author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Efrain PIEDRA-MORALES, Defendant-Appellant
    No. 16-40476
    United States Court of Appeals, Fifth Circuit.
    Filed December 13, 2016
    Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JONES, BARKSDALE, and COSTA, Circuit Judges.
   PER CURIAM:

Efrain Piedra-Morales was caught and pled guilty to illegal reentry in violation of 8 U.S.C. § 1326(a), (b). Previously, he had been deported three times from the United States. Piedrar-Morales appeals the district court’s application of an eight-level aggravated felony enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for deportation after an earlier aggravated felony conviction. He contends that his prior convictions for illegal. reentry under 8 U.S.C. § 1326(b)(2) are not aggravated felonies because they are predicated on his prior cocaine possession convictions, which are no longer considered aggravated felonies under Lopez v. Gonzales, 549 U.S. 47, 50, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Because the cocaine possession convictions are no longer aggravated felonies, he argues that his prior illegal reentry convictions are also not aggravated felonies. We find no error and affirm the sentence.

The presentence report recommended a base offense level of eight in accordance with U.S.S.G. § 2L1.2(a) and subtracted three-levels for acceptance of responsibility, making his total offense level thirteen. At sentencing, defense counsel noted their objection to the eight-level enhancement, but said they “understand that that issue has been foreclosed by the Fifth Circuit and does not apply.” The district court agreed with this statement. Piedra-Mor-ales’s resulting guidelines ■ sentencing range was 18-24 months in prison and the district court sentenced him to serve 18 months. Piedra-Morales timely appealed. With this sentence, he is scheduled for release from custody in mid-January 2017.

This court reviews a preserved challenge to the district court’s application of the Sentencing Guidelines de novo. United States v. Medina-Torres, 703 F.3d 770, 773 (5th Cir. 2012). Section 2L1.2(b)(1)(C) authorizes an eight-level enhancement of the base offense level if the defendant was previously deported after an aggravated felony conviction. An aggravated felony includes an illegal .reentry offense committed by one who has previously been deported following an aggravated felony conviction. 8 U.S.C. § 1101(a)(43)(O).

In accordance with defense counsel’s acknowledgement that this issué is foreclosed by our precedent, our prece-dential opinion in United States v. Gamboa-Garcia compels our holding in this case. 620 F.3d 546 (5th Cir. 2010). There, the defendant likewise challenged an eight-level sentence enhancement in accordance with § 2L1.2(b)(1)(C). 620 F.3d at 547-48. The defendant claimed that her prior illegal reentry conviction was not an aggravated felony because it arose after a conviction for accessory to murder, which was incorrectly categorized as an aggravated felony. Id. at 548-49. This court declined to “resolve this interpretive dispute.” We determined instead that the judgment for the prior illegal reentry conviction specifically indicated that the defendant pled guilty under § 1326(b)(2) based on an aggravated felony conviction. Id. at 549. The defendant’s “guilty plea expressly eliminate[d] the interpretive question she raise[d].” Id.

Piedrar-Morales seeks an escape route from his two prior knowing and voluntary guilty pleas entered pursuant to § 1326(b)(2). Piedra-Morales argues that his case is different from Gamboa-Garcia because the California felony cocaine possession offenses underlying his prior illegal reentry conviction no longer qualify as aggravated felonies under Lopez, while the defendant in Gamboar-Garcia contended that her predicate conviction was improperly classified at the time of her prior illegal reentry conviction. See 620 F.3d at 548. This distinction is not dispositive under the logic of Gamboa-Garcia. As noted, that case was resolved based on the defendant’s prior guilty plea to a § 1326(b)(2) offense and concomitant admission that she was deported following a conviction for an aggravated felony.- 620 F.3d at 549. Permitting an attack on a prior conviction would “undermin[e] the finality of such convictions, requiring courts repeatedly to reconsider arcane issues regarding prior convictions.” Id. Consequently, because Piedra-Morales pled guilty twice under § 1326(b)(2), we hold that the district court did not err in applying an eight-level aggravated felony enhancement to the instant, third conviction.

The sentence imposed by the district court is AFFIRMED.


source: Caselaw Access Project

author: CLAY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Geremy ATKINS, Defendant-Appellant.
    No. 16-5531
    United States Court of Appeals, Sixth Circuit.
    Argued: December 1, 2016
    Decided and Filed: December 13, 2016

      ARGUED: Unam Peter Oh, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, • for Appellant. Elizabeth Rogers, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Unam Peter Oh, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Elizabeth Rogers, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
    Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.

       The Honorable Joseph M. Hood, Senior Dis- ■ trict Judge- of the United- States District Court for the Eastern District of Kentucky, sitting by designation.

   OPINION

CLAY, Circuit Judge.

Defendant Geremy Atkins appeals from the judgment of conviction and sentence entered by the district court on April 21, 2016 after a jury found Defendant guilty of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Defendant argues that his conviction is tainted because the government violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by striking a black venireperson for racially motivated reasons during jury selection for Defendant’s trial. We have jurisdiction to entertain this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we REVERSE the district court’s denial of Defendant’s Batson challenge, VACATE Defendant’s conviction and sentence, and REMAND for a new trial.

BACKGROUND

The relevant facts of this ease are undisputed. Defendant is a 32-year-old black man from the Memphis, Tennessee area. He has prior state court convictions for unlawful possession of a weapon, resisting arrest, and possession of a prohibited weapon. On September 4, 2014, Defendant was arrested by the Memphis Police Department for possession of an assault rifle. On January 29, 2015, a federal grand jury indicted Defendant in the Western District of Tennessee for being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant elected to proceed to trial.

Trial began on January 11, 2016. At the beginning of the jury selection process, the district court explained to Defendant and the government how it intended to conduct voir dire:

THE COURT: I will ask [the prospective jurors] general information first, just verifying their place of employment, basically what they do, how long they’ve worked there. I usually go into if they are in a supervisory position or anything like that.
I also verify that they still live in the district. I won’t ask any addresses or anything like that. I will get their marital status and number of kids. I usually limit it to that once they’re in the box.
Both sides will have an opportunity to question the panel.
After that, peremptory challenges, I think you have sheets and then pass them forward to me and I will read the names and we will proceed in that fashion.

(R. 79, Voir Dire Transcript, PagelD #169-70.) The district court notified the prospective jurors that the trial would last approximately three days, based on the information it had gathered from Defendant and the government.

The district court conducted voir dire in accordance with its instruction to the parties, asking each prospective juror for one year of employment history, as. well as their marital status and how many children they had. Both parties were given the opportunity to ask questions of each prospective juror before deciding whether to exercise their peremptory strikes. The district court ultimately seated white jurors Jimmy Stewart, who had six children, Sarah Williams, who had four children, and Jennifer Absher, who had been laid off from her job approximately one month before voir dire began.

During voir dire, the government used peremptory strikes on five prospective jurors — all of whom were black. The last of these prospective jurors was Antonio Dan-dridge. When questioned by the district court, Mr. Dandridge reported that he was married, and had eight children. Mr. Dan-dridge also stated that: (i) he worked as a custodian for a company called Service Master; (ii) he had begun working for Service Master four months prior to voir dire-, and (iii) before working at Service Master, he had worked as a cook at a Krispy Kreme donut shop for the previous year. In response to a question from the government, Mr. Dandridge stated that his nephew was a Memphis police officer.

After the government struck Mr. Dan-dridge, Defendant brought a Batson challenge, alleging that the government’s use of strikes exclusively on black venireper-sons violated Batson v. Kentucky. The district court determined that Defendant had made a prima facie showing of discrimination and shifted the burden to the government to come forward with race-neutral reasons for the strike. The government offered race-neutral reasons as to each of the five black venirepersons it had stricken. With respect to Mr. Dandridge, the government offered:

MR. CARRIKER: Mr. Dandridge — Mr. Dandridge is just one of those people that I didn’t get a good feeling about. He didn’t have a very long employment history, which I don’t usually like. I prefer people that have a stable background. He has eight children which kind of also bugged me a little bit. I’m afraid he might have problems with thinking about his child care or children while he was here. And so that was just a peremptory challenge based on those reasons.

(Id. PagelD #330-31.)

The district court determined that the government had met its burden to provide race-neutral reasons for the strike and shifted the burden back to Defendant to show that the government’s reasons were pretextual. Defendant argued that Mr. Dandridge’s child' care would not be an issue because he was married, and pointed once again to the fact that all five of the government’s peremptory strikes were used on black prospective jurors. Defendant also argued that the district court only asked for one year’s worth of woi'k history from each prospective juror, and that Defendant’s continuous work history over that span was “fairly good . not poor.” (Id. PagelD #333.) In response to Defendant’s argument, the government argued:

MR. CARRIKER: Mr. Dandridge, he has eight children. He has worked for Service Master for four months and he was at Krispy Kreme for I believe he said maybe up to a year before that. That’s not a very good work history as far as being stable, changing jobs, four months in, eight children. I was concerned about his ability to focus on the case at hand and listen and be attentive in a trial.

(Id. PagelD #332.)

The district court denied Defendant’s Batson challenge, reasoning that the government’s employment justification was not pretextual:

THE COURT: I will allow lawyers obviously to follow-up on things, and it does seem to me that it is a sufficient answer with regard to Mr. Dandridge and his work history given everything else about him.
So race neutral reasons as far as the challenges are concerned, from what I have heard here, I’m going to have to deny the challenge.

(Id. PagelD #333-34.)

Defendant was convicted at trial and sentenced to thirty-seven months in prison. The district court entered judgment on April 21, 2016. Defendant filed a timely notice of appeal.

DISCUSSION

Defendant argues that the district court erred at step three of the Batson inquiry when it determined that the government’s race-neutral explanations for striking Mr. Dandridge were not pretexts for improper racial discrimination. After a thorough review of the record and relevant case law, we agree.

I. Applicable Legal Principles

“The ‘Constitution- forbids striking even a single prospective juror for a discriminatory purpose.’ ” Foster v. Chatman, — U.S. -, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)). The Supreme Court’s decision in Batson v. Kentucky “established [a] three-part process for evaluating claims that a prosecutor used peremptory challenges in violation of the Equal Px-otection Clause.” Miller-El v. Cockrell, 537 U.S. 322, 328, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race.” Id. “Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question.” Id. “Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Id. at 328-29, 123 S.Ct. 1029.

Here, the parties do not contest that Defendant made a prima facie showing of discriminatoi-y purpose, and that the government responded with race-neutral reasons justifying its strike of Mr. Dandridge. Accordingly, we will proceed directly to Batson step three. See Foster, 136 S.Ct. at 1747.

“[District courts must conduct a Batson inquiry ‘in light of all evidence with a bearing on it.’ ” United States v. Torres-Ramos, 536 F.3d 542, 560 (6th Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)). “[T]his command places an affirmative-duty on the district court to examine the relevant evidence that is easily available to a trial judge before ruling on a Batson challenge.” Id.; see also Snyder, 552 U.S. at 478, 128 S.Ct. 1203 (“[I]n considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”). At Batson step three, “the trial court must assess the plausibility and persuasiveness of the proffered race-neutral explanation based on the totality of the evidence before” it. United States v. Odeneal, 517 F.3d 406, 419 (6th Cir. 2008). “Although the trial court must decide the question of discriminatory intent, ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

“It is well established that a Bat-son violation may be shown by disparate treatment of white and minority jurors— that is, if a ‘side-by-side comparison[] of some black [potential jurors] who were struck and white ones who were not’ shows that the only material distinction between the removed black and the retained white individuals is their race.” Torres-Ramos, 536 F.3d at 559 (second alteration in original) (quoting Dretke, 545 U.S. at 241, 125 S.Ct. 2317). In conducting a comparative juror analysis, the compared jurors -need not be “ ‘similarly situated’ in all respects.” Odeneal, 517 F.3d at 420. In fact, the empaneled white jurors need not even match the stricken black venirepersons in all of the' characteristics the prosecution identified in striking the black venireper-sons. Dretke, 545 U.S. at 247 n.6, 125 S.Ct. 2317. It suffices that, after reading the “voir dire testimony in its entirety,” we find that the differences identified by the prosecution “seem far from significant.” Id. at 247, 125 S.Ct. 2317. Additionally, the “failure of the prosecution to inquire regarding a reason purported to be a basis for a [prospective] juror’s dismissal serves as evidence of discrimination.” Odeneal, 517 F.3d at 421.

II. Standard of Review

At the outset, we must determine which standard of review governs this appeal. Defendant primarily seeks to demonstrate that the government’s race-neutral justifications for striking Mr. Dandridge were pretextual by showing that the government did not express the same concerns about similarly situated white venireper-sons who. ultimately served on the jury. This species of argument is often referred to as a comparative juror analysis, and we will use that term hereafter. Defendant argues that the appeal raises purely legal issues, and thus our review should be de novo. By contrast, the government argues that Defendant failed to offer a comparative juror analysis before the district court, and that plain error review should therefore apply. As we will explain, neither party is correct, and we hold that clear error review is appropriate.

“On direct review” of a Batson challenge, “‘the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal’ and will not be overturned unless clearly erroneous.” Odeneal, 517 F.3d at 419 (quoting Hernandez v. New York, 500 U.S. 352, 364, 411 S.Ct. 1859, 114 L.Ed.2d 395 (1991) .(plurality opinion)). A “finding is ‘clearly erroneous’ when although there is evidence .to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Under this standard, if “the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it- even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 573-74, 105 S.Ct. 1504. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504.

“However, when ruling on alleged mistakes of law” in a Batson challenge, “the applicable standard of review is essentially de novo.” United States v. Cecil, 615 F.3d 678, 686 (6th Cir. 2010); see also United States v. Kimbrel, 532 F.3d 461, 465-66 (6th Cir. 2008) (“Because this argument concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge for clear error ... or review it de novo. In either event,- a mistake of law genei’ally satisfies dear-error, de-novo or for that matter abuse-of-discretion review.”).

When a party fails to raise an argument before the district court, the argument may generally only be reviewed for plain error on appeal. Fed. R. Crim. P. 52(b). The Supreme Court has explained that plain error review “involves four steps.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “First, there must be an error or defect — some sort of ‘[deviation from a legal rule’ — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the-appellant.” Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “Second, the legal error must be clear or obvious, rather, than subject to reasonable- dispute.” .Id. “Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings.’” Id. (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). “Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (alteration in original) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770).

Here, as noted earlier, the parties disagree as to which standard of review,applies. Defendant contends that clear error or de novo review should apply — and that it does not matter which the Court chooses, because the district court committed a legal error, and “a mistake of law generally satisfies clear-error, de-novo or for that matter abuse-of-discretion review,” Kimbrel, 532 F.3d at 465-66. The government argues that plain error review should apply because Defendant failed to request that the district court conduct a comparative juror analysis when he raised his Bat-son challenge.

Both parties are incorrect. Both the Supreme Court and this Court have held that the trial court’s ultimate decision at Batson step three as to whether the government had an “intent to discriminate” is “a pure issue of fact” that demands clear error review. Hernandez, 500 U.S. at 364, 111 S.Ct. 1859; Cockrell, 537 U.S. at 339, 123 S.Ct. 1029; Odeneal, 517 F.3d at 419. Defendant is squarely challenging the district court’s finding at Bat-son step three that the government lacked intent to discriminate when it struck Mr, Dandridge. Therefore; becausé the ultimate issue before us is factual, rather than legal in nature, de novo-.review is inappropriate.

But the government’s argument for plain error review also misses the mark. “Ordinarily, the courts of appeals do not consider claims or' arguments that were not raised in the district court.” United States v. Hayes, 218 F.3d 615, 619-20 (6th Cir. 2000) (emphasis added). However, in Dretke, the Supreme Court held on habeas review that the prosecution’s use Of peremptory strikes violated the Equal Protection Clause after conducting a comparative juror analysis. 545 U.S. at 241, 125 S.Ct. 2317. The dissenting Justices argued that the comparative juror analysis was inappropriate because the defendant never argued for such an analysis before the state trial court. Id. at 279-280, 125 S.Ct. 2317 (Thomas, J., dissenting). The Court rejected this argument:

The dissent contends that comparisons of black and nonblack venire panelists, along with Miller-El’s arguments aboút the prosecution’s disparate questioning of black and nonblack panelists and its use of jury shuffles, are not properly before this Court, not having been “put before the Texas courts.” Post, at 2347 (opinion of THOMAS, J.). But the dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence. See 28 U.S.C. § 2254(d)(2) (state-court factfinding must be assessed “in light of the evidence presented in the State court proceeding”); Miller-El v. Cockrell, supra, at 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (habeas petitioner must show un-reasonability “in light of the record before the [state] court”). There can be no question that the transcript of voir dire, recording the evidence on which Miller-El bases his arguments and on which we base our result, was before the state courts, nor does the dissent contend that Miller-El did not “fairly presen[t]” his Batson claim to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Id. at 241 n.2, 125 S.Ct. 2317; see also Kesser v. Cambra, 465 F.3d 351, 361 (9th Cir. 2006) (en banc) (holding that comparative juror analysis argument is not waived on appeal “even when it was not requested or attempted in the [trial] court” and that all that is required to preserve the argument for appellate review is “a transcript of voir dire and a Batson claim fairly presented”).

Although Dretke’s analysis occurred in the context of habeas proceedings, we see no reason why its reasoning should not apply with equal force under the more expansive, appellate review afforded in a direct appeal from a district court. Accordingly, we hold that because we possess a transcript of voir dire, and Defendant fairly presented his Batson claim to the district court, he has not waived the right to offer a comparative juror analysis on appeal. Dretke, 545 U.S. at 241 n.2, 125 S.Ct. 2317; Kesser, 465 F.3d at 361. We will therefore decline to apply plain error review, and instead use the clear error standard that generally applies when we review a district court’s decision at Batson step three. Hernandez, 500 U.S. at 364, 111 S.Ct. 1859; Odeneal, 517 F.3d at 419.

III. Analysis

A. Appropriaténess of a Comparative Juror Analysis

Defendant argues that a comparison of empaneled white jurors and Mr. Dandridge shows that the government’s race-neutral justifications for striking Mr. Dandridge were pretextual. The government counters by arguing that the district court did not err by failing to sua sponte conduct a comparative juror analysis, and that it would be inappropriate for us to conduct such an analysis on a cold appellate record. Accordingly, a threshold issue is whether we may properly consider Defendant’s arguments in light of the record before us.

To begin with, the government is correct that the district court’s failure to conduct its own comparative juror analysis is not. sufficient to require reversal. In Cecil, we held that “[i]f neither party argues for [a comparative juror] analysis to prove or disprove purposeful discrimination, the district court’s failure to undertake it is not necessarily reversible error.” Cecil, 615 F.3d at 687; see also McDaniels v. Kirkland, 813 F.3d 770, 776 (9th Cir. 2015) (rejecting the argument that a trial “court must conduct comparative juror analysis” under Batson step three (emphasis in original)). We have also suggested in dicta that we are not required to conduct a comparative juror analysis when one was not conducted before the district court. See Mahbub, 818 F.3d at 229 (“In any event, our case law explains that this court is by no means compelled to conduct a comparative juror analysis when a defendant failed to preserve the issue.”).

Whether we may elect to conduct a comparative juror analysis here is a subtler question. In Snyder v. Louisiana, the Supreme Court commented briefly on. the appropriateness of conducting a comparative juror analysis for the first time on appellate.review:

We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that -the jurors in question were not really comparable. In this case, however, the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause.

Snyder, 552 U.S. at 483, 128 S.Ct. 1203. As we have recently noted, beyond “this statement ... the Supreme Court did not provide any additional guidance as to when it would be proper for an appellate court to conduct a comparative juror analysis when the parties did not raise the alleged similarities between prospective jurors before the district court. Nor is it clear from the Supreme Court’s opinion as to what constitutes a ‘thoroughf ] exploration]’ of a particular issue.” Mahbub, 818 F.3d at 229 (alterations in original) (quoting Snyder, 552 U.S. at 483, 128 S.Ct. 1203).

The government argues that conducting a comparative juror analysis here would be inappropriate because there was not a sufficiently “thorough exploration of the employment and child care issues of either Mr. Dandridge or the white jurors” before the district court. (App. R. 10, Opposition Brief, at 15.) We disagree.

In Snyder, the prosecutor purported to strike a black venireperson who needed to complete a certain number of student-teaching hours in order to obtain his graduate degree because the prosecutor feared that the venireperson would be motivated to find the defendant guilty of a lesser included charge, instead of capital murder, in order to skip the trial’s penalty phase. 552 U.S. at 482, 128 S.Ct. 1203. The Supreme Court held that the prosecutor’s strike violated Batson, relying in part on a comparative juror analysis that was not developed before the trial court. Id. at 483, 128 S.Ct. 1203. Specifically, the Court noted- that an empaneled white juror appeared to have significantly more pressing time constraints, including looming, professional obligations and a need to be available to care for his children because of his wife’s recent surgery. Id. at 483-84, 128 S.Ct. 1203. The Court explained that its comparative juror analysis was proper because “the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause.” Id. at 483, 128 S.Ct. 1203.

Similarly, in Dretke, the Supreme Court granted relief based in part on a comparative juror analysis not developed before the trial court. 545 U.S. at 242, 125 S.Ct. 2317. There, the prosecution justified its strike of a black venireperson because the prosecutor believed that the venireperson would not impose the death penalty if rehabilitation was possible. Id. at 244, 125 S.Ct. 2317. In holding that the prosecution’s race-neutral justification was pretex-tual, the Court noted that several white panel members made similar statements about the death penalty and rehabilitation, and the prosecutor did not even question those panel members further. Id. Although the Court did not explain why the record was sufficiently developed to permit a comparative juror analysis, the Court suggested that the voir dire transcript, which recorded the prospective jurors’ views on the death penalty, was sufficient to permit appellate review. Id. at 241 n.2, 125 S.Ct. 2317.

■ The lesson we draw from Snyder and Dretke is that it is appropriate to conduct a comparative juror analysis for the first time on appeal when; (i) the government purportedly strikes a venireper-son because of an answer to a question posed during voir dire; (ii) venirepersons relevant to the comparison were asked the same question during voir dire; (iii) the relevant venirepersons actually answered that question in similar depth; and (iv) the purpose of the analysis is to show that the government treated jurors with similar answers differently. These factors will most often be present when venirepersons are asked a common question going to their basic fitness to serve as jurors, such as whether conflicting obligations would prevent them from focusing on the trial, see Snyder, 552 U.S. at 482-84, 128 S.Ct. 1203, or whether their moral or philosophical beliefs would prevent them from appropriately following the district court’s legal instructions, see Dretke, 545 U.S. at 244, 125 S.Ct. 2317. This is because the parties and the district court always have a powerful incentive to thoroughly explore the fitness of jurors in order to insure that the parties receive a fair trial. Thus, when these four factors are present, the Supreme Court’s concerns in Snyder about drawing specious comparisons on a cold appellate record will rarely be implicated, because the basis for comparison will usually have been “thoroughly explored.” See Snyder, 552 U.S. at 483, 128 S.Ct. 1203.

Applying these principles here, we hold that the record before us is sufficient to conduct a fair comparative juror analysis. During voir dire, the district court asked each venireperson to give his or her employment history for the last year and to disclose how many children they had. The government justified striking Mr. Dan-dridge because he had changed jobs four months prior and had eight children; the government was purportedly “concerned about his ability to focus on the case at hand and listen and be attentive in a trial.” (R. 79, PagelD #332.) The government did not delve deeper into Mr. Dandridge’s answers by, for instance, asking about his child care arrangements, or thé reasons he changed jobs. The government based its strike on the mere fact that Mr. Dandridge had a large family and had changed jobs recently. Because the record contains this exact same information about each prospective juror — how many children they had and their recent employment history — we can easily evaluate whether the government ■ expressed similar . concerns about white empaneled jurors with a large number of children, or that had a recent change in employment status. As in both Snyder and Dretke, edch of the venireper-sons relevant to the comparison — Mr. Dan-dridge and the empaneled white jurors— were asked on the record about the facts that Defendant seeks to compare. It is not unfair to the government to evaluate whether it expressed similar concerns about similarly-situated venirepersons,

Finally, we note our agreement with the Ninth Circuit that although “comparative juror analysis [is not] akvays .. compelled at the appellate level,” such “analysis is an important tool that courts should use on appeal.” Boyd v. Newland, 467 F.3d 1139, 1148-49 (9th Cir. 2004) (emphasis in original). As that court has explained in the context of habeas review:

We have recognized that “[without engaging in comparative juror analysis, we are unable to review meaningfully whether the trial court’s ruling at either step one or step three of Batson was unreasonable in light- of Supreme Court precedent.” Boyd v. Newland, 467 F.3d 1139, 1149 (9th Cir. 2006) (emphasis added). That is, in. order for us to discharge our responsibility under AEDPA to review a Batson claim under section 2264(d)(2), we often will have to conduct a formal comparative juror analysis, and our responsibility to conduct a comparative juror analysis is not contingent on whether the state court previously performed or did not perform a formal comparative juror analysis. When there has been a Batson challenge, trial courts are not always situated to stop the proceedings and conduct the kind of formal comparative juror analysis the Court conducted in Miller-El. Often, trial courts are well-situated to decide the question without conducting a formal comparative juror analysis because the trial court has had access to the juror questionnaires and has been intimately involved in the jury selection process. The trial judge has a front-row seat in the orchestra, making it possible for the trial court to rule quickly on spontaneous Batson challenges. Federal appellate courts are not similarly situated. From our lofty perch in the loges, where we are separated by time and distance from the proceedings, we must conduct a more formal comparative juror analysis because it is the only means we will have for assessing the state court’s factfind-ing.

Murray v. Schriro, 745 F.3d 984, 1006 (9th Cir. 2014).

As .Defendant’s trial aptly demonstrates, Batson challenges are often heard and decided without the formal briefing and motion practice that attends other challenges during a criminal trial. It is clunky and impractical to expect defendants and trial courts to halt proceedings, consult the transcrijpt, and offer a formal comparative juror analysis in the middle of voir dire. See id. Often, district courts will be well positioned to rule on Batson challenges without resorting to a comparison among venirepersons. See id. But because we can never be present to observe voir dire, a comparative juror analysis will usually be the only tool we have at our disposal to fairly evaluate Batson claims. See id. We therefore think it best to conduct a comparative juror analysis on. appeal whenever the basis for comparison has been sufficiently explored that the analysis will not be unfair to the government. See Snyder, 552 U.S. at 483, 128 S.Ct. 1203.

B. Application

A thorough review of the record demonstrates that the government’s reasons for striking Mr. Dandridge were pretexts for racial discrimination. Three considerations direct us to this conclusion.

First, a comparative juror analysis shows that the government did not express concerns about the ability of similarly-situated white jurors to focus throughout the trial despite their large number of children' and inconsistent work history. For instance, empaneled white juror Jimmy Stewart had six children, and alternate white juror Sarah Williams had four children. The government did not question either of these jurors’ ability to focus during the trial. Moreover, empaneled white juror Jennifer Absher had been searching for a job for approximately one month before voir dire was conducted. The government did not express any concerns that her employment history demonstrated an inability to focus through trial. The government’s failure to show the slightest interest in these jurors’ family size and employment history suggests that the government’s use of these factors with Mr. Dandridge was pretextual. Dretke, 545 U.S. at 241, 125 S.Ct. 2317 (“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”).

Second, the government failed to ask any questions of Mr. Dandridge — or any other juror — about the impact his large family and recent career change would have on his ability to focus at trial. During the Batson colloquy, the government explained that Mr. Dandridge’s work history and family size left the government “concerned about his ability to focus on the case at hand and listen and be attentive in a trial.” (R. 79, PagelD #332.) Despite these purported concerns, the government failed to ask obvious follow-up questions that might have confirmed or alleviated the government’s suspicions, such as inquiring into Mr. Dandridge’s child care arrangements, or the reasons Mr. Dan-dridge left Krispy Kreme to begin work as a custodian. Asking such questions likely would have revealed highly relevant information such as: (1) whether Mr. Dandridge already had adequate child care arrangements; (2) whether Mr. Dandridge’s children were even young enough to need child care at all; and (3) whether Mr. Dan-dridge left his prior position because of poor performance or lack of attentiveness, or for some more innocuous reason, such as an increase in pay or benefits. The government’s disinterest in probing Mr. Dandridge’s supposed lack of attentiveness during voir dire strongly suggests that the government was not actually concerned with Mr. Dandridge’s ability to focus during trial. See Dretke, 545 U.S. at 250 n.8, 125 S.Ct. 2317 (“[T]he failure to ask [follow-up questions] undermines the persuasiveness of the claimed concern.”); Odeneal, 517 F.3d at 420-21 (“Moreover, had the prosecutor been truly concerned about juror 194’s ability to focus on the proceedings because of her divorce, ‘we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.’ ” (quoting Dretke, 545 U.S. at 244, 125 S.Ct. 2317)); United States v. Mahan, 190 F.3d 416, 425 (6th Cir. 1999) (finding a strike proponent’s race-neutral explanation pretextual where proponent did not ask the prospective juror about the purported reasons for the strike).

Finally, read in context, the government’s explanations “reek[ ] of afterthought” and suggest a lack of reasoned consideration in striking Mr. Dandridge. Dretke, 545 U.S. at 246, 125 S.Ct. 2317. When pressed during the Batson colloquy to provide reasons for striking Mr. Dan-dridge, the government initially said that it simply “didn’t get a good feeling about” Mr. Dandridge even though “[t]here [was] nothing overwhelming [sic] horrible about him.” (R. 79, PagelD #330.) The government continued that Mr. Dandridge “didn’t have a very long employment history,” stating that it preferred “people that have a stable background.” (Id.) The government then added that Mr. Dandridge’s eight children “bugged [it] a little bit” because it was “afraid he might have problems with thinking about his child care or children” during trial. (Id. PagelD #330-31.)

The government’s reasoning suffers from several logical inconsistencies that cast doubt on the sincerity of its explanations for the strike. To begin with, the district court only asked the prospective jurors for one year of employment history, and so the government did not “have a very long employment history” for many of the prospective jurors. (Id. PagelD #330-31.) This lack of employment history, which was mostly a function of the questions the district court asked during voir dire, did not seem to bother the government with respect to other jurors like Ms. Absher. Moreover, Mr. Dandridge’s nephew was a police officer — a fact that often leads defendants to strike prospective jurors out of fear that jurors with close ties to police officers are more likely to uncritically believe police witnesses on the stand. See, e.g., United States v. Thompson, 528 F.3d 110, 116 (2d Cir. 2008); Coombs v. Diguglielmo, 616 F.3d 255, 257-58 (3d Cir. 2010). It is at a minimum odd that the government would strike a juror with law enforcement ties on such flimsy excuses. Finally, as the district court observed, the government only anticipated a three-day trial for the simple, felon-in-possession-of-a-firearm charge facing Defendant. As the Supreme Court observed in Snyder, concerns about a juror’s ability to focus are generally out of place in short, simple trials. Snyder, 552 U.S. at 482, 128 S.Ct. 1203 (rejecting prosecutor’s justification that stricken juror would have been worried about missing student teaching obligations where “the brevity of petitioner’s trial— something that the prosecutor anticipated on the record during voir dire — meant that serving on the jury would not have seriously interfered with [the venireper-son’s] ability to complete his required student teaching” (footnote omitted)). Taken together, these considerations suggest that the government had not previously thought through its reasons for striking Mr. Dandridge, which itself suggests that the government’s reasons were pretextual “afterthought.”

The government does not mount a substantive defense of the strike, but instead argues that Defendant failed to challenge all of the justifications it offered for striking Mr. Dandridge. Specifically, the government claims that it offered a third reason for striking Mr. Dandridge— its subjective feeling that “Mr. Dandridge is just one of those people that [it] didn’t get a good feeling about” — and that this third justification is ‘sufficient to sustain the district court’s denial of Defendant’s Batson challenge. (App. R. 10, at 15-16.) While the government is correct that the failure to challenge all of a district court’s alternative bases for its decision generally precludes appellate relief, see, e.g., United States v. Thornton, 609 F.3d 373, 380 (6th Cir. 2010) (refusing to consider challenge where appellant did not also challenge district court’s alternative holding); White Oak Prop. Dev., LLC v. Wash. Twp., 606 F.3d 842, 854 (6th Cir. 2010) (concluding that a party waived its appeal of the district court’s dismissal of its claim where appellant failed to address both of the lower court’s alternative holdings), the government’s specific argument here is foreclosed by Snyder.

In Snyder, one of the two reasons the prosecutor offered for striking a black ven-ireperson was that the venireperson “looked very nervous ... throughout the questioning.” Snyder, 552 U.S. at 478, 128 S.Ct. 1203. On appeal, the state argued that this justification was independently sufficient to sustain the strike. Id. at 479, 128 S.Ct. 1203. The Supreme Court rejected this argument because there was no evidence that the trial court credited the prosecutor’s subjective justification:

With respect to the first reason, the Louisiana Supreme Court was correct .that “nervousness cannot be shown from a cold transcript, which is why ... the [trial] judge’s evaluation must be given much deference.” [State v. Snyder,] 942 So.2d [484] at 496 [ (La. 2006) ]. As noted, above, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks’ demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial' judge may not have recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’ demeanor, instead basing his ruling- completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.

Id. (alteration in original) (emphasis added).

Here, in explaining why it rejected Defendant’s ‘ Batson challenge, the district court only made reference to the government’s employment history justification:

MR. CARRIKER: Mr. Dandridge, he has eight children. He has worked for Service Master for four months and he was at Krispy Kreme for I believe he said maybe up to a year before that. That’s not a very good work history as far as being stable, changing jobs, four months in, eight children. I was concerned about his ability to focus on the case at hand , and listen and be attentive in a trial.
THE COURT: I will allow lawyers obviously to follow-up on things, and it does seem to me .that it is a sufficient answer with regard to Mr. Dandridge and his work history given everything else about him.

(R. 79, PagelD #332-34.) Reading the record charitably in light of the government’s justifications, the district court arguably also credited the government’s family size justification as part of “everything else about [Mr. Dandridge.]” (Id.) There is no indication in the record, however, that the district court credited the government’s subjective bad feeling about Mr. Dan-dridge in upholding the strike. As in Snyder, therefore, the government cannot rely on the subjective justification for the purposes of this appeal. Snyder, 552. U.S. at 479, 128 S.Ct. 1203.

Accordingly, the totality of the evidence before the district court demonstrates that the government’s race neutral explanations for striking Mr. Dandridge were pretexts for improper racial discrimination. We therefore hold that the district court clearly erred in crediting the government’s pre-textual justifications, and denying Defendant’s Batson challenge.

CONCLUSION

We hold that the government violated Batson v. Kentucky by striking Mr. Dandridge on the basis of his race. Because the district court’s decision to uphold the strike was a structural error that tainted the integrity and fairness of Defendant’s trial, we REVERSE the district court’s denial of Defendant’s Batson challenge, VACATE Defendant’s conviction and sentence, and REMAND for a new trial.

      . The record does not disclose the race of any of the jurors who were ultimately seated at Defendant's trial. At oral argument, we asked Defendant's counsel to specify the races of Mr, Stewart, Ms, Williams, and Ms. Absher, and counsel informed us that they are all Caucasian. The government did not contest this representation,

      . In any event, it would not.matter if we applied plain error review, because there is no practical difference between clear error and plain error review in this context. Ordinarily, "the clear error standard is easier to satisfy [than plain error] because a party does not have to prove that the error affected substantial rights or the fairness, integrity, or reputation of the judicial proceeding." Dupree v. Warden, 715 F.3d 1295, 1301 (11th Cir. 2013). However, Batson error is a structural error that commands automatic reversal, obviating the need to show that the error affects a defendant’s substantial rights. United States v. McAllister, 693 F.3d 572, 582 n.5 (6th Cir. 2012) (holding that when the district court commits a Batson error "the defendant is not required' to show that the putative error affected his substantial rights”). "Moreover, Batson errors represent a violation of the right to equal protection of the laws, which itself does damage to the fairness, integrity, and public reputation of the judicial proceeding.” Id.) see also United States v. Harris, 192 F.3d 580, 587-88 (6th Cir. 1999) (The "harm inherent in a discriminatorily chosen jury inures not only to the defendant, but also to the jurors not selected because of their race, and to the integrity of the judicial system as a whole.”). Accordingly, since the two elements of plain error review that differ from clear error review are automatically satisfied if we find a Batson error, our analysis would not change in any respect if we applied plain error review. See• United States v. Mahbub, 818 F.3d 213, 223-24 (6th Cir. 2016).

      . The government's failure to ask any followup questions about Mr. Dandridge’s child care situation is particularly stark on this record. Mr. Dandridge is employed, and his children did not suddenly appear on the eve of trial. He and his wife presumably must have some child care arrangements, if such arrangements are indeed required.

      . This is not a case where the government struck a venireperson because of her ties to law enforcement. See, e.g., United States v. Cruse, 805 F.3d 795, 807-08 (7th Cir. 2015) (affirming strike of juror with a police officer brother where “the prosecutor might have plausibly believed that a juror with a close relative on a police force might hold police officers to an especially high standard or have nonrepresentative beliefs about what constitutes good police work”); Cecil, 615 F.3d at 688 (affirming strike of juror with a husband in law enforcement where defendant was a former police officer). The government did not mention Mr. Dandridge's police officer nephew in explaining its strike.

      . The government also argues that the district court’s judgment should be affirmed because the district court did not improperly collapse steps two and three of the Batson inquiry. See, e.g., Cecil, 615 F.3d at 686. However, Defendant never argued that the district court failed, to properly follow the Batson framework; he merely argues that the district court's conclusion at Batson step three was erroneous. Accordingly, the government’s final argument is irrelevant and nonresponsive.


author: SYKES, Circuit Judge. POSNER, Circuit Judge,

text:
    Sherry KATZ-CRANK, Plaintiff-Appellant, v. Kimberly HASKETT, Defendant-Appellee.
    No. 15-1809
    United States Court of Appeals, Seventh Circuit.
    Argued November 13, 2015
    Decided December 8, 2016

      Derek Wilczynski, Attorney, BLANCO WILCZYNSKI, PLLC, Troy, MI, for Plaintiff-Appellant.
    David A. Arthur, Frances Barrow, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Defendants-Appellees KIMBERLY HASKETT, CHARLIE WILLIAMS, TODD ROKITA.
    Amanda J. Dinges, Attorney, OFFICE OF THE CORPORATION COUNSEL, Indianapolis, IN, for Defendants-Appel-lees THOMAS TRATHEN, MARION COUNTY.
    Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Sherry Katz-Crank is a Michigan lawyer with a practice in cemetery management. An unscrupulous client used her services in the course of defrauding cemetery trust funds of $22 million. When Katz-Crank discovered the fraud, she promptly contacted state regulatory authorities. The client was indicted on embezzlement charges. Katz-Crank was charged as-an aider and abettor, though a jury would ultimately acquit her.

Her reputation disgraced and her law practice in shambles, Katz-Crank sued the state and county officials who were in any way involved in the prosecution. She alleged that they conspired to violate her federal constitutional rights; she raised several state-law claims as well. The district judge entered judgment on the pleadings in the defendants’ favor on some claims and dismissed others for failure to state a claim.

We affirm. Most of Katz-Crank’s claims are barred by the Eleventh Amendment or prosecutorial immunity. The balance of the complaint was properly dismissed for failure to state a plausible claim for relief.

I. Background

The case was resolved on the pleadings, so the following factual summary is from Katz-Crank’s complaint. Katz-Crank is a lawyer from Michigan with a practice in the esoteric field of cemetery management. In 2004 Robert Nelms retained her to assist in his acquisition of cemeteries and funeral homes in Indiana, Michigan, and Ohio. The, trust funds associated with these cemeteries were valued at about $22 million. In 2007 Katz-Crank learned that Nelms was under investigation by the Indiana Secretary of State for misappropriating cemetery trust assets.

Katz-Crank promptly called Kimberly Haskett, an investigator in the Secretary of State’s office, to offer her full cooperation m the, investigation. Haskett did not return the call. Apparently she didn’t need Katz-Crank’s help; in 2008 Nelms was indicted on charges. of embezzling $22 million in cemetery trust funds. He pleaded guilty pursuant to a- plea .bargain and agreed to testify against Katz-Crank.

Although Haskett never returned Katz-Crank’s call, she did find time to contact some of her clients to advise them that Katz-Crank was under criminal investigation. In July 2008 Katz-Crank was charged in Marion County with aiding and abetting Nelms’s embezzlement. She was arrested that month, and both the Indiana Secretary of State and the Marion County prosecutor’s office issued press releases publicizing the arrest. On December 7, 2010, a jury acquitted Katzr-Crank of all charges.

Exactly two years later Katz-Crank filed suit in federal court against Marion County and multiple state and county officials who were directly or indirectly involved in the criminal investigation and prosecution. The state defendants are former Indiana Secretary of State Todd Roki-ta, Haskett, and Charlie Williams, another investigator in the Secretary of State’s office. The county defendants are former Marion County Prosecutor Carl Brizzi, former Deputy Prosecutor Mary Hutchinson, former Deputy Prosecutor Barbara Crawford, Investigator Thomas Trathen, and Marion County itself.

The number of claims is no less multitudinous. Katz-Crank brought federal claims under 42 U.S.C. § 1983 for malicious prosecution, “abuse of process,” and violation of the Fourth and Fourteenth Amendments; three federal conspiracy claims (one each under § 1983 and 42 U.S.C. §§ 1985(3) and 1986); and state-law claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The defendants were sued in their official and individual capacities.

The defendants moved variously for lodgment on the pleadings under Rule i-2(c) of the Federal Rules of Civil Procedure and for dismissal under Rule 12(b)(6) for failure to state a claim. The judge entered judgment on the pleadings in the defendants’ favor on some of the federal claims, dismissed others with prejudice under Rule 12(b)(6), and dismissed the state-law claims with leave to replead. Katz-Crank filed an amended complaint limited to the state-law claims. It too was dismissed for failure to state a claim, this time with prejudice. This appeal followed.

II. Discussion

Our review is de novo. Barr v. Bd. of Trs. of W. Ill. Univ., 796 F.3d 837, 839 (7th Cir. 2015). We don’t need to parse which of Katz-Crank’s claims were resolved under Rule 12(c) and which were resolved under Rule 12(b)(6); “[a] motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss.” United States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991). To survive a Rule 12(b)(6) motion, the complaint must “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We accept the allegations in the complaint as true unless they are “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Federal Claims

1. Claims Against the State and County

We begin with the federal claims against Marion County and against the state and county officials in their official capacities, which are the equivalent of claims against the state and county. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (state officials); Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (county officials). These claims can be quickly dispatched.

The Eleventh Amendment bars suit in federal court against nonconsenting states absent some specific types of congressional authorization not applicable here. See Pennhurst, 465 U.S. at 101-02, 104 S.Ct. 900; see also Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011). Accordingly, all claims against the state officials in their official capacities were properly dismissed on Eleventh Amendment grounds.

Marion County is a “person” under § 1983 and may be held liable for violating Katz-Crank’s federal rights if its policies or customs caused the violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The complaint alleges lots of individual misconduct by county officials, but it nowhere identifies any county policy or custom that caused Katz-Crank’s injury. Katz-Crank’s brief does not fill the gap. That dooms the claims against the County itself (and by extension, the claims against the county officials in their official capacities). See id. at 694, 98 S.Ct. 2018; see also Grieveson, 538 F.3d at 771.

2. Claims Against the Marion County Prosecutors

Katz-Crank also brings several federal claims against three Marion County prosecutors in their individual capacities. Prosecutors are protected by robust immunity from federal tort liability, “whether common law or constitutional, ... for acts they commit within the scope of their employment as prosecutors.” Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (citations omitted). Katz-Crank’s federal claims against the prosecutors implicate conduct within the scope of this broad immunity.

Katz-Crank alleges that the prosecutors (1) indicted her without probable cause; (2) made false and inflammatory public statements in press releases; (3) acted “maliciously”; (4) refused to consider exonerating evidence she tried to give them; (5) presented false evidence to the grand jury; and (6) delayed her trial. Most of these allegations encompass prosecuto-rial acts or omissions for which the Marion County prosecutors enjoy absolute immunity. See Bianchi v. McQueen, 818 F.3d 309, 318 (7th Cir. 2016) (explaining that absolute immunity covers “what goes on in the courtroom” and grand-jury proceedings); id. -(“[I]t’s clear that absolute immunity knocks ... the [plaintiffs] claims premised on allegations that [the prosecutor] presented false statements to the grand jury and at trial.”).

The only close call is the allegation about false and inflammatory public statements in press releases, which arguably falls outside the immunity shield. The Supreme Court has held that a prosecutor’s “statements to the media are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 277, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). But a close reading of the complaint reveals that this allegation—made only very generally, without identifying any particular false statement — appears in the complaint’s description of the means by which the defendants conspired to deprive Katz-Crank of her federal rights in violation of § 1983. As we’ll , explain in a moment, the § 1983 conspiracy claim fails because the complaint doesn’t state a claim for any underlying constitutional tort. So even if this particur lar allegation doesn’t fall within the scope of prosecutorial immunity, it does not support a cognizable federal claim for relief.

3. Claims Against the State Officials and Investigators

The state officials and the county investigators do not enjoy absolute immunity from suit in their individual capacities, so we turn now to the substance of the federal claims against them. Katz-Crank brings claims under § 1983 for malicious prosecution, abuse of process, and a violation of the Fourth and Fourteenth Amendments. The complaint doesn’t identify any constitutional basis for the first two claims, and Katz-Crank’s brief doesn’t either. Indeed, her brief doesn’t address the substance of these claims at all; she focuses instead on the scope of the defendants’ immunity under the Indiana Tort Claims Act.

We’re not inclined to construct a constitutional basis for Katz-Crank’s claims when she has failed to do so herself. In the interest of completeness, however, we note that the Fourth Amendment claim doesn’t appear to be one for false arrest; that claim would be time-barred in any event. See Wallace v. Kato, 549 U.S. 384, 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (explaining that the limitations period for a Fourth Amendment claim for arrest without probable cause begins to run when the detainee appears before a magistrate). Rather, the Fourth Amendment claim appears to be simply a repackaged claim for malicious prosecution.

Our circuit doesn’t permit, this maneuver; we’ve held that a federal claim for malicious prosecution implicates (or at most may implicate) the right to due process, not the Fourth Amendment, and that no federal malicious-prosecution claim is available if state law provides a similar cause of action. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001). Indiana does provide a remedy for malicious prosecution, but the Indiana Tort Claims Act confers on public employees a broad immunity' from suit for acts committed within the scope of their employment. Ind. Code § 34-13-3-3(6); see also Serino v. Hensley, 735 F.3d 588, 593-95 (7th Cir. 2013) (recognizing that the Indiana Tort Claims Act grants broad immunity to governmental employees from suit for malicious prosecution and intentional infliction of emotional distress). We’ve held that this statutory immunity effectively blocks a common-law claim of malicious prosecution against governmental officers in Indiana, and this in turn “opens the door to federal malicious prosecution suits against such officers.” Julian v. Hanna, 732 F.3d 842, 848 (7th Cir. 2013); Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015).

As we’ve noted, however, Katz-Crank hasn’t made this argument because she hasn’t bothered to-identify the basis of her federal claims (other than pointing very generally to the Fourth and Fourteenth Amendments). Nor has she made any effort to explain how the allegations-in her complaint suffice to state a federal malicious-prosecution claim. Our own review convinces us that they do not.

We’ve held that a federal malicious-prosecution claim (if one is available at all) borrows the elements of the state tort. See Hart, 798 F.3d at 593. The law of malicious prosecution in Indiana requires the plaintiff to prove the following elements: (1) the defendant “instituted or caused to be instituted an action against the plaintiff’; (2) the defendant acted with malice and (3) without probable cause; and (4) the action “was terminated in the plaintiffs favor.” City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001).

Katz-Crank’s claim fails on the first of these requirements. She hasn’t alleged that the former Secretary of State or any of the investigators — state or county— either instituted the prosecution against her or caused it to be instituted. She has not alleged, for example, that these defendants plied the prosecutors with evidence they knew to be false or otherwise duped the prosecutors to indict her without probable cause. See Alexander v. United States, 721 F.3d 418, 423 (7th Cir. 2013) (explaining that under Indiana law a malicious-prosecution claim can be made against a defendant who did not himself initiate the prosecution when the prosecution is initiated solely based on information provided by the defendant); Bah v. Mac’s Convenience Stores, 37 N.E.3d 539, 547 (Ind. Ct. App. 2015) (holding that a claim for malicious prosecution is not available when a prosecutor makes “an independent determination of whether to pursue criminal charges”). Accordingly, Katz-Crank failed to state a federal claim of malicious prosecution against the state officials and the county investigator.

To the extent that Katz-Crank’s § 1983 claim could be construed as an equal-protection claim, it likewise fails. The only conceivable way to conceptualize such a claim in .the -context of this case is under a “class of one” theory. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). But a class-of-one claim cannot be used to challenge discretionary governmental action, like the decision to initiate prosecution. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603-04, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008); Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010) (“[C]lass-of-one claims cannot rest on governmental activity that is discretionary by design, a good description of prosecutorial selectivity in criminal law.”) (citation omitted). Even if a class-of-one claim were available, Katz-Crank hasn’t alleged that she was treated differently than others similarly situated, an essential element of the claim. See United States v. Moore, 543 F.3d 891, 896-97 (7th Cir. 2008) (explaining the “similarly situated” requirement).

Finally, we return now to the allegation that some of the defendants gratuitously inflicted reputational harm on Katz-Crank. As we’ve noted, the complaint alleges, that Investigator Haskett contacted Katz-Crank’s clients and advised them that she was under criminal investigation. It also alleges that the former Secretary of State and the Marion County prosecutor’s office issued inflammatory press releases announcing her arrest. These allegations may form the basis of an actionable defamation claim, but Katz-Crank has made no effort to fit them within any recognized constitutional doctrine. ... .

The Due Process Clause is not “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1156, 47 L.Ed.2d 405 (1976). Katz-Crank has not alleged that the defendants altered her legal status in some way, or impaired her employment prospects with the government, or deprived her of a right she once held, or revoked a license “recognized and protected by state law.” See id. at 704-05, 96 S.Ct. 1155 (legal status); id. at 705-06, 709-10, 96 S.Ct. 1155 (governmental employment); id. at 707, 96 S.Ct. 1155 (right once held); id. at 710-11, 96 S.Ct. 1155 (license). She alleges only that they damaged her reputation. But “reputation alone, apart from some more tangible interests,” is neither liberty nor property “by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701, 96 S.Ct. 1155; id. at 712, 96 S.Ct. 1155 (“[Petitioners’ defamatory publications, however seriously they may have harmed respondent’s reputation, did not deprive him of any ‘liberty’ or ‘property’ interests protected by the Due Process Clause.”).

Not much more is needed to resolve the remaining federal claims. Without a viable federal constitutional claim, the conspiracy claim under § 1983 necessarily fails; there is no independent cause of action for § 1983 conspiracy. Cefalu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). The § 1985(3) claim lacks allegations of racial or class-based discriminatory animus, a required element. Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (“Section 1985(3) prohibits a conspiracy to deprive another of equal protection under the law ..., but the conspiracy must be motivated by racial[ ] or other class-based discriminatory animus.”). The failure of the § 1985 claims also defeats the § 1986 claim. See id.

B. State-Law Claims

What remains are the state-law claims, which the judge dismissed on the merits after giving Katz-Crank an opportunity to replead. Katz-Crank argues that the judge was wrong to apply Indiana law; she insists that Michigan law applies instead. Not so. Indiana’s choice-of-law rules apply, see Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and Indiana looks to the location of “the last event necessary to make [the defendants] liable for the alleged wrong” and then examines “whether the place of the tort” is sufficiently connected to the legal action. Simon v. United States, 805 N.E.2d 798, 805-06 (Ind. 2004) (quotation marks omitted). The course of conduct alleged here — the investigation, indictment and trial — occurred in Indiana. And it cannot seriously be argued that Indiana has only a tenuous connection to an alleged wrongful prosecution that took place in the Hoosier state. Indiana law applies.

The merits require only summary attention. The Eleventh Amendment prevents us from adjudicating the state-law claims against the state officials in their official capacity. Pennhurst, 465 U.S. at 121, 104 S.Ct. 900 (“[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”). The state-law claims against the defendants in their individual capacities are barred by Indiana’s statutory immunity. The Indiana Tort Claims Act provides that a “governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from ... [t]he initiation of a judicial or an administrative proceeding.” Ind. Code § 34-13-3-3(6); id. § 34-6-2-38(a) (defining “employee” as a person acting on behalf of a governmental entity, including elected officials); id. § 34-6-2-49(a) (defining “governmental entity” as the state and any political subdivisions).

The Indiana Supreme Court interprets “scope of employment” broadly enough to encompass all of the allegations here. Specifically, the term includes any conduct “of the same general nature as that authorized” by the public employer, conduct “incidental to the conduct authorized” by the employer, and conduct done “to an appreciable extent[ ] to further [the] employer’s business.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quotation marks omitted). All of the conduct alleged here falls comfortably within the state immunity bar. The state-law claims were properly dismissed.

Affirmed.

POSNER, Circuit Judge,

concurring and dissenting.

I disagree with the majority only in regard to -its dismissal of the count of the complaint in which the plaintiff alleges that some of the defendants, notably investigator Haskett, acted outside the scope of their prosecutorial duties “with deliberate indifference to Plaintiffs constitutional rights.” Now it’s true that the pleading is clumsy; the count is captioned “Malicious Prosecution Pursuant to Indiana’s Tort Claims Act,” a theory of liability that as explained in the majority opinion has no possible merit and no possible relevance to the plaintiffs federal claims. But two of the specific allegations that foliow the caption state a claim for relief under 42 U.S.C. § 1983, which so far as relates to this case provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in án action at law, suit in equity, or other proper proceeding for redress.” Typically the statute is invoked as a means of enforcing the due process clause of the Fourteenth Amendment.

The allegations that seem to me to state a constitutional claim are that “Defendants assisted or caused to be published- statements in the press and on websites and blogs containing information regarding Plaintiffs alleged criminal activity which they knew was false, inaccurate and incomplete and with the intent of harming Plaintiff to Defendants^] benefit,” and also that the defendants “contacted Plaintiffs business clients that had no connection to this matter and advised that she was involved in criminal activity and they should no longer do business with her.”

The defendants state that “to the extent Appellant may have feared that the press statements would inflame the public against her, a jury found her not guilty, meaning there was no harm from the statements and therefore no violation of her constitutional rights from the statements.” But the plaintiff is not complaining about the effect of the statements on the jury — how could she, given her acquittal? — but about their effect on her livelihood as a practicing lawyer.

In its only reference to the plaintiffs complaint about efforts by members of the prosecutorial team to turn her clients against her, the defendants’ brief acknowledges that Kim Haskett “contacted Appellant’s clients and told them that Appellant was involved in illegal activity. Whether these matters were negligent or malicious, they were conducted in the course of Haskett’s role as investigator of securities violations and riot in any other capacity.” That’s no defense. The absolute prosecuto-rial immunity here invoked by the defendants does not extend to investigators, such as Haskett — even prosecutors lose their absolute prosecutorial immunity when they engage in investigations. Fields v. Wharrie, 740 F.3d 1107, 1112-13 (7th Cir. 2014).

No matter, the majority opinion states, for all that the plaintiff is alleging (in regard to “efforts by members of the prosecutorial team to turn her clients against her”), is defamation, and as to that the opinion states that “the Due Process Clause is not ‘a font of tort law to be superimposed upon whatever systems may already be administered by the States,’ ” quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Judge Sykes’s opinion, further quoting Paul v. Davis, goes on to say that “Katz-Crank has not alleged that the defendants altered her legal status in some way, or impaired her employment prospects with the government, or deprived her of a right she once held, or revoked a license ‘recognized and protected by state law.’ See id. at 704-05, 96 S.Ct. 1155 (legal status); id. at 705-06, 709-10, 96 S.Ct. 1155 (government employment); id. at 707, 96 S.Ct. 1155 (right once held); id. at 710-11, 96 S.Ct. 1155. (license). She alleges only that they damaged her reputation. But (reputation alone, apart, from some more tangible interests,’ is neither liberty, nor property ‘by itself sufficient to invoke the procedural protection of the Due Process Clause.’ Id. at 701, 96 S.Ct. 1155; id. at 712, 96 S.Ct. 1155 (‘[PJetitioners’ defamatory publications, however seriously they may have harmed respondent’s reputation, did not deprive him of any “liberty” or “property” interests protected by the Due Process Clause.’).”

The majority opinion’s reliance on Paul v. Davis, while natural since it’s the leading case dealing with an allegation of defamation in a section 1983 suit, misconceives the Supreme Court’s opinion. The key passages in the opinion are, first, that “The words ‘liberty’ and ‘property as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law, While we have in a number of our prior cases pointed out the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701, 96 S.Ct. 1155, emphasis added. The second key passage is that “it1 is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity.” Id. at 705, 96 S.Ct. 1155, quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), emphasis added.

The wrinkle in this case is that the plaintiff is self-employed. Were she employed and lost her job, then according to Paul v. Davis the loss mig]it count as a deprivation of property in violation of the Fourteenth Amendment and thus of 42 U.S.C. § 1983. But to be self-employed, and lose one’s self-employment (or a great deal of it) by being defamed, is the equivalent of being fired or suffering a drastic reduction in pay. I therefore interpret Paul v. Davis to entitle the plaintiff in this case to prove if she can that the defamatory conduct of Haskett and other defendants inflicted a harm on her comparable to the harm she would have suffered had she been employed and lost her employment as a result of lies about her spread by the defendants.

It’s true that in a subsequent Rehnquist opinion, Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), further illustrating his fiercely protective attitude, not readily derivable from the Constitution, toward states’ rights, he seemed to step back from the proposition announced in Paul v, Davis that loss of employment (and here I add, loss of self-employment) caused by defamation is actionable under federal law. But he didn’t say the Court was overruling Paul v. Davis, which remains the leading case on harm, actionable in federal courts under federal law, caused by defamation. We must choose between the two decisions, and I choose Paul as the more intelligent and civilized decision. The Court did express' concern lest “every legally cognizable injury which may have been inflicted by a state official acting under ‘color of law’ establish^ ] a violation of the Fourteenth Amendment.” Paul v. Davis, supra, 424 U.S. at 699, 96 S.Ct. 1155. But it did not say that no injury caused by defamation is ever actionable under the amendment.

We should reverse the dismissal of the defamation claim insofar as it alleges a drastic reduction in the plaintiffs legal business as a consequence of the misconduct by the defendants, and remand for a trial.

      . To provide for the perpetual maintenance of cemeteries, states customarily require cemeteries to hold a portion of their assets in trust. See-generally Ind. Code §§ 23-14-49-1, 23-14-51-2.

      . Nelms was not the first of Katz-Crank’s clients to embezzle cemetery trust funds. In 2004 she represented Clayton Smart during his purchases of Michigan cemeteries valued at $45 million. Katz-Crank , later discovered that Smart had misappropriated trust funds and reported the theft to -the authorities. Smart was convicted of fraud.

      .' For example, the press release posted on the Indiana Secretary of State’s website stated as follows: "Crime can be violent, or can be executed using white-collar weapons like a pen, a briefcase, or in [Katz-Crank’s] case, a cemetery plot. Our office will continue to work effectively with other parts of government, like [Marion County Prosecutor] Carl’s office, to ensure we get results....” Press Release, Ind. Sec’y of State, Secretary Rokita Applauds Grand Jury Indictments in Cemetery Fraud Case (July 15, 2008) (on file with author), http://www.in.gov/sos/securities/ 2854.htm (last visited Dec. 8, 2016).

      . “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI.

      . A case now before the Supreme Court may change that rule, see Manuel v. City of Joliet, No. 14-9496 (oral argument held Oct. 5, 2016), but as it stands now, a Fourth Amendment claim for malicious prosecution is unavailable ⅛ this circuit.

      . The federal abuse-of-process claim is also a repackaged claim for malicious prosecution, so we do not need to separately address it.


author: SYKES, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David LEWISBEY, Defendant-Appellant.
    No. 14-2236
    United States Court of Appeals, Seventh Circuit.
    Argued November 13, 2015
    Decided December 9, 2016

      Bethany K. Biesenthal, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

      Michael Oppenheimer, Jon -Neuleib, Attorneys, Erickson & Oppenheimer, LTD, Chicago, IL, for Defendant-Appellant.
    Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

David Lewisbey was a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he bragged about his gunrunning exploits on Facebook. Federal agents set up a sting, and Lewisbey was arrested and charged with multiple counts of unlawfully transporting and dealing firearms. A jury convicted him on all counts.

Lewisbey now argues that his attorney was operating under a conflict of interest in violation of his Sixth Amendment right to conflict-free counsel. He also challenges the admission of incriminating text-message and Facebook evidence at trial. Finally, he claims that the testimony of the government’s cell-phone location expert did not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We reject these arguments and affirm.

I. Background

David “Big Dave” Lewisbey conducted a thriving interstate gunrunning business from his home in Chicago. He purchased guns at Indiana gun shows with a fake Indiana I.D. and then sold them in Illinois. Federal authorities learned of these activities when Lewisbey boasted about them on his Facebook page; an undercover operation was commenced. After Lewisbey sold a total of 43 guns to a confidential informant in five separate controlled purchases, law enforcement moved in and arrested him. He was chai’ged with one count of unlawful dealing in firearms without a license, 18 U.S.C. § 922(a)(1)(A); two counts of illegally transporting firearms across state lines, id. §§ 922(a)(3), 924(a)(1)(D); and two counts of traveling across state lines with intent to engage in the unlicensed dealing of firearms, id. § 924(n).

Lewisbey’s defense at trial was that he was a gun collector rather than a gunrunner. The evidence showed otherwise. The prosecution’s case included video recordings of Lewisbey’s sales to the confidential informant, text messages showing that Lewisbey habitually sold guns to purchasers other than the confidential informant, and Facebook photos depicting Lewisbey with lots of guns and large sums of money. Michael Hall, a business contact of Lewis-bey’s who occasionally acted as his go-between, testified to the details of some transactions. Another witness ' testified about selling guns to Lewisbey in a-McDonald’s parking lot in Indiana. Multiple witnesses testified that they knew Lewis-bey from Indiana gun shows arid knew that he used a fake Indiana I.D. to illegally purchase guns. Finally, FBI Special Agent Joseph Raschke testified, based on his analysis of Lewisbey’s phone records, that calls were made from Lewisbey’s phones at times and locations consistent with the illegal gun transactions described by other witnesses. A jury returned a verdict of guilty on.all counts, and the judge.sentenced Lewisbey to 200 months in prison.

Lewisbey was represented in the district court by Attorney Beau Brindley. At the time Brindley was himself facing a criminal contempt proceeding in the Central District of Illinois. When questioned by the judge about the potential conflict of interest, Lewisbey expressly waived any conflict and consented to Brindley’s continuation as his counsel. Following the entry of judgment,-and soon after this appeal was filed, the government sought a limited remand to address a different conflict of interest stemming from a new federal criminal investigation targeting Brindley. We remanded the ease so the district judge could determine whether a conflict of interest existed and obtain a waiver if necessary. Brindley promptly withdrew and another attorney took over Lewisbey’s appeal. With a new attorney in place, the judge canceled the conflict hearing and the appeal resumed.

II. Discussion

Lewisbey raises two arguments on appeal. First, he contends that Brindley’s troubles with law enforcement created an unconstitutional conflict of interest in violation of his Sixth Amendment right to conflict-free counsel. Second, he challénges the admission of his text messages, Face-book posts, and the testimony of Special Agent Raschke, the government’s cellphone location expert.

A. Sixth Amendment Right to Conflict-Free Counsel

Because the Sixth Amendment protects the right to counsel “whose undivided loyalties lie with the client,” a defendant whose trial attorney was “burdened by a conflict of interest” may be entitled to a new trial. United States v. Barnes, 909 F.2d 1059, 1065 (7th Cir. 1990) (quotation marks omitted) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Conflicts of interest in this context usually arise in cases involving joint representation, but a conflict may also arise “when a client’s interest conflicts with that of his attorney.” United States v. Ellison, 798 F.2d 1102, 1106-07 (7th Cir. 1986).

Lewisbey argues that Brindley’s interests conflicted with his own because Brindley was the subject of not one but two criminal investigations, giving him an incentive to curry favor with the government. To establish a violation of the Sixth Amendment right to conflict-free counsel, the defendant “must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 348, 100. S.Ct. 1708. The mere possibility of a conflict is “insufficient to impugn a criminal conviction.” Id. at 350, 100 S.Ct. 1708.

Because Lewisbey affirmatively waived any conflict arising from Brindley’s contempt proceeding, see United States v. Lowry, 971 F.2d 55, 61 (7th Cir. 1992), his Sixth Amendment claim can only relate to the second criminal investigation against Brindley. But that investigation came to light after Lewisbey was convicted and sentenced and his case had already moved to this court. When Brindley learned that he was the subject of this second investigation, he immediately withdrew; a new, conflict-free attorney thereafter assumed responsibility for the appeal. Brindley’s withdrawal cured the potential conflict, removing any possible Sixth Amendment concern.

B. Evidentiary Rulings

1. Text Messages and Facebook Posts

Over Lewisbey’s objection the judge allowed the government to introduce certain inculpatory text messages from Lewisbey’s phones and posts from his Fa-cebook page. We review evidentiary rulings deferentially, for abuse of discretion only. United States v. Schmitt, 770 F.3d 524, 532 (7th Cir. 2014), cert. denied, — U.S.-, 135 S.Ct. 1537, 191 L.Ed.2d 565 (2015). “[W]e will defer to the district court unless no reasonable person could adopt its view. Even then, reversal only follows if admission of the evidence affected the defendant’s substantial rights.” Id. (citation and quotation marks omitted).

' Lewisbey argues that the Facebook posts and the text messages taken from two phones—a Samsung and an iPhone— should have been excluded on both hearsay and authentication grounds. See Fed. R. Evid. 801, 901. He also argues that the prejudicial impact of this evidence substantially outweighs its limited probative value and thus the evidence should have been excluded under Rule 403 of the Federal Rules of Evidence.

The hearsay objection is a nonstarter.; The text messages Lewisbey sent are his own statements and as such are excluded from the definition of hearsay by Rule 801(d)(2)(A). The messages he received were admitted not for the truth of the matter asserted but instead to provide context for Lewisbey’s own messages See Fed. R. Evid. 801(c)(2); United States v. Robinzine, 80 F.3d 246, 252 (7th Cir. 1996) (Statements offered not to prove “the truth of the matter asserted” but for another legitimate purpose do “not even fit the definition of hearsay.”). And Lewisbey admitted that the Facebook posts were his, so like his “sent” text messages, the posts qualify as nonhearsay admissions under Rule 801(d)(2).

The authentication objection fares no better. To authenticate the text messages, the government needed only to “produce evidence sufficient to support a finding” that the messages were actually sent and received by Lewisbey. Fed. R. Evid. 901(a). The government clearly did so. The iPhone was confiscated from Lew-isbey at the time of his arrest, and in a recorded phone call from the jail, he told his mother that the police took his phone. The Samsung device was recovered from his bedroom at his parents’ home, a room that both parents identified as belonging exclusively to him. The “Properties” section of the iPhone described the phone as “Big Dave’s,” and the contacts directory included information for Lewisbey’s mother listed under the heading “Mom,” and also the name and number of his former attorney. Both phones listed contact information for the Texas Home Depot stores where Lewisbey used to work. And the confidential informant arranged gun sales with Lewisbey on the Samsung phone. That’s more than enough to establish that the two phones were indeed Lewisbey’s. See Fed. R. Evid. 901(b)(4) (“The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances,” can establish that “the item is what the proponent claims it is.”).

Lewisbey’s admission that the Fa-cebook posts were his is enough for authentication, but if more were needed, the Facebook page lists Lewisbey’s nickname, his date of birth, and his place of residence (Houston) where he lived prior to Illinois. The email addresses associated with the Facebook account correspond to both the email linked with Lewisbey’s iPhone and his former email address at the University of Kansas. The Facebook page contains more than 100 photos of Lewisbey—in-cluding a profile picture—and many of the Facebook photos match photos also found on Lewisbey’s iPhone. The Facebook application on Lewisbey’s iPhone was linked to this Facebook account. And messages on the account discuss Lewisbey’s trips to gun shows in Fort Wayne and Indianapolis on dates when gun shows actually occurred at these locations.

Finally, Lewisbey argues that the text messages and Facebook posts should have been excluded under Rule 403 because they were merely cumulative. This argument is frivolous. The text messages and Facebook posts were corroborative, Finally, Lewisbey argues that the text messages and Facebook posts should have been excluded under Rule 403 because they were merely cumulative. This argument is frivolous. The text messages and Facebook posts were corroborative,

2. Cell-Phone Expert Testimony

Finally, Lewisbey challenges the judge’s decision to allow Special Agent Raschke to testify about Lewisbey’s phone records. Agent Raschke explained that Lewisbey’s phone records showed calls made at places and times that corresponded to the testimony of the other prosecution witnesses. Lewisbey claims that this testimony .did not meet the requirements of expert testimony under Rule 702 of the Federal Rules of Evidence, which requires that

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determined fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliablé principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Under the familiar framework established in Daubert, the district judge consults a nonexhaustive list of factors to determine whether the requirements of Rule 702 are met; these include: (1) whether the expert’s technique or theory is testable or has been tested; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error in applying the technique or theory; (4) whether standards and controls exist and were maintained; and (5) whether the technique or theory is generally accepted in the scientific.community. 509 U.S. at 593-94, 113 S.Ct. 2786. The court’s gatekeeping function applies to all expert testimony and not just scientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). On appeal we ask first whether the judge applied the proper framework. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015). If the judge did so, then we' review the decision to admit the expert’s testimony for abuse of discretion. Id.

The record reflects that the judge conducted a thorough Daubert analysis of Agent Raschke’s proposed testimony and soundly exercised his discretion to admit it. Using call records and cell towers to determine the general location of a phone at specific times is a well-accepted, reliable methodology. See, e.g., Rick Ayers, Sam Brothers & Wayne Jansen, Nat’l Inst, of Standards & Tech., Guidelines on Mobile Device Forensics, § 6.3 at 54 (2014), http:// nvlpubs.nist.gov/nistpubs/Special Publications/NIST.SP.800-101rl.pdf (“Call detail records can also be used with cell site tower information obtained from the service provider to translate cell identifiers into geographic locations for the cells involved and identify the general locale from which calls were placed.”); United States v. Jones, 918 F.Supp.2d 1, 5 (D.D.C. 2013) (“[T]he use of cell phone location records to determine the general location of a cell phone has been widely accepted by numerous federal courts.”). With 350 hours of training in the systems used by the relevant network- service providers, Agent Raschke had ample expertise in this methodology. And the judge also appropriately recognized the limits of this technique' by barring the agent from couching his testimony in terms that would suggest that he could pinpoint the exact location of Lewis-bey’s phones; We find no abuse of discretion.

We note in closing that no eviden-tiary error requires reversal unless it affected the defendant’s substantial rights; this in turn requires that “the average juror would have found the prosecution’s case significantly less persuasive absent the erroneous evidentiary ruling.” United States v. Trudeau, 812 F.3d 578, 590 (7th Cir. 2016). The record contains prodigious evidence of Lewisbey’s guilt. We’re confident that none of the claimed evidentiary errors — if indeed they were errors — had a significant effect on the jury’s verdict.

AFFIRMED.