Eighth Circuit – Page 17

President Obama said, “Jane Kelly and Gregory Alan Phillips have proven themselves to be not only first-rate legal minds but faithful public servants. It is with full confidence in their ability, integrity, and independence that I nominate them to the bench of the United States Court of Appeals.”

Jane Kelly: Nominee for the United States Court of Appeals for the Eighth Circuit
Jane Kelly has been an Assistant Federal Public Defender in the Northern District of Iowa since 1994, serving as the Supervising Attorney in the Cedar Rapids office since 1999.

Kelly was born and raised in Greencastle, Indiana. She received her B.A. summa cum laude in 1987 from Duke University and her J.D. cum laude in 1991 from Harvard Law School. After graduating from law school, Kelly clerked for the Honorable Donald J. Porter of the United States District Court for the District of South Dakota. Subsequently, she also clerked for the Honorable David R. Hansen on the United States Court of Appeals for the Eighth Circuit. Prior to becoming an Assistant Federal Public Defender, Kelly worked briefly as a visiting instructor at the University of Illinois College of Law. Since joining the Federal Public Defender’s Office, Kelly has argued numerous federal appellate cases, tried 14 cases to verdict in federal court, and argued countless motions. In 2004, she received the John Adams Award from the Iowa Association of Criminal Defense Attorneys, which is given annually to an Iowa attorney who has dedicated his or her career to defending the indigent.

Gregory Alan Phillips: Nominee for the United States Court of Appeals for the Tenth Circuit
Gregory Alan Phillips has served as Wyoming’s Attorney General since March 2011. As Attorney General, he is the chief law enforcement officer of the state and his office represents Wyoming in all criminal appeals and civil suits before state and federal courts.

Phillips grew up in Evanston, Wyoming. He received his B.A. from the University of Wyoming in 1983 and his J.D. with honors from the University of Wyoming College of Law in 1987. After graduating from law school, he served as a law clerk to the Honorable Alan B. Johnson of the United States District Court for the District of Wyoming from 1987 to 1989. In 1989, Phillips joined his father and brother in their general law practice in Evanston, handling a broad range of civil matters. From 1993 to 1999, he also represented Uinta County in the Wyoming State Senate. Phillips opened the law firm Mead & Phillips in 1998, where he handled a wide variety of civil litigation and prosecuted Medicaid reimbursement claims on behalf of Wyoming. In 2003, he joined the United States Attorney’s Office for the District of Wyoming and handled criminal prosecutions and appeals on behalf of the government. As an Assistant United States Attorney, Phillips argued nineteen cases before the United States Court of Appeals for the Tenth Circuit. He continued to serve in the United States Attorney’s Office until he was selected to serve as Attorney General by current Wyoming Governor Matthew Mead.

Eighth Circuit Affirms Kickbacks Conviction of Duane Big Eagle, former Crow Creek Sioux Chair

January 10, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Big Eagle:

113754P — CA8 opinion

Big Eagle Brief

US Brief

Big Eagle Reply

Eighth Circuit Creates Intra-Circuit Conflict –On Same Day — in Major Crimes Act Sexual Assault Cases

December 14, 2012Matthew L.M. Fletcher1 Comment

Here are the cases:

United States v. Bruguier

United States v. Rouillard

Here is a blog post from On Brief, Iowa Appellate Blog, that details the conflict. H/t to P.T. and How Appealing.

The conflict:

In United States v. Bruguierand United States v. Rouillard, 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.” The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.’”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Minnesota COA Affirms Enforcement of Tribal Court Judgment in White Earth Fraud Case

December 4, 2012Matthew L.M. Fletcher

Here is the unpublished opinion in United States ex rel. Auginaush v. Medure:

US ex rel Auginaush v Medure

An excerpt:

The tribal court adopted the arbitration transcript as the official record of its proceeding. This transcript included testimony from Medure. In August 2009 the tribal court ruled that the 1992 contract was null and void. In November 2010 the tribal court issued an order and judgment in favor of the band awarding all amounts paid under the contract, amounting to more than $18.5 million with interest accruing at the daily rate of $1,669.12.

We posted about this case in 2009.