• Eighth Circuit Grants Rehearing En Banc to Settle Intra-Circuit Split
  • March 7, 2013
  • Law Firm: Nyemaster Goode P.C. - Des Moines Office
  • Today, the Eighth Circuit ordered rehearing en banc in United States v. Bruguier and United States v. Rouillard—two cases that were issued on the same day with opposite results.

    We reported on Bruguier and Rouillard in December of last year. In both cases the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is-(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.”  Both defendants argued that the “knowingly” requirement extends to subsections (A) and (B)—that is, the government must prove that the defendant knew the victim was mentally or physically impaired.  The government argued in both cases that the mens rea requirement doesn’t extend beyond the first clause.

    A majority of the Bruguier panel agreed with the defendant.  The Rouillard panel agreed with the government.

    The full 11-member court (plus Senior Judge Bright, who dissented in Bruguier) will hear oral argument on April 12 in St. Louis.