text:
    Lois Marie TRASK, Plaintiff-Appellant, v. Edgar RODRIGUEZ, et al., Defendants-Appellees.
    No. 14-2601
    United States Court of Appeals, Seventh Circuit.
    Submitted March 27, 2017
    Decided April 27, 2017
    Lois Trask, Pro se.
    Frances Barrow, Attorney, Office of the Attorney General, Indianapolis, IN, Stacy J. Vasilak, Attorney, Querrey & Harrow, Merrillville, IN, for Defendants-Appellees.
    Before POSNER, SYKES, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

Lois Trask was gambling at the Horseshoe Casino in Hammond, Indiana, when she picked up a $20 bill from the casino floor. Casino personnel deter-mined from security videos that another patron had dropped the cash, and for more than an hour Trask was detained and accused of being a thief. Claiming that the detention had violated her rights, she filed this suit under both 42 U.S.C. § 1983 and Indiana tort law.

The casino’s security cameras captured the entire episode. A man leaving a change machine dropped the $20 bill, and Trask, who was standing nearby with her back to him, turned around and picked up his money after he had walked away. It’s impossible to tell from the videos, however, whether Trask saw him drop the $20 bill or even knew that he’d been standing behind her..

At some point the man realized that he was out $20 and contacted casino management. He thought the change machine had short-changed him, but casino staff after viewing the security videos realized that Trask had picked up the $20 bill. By then several hours had passed, but she was still at the casino, so the security supervisor confronted her. Trask said she’d picked up the money thinking it was hers — that she dropped it. She and the supervisor soon were joined by two law-enforcement agents employed by the Indiana Gaming Commission. They said that Trask could be seen on video pocketing the $20 bill, but she repeated that she’d thought it her own money.

With the supervisor and the two agents watching, Trask began calling friends who might be able to bring her $20 to give the agents to get them off her back. After ten minutes, however, before any friends had arrived, one of the agents asked her to put away her cellphone and follow him to the security office. When she ignored him, he grabbed the phone and pulled Trask by her coat sleeve until she started walking, then led her to the office, sometimes placing a hand on her arm or shoulder to guide her.

She was taken to an interview room where the same agents asked that she look in her purse for her driver’s license. She dumped the contents onto a table, and agreed to be patted down; she was not frisked, and one of the agents returned her cellphone so that she could resume soliciting money from friends.

There was $8 in the purse, which the agents seized. And because she couldn’t find her driver’s license (and the agents were unable to find her name in a casino database), the agents escorted her outside to look in her ear. There she found the license and $5, both of which the agents confiscated. She was then returned to the security office, where she was told she was banned from the casino and would be arrested if she tried to return. She was then released — after nearly seventy minutes— but the agents kept the $13 that they had taken from her.

A year later she filed this pro se lawsuit against the casino, the casino’s security supervisor, and the two agents. She alleged that the agents had detained her without cause, had used excessive force in taking her phone and marching her to the security office, and had searched her purse, coat, and car without authorization, all in violation of the Fourth Amendment. She also alleged that they’d committed state-law torts, including false arrest, battery, and intentional infliction of emotional distress.

A magistrate judge declined to recruit pro bono counsel for Trask and also ruled on other pretrial matters, including discovery disputes and her objection, which the judge rejected, to being deposed in the presence of a paralegal employed by defense counsel. The day after that deposition, Trask contacted the lawyer for the casino and the security supervisor to propose settling her case. Trask wanted meal vouchers and access to the casino; the casino lawyer offered her $100, which she accepted over the phone but later rejected in a voicemail to the lawyer, who responded by offering her an extra $150 (on top of the $100 offered earlier) if she would settle. She refused, on the ground that “We both agreed and I had a change of heart and I called you within 24 hours. According to my knowledge any agreement can be legally undone within 3 days.”

The defendants asked the district court to enforce the settlement. At an evi-dentiary hearing Trask denied having made a deal and insisted she’d only promised to consider, and had later rejected, the casino lawyer’s $100 offer. The lawyer reminded her that she’d agreed by phone to accept $100 to settle the case; the court agreed and ordered the settlement enforced and her claims against the casino and the security supervisor dismissed. Her notarized letter to the casino’s lawyer had included an unambiguous admission that she’d agreed to accept $100 in satisfaction of her claims against these defendants. Her belief that she could agree but then back out is “unfounded in the law.” Pohl v. United Airlines, Inc., 213 F.3d 336, 337 (7th Cir. 2000). Indiana law (which governs her state-law claim) does not (as Trask thinks) provide a three-day “cooling off’ period before an oral settlement can be enforced. Jonas v. State Farm Life Ins. Co., 52 N.E.3d 861, 868 (Ind. Ct. App. 2016); Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003).

The agents moved for summary judgment, arguing that Trask’s detention had been supported by reasonable suspicion and had lasted no longer than necessary to investigate the alleged theft, obtain identification, and recover what money they could. Temporarily confiscating her phone was, they added, a reasonable step, because she wouldn’t hang up when told to. They further added that it had been necessary to tug on Trask’s coat and take her by the arm or shoulder while guiding her to the security office, and that they hadn’t searched her purse or car — she’d conducted those searches herself, the agents insisted, and furthermore had consented to the pat down of her coat. And finally her state-law claims were barred, they said, because she hadn’t filed notice of them with the Indiana Gaming Commission and the Indiana Political Subdivision Risk Management Commission, as required by the Indiana Tort Claims Act, Ind. Code § 34-13-3-8.

The agents served Trask by mail and included the instructions routinely given to pro se litigants, explaining how to oppose a motion for summary judgment. See N.D. Ind. L.R. 56-1(f); Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992). She failed to respond to the motion (thereby failing to oppose it), and almost a month later sought leave to dismiss her claims against the agents on condition that she be allowed to reinstate the suit within two years. The agents opposed this unusual request, and the district court denied it and warned that she must respond to the motion for summary judgment if she wanted to keep her case alive. Although the warning was mailed to Trask, she never did respond to the motion.

A month later the district court granted summary judgment in favor of the agents, agreeing with their interpretation of the evidence. This decision got Trask’s attention, and she moved to set it aside on the ground that she’d never received the agents’ motion for summary judgment. The district court, unimpressed, responded that Trask must have known about the pending motion because it had been mailed to her and mentioned in other documents, including the order denying her motion for voluntary dismissal.

As an original matter we might question whether the evidence presented by the defendants in support of their motion for summary judgment — despite being undisputed — would require a jury to find that the agents had acted reasonably in detaining Trask on a thin thread of evidence of petty theft and in holding her for more than an hour, ostensibly to identify her but quite possibly just to obtain $20 to give to the casino patron who had claimed to lose the money. But Trask doesn’t challenge the district court’s reasons for granting summary judgment, and has thus waived any claim of error.

She does advance a procedural objection to the grant of summary judgment — that the district judge should have granted a Rule 60(b) motion that she filed, and reopened the proceeding after she said she’d never received the motion for summary judgment. The judge was unpersuaded, noting that several items mailed to Trask, including the judge’s order denying her motion to dismiss the case, should have alerted her to the pending motion for summary judgment. And she concedes that she did receive the order denying her motion for voluntary dismissal — an order that explicitly warned her that she had to respond to the motion for summary judgment. If as she claims (though without support in the record) she didn’t have a copy of the agents’ motion, she should have called defense counsel and asked for another copy. She didn’t.

Trask further contends that the district court erred in enforcing her settlement with the casino and its employee — but the court’s choice to believe the testimony of the casino’s lawyer is unassailable. She also contends that the magistrate judge assigned to the case (as distinct from the district judge, who decided all the substantive and procedural issues) should not have ruled on pretrial' disputes, since she never consented to his ruling on them and, she surmises, he must have been biased because he ruled against her repeatedly. But magistrate judges are authorized to decide nondispositive pretrial issues without consent, though subject to over-sight by the district court. 28 U.S.C. § 636(b)(1)(A); N.D. Ind. L.R. 72-1(b); Schur v. L.A. Weight Loss Centers Inc., 577 F.3d 752, 760 (7th Cir. 2009). And adverse rulings are not evidence of judicial bias. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); Thomas v. Reese, 787 F.3d 845, 849 (7th Cir. 2015).

One matter remains to be considered: during ' briefing, Trask asked this court to order the defendants to produce “an unedited copy of the security tape,” which, she says, would show more of the encounter between her and the agents. She had asked the defendants during discovery for all surveillance video in their possession, and they had replied that they had complied with this demand. She never asked the district court to compel disclosure, so she will not be heard to complain about his failure to do so.

The judgment of the district court is

Affirmed.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alan H. GOLD, Defendant-Appellant.
    No. 16-3678
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 2017
    Decided April 27, 2017
    Sunil R. Harjani, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Brooke Laurine Lewis, Attorney, Seiden Law Group, P.C., Chicago, IL, for Defendant-Appellant.
    Before BAUER, POSNER, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

The defendant was indicted for wire fraud, 18 U.S.C. § 1343, and pleaded guilty. The presentence investigation report prepared by the Probation Office stated that his guideline prison-sentence range was 70 to 87 months, a range based on the report’s estimation that the loss to the victims of the fraud had slightly exceeded $1.8 million. The district judge sentenced the defendant to 75 months in prison, to three years of supervised release, and to pay restitution to the victims of his fraud. On appeal the defendant argues that the financial loss he caused was closer to $1 million, which would have put him in a lower guidelines range, see U.S.S.G. § 2Bl.l(b)(l), and that the district judge should have considered giving him a shorter prison sentence than 75 months for the additional reason that shaving time off the term would give him more time to earn the money he would need in order to be able to make restitution to his victims.

• Briefly by way of background: after having been dis-missed from an investment firm the defendant had launched a finance company in Wilmette, Illinois that he called Alan Gold & Associates. The company provided investment advice to its clients and also purported to invest clients’ money, but the defendant pocketed much of that money, some to pay his gambling debts. He told his clients that their portfolios were healthy — as proof he showed them false reports and false stock certificates. But six elderly victims of the defendant’s scheme — he had preyed mainly on the elderly — testified at the sentencing hearing to their losses and losses by their family members of money invested with Alan Gold & Associates. The testimony of these witnesses was both harrowing and uncontradicted.

The defendant objected that the Probation Office’s estimate of the losses he had caused was too high, but like the codefendant named Brown in United States v. Love, 680 F.3d 994, 999 (7th Cir. 2012) — who we pointed' out had presented “no evidence that the information contained and summarized in the [government’s] charts is unreliable or erroneous” even though “Brown’s counsel had sufficient time and opportunity to fully review all of the information used to prepare the [government’s] summary charts and has not identified any inaccuracies or errors” — Gold provided no evidence, documentary or otherwise, to support his challenge to the government’s estimate of the victims’ losses. It’s true that the government’s documentary evidence consisted only of its own spreadsheet. But the spreadsheet was based on financial data, for each of the fourteen victims, taken from the defendant’s own bank-account records. The calculation of losses was a simple one (money in, money out), and the defendant pointed to no errors in the government’s estimate.

Four of the six victim witnesses testified at the sentencing hearing to the amounts lost by them and their families, amounting to more than $1.35 million. Gold said he believed that “the loss is less than as stated by the government,” but he didn’t say how much less, though in written objections to the government’s calculations he said the loss amount was around $1 million. Yet he failed to present any evidence that might have supported a lower estimate of his victims’ losses than the government’s or the victims’ estimates. As we said in United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994), “a defendant cannot [be permitted to] show that a PSR [presentence investigation report] is inaccurate by simply denying the PSR’s truth. Instead, beyond such a ‘bare denial,’ he must produce some evidence that ‘calls the reliability or correctness of the alleged facts into question.’ ”

The defendant’s principal argument was and is that his prison sentence should have been substantially shorter than 75 months in order to give him time after his release to find employment that would enable him to make good the restitution he was ordered to pay to his victims. The district judge gave no weight to this argument, and was right not to do so. Even if Gold were given no prison sentence, he would be unable to provide substantial restitution to the victims of his fraud, given that he was already bordering on elderly (he is 60 years old), had never graduated from college, lacked full-time employment (earning only $260 a month — walking neighbors’ dogs), and had a negative net worth. No way, given his conviction, that, even if not imprisoned, he’d able to repay his victims the $1.8 million that he owes them, or even a significant fraction of that amount.

As there is no merit to the appeal, the judgment of the district court is affirmed.


author: ROVNER, Circuit Judge.

text:
    Johnnie WATKINS, as Guardian of the Estate of Johnnice Ford, a disabled person, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-2109
    United States Court of Appeals, Seventh Circuit.
    Argued January 6, 2017
    Decided April 27, 2017

      Harry Charles Lee, LAW OFFICE OF HARRY C. LEE, Chicago, IL, for Plaintiff-Appellant.
    Sarah J. North, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge.

This appeal is from the district court’s dismissal, on statute of limitations grounds, of a medical malpractice claim. The plaintiff, Johnnie Watkins, filed the action on behalf of her adult daughter Johnnice Ford, who is a disabled person. The complaint alleged that Ford sought treatment at the emergency room of In-galls Memorial Hospital, where she was treated by Dr. Bari Parks-Ballard, an employee of Family Christian Health Center. She asserts that Parks-Ballard failed to properly diagnose and treat Ford, who was eventually diagnosed with Wernicke’s encephalopathy and who sustained neurological injuries including permanent disability. Because Family Christian Health Center operated pursuant to grant money from the Public Health Services, an agency of the United States government, the action was brought pursuant to the Federal Tort Claims Act (FTCA) and the United States is the defendant. The district court dismissed the action as filed beyond the relevant statute of limitations, and the plaintiff appeals that determination. On appeal, the plaintiff argues that the court erred in taking judicial notice of Ford’s prior lawsuit and dismissing the case based on the statute of limitations without allowing her to establish that Ford suffered from a mental disability. We agree with the reasoning of the district court and affirm.

As the district court recognized, the FTCA constitutes a limited waiver of the United States’ sovereign immunity, which allows individuals to pursue actions against the federal government for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2675(a); Warrum v. United States, 427 F.3d 1048, 1049 (7th Cir. 2005). The applicable FTCA statute of limitations bars any such claim not presented in writing to the appropriate agency within two years of the claim’s accrual. Under the savings clause, that time period can be extended as long as the plaintiff filed a civil suit concerning the underlying tort claim within two years of its accrual and presented that case to the appropriate federal agency within 60 days of the civil suit’s dismissal.

In assessing the timeliness of the 2015 action, we must first identify when the claim accrued, because the limitations period begins to run at that time. In United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court held that a cause of action for purposes of the limitations period accrues when the claimant knows, or would reasonably be expected to know, of the existence of her injury and who caused it, whether or not the claimant is aware that there was negligence or a wrongful act involved. See also Blanche v. United States, 811 F.3d 953, 958 (7th Cir. 2016). In Barnhart v. United States, 884 F.2d 295, 299 (7th Cir. 1989), we addressed a claim that the injury itself impaired the ability of the plaintiff to understand and pursue her claim, and we considered that such incapacity could toll the accrual date; we held that the proper focus in determining when the claim accrued under the discovery rule in such cases remains on the claimant’s awareness or ability to discover and comprehend the cause of her injuries. In Blanche we further noted that the plaintiff need not know that her injury was caused by a doctor; “the accrual date is when the plaintiff has enough information to suspect, or a reasonable person would suspect, that the injury ‘had a doctor-related cause.’” 811 F.3d at 958, quoting Arroyo v. United States, 656 F.3d 663, 672-73 (7th Cir. 2011).

In determining that the claim accrued as of August 2010, the district court took judicial notice of a state court medical malpractice claim filed in August 2010 by Ford against Ingalls Memorial Hospital, Dr. Parks-Ballard, and Family Christian Health Center. See Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012) (noting that in considering a motion to dismiss, courts may take judicial notice of facts readily ascertainable from the public court record such as the dates on which certain actions were taken). The district court noted that the August 2010 complaint contained virtually the same allegations as those in this case regarding the failure to timely diagnose and treat her encephalopathy. Ford voluntarily dismissed that complaint within a month after its fifing, but its relevance is in its reflection of Ford’s awareness that those defendants caused her injuries.

Because the complaint reflects an awareness that her injuries were caused by the defendant (through its agents), at a minimum the claim accrued as of August 2010. Pursuant to the limitations provision applicable to FTCA claims, Ford could proceed with her claim against the United States only if she (1) presented her claim to the appropriate agency within two years of the date of the claim’s accrual; or (2) filed a civil suit within 2 years from that date of accrual and presented that case to the appropriate federal agency within 60 days of the civil suit’s dismissal. See 28 U.S.C. § 2679(d)(5); Blanche, 811 F.3d at 957-58. The plaintiff failed to satisfy either of those alternate avenues. The claim was not presented to the administrative agency until January 19, 2015, which was approximately 4-1/2 years after the date the claim accrued. Nor was the claim presented to the appropriate agency within 60 days from the dismissal of a civil suit that was filed within 2 years from the date of accrual. No claim was submitted to the agency within 60 days of the dismissal of the August 2010 action, and no other civil suit was filed within 2 years of the claim’s accrual, which was August 2010 at the latest. On that basis, the district court granted the defendant’s motion to dismiss the complaint.

Watkins raises a number of challenges to that reasoning. First, Watkins argues that the district court improperly failed to credit her allegations that Ford suffered from a mental disability since September 2008. Watkins alleged in the complaint that Ford “has been disabled since September 10, 2008, when she was diagnosed with Wernicke’s encephalopathy,” and that Ford “has been unable to manage her person, and estate and unable to recognize the cause of her action due to her diagnosis of Wernicke’s encephalopathy.” Plaintiffs First Amended Complaint § 6. The complaint further provided that Watkins brought the cause of action as Ford’s legal guardian “due to Johnnice Ford’s inability to make medical, legal, and financial decisions for herself.” Id. at § 7. Watkins asserts that the district court failed to consider those allegations as true, as required in addressing a Rule 12(b)(6) motion, and that if it had done so, it would have necessarily concluded that Ford’s mental disability prevented her from recognizing the “doctor-related cause of her injuries.”

But the district court properly took judicial notice of the state court complaint filed by Ford’s counsel in August 2010, which contained the same essential allegations as the present suit. We need not speculate as to whether the alleged mental disability impacted Ford’s ability to recognize the cause of her injuries, because the 2010 lawsuit establishes that Ford was actually aware of the cause of her injuries. Watkins argues, however, that the court erred in taking judicial notice of that 2010 complaint, alleging that the filing of the complaint establishes only two facts — that Ford’s name appears in the caption and that the complaint was filed on a certain date. She asserts that the record is devoid of evidence that Ford had any awareness of its filing. That bare allegation, without more, is insufficient to render the 2010 complaint irrelevant to these proceedings. Watkins provides nothing more than mere speculation that the complaint was filed without Ford’s awareness. She includes no argument as to how the attorney who filed the complaint would be aware of the injuries to Ford and the circumstances which caused those injuries without Ford’s participation and awareness. Moreover, she never alleges that she has, or could provide, evidence calling into question the legitimacy of the complaint, such as affidavit evidence from the attorney who filed it indicating that he or she communicated with someone other than Ford, or evidence that the attorney engaged in such unethical behavior in other such cases by purporting to bring a cause of action on behalf of a person without that person’s knowledge or consent. Although the appeal is here on a motion to dismiss, the complaint and the public court record establish that Ford was aware of the injury and its cause, and in fact was pursuing legal action on such claims, as of August 2010. To survive dismissal, Watkins must allege some non-speculative basis to dispute that conclusion. Absent a claim that there is a plausible, good-faith basis to challenge the legitimacy of the August 2010 complaint, the court is entitled to take judicial notice that the complaint was filed by Ford in 2010 which contained the same essential allegations as the complaint before us now.

Moreover, although the complaint alleges that Ford has been disabled since September 10, 2008, when she was diagnosed with Wernicke’s encephalopathy, and has been unable to manage her person and estate and to recognize the cause of her action due to that diagnosis, there is no allegation that any guardian was appointed for Ford until Watkins was named her guardian on January 14, 2015. Accordingly, the 2010 complaint with Ford as plaintiff cannot be attacked on the basis that Ford legally could act only through a guardian.

Watkins questions whether the district court considered the statements of Ford’s physicians and case workers regarding her brain damage, such as a statement in 2008 by her physician that she was unable to attend to her financial affairs since she was unresponsive for unknown reasons and that he could not predict when she would be able to attend to her personal affairs. Although in November 2008, a case manager issued a report indicating that due to Watkins’ cognitive limitations and physical impairments, she was unable to care for her children, and Watkins was appointed as guardian for those children, no guardian was appointed for Ford and nothing indicated a total inability to understand her own circumstances or to appreciate the cause of her injuries. As we concluded earlier, however, we need not assess whether the allegations of Ford’s disability would have been sufficient to permit an inference that Ford was unable to recognize the cause of her injuries, because the allegations in the complaint filed in 2010 establish that at least as of that date she in fact possessed such knowledge. Contrary to Watkins’ argument to this court, the court in taking judicial notice of that 2010 complaint did not take notice of the validity of the substance of the allegations within it, but rather took notice only of the existence and timing of those allegations. Whether the allegations are valid or not, the court can take notice of their presence in the complaint, and that presence demonstrates Ford’s awareness of those potential allegations at that time. Because the cause of action accrued at least as of that date, the complaint in this case was not filed within the limitations period. As we uphold the dismissal on that ground, we need not consider the defendant’s alternative argument that dismissal would also be proper under Illinois’ statute of repose. See Augutis v. United States, 732 F.3d 749 (7th Cir. 2013).

Accordingly, the decision of the district court is AFFIRMED.


author: FLAUM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John D. TERZAKIS, Defendant-Appellant.
    No. 16-3340
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 2017
    Decided April 27, 2017

      Debra Riggs Bonamici, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, Margaret Jean Schneider, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rockford, IL, for Plaintiff-Appellee.
    Ray M. Shepard, Attorney, SHEPARD LAW FIRM, LLC, Glen Burnie, MD, Beau B. Brindley, Attorney, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, IL, for Defendant-Appellant.
    Before WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges.
   FLAUM, Circuit Judge.

John D. Terzakis was indicted for transporting stolen goods. After the government conceded that its key witness would be unavailable to testify at trial, it moved to dismiss the case. Terzakis then filed a motion under the Hyde Amendment seeking attorney’s fees, which the district court denied. For the following reasons, we affirm.

I. Background

In the early 1990s, Terzakis met Berenice Ventrella, the trustee for a family trust with extensive real-estate holdings. Ter-zakis ran a company that managed and developed real estate and eventually managed some of Berenice’s property. In March 2007, Berenice and Terzakis created an LLC to hold one of Berenice’s properties in Buffalo Grove, Illinois. The LLC purchased the property from Berenice using a $15 million loan.

Shortly before her death in January 2008, Berenice appointed her son Nick, who had Asperger syndrome, to be the successor trustee of the Ventrella trust. Soon after Berenice passed away, Terzakis opened an account in the name of the “Estate of Berenice Ventrella.” Terzakis allegedly took Nick to various banks and had him transfer funds from accounts that had belonged to Berenice into this new estate account. Subsequently, between March and September 2008, Terzakis transferred about $4.2 million from the estate account to the account for the LLC he had opened with Berenice and which he now controlled. Terzakis then transferred at least $3.9 million from the LLC account to different' personal accounts of his that were unrelated to the Ventrella family. He later proffered that this money was a loan from Berenice’s estate for “working capital”; however, the Buffalo Grove property held by the LLC was never developed, and there are no documents memorializing a loan from Berenice’s estate to Terzakis.

Thereafter, the government investigated these transfers. Law enforcement officers reviewed Terzakis’s ledgers detailing some of the above transactions and other records from various banks and members of the Ventrella family. However, Nick was the only witness with personal knowledge of Terzakis’s allegedly fraudulent statements about the purpose of the transfers.

During the investigation, Nick’s relatives disclosed to the government an August 2009 psychological report authored by Dr. Karen F. Levin regarding Nick. It noted that Nick “had a very poor grasp of time,” that he “had difficulty with simple questions about the present,” and that he showed “a lack of organized thought.” The report also remarked on Nick’s “excellent recall of very old events with fine details of numbers,” and that “[h]e was very good with calculations.” Dr. Levin ultimately opined that Nick “clearly has a longstanding cognitive disability that would likely fall upon the autism spectrum,” and needed assistance managing his finances and other aspects of life. Between 2010 and 2013, the government held several interviews with Nick and questioned him about the bank transfers. Nick told the government that Terzakis had expressed to Nick that the transfers were for developing the Buffalo Grove property held by Terzakis’s LLC.

In April 2013, the government brought the case before a grand jury. Nick did not testify at the proceeding; however, the indictment indicates that the government informed the grand jury that Nick had cognitive problems. On April 25, 2013, several days before the limitations period was to lapse for four of the underlying transfers, the grand jury returned a five-count indictment for transmitting stolen money, in violation of 18 U.S.C. § 2314. The case proceeded without resolution for two years. Then, in October 2015, the government learned that Nick had been diagnosed with brain cancer, with a prognosis of six months. The government informed Terzakis of the diagnosis, and the parties resumed plea negotiations. On December 23, 2015, Terzakis rejected the government’s plea offer and demanded a speedy trial. On January 8, 2016, the government moved to dismiss the case, citing Nick’s unavailability, and the court entered a dismissal order later that day. Nick passed away several months later.

On February 5, 2016, Terzakis moved to recover attorney fees under the Hyde Amendment, Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes). On August 19, the district court denied Terzakis’ motion. This appeal followed.

II. Discussion

This Court has not explicitly stated the standard of review for appeals of Hyde Amendment cases. All other circuits to address the question have reviewed the district courts’ decisions for abuses of discretion. See United States v. Manzo, 712 F.3d 805, 809 (3d Cir. 2013) (collecting cases). We agree and review the district court’s decision on Terzakis’s motion for attorney’s fees for abuse of discretion. A district court abuses its discretion by applying an incorrect legal standard, or by reaching an outcome that is unsupported by the record or based on a clearly erroneous finding of fact. United States v. Warner, 498 F.3d 666, 680 (7th Cir. 2007).

The Hyde Amendment “authorizes the court in a criminal case to award a reasonable attorney’s fee to ‘a prevailing party, other than the United States,’ if the court finds that the government’s position was ‘vexatious, frivolous, or in bad faith.’ ” United States v. Sriram, 482 F.3d 956, 958-59 (7th Cir. 2007) (quoting 18 U.S.C. § 3006A), vacated on other grounds, 552 U.S. 1163, 128 S.Ct. 1134, 169 L.Ed.2d 946 (2008). The defendant in the underlying criminal case bears the burden of demonstrating these requirements by a preponderance of the evidence. See United States v. Manchester Farming P’ship, 315 F.3d 1176, 1182 (9th Cir.), opinion amended on denial of reh’g, 326 F.3d 1028 (9th Cir. 2003); United States v. Truesdale, 211 F.3d 898, 908 (5th Cir. 2000).

A. Prevailing Party

The district court determined that Ter-zakis was a “prevailing party” because the government had dismissed the indictment after the limitations period had lapsed. The government argues that the district court erred in making this ruling. We may review the government’s arguments as alternate grounds for affirmance, because concluding that Terzakis was not a prevailing party would produce the same outcome as the district court’s order. See Jennings v. Stephens, — U.S. -, 135 S.Ct. 793, 798, 190 L.Ed.2d 662 (2015) (“An appellee who does not take a cross-appeal may ‘urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.’ ” (quoting United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924))).

The Hyde Amendment does not define the term “prevailing party.” In civil fee-shifting contexts, however, “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“A ‘prevailing party’ is one who has been awarded some relief by a court.”) (citation omitted). This principle does not map neatly onto the criminal context, where the Hyde Amendment limits the reach of the term “prevailing party” to defendants. The principle is clear enough as applied to some dispositions: A conviction is sufficient to disqualify a defendant as a prevailing party — even when the sentence was lighter than what the government sought, see Sriram, 482 F.3d at 959—while an acquittal following a trial would clearly make a defendant a prevailing party. However, the prevailing-party analysis is not as clear-cut for dispositions either that do not afford full relief on the merits or that result in a conviction.

In this case, the government moved to voluntarily dismiss the indictment against Terzakis well after the statute of limitations had run. The government does not dispute that it was precluded from pursuing these charges in the future under the applicable statute of limitations, but argues that Terzakis did not prevail because the dismissal was not “relevant to [his] guilt or innocence.” United States v. Chapman, 524 F.3d 1073, 1089 (9th Cir. 2008). This may be true, but, like a dismissal with prejudice — which satisfies the prevailing-party requirement because it “materially alters the legal relationship of the parties, as it precludes the government from bringing a prosecution that it otherwise would be entitled to bring,” id. — the dismissal here materially altered the relationship between the government and Ter-zakis: The government could no longer prosecute Terzakis for the allegedly fraudulent transfers. Thus, the district court did not err in determining that Terzakis was the prevailing party in this case.

B. Vexatious, Frivolous, and Bad Faith

The district court concluded that Terzakis had not met his burden of showing that the government’s case was vexatious, frivolous, or taken in bad faith, as required for fee-shifting under the Hyde Amendment. Terzakis first argues that the district court abused its discretion by applying incorrect legal standards. Specifically, he argues that the district court conflated the terms “vexatious” and “frivolous” when it reasoned that Terzakis’s claim failed “under any definition of these terms [because] Terzakis must at least show that the government’s actions were baseless.” However, the district court correctly noted that: (1) this Court has not yet defined the operative terms; (2) there is clear tension among and overlap in the definitions employed by other circuits; and (3) vexatiousness and frivolousness both seem to require some level of objective deficiency in the government’s position. Indeed, other circuits’ definitions of frivolousness and vexatiousness incorporate such an objective element. See United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001) (vexatiousness requires that “the criminal case was objectively deficient, in that it lacked either legal merit or factual foundation, and ... that the government’s conduct, when viewed objectively, manifests maliciousness or an intent to harass or annoy”); United States v. Sherburne, 249 F.3d 1121, 1126-27 (9th Cir. 2001) (vexatiousness requires a showing of both objective deficiency and a subjective intent to harass); Manzo, 712 F.3d at 811 (“[a] frivolous position is one lacking a reasonable legal basis or where the government lacks a reasonable expectation of attaining sufficient material evidence by the time of trial”) (citation omitted); United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999) (“A ‘frivolous action’ is one that is ‘[gjroundless ... with little prospect of success; often brought to embarrass or annoy the defendant.’ ” (quoting Black’s Law Dictionary 668 (6th ed. 1990))). We conclude that, for purposes of the Hyde Amendment, the terms “vexatious” and “frivolous” both require a prevailing party to demonstrate that the government’s position was objectively deficient — in other words-, that the government lacked a sufficient factual or legal basis on which to initiate or proceed with the case.

The essence of Terzakis’s argument is that the government’s case was imper-missibly weak because it depended on the testimony of Nick Ventrella, who the government knew to have Asperger syndrome and who was later diagnosed with terminal brain cancer. First, Terzakis notes that the government did not call Nick to testify before the grand jury. He argues that this is evidence that the government knew it would not call Nick to testify at trial, and that therefore the government’s ease was deficient. On the contrary, this suggests that the government had a sufficiently strong case without Nick’s testimony to convince a grand jury that there was probable cause to indict Terzakis, based on the documentary evidence of the allegedly fraudulent transactions that the government could have presented before the grand jury or at trial.

Next, Terzakis cites to Dr. Levin’s 2009 medical report suggesting that Nick had cognition issues before and throughout the government’s investigation. He speculates that Nick’s mental health “very likely” deteriorated between the time the report was issued and the 2013 indictment. Terzakis concludes that as a result of Nick’s mental condition, Nick was effectively unavailable to testify at trial. However, as the district court correctly noted, simply having As-perger syndrome does not disqualify a witness from testifying. See Fed. R. Evid. 601 (“Every person is competent to be a witness unless these rules provide otherwise.”). As with any other witness, Terzak-is would have had the opportunity to cross-examine Nick regarding his cognitive abilities and recollection of the relevant events. Susceptibility to cross-examination is not a basis on which to conclude that such a witness must be incredible, much less effectively unavailable.

Finally, Terzakis argues that, even if Nick would have been available to testify prior to his October 2015 brain-cancer diagnosis, he must have been unavailable at least from that point until the December 2015 dismissal. Terzakis claims that such unavailability supports a bad-faith prosecution argument. There are several problems with this line of argument: First, Terzakis did not make this narrower argument until his reply brief, so it is waived. Darif v. Holder, 739 F.3d 329, 336-37 (7th Cir. 2014) (citations omitted). Second, the main document Terzakis uses to support this argument, a report written by Dr. Norman Y. Kohn, was not presented to the district court prior to Terzakis’ reply brief in support of his motion for attorney’s fees, and so the court was not required to address it. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“the district court is entitled to find that an argument raised for the first time in a reply brief is forfeited”). In any event, Dr. Kohn never met Nick, and so was unable to assert based on personal or direct knowledge that Nick was unable to testify at any particular point in time; rather the report extrapolates from the effects of brain cancer on cognition generally. Third, the government informed Terzakis of Nick’s cancer diagnosis immediately after learning of it, so Terzakis was apprised of this relevant information before resuming plea negotiations. Fourth, as with his other arguments above, Terzakis does not provide any authority that a witness with brain cancer must be considered unavailable as of the date of the diagnosis or any particular time thereafter. In short, Terzakis has not shown that the government’s decision to drop the charges against Terzakis was anything but an exercise of prosecutorial discretion in the face of challenges to securing a conviction at trial.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . The district court addressed the prevailing-party issue first, reasoning that ''[w]hether a party is prevailing’ for purposes of the Hyde Amendment is a threshold question.” United States v. Terzakis, No. 13 CR 339, 2016 WL 4417022, at *4 (N.D. Ill. Aug. 19, 2016) (citing Sriram, 482 F.3d at 959 (”[E]ven if the government’s position is vexatious, etc., the defendant cannot be awarded fees unless he is the prevailing party.”)). However, we do not read Sriram as requiring analysis of the prevailing-party question as a threshold matter. Rather, we understand the Hyde Amendment requirements as two independent and necessary elements, akin to the two prongs of the Strickland test for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We thus leave the order in which the district courts choose to address the elements to their discretion. Cf. McDaniel v. Policy, 847 F.3d 887, 893 (7th Cir. 2017) (“there is no reason for a court ... to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one” (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052)) (internal quotation marks omitted).

      . Terzakis argues that the district court’s reasoning was incorrect because, according to him, "a position may be objectively deficient and vexatious without also being entirely baseless.” However, the district court did not require Terzakis to show that the government’s position was entirely baseless; rather, it held that Terzakis was unable to demonstrate that the government's position was sufficiently objectively deficient to be either vexatious or frivolous.

      . Terzakis argues that requiring a showing of objective deficiency for both terms would violate the principle of statutory construction directing courts "to give effect, if possible, to every clause and word of a statute,” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations omitted), because it would render the term "vexatious” mere surplusage, see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (noting courts’ “reluctance to treat statutory terms as surplusage”) (citation omitted). Specifically, Terzakis says that if frivolousness requires a showing of objective deficiency only, and vexatiousness requires a showing of objective deficiency plus an intent to harass, then it is hard, if not impossible, to imagine a scenario where the government’s position is vexatious but not frivolous.
      The Third and Sixth Circuits’ suggested distinction does not fully re-solve this surplusage issue. Those courts reasoned that "[a] ‘frivolous’ position can be distinguished from a ‘vexatious’ one in that ‘the term "vexatious” embraces the distinct concept of being brought for the purpose of irritating, annoying, or tormenting the opposing party.’ ” Manzo, 712 F.3d at 811 (quoting United States v. Heavrin, 330 F.3d 723, 729 (6th Cir. 2003)). Such a distinction simply adds an additional requirement — showing a subjective intent to harass — to the objective deficiency requirement for showing frivolousness. This formulation would make all vexatious positions frivolous ones. Alternatively, interpreting these cases to suggest that vexatiousness requires showing only the government’s subjective intent to harass, regardless of the objective strength of the government’s position, would potentially render the definition of vexatious redundant with the term "bad faith,” replicating the surplusage problem in a different part' of the same clause of the Hyde Amendment. See Gilbert, 198 F.3d at 1299 (bad faith "implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; ... it contemplates a state of mind affirmatively operating with furtive design or ill will” (quoting Black’s Law Dictionary 139 (6th ed. 1990))).
      The principle of attempting to give effect to each statutory term has limits, however. Duncan notes that statutes should be construed this way "if possible,” 533 U.S. at 174, 121 S.Ct. 2120; and Babbitt speaks of "reluctance,” rather than an absolute bar, 515 U.S. at 698, 115 S.Ct. 2407. In the Hyde Amendment, the terms vexatious, frivolous, and bad faith are all closely related and require some combination of objective deficiency and subjective bad intent. It may not be possible to create three distinct terms with independent meanings from the combination of only these two elements. However, we need not re-solve such issues today, because Terzakis has not shown that the government’s case was objectively deficient, or that it was brought to harass Terzakis.

      . The report states, “Mr. Ventrella died of brain cancer in 2016. Well before causing death, malignant brain cancer destroys portions of the brain and causes increased pressure on the entire brain, almost always causing progressive loss of cognitive (mental) function.’’ Dr. Kohn opined that as a result of Nick's Asperger syndrome and brain cancer, Nick "was continuously impaired, and unable to testify, from the time of Dr. Levin’s [August 2009] examination ... until the time of his death in 2016.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. David G. WENZEL, Defendant-Appellant.
    No. 16-1323
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 2017
    Decided April 27, 2017

      Elizabeth Altman, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Appellee.
    Christopher T. Van Wagner, Attorney, VAN WAGNER & WOOD, Madison, WI, for Defendant-Appellant.
    Before WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.
   FLAUM, Circuit Judge.

David G. Wenzel appeals the denial of his motion to suppress evidence gathered as the result of search warrants executed on his home. For the following reasons, we affirm.

I. Background

Wenzel occasionally looked after young children at his Wisconsin home. On March 25, 2015, one mother dropped off her son in Wenzel’s care. When the mother returned to pick up her son, she went into the house to use the restroom. Inside the restroom, she noticed a red light coming from inside a grated vent and pointing towards the toilet. She pried off the vent cover and pulled out a video camera wrapped in black electrical tape. The mother reported this information to the Rock County Sheriff’s Department. Law-enforcement officers checked Wenzel’s criminal history and discovered that he was on the sex-offender registry and had been convicted in 1997 of first-degree sexual assault.

On March 26, 2015, a Rock County detective applied for a warrant to search Wenzel’s residence. The supporting affidavit described Wenzel’s property and listed several categories of items the detective believed could be found in connection with hidden-camera recordings. The affidavit included facts the detective believed would establish probable cause that Wenzel had violated Wis. Stat. § 942.09, “Representations depicting nudity,” which prohibits certain clandestine recordings of others. The affidavit detailed the detective’s many years of law-enforcement training and experience, including previous investigations of child-sex offenses and violations of § 942.09; the mother’s firsthand account of discovering the video camera in Wenzel’s bathroom; the detective’s awareness that hidden cameras such as Wenzel’s could connect to various recording devices and that such recordings were often shared on the Internet or stored on hard drives; and Wenzel’s criminal history and sex-offender-registry status. The affidavit requested permission to search Wenzel’s property for recording-related items.

The same day, the Rock County Circuit Court issued a warrant authorizing the search, and officers conducted the search later that day. On April 2, 2015, law-enforcement officers requested a follow-on search warrant for evidence of child pornography, supported by evidence gathered during the March 26 search.

On the basis of evidence collected from those searches, on May 13, 2015, the government charged Wenzel with two counts of unlawfully creating child pornography in violation of 18 U.S.C. § 2251(a). On August 17, 2015, Wenzel moved to suppress evidence from the March 26 search and all derivative evidence. The magistrate judge, on September 23, 2015, recommended denying Wenzel’s motion and finding that the warrant was supported by probable cause, was not overly broad, and in any case was subject to the good-faith exception. On October 9, 2015, the district court adopted the recommendation.

Wenzel pleaded guilty on December 28, 2015, pursuant to a written plea agreement that reserved his right to appeal the denial of the motion to suppress. On February 5, 2016, the district court sentenced Wenzel to twenty-five years’ incarceration and twenty years’ supervised release. This appeal followed.

II. Discussion

When reviewing a district court’s decision on a motion to suppress, we review the court’s factual findings for clear error and its legal conclusions de novo. United States v. Kelly, 772 F.3d 1072, 1077 (7th Cir. 2014) (citation omitted).

A. Probable Cause

Wenzel first argues that the March 26 warrant was not supported by probable cause. This Court affords “great deference to the decision of the judge issuing the warrant, and we will uphold a finding of probable cause so long as the issuing judge had a substantial basis to conclude that the search was reasonably likely to uncover evidence of wrongdoing.” United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010) (citations and internal quotation marks omitted); see also Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause for a search exists when known facts and circumstances would cause a reasonable person to believe that evidence of a crime will be found. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (citations omitted). Courts employ common sense in reading the supporting affidavit as a whole. See United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000) (citation omitted).

The warrant in this case was issued based on an affidavit supported by an informant’s ■ tip. In such circumstances, courts consider the totality of the circumstances to determine whether that information establishes probable cause for the search, including the following factors:

(1) the extent to which the police have corroborated the informant’s statements;
(2) the degree to which the informant has acquired firsthand knowledge of the events;
(3) the amount of detail provided;
(4) the amount of time between the date of the events and the application for the search warrant; and
(5) whether the informant personally appeared before the judge issuing the warrant.

United States v. Gregory, 795 F.3d 735, 741 (7th Cir. 2015) (citing United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002)).

(6) The mother who found Wenzel’s hidden camera did not personally testify before the judge who issued the March 26 warrant. However, the other relevant factors were sufficient to support a finding of probable cause that Wenzel had violated Wis. Stat. § 942.09. The mother provided a detailed, firsthand account of the incident in which she had found a hidden camera wrapped in black electrical tape, placed inside a covered vent, and pointed towards the toilet. She also told the officers that she had left her child at Wenzel’s home to be supervised by Wenzel. The incident took place on March 25, 2015; and the affidavit, based on the mother’s statement, was submitted the next day. And in the meantime, law-enforcement officers searched Wenzel’s criminal history and learned that he was on the sex-offense registry and had been convicted of a first-degree sexual offense. Together, these facts were sufficient to give rise to probable cause that Wenzel had violated Wis. Stat. § 942.09.

B. Overbreadth

Wenzel next argues that the warrant was overbroad in two ways: It encompassed too many items, and authorized a search of too much of Wenzel’s property. The Fourth Amendment requires a warrant to “particularly describ[e] the place to be searched, and the ... things to be seized.” U.S. Const, amend. IV. Accordingly, “the scope of a lawful search is de-fined by the object of the search and the places in which there is probable cause to believe that it may be found.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (internal quotation marks omitted). To satisfy this requirement, “a warrant must explicate the items to be seized only as precisely as the circumstances and the nature of the alleged crime permit.” United States v. Vitek Supply Corp., 144 F.3d 476, 481 (7th Cir. 1998) (citation omitted).

Wenzel’s main argument is that the detectives who interviewed the mother should have asked her approximately twenty-nine additional questions and narrowed the scope of the warrant affidavit accordingly. However, courts do not ask whether a warrant could have been more precise; rather, we ask whether a warrant was sufficiently precise to satisfy constitutional requirements. In this case, the warrant listed several concrete categories of items, all of which related to the capturing, storage, or dissemination of recorded images, or to law-enforcement officers’ ability to effectively retrieve stored images. There is nothing constitutionally problematic in authorizing a search for all such items when there was probable cause to believe that a suspect was clandestinely recording people who used his bathroom, in violation of state laws prohibiting such recordings.

At oral argument, Wenzel asserted that the warrant, which authorized searching outbuildings and vehicles on Wenzel’s property, was also too broad in geographic scope. However, he did not develop such an argument in his opening brief on appeal, and so forfeited it. See Wedemeyer v. CSX Transp., Inc., 850 F.3d 889, 897 (7th Cir. 2017) (citation omitted). Regardless, the recording-related items authorized to be seized — ranging in size from computers to thumb drives — could plausibly have been found in outbuildings such as sheds, or in Wenzel’s vehicle. Unlike searching for a stolen lawnmower in a bedroom, see Garrison, 480 U.S. at 84, 107 S.Ct. 1013 (citing United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)), the warrant in this case did not authorize a search for items that could not plausibly be found in the authorized locations. In sum, the warrant’s scope was sufficiently tailored to the nature of the crime being investigated.

C. Good-Faith Exception

The government argues that the good-faith exception would apply as an alternative ground for denying Wenzel’s motion to suppress. See United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The magistrate judge agreed that the exception would apply and the district court adopted this recommendation. Because we hold that the warrant was not unconstitutional, we need not reach the issue of whether the good-faith exception would apply. We note, however, that Wenzel did not challenge this alternate ruling on appeal, and he advanced no arguments that the state-court judge “abandoned his detached and neutral role” when he issued the warrant, or that “the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . The items authorized by the search included:
      Video tapes, camera hardware, film, video recording devices, DVDs, cellular phones, digital storage devices, photographs, photo equipment, Pornographic materials, computers, (central processing units), computer attachments, computer monitors, computer scanners, computer hard drives, and any other computer components used to generate computer discs or other inscribable media, and any other- storage media such as computer discs, thumb drives, tapes, CD ROMS, or CD writeables, and books, materials, and manuals relating to computer operation or software operation, and any software or passwords necessary to examine the computer’s readable records, text messaging, Internet chat, E-mail, web camera images, to include the contents of any above listed item, or anything else that would constitute evidence of a crime, to wit: Representations Depicting Nudity, in violation of Wisconsin Statute 942.09....

      . Section 942.09 generally prohibits capturing, reproducing, possessing, distributing, or exhibiting “an intimate representation without the consent of the person depicted under circumstances in which he or she has a reasonable expectation of privacy, if the [defendant] knows or has reason to know that the person who is depicted does not consent to the capture of the intimate representation.” Wis. Stat. § 942.09(2).

      . Wenzel does not directly challenge the April 2 warrant, but argues that the evidence from both searches should be suppressed if the March 26 warrant is determined to be unconstitutional.


author: SMITH, Circuit Judge.

text:
    Tammy HARGETT, Individually and on behalf of all others similarly situated, Plaintiff-Appellee v. REVCLAIMS, LLC, Defendant St. Bernard’s Hospital, Inc.; St. Bernard’s Community Hospital Corporation; Baptist Health; White River Health System, Inc., Defendants-Appellants John Does 1-100, Defendant Tammy Hargett, Individually and on behalf of all others similarly situated, Plaintiff-Appellee v. RevClaims, LLC, Defendant-Appellant John Does 1-100; Baptist Health; St. Bernard’s Hospital, Inc.; St. Bernard’s Community Hospital Corporation; White River Health System, Inc., Defendants
    No. 17-1339, No. 17-1340
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 10, 2017
    Filed: April 14, 2017

      Counsel who represented the appellants were Kenneth P. Castleberry, of Bates-ville, AR, and Alfred F. Thompson, of Batesville, AR, (representing White River Health System, Inc.); Robert L. Henry, III and James D. Robertson of Little Rock, AR (representing Baptist Health); Paul D. Waddell and Same Waddell of Jonesboro, AR (representing St. Bernard’s Hospital, Inc., and St. Bernard’s Community Hospital Corporation); and Jeff Puryear, of Jonesboro, AR, Mark Mayfield, of Jones-boro, AR, and Ryan Michael Wilson of Jonesboro, AR (representing RevClaims, LLC).
    Counsel who represented the appellee was Jeffrey Scriber, of Jonesboro, AR and Brandon W. Lacy of Jonesboro, AR.
    Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   SMITH, Circuit Judge.

The Class Action Fairness Act of 2005 (CAFA) broadened federal jurisdiction over class actions but excepted controversies that are primarily local in nature. District courts must decline to exercise jurisdiction over these matters. Congress has defined the features of a local controversy. As relevant to this appeal, a class action is a local controversy if local citizens predominate over non-locals in the class membership — that is, if more than two-thirds of the class members are “citizens of the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(I). We have long held that “resident” does not mean “citizen” in 28 U.S.C. § 1332(a). The issue in this case is whether this citizenship/residency distinction also applies to § 1332(d)(4). In other words, does “citizen” mean the same thing in § 1332(d)(4) that it means in the rest of 28 U.S.C. § 1332? We hold that it does, and that the district court therefore erred in remanding this case based on the class members’ Arkansas residency rather than citizenship.

I. Background

Tammy Hargett was injured in a car wreck. Hargett received medical treatment from St. Bernard’s Hospital. St. Bernard’s required Hargett to assign her rights as a Medicaid Beneficiary to the hospital. The hospital contracted with RevClaims, LLC to pursue any claim Hargett might have against the driver responsible for her injuries. This was in lieu of collecting a reduced but certain payment from Arkansas Medicaid, which insured Hargett. Hargett contends that this practice violates Arkansas law. She sued St. Bernard’s, Rev-Claims, and several other hospitals in Arkansas state court on behalf of a class comprising “[a]ll persons who were Arkansas Medicaid-eligible beneficiaries” who were treated at one of the defendant hospitals and who had similar liens placed on their third-party claims by RevClaims. Hargett also alleged that “hundreds, if not thousands, of people geographically dispersed across Arkansas have been damaged by Defendants’ actions.”

The defendants removed the suit to federal court under CAFA, 28 U.S.C. § 1332(d). Hargett moved to remand. She urged the district court to “decline to exercise jurisdiction” under CAFA’s local-controversy exception. 28 U.S.C. § 1332(d)(4). The district court concluded that Hargett’s suit met all the exception’s requirements, including the requirement that more than two-thirds of the proposed class be citizens of the state where the suit was filed — in this case, Arkansas. See 28 U.S.C. § 1332(d)(4)(A)(i)(I). As the district court explained:

In establishing the local controversy exception, Plaintiff has defined the class as all persons who were Arkansas residents at the time the medical services which form the basis of the Complaint were provided to them. By restricting the class members to Arkansas residents (specifically, “people geographically disbursed across Arkansas;” Document 2, para. 48), Plaintiffs have sufficiently satisfied their burden of establishing that more than 2/3 of the class members are citizens of Arkansas.

“For clarity,” though, the district court directed Hargett “to immediately amend her complaint to explicitly restrict the proposed class definition as to only include Arkansas citizens.” Hargett filed an amended complaint defining the proposed class as “[a]ll Arkansas citizens who were Arkansas Medicaid-eligible beneficiaries .... ” (emphasis added). Then the case was remanded. The hospitals and Rev-Claims sought permission to appeal under 28 U.S.C. 1453(c)(1), which we granted.

II. Discussion

We have jurisdiction to accept appeals from class-action remands. 28 U.S.C. § 1453(c)(1). The authorizing statute leaves to the “informed discretion of the reviewing court” precisely how to exercise this jurisdiction. Coll. of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 39 (1st Cir. 2009). We accepted this appeal to address a novel and important CAFA issue: How does the “resident” versus “citizen” distinction we have observed in other parts of 28 U.S.C. § 1332 play out in the local-controversy exception?

In conducting this review, we are guided by five principal considerations. First, CAFA reflects Congress’s desire for broad diversity jurisdiction over class actions. Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010). The local-controversy exception is narrow. Id. Once a removing defendant has established CAFA’s jurisdictional requirements, the burden shifts to the plaintiff to establish that the local-controversy exception applies. Id. This means that the district court “should resolve any doubt about the applicability of CAFA’s local-controversy exception against ... the party who seeks remand.” Id. at 823.

Second, apart from the local-controversy exception, the term “citizen” in 28 U.S.C. § 1332 has long meant something different from “resident.” As we said recently, “it is simply incorrect to say [a partyj’s Arkansas residency establishes Arkansas citizenship for the purpose of’ § 1332(a)(1). Reece v. Bank of N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014). We explained why: “Citizenship requires permanence.” Id. at 778. Residency is a more fluid concept. See id. Unlike citizenship, residency does not require an intent to make a place home. See Ellis v. Se. Constr. Co., 260 F.2d 280, 281 (8th Cir. 1958). One could, for example, be a resident of multiple states. Reece, 760 F.3d at 778. But one may be a citizen of just one state. Id.

A complaint or notice of removal resting on residency, then, will not establish citizenship for diversity jurisdiction. Id. This rule is not new. In Pattiz v. Schwartz, for example, we noted the “failure of the plaintiffs in their original and amended complaints to allege diversity of citizenship rather than mere diversity of residence,” and we invoked our repeated holding that this “does not satisfy the requirements for federal diversity jurisdiction under 28 U.S.C. § 1332(a)(1).” 386 F.2d 300, 300-01 (8th Cir. 1968). The citizenship/residency distinction predates even the codification of § 1332; it arises under Supreme Court precedent applying the Constitution’s “judicial article,” Article III. See Bingham v. Cabot, 3 U.S. (3 Dall.) 382, 383, 1 L.Ed. 646 (1798) (“A citizen of one state may reside for a term of years in another state, of which he is not a citizen; for, citizenship is clearly not co-extensive with inhabitancy.”).

Third, “[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” N.L.R.B. v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981). Given the history of the term “citizen,” we infer that Congress incorporated its established meaning in § 1332(d)(4).

Fourth, at least one other circuit has read the historical citizenship/residency distinction into § 1332(d)(4). In In re Sprint Nextel Corp., the Seventh Circuit refused to conclude by sensible guesswork that a class of “all Kansas residents” who purchased text messaging from a company was more than two-thirds Kansan by citizenship. 593 F.3d 669, 671, 674 (7th Cir. 2010). The court noted two ways the plaintiffs could have established citizenship under § 1332(d)(4): (1) by presenting evidence of citizenship; and'(2) by defining the class “as all Kansas citizens” who purchased the text messaging. Id. at 675-76. A later case interpreted Sprint as “distinguishing residence from citizenship for the purpose of § 1332(d)(4).” Myrick v. Well-Point, Inc., 764 F.3d 662, 664 (7th Cir. 2014).

Fifth, and finally, we recently followed the Seventh Circuit’s approach, albeit without directly addressing the citizenship/residency issue embedded in that circuit’s precedents. The question in Hood v. Gilster-Mary Lee Corp. was whether a class comprising workers at a particular Missouri plant was more than two-thirds Missourian by citizenship. 785 F.3d 263, 264-65 (8th Cir. 2015). The district court allowed discovery and concluded, by extrapolating from last-known addresses and affidavits, that more than two-thirds of the class were Missouri citizens. Id. at 265. We reversed. In doing so, we reiterated Sprint's two ways to establish predominantly local citizenship: (1) sound evidence; and (2) defining the class as local citizens. Id. at 266.

We find Hood and Sprint persuasive, and we conclude that § 1332(a)’s citizenship/residency distinction applies in § 1332(d)(4). “Citizen” means the same thing in both subsections — and that meaning is not synonymous with “resident.” The district court therefore erred in holding that merely alleging a proposed class of Arkansas residents was sufficient to satisfy § 1334(d)(4). Hargett could have met her burden by producing evidence or by defining her class to include only Arkansas citizens. But merely alleging residency was not enough. (We accept the parties’ agreement that an Arkansas Medicaid beneficiary must be an Arkansas resident.)

Plaintiffs like Hargett remain free to meet their burden through evidence or through a class explicitly limited to local citizens, but they are not free to rest on guesswork. The district court’s requirement that Hargett “clarify” her class definition before remand suggests that it not only relied on guesswork, but also resolved doubt in her favor. This was error.

Nor do we consider Hargett’s amended complaint, which redefined the class. The district court cited no authority for ordering Hargett to restrict her class definition through an amended complaint before remand. Hargett claims authority from Hood. There, in setting out the ways a plaintiff can establish class citizenship, we said that a plaintiff could “redefine the class as only local citizens.” Hood, 785 F.3d at 266. This redefine language is not part of Hood’s holding. Moreover, Hood cited Sprint for this language, yet Sprint does not speak of redefining a class; it speaks of defining a class in the first instance (before removal) to include only local citizens. In re Sprint Nextel Corp., 593 F.3d at 676. In any event, the concept of redefining a class to trigger the local-controversy exception seems to violate § 1332(d)(7), which says that for purposes of the local-controversy exception, class citizenship must be determined as of the date of the pleading giving federal jurisdiction.

Finally, because we have a duty to inquire into our own jurisdiction, we add that nothing we have said about residency and citizenship means that the district court lacked jurisdiction. Cf. Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 395 (6th Cir. 2016). Hargett alleged in her complaint that she was an Arkansas resident. But the defendants’ notice of removal alleged that Hargett was an Arkansas citizen, and Hargett has not suggested otherwise. This allegation in the notice of removal suffices to show federal jurisdiction. See Reece, 760 F.3d at 778 (allegation of plaintiffs citizenship in amended notice of removal established jurisdiction even though plaintiffs complaint referred to residency, because plaintiff admitted citizenship).

III. Conclusion

Accordingly, we reverse the district court’s remand order, and we remand this case to the district court for further proceedings.

        . We do not agree with Hargett that presumptions alone may transform a challenged allegation of residency into the establishment of citizenship. See Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 397-99 (6th Cir. 2016) (Kethledge, J., dissenting); Reece v. AES Corp., 638 Fed.Appx. 755, 769-70 (10th Cir. 2016); Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013).