proposed jury
instructions and in denying his motion for acquittal based upon the insufficiency of
the evidence to support his conviction. Because this Court, en banc, has recently
clarified the mens rea element of section 2242(2), we reverse and remand to the
district court.1

                                          I.

      Both Rouillard and the alleged victim, Marsha Chapman Reyes, are enrolled
members of the Santee Sioux Nation Indian tribe. The events giving rise to the
charge against Rouillard occurred on the night of May 29, 2010, at the residence of
Reyes’s mother, which is located on the tribe’s reservation in Nebraska.2

      The accounts of Rouillard and Reyes diverge as to what occurred that night.
Reyes testified that, after an evening of drinking with Rouillard, she retired to her
room and awoke the next morning realizing that she had been raped by Rouillard
during the night, while she was unconscious, and that she had no recollection of
having sexual contact with him. On the other hand, Rouillard testified that he
accompanied Reyes to her room where she remained conscious and consented to
sexual contact with him.

      At the conclusion of the evidence, a jury found Rouillard guilty of violating 18
U.S.C. § 2242(2). The trial court denied Rouillard’s motion for a judgment of
acquittal, and Rouillard was sentenced to a term of 30 months imprisonment and five
years of supervised release.




      1
       This case returns to our panel by the en banc court’s withdrawal of its
rehearing order.
      2
      We note that Rouillard stipulated to federal Indian country jurisdiction under
18 U.S.C. § 1153.

                                         -2-
                                          II.

      Because the point is dispositive, we address only Rouillard’s jury instruction
argument applying a de novo standard of review. United States v. Young, 613 F.3d
735, 744 (8th Cir. 2010) (“[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.”
(emphasis omitted) (citation omitted)).

       Rouillard proposed a jury instruction that would have required the jury to find
not only that Rouillard engaged in a sexual act with Reyes while she was incapable
of consenting, but that “[t]he defendant knew that . . . Reyes was incapable of
appraising the nature of the conduct, or that she was physically incapable of declining
participation in, or communicating an unwillingness to engage in, that sexual act.”
The trial court rejected the proposed instruction, finding Rouillard’s knowledge that
Reyes was incapacitated was not an element of the offense.

       Recently, this Court, in United States v. Bruguier, 735 F.3d 754, 760-61 (8th
Cir. 2013) (en banc), explained that the mens rea element under 18 U.S.C. § 2242(2)
requires that the defendant have knowledge not only that he or she is engaging in a
sexual act, but also that the victim is incapacitated. Because Rouillard requested and
was denied such an instruction, we reverse his conviction. We also vacate the district
court’s denial of Rouillard’s motion for acquittal. We remand this matter for further
proceedings.

      The mandate shall issue forthwith.
                    ______________________________




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