                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3634
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                           James Bruguier, also known
                              as James Bruguier, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                          ___________________________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                             Submitted: April 12, 2013
                             Filed: November 5, 2013
                                  ____________

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 district court 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

      1
       All of these offenses are covered by 18 U.S.C. § 1153 as offenses committed
within Indian country. The term “sexual act” for purposes of these convictions is
defined in 18 U.S.C. § 2246(2).


                                         -2-
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



                                         -3-
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—

      ...



                                          -4-
      (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




                                         -5-
unwillingness to 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 (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 (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 (internal citation omitted). Thus, pursuant to Staples and Flores-
Figueroa, there is a presumption that “knowingly” in section 2242(2) applies to the


      2
        In United States v. Betone, 636 F.3d 384 (8th Cir. 2011), we addressed a
sufficiency of the evidence challenge under section 2242(2). Pointing to the male
victim’s testimony that the defendant began fellating him while he was asleep, we
concluded that the victim’s “testimony alone establishe[d] the elements of § 2242(2).”
Id. at 387. We noted that “[o]nly [the defendant] testified that [the victim] was awake
when oral sex began” and that “the jury evidently credited [the victim] over [the
defendant].” Id. Thus, while the Betone court found the evidence sufficient to
support all elements of a section 2242(2) conviction, it did not address the more
discrete legal issue that Bruguier raises: whether “knowingly” in section 2242(2)
requires a defendant to have knowledge of a victim’s incapacity or inability to grant
consent.
      3
        Flores-Figueroa relied heavily on the Supreme Court’s earlier decisions in
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) and Liparota v. United
States, 471 U.S. 419 (1985). See Flores-Figueroa, 556 U.S. at 652-53. X-Citement
Video involved a statute that, like section 2242(2), had a dash between the term
“knowingly” and some of the other elements. See X-Citement Video, 513 U.S. at 68.

                                         -6-
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, 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. 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 U.S.C. § 2241-44, 2246). In addition to section
2242(2), the Act included two other statutes that use the term “knowingly” and then
specify circumstances under which it would be illegal for a defendant to “engage[]
in a sexual act.”4 See 100 Stat. 3620-21. The first statute, codified at 18 U.S.C.
§ 2241(c), makes it illegal for a defendant to “knowingly engage[] in a sexual act with
another person who has not attained the age of 12 years.” The second statute,
codified at 18 U.S.C. § 2243(a), specifies:


      4
       Congress has since amended the three statutes in ways not relevant to this
case. See, e.g., Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, §§ 205-07, 120 Stat. 587, 613-15 (increasing penalties under each statute).

                                          -7-
      (a) Of a minor.—Whoever, in the special maritime and territorial
      jurisdiction of the United States . . . knowingly engages in a sexual act
      with another person who—

             (1) has attained the age of 12 years but has not attained the age of
             16 years; and

             (2) is at least four years younger than the person so engaging;

      or attempts to do so, shall be fined under this title, imprisoned not more
      than 15 years, or both.

       A side-by-side comparison of sections 2241(c), 2242(2), and 2243(a) illustrates
the similarity between these three statutes and their comparable linguistic structure:

§ 2241(c)                    § 2242(2)                    § 2243(a)
 Whoever, in the special maritime and territorial jurisdiction of the United States
                                          ...
knowingly                    knowingly— . . .             knowingly
                     engages in a sexual act with another person
who has not attained the if that other person is—         who—
age of 12 years . . .
                             (A) incapable of             (1) has attained the age of
                             appraising the nature of     12 years but has not
                             the conduct; or              attained the age of 16
                                                          years; and
                             (B) physically incapable
                             of declining participation (2) is at least four years
                             in, or communicating         younger than the person
                             unwillingness to engage      so engaging;
                             in, that sexual act;
        or attempts to do so, shall be [subject to differing punishments].

§ 2241(c); § 2242(2); § 2243(a).



                                          -8-
       Significantly, both section 2241 and section 2243 include provisions that
explicitly narrow the mens rea requirement. Section 2241 specifies that “the
Government need not prove that the defendant knew that the other person engaging
in the sexual act had not attained the age of 12 years.” § 2241(d). Section 2243
provides:

      (d) State of Mind Proof Requirement.—In a prosecution under
      subsection (a) of this section, the Government need not prove that the
      defendant knew—

             (1) the age of the other person engaging in the sexual act; or

             (2) that the requisite age difference existed between the persons
             so engaging.

§ 2243(d). Section 2242, however, contains no affirmative language relieving the
government of its burden to prove the defendant’s knowledge. See § 2242.

       The Supreme Court has recognized a general rule of statutory construction that
“[w]here Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” Rodriguez v.
United States, 480 U.S. 522, 525 (1987) (internal quotation and alteration marks
omitted). Here, all three statutes included in the same Act make it illegal for a
defendant to “knowingly” engage in certain “sexual act[s].” Sections 2241 and 2243
explicitly limit the application of “knowingly,” while section 2242 does not. Thus,
reading section 2242(2) in the broader context of the Act, and applying Rodriguez’s
presumption that “disparate inclusion or exclusion” of statutory language is
intentional, Rodriguez, 480 U.S. at 525, reinforces the conclusion that “knowingly”




                                         -9-
in section 2242(2) applies to the victim-incapacity element of the offense.5 See also
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717-18 (2010) (rejecting
interpretation of statute as “untenable in light of the sections immediately
surrounding” it because “Congress did not import the intent language of those
provisions” into the statute at issue); Hui v. Castaneda, 559 U.S. 799, 807 (2010)
(noting that “explicit exception” in one statute was “powerful evidence” that similar
statutes did not “imply such an exception”); Northcross v. Bd. of Educ., 412 U.S. 427,
428 (1973) (noting that “similarity of language” in two different statutes was “strong
indication that the two statutes should be interpreted” the same).

       Moreover, interpreting the knowledge requirement in section 2242(2) to extend
only to knowledge of the sexual act would raise interpretive concerns with sections
2241 and 2243. As discussed above, Rodriguez instructs that sections 2241(c),
2242(2), and 2243(a) should be read together. If section 2242(2)’s knowledge
requirement were construed to apply only to knowledge of the sexual act, then this
same construction logically should apply to the knowledge requirement in sections
2241(c) and 2243(a). Doing so, however, would render superfluous sections 2241(d)
and 2243(d), both of which explicitly narrow the respective statutes’ knowledge
requirements. This would run afoul of “the cardinal principle of statutory
construction that it is our duty to give effect, if possible, to every clause and word of
a statute.” Bennett v. Spear, 520 U.S. 154, 173 (1997) (internal quotation and
alteration marks omitted); cf. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 58 (2007)
(recognizing “the interpretive assumption that Congress knows how we construe
statutes and expects us to run true to form”); Albernaz v. United States, 450 U.S. 333,

      5
        It is true that section 2243 creates an affirmative defense for a defendant who
“reasonably believed that the other person had attained the age of 16 years,” while
section 2242(2) does not mention affirmative defenses. Compare § 2243(c), with
§ 2242(2). We do not find this distinction significant, however, in light of the fact
that section 2241 does not mention affirmative defenses but still explicitly limits the
mens rea requirement. See § 2241.

                                          -10-
341 (1981) (“Congress is predominately a lawyer’s body, and it is appropriate for us
to assume that our elected representatives know the law.” (internal quotation marks,
alteration marks, and citations omitted)).

       In summary, Staples and Flores-Figueroa create a presumption that
“knowingly” in section 2242(2) requires a defendant to know the victim 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). See Flores-Figueroa, 556 U.S. at 652; Staples, 511 U.S. at 606.
Flores-Figueroa instructs that this presumption can be rebutted where the “context”
or “background circumstances” of a statute lead to a different reading. See Flores-
Figueroa, 556 U.S. at 652. Here, however, looking at the broader statutory context
reinforces this presumption. Sections 2241 and 2243, passed into law as part of the
same Act, include provisions explicitly limiting those statutes’ mens rea
requirements, and we presume that Congress intentionally omitted similar limiting
language from section 2242. See Humanitarian Law Project, 130 S. Ct. at 2717-18;
Hui, 559 U.S. at 807; Rodriguez, 480 U.S. at 525. Moreover, adopting a narrower
construction of the knowledge requirement in section 2242(2) would create
interpretative problems with sections 2241 and 2243, since it would render
superfluous the provisions of those two statutes that place limits on the reach of
“knowingly.” See Bennett, 520 U.S. at 173. Thus, looking at the language of the
statute and applying settled rules of statutory construction compels the conclusion
that “knowingly” in section 2242(2) applies to each element of the offense.

       Although the above analysis conclusively resolves the question before us, we
note that other rules of statutory construction would lead to the same conclusion. It
is a “familiar principle that ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.” Skilling v. United States, 130 S. Ct. 2896,
2932 (2010) (internal quotation marks omitted). Moreover, the Supreme Court has
stated that “where, as here, dispensing with mens rea would require the defendant to

                                        -11-
have knowledge only of traditionally lawful conduct, a severe penalty is a further
factor tending to suggest that Congress did not intend to eliminate a mens rea
requirement.” Staples, 511 U.S. at 618-19. Knowingly “engag[ing] in a sexual act
with another person,” § 2242(2), is not inherently criminal under federal law, barring
some other attendant circumstance. Defendants convicted under section 2242(2) are
subject to “imprison[ment] for any term of years or for life.” Id. Thus, even if the
rules of statutory construction discussed above left any doubt about the reach of
“knowingly” in section 2242(2), the rule of lenity and the potentially harsh penalty
of life imprisonment would tip the balance in favor of construing “knowingly” to
apply to the victim-incapacity element of the statute.

       Furthermore, while we do not base our conclusion regarding the statute’s
construction on legislative history, we note that the legislative history also leads to
the same construction. The House Report issued by the Judiciary Committee stated
that the purpose of the Sexual Abuse Act of 1986 was to “modernize and reform
Federal rape statutes.” H.R. Rep. No. 99-594, at 6 (1986). In discussing the
provisions of sections 2241 and 2243 that explicitly limit those sections’ knowledge
requirements, the House Report states that without these provisions, “the government
would have had to prove that the defendant knew that a victim was less than 12 years
old, since the state of mind required for the conduct—knowing—is also required for
the circumstance of the victim’s age.” Id. at 15 n.59 (discussing knowledge
requirement in section 2241); see also id. at 18 n.69 (discussing knowledge
requirement in section 2243 and referencing footnote 59). The House Report shows
that Congress understood the knowledge requirement in sections 2241 and 2243 to
attach, absent a limiting provision, to the circumstance of the victim’s age. Notably,
although Congress drafted the statutes “broadly to cover the widest possible variety
of sexual abuse,” id. at 12, Congress did not mention that it intended to make section
2242(2) a strict liability crime, nor did it draft provisions limiting the reach of
“knowingly” in section 2242(2). In short, the legislative history shows that Congress



                                         -12-
understood the knowledge requirement in section 2242(2) to attach to the victim’s
incapacity or inability to consent.

       The dissent objects to this opinion on three principal grounds: its take on the
best grammatical reading of section 2242(2); its view of public policy; and the novel
assertion that cases in which the issue before us was not raised, argued, discussed, or
decided should inform our analysis. None of these bases withstand fair examination.

        First, the dissent offers its own reading of section 2242(2) and concludes that
under the structure of the statute “‘knowingly’ belongs to and modifies [only] the
words ‘engages’ and ‘attempts.’” See post at 37. This analysis begins with error
because the dissent fails to acknowledge the Supreme Court’s most recent articulation
of the relevant rules of statutory construction in Flores-Figueroa which requires us
to presume that the mens rea that introduces the elements of a crime applies to each
element. See Flores-Figueroa, 556 U.S. at 652; id. at 660 (Alito, J., concurring) (“I
think it is fair to begin with a general presumption that the specified mens rea applies
to all the elements of an offense, but it must be recognized that there are instances in
which context may well rebut that presumption.”). Furthermore, instead of
interpreting the statutory text in the manner prescribed by the Supreme Court, the
dissent misreads the majority’s opinion as “add[ing] an element of the offense that is
not indicated by the congressional text.” See post at 38. This is simply not the case.
We are not adding a mens rea requirement where one is not found; rather we are
following the instruction of the Supreme Court and presuming the mens rea
requirement found in the congressional text “appl[ies] . . . to each element” that
follows because that presumption is not rebutted. See Flores-Figueroa, 556 U.S. at
652.

       The dissent further argues that this opinion is “inconsistent with the policies
identified in the principal legislative report concerning the Sexual Abuse Act of
1986.” See post at 45. Specifically, the dissent focuses on studies discussing the

                                         -13-
frequency of sexual abuse suffered by Native American women and on the number
of cases this court and district courts in this circuit have addressed under section
2242(2). No one could be unsympathetic to the circumstances addressed in the
legislative report or in individual prosecutions. However, individual public policy
judgments are no substitute for the rule of law and the statutory language that, under
the directions of Flores-Figueroa and Staples, mandate us to presume the knowledge
mens rea applies to all of the elements of section 2242(2). See Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (holding when “the
intent of Congress is clear [from the statutory text], that is the end of the matter”).

       Third, the dissent refers to unidentified district court cases along with selected
appeals to our court involving defendants accused of violating section 2242(2) as
supporting “a longstanding assumption” and an “accepted understanding” that the
knowledge requirement of section 2242(2) does not apply to the victim’s incapacity.
As acknowledged by the dissent, however, the issue before us was not argued or
decided in these cases, and thus, it is axiomatic that they provide absolutely no
support for the dissent’s position. See United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 37-38 (1952) (stating that a prior decision’s implicit resolution of an
issue that was not “raised in briefs or argument nor discussed in the opinion of the
Court” is “not a binding precedent”); Webster v. Fall, 266 U.S. 507, 511 (1925)
(“Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.”); Streu v. Dormire, 557 F.3d 960, 964 (8th Cir. 2009) (“[W]e
are generally not bound by a prior panel’s implicit resolution of an issue that was
neither raised by the parties nor discussed by the panel.”).

      Finally, we recognize that “sex crimes committed against the vulnerable, such
as an unconscious or intoxicated individual, are particularly egregious and
dehumanizing.” United States v. Riley, 183 F.3d 1155, 1160 (9th Cir. 1999). The
harm experienced by victims is not alleviated where assailants are acquitted based on

                                          -14-
claims that they did not know the victims were incapacitated. However, “the
presumption in favor of a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U.S.
at 72. Furthermore, reading section 2242(2) in the broader context of the Sexual
Abuse Act of 1986 reinforces this presumption and compels the conclusion that
section 2242(2) requires the government to prove that a defendant not only knew he
or she was “engag[ing] in a sexual act with another person,” but also that the
defendant knew the other person 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). Even if we harbored doubt
about this construction due to the egregious nature of sexual abuse crimes, which we
do not, the rule of lenity, the harsh penalties associated with the offense, and the
legislative history would all tip the balance in favor of this construction.

      Thus, upon de novo review, we conclude that the district court’s failure to give
Bruguier’s instruction deprived him of his defense that he did not know Stricker was
incapacitated or otherwise unable to deny consent. Consequently, we reverse his
conviction under section 2242(2) and remand for a new trial on this count.

                                         B.

       Bruguier next argues the evidence was insufficient to convict him of burglary
under S.D. Codified Laws § 22-32-1. He preserved this issue by moving for a
judgment of acquittal. See United States v. May, 476 F.3d 638, 640 (8th Cir. 2007).
Thus, “[w]e review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Gray, 700 F.3d 377, 378 (8th Cir. 2012) (internal quotation marks omitted). “We
reverse only if no reasonable jury could have found guilt beyond a reasonable doubt.”
Id. (internal quotation marks omitted).

                                        -15-
       The only argument Bruguier advances concerning his burglary conviction is
that the evidence was insufficient to prove he entered or remained in T.S.’s home with
the specific intent to commit sexual assault. See § 22-32-1 (establishing elements of
first degree burglary). He asserts that the evidence, at best, showed he acted on
impulse when he assaulted T.S., not that he ever formed the specific intent to rape
her. However, T.S. testified that Bruguier entered her room while she was sleeping,
asked her why she was dating her boyfriend instead of him, and then hit her on the
head before raping her. Viewed in the light most favorable to the government, this
evidence certainly was sufficient for a reasonable jury to infer that Bruguier entered
or remained in T.S.’s home with the specific intent to commit sexual assault. See
State v. Martin, 493 N.W.2d 223, 228-29 (S.D. 1992) (upholding jury’s factual
determination that defendant possessed specific intent to support burglary
conviction). Thus, we affirm Bruguier’s burglary conviction.

                                         C.

       Bruguier lastly challenges his sentence, arguing the district court incorrectly
calculated his sentencing guideline range. We need not reach his sentencing
arguments, however. Because the district court based its sentencing package on all
four of Bruguier’s convictions, one of which we are reversing, we vacate his sentence
and remand for re-sentencing. Cf. United States v. Evans, 314 F.3d 329, 332 (8th Cir.
2002) (“Under the Guidelines, a multi-count sentence is a package and severing part
of the total sentence usually will unbundle it.” (internal quotation marks omitted)).

                                         III.

      Accordingly, we reverse Bruguier’s conviction for sexual abuse under section
2242(2) and remand for a new trial on that count. We consequently vacate his
sentence and remand for re-sentencing. We affirm his burglary conviction.



                                        -16-
RILEY, Chief Judge, with whom BRIGHT, Circuit Judge, joins, concurring.

        Although the circumstances for the victim are tragic and evoke sympathy, I
must follow the law. Thus, I concur completely in the court’s opinion. I write
separately to emphasize my view that the statute is not ambiguous, and, to the extent
it is relevant, the legislative history decisively demonstrates the government was
required to prove Bruguier knew the victim was “(A) incapable of appraising the
nature of the conduct; or (B) physically incapable of declining participation in, or
communicating unwillingness to engage in, th[e] sexual act.” 18 U.S.C. § 2242(2).

A.     Statutory Language
       This case hinges on routine statutory construction.6 “As in all such cases, we
begin by analyzing the statutory language.” Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, ___, 130 S. Ct. 2149, 2156 (2010). “If the statute is clear and
unambiguous ‘that is the end of the matter, for the court . . . must give effect to the
unambiguously expressed intent of Congress.’” Bd. of Governors of Fed. Reserve
Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368 (1986) (quoting Chevron U.S.A. Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). Because “statutory
language must always be read in its proper context,” McCarthy v. Bronson, 500 U.S.
136, 139 (1991), whether a statute is unambiguous depends not only on “the
particular statutory language at issue,” but also on “the language and design of the
statute as a whole,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see also
Crandon v. United States, 494 U.S. 152, 158 (1990). A contextual reading of the



      6
        As Judge Richard S. Arnold said in his elegantly straightforward way, we
judges are not empowered to “make law because we think a certain rule of law is a
good thing.” Richard S. Arnold, Address at the Eighth Circuit Judicial Conference:
The Art of Judging (Aug. 8, 2002), available at http://www.youtube.com/watch?v=
Z_XO4FadiiE. Judges must not “usurp policy judgments that Congress has reserved
for itself,” Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 508 (1982).

                                         -17-
“statute as a whole” demonstrates the knowledge requirement in § 2242(2)
unambiguously applies to the circumstance of the victim’s incapacity.

      1.    The Act
      Congress passed § 2242(2) as part of the Sexual Abuse Act of 1986 (Act), Pub.
L. No. 99–646, § 87, 100 Stat. 3592, 3620 (1986) (codified as amended at 18 U.S.C.
§§ 2241-44, 2246). The Act added three parallel sections to Title 18: § 2241
(aggravated sexual abuse), § 2242 (sexual abuse), and § 2243 (sexual abuse of a
minor or ward). See § 87, 100 Stat. at 3620-22. The court’s majority opinion
demonstrates that these three sections share the same linguistic design.

       Given the three sections’ shared language and structure, the term
“knowingly”—absent limiting language—must have the same basic reach in
§ 2242(2) as it does in the two sections that bookend it. See, e.g., Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2529 (2013) (“Just as
Congress’ choice of words is presumed to be deliberate, so too are its structural
choices.”); Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (“The interrelationship and
close proximity of these provisions of the statute presents a classic case for
application of the normal rule of statutory construction that identical words used in
different parts of the same act are intended to have the same meaning.” (internal
quotation omitted));7 cf. Clark v. Martinez, 543 U.S. 371, 386 (2005) (refusing to
“establish within our jurisprudence . . . the dangerous principle that judges can give
the same statutory text different meanings in different cases”).




      7
       This intratextual method of construction dates back to two of the Supreme
Court’s earliest and most celebrated cases. See Akhil Reed Amar, Intratextualism,
112 Harv. L. Rev. 747, 755-63 (1999) (analyzing the use of intratextualism by Chief
Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) and
Justice Story in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)).

                                        -18-
       Statutory context also compels the conclusion that the term “knowingly,”
absent specific limiting language, applies not only to the conduct element of each of
the three crimes (i.e., “engag[ing] in a sexual act with another person”), but to the
circumstances subsequently listed in each section: the other person’s age in § 2241(c),
incapacity in § 2242(2), and age plus age difference in § 2243(a). Congress
expressed this point unequivocally by adding specific limiting language to § 2241 and
§ 2243, but not to § 2242. See, e.g., Lindh v. Murphy, 521 U.S. 320, 330 (1997)
(“[N]egative implications raised by disparate provisions are strongest when the
portions of a statute treated differently . . . were being considered simultaneously
when the language raising the implication was inserted.”).

       To § 2241, Congress added an affirmative statement that engaging in a sexual
act with a child under the age of 12 is a strict liability crime:

      (d) State of Mind Proof Requirement.—
      In a prosecution under subsection (c) of this section, the Government
      need not prove that the defendant knew that the other person engaging
      in the sexual act had not attained the age of 12 years.

§ 87, 100 Stat. at 3621 (codified at 18 U.S.C. § 2241(d)) (emphasis added).

       In § 2243, Congress affirmatively relieved the government of the burden of
proving the defendant’s knowledge of the other person’s age and age difference while
creating an affirmative defense available to a defendant who reasonably believed the
other person was old enough:

      (c) Defenses.—(1) In a prosecution under subsection (a) of this section,
      it is a defense, which the defendant must establish by a preponderance
      of the evidence, that the defendant reasonably believed that the other
      person had attained the age of 16 years.
              ....



                                         -19-
      (d) State of Mind Proof Requirement.—In a prosecution under
      subsection (a) of this section, the Government need not prove that the
      defendant knew—
            (1) the age of the other person engaging in the sexual act; or
            (2) that the requisite age difference existed between the persons
            so engaging.

§ 87, 100 Stat. at 3621-22 (codified at 18 U.S.C. § 2243(c)-(d)) (emphasis added).

       Yet Congress added no affirmative language to relieve the government of its
burden to prove the defendant’s knowledge in § 2242(2). Given “[t]he
interrelationship and close proximity of these provisions of the statute,” Lundy, 516
U.S. at 250, the absence of any language limiting the reach of the term “knowingly”
in § 2242(2) makes the text unmistakably clear: § 2242(2) is not a strict liability
crime. See, e.g., Field v. Mans, 516 U.S. 59, 75 (1997) (“The more apparently
deliberate the contrast, the stronger the inference, as applied, for example, to
contrasting statutory sections originally enacted simultaneously in relevant
respects.”). “Nothing, indeed, but a different intent explains the different treatment”
of § 2242(2) and §§ 2241 and 2243. Lindh, 521 U.S. at 329.

       2.     Congressional Intent
       The “immediately surrounding” sections show that if Congress intended to
make § 2242(2) a strict liability crime, Congress knew exactly how to do so. Holder
v. Humanitarian Law Project, 561 U.S. ___, ___, 130 S. Ct. 2705, 2717 (2010); see,
e.g., Medellín v. Texas, 552 U.S. 491, 522 (2008) (“Such language demonstrates that
Congress knows how to [achieve a particular result] when it desires such a result.”);
Jama v. ICE, 543 U.S. 335, 341 (2005); Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 484 U.S. 49, 57 (1987) (“Congress has demonstrated in yet other
statutory provisions that it knows how to avoid [a result] by using language that
explicitly [requires a different result].”).



                                         -20-
       Elsewhere in the same statute at issue here, Congress affirmatively created a
strict liability crime—§ 2241(c)—and a quasi-strict liability crime—§ 2243(a).
Sections 2241(d) and 2243(d) lead to the inescapable conclusion that “Congress
kn[ew] how to say [‘strict liability’] when it mean[t] to,” City of Milwaukee v. Illinois
& Michigan, 451 U.S. 304, 329 n.22 (1981), and Congress did not mean to say so in
§ 2242(2).

        It is inconceivable that Congress meant to create a strict liability crime by
omission in one section of a statute when Congress affirmatively created strict
liability crimes by inclusion in the immediately preceding and immediately following
sections of the same statute. “If Congress had desired to make” § 2242(2) a strict
liability crime, “it could have used language similar to that which it invoked in”
§ 2241(d). Nassar, 570 U.S. at ___, 133 S. Ct. at 2529. “Or, it could have inserted”
provisions similar to § 2243(c) and (d) to make § 2242(2) a quasi-strict liability
crime. Id. “But in writing” § 2242(2), “Congress did neither of those things, and
‘[w]e must give effect to Congress’ choice.’” Id. (alteration in original) (quoting
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 n.3 (2009)).

       3.    Statutory Background
       Looming large over Congress’ drafting of the Act was the Supreme Court’s
“landmark opinion in Morissette v. United States, 342 U.S. 246 (1952),” in which
“the Court used the background presumption of evil intent to conclude that the term
‘knowingly’” applied well beyond its “isolated position” in the statute at issue.
United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). Just eighteen
months before Congress passed the Act, the Supreme Court in Liparota v. United
States, 471 U.S. 419 (1985), reminded Congress of Morissette’s “background
presumption.” There, the Supreme Court considered whether the term “knowingly”
applied to the phrase “in any manner not authorized by [the statute]” in a federal food
stamp statute making it a crime to “knowingly use[], transfer[], acquire[], alter[], or
possess[] coupons or authorization cards in any manner not authorized by [the

                                          -21-
statute] or the regulations.” Id. at 420-21 (emphasis added) (last alteration in
original) (quotation omitted). “The Court held that it did, despite the legal cliche
‘ignorance of the law is no excuse.’” Flores-Figueroa v. United States, 556 U.S. 646,
652 (2009) (citing Liparota, 471 U.S. at 433).

       Legislating amid this backdrop, Congress obviously knew that to make
§ 2242(2) a strict liability statute would require affirmative language—exactly the
sort of affirmative language Congress used in §§ 2241(d) and 2243(d), but did not
add to § 2242. See United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978)
(“Certainly far more than the simple omission of the appropriate phrase from the
statutory definition is necessary to justify dispensing with an intent requirement.”).
In accordance with “the interpretive assumption that Congress knows how [the
courts] construe statutes and expects [the courts] to run true to form,” Safeco Ins. Co.
of Am. v. Burr, 551 U.S. 47, 57-58 (2007), we must reject the government’s request
to construe § 2242(2) in a way Congress could not reasonably expect and evidently
did not intend.

       4.     Grammar
       The dissent sidesteps these “conventional doctrines of statutory interpretation,”
Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004), and builds its case on what it terms “the
natural grammatical reading of § 2242(2),” post at 38. The dissent’s “natural”
reading is not so natural. First, the dissent’s eisegesis of X-Citement Video ignores
how the Supreme Court itself has interpreted that case. In Flores-Figueroa, for
example, the Supreme Court (1) referred to “[t]he language in issue in X-Citement
Video” as relatively “ambiguous”; (2) cited Justice Stevens’ X-Citement Video
concurrence, which said “the normal, commonsense reading” is to apply a criminal
statute’s knowledge requirement to every element following the word “knowingly,”
513 U.S. at 79; and (3) considered X-Citement Video’s holding (as opposed to the
few lines of contrary dicta on which the dissent relies) to be “fully consistent with . . .
ordinary English usage.” Flores-Figueroa, 556 U.S. at 652-53.

                                           -22-
       Second, the dissent’s reliance on “interruptive punctuation,” post at 37, is
misplaced. As the Supreme Court and our court have said “[o]ver and over,” U.S.
Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993), “[i]n
expounding a statute, we must not be guided by a single sentence or member of a
sentence, but look to the provisions of the whole law, and to its object and policy.”
United States v. Heirs of Boisdoré, 49 U.S. (8 How.) 113, 122 (1850) (quoted most
recently in Maracich v. Spears, 570 U.S. ___, ___, 133 S. Ct. 2191, 2203 (2013) and
United States v. Jungers, 702 F.3d 1066, 1069-70 (8th Cir. 2013)). “No more than
isolated words or sentences is punctuation alone a reliable guide for discovery of a
statute’s meaning.” U.S. Nat’l Bank of Or., 508 U.S. at 455.

       Considering a statute in which “knowingly” was separated by the same
“interruptive punctuation”—the dash—at issue here and in X-Citement Video, the
Supreme Court observed “[t]his is not a case where grammar or structure enables the
challenged provision or some of its parts to be read apart from the ‘knowingly’
requirement. Here, ‘knowingly’ introduces the challenged provision itself, making
clear that it applies to that provision in its entirety.”8 United States v. Williams, 553
U.S. 285, 294 (2008) (emphasis added) (analyzing 18 U.S.C. § 2252A(a)(3)).

       Even if the dissent’s grammatical analysis were correct, that would not
outweigh the unambiguous contextual meaning of § 2242(2). See McCarthy, 500
U.S. at 139. Grammar provides clues, sometimes decisive, to what language means,
but ungrammatical statements can be unambiguous and grammatical statements
ambiguous—depending on context. See, e.g., Verizon Commc’ns, Inc. v. FCC, 535

      8
       The dissent has no authoritative answer to Williams, which makes clear that
interruptive dashes do not provide a grammatical or structural basis for reading a
subsequent provision apart from the word “knowingly” introducing the entire
provision. Instead, the dissent in this case quotes the dissent in X-Citement Video for
a grammatical proposition the Supreme Court dismissed in X-Citement Video and
rejected in Flores-Figueroa. See post at 37-38.

                                          -23-
U.S. 467, 533 (2002) (“[W]hether [language] is plain . . . is a question of context as
much as grammar.”). Section 2242(2) might be “awkward, and even ungrammatical;
but that does not make it ambiguous on the point at issue,” Lamie, 450 U.S. at 534.
We are not now, nor have we ever been, “a panel of grammarians.” Flora v. United
States, 362 U.S. 145, 150 (1960); see also, e.g., Ex parte Bollman, 8 U.S. (4 Cranch)
75, 95 (1807) (Marshall, C.J.) (“[S]trict grammatical construction . . . . is not entirely
without its influence; but the sound construction which the court thinks it safer to
adopt, is, that the true sense of the words is to be determined by the nature of the
provision, and by the context.”). Reversing the Third Circuit’s decision in United
States v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997), the Supreme Court explained
formal grammatical analysis “cannot be applied rigidly, to the exclusion of other
relevant statutory language.” United States v. Rodriguez-Moreno, 526 U.S. 275, 280
(1999). As then-Circuit Judge Alito warned the Third Circuit in the Palma-Ruedas
case, “[r]ather than relying on grammatical arcana, [courts] should . . . look at the
substance of the statutes in question.” Palma-Ruedas, 121 F.3d at 865 (Alito, J.,
dissenting).

       Heeding this prescient warning by applying “settled principles of statutory
construction,” Carcieri v. Salazar, 555 U.S. 379, 387 (2009), our court properly
rejects the dissent’s ad hoc grammatical analysis. See, e.g., Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.”). Because
substance, context, and structure establish that § 2242(2) “is plain and
unambiguous[,] . . . . we must apply the statute according to its terms.” Carcieri, 555
U.S. at 387.

B.     Legislative History
       Casting aside textual context and structure, the dissent invokes legislative
history and relies on extra-statutory ephemera to reach a reading inconsistent with the

                                          -24-
text of the Act. See post at 42-45 (quoting H.R. 4876, 98th Cong. § 2 (1984); Sexual
Abuse Act of 1986: Hearing Before the Subcomm. on Criminal Justice of the H.
Comm. on the Judiciary (1986 Hearing), 99th Cong. 15, 41(1986); H.R. Rep. No.
99–594 (1986)). The dissent asserts these sources “show[] that the ‘knowingly’
requirement in § 2242(2) was not intended to apply to the defendant’s awareness of
the victim’s incapacity.” Id. at 42. Even if that were true, “the authoritative statement
is the statutory text, not the legislative history.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 568 (2005).9

       It is especially objectionable to rely on legislative imponderables to “mak[e]
criminal what the text would otherwise permit.” Flores-Figueroa, 556 U.S. at 658
(Scalia, J., concurring). A moment’s reflection reveals the fundamental unfairness
of imprisoning anyone based on stray utterances dug from the recesses of the
Congressional Record. After all, “[t]he rule of lenity requires ambiguous criminal
laws to be interpreted in favor of the defendants subjected to them.” United States
v. Santos, 553 U.S. 507, 514 (2008). “This venerable rule,” id., “ensures fair
warning.” United States v. Lanier, 520 U.S. 259, 266 (1997) (emphasis added). If
the government must resort to “the statement of a single Member of Congress or an
unvoted-upon (and for all we know unread) Committee Report” to convince a court
that a statute criminalizes certain conduct, Flores-Figueroa, 556 U.S. at 658 (Scalia,
J., concurring), the statute cannot give anyone—except perhaps the lone Member of
Congress or the committee staffers who wrote the report—“fair warning,” Lanier, 520
U.S. at 266.

      Regardless, a brief foray into the history of § 2242(2), not to mention a more
careful reading of the dissent’s sources, shows the dissent’s reliance on legislative


      9
        As Justice Oliver Wendell Holmes taught, judges “do not inquire what the
legislature meant; we ask only what the statute means.” Oliver Wendell Holmes, The
Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899).

                                          -25-
history is misplaced. Indeed, this is the rare case where legislative history, which is
“usual[ly] inconclusive,” Flores-Figueroa, 556 U.S. at 658 (Scalia, J., concurring),
provides a clear answer: Congress intended to require proof of a defendant’s
knowledge of the victim’s incapacity.

      1.     Drafting History
      One of the principal sponsors of the Act testified in early House committee
hearings that § 2242(2) was intended to make it a crime to “engag[e] in a sexual act
with persons known by the offender to be incapable of appraising the nature of such
conduct: those who are physically incapable of declining participation in or
communicating unwillingness to engage in the sexual act.” Federal Rape Law
Reform: Hearings Before the Subcomm. on Criminal Justice of the H. Comm. on the
Judiciary (Hearings), 98th Cong. 80 (1986) (statement of Rep. Steny Hoyer (Hoyer
statement)) (emphasis added). Explaining the legislative intent behind 18 U.S.C.
§ 2244(a) (making it a crime to “knowingly engage[] in or cause[] sexual contact with
or by another person, if to do so would violate— . . . (2) section 2242 . . . had the
sexual contact been a sexual act”), Representative Hoyer testified that § 2244(a)
would protect “those who are known by the offender to be unable to appraise the
nature of [the sexual] conduct whether by reason of mental disease or defect or of
intoxication.” Hearings, supra, at 80 (Hoyer statement) (emphasis added).

      An early draft of the Act would even have inserted the phrase “known by the
offender to be” into the statutory text itself. See H.R. 4876, 99th Cong. § 2. But
Congress realized that phrase was redundant because § 2242(2) introduces all the
elements and circumstances of the offense with the term “knowingly.”10 Congress


      10
        As with the dissent’s context-free reading of § 2242(2), the dissent takes a
limited look at the legislative history and sees a “stark change” in the various
testimonies and statements given by Representative Hoyer in the run-up to the Act’s
passage by Congress. Post at 42-45. Representative Hoyer’s testimony in 1984

                                         -26-
drafted the Act “employing the format, conventions, and techniques used in drafting
the Criminal Code Revision Act of 1980 [(CCRA)] reported by th[e] [House
Judiciary] Committee in the 96th Congress.” H.R. Rep. No. 99–594, at 13 & n.51.
Explaining the Act’s drafting process, the House referenced the CCRA committee
report: “[I]n the absence of language to the contrary, a knowing state of mind will be
required for conduct, results, and circumstances.” H.R. Rep. No. 96–1396, at 35
(1980) (emphasis added); see H.R. Rep. No. 99–594, at 15 n.59 (citing H.R. Rep. No.
96–1396, at 35).

       Consistent with its understanding “that the state of mind required for conduct
w[ould] apply to circumstances and results unless otherwise specified,” H.R. Rep.
No. 96–1396, at 34 (emphasis added), Congress specified otherwise in §§ 2241(d)
and 2243(d). Congress was not alone in its belief that a specific exception was
required to limit the knowledge requirement. See H.R. Rep. No. 99–594, at 15 n.59,
18 n.69; cf. U.S. Gypsum, 438 U.S. at 438 (requiring “far more than . . . simple
omission . . . to justify dispensing with an intent requirement”). The Department of
Justice (Department) thought the same thing. See 1986 Hearing, supra, at 37, 38-39,
44 (statement of Mark M. Richard, Deputy Assistant Att’y Gen. (Richard statement)).
Yet Congress did not specify otherwise in § 2242(2). The resulting conclusion is
unavoidable: § 2242(2) requires proof of knowledge because “the state of mind
required for the conduct—knowing—is also required for the circumstance of the


(actually published and used by Congress in 1986), focused on the intent underlying
the Act. See Hearings, supra, at 67-82. His later statement, quoted by the dissent, did
not address § 2242(2)’s mens rea requirement at all. See 1986 Hearing, supra, at 15.
Representative Hoyer discussed all substantive changes to the Act in exhaustive
detail. See id. at 3-21. Nowhere did he say § 2242(2) would impose strict
liability—in marked contrast to his discussion of § 2243. See id. at 16. In context,
it is obvious Representative Hoyer considered the deletion of “known by the
offender” to be nothing more than a non-substantive change to conform to the Act’s
drafting format.

                                         -27-
victim’s” incapacity. H.R. Rep. No. 99–594, at 15 n.59; see H.R. Rep. No. 96–1396,
at 35.

       2.    Government’s Views
       This conclusion draws further support from the government’s position at the
time Congress passed the Act.11 In initial committee hearings, an official
“present[ing] the views of the Department” testified that § 2242(2) would make it a
crime to “engage[] in a sexual act with a person known by the offender to be incapable
of appraising the nature of the conduct or physically incapable of declining
participation in it.” Hearings, supra, at 95 (statement of Victoria Toensing, Deputy
Assistant Att’y Gen.) (emphasis added). Although this official testified the
Department recommended numerous amendments to the proposed
legislation—including a reasonable belief defense in § 2243—neither she nor any
other Department official ever expressed concern over the knowledge requirement in
§ 2242(2). See id. at 97; see also 1986 Hearing, supra, at 37-44 (Richard statement).

      To the contrary, testifying about the exact language used in the statute—after
Congress, realizing the phrase was redundant, deleted “known by the offender to be”
from a prior draft—another official “present[ing] the views of the Department”
explained that § 2242(2) criminalized “knowingly engaging in a sexual act with a
person who is incapable of appraising the nature of the conduct or physically
incapable of declining participation in it.” 1986 Hearing, supra, at 41 (Richard
statement) (emphasis added). Even by the dissent’s “natural grammatical reading,”
this official statement recognizes the knowledge requirement applies to the
circumstance of the victim’s incapacity “since no independent clauses or interruptive

      11
        Yet the government now asserts “[t]he legislative history regarding the statute
does not provide a clear answer to the mens rea question presented here.” If not
duplicitous, that assertion is at least an example of why it is improper to criminalize
conduct based on needles hidden in legislative history haystacks: those historical
needles are hard for the government, let alone a criminal defendant, to find.
                                         -28-
punctuation marks indicate otherwise.”12 Post at 44. In contrast, the Department
official described § 2241(c) and § 2243(a) without a similar knowledge requirement,
recognizing that these crimes would not require the government to prove knowledge.
See 1986 Hearing, supra, at 41 (Richard statement) (describing §§ 2241(c) and
2243(a) as making it a crime to “engag[e] in a sexual act with a person under twelve
years of age” and to “engage[e] in a sexual act with a minor who is at least twelve but
under sixteen years of age if the offender is at least four years older than the minor”).
When Congress passed the Act, the government correctly understood that the
knowledge requirement continued past the “interruptive punctuation” on which the
government and dissent today construct their case.

        3.     Legislative Policies
        Congressional intent likewise reinforces our court’s reading of § 2242(2). The
genesis of the Act was Congress’ recognition that federal law was becoming
increasingly inconsistent with state law. See Hearings, supra, at 3-4 (statement of
Rep. Robert Carr (Carr statement)). While federal law still relied on an obsolete
definition of rape, by 1984 thirty-eight states had “reformulate[ed] [rape] into a crime
of sexual assault.” Id. at 4. Michigan was the first state to do so, and Congress,
finding Michigan’s reform effort particularly instructive, went so far as to hold a
hearing in that state. See id. at 1, 4. Members of Congress worried that antiquated
federal laws and modernized state laws criminalized different conduct, an imbalance
of particular concern in Indian country. See, e.g., id. at 5; id. at 68 (Hoyer statement);
id. at 71 (statement of Rep. Bobbi Fiedler).

     Although the Act’s drafters considered the legal reforms of thirty-eight states,
Congress looked to three states in particular: California, Maryland, and Michigan.


      12
        As the Department submitted this statement in writing, one can hardly argue
the absence of punctuation was a mere oversight or transcription error. See 1986
Hearing, supra, at 37, 40-44 (Richard statement).
                                          -29-
See, e.g., 1986 Hearing, supra, at 6 (statement of Rep. Steny Hoyer); id. at 35
(statement of Rep. Bobbi Fiedler); Hearing, supra, at 3-4 (Carr statement) (describing
Rep. Hoyer’s effort to “take the Maryland experience into Federal law” and his effort
to “do[] the same thing” with Michigan’s reforms). None of these states imposed
strict liability in their state analogue to § 2242(2) at the time, nor do they today.13

       These states hardly were unique. Contrary to the dissent’s selective quotation
of Morissette, our law has not “long recognized an exception from traditional mens
rea requirements for ‘sex offenses, such as rape,’ in which the victim’s status . . . is
determinative.” Post at 39 (emphasis added) (quoting 342 U.S. at 251 n.8).
Morissette actually explains that “sex offenses, such as rape, in which the victim’s
actual age”—not status—“was determinative” are one of the “few exceptions” to the
mens rea requirement which “took deep and early root in American soil” and “was so
inherent in the idea of the offense that it required no statutory affirmation.”14 342
U.S. at 251-52 & n.8 (emphasis added). In contrast to the narrow, statutory scienter


      13
         See Cal. Penal Code § 261(a)(4) (“Where a person is at the time unconscious
of the nature of the act, and this is known to the accused” (emphasis added)); Cal.
Penal Code app. § 261(4) (Deering 1986); Md. Code Ann., Crim. Law § 3-304(a)(2)
(“[T]he person performing the act knows or reasonably should know that the victim
is [incapacitated]” (emphasis added)); Md. Code Ann., art. 27, § 463(a)(2) (Michie
1982); Mich. Comp. Laws § 750.520d(1)(c) (“The actor knows or has reason to know
that the victim is [incapacitated]” (emphasis added)); Act of July 24, 1983, No. 158,
sec. 1, § 750.520d, 1983 Mich. Pub. Acts 475, 478.
      14
        Disregarding this bedrock American tradition, and rewriting the statute, the
dissent asserts that when faced with “two interpretations” of a criminal statute—one
which imposes strict liability, the other which requires criminal intent—“the better
view” is to opt for strict liability. Post at 41. This disturbing assertion is without
precedent in our legal system. “The contention that an injury can amount to a crime
only when inflicted by intention . . . . is as universal and persistent in mature systems
of law as belief in freedom of the human will and a consequent ability and duty of the
normal individual to choose between good and evil.” Morissette, 342 U.S. at 250.
                                          -30-
exception for the historical crime of “statutory rape,”15 there is no Anglo-American
tradition of imposing strict liability for sexual activity with an intoxicated or even
unconscious individual. See, e.g., R v. Camplin, (1845) 169 Eng. Rep. 163 (C.C.)
164, 1 Den. 89, 91 (“[T]he crime of rape is committed by violating a woman when she
is in a state of insensibility . . . the accused knowing at that time that she is in that
state.” (emphasis added)); Model Penal Code § 213.1 & cmt. 5 (Official Draft and
Revised Comments 1980) (requiring proof the perpetrator was “at least reckless with
respect to the [victim’s] unconsciousness”). Before Congress passed the Act, federal
law did not even criminalize knowing sexual assault of an intoxicated victim, much
less impose strict liability. See 18 U.S.C. § 2031 (repealed 1986); Williams v. United
States, 327 U.S. 711, 715 (1946) (requiring “force by the offender and . . . an absence
of consent by the victim”).

       Ignoring this context, the dissent emphasizes only that Congress wished to
“‘modernize and reform Federal rape statutes,’” post at 45 (quoting H.R. Rep. No.
99–594, at 6). The dissent assumes strict liability is the most “modern” way to tackle
society’s alarming rates of sexual assault. See post at 45-47. But Congress did not
think so in 1986 when it enacted § 2242(2) and decided, in § 2243(c), to dilute the old
federal rape law’s strict liability.16 Neither did Congress think so in 2011 when it

      15
       This crime indeed originated in statutory, not common, law. See Benefit of
Clergy Act, 1575, 18 Eliz. I c. 7 (Eng.), in 4 Statutes of the Realm 617, 618 (1819).
      16
        Contrary to the dissent’s survey of cases involving § 2242(2), there is no
“accepted understanding” among district courts in our circuit or anywhere else for the
proposition that § 2242(2) is a strict-liability crime. Post at 49. Notably, in United
States v. Ford, No. 4:11-cr-40116-KES-1 (D.S.D.), aff’d 726 F.3d 1028 (8th Cir.
2013), the same judge who presided over Bruguier’s trial decided—before either of
the panel decisions in this case or United States v. Rouillard, 701 F.3d 861 (8th Cir.
2012) (vacated March 4, 2013)—that § 2242(2) was not a strict-liability crime.

      The district court not only instructed the jury in Ford of the prosecution’s
burden to prove beyond a reasonable doubt that the defendant “knew that [the victim]
                                          -31-
amended the Uniform Code of Military Justice to require actual or constructive
knowledge. See National Defense Authorization Act for Fiscal Year 2012, Pub. L.
No. 112–81, § 541(a)(3), 125 Stat. 1298, 1404-05 (Dec. 31, 2011) (amending
redesignated 10 U.S.C. § 920(b) to prohibit sexual acts “when the [perpetrator] knows
or reasonably should know that the other person is [incapacitated]” (emphasis
added)). Nor do the District of Columbia and the majority of states think so,
including at least six of the seven states in our circuit, all of which have chosen not
to make sexual activity with an intoxicated person a strict liability crime.17


was [incapacitated]” but also rejected the government’s proposed strict-liability
instruction that “[e]vidence that the rape victim was asleep, or intoxicated and
drowsy, when the Defendant knowingly engaged in a sexual act with the victim, if
proven beyond a reasonable doubt, is sufficient to support a finding of guilt.” Final
Jury Instructions, Ford, No. 4:11-cr-40116-KES-1 (D.S.D. July 18, 2012), ECF No.
69 (emphasis added); Refused Jury Instruction #5, Ford, No. 4:11-cr-40116-KES-1
(D.S.D. July 18, 2012), ECF No. 60.

      Further “‘illuminat[ing] the [legal] profession’s understanding’ of the law,”
post at 50 (quoting United States v. Ross, 465 U.S. 798, 819 (1982)), the jury in
United States v. Peters, 277 F.3d 963 (7th Cir. 2002), was instructed that the
government had to prove “that the Defendant . . . knew that [the victim] was
[incapacitated],” id. at 967 (emphasis added).
      17
         Most states do not impose criminal liability without either (1) actual
knowledge, e.g., Alaska Stat. § 11.41.420(3) (“offender knows” victim’s condition),
or (2) constructive knowledge, e.g., Ariz. Rev. Stat. Ann. § 13-1401(5)(b) (victim’s
“condition is known or should have reasonably been known to the defendant”). See
also D.C. Code § 22-3003(2). Some states place the burden of proof on the
prosecution, e.g., Colo. Rev. Stat. § 18-3-402(1)(b); others make lack of knowledge
an affirmative defense, e.g., Conn. Gen. Stat. § 53a-67(a).

      No state in this circuit, except possibly Iowa whose highest court has not
decided the question, imposes strict liability. See Ark. Code Ann. § 5-14-102(e);
Minn. Stat. § 609.342, subd. 1(e)(ii); Mo. Rev. Stat. § 556.061(5)(b); Neb. Rev. Stat.
§ 28-319(1)(b); N.D. Cent. Code § 12.1-20-03(1)(c), (e); State v. Jones, 804 N.W.2d
                                         -32-
     Legislative history, to the extent it is relevant, confirms the court’s
unambiguous reading of § 2242(2).

C.     Conclusion
       The unambiguous text of the statute, confirmed by the legislative history,
required the government to prove Bruguier knew the victim was incapacitated. To
avoid the unpleasant consequences of the district court’s failure to inform the jury of
this requirement, the government “ask[s] us not to interpret” § 2242(2), “but to revise
it.” Holder, 561 U.S. at ___, 130 S. Ct. at 2718. This our court cannot do. See, e.g.,
Lamie, 540 U.S. at 538 (“Our unwillingness to soften the import of Congress’ chosen
words even if we believe the words lead to a harsh outcome is longstanding.”). “The
remedy [the government seeks] lies with Congress and not with this Court. Congress
may amend the statute; we may not.” Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 576 (1982).

      Our court has no choice under the law but to reverse Bruguier’s § 2242(2)
conviction.

MURPHY, Circuit Judge, with whom BYE, COLLOTON, GRUENDER, and
BENTON, Circuit Judges, join, concurring in part and dissenting in part.

      From the time of the enactment of 18 U.S.C. § 2242(2) in 1986, until and after
the panel opinion in United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012), our


409, 414 (S.D. 2011). Thus, the court’s opinion imposes no greater burden on
Bruguier’s federal prosecutors than South Dakota law would have imposed on state
prosecutors if Bruguier’s heinous act had occurred a few miles away under state
jurisdiction rather than in Indian country. See Jones, 804 N.W.2d at 414 (“Because
rape by intoxication is a serious felony and the Legislature has not indicated its clear
intent to dispense with mens rea, [the state statute] must be read to include a
knowledge element.”).
                                         -33-
court has consistently accepted jury instructions which required proof both that the
defendant knowingly engaged in a sexual act and that the victim was an incapacitated
person. When this case was in the district court, Judge Karen Schreier heard
arguments from opposing counsel before deciding to give the jury that standard
instruction. A review of our cases suggests that juries have had no trouble applying
that instruction and reaching a fair result: nearly half of the defendants have been
acquitted. I agree with the majority that the evidence is sufficient to support
Bruguier's burglary conviction, but I respectfully dissent from its misinterpretation
of the "knowingly" element in § 2242(2) which is contrary to the statute's plain text
and misconstrues the legislative record.

                                          I.

       Bruguier was charged with two counts of aggravated sexual abuse and one
count of attempted aggravated sexual abuse, 18 U.S.C. § 2241(a), sexual abuse of an
incapacitated person, 18 U.S.C. § 2242(2), sexual abuse of a minor, 18 U.S.C.
§ 2243(a), and burglary, S.D. Codified Laws § 22–32–1. The jury found Bruguier
guilty of aggravated sexual abuse, sexual abuse of an incapacitated person, sexual
abuse of a minor, and burglary. It acquitted him of the other charges.

        Bruguier's conviction under § 2242(2) was based on his rape of Crystal Stricker
in January 2011. Sometime in the early morning hours Crystal returned home heavily
intoxicated after drinking at several places. While she was talking with the sister of
her boyfriend Mike Miller, Bruguier arrived at the house. Later, after Mike's sister
left the room for "a couple minutes," she heard a "big boom." She rushed back to the
living room where she found Crystal lying motionless on the floor with Bruguier "on
top of her, pulling her pants down." She yelled for Mike, who came from the
bedroom and saw Crystal "laying like she was knocked out." Mike testified at trial
that Crystal's head was "slanted against the vent" and that her eyes were "open, but
they were glossy red." Mike also observed that Crystal had semen between her legs

                                         -34-
and that Bruguier's penis was erect. He had to shake Crystal to awaken her. A sexual
assault exam of Crystal revealed vaginal bruising and semen matching Bruguier's
DNA. Crystal testified that the rape made her feel "a lot of shame," and shortly
afterward she was prescribed anxiety and sleeping medications and began seeing a
sexual assault counselor.

       The district court instructed the jury that to convict Bruguier of sexual assault
of an incapacitated person under § 2242(2), the government had to prove beyond a
reasonable doubt that "Bruguier did knowingly cause or attempt to cause Crystal
Stricker to engage in a sexual act" and that Crystal "was physically incapable of
declining participation in and communicating unwillingness to engage in that sexual
act." After deliberating the jury convicted Bruguier of violating § 2242(2). Since the
district court's jury instructions correctly stated the legal standard and elements
required to convict Bruguier under § 2242(2), his conviction should be affirmed.

                                          II.

       In interpreting a statute, we look first to its text. BedRoc Ltd., LLC v. United
States, 541 U.S. 176, 183 (2004) (plurality opinion). Section 2242(2) states that:


        Whoever . . . 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(2) (emphasis added).

                                         -35-
                                         A.

       Section § 2242(2) is composed of the adverb "knowingly" separated by a dash
from two active verbs describing the defendant's acts, which are in turn separated by
a dash from two subsidiary clauses which contain adjectives describing the victim's
status. The Supreme Court has instructed that criminal statutes of this construction
are "most natural[ly]" read such that "knowingly" modifies only the surrounding
active verbs and not the separate subsidiary clauses. United States v. X-Citement
Video, Inc., 513 U.S. 64, 68 (1994).

       In X-Citement Video, the Supreme Court considered a structurally similar
statute, 18 U.S.C. § 2252, which criminalizes the distribution of child pornography.
513 U.S. at 67–68. Section 2252 states that any person shall be subject to punishment
"who—

      (1) knowingly transports . . . any visual depiction, if—

             (A) the producing of such visual depiction involves the use of a
             minor engaging in sexually explicit conduct; and

             (B) such visual depiction is of such conduct."

§ 2252(a) (emphasis added). The Court concluded that the "most natural grammatical
reading" of § 2252 was that "knowingly" in the introductory clause "modifies only
the surrounding verbs" such as "transports" and not the other elements of the
criminalized conduct. 513 U.S. at 68. It reasoned that the knowledge requirement
and other elements of § 2252 are "set forth in independent clauses separated by
interruptive punctuation." Id.



                                        -36-
        The Court's statutory reading in X-Citement Video is instructive in considering
§ 2242(2). Like § 2252, the statute in that case, the statute at issue here contains a
"knowingly" requirement in an introductory clause set apart by "interruptive
punctuation" from the contested elements of the offense. See id. Section 2242 makes
it a crime to "knowingly—(2) engage[] in a sexual act with another person if that
person is—" incapable of consent. The requirement of "knowingly" is thus set apart
by two sets of interruptive punctuation from the distinct element relating to the
victim's incapacity. Thus, "knowingly" in § 2242(2) cannot be read to modify
"physically incapable of declining participation in, or communicating unwillingness
to engage in" a sexual act. § 2242(2). That is because in this statutory arrangement
"knowingly" belongs to and modifies the words "engages" and "attempts."

      While asserting that "knowingly" applies to the victim's incapacity in
§ 2242(2), the concurrence cites Justice Scalia's opinion for the Court in United
States v. Williams, 553 U.S. 285 (2008), for his observation that "knowingly
introduces the challenged provision itself." Id. at 294. The best answer to the
concurrence comes from Justice Scalia himself. Williams was "not a case where
grammar or structure enable[d] the challenged provision or some of its parts to be
read apart from the 'knowingly' requirement." Id. at 294. In particular, there was no
conditional "if" clause, as in § 2242(2) ("if that other person is . . . physically
incapable of declining participation"), or as in this example from X-Citement Video:
"Anyone who knowingly double-parks will be subject to a $200 fine if that conduct
occurs during the 4:30-to-6:30 rush hour." 513 U.S. at 81 (Scalia, J., dissenting)
(emphasis added).

       Even though "knowingly" introduced the parking rule, Justice Scalia explained
that "[i]t could not be clearer that the scienter requirement applies only to the
double-parking, and not to the time of day." Id. at 82. The Court acknowledged that
Justice Scalia's dissent favored the "most grammatical reading" of the statute (and
presumably of the parking rule). Id. at 70 (opinion of the Court). Williams thus does

                                         -37-
not win the day for Bruguier. That is because the grammar and structure of § 2242(2)
do not make the victim's capacity subject to the "knowingly" requirement.

       The language in § 2242(2) mirrors the contested language in X-Citement Video
in a second respect. In both, the language in the principal paragraph refers to the
criminal actor ("knowingly engages" and "knowingly transports"). The subsidiary
clauses, by contrast, refer to the victim ("is incapable" and "use of a minor"). The
natural reading of § 2242(2) is that the adverb "'knowingly' modifies only the
surrounding verbs" of "engages" and "attempts," X-Citement Video, 513 U.S. at 68,
but it does not apply to the separate subsections describing the victim's condition.

       The Supreme Court's guidance leaves little question as to the most natural
grammatical reading of § 2242(2), which is that "knowingly" does not extend to the
conditional phrases regarding the victim's incapacitated status. The question before
us, then, is whether we must reject the natural grammatical reading of § 2242(2) and
add an element of the offense that is not indicated by the congressional text.

                                          B.

       The Supreme Court has identified several situations in which it is appropriate
to depart from the most natural grammatical reading of a statute, but none are
applicable here. Rather, the Court's guidance and "contextual" considerations,
Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009), make clear that the
reasons offered by the majority for inserting an additional extratextual requirement
into § 2242(2) are neither applicable nor appropriate in this case.

      In X-Citement Video, the Supreme Court departed from the grammatical
reading of the statute based on three concerns. First, the Court noted that any reading
which omitted a knowledge requirement would create the absurd result of rendering
innocent parties (such as a new resident of an apartment who returns unopened mail

                                         -38-
or a Federal Express courier who delivers a box containing film) criminally liable for
the distribution of child pornography. 513 U.S. at 69–70. Second, the statute as
written would have reached nonobscene, sexually explicit materials involving persons
over the age of 17, which are protected by the First Amendment. Id. at 71–73.
Neither concern exists with respect to § 2242(2).

       The third rationale the Court acknowledged in X-Citement Video was that it
had in other instances "interpret[ed] criminal statutes to include broadly applicable
scienter requirements, even where the statute by its terms does not contain them." Id.
at 70. In making this observation, however, the Court conspicuously noted that a
presumption of adding a mens rea requirement does not apply where "the perpetrator
confronts the underage victim personally and may reasonably be required to ascertain
that victim's age." Id. at 72 n.2. The Court therefore indicated that its conclusion
would not apply to producers of child pornography because they are "more
conveniently able to ascertain the age of performers," and "[i]t thus makes sense to
impose the risk of error on producers." Id. at 76 n.5.

       The Court's guidance counsels strongly in favor of adopting the plain
grammatical reading in the case before us. That is because the reasons for declining
to apply a presumption of scienter in cases of underage sex partners or underage
performers are equally pertinent here. It "makes sense to impose the risk of error" on
aggressors who engage in sexual acts with incapacitated victims because the
perpetrator confronts the victim personally and may reasonably be required to
ascertain that victim's capacity or incapacity. See id. at 72 n.2, 76 n.5. For this
reason the Court has long recognized an exception from traditional mens rea
requirements for "sex offenses, such as rape," in which the victim's status rather than
the defendant's knowledge is determinative. Morissette v. United States, 342 U.S.
246, 251 n.8 (1952). Congress, through its statutory language, expressly adopted that
policy choice in § 2242(2). There is no reason for this court to add an element of
knowledge that is not present in the text.

                                         -39-
       The majority also misconstrues Flores-Figueroa by reading it to create a
presumption that a mens rea requirement applies to all elements of a criminal offense.
In that case, the Court "relied heavily" on its earlier decision in X-Citement Video.
Ante at 6 n.3. Read together, the two cases instruct 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, 556 U.S. at 652
(emphasis added), but will not do so in cases of sexual abuse when the perpetrator is
"conveniently able to ascertain" the victim's status, X-Citement Video, 513 U.S. at
76 n.5. As Justice Alito predicted, the majority erroneously reads Flores-Figueroa to
"adopt[] an overly rigid rule of statutory construction" in which "the mens rea of a
federal criminal statute nearly always applies to every element of the offense."
Flores-Figueroa, 556 U.S. at 659 (Alito, J., concurring). A more holistic review of
the Court's guidance on the issue instead supports the plain grammatical reading of
§ 2242(2).

       Flores-Figueroa provides yet another reason for skepticism about the majority's
reasoning. In that case, the defendant had been charged with identity theft. The
government argued that applying a mens rea requirement to all elements of the
offense would create "difficulty in many circumstances of proving beyond a
reasonable doubt that a defendant has the necessary knowledge." 556 U.S. at 655.
Although the Court recognized that this argument had "great[] practical importance"
it found it "[in]sufficient . . . to turn the tide in the Government's favor" in that
particular context because in identity theft cases "intent is generally not difficult to
prove," and "concerns about practical enforceability [were] insufficient to outweigh
the clarity of the text." Id. at 656. Unlike in cases of identity theft, almost all of the
sexual assault cases which have been brought under § 2242(2) arise from abuse of
alcohol or drugs in situations where intent may be difficult to establish. Concerns
about practical enforceability therefore reinforce the natural grammatical reading of
§ 2242(2) that knowledge of incapacity is not an element of the offense.



                                          -40-
       The type of case now before us has not allowed the government easily to
convict defendants. In the past ten years, the district courts in our circuit have
conducted twenty nine trials in which defendants were charged under § 2242(2) and
the jury instructed that the "knowingly" requirement applied only to the defendant's
engagement in the sexual act and not to the victim's incapacity. Nevertheless, nearly
half of the defendants were acquitted of the charges under § 2242(2) (thirteen out of
twenty nine).

        The concurring opinion also attempts to deflect from the natural grammatical
reading of § 2242(2) by suggesting it is an outlier among sexual abuse statutes,
asserting that no state's law in this circuit with the possible exception of Iowa Code
§ 709.1(2) imposes what the concurrence calls "strict liability." Ante, at 30-31 &
n.14. The concurrence's own survey demonstrates however that the majority's
addition of an actual knowledge element into § 2242(2) creates the more problematic
anomaly. The states in this circuit as well as the Uniform Code of Military Justice
impose liability if a sexual aggressor reasonably should have known that the victim
was incapacitated, even if the prosecution cannot prove actual knowledge. See 10
U.S.C. § 920(b)(b)(3); Ark. Code. § 5-14-102(e); Minn. Stat. § 609.345, subd. 1(d);
Mo. Rev. Stat. § 556.061(5)(b); Neb. Rev. Stat. § 28-319(1)(b); N.D. Cent. Code
§ 12.1-20-03(1)(c), (e); State v. Jones, 804 N.W.2d 409, 414 (S.D. 2011). That
several jurisdictions have adopted a middle ground position requiring proof of
constructive knowledge lends no support to the majority's effort to read a heightened
actual knowledge requirement into the congressional language of § 2242(2), with the
result that a defendant may be acquitted even when there is proof beyond a reasonable
doubt that he reasonably should have known that the victim was incapacitated. No
one contends that Congress occupied the middle ground in § 2242(2). As between
the two interpretations advanced by the parties, the better view is that Congress opted
to place the risk of error about incapacity on the sexual aggressor.




                                         -41-
      In sum, the correct and most natural grammatical reading of § 2242(2) does not
apply any knowledge requirement to the victim's incapacity, and the Supreme Court's
guidance as to when a mens rea requirement must be inserted into a statute's text
makes clear that § 2242(2) is not such a statute. See Flores-Figueroa, 556 U.S. at
652–58; X-Citement Video, 513 U.S. at 70–76.

                                         III.

      The legislative history also shows that the "knowingly" requirement in
§ 2242(2) was not intended to apply to the defendant's awareness of the victim's
incapacity. Flores-Figueroa makes clear that the "context" and the "background
circumstances" of a governing statute must be studied in interpreting it. 556 U.S. at
652.

                                          A.

       Section 2242 was passed into law as part of the Sexual Abuse Act of 1986,
which also enacted §§ 2241, 2243, 2244, and 2245. The majority places significant
weight on an intratextual comparison of three of those statutes. Such a method,
however, is only appropriate when "Congress included particular language in one
section of a statute but omits it in another section of the same Act." Rodriguez v.
United States, 480 U.S. 522, 525 (1987) (per curiam) (citation omitted). Statutory
rape, which is the crime defined in §§ 2241(c) and 2243(a), has long been recognized
in our country as not requiring any proof of scienter with respect to the victim's age.
 See United States v. Ransom, 942 F.2d 775, 776–78 (10th Cir. 1991). Nothing in the
legislative record suggests that Congress ever contemplated that its new statutory rape
statutes, §§ 2241(c) and 2243(a), would contain any different mens rea requirement.

      By contrast, the legislative record of § 2242(2) shows that Congress at one
point did contemplate imposing a mens rea requirement on the perpetrator with

                                         -42-
respect to the victim's incapacity. It later modified the statute to make it a strict
liability crime, however. As initially proposed in the 98th Congress, § 2242
contained language which would have criminalized

      knowingly engag[ing] in a sexual act with another person if such other
      person is known by the offender to be—

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

             (2) physically incapable of declining participation in, or
             communicating unwillingness to engage in, that sexual act[.]

Sexual Assault Act of 1984, H.R. 4876, 98th Cong. § 2 (1984) (emphasis added).

       Revisions were then made to the text of § 2242 before it was presented to the
99th Congress two years later. In particular, it was decided that the phrase "known
by the offender to be" should be deleted. See Sexual Abuse Act of 1986, H.R. 4745,
99th Cong. § 2 (1986). The 99th Congress passed the revised bill, and the final
version of § 2242 omitted any reference to the defendant's knowledge of the victim's
incapacity. Congress's decision to omit the initially suggested knowledge
requirement is strong evidence that § 2242 was intended to focus on whether the
victim was actually incapacitated rather than the defendant's perception. See Doe v.
Chao, 540 U.S. 614, 623 (2004). Such a focus appropriately placed responsibility on
the perpetrator to ascertain the victim's capacity to consent.

       Although the Supreme Court has said that the deletion of terms from a bill "is
fairly seen" as a "deliberate elimination" of the original proposition, id., the
concurring opinion finds the revisions meaningless here. In support it cites drafting
conventions that merely refer a reader back to the "language" of the statute (which
includes grammar and structure), and even the absence of punctuation in ambiguous
hearing testimony from a Justice Department official. Ante, at 26, 28 & n.11. But
the concurrence has no answer for the stark change in the testimony of the principal

                                        -43-
sponsor of the original bill between 1984 and 1986. In 1984, when the bill included
the phrase "known by the offender to be," Representative Hoyer explained that
"[s]exual assault involves engaging in a sexual act with persons known by the
offender to be incapable of appraising the nature of such conduct." Federal Rape Law
Reform: Hearings Before the Subcomm. on Criminal Justice of the H. Comm. on the
Judiciary, 98th Cong. 80 (1984) (emphasis added).

        In 1986, after "known by the offender" was stricken from the bill,
Representative Hoyer explained the meaning quite differently as having no
knowledge requirement for incapacity: "Sexual abuse involves engaging in a sexual
act with persons incapable of appraising the nature of such conduct and those who are
physically incapable of declining participation in or communicating unwillingness to
engage in the sexual act." Sexual Abuse Act of 1986: Hearing Before the Subcomm.
on Criminal Justice of the H. Comm. on the Judiciary, 99th Cong. 15 (1986)
(emphasis added). If the concurrence were right that "format, conventions, and
techniques" meant that the drafting change had no substantive effect, then there
would have been no reason for Representative Hoyer to alter his statement between
1984 and 1986. That in 1986 he omitted the phrase "known by the offender to be"
is telling evidence that the principal sponsor of the legislation understood that
§ 2242(2) as enacted placed the risk of error about a victim's incapacity on the sexual
aggressor.

       Moreover, although the majority emphasizes the similarities between
§§ 2241(c), 2242(2), and 2243(a), see ante at 8, the statutes as enacted differ in ways
critical to our analysis. In § 2241(c), the "knowingly" element would apply to the age
of the victim as a grammatical matter since no independent clauses or interruptive
punctuation marks indicate otherwise. It was therefore necessary for Congress to add
§ 2241(d) to eliminate a "knowingly" element otherwise prescribed by the text.
Similarly in § 2243, Congress added in subsection (c) an affirmative defense
concerning the defendant's knowledge, creating ambiguity as to the mens rea required

                                         -44-
by § 2243(a). It is thus logical that Congress added § 2243(d) to clarify the state of
mind proof requirement in subsection (a). In § 2242, by comparison, Congress had
no reason to add a new subsection because the text and grammar of § 2242(2) already
make clear that the knowledge requirement does not apply to a victim's incapacity.

       The divergent drafting histories and differing structures of §§ 2241(c), 2242(2),
and 2243(a) significantly limit the utility of the majority's intratextual analysis. In
such circumstances the majority's assumption that the statutes should be read strictly
in parallel results in a reading that is "too clever by half— . . . conjuring up patterns
that were not specifically intended and that are upon deep reflection not truly sound."
Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 799 (1999).

                                           B.

       The majority's reading of § 2242(2) is equally inconsistent with the policies
identified in the principal legislative report concerning the Sexual Abuse Act of 1986.
See generally Samantar v. Yousuf, 130 S. Ct. 2278, 2287 n.9 (2010). An apparent
congressional purpose in enacting that legislation was to "modernize and reform
Federal rape statutes," H.R. Rep. No. 99-594, at 6 (1986), and to "bring[] [them] into
line with modern perceptions of woman's place in our society," id. at 13. Critics
thought existing rape law improperly focused on the victim's characteristics rather
than the assailant's actions, and proponents of the 1986 Act accordingly moved away
from a victim focus and instead placed "the focus of a trial . . . upon the conduct of
the defendant." Id. at 11.

      The congressional hearing record in connection with the enactment of § 2242
shows that legislators were informed of the need to deter and punish serious sexual
offenses on Indian reservations. See Sexual Abuse Act of 1986: Hearing Before the
Subcomm. on Criminal Justice of the H. Comm. on the Judiciary, 99th Cong. 47–49
(1986) (statement of the Ass'n on Am. Indian Affairs, Inc.). The Department of

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Justice has observed that one in three American Indian women has been raped or
experienced an attempted rape, nearly twice the national average. Patricia Tjaden &
Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of
Violence Against Women, at 22 (2000), available at http://www.ncjrs.gov/pdffiles1/
nij/183781.pdf; see also United States v. Deegan, 605 F.3d 625, 663 (8th Cir. 2010)
(Bright, J., dissenting). A review of our caseload shows that sexual assault in the
specific circumstances described in § 2242(2) remains a significant problem on
Indian reservations. During the past ten years, more than 100 individuals have been
convicted of or pled guilty to violating § 2242(2) in the district courts of the Eighth
Circuit, and we have considered appeals from at least fourteen such defendants.18
While most of the victims are women, men have not been exempt from such sexual
assaults. See, e.g., Betone, 636 F.3d at 386–87.

       Of course not all § 2242(2) offenses occur on Indian reservations. United
States v. Warren, 700 F.3d 528 (D.C. Cir. 2012), for example, involved a CIA official
stationed in Algeria charged under § 2242(2) for sexually assaulting a married
Muslim woman. Id. at 529–30. The victim had delayed reporting the incident "[d]ue
to her religion and Algerian culture," but she subsequently informed another U.S.
official that the defendant had "served her adulterated alcoholic drinks that caused her
to pass in and out of consciousness" and then "moved her to his bed, removed all of
her clothing and had sexual contact" with her. Id. at 530. A subsequent investigation
revealed that the defendant had previously drugged and sexually abused another

      18
        United States v. Chasing Hawk, No. 12-1193 (8th Cir. submitted Oct. 19,
2012); United States v. Villarreal, 707 F.3d 942 (8th Cir. 2013); United States v.
Bruguier, 703 F.3d 393 (8th Cir. 2012); United States v. Rouillard, 701 F.3d 861 (8th
Cir. 2012); United States v. Demery, 674 F.3d 776 (8th Cir. 2011); United States v.
Betone, 636 F.3d 384 (8th Cir. 2011); United States v. Knox, 634 F.3d 461 (8th Cir.
2011); United States v. Hawkman, 363 F. App'x 417 (8th Cir. 2010) (unpublished per
curiam); United States v. Papakee, 573 F.3d 569 (8th Cir. 2009); United States v.
Wilcox, 487 F.3d 1163 (8th Cir. 2007); United States v. Thundershield, 474 F.3d 503
(8th Cir. 2007).
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Algerian Muslim woman, and a search of his home revealed child pornography,
Valium, and Xanax. Id. Other sites of sexual assaults charged under § 2242(2)
include military vessels, United States v. Williams, 89 F.3d 165, 166 (4th Cir. 1996),
and the special aircraft jurisdiction of the United States, United States v. Jahagirdar,
466 F.3d 149, 150–51 (1st Cir. 2006).

       In this case the evidence shows that after Bruguier raped Crystal, she was
found knocked onto the floor, "not moving or speaking" with her eyes closed; when
they opened, they were "glossy red." Ante at 3. The congressional record related to
§ 2242(2) includes the purposes to "modernize" rape law to keep with changing views
about a "woman's place in our society," H.R. Rep. No. 99-594, at 6, 13, and to focus
rape law upon the conduct of the aggressor, id. at 11. The majority's opinion instead
removes the responsibility from a sexual actor to confirm that the other party is not
"incapable of appraising the nature of the conduct" or "physically incapable of
declining participation in" the sexual act. 18 U.S.C. § 2242(2).

                                          IV.

       Reading a knowledge requirement into § 2242(2) with respect to the victim's
incapacity drastically departs from a longstanding assumption in our case law
applying the statute. We have previously considered at least fourteen appeals from
defendants convicted of violating § 2242(2), see supra at 46 n.18, and have always
applied the knowledge requirement only to the rapist's awareness of his sexual act
until United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012).

       The anomalous nature of the Rouillard decision is evidenced by an opinion
filed only two months later. United States v. Villarreal, 707 F.3d 942 (8th Cir. 2013),
affirmed a conviction for sexual abuse under § 2242(2) after concluding that the
evidence was sufficient to support a finding of guilt on each element of the offense.



                                         -47-
Id. at 958–61. The court recited that "to convict Villarreal of sexual abuse" under
§ 2242(2), the government was required to prove that

              (1) . . . Villarreal knowingly engaged in a or attempted to
              engage in a sexual act with [the victim]; (2) at the time of
              the offense, [the victim] was incapable of appraising the
              nature of the conduct or was physically incapable of
              declining participation in or communicating unwillingness
              to engage in the sexual act; (3) Villarreal is an Indian
              person; and (4) the offense took place in Indian country.

Id. at 959 (emphasis added); see also United States v. Smith, 606 F.3d 1270, 1281
(10th Cir. 2010). The knowledge requirement was linked to engaging in the sexual
act itself, not to the incapacity of the victim. As the court observed, our cases "have
held that performing a sexual act upon a person who is sleeping meets the
requirements of § 2242(2)(B)." Villarreal, 707 F.3d at 959 (quoting United States v.
Lowry, 595 F.3d 863, 866 (8th Cir. 2010)).

       The instruction given in Villarreal was consistent with instructions given in
numerous cases over the years. For example, in United States v. Betone, we affirmed
a conviction under § 2242(2) after concluding that the victim's testimony that the
defendant "began fellating him while he was asleep . . . alone establish[ed] the
elements" of the offense. 636 F.3d at 387. We have similarly concluded that a
reasonable jury could find "that a person who is asleep when a sexual act begins is
physically unable to decline participation in that act," and such evidence is thus
sufficient to convict the assailant under § 2242(2). Wilcox, 487 F.3d at 1169.
Similarly, evidence that the victim "had drunk eight beers," "smoked a marijuana
cigarette," and "was very tired" was viewed as sufficient for "a rational jury [to find]
beyond a reasonable doubt that the victim was physically incapable of declining
participation in, or communicating unwillingness to engage in, the sexual act." United
States v. Barrett, 937 F.2d 1346, 1348 (8th Cir. 1991).


                                         -48-
       During the past ten years, the district courts of the Eighth Circuit have
conducted thirty two trials in which defendants were charged with violating § 2242(2).
In twenty nine of those trials, the jury instructions put the knowledge requirement on
the perpetrator's awareness of the physical sexual act, and not knowledge of the
victim's incapacity. While the issue may not have been joined in all of these cases, it
is noteworthy that the courts have applied the natural grammatical reading of
§ 2242(2). The majority claims it would be "novel" for this accepted understanding
of § 2242(2) to inform our analysis, ante, at 13, but the Supreme Court long has given
"much weight" to decisions in which contested legal points "neither occurred to the
bar or the bench," United States v. Ross, 456 U.S. 798, 819 (1982) (quoting Bank of
the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 88 (1809) (Marshall, C.J.)), since
this absence of argument "illuminates the profession's understanding" of the law, id.

       After carefully reviewing the conflicting arguments presented to it about the
proper interpretation of § 2242(2), the district court gave our circuit's standard
instruction. I respectfully suggest that the majority's departure from that standard
instruction is unsupported by the statutory text or by the statute's "background
circumstances." Flores-Figueroa, 556 U.S. at 652. Rather, a close examination of the
statutory text and of the congressional concerns leading to its enactment reinforce the
correctness of both the district court's jury instruction and our longstanding
understanding that § 2242(2) does not require the government to prove that the
defendant knew that his victim was incapacitated, but only that the victim was in fact
incapacitated, placing the responsibility where it naturally belongs. For all these
reasons I dissent.
                         ______________________________




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