                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1348
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Anthony Fast Horse

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                           Submitted: October 25, 2013
                              Filed: April 7, 2014
                                ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

       Anthony Fast Horse appeals his conviction for one count of criminal sexual
conduct in violation of 18 U.S.C. §§ 1153, 2242(2), 2246(2)(A). In addition to
several evidentiary arguments, Fast Horse argues on appeal that the mens rea jury
instruction denied him a legal defense. He also appeals the application of the
vulnerable victim sentence enhancement pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 3A1.1(b)(1) (2012). The government must prove beyond a
reasonable doubt Fast Horse’s knowledge that his victim lacked the capacity to
consent to sexual conduct. See United States v. Bruguier, 735 F.3d 754, 757–63 (8th
Cir. 2013) (en banc). Because the jury instructions did not require the jury to make
such a finding, we reverse Fast Horse’s conviction and remand for a new trial.

                                   I. Background

        Anthony Fast Horse and Ina Crow Dog were each charged with five counts of
sexual abuse of Kimberly Clairmont (Counts I and II) and Quintina Little Elk (Counts
III, IV and V), each count corresponding to a different episode of substantially similar
conduct. Crow Dog pled guilty to Count III in exchange for dismissal of the other
charges; four days later, she filed an amended plea agreement substituting Count IV
for Count III, and the other charges were dismissed. Just before Fast Horse’s trial,
Little Elk recanted the allegations that led to Count III. Fast Horse went to trial on
the remaining counts; he was acquitted of Counts I, II, and V, and he was found guilty
of and sentenced for Count IV.

       In Count IV, Fast Horse and Crow Dog were charged with the sexual abuse of
Little Elk. See 18 U.S.C. § 2242(2).1 Fast Horse and Crow Dog were married, and
Crow Dog is Little Elk’s older half-sister. Little Elk testified that she went to Crow
Dog and Fast Horse’s house because Crow Dog had asked her to help clean up for a
party. When Little Elk started to doze off on a couch during the party, Crow Dog
asked her to rest instead in the bedroom Crow Dog and Fast Horse shared. After


      1
        In areas subject to federal jurisdiction, “[w]hoever . . . knowingly . . . (2)
engages in a sexual act with another person if that 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” may be found to have committed the crime of sexual abuse under
18 U.S.C. § 2242(2).

                                          -2-
some time sleeping in the bed, Little Elk awoke to find Fast Horse having sexual
intercourse with her; he stopped when she pushed him away.

                                     II. Discussion

       The parties disagree as to the standard of review for the district court’s jury
instruction regarding Fast Horse’s mens rea. The government argues that since Fast
Horse did not explicitly object to the relevant jury instruction as to its treatment of
mens rea, he has forfeited his appeal of this issue other than for plain error. See
United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (“We typically review a
challenge to jury instructions for an abuse of discretion. Where a party fails to timely
object to an instruction at trial, however, we review only for plain error.” (citation
omitted)). Citing Bruguier, Fast Horse maintains that we should review this
instruction de novo because the final jury instructions’ omission of an element of the
offense—namely, his knowledge of Little Elk’s incapacity—denied him the defense
that he lacked such awareness. See Bruguier, 735 F.3d at 757 (quoting United States
v. Young, 613 F.3d 735, 744 (8th Cir. 2010)). We assume, without deciding, that
Fast Horse’s objection to the relevant instruction was insufficiently specific, and we
apply plain error review.

       In reviewing for plain error, we have the discretion to reverse the district court
if the defendant shows “(1) an error, (2) that was ‘plain,’ (3) ‘affects substantial
rights,’ and (4) ‘the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” United States v. Rush-Richardson, 574 F.3d 906, 910 (8th
Cir. 2009) (quoting United States v. Olano, 507 U.S. 725, 735–36 (1993), for plain
error factors). A jury instruction is plainly erroneous if it misstates the law. United
States v. Wisecarver, 598 F.3d 982, 989 (8th Cir. 2010). Although our en banc
decision in Bruguier post-dates Fast Horse’s trial, for these purposes “it is enough
that an error be ‘plain’ at the time of appellate consideration.” Henderson v. United
States, 133 S. Ct. 1121, 1130–31 (2013); United States v. Webster, 84 F.3d 1056,

                                           -3-
1067 (8th Cir. 1996) (“the proper focus is the law applicable on appeal rather than at
trial”).

       “Jury instructions are adequate if, taken as a whole, [they] adequately advise
the jury of the essential elements of the offenses charged and the burden of proof
required of the government.” United States v. Rice, 449 F.3d 887, 895 (8th Cir.
2006) (quotation omitted). Since it is clear from Bruguier that for a sexual abuse
conviction under 18 U.S.C. § 2242(2), a jury must find beyond a reasonable doubt the
defendant’s knowledge of his or her victim’s incapacity, the district court’s
instructions would misstate the law if they did not “adequately advise” the jury of this
element. See Bruguier, 735 F.3d at 761 (“‘[K]nowingly’ in section 2242(2) applies
to each element of the offense.”). In this case, the court instructed the jury as follows:

             The crime of sexual abuse, as charged in Count IV of the
      indictment, has five elements, which are:
             One, that on or about the 1st day of December, 2010, and the 31st
      day of December, 2010, Anthony Fast Horse engaged in a sexual act
      with Quintina Little Elk;
             Two, that at the time of such act, Quintina Little Elk was
      incapable of appraising the nature of the conduct or was physically
      incapable of declining participation in, or communicating her
      unwillingness to engage in, that sexual act;
             Three, that Mr. Fast Horse committed such act knowingly;
             Four, that Mr. Fast Horse is an Indian; and
             Five, that the offense took place in Indian Country.
             If all of these elements have been proved beyond a reasonable
      doubt as to the Defendant, then you must find the Defendant guilty of
      the crime charged in Count IV of the indictment, otherwise you must
      find the Defendant not guilty of this crime.

Final Jury Instructions at 10, No. 12-30034, ECF No. 201. The district court rejected
Fast Horse’s proposed jury instruction on this same count. That instruction proposed



                                           -4-
an expansion of the third element regarding mens rea and would have required the
jury to find beyond a reasonable doubt as follows:

      3.     That Anthony Fast Horse and Ina Crow Dog knew that Quintina
      Little Elk was incapable of appraising the nature of the conduct and was
      physically incapable of declining participation in and communicating
      unwillingness to engage in that sexual act.

Proposed Jury Instructions at 4, No. 12-30034, ECF No. 151-1 (emphasis added).2

       The jury instructions in this case do differ from the instructions given in
Bruguier, which we found had “erroneously omitted a mens rea element.” Bruguier,
735 F.3d at 756. In Bruguier, the final instructions told the jurors that, in order to
convict Bruguier, they must find beyond a reasonable doubt (1) that he “did
knowingly cause or attempt to cause Crystal Stricker to engage in a sexual act”; and
(2) “that Crystal Stricker was physically incapable of declining participation in and
communicating unwillingness to engage in that sexual act.” Id. at 757. Thus, in
Bruguier, the district court included the mens rea requirement, “knowingly,” only in
the element requiring the jury to find that the defendant had committed the sexual act.
In contrast, the district court in this case included a separate element altogether for
the mens rea requirement; it did not include mens rea in either the conduct element
(first element) or the incapacity element (second element) of the offense. That
additional element simply required the jury to find “that Fast Horse committed such
act knowingly.” The question is, then, whether this instruction, as given, properly
required the jury to find beyond a reasonable doubt both that Fast Horse knowingly
committed the sexual act and that he knew Quintina Little Elk was incapable of
appraising the nature of the conduct or was physically incapable of declining


      2
        The proposed instruction refers to Ina Crow Dog because she had not yet pled
guilty at the time it was submitted.


                                         -5-
participation in, or communicating her unwillingness to engage in, that sexual act.
We conclude the instruction did not.

       Pursuant to element one, the jury was instructed it had to find that Fast Horse
“engaged in a sexual act.” Element two provided that “at the time of such act,” Little
Elk lacked the capacity to consent in “that sexual act.” Finally, element three, the
only element that instructed the jury on mens rea, required the jury to find “that Mr.
Fast Horse committed such act knowingly.” Thus, the second and the third elements
referred back to “such act” and “that sexual act”—both of which must be the “sexual
act” described in element one. There is no other “act” described in the instruction.
A fair and logical reading of the instruction therefore leads to the conclusion that the
jury was required to find only that Fast Horse knew he was committing the sexual act
at issue, but not that he knew Little Elk lacked the capacity to consent to that sexual
act. This jury instruction shared the same inaccurate statement of the law as the
instruction in Bruguier. See Bruguier, 735 F.3d at 757 (jury required to find only that
Bruguier “did knowingly cause or attempt to cause Crystal Stricker to engage in a
sexual act”). The court’s use of jury instructions that misstated the law constituted
plain error. Fast Horse thus meets the first and second prongs of the Olano plain error
test.

       Under the third prong of the Olano test, the erroneous instruction must have
affected the defendant’s substantial rights. The instruction must have been
prejudicial, meaning that there was not a certainty, but a “reasonable probability that,
but for [the error claimed], the result of the proceeding would have been different.”
Wisecarver, 598 F.3d at 989 (citation omitted). See United States v. Rice, 449 F.3d
887, 896 (8th Cir. 2006) (no plain error where fraud jury instructions did not define
“intent to defraud,” but did define similar terms such that the requisite mens rea was
clear, and “overwhelming” evidence demonstrated that Rice “was aware” of a legal
requirement that he repeatedly sought to evade and then violated); United States v.



                                          -6-
Pinque, 234 F.3d 374, 378 (8th Cir. 2000) (no plain error where conspiracy jury
instructions omitted the requirement for jury to find that defendant conspired with at
least one person who was not a government agent, where jury heard “a great deal of
evidence tending to show” exactly that). Here, neither party presented evidence
during the trial on Fast Horse’s knowledge of Little Elk’s incapacity or argued it in
closing. Had the jury instructions required the government to prove this element
beyond a reasonable doubt, presumably both parties would have presented additional
evidence and argument on that element. Moreover, answering this question requires
credibility determinations that are the province of the jury, rather than evidence
currently available in the record. We therefore cannot say there was “overwhelming”
evidence on this point. See Rice, 449 F.3d at 896. In this situation, we find it
reasonably probable, see Wisecarver, 598 F.3d at 989, that the verdict would have
been different with jury instructions that accurately reflected the elements of 18
U.S.C. § 2242(2).

       Finally, where a defendant has been denied “his Sixth Amendment right to a
jury determination of an important element of the crime, the integrity of the judicial
proceeding is jeopardized.” United States v. Baumgardner, 85 F.3d 1305, 1310 (8th
Cir. 1996). See also Webster, 84 F.3d at 1067 (“[B]ecause it is unclear whether a
properly instructed jury would have found [defendant] guilty,” failing to correct the
district court’s error would “result in a miscarriage of justice.” (citation omitted)).
Given the current state of the law and the omission of a clear, accurate mens rea jury
instruction, the fourth prong of the Olano test is satisfied, and we have the discretion
to reverse Fast Horse’s conviction on plain error review.

       We note that other defendants who appealed their convictions under 18 U.S.C.
§ 2242(2) based on the mens rea jury instruction have been granted new trials after
our en banc decision in Bruguier. See United States v. Rouillard, 740 F.3d 1170 (8th
Cir. 2014) (reversing conviction after Bruguier, given similar proffered and denied



                                          -7-
jury instructions); United States v. Chasing Hawk, ___ F. App’x ___, No. 12-1193,
2013 WL 6332110 (8th Cir. Dec. 6, 2013) (same). Given our obligation to ensure
both that Fast Horse’s constitutional rights are protected and that justice is
administered consistently, we reverse Fast Horse’s conviction.

                                    III. Conclusion

      We reverse Fast Horse’s conviction and remand for a new trial. We therefore
need not address his remaining claims on appeal. See Rush-Richardson, 574 F.3d at
913 (declining to reach sentencing arguments given the decision to reverse
conviction).

COLLOTON, Circuit Judge, dissenting.

        The court vacates yet another conviction of a sexual aggressor who engaged
in sexual intercourse with a woman who was passed out or asleep. The font of these
reversals, United States v. Bruguier, 735 F.3d 754 (8th Cir. 2013) (en banc), held by
the narrowest of margins that 18 U.S.C. § 2242(2) requires a jury to find that a
perpetrator of sexual abuse acted with actual knowledge that his victim was
incapacitated. The court’s decision in this case, however, goes well beyond Bruguier.
It dilutes the plain error standard of review and grants relief to a defendant, Anthony
Fast Horse, who failed to object and cannot meet his burden of showing a clear error
or prejudice based on a jury instruction that is materially different from the instruction
in Bruguier. I would affirm the judgment.

      During his trial on charges of committing sexual abuse in Indian country, Fast
Horse proposed a jury instruction concerning § 2242(2). Under his proposal, one
element of the offense was that the defendant “knew that [the victim] was incapable
of apprising the nature of the conduct and was physically incapable of declining



                                           -8-
participation in and communicating unwillingness to engage in that sexual act.” R.
Doc. 151-1, at 4. This proposal was an incorrect statement of the law, as it required
the government to prove that Fast Horse knew the victim suffered from three types
of incapacity, whereas the statute as construed in Bruguier requires knowledge of
only one. The district court declined to adopt Fast Horse’s proposal and stated the
elements in a different way. R. Doc. 201, at 10. At the conference on final jury
instructions, Fast Horse did not object to the way in which the district court expressed
the knowledge requirement of § 2242(2). T. Tr. 478-494.

       Federal Rule of Criminal Procedure 30 provides that to preserve an objection
to jury instructions for appellate review, a party must “inform the court of the specific
objection and the grounds for the objection before the jury retires to deliberate.”
Merely proposing a jury instruction at an earlier stage of the proceeding (even one
that correctly states the law) is insufficient to preserve a claim of error in the final
instructions. A defendant must lodge a specific objection in response to the final
instructions proposed by the court. United States v. Tobacco, 428 F.3d 1148, 1150
(8th Cir. 2005); United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983); United
States v. Kutrip, 670 F.2d 870, 876 (8th Cir. 1982); United States v. Parisien, 574
F.2d 974, 976 (8th Cir. 1978); United States v. Byrd, 542 F.2d 1026, 1028 (8th Cir.
1976). Fast Horse made no such objection. His only objection to the pertinent
instruction was that it should address “the absence of consent.” T. Tr. 482-83. He
therefore forfeited any challenge to the knowledge element of the instruction, and the
plain error standard of Federal Rule of Criminal Procedure 52 governs our appellate
review. See generally United States v. Olano, 507 U.S. 725 (1993).3


      3
       The court, ante, at 3, attributes to Fast Horse an argument that Bruguier
provides for de novo review of the alleged instructional error. The Bruguier court’s
discussion of standard of review, however, concerned how to review a preserved
claim of error in the jury instructions defining the elements of § 2242(2). On that
issue, which is not presented here, Bruguier deviated from circuit precedent by


                                          -9-
       To justify relief under the plain error standard of Rule 52, Fast Horse must
show that the district court committed an error, that the error was obvious, that the
error prejudiced him, and that the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. at 732. “Meeting all four prongs is
difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation omitted). Fast Horse cannot meet this burden.

     The district court’s final jury instruction regarding § 2242(2) included five
elements:

      The crime of Sexual Abuse, as charged in Count IV of the indictment,
      has five elements, which are:

                    One, that on or about the 1st day of
                    December, 2010, and the 31st day of
                    December, 2010, Anthony Fast Horse
                    engaged in a sexual act with [the alleged
                    victim];




applying de novo review. The defendant in Bruguier complained that the final
instructions omitted an element of the offense. Our pre-Bruguier cases reviewed a
claim that jury instructions omitted an element of the charged offense for abuse of
discretion. See United States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010); United
States v. Dooley, 580 F.3d 682, 685 (8th Cir. 2009); United States v. Williams, 308
F.3d 833, 837 (8th Cir. 2002). De novo review was applied where a defendant
claimed that the instructions denied him a legal defense, such as entrapment, insanity,
coercion, or self-defense. E.g., United States v. Chase, 717 F.3d 651, 653 (8th Cir.
2013); United States v. Young, 613 F.3d 735, 744 (8th Cir. 2010) (cited in Bruguier,
735 F.3d at 757); United States v. Harper, 466 F.3d 634, 649 (8th Cir. 2006); United
States v. Davis, 237 F.3d 942, 945 (8th Cir. 2001); United States v. Long Crow, 37
F.3d 1319, 1323 (8th Cir. 1994).


                                         -10-
                      Two, that at the time of such act, [the alleged
                      victim] was incapable of appraising the nature
                      of the conduct or was physically incapable of
                      declining participation in, or communicating
                      her unwillingness to engage in, that sexual
                      act;

                      Three, that Mr. Fast Horse committed such
                      act knowingly;

                      Four, that Mr. Fast Horse is an Indian; and

                      Five, that the offense took place in Indian
                      Country

             If all of these elements have been proved beyond a reasonable
      doubt as to the Defendant, then you must find the Defendant guilty of
      the crime charged in Count IV of the indictment, otherwise you must
      find the Defendant not guilty of this crime.

R. Doc. 201, at 10.

       The court, ante, at 3, 6, subtly converts plain-error review to de novo review
by asserting that Fast Horse need only show that the final jury instruction “misstated
the law.” But any error in the instruction must be plain to justify relief under Rule 52,
and a jury instruction that does not clearly and obviously misstate the law fails to
qualify. See, e.g., United States v. Ganim, 510 F.3d 134, 151 (2d Cir. 2007)
(Sotomayor, J.) (although jury charge “introduced unnecessary ambiguity,” there was
no plain error because any error was not “clear or obvious.”); United States v. Thayer,
201 F.3d 214, 222 (3d Cir. 1999) (explaining that under plain-error review, “[w]hen
a jury instruction is ambiguous and open to an unconstitutional interpretation, . . . we
will reverse only if the ambiguity in the instruction is ‘sure’ to have had a prejudicial
effect.”). Under its more lenient approach, the court reasons that the instruction was



                                           -11-
wrong, because the third element—that Fast Horse “committed such act
knowingly”—meant only that Fast Horse knew he engaged in a sexual act, not that
he knew the victim was incapacitated. But a common-sense jury, attempting in good
faith to follow the instruction, could just as well have read it as a progression, in
which the third element encompassed the two elements that came before, and the
“act” that Fast Horse committed knowingly was defined by the second element as a
sexual act with an incapacitated person. “Like so much other legalese, such is
inherently ambiguous.” Bryan A. Garner, Learn Them and Ax Them: Here are a few
suggestions to build your own ‘Index Expurgatorius’, ABA Journal Magazine, Apr.
2014. The instruction’s ambiguity left room for a jury to decide that Fast Horse was
not guilty because he lacked knowledge of the victim’s incapacity, which may explain
why Fast Horse’s capable counsel did not object. It is not the stuff of plain error.

       Fast Horse also makes no showing that he was prejudiced by the instruction.
The court, ante, at 7, again subtly converts what should be plain-error review to
ordinary harmless-error review by presuming that Fast Horse would present
additional evidence in a new trial with different instructions and concluding that the
prejudice inquiry cannot be resolved based on “evidence currently available in the
record.” The burden, however, rests with Fast Horse to show, on the current record,
that he was prejudiced. It is “our obligation as an appellate court to apply the third
and fourth Olano factors based upon the existing record on appeal.” United States
v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). That Fast Horse supposedly
had no reason to present evidence or make argument about absence of knowledge
does not relieve him of the burden. We rejected that notion in Pirani, where the
defendant had no reason to argue for a variance from the then-mandatory sentencing
guidelines, but we held that where the record is silent, and the effect of the alleged
error is “uncertain or indeterminate—where we would have to speculate—the
appellant has not met his burden of showing a reasonable probability that the result
would have been different but for the error.” Id. at 553 (internal quotation omitted).



                                        -12-
       Even on the court’s own terms, the presumption that Fast Horse forwent
presenting additional evidence on the element of knowledge is speculative and
unwarranted by the circumstances. Fast Horse proposed a jury instruction that would
have expressly required the jury to find that he knew of the victim’s incapacity. The
district court did not settle the final jury instructions until after the close of the
evidence, at which time the court determined to give the instruction described above.
Before the instructions were resolved, the district court did not exclude any evidence
that Fast Horse sought to introduce on the issue of knowledge. If Fast Horse had
additional evidence that would raise doubt about his knowledge of the victim’s
incapacity, then he had no reason to withhold it during the trial while a decision on
final jury instructions was pending.

       Knowledge is rarely proved by direct evidence, and the government presented
strong circumstantial evidence that Fast Horse knew the victim was incapacitated.
The victim testified that she attended a party at Fast Horse’s residence where the
victim and others drank alcohol. During the party, she went into a bedroom, which
Fast Horse shared with the victim’s sister, and passed out while fully clothed. She
later awakened with Fast Horse on top of her, engaging in sexual intercourse; her
clothing had been removed, except for an undershirt. Fast Horse did not get off when
she called for him to stop, and she had to push him away. The jury indisputably
found beyond a reasonable doubt that the victim was incapacitated when Fast Horse
engaged in the sexual act. The circumstances of the offense and the close proximity
of the perpetrator to the victim provided ample reason to conclude that Fast Horse
knew full well that the victim was incapacitated. Fast Horse points to nothing in the
record to suggest that a different jury acting under different instructions would have
acquitted him based on doubt about whether he thought the sleeping victim was
awake when he penetrated her.




                                        -13-
       A third manifestation of the court’s departure from plain-error review—this
one, not so subtle—is an appeal to ensure that “constitutional rights are protected”
and that “justice is administered consistently.” Ante, at 8. “But the seriousness of the
error claimed does not remove consideration of it from the ambit of the Federal Rules
of Criminal Procedure.” Johnson v. United States, 520 U.S. 461, 466 (1997). And
of course plain-error review, by its very nature, means that some defendants who
forfeit a claim of error will be denied relief while those who make appropriate
objection will succeed on appeal. “No procedural principle is more familiar . . . than
that a constitutional right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.” Yakus v. United States, 321 U.S. 414, 444 (1944).

       Neither decision cited by the court regarding § 2242(2), United States v.
Rouillard, 740 F.3d 1170 (8th Cir. 2014), or United States v. Chasing Hawk, No. 12-
1193, 2013 WL 6332110 (8th Cir. Dec. 6, 2013) (unpublished), granted relief based
on a comparable jury instruction after applying plain-error review. The court neglects
to mention, moreover, that Chasing Hawk was an unpublished decision and is not
precedent. 8th Cir. R. 32.1A. The court suggests that Rouillard granted relief “given
similar proffered and denied jury instructions,” but fails to describe critical
differences between that case and this one. The defendant in Rouillard proffered a
correct statement of the law as construed in Bruguier and made a contemporaneous
objection to the final instructions in compliance with Rule 30. Fast Horse proffered
an erroneous statement of the law and made no contemporaneous objection to the
final instruction on knowledge. The final instruction in Rouillard was the same as in
Bruguier; the instruction in this case was different. The court in Rouillard conducted
ordinary review; Fast Horse is limited to plain-error review and bears the burden to
show prejudice.




                                         -14-
       For these reasons, there was no plain error in the jury instructions that warrants
relief. Seeing no merit to Fast Horse’s other challenges to his conviction, and no
material distinction between this case and United States v. Betone, 636 F.3d 384, 388
(8th Cir. 2011), on the application of USSG § 3A1.1(b)(1) at Fast Horse’s sentencing,
I would affirm the judgment of the district court.
                            _________________________




                                          -15-
