text:
    Jason DAVILA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 16-2137
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided December 13, 2016

      Carol A. Brook, William H. Theis, Attorneys, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL, for Petitioner-Appellant.
    Debra Riggs Bonamici, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Respondent-Appellee.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   EASTERBROOK, Circuit Judge.

Jason Davila pleaded guilty to two criminal charges: that he conspired to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and that he possessed a firearm in connection with both the planned robbery and a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The indictment charged the drug offense as a separate substantive count, which was dismissed as part of a plea bargain. The judge sentenced Davila to consecutive sentences of 6 months’ imprisonment under the Hobbs Act and 60 months’ imprisonment under § 924(c). He did not appeal.

But after the Supreme Court held in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), is unconstitutionally vague, Davi-la filed this collateral attack under. 28 U.S.C. § 2256. He contends that conspiracy to commit a robbery could be deemed a crime of violence only under the residual clause in § 924(c)(3)(B)- and that this clause should be held unconstitutional under Johnson’s reasoning. This court recently reached that conclusion about the validity of § 924(c)(3)(B). See United States v. Cardena, No. 12-3680, 842 F.3d 959, 995-96, 2016 WL 6819696 (7th Cir. Nov. 18, 2016). Anticipating the possibility of that outcome — and without deciding whether a Hobbs Act conspiracy is a crime of violence under the elements clause in § 924(c)(3)(A) — the district judge held that Davila’s conviction is valid no matter how conspiracy to rob is classified. The indictment charged Davila with possessing the gun in connection with both that planned robbery and a completed drug deal, and the latter is a “drug trafficking crime” under § 924(c)(2). The district court accordingly declined to disturb the conviction or sentence,

Davila’s appellate brief assumes that a conviction under § 924(c) is proper only if there is also a conviction for a qualifying predicate offense — either a “drug trafficking crime” or a “crime of violence”. As he pleaded guilty to the Hobbs Act count but not the drug count, he submits that the drug deal cannot be considered ' under § 924(c). This approach treats § 924(c) as a sentence-enhancement statute, and a judge can’t enhance a sentence unless there has been a conviction for an underlying offense.

The Armed Career Criminal Act is a sentence-enhancement statute, but § 924(c) is not. It defines a stand-alone crime. Section 924(c)(1)(A) provides that

any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use' of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided- for such crime of violence or. drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years[.]

This requires a minimum sentence of five years if the firearm is possessed during and in relation to a drug offense or crime of violence “for which the person may be prosecuted” (emphasis added); it does not require a prosecution for or conviction of that other offense. See United States v. Moore, 763 F.3d 900, 908 (7th Cir. 2014); Young v. United States, 124 F.3d 794, 800 (7th Cir. 1997). When stating the factual basis of his plea, Davila admitted to a substantive drug offense that made him eligible for conviction under § 924(c), no matter how the Hobbs Act conspiracy is best classified (a subject that we do not address).

Davila contends that even if a § 924(c) conviction is possible without a conviction on a predicate offense, he understood the § 924(c) count of the indictment to allege only that he possessed the gun during and in relation to a crime of violence. Yet the § 924(c) count is short (about half of a double-spaced page) and mentions the Hobbs Act and drug offenses within a single sentence. The plea colloquy also covered the relation between his gun and drugs.

There is a deeper problem with Davila’s challenge to his conviction under § 924(c): He pleaded guilty. He' did not fight the charge and contend that the residual clause is invalid or that conviction of a drug charge is essential to a § 924(c) conviction. He gave up those and other possible arguments as part of a plea bargain, .which conferred benefits including the dismissal of two other serious charges (the substantive drug count and a felon-in-possession count). Davila cannot keep those benefits while avoiding the criminal responsibility to which he admitted.

The Supreme Court has held many times that a plea of guilty is all that is necessary for a conviction:

[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence. ■

United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Davila’s plea was counseled, and he does not contend that it was involuntary. His brief tells us that he does not want the plea set aside and the prosecution restarted. That leaves the question whether the court had “power to enter the conviction” — in other words, subject-matter jurisdiction. A later passage in Broce contemplates the possibility that a plea might be invalid if the very act of initiating a criminal prosecution violated the Constitution, see id. at 574-75, 109 S.Ct. 757, but Davila does not contend that there was any problem with this prosecution’s initiation. He argues only that he is entitled to the benefit of the later decision in Johnson,

The district court had subject-matter jurisdiction under 18 U.S.C. § 3231. See United States v. Martin, 147 F.3d 529 (7th Cir. 1998). This leads Davila to contend that, whenever a constitutional problem crops up in a case that had been resolved by a guilty plea, the district court retroactively loses jurisdiction despite § 3231. That position runs headlong into Broce, for the Court there held that a guilty plea prevents collateral relief even on the , assumption that the conviction violated the Double Jeopardy Clause of the Fifth Amendment.

Broce is hardly the only holding to that effect. The Court observed, 488 U.S. at 571-72, 109 S.Ct. 757, that in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), it had rejected the contention that a constitutional flaw revealed by post-plea developments permits a court to set aside a plea. Brady had been charged with capital kidnapping and pleaded guilty to a lesser charge to avoid the risk of the death penalty. Nine years after Brady entered that plea, United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), held that the Constitution precluded the death-penalty system established by the statute under which Brady had been charged. But this did Brady no good because “a voluntary plea of guilty intelligently made .in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise,” Brady, 397 U.S. at 757, 90 S.Ct. 1463, quoted in Broce, 488 U.S. at 672, 109 S.Ct. 757. What was true for Brady and Broce is true for Davila as well.

Johnson did not order the prosecution dismissed for lack of subject-matter jurisdiction. Instead the Supreme Court ruled in Johnson’s favor on the merits. Likewise we decided .Cardena on the merits. Unless a suit is laughably frivolous at the outset, a decision that the plaintiff loses because the law favors the defense leads to a decision on the merits, not a dismissal for lack of subject-matter jurisdiction. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). So Davila loses for two independent reasons: first, conviction of a drug crime is not essential to a conviction under § 924(c) for possessing a gun.during and in relation to a drug offense; second, Davila’s guilty plea forecloses a collateral attack based on Johnson or any other development that does not concern subject-matter jurisdiction or imply that the very institution of the criminal charge violated the Constitution.

Affirmed.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    Lee Ann PRATHER, Plaintiff-Appellant, v. SUN LIFE AND HEALTH INSURANCE COMPANY (U.S.), Defendant-Appellee.
    No. 16-1861
    United States Court of Appeals, Seventh Circuit.
    Argued November 2, 2016
    Decided December 13, 2016
    Mark D. DeBofsky, Attorney, DEBOF-SKY & ASSOCIATES, P.C., Chicago, IL, for Plaintiff-Appellant.
    Edna Sybil Kersting, Attorney, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Chicago, IL, for Defendant-Appellee.
    Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges. ,
   POSNER, Circuit Judge.

The plaintiffs decedent, Jeremy Prather, was employed by a company that had obtained a Group Insurance Policy from Sun Life which provided accidental death and dismemberment coverage for the company’s employees, in the amount of $92,000 for Prather. The policy limited coverage to “bodily injuries ... that result directly from an accident and independently of all other causes.” The clause we’ve italicized is the focus of this appeal from the district court, which granted summary judgment for Sun Life, which had invoked the clause to deny the payment of death and dismemberment coverage to Prather’s survivor on the'ground that his death had not been the exclusive result of an accident — it had also been the result of “complications from surgical treatment.” Prather’s widow brought this suit “to recover benefits due to [her]” under the plan. 29 U.S.C. § 1132(a)(1).

On July 16, 2013, Prather, age 31, had torn his left Achilles tendon playing basketball. Three days later he met with an orthopedic surgeon to discuss treatment, and of the options offered he chose surgery. He was scheduled to be operated on three days later, July 22. On July 21 he called the surgeon’s office complaining of a swelling in the lower part of his left leg, and that an area of the left calf was both sensitive and warm to the touch. The surgeon told him to elevate the leg. The surgery next day to repair his torn Achilles tendon was uneventful and he was discharged from the hospital the same day. He returned to work and was reported as doing well in a follow-up visit to his surgeon on August 2. But four days later he collapsed at work, went into cardiopulmonary arrest, and died the same day as a result of a deep vein thrombosis (blood clot) in the injured leg that had broken loose and traveled through the bloodstream to a lung, thus becoming a blood clot in the lung — that is, a pulmonary embolism — which caused cardiac arrest and sudden death.

Sun Life’s position is that the pulmonary embolism and ensuing death were consequences not of — at least not entirely of— the accident to Prather’s Achilles tendon, but of the surgery. Of course that means it was also a consequence of the accident, for without the accident there would have been no surgery. But it may have been a consequence of the surgery as well. Indeed it is even possible that had it not been for the surgery, Prather would not have died.

A physician’s assistant employed by Sun Life opined in a “Death Review Claim,” prepared by her as part of Sun Life’s review of Prather’s claim, that deep vein thrombosis and pulmonary embolism are risks of surgery, but that even with conservative treatment, such as immobilization of the affected limb, the insured had an enhanced risk of a blood clot. That was Sun Life’s only medical evidence, however, and it was inconclusive. It was evidence not that Prather’s death was a result not just of the accident but also of independent events — namely the surgery but maybe also or instead the immobilization of his leg before surgery — but that it might have been a partial result of such events — partial because the accident had to have played a role; no accident, no surgery or immobilization, hence no deep vein thrombosis or pulmonary embolism.

Although the insurance contract purports to place the entire burden of proof on the insurance beneficiary — it says the death must have occurred “independently of all other causes,” which Sun Life interprets to require the beneficiary to disprove any possible alternative cause of death— that can’t be right because it would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death (there is no sug-gestión that Prather, a young man, would be dead had he not torn his Achilles tendon), merely because there is some speculative possibility that something else may also have played a role. That would make many accident insurance contracts vacuous, illusory, because often there is an interval between the accident and a resulting injury, and a possibility that something in that interval caused or aggravated the insured’s injury. Since the accident alone— the rupturing of the tendon — may well have caused the blood clot that killed Prather, the insurance company had to present some evidence that the surgery had been a cause of Prather’s death — and it presented none. All it “proved” through the physician’s assistant was that the surgery might have been a cause of Prather’s death; no effort was made to quantify the added risk created by the surgery.

The forensic pathologist who conducted a post-mortem examination of Prather did not attribute his death to the surgery, and the relevant medical literature indicates that there is a significant incidence of deep vein thrombosis (the final trigger of the pulmonary embolism) following the rupture of an Achilles tendon even if the tendon is not operated on.

Deep venous [vein] thrombosis (DVT) is a significant source of morbidity and mortality and is associated with many orthopedic procedures. Previous studies have reported highly variable DVT rates in patients with Achilles tendon rupture undergoing operative and nonoperative treatment. We performed a retrospective chart review for all patients who underwent Achilles tendon repair at our institution from January 2006 to February 2012. Patient data were collected from the electronic medical record system. A total of 116 patients were eligible for the present study. Of these patients, 27 (23.47%) with a surgically treated Achilles tendon rupture developed a symptomatic DVT either while tvaiting for, or after, surgical intervention, with approximately one third of these diagnosed before surgical intervention_
We have shown a high incidence of DVT after Achilles tendon rupture. We recommend a high level of suspicion for the signs and symptoms of DVT during the follow-up period.

Makhdom AM (Asim M.) et al, “Incidence of Symptomatic Deep Venous Thrombosis After Achilles Tendon Rupture,” 52 Journal of Foot & Ankle Surgery 584 (2013) (emphases added).

Sun Life argues unpersuasively that its insurance contract with Prather’s employer gave Sun Life “discretion to decide what evidence was sufficient to demonstrate a disability.” But that would amount to the insurer’s having carte blanche to decide whether or not to honor its contract. The company also argues, again un-persuasively, that “the evidence in this matter makes clear that Mr. Prather’s surgical treatment contributed to his death[,] ... indeed, caused the forming of a blood clot in Mr. Prather’s deep veins.” No, the evidence does not make that clear. All the evidence shows is that his death followed both the surgery and the accident that preceded the surgery. Post hoc is not propter hoc. And we know from the medical literature that an accident alone can create a fatal blood clot and so far as appears could have done so in this case.

Indeed, Prather’s complaint the day before the surgery of a swelling in the lower part of his left leg and that an area of the left calf was sensitive and warm to the touch suggests that the deep vein thrombosis might have formed by then, because swelling, pain, and warmth in the affected limb were all symptoms of DVT. Because Sun Life failed to make any plausible showing that the surgery on Prather’s ankle, rather than the accident that necessitated the surgery, caused his death, the judgment in favor of the defendant is reversed and the district court is instructed to enter judgment in favor of the plaintiff. See Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1052 (7th Cir. 1991).


text:
    AVENTINE RENEWABLE ENERGY, INC., Plaintiff-Appellant, v. GLACIAL LAKES ENERGY, LLC, and Aberdeen Energy, LLC, Defendants-Appellees.
    Nos. 16-1690, -1692
    United States Court of Appeals, Seventh Circuit.
    Argued November 8, 2016
    Decided December 14, 2016
    Jeffrey P. Justman, Aaron D. Van Oort, David R. Merritt, Attorneys, FAEGRE BAKER DANIELS LLP, Minneapolis, MN, Michael D. Gifford, Thomas W. O’Neal, Attorney, HOWARD & HOWARD ATTORNEYS PLLC, Peoria, IL, for Plaintiff-Appellant.
    David G. Lubben, Attorney, DAVIS & CAMPBELL L.L.C., Peoria, ’ IL, Eric John Nystrom, Karla Marie Vehrs, Michael Lavern Weaver, Attorneys, LIND-QUIST & VENNUM, Minneapolis, MN, for Defendant-Appellee.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, Aventine, is a distributor of ethanol, a common additive to gasoline. The two defendants, affiliated. companies that for the sake of simplicity we’ll pretend are one and call Glacial, manufacture and sell ethanol. The disputants are of diverse citizenship, and have agreed that the law applicable to their dispute is that of New Yoi’k State.

Until 2009, Aventine bought ethanol from Glacial and distributed it, but in January of that year the parties executed “termination agreements.” The ágree-ments required Aventine to pay Glacial $898,000 (we round to the nearest $1000) for ethanol that Aventine had received from Glacial before the termination date specified in the agreements but had not yet paid for (the parties call the payments that Aventine was required to make “true-up payments”) and required Glacial to pay Aventine $1,250,000 for commissions that Glacial would have had to pay Aventine for marketing the ethanol that Aventine had agreed to buy from it. In addition Glacial agreed to assume Aventine’s leases from Union Tank Car Company of 473 railcars used for transporting ethanol; trembling on the brim of bankruptcy, Aventine didn’t need railcars any more.

Glacial used the railcars between February 23 and April 7 (Aventine declared bankruptcy on April 7) without reimbursing Aventine for the lease payments that Aventine owed Union Tank, a sum exceeding $500,000, which Aventine could not afford to pay. When Aventine declared bankruptcy, Glacial owed it some $1,600,000 for marketing commissions and railcar leases while Aventine owed Glacial some $900,000 for the ethanol it had bought from Glacial before the termination date specified in the termination agreements. Netting the two debts would have resulted in Glacial’s paying Aventine $700,000. But because, or at least ostensibly because, Aventine either couldn’t or wouldn’t pay Glacial any part of the $900,000 that Aventine owed it, Glacial refused to pay Aventine the $700,000 — or indeed anything, while continuing to use the railcars Aventine had transferred to it.

Further bypassing Aventine, Glacial made a deal to lease the railcars from Union Tank. Although the termination agreements required Glacial if it wanted to use the railcars to secure a release of Aventine from its Union Tank leases, Glacial didn’t do that and as a result Aventine was required- as part of its bankruptcy plan to make good on what it owed to Union Tank — to the tune of almost $2.3 million worth of Aventine stock.

Why wasn’t the dispute resolved in the bankruptcy proceeding? Glacial wouldn’t have fried a claim in bankruptcy court, because a claim is a right to payment, 11 U.S.C. § 101(5)(A), and Glacial was a net loser under the termination agreements. Had if filed a claim Aventine would have responded with defenses and a counterclaim. See 28 U.S.C. § 157(b)(2)(C), (c)(1); Stern v. Marshall, 564 U.S. 462, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Aventine could have initiated an adversarial proceeding but didn’t need to, since its bankruptcy plan explicitly preserved its cause of action, along with Glacial’s right of set-off.

Still owed lots of money by Glacial, after going through bankruptcy Aventine sued it in an Illinois state court (Aventine is a citizen of Illinois). Glacial removed the suit to federal district court, which granted summary judgment for Glacial on the ground that, while it would be “unjust” to allow Glacial “to avoid any liability” to Aventine, the latter’s failure to make the true-up payments “dooms the Plaintiff!,] as performance is an essential element of its claim for breach of contract.” But to place all the onus on Glacial as the district judge did was mistaken, as both parties had defaulted’ on the obligations they’d agreed to in the termination agreements. Aventine had just happened to sue first — unsurprisingly since it was owed more by Glacial than it owed Glacial..

The district judge ignored the law of New York (which as we said the parties agree governs their dispute), under which a party cannot “at the same time treat the contract as broken and as subsisting,” Strasbourger v. Leerburger, 233 N.Y. 55, 134 N.E. 834, 835 (1922), which is what Glacial did by using the railcars while insisting that Aventine cannot sue for breach of contract. Applying New York law the Second Circuit has held that a party’s “refusal to perform its end of the bargain” after it has affirmed a contract by continu ing to accept its benefits is “impermissible.” ARP Films, Inc. v. Marvel Entertainment Group, Inc., 952 F.2d 643, 649 (2d Cir. 1991); see also McDonald’s Corp. v. Robert A. Makin, Inc., 653 F.Supp. 401, 403 (W.D.N.Y. 1986). Or as the great Judge Cardozo put it, a sales contract kept alive “remains alive as much for the benefit of the buyer as for the benefit of the seller. ... The buyer may now insist that the seller’s misconduct shall be cast in the balance with its own.... If the defendant never retracted its unlawful claim of right, the like is true of the plaintiff. The one as much as the other is chargeable with wrong,” Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N.Y. 120, 116 N.E. 789, 790 (1917).

Glacial argued in the district court that Aventine would suffer no loss from failing to obtain any damages from Glacial because as a result of its bankruptcy the creditors of Aventine are now its owners; they’ll take the loss, since if a corporation sustains a substantial loss, the owners’ stock is worth less. But it doesn’t follow that because the owners of the corporation are hurt, the corporation isn’t. And finally Glacial argues that the value of Aventine’s indemnification claim is zero, because Aventine’s debt to Union Tank (which Glacial promised to cover) was discharged in the bankruptcy in exchange for stock that Aventine would otherwise have been forced to ■ give to another creditor. But Aventine’s debt to Union Tank, and therefore Glacial’s liability to Aventine, was sharply reduced by the bankruptcy. That was enough of a windfall for Glacial. It’s not entitled to more.

The judgment of the district court is reversed, and the case remanded with instructions to net out the difference in the amounts of money owed by the parties to each other and award the difference to the party to whom it is due.


author: HAMILTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony BROWN, Defendant-Appellant.
    No. 15-2243
    United States Court of Appeals, Seventh Circuit.
    Argued April 4, 2016
    Decided December 14, 2016

      Shoba Pillay, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Rosa A. Eliades, Attorney, Eliades Law, PLLC, Chicago, IL, for Defendant-Appellant.

      Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.

       Hon. Pamela Pepper of the Eastern District of Wisconsin, sitting by designation.

   HAMILTON, Circuit Judge.

Appellant Anthony Brown pled guilty to conspiring to distribute drugs. He appeals his sentence, challenging the application of a two-level Sentencing Guideline enhancement for obstruction of justice. The unusual process that led to this enhancement persuades us that we should remand; The judge who sentenced Brown imposed the enhancement based on Brown’s responses to three questions in testimony in a hearing on a motion to suppress in another case against another defendant and before another judge. The other defendant ultimately pled guilty and withdrew his motion to suppress. As a result, the judge who actually heard Brown’s testimony never made findings about the honesty of his testimony or the merits of the other defendant’s motion to suppress. The judge who sentenced Brown imposed the enhancement for obstruction of justice based on the other judge’s interim impressions about earlier testimony from police officers^ That was not a sufficient factual foundation to support the obstruction of justice enhancement. We vacate Brown’s sentence and remand for resentencing.

I. Facts and Procedural Background

Anthony Brown was arrested for selling heroin in a hand-to-hand drug transaction on Chicago’s west side. He offered to assist the police, telling the officers .that he knew where a man named “Jimmie” stored large amounts of drugs and that he was supposed to meet Jimmie later that day. Brown gave a description of Jimmie but did not provide his last name. Brown rode with police officers in an unmarked police car to Jimmie’s stash house. Brown then placed a monitored but unrecorded call from the police car using his personal cell phone. When a person matching the description given by Brown emerged from the house, police stopped him. They found eight baggies with approximately 1000 capsules containing 135 grams of heroin. The police later identified him as Jimmie Ses-som,

Sessom was charged with possessing 100 grams or more of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1); His case was assigned to Chief Judge Castillo. Sessom moved to'suppress the search and seizure of heroin. At an evidentiary hearing on the motion to suppress before Judge Castillo, Chicago police officers and an FBI agent testified about the information Brown had given them and Sessom’s stop and arrest. After hearing the testimony, Judge Castillo told the attorneys he was inclined to deny Sessom’s motion to suppress, and he shared with the attorneys his “preliminary conclusions” to the effect that he found credible, the police testimony about the information that Brown provided. Judge Castillo made no definitive ruling, however, and left open the possibility of hearing further evidence.

Sessom later moved to reopen the suppression hearing to call Brown to testify. Since Brown’s own criminal case was still pending, the parties in Sessom’s case expected Brown to assert his Fifth Amendment privilege not to incriminate himself. Sessom proposed to the court that Brown be asked just four questions that he argued would not invade Brown’s Fifth Amendment privilege. The questions were provided in briefs to the court and to all parties. Judge Castillo granted the motion, reopened the suppression hearing, and ordered Brown to answer over his Fifth Amendment objection.

The questioning was conducted by Ses-som’s counsel:

Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
A: You said Taylor and North Avenue?
Q: Yes.
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue—
A: No.
Q. — as someone you knew as Jimmie?
A: No.
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer’s car to someone named Jimmie?
A: No.
Q: Do you recall what your phone number was in July 2012?
A: I can’t remember.

After that hearing, Sessom pled guilty and withdrew his motion to suppress. As a result, Judge Castillo never ruled on the motion to suppress and did not make any findings on the credibility of Brown’s answers.

Brown then pled guilty to the conspiracy charge against him. Judge Guzmán sentenced Brown. The government argued that Brown had obstructed justice by lying in his answers to those questions in Ses-som’s suppression hearing. Judge Guzmán then determined that Brown’s “no” answers in the suppression hearing reflected Brown’s version of the events and found that his version of events was not credible. Judge Guzmán then “agreed with” Judge Castillo’s preliminary view that the officers who testified at Sessom’s suppression hearing were credible.

Judge Guzmán was “convinced that [Brown’s] failure to accurately testify constitutes an obstruction of justice.” He found that the failure to testify accurately was intentional and imposed the two-level guideline increase for obstruction of justice under U.S.S.G. § 3C1.1. The enhancement made the total offense level 27. With criminal history Category III, the guideline range became 87 to 108 months. Judge Guzmán imposed a sentence of 60 months, below both the actual guideline range and the range of 70 to 87 months that would have applied without the obstruction enhancement.

On appeal Brown argues that Judge Guzmán did not make appropriate findings to support application of the enhancement for obstruction of justice. In our view, while Judge Guzmán made the findings required for the enhancement, he did not have a sufficient factual basis for doing so since he based those findings primarily on the interim impressions Judge Castillo announced before he had even heard Brown’s testimony, ■ We wonder whether a remand is likely to benefit Brown, especially in light of the below-guideline sentence and the continued credit for acceptance of responsibility (which is unusual but permissible when an obstruction enhancement applies). Still, we cannot say on this record that the error was harmless, so we remand for re-sentencing.

II. Analysis

Judge Guzmán found that Brown committed perjury by providing the three “no” answers in Sessom’s suppression hearing. We review the district court’s factual findings for clear error. United States v. DeLeon, 603 F.3d 397, 402 (7th Cir. 2010), citing United States v. Powell, 576 F.3d 482, 498 (7th Cir. 2009). Those “factual findings will stand -as long as they are plausible in light of the record in its entirety.” Id. (internal quotation marks and citation omitted). We review de novo whether the factual findings of the district court adequately support the imposition of the enhancement. See id. citing United States v. Anderson, 580 F.3d 639, 648 (7th Cir. 2009).

When applying a § 3C1.1 enhancement for obstruction of justice based on perjury, “the district court should indicate that it has found all of the elements of perjury: falsity, willfulness and materiality.” United States v. Turner, 203 F.3d 1010, 1020 (7th Cir. 2000), quoting United States v. Brimley, 148 F.3d 819, 823 (7th Cir. 1998). In such cases, “a district court must review the evidence and make independent findings necessary to establish a willful impediment ;to or obstruction of justice, or an attempt to do the same — ” United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). The district court “must also find that a defendant testified untruthfully with the specific intent to obstruct justice rather than as a result of confusion, mistake or faulty memory.” United States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999), citing Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111, and United States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997) (“Section 3C1.1 requires specific intent to obstruct justice.”). The prosecution bears the burden “to prove by a preponderance of the evidence that the enhancement is warranted.” Ewing, 129 F.3d at 434, citing United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir. 1994).

We first address a legal issue about whether § 3C1.1 could apply to Brown’s testimony in Sessom’s suppression hearing. Section 3C1.1 provides:

If (1) defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or. sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase by 2 levels.

Could perjury by Brown in the Sessom suppression hearing meet the requirements of § 3C1.1? We agree with the district court that it could, at least with sufficient factual findings. The second clause allows the enhancement to be applied for perjury or other obstruction regarding a “closely related offense.” We find no error in the district court’s decision to treat Brown’s testimony in the Sessom suppression hearing as “related to ... a closely related offense,” even though the two men were not charged jointly. See United States v. Messino, 382 F.3d 704, 708 (7th Cir. 2004) (affirming enhancement where defendant testified falsely during trial of co-defendants); accord, United States v. Mollner, 643 F.3d 713, 718 (10th Cir. 2011); United States v. Savoca, 596 F.3d 154, 158 (2d Cir. 2010).

The first clause in § 3C1.1 requires that the perjury or other obstruction have been “with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” The “instant offense of conviction” for Brown was conspiracy to possess heroin with intent to distribute it. A conspiracy requires a co-conspirator, of course, and when Brown wanted to cooperate, Sessom was the distributor he gave up to the police. It is not unreasonable to treat perjury in a prosecution of such a potential co-conspirator as obstruction “with respect to the investigation, prosecution, or sentencing” of Brown’s own offense of conviction. The close parsing of the precise wording of the Guideline provides another reminder, however, about why a sentencing judge may not want to tie a final sentence too closely to such narrow guideline issues as the precise scope of § 3C1.1 that may have only a tenuous relationship to the goals of sentencing under 18 U.S.C. § 3553(a). Perhaps the district judge here took that approach (keep in mind that the sentence was below the guideline ranges both with and without the obstruction enhancement), but he did not signal clearly that he was doing so. In any event, there was no legal obstacle to the obstruction enhancement here.

There was a factual obstacle, though. The district court made the required findings, but did so without an adequate basis in the evidence for finding willfulness and falsity. The combination of relying on testimony before another judge and the “no” answers to quite specific and multi-part questions undermined the usual grounds that would support those findings. Recall the three key questions:

Q: Mr. Brown, on the evening of July 11, 2012 at approximately 7:45, were you in a car with a Chicago Police Department officer around Taylor and North Avenue in Chicago?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you identify an individual walking out of an apartment building at 1239 North Taylor Avenue ... as someone you knew as Jimmie?
Q: On the evening of July 11th, 2012 at approximately 7:45, did you place a phone call from a CPD officer’s car to someone named Jimmie?

Brown answered each one “no.” ; Each question included multiple factual elements. Because of concerns about his Fifth Amendment privilege, there was no followup. We recognize that Brown may have had a strong incentive to lie about the help he had given the police that led to Ses-som’s arrest and prosecution. But if Brown was mistaken or confused about just one element of the multi-part questions, his answers of “no” could have been honest or at least not deliberately perjurious. For example, there is evidence that Brown had not known the address to which he was directing the officers, but knew only how to get to the house. If he was mistaken about the date or time or the cross-streets, a “no” answer could have been honest or at least not willfully false. These questions and answers, without clarification, were too ambiguous to warrant a determination that Brown gave willfully false answers.

Neither Brown’s attorney nor any other counsel was permitted to inquire further as to what parts of the questions prompted the “no” answers. “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Bronston v. United States, 409 U.S. 352, 360, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973) (discussing federal perjury statute, 18 U.S.C. § 1621). That did not'occur in this case, for understandable reasons. The Second Circuit has said that when a line of questioning “is so vague as to be ‘fundamentally ambiguous,’ the answers associated with the questions posed may be insufficient as a matter of law to support the perjury conviction.” United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); see also United States v. Landau, 737 F.Supp. 778, 784-85 (S.D.N.Y. 1990) (granting motion to dismiss perjury indictment because questions were ambiguous). Here the ambiguity stemmed from the combination of multiple factual elements in each question and the lack of follow-up. Accordingly, Judge Guzman could not rely on Brown’s “no”, answers in the Sessom suppression hearing to determine Brown’s “version of events.”

At Brown’s sentencing hearing, Judge Guzmán said:

On this record I find his version now of what occurred to be just not credible. It’s not credible. The testimony by the officer, I agree with Judge Castillo, was credible, was believable. That’s the way things happen. That’s the way it’s done.

When Brown’s counsel noted the limited nature of the examination in the Sessom suppression hearing and suggested that the responses to the four government questions were not sufficient to find obstruction, the court responded:

You don’t think it’s clear from this record that the officers’ testimony was that your client was with him in the car, pointed out the apartment, and pointed out the defendant when he came .out, and that he denied that when he testified?

After Brown’s counsel expressed further concern that the testimony was very limited in scope and that counsel was not able to cross-examine to clarify his testimony to bolster his credibility, the court said that Brown’s motive was:

not a great mystery. I have many defendants who come here, plead guilty, but still have one foot in their other life. These are his relationships. These are the people he did business with. These are the people who he fears. All of these reasons would be cause for him to back off and lie. It would be cause for him not to ... want to admit in open court in front of his peers, the people he was doing business with, the people he depended upon, and the people he feared, what he actually did against them. That happens all the time. I don’t find that unusual.

The court later said:

I am convinced that his failure to accurately testify constitutes an obstruction of justice. I think it was intentional. I think it directly contradicted the version of events as they actually- occurred. It was under oath. And I find that the two-level increase for obstruction of justice is appropriate in this case. As a result of that I find that the appropriate adjusted total offense level in this case is 27 —

On this record, we cannot agree. We assume that Judge' Guzmán could have relied on more definitive findings by Judge Castillo that Brown had lied deliberately. We also assume that Judge Guzmán could have made his own findings if Brown’s answers Had been less ambiguous. But the fact that Judge Castillo never made findings in the Sessom hearing and never made findings about Brown’s credibility means that Judge Castillo’s initial impressions about the hearing could not be relied on in Brown’s case to support an enhancement for .perjury. We recognize that Brown may well have been lying before Judge Castillo,- but the very specific questions and terse “no” answers in the transcript did not provide a “Brown version” of events that Judge Guzmán could rely upon to find perjury.

Brown’s sentence is VACATED and the case is REMANDED for re-sentencing.


author: BENTON, Circuit Judge.

text:
    The GAP, INC., Plaintiff-Appellee v. GK DEVELOPMENT, INC.; Columbia Grand Forks, LLC, Defendants-Appellants
    No. 16-1223
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: December 8, 2016

      Counsel who presented argument on behalf of the appellant was Robin Wade Forward, of Bismarck, ND. In addition to Mr. Forward, the following attorney(s) appeared on the appellants’ brief; Marc D. Simpson and Calvin P. Hoffman both of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Shanon- M. Gregor, of Fargo, ND. The following attorney(s) appeared on the appellee brief; Shanon M. Gregor, of Fargo, ND.
    Before RILEY, Chief Judge, WOLLMAN, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

This case addresses the meaning of a lease for a Gap store at Columbia Mall in Grand Forks, North Dakota. The Gap, Inc., says the lease does not require it to pay for heating, ventilation, and air conditioning (HVAC) expenses and a share of mall operation costs. The mail’s management company, GK Development, Inc., and owner, Columbia Grand Forks, LLC, (collectively “GK”) disagree. The district court agreed with Gap, declaring that it has no obligation to pay for HVAC or common area maintenance expenses. Having jurisdiction under 28 U.S.C. §1291, this court affirms, but modifies the declaratory judgment.

I.

On April 20, 2001, Gap agreed to a written lease with then-landlord Metropolitan Life Insurance Company ' (MetLife) for premises at Columbia Mall. Based on a lease for another mall, the final agreement has many insertions and strike-throughs. It begins by describing “Basic Provisions,” including Gap’s rent obligations and the duration of the lease (five years,'with options to extend for two more five-year terms). The lease later describes obligations for “Center Expenses” (costs associated with mall operation), “Utilities Provided By Landlord,” and “HVAC Maintenance.”

Gap opened its Columbia Mall store in July 2001. MetLife sold the mall a few years later. GK Development became property manager in 2004. Columbia Grand Forks became the owner in 2005. Gap extended the lease twice, in 2006 and 2011.

The mall provides HVAC service for all its stores by HVAC units on the mall’s roof. For the first ten years of the lease, Gap was not charged (and did not pay) for HVAC or Center Expenses. In June 2011, GK sent Gap a bill for HVAC and “common area maintenance” (“CAM”) expenses. GK said its previous failure to charge for these expenses was an “oversight.” Gap paid this bill and other bills for HVAC and CAM expenses for 2010, 2011, 2012, and part of 2013. In 2013, Gap objected, telling GK it would stop paying, and requesting return of the payments. GK continued to demand payment.

In January 2014, Gap sued GK for damages and a declaratory judgment that it has no obligation to pay for HVAC or CAM expenses. GK counterclaimed for damages and a declaratory judgment that the lease obligates Gap to “pay the Tenant’s, Share of Common Expenses which includes the Tenant’s Share of the common area maintenance and HVAC expenses.” On cross-motions for summary judgment, the district court granted summary judgment to Gap. Applying North Dakota law, it ruled that the lease is unambiguous and does not require Gap to pay HVAC or CAM expenses. It also said that even if the lease were ambiguous, extrinsic evidence shows that Gap owes no HVAC or CAM payments. It ruled that GK had breached the lease, that “Gap has no obligation to pay CAM expenses or HVAC expenses for the duration of the Lease,” and that GK owed Gap damages.

II.

GK argues that the district court erred in granting summary judgment to Gap because the lease unambiguously requires Gap to pay for HVAC and Center Expenses. This court reviews de novo the district court’s grant of summary judgment and its interpretation of the lease. Busch Props., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 815 F.3d 1123, 1126 (8th Cir. 2016).

Under North Dakota law, the rules of contract interpretation apply to leases. Savre v. Santoyo, 865 N.W.2d 419, 424 (N.D. 2015). The lease is interpreted “to give effect to the parties’ mutual intention” when it was executed. Id. citing N.D. Cent. Code § 9-07-03. The court first tries to figure out the parties’ intent by-looking only at the lease’s language. Id., citing § 9-07-04. The court considers the entire-lease. Id. If the court figures out the parties’ intent based only on the lease’s language, the interpretation of the lease is a question of law. Id.

However, if the lease’s language is ambiguous, the court may look to extrinsic evidence for the parties’ intent. Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807, 809 (8th Cir. 2003) (en banc), citing Des Lacs Valley Land Corp. v. Herzig, 621 N.W.2d 860, 863 (N.D. 2001). “A contract is ambiguous when rational arguments can be made for different positions about its meaning.... When a contract is ambiguous, the terms of the contract and the parties’ intent become questions of fact.” Id., quoting Kaler v. Kraemer, 603 N.W.2d 698, 702 (N.D. 1999).

A.

GK argues that Article 10(B) of the lease, requires Gap to pay for HVAC services provided by GK. Article 10(B) says:

Article 10(A) defines “utilities” to include HVAC, along with other common utilities.

According to GK, Article 10(B) means that if it establishes HVAC charges in the manner specified, it can charge Gap for HVAC directly. This would mean that if GK does not establish HVAC charges in the manner specified, HVAC costs are included as part of Center Expenses. GK, however, did not argue before the district court that Gap owed it for HVAC costs under Article 10. It did not mention Article 10 in its Answer and Counterclaim. In its “Statement of Undisputed Material Pacts” (in its memorandum supporting summary judgment) it said: “In addition to Tenant’s obligation to pay its share of the Center Expenses, common area expenses, and HVAC expenses pursuant to Articles 5(B), 12(B), and 11(C) of the Lease, Article 10 of the Lease requires Tenant to pay for any utilities, such as water and sewer, that Landlord provides for the Premises.” Later in that memorandum, GK argued that Article 10(B)' obligated Gap to pay for water and sewer services, making no argument that 10(B) required Gap to pay for HVAC. ' '

Ordinarily, this court “will not consider an argument raised for the first time on appeal.” United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016). However, this court has “the discretion to consider an issue for the first time on appeal where the proper resolution is beyond any doubt ... or when the argument involves a purely legal issue in which no additional evidence or argument would affect the outcome of the case.” Weitz Co. v. Lloyd's of London, 574 F.3d 885, 891 (8th Cir. 2009). This court has “addressed new arguments raised on appeal where the new issue is encompassed in a more general argument previously raised and no new evidence is presented on appeal.” Hirani, 824 F.3d at 751,

GK waived its Article 10(B) argument because it did not raise it below and the exceptions do not apply. First, Gap’s obligation for HVAC charges under Article 10(B) was not encompassed within a more general argument raised below. GK emphasized below that Article 11(C), specifically, required Gap to pay for HVAC expenses; GK’s new argument invokes a separate portion of the lease. Second, while lease interpretation is a question of law, the applicability of Article 10(B) is not “a purely legal issue in which no additional evidence or argument would affect the outcome of the case.” It is not clear that the lease unambiguously contemplates the application of Article 10(B) here. GK said in its Counterclaim that the lease includes HVAC expenses within Center Expenses. Article 1(1) states “Initial Estimated Monthly Center Expenses: $ N/A,” suggesting (as discussed below) that Gap had no Center Expenses liability and thus no HVAC liability. Additionally, the form lease’s Article 1(M) (“Other Initial Monthly Charges”) is crossed out, suggesting that the parties intended that Gap would not be charged for HVAC. And even if Article 10(B) did enable GK to charge Gap directly for HVAC, this court would have to determine whether GK established HVAC charges in the manner required by Article 10(B). GK waived the argument that Gap owes it for HVAC expenses under Article 10(B),

B.

GK argues that Article 5 of the lease requires Gap to pay Center Expenses. The lease defines “Center” as follows:'

‘Center’ shall mean the building or structure in which the Premises are lo-catéd and any other buildings or structures owned or ground leased by Landlord ... and operated in conjunction therewith ... together with the Common Areas, and all parcels or tracts of land owned or ground leased by Landlord ... on which all or any portion of the foregoing items are located and any fixtures, Systems and Equipment, furniture and other personal property owned or leased by Landlord located thereon or therein and used in conjunction therewith. ...

It defines “Center Expenses” at length. The definition begins:

‘Center Expenses’ shall mean all expenses, costs and amounts of every kind and nature which Landlord shall pay during any calendar year any portion of which occurs during the Term in connection with the management, repair, maintenance, replacement, insurance and operation of the Center, including, without limitation, any amounts paid for: (a) utilities,. including but not limited to ... heating, air conditioning and ventilating—

Article 5(B) of the lease states that “Tenant shall pay Landlord an amount equal to Tenant’s Proportionate Share of Center .Expenses_” (The “Tenant’s Proportionate Share” is calculated by dividing the square footage of the tenant’s premises by the total rentable square footage of the Center.) Article 5(B) then refers to Article 5(1):

Notwithstanding anything contained in this Lease to the contrary, Tenant shall pay-no more than the amount set forth in Article 1(L) as Initial Estimated Monthly Center Expenses for the first twelve (12) months of the Term and thereafter the amount Tenant is obligated to pay on the annualized basis for Center Expenses for any one Lease Year shall not exceed the lesser of the following: (i) the actual amount of Tenant’s Proportionate Share of Center Expenses computed in accordance with Article 28, or (ii) the amount of Center Expenses payable by Tenant for the immediately preceding Lease Year increased by five percent (5%).... The cap on increases in Center Expenses provided for herein shall not apply to the portion of Center Expenses for utility charges, Taxes and snow removal and, therefore, the maximum permitted increase in the amount which Tenant is obligated to pay on an annualized basis for Center 'Expenses, as hereinbefore provided, shall be based on the Center Expenses net of the portion thereof for utility charges, Taxes and snow removal.

The parties agree that the reference to “Article 1(L)” should say “Article 1(1),” which states “Initial Estimated Monthly Center Expenses: $ N/A.”

1.

GK urges that Article 5 unambiguously requires Gap to pay ho Center Expenses for the first 12 months of the lease, but then obligates Gap to pay the “Tenant’s Proportionate Share of Center Expenses” for the remainder of the lease. The district court concluded that Article 5 unambiguously requires Gap to pay no Center Expenses for the duration of the lease. According to the district court, the lease requires Gap to pay no Center Expenses for the first 12 months of the lease, then caps increases in Center Expenses at five percent of the preceding Lease Year’s Center Expenses payable by Gap. The amount payable by Gap for the first 12 months was nothing. And since five percent more of nothing is nothing, the district court reasoned that Gap owes nothing.

Contrary to the district court’s conclusion, the lease’s language is ambiguous as to whether Gap is required to pay the Tenant’s Proportionate Share of Center Expenses.

The key ambiguity is Article l(I)’s statement that Gap’s “Initial Estimated Monthly Center Expenses” are “$ N/A.” “N/A” means “not applicable.” N, n., Oxford English Dictionary (online version September 2016), available at http://www.oed.com/ view/Entry/124731 (last visited December 5, 2016). A rational person could interpret “Initial Estimated Monthly Center Expenses: $ N/A” to mean that Gap does not owe Center Expenses for the first 12 months of the lease. But a rational person could interpret Article 1(1) — located at the beginning of the lease, and a “Basic Provision” of the lease — as saying that Center Expenses are not relevant to Gap’s obligations at all. Had Article 1(1) said “$0,” it would clearly indicate an introductory reprieve from Center Expenses liability. But saying “N/A” potentially indicates a permanent exemption.

A permanent-exemption reading is rational when “N/A” is read in context. True, this reading does not give effect to Article 5(1), and the lease should be interpreted “to give effect to every part if reasonably practicable.” N.D. Cent. Code § 9-07-06. However, it is not always “reasonably practicable” to give effect to every part of a contract. Indeed, Article l(I)’s “N/A” necessarily renders Article 5(1) ungrammatical and illogical. Article 5(1) refers to “the amount set forth in Article 1( [I]).” But the parties did not set forth an “amount” in Article 1(1) — they wrote “N/ A.” If one inserts “N/A” into Article 5(1), it reads: “Tenant shall pay no more than ‘N/A’ for the first twelve (12) months of the Term.” Since “no more than ‘not applicable’” has no grammatical or logical meaning, it is not “reasonably practicable” to give effect to all parts of Article 5(1).

A rational argument can be made that Article 5(1) is inoperative in this agreement. In- certain contexts, parts of a contract are inoperative when inconsistent with “introductory language” and the contract’s “general intent.” See Langer v. Pender, 764 N.W.2d 159, 167 (N.D. 2009). See also § 9-07-15 (“Particular clauses of a contract are subordinate to its general intent.”). A rational person could argue that this is such a context: Article 1(1) is part of the “Basic Provisions” at the beginning of the lease, and can plausibly reflect the parties’ intent that Gap not be liable for Center Expenses for the duration of the lease. Since two rational arguments can be made about the meaning of Article l(I)’s “N/A,” the lease is ambiguous whether Gap owes for Center Expenses at-all.

2.

Because the lease contains an ambiguity, the parties’ intent becomes a question of fact. Kaler, 603 N.W.2d at 702. That question is answered with reference to extrinsic evidence. Id. See also N.D. Cent. Code § 9-07-12 (“A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.”). “[T]he parties’ conduct in the course of performance after the contract’s formation can help determine the meaning of ambiguous language.” Nat’l Bank of Harvey v. Int’l Harvester Co., 421 N.W.2d 799, 803 (N.D. 1988). Gap is entitled to summary judgment if a rational factfinder interpreting the facts most favorably to GK could not find for GK. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc); Mandan Educ. Ass’n v. Mandan Pub. Sch. Dist. No. 1, 610 N.W.2d 64, 66-67 (N.D. 2000).

Gap offers two pieces of evidence that the parties intended that Gap would not be required to pay for Center Expenses. First, Gap emphasizes the course of performance of the lease — for the first ten years of the léase, neither GK nor its predecessors ever chargéd Gap for Center Expenses (or CAM or HVAC). This suggests that the parties intended Article l(I)’s “N/A” to exempt Gap from Center Expenses liability: A commercial’landlord has incentives to collect money its tenants owe. Thus, GK and. its predecessors’ decision not to collect Center Expenses from Gap suggests they understood the language of the lease to impose upon Gap no obligation to pay for Center Expenses.

Second, Gap highlights an April 2005 “Estoppel Certificate” that GK sent to Gap. It states that Gap’s “Monthly CAM Expenses” were “N/A/ mo.” It also says that no amendments or modifications had been made to the lease. It states Gap’s obligations to pay rent, taxes, and a percentage of its gross sales over a break-point. But it states no obligation to pay any Center Expenses or HVAC costs. The tenant estoppel certificate suggests that GK understood the lease not to require Gap to pay for Center Expenses. Together, the course of performance and estoppel certificate strongly support that “Initial Estimated Monthly Center Expenses: $ N/ A” means that Gap has no obligation to pay Center Expenses for the duration of the lease.

Gap also' offers evidence from lease negotiations (showing CAM and HVAC were included in Gap’s rent) and a “Lease Analysis Worksheet” prepared by MetLife. GK argues that rational factfinders would have reasons not to credit the evidence from lease negotiations and that the worksheet is inadmissible. Accepting GK’s points for the sake of argument, this court does not consider this evidence as part of its summary judgment analysis.

GK offers no extrinsic evidence or any reason that a rational factfinder would draw inferences in its favor from the course of performance or from the 2005 “Estoppel Certificate.” Reading the ambiguous lease language in conjunction with the extrinsic evidence, a rational factfinder can reach only one conclusion in this case: The parties intended that Gap not be obligated to pay for Center Expenses for thé duration oí the lease. The district court’s grant of summary judgment to Gap is affirmed.

C.

GK argues that under Article 11(C) of the lease, Gap must pay for maintenance and repair costs for HVAC units serving its space. Article 11(C) states:

If the Premises are served by one or more HVAC units or other such systems or equipment that also serve one or more other tenants, Tenant shall at Landlord’s option made by Landlord from time to time in writing either: (a) make arrangements directly with such other tenant or tenants to reasonably share responsibility and expenses for inspection,' maintenance, repairs, operation and replacements of such items, or (b) reimburse Landlord for Tenant’s reasonable share of all costs incurred by Landlord in making such arrangements or performing such work (such share to be based on the ratio of the square footage of the Premises to the square footage of the areas leased to such other tenant or tenants, or at Landlord’s option such other factors as Landlord shall deem reasonable),

GK is correct that, under Article 11(C), it can charge Gap for costs related.to HVAC maintenance and repair. The district court’s declaration that “Gap has no obligation to pay CAM expenses or HVAC expenses for the duration of the Lease” is too broad. On remand, the district court should modify its decision to state that “Gap has no obligation to pay CAM expenses or HVAC expenses, except those established under Article 11(C) of the Lease, for the duration of the Lease.” Because GK points to no evidence that its past HVAC charges were established under Article 11(C), this modification does not affect the district court’s determination that GK breached the lease or its damages award.

The judgment of the district court is affirmed, modified in part, and remanded for proceedings consistent with this opinion.

      . The Honorable Ralph R. Erickson, District Judge, United States District Court for the District of North Dakota.

      . GK also argues that the district court erred in interpreting Article 5(l)'s limitation on increases. But a court only reaches that question if it resolves the ambiguity noted above by determining that Gap is obligated to pay for Center Expenses.


author: KELLY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Luis OLIVARES, Defendant-Appellant
    No. 15-2239
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 19, 2016 ‘
    Filed: December 9, 2016

      Counsel who presented argument on behalf of the appellant was John Stephen Rusch, of Rapid City, SD.
    Counsel who presented argument on behalf of the appellee was Kathryn Nicole Rich, AUSA, of Rapid City, SD.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Luis Olivares was convicted after trial of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count 1); possession of a firearm during a drug trafficking crime- in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1). and 924(a)(2) (Count 3); being a fugitive in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2) (Count 4); possession with .intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count 5); and distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851 (Count 9). Olivares appeals the district court’s denial of pretrial discovery motions, decisions concerning his competency, and the application of a sentencing enhancement pursuant to 21 U.S.C. § 851. We have jurisdiction pursuant to 28 U.S.C. § 1291 and,-finding no error, we affirm.

I. Background

In. July 2010, law enforcement in Rapid City, South Dakota, received a tip that Luis Olivares was selling methamphetamine, cocaine, and marijuana in the area. They began an investigation, and initiated surveillance on Olivares’ trailer. Law enforcement received information from a confidential informant on November 22, 2010, that Olivares was transporting a large quantity of methamphetamine from Denver, Colorado, to Rapid City. Officers attempted to stop Olivares’ car on his way back to South Dakota, but Olivares refused to pull over, leading police on a high-speed chase, reaching up to 95 miles per hour in blizzard conditions. Olivares eventually crashed into a field near Rapid City. During the chase, someone tossed at least one package of methamphetamine out of the car window. By the time officers arrived at the scene, Olivares had fled on foot, but two others, including the confidential informant, were still in the car. Eventually, officers found Olivares hiding in a nearby field. Officers also searched the crashed car, finding one package of assorted glass pipes and plastic baggies, two packages of methamphetamine hidden in a speaker box, four cell phones, and three laptop computers. Another package of methamphetamine was found under a rock in the field where the crash occurred.

In January 2011, the government filed a superseding indictment charging Olivares and 15 co-defendants with multiple firearm and drug-related offenses. In January 2012, upon motion of both parties, the district court ordered that Olivares undergo a psychiatric or psychological examination to be conducted pursuant to 18 U.S.C. §§ 4241(b) and 4247(b) for purposes of determining his competency to stand trial.

In April 2012, the district court received a report regarding Olivares from the Federal Detention Center in Engle-wood, Colorado. The court subsequently held a competency hearing where the parties stipulated to Olivares’ mental incompetence and his need for further treatment. The district court accepted the stipulation and committed Olivares to a different' facility to undergo a period of hospitalization and treatment not to exceed four months to determine whether there was a substantial probability his competency to stand trial could be restored pursuant to 18 U.S.C, § 4241(d).

In October 2012, the Federal Medical Center at Butner, North Carolina, issued a certificate of restoration of competency to stand trial for Olivares, with a corresponding report. On November 21, 2012, the parties stipulated to issues regarding the report, and both sides again agreed Oli-vares needed to be further evaluated. The district court accepted the stipulation and ordered Olivares to be committed and treated at a third facility. In July 2013, the medical staff at the Federal Medical Center at Devens, Massachusetts, issued a report which concluded that Olivares was not suffering from a major mental illness that would preclude him from understanding the nature and consequences of the proceedings against him or from assisting properly with his defense.

On September 20, 2013, Olivares’ counsel moved that a local psychiatrist be allowed to evaluate Olivares’ competency. The district court granted the motion, and Olivares was examined by Dr. Stephen P. Manlove. Dr. Manlove prepared a report and provided it to the court on February 7, 2014. He concluded that Olivares was not suffering from a mental impairment, had a rational ability to consult with counsel, and had a factual and rational understanding of the proceedings. The district court held further competency hearings on February 27, and March 18, 2014. On May 30, 2014, it issued a comprehensive order concluding OlivareB was competent to stand trial.

Throughout the course of his commitment and afterwards, Olivares filed numerous civil lawsuits in which he made a variety of allegations against the prosecutor in his case and numerous law enforcement officers, Olivares also tried to file hundreds of pro se handwritten motions, most of which were returned to his counsel as non-compliant and non-conforming motions that primarily dealt with issues unrelated to his case. Olivares’ civil complaints were all dismissed and he was eventually barred from filing further civil lawsuits in federal court without prior permission, .

On November 4, 2014, the government filed an information pursuant to 21 U.S.C. § 851 providing notice of its intent to seek an enhanced penalty of life imprisonment upon conviction based on Olivares’ two “prior convictions for a felony drug offense.” Olivares filed a formal objection to the notice, asserting substantive challenges to the use of the prior convictions under the statute. On May 27, 2015, the district court conducted a hearing on the matter and overruled Olivares’ ■ ‘objections, concluding that Olivares’ challenges were barred by the five-year statute of limitations and the convictions were thus valid for purposes of the enhancement.

Trial began on December 1, 2014. On the third day of the ten-day jury trial and outside the jury’s presence, Olivares informed the district court that he wanted to proceed pro se. The court warned Olivares of the dangers of self-representation and advised him to allow counsel to continue to represent him. Olivares persisted in his decision to represent himself, but asked if he could have his attorney back should he want that. The court appointed Olivares’ counsel as standhy counsel, who would be available to take over .witness examination or legal argument at any time. The court told the jury of Olivares’ decision and advised them that it “must not affect [their] consideration and decision whether or not he’s guilty or not guilty of the offenses charged,”

Trial continued, with Olivares conducting a portion of one cross-examination, a full cross-examination of the case agent, and a full direct examination. Defense counsel conducted the remainder of the witness examinations and gave the closing argument. The jury found Olivares guilty on all counts. On May 27, 2015, Olivares was sentenced to life imprisonment on Counts 1 and 5 to run concurrently to Counts 3, 4, and 9, for which he received ten years’ imprisonment, each to run consecutively. On Count 2, Olivares was sentenced to five years’ imprisonment consecutive to all other counts.

Olivares timely appeals.

II. Discussion

Olivares raises three issues on appeal. First, he challenges several discovery orders entered by the district court as well as the government’s failure to preserve certain electronic discovery. Second, Oli-vares argues the district court should have sua sponte reevaluated his competency to proceed to trial and to represent himself. Third, Olivares asserts the district court improperly applied the sentencing enhancement pursuant to 21 U.S.C. § 851. The court addresses these arguments in turn.

A. Discovery

Olivares argues that the district court erred in denying him access to discovery and. the government improperly selectively preserved evidence by saving only inculpatory material.

First, Olivares challenges the protective order entered by the district court. On January 13, 2011, and again on October 7, 2011, due to a change of counsel, the district court ordered, pursuant to stipulations signed by the government and Oli-vares’ defense attorneys, that “Defense counsel shall keep the [discovery] items furnished in his/her possession, and the materials shall not be given to the Defendant or anyone else without the Court’s permission.” This protective order, which is “standard” in criminal eases in the district, permitted Olivares to read the, discovery materials “but only in the presence of defense, counsel, the defense investigator or a defense expert.”

Orders governing discovery are “committed to the sound discretion of the district court and an error in administering the discovery rules is reversible only on a showing that the error was prejudicial to the substantial rights of the defendant.” United States v. Pelton, 578 F.2d 701, 707 (8th Cir. 1978). “Normally a party is bound by his stipulations as a stipulation ... is akin to a contract.” United States v. Morales, 684 F.3d 749, 755 (8th Cir. 2012) (alteration in original) (quoting Rathborne Land Co. v. Ascent Energy, Inc., 610 F.3d 249, 262 (5th Cir. 2010)). Olivares, through counsel, twice signed the stipulation which permitted him to review the discovery only in the presence of counsel or his agent. There is no showing that the stipulated agreement was compelled or involuntarily made, thus the district court did not abuse its discretion in issuing the protective order agreed to by the parties. See id. (upholding the stipulated discovery agreement where it “was freely entered and not compelled”)-

Second, Olivares contends that the court’s refusal to permit him direct access to the 1,221 discovery files substantially prejudiced his ability to represent himself at trial, particularly given his limited access to a computer to assist his review of the materials.

At several points prior to and during trial, Olivares petitioned the district court for increased access to discovery materials to aid in preparation of his case for trial. On February 20, 2014, Olivares, through counsel, moved for access to the police reports provided to his counsel as part of the discovery in the case. The district court orally denied the motion, but its reasoning is not available in the record. Again at the pretrial conference, Olivares’ counsel discussed his concern that because Olivares was being held in solitary confinement, his access to his client was limited to a maximum of one hour and .15 minutes per day of visitation and no phone calls. Concerned about counsel’s effective assistance in the week before trial, the district court confirmed with the U.S. Marshals that counsel would be able to freely meet with his client outside of the limited schedule, During trial, Olivares raised his concern about insufficient access to discovery materials, specifically to conduct Internet research. The district court granted Oli-vares permission to access the Internet through his counsel an hour prior to the start of trial the following day.

When Olivares elected to proceed at least in part pro se, he had “a right of access to adequate law libraries or adequate assistance from persons trained in the law.” United States v. Kind, 194 F.3d 900, 905 (8th Cir. 1999) (quoting United States v. Knox, 950 F.2d 516, 519 (8th Cir. 1991)). To prove that he was deprived of this right, Olivares “must ‘demonstrate that the alleged shortcomings ... hindered his efforts to pursue a legal claim.’ ” Id. (alteration in original) (quoting Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). Olivares represented himself intermittently at trial—conducting a partial cross and direct examination of one witness, his ex-girlfriend Precious Bartlett, and the full cross examination of the case agent, Derek Hill—always with the substantial assistance of standby counsel. The district court several times at trial permitted Oli-vares additional time to confer with counsel and to organize evidence and exhibits, and allowed standby counsel to take over the questioning of Ms. Bartlett. The court further demanded that the jail provide counsel with unlimited access to his client in the week leading up to trial and made arrangements for Olivares to review Internet materials with standby counsel in the courtroom. It is clear the district court carefully protected Olivares’ right to access adequate resources to prepare his own defense.

Finally, Olivares argues the government selectively preserved electronic discovery and failed to save exculpatory material, causing him unfair prejudice at trial. In discovery, the government produced several incriminating jail phone calls Olivares made to co-defendants. Olivares subsequently requested copies of all jail phone calls and visits involving Olivares and his co-defendants, and the government responded that it had not recorded or preserved such evidence. Olivares also requested all of the text messages exchanged between Agent Hill and his confidential informant from the night of Olivares’ arrest. The government was unable to produce the text messages because it failed to download or save them. The government relied on Olivares’ incriminating jail phone calls and Agent Hill’s testimony regarding the content of the text messages at trial.

Olivares raised the government’s failure to produce the jail phone calls and visits and the agent’s text messages with the magistrate judge and with the district court. The district court denied Olivares’ motion to compel, holding that “[t]he government does not have a duty to disclose items it does not possess.” (quoting United States v. Sarras, 575 F.3d 1191, 1215 (11th Cir. 2009)).

Given that the government’s storage and retention systems by design do not preserve the requested items, Olivares here does not argue the district court erred in refusing to compel disclosure. Rather, he argues for the first time on appeal that his due process rights were violated due 'to law enforcement’s bad faith failure to preserve potentially exculpatory evidence. See Arizona v, Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (“failüre to preserve potentially useful evidence does not constitute a denial of due process of law” unless the defendant can show law enforcement acted in bad faith). Even assuming that the deleted jail phone calls, jail visit videos, and agent text messages had apparent exculpatory value, see United States v. Webster, 625 F.3d 439, 446 (8th Cir. 2010), there is no evidence that the government acted in bad faith when it failed to preserve the evidence, see id. (no evidence of bad faith where “the normal procedure in destroying evidence was followed”); United States v. Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (bad faith was not shown where the arresting officer “did not attempt to download video of the traffic stop” as there was no evidence -regarding the officer’s obligation to preserve the video). We recognize Olivares’ concern: The non-inculpatory jail phone calls and the agent’s text messages may (or may not) have been relevant to his defense. With the simplicity and efficiency of .modern electronic storage capacity, one could imagine a policy where inculpatory materials and potentially relevant materials created or made available in proximity to.the inculpatory materials are easily saved for review. But Olivares’ failure to raise this issue before the district court and to present any evidence of , bad faith is dispositive to his Youngblood argument.

B. Competency

Olivares asserts on. appeal that once his. trial started, the district court should have sua sponte reevaluated his competency to proceed. See 18 U.S.C. § 4241(a). (“At any time after the commencement of a prosecution for an offense and prior to the sentencing,” the court shall grant a motion from either party “for a hearing to determine the mental competency of the defendant”, or “shall order such a hearing on its own motion, if there is reasonable cause .to believe that the defendant may” be incompetent). Trial began on December 1, 2014. In an order dated May 30, 2014, the district court found Olivares was competent to proceed to trial — a finding Olivares does not challenge on appeal. At the competency hearing, the. district court heard testimony from two psychologists and one psychiatrist, none of whom concluded that Oli-vares was mentally incompetent. Olivares asserts, however, that the doctors’ opinions, and thus the district court’s findings, were based on the premise that Olivares was feigning mental illness and that, once he was found competent to stand trial, he would in fact behave in a competent manner. But Olivares’ behavior did not change following his competency determination or once trial began. Thus, Olivares contends, the very premise upon which the finding of competency was based was faulty, and the district court should have revisited the matter of competency to proceed.

Olivares misreads the district court’s competency order, focusing on only a portion of its analysis. The district court did note that one doctor expressed the view that Olivares showed some signs of malingering and exaggeration, and that Olivares could effectively participate in his defense “if he chooses to do so.” But neither doctor “observed Olivares showing any symptoms consistent with mental illness.” Both doctors concluded that Olivares “understood the nature and consequences of the proceedings against him,” and that he had the ability to rationally assist in his own defense. See 18 U.S.C. § 4241(d) (court must determine whether defendant is “presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense'’). Nowhere does the district court conclude that its competency finding is based on the expectation that Olivares’ behavior would change. Indeed, the district court acknowledged the doctors’ observations of Oli-vares’ paranoid beliefs, his alleged delusions, and his persistent inclination to make false accusations against others involved in his case. But the court concluded that despite these behaviors, Olivares was able to understand the nature and consequences of the proceedings against him, and to assist in his own defense. The district court also questioned Olivares at the competency hearing and found he understood the court’s questions and had a “rational understanding of the proceedings and a general understanding of the legal process.”

Moreover, one doctor’s opinion that Oli-vares’ behavior may change does not demonstrate that Olivares’ competency had changed between the May 2014 competency finding and the December 2014 trial. See James v. Iowa, 100 F.3d 586, 589-90 (8th Cir. 1996) (“James’s assertion, based on the psychiatrists’ reports, that his mental state was subject to change does not demonstrate that his mental state had in fact changed between his first examination and his trial.”). Although we recognize that a “defendant’s competency is not static and may change over even a short period of time,” United States v. Ghane, 593 F.3d 775, 779 (8th Cir. 2010), there was no evidence that Olivares’ competency had changed during the eight-month period. In fact, Olivares insists that his behavior did not change between the time of the competency hearing and the time of trial, which suggests there was no change in his competency during that period. See Drope v. Missouri, 420 U.S. 162, 181, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (“Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”). With no discernible difference in Olivares’ presentation, the district court had no reason , to revisit the issue of competency, and did not abuse its discretion in not doing so.

Olivares also argues that the district court erred in allowing him to represent himself during portions of the trial, thus violating his Sixth Amendment right to counsel. The Sixth Amendment not only-guarantees a criminal defendant the right to assistance of counsel but also the right to represent himself or herself. United States v. Benson, 686 F.3d 498, 503 (8th Cir. 2012). Before allowing a defendant to proceed pro se, a district court must ensure that the defendant’s waiver of counsel is knowing and voluntary. United States v. Turner, 644 F.3d 713, 720-21 (8th Cir. 2011). Olivares argues the waiver of counsel colloquy conducted by the district court “was not sufficient given [his] past history of mental health issue[s].” Olivares does not identify anything lacking in the colloquy that would render his decision not knowing or voluntary. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942))). Instead, he reiterates his argument that his behavior at trial showed he was not feigning mental illness and, thus, he was not competent to represent himself.

“Before allowing a defendant to waive his right to counsel, a court must be satisfied that the defendant is competent to do so.” United States v. Washington, 596 F.3d 926, 940 (8th Cir. 2010) (quoting United States v. Crawford, 487 F.3d 1101, 1105 (8th Cir. 2007)). The Supreme Court has made clear that “the standard for mental competence to represent one’s self is higher than the standard of mental fitness to stand trial.” Id. at 941 (describing Indiana v. Edwards, 554 U.S. 164, 171-78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008)). Olivares argues that the illogical and irrational statements, filings, and questions he made prior to and during his pro se representation should have alerted the district court that he was not competent to represent himself and another competency hearing was.required. “Generally, a court need not sua sponte order an evaluation to determine a defendant’s competence to waive counsel;” a hearing is “necessary only when a court has reason to doubt the defendant’s competence.” Id. at 940 (quoting Crawford, 487 F.3d at 1105). “A district court’s decision not to order a competency evaluation or hold a competency hearing is reviewed for abuse of discretion.” United States v. Turner, 644 F.3d 713, 723 (8th Cir. 2011).

In this case, we find no abuse of discretion in the district court not ordering another competency evaluation or holding another competency hearing when Olivares sought to represent himself at trial. The district court observed Olivares- over the course of four years;-conducted a thorough evidentiary hearing where six witnesses— three of whom were medical professionals — testified, and had the benefit of multiple written reports regarding Olivares’ mental health. The court also communicated directly with Olivares during the course of the trial, and observed firsthand his cónduct in the courtroom. At the pretrial conference and at sentencing, the court reiterated its conclusion that Olivares was “presently competent,”' describing him as a “highly intelligent individual” who was “very skilled at manipulating” psychiatrists, the court, and jurors. Under these circumstances, we -conclude that the district court did *not violate-Olivares’ Sixth Amendment right to counsel by permitting him to proceed pro se at trial.

C. Sentencing Enhancement

On November 4, 2014, the government filed an information pursuant to 21 U.S.C. § 851 providing notice of its intent to seek an enhanced penalty of life imprisonment upon conviction based on Olivares’ two “prior convictions for a felony drug offense.” See 21 U.S.C. §§ 841(b)(1)(A), 851(a)(1). The statute imposes a five-year statute of limitations for challenging any prior conviction that the government relies on for purposes of this enhancement. 21 U.S.C. § 851(e). The district court found that Olivares’ two prior convictions became final in January 2006 and April 2006 respectively. Neither party contests this finding. Thus, under the statute, Olivares had until January and April 2011 to challenge the validity of those prior convictions. Olivares asserts that he was improperly denied the opportunity to do so.

Olivares was charged by criminal complaint on December 7, 2010. On December 21, 2010, he was indicted, and on January 19, 2011, the grand jury returned a superseding indictment. The government did not file the notice of intent to seek an enhanced penalty until . November 4, 2014 — almost four years after Olivares was originally indicted, and three and a half years after the § 851 statute of limitations had run. Had the notice been filed at the time of the indictment or the superseding indictment, Olivares points out, he would not have been time-barred from challenging the convictions. Olivares argues that the only reasonable explanation for the delay is that the government held off filing the notice until such time that he was no longer, permitted, under the statute,, to challenge the prior convictions. He also asserts that the ■ statute of limitations should have, been tolled during any period in which he was incompetent to proceed.

The district court concluded that under the plain language of the statute, the information was timely filed. See 21 U.S.C. § 851(a)(1) (to increase punishment by reason of one or more prior convictions, the United States attorney must file an information with the court “before trial”). As Olivares points out, the delay in filing the § 851 notice in his case was significant. However, pursuant to the plain language of the statute, the notice was timely filed. The information was filed November 4, 2014, and trial began on December 1, 2014. Without any evidence to support the allegation, we are unwilling to attribute bad faith to the government in its decision regarding when to file the notice.

For the first time on appeal, Olivares also asserts that he relied to his detriment on a representation from an Assistant U.S. Attorney assigned to the case that no § 851 notice would be filed. But there is nothing in the record to support this assertion. Even if such a representation had been made, Olivares makes no claim that the representation was made before either January or April 2011, the deadlines for challenging the validity of the prior convictions.

As to Olivares’ concern that he had been incompetent during a portion of the five-year window for challenging the prior convictions, there is insufficient ’ evidence to support such a finding. Olivares did not file a motion for a competency evaluation until January 4, 2012 — eight months after the last deadline expired, and approximately one year after he was indicted. . After extensive testing, multiple evaluations, and an evidentiary hearing, the district court determined he was competent to stand trial. To the extent Oli-vares argues that he was incompetent pri- or to January 4, 2012, he presented no evidence to support such a finding. We need not decide, therefore, whether the statute of limitations in § 851 could be tolled during a period of incompetency.

III. Conclusion

The judgment of the district court is affirmed.

      . The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for the District of South Dakota.

      . Notably, at the time Olivares asked to personally review the police reports, he was not appearing pro se. Once Olivares invoked his right to represent himself, neither Olivares nor his counsel moved to vacate the stipulated protective order. Thus, the district court had no opportunity to "consider the prejudice that imposition of the protective order had upon [Olivares] during trial as a pro se defendant.” Appellant's Br. at 24.

      . Three doctors testified in person or by video, but the district court's order relies largely on the opinions expressed by only two of the doctors.

      . According to Olivares’ brief, the purported conversation with the Assistant U.S. Attorney appears to have occurred on or after September 26, 2011, when, the court granted Oli-vares' motion for new counsel and current counsel was appointed.

      . For the first time on appeal, Olivares also argues that § 851 is impermissibly subject to discriminatory enforcement by the government, and thus is "void for vagueness.” We decline to address this argument for the first time on appeal due to a lack of a record on the issue and briefing which is insufficiently developed, See United States v. Darden, 70 F.3d 1507, 1517 n.3 (8th Cir. 1995) (declining to address issues which "were' mentioned in passing in the appellants’ briefs”). We note, however, that we have previously concluded this statute of limitations does not violate due process or equal protection. See United States v. Prior, 107 F.3d 654, 661 (8th Cir. 1997) (five-year statute of limitations not a violation of due process or equal protection because "[f]ive years is a reasonable amount of time to require court documents to be preserved without the requirement becoming overly burdensome”).