author: BENTON, Circuit Judge.

text:
    Chase BARFIELD, Plaintiff Michael D. Biffle; Gina Biffle; Dwight K. Robertson, Plaintiffs-Appellees J. Carol Hutchens; Rowena Hutchens, Plaintiffs v. SHO-ME POWER ELECTRIC COOPERATIVE; Sho-Me Technologies, LLC, Defendants-Appellants KAMO Electric Cooperative, Inc.; K-PowerNet, LLC, Defendants National Rural Electric Cooperative Association; Associated Electric Cooperative; Association of Missouri Electric Cooperatives, Amici on Behalf of Appellants
    No. 15-2964
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: March 29, 2017

      Michael James Amberg, Cecilia Fex, Kathleen Clubb Kauffman, Ackerson & Kauffman, Washington, DC, Brad A. Cat-lin, Henry J. Price, Ronald J. Waicukauski, Price & Waicukauski, Indianapolis, IN, Matthew A. Clement, Heidi Doerhoff Vol-let, Cook & Vetter, Jefferson City, MO, Fred O’Neill, Thayer, MO, for Plaintiffs-Appellees.
    David Lynn Coffman, Stephen A. D’Au-noy, Christopher Martin Hohn, Mark A. Mattingly, Robert J. Wagner, W. Stanley Walch, Thompson & Coburn, Saint Louis, MO, Terry M. Evans, Andereck & Evans, Smithville, MO, Dana Lynette Kollar, An-dereck & Evans, Jefferson City, MO, for Defendants-Appellants.
    Jessica Healy, Tyrus H. Thompson, NRECA, Arlington, VA, Richard Theodore Ashe, Carnahan & Evans, Branson, MO, Christiaan D. Horton, John Edmund Price, Carnahan & Evans, Springfield, MO, for Amici on Behalf of Appellant(s).
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

This case is about the scope of easements under Missouri law and the remedies if easement holders exceed their rights. Sho-Me Power Cooperative held easements to construct and operate an electric transmission line over thousands of parcels. In 1997, it decided to install fiber-optic cables alongside its electrical lines. Sho-Me used the cables for internal communications. Sho-Me assigned the cables’ excess, capacity to a separate company, Sho-Me Technologies, LLC (Tech), to operate a public-serving commercial telecommunications business. A putative class of owners of land subject to Sho-Me’s easements sued Sho-Me and Tech for trespass and unjust enrichment. The district court certified a class of landowners, granted the landowners summary judgment on liability, and held a jury trial on damages. The district court instructed the jury to award the landowners “the fair market rental value” of Sho-Me and Tech’s use of the fiber-optic cable on the landowner’s land “for commercial-telecommunications purposes.” The jury awarded the landowners over $79 million.

Sho-Me and Tech appeal the liability determinations, damages instructions, evi-dentiary rulings, and class certification. Having jurisdiction under 28 U.S.C. § 1291, this court affirms the summary judgment on trespass liability and the class certification, reverses the summary judgment on unjust-enrichment liability, vacates the damages award, and remands.

I.

Sho-Me is a rural electric cooperative (REC) governed by Missouri’s Rural Electric Cooperative Law, Chapter 394 RSMo. Before 1992, Sho-Me got easements across thousands of parcels in southern Missouri. These easements’ language varies. They all grant Sho-Me the right to construct and operate an electric transmission line. Some grant the right to construct appurtenances or do things “necessary and useful to the enjoyment of the easement.” The district court broke the easements into several categories, three at issue in this appeal: Category 1A (“Easements for electric transmission line only or for electric transmission line with unspecified appurtenances”), Category IB (“Easements for electric transmission lines and appurtenances which include specific references to communications equipment”), and Category 1C (“Court orders condemning easements limited to electric transmission lines and generic appurtenances or specifying related communications equipment”). Sho-Me and Tech do not dispute the district court’s categorizations.

As part of its electrical transmission operations, Sho-Me communicates with unattended power substations. It used to do this by microwave radio frequencies. But in 1995, the Federal Communications Commission announced that these frequencies would no longer be available for utilities. In response, Sho-Me developed a plan. It installed fiber-optic cables alongside its electrical lines, using the cables for internal communications. It also formed Tech as a subsidiary company. Sho-Me assigned Tech the cables’ excess capacity so Tech could offer commercial telecommunications services to the public. Tech currently provides broadband services to individuals and businesses across southern Missouri.

In 2010 (in state court) and then in 2011 (in federal court), Michael and Gina Biffle, Dwight Robertson, and Chase Barfield— owners of land subject to Sho-Me easements — filed putative class actions against Sho-Me and Tech. They alleged Tech’s use of the fiber-optic cable for public-serving telecommunications purposes was not authorized by the easements, making Sho-Me and Tech liable for trespass and unjust enrichment. The district court certified a Rule 23(b)(3) class of “All persons who own or owned land in Missouri underlying Defendants’ electric-transmission lines that is burdened by an easement with either Defendant or their subsidiaries, which easement does not contain an arbitration clause, and on or in which a Defendant has licensed the fiber optic cable for commercial-telecommunication uses or has used the fiber optic cable for commercial-telecommunication uses.” The district court entered summary judgment against Sho-Me and Tech, holding them liable for trespass and unjust enrichment on the Category 1A-C easements. The landowners proceeded to a jury trial for damages on the unjust-enrichment claim alone. The jury awarded the landowners $79,014,140 for the “fair market rental value” of Sho-Me and Tech’s unauthorized use of the easements.

II.

Sho-Me and Tech contend that the district court erred iii granting summary judgment on liability because it misconstrued Missouri easement law. This court reviews de novo the district court’s summary judgment decision. Walker v. Hartford Life & Accident Ins. Co., 831 F.3d 968, 973 (8th Cir. 2016). It also reviews de novo the district court’s interpretation of Missouri law. Id. When interpreting Missouri law, this court is “bound by the decisions of the Supreme Court of Missouri. If the Supreme Court of Missouri has not addressed an issue, we must predict how the court would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri law.” Washington v. Countrywide Home Loans, Inc., 747 F.3d 955, 957-58 (8th Cir. 2014). Since the parties do not point to any genuine dispute of material fact, the question is whether Sho-Me and Tech’s use of the fiber-optic cable for commercial telecommunications makes it liable under Missouri law for trespass and unjust enrichment.

A.

The landowners argue — and the district court found — that Sho-Me and Tech are liable for trespass under Missouri law for exceeding the scope of Sho-Me’s easements. This argument raises two questions. First, did Sho-Me and Tech’s use exceed the scope of the easements? And second, if their use did exceed the scope of the easements, was it a trespass?

1.

An easement is “a right to use the land for particular purposes.” St. Charles Cty. v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011); Farmers Drainage Dist. of Ray Cty. v. Sinclair Ref. Co., 255 S.W.2d 745, 748 (Mo. 1953) (“An ‘easement’ is not the complete ownership of land with the right to use it for all lawful purposes perpetually and throughout its entire extent, but it is a right only to one or more particular uses.... ”). Some easements in Categories 1A-C explicitly refer to a purpose with language like “for the purpose of transmitting electric or other power,” “for electrification purposes,” “for electrical power utility and related communication purposes,” “for the purpose of transmitting and supplying electric energy.” Other easements do not explicitly state a “purpose,” but do specifically grant the right to construct an electric transmission line.

The parties agree that the easements give Sho-Me the right to install and use fiber-optic cables for internal communications related to supplying electricity. They disagree whether the easements give Sho-Me and Tech the right to use fiber-optic cables installed on the easement land for commercial telecommunications purposes unrelated to supplying electricity.

A Missouri statute, § 523.283 RSMo, governs the use of easements acquired after August 28, 2006, by a utility or REC. It requires “appropriate consideration and damages to the current owner of the property” for “Expanded use of the property beyond that which is described in the instrument of conveyance or the condemnation petition.” § 523.283.1. It defines “expanded use” to include “An increased footprint or burden,” meaning “a different type of use or a use presenting an unreasonably burdensome impact.” § 523.283.2(2).

The closest case applying § 523.283 is Carroll Electric Cooperative Corp. v. Lambert, 403 S.W.3d 637 (Mo. App. 2012). There, an REC petitioned to condemn easements “to erect, operate, survey, maintain ... one or more electric power transmission and/or distribution line(s) and appurtenant communication lines ... and to license, permit, or otherwise agree to the joint use or occupancy of the line or system by any other person, association or corporation for electrification or communication purposes.... ” Id. at 641 (alterations in original) (emphasis omitted). Landowners challenged the condemnation petitions. They conceded the REC could install appurtenant communications lines, but argued that the “joint use or occupancy” provision would permit the cooperative to allow a company like Mediacom or Verizon to use the easements for communications purposes. Id. at 644. The REC said that while “the joint occupancy provision in these easements allow [sic] other electric cooperatives to buy and sell electricity to each other,” it did not allow any non-electricity uses. Id. at 644-45. The court agreed with the REC that “any use other than for electricity is an expanded use of the proposed easements that would be prohibited by § 523.283.” Id. at 645.

Section 523.283 applies only to easements acquired after August 28, 2006, so it does not govern Sho-Me’s easements. But Carroll Electric’s analysis is instructive because § 523.283 does not change earlier law. The Carroll Electric court suggests this by noting, “Landowners do not mention § 523.283, but instead rely on cases involving expanded uses that predate the statute’s enactment in 2006.” 403 S.W.3d at 646 n.6, citing Eureka Real Estate & Inv. Co. v. S. Real Estate & Fin. Co., 355 Mo. 1199, 200 S.W.2d 328 (1947), and Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo. App. 2004). See also Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoir, 71 Mo. L. Rev. 721, 753 (2006) (stating that § 523.283 “makes no change in existing law at all”). See generally Mid-Am. Television Co. v. State Tax Comm’n, 652 S.W.2d 674, 679 (Mo. banc 1983) (explaining that while a new statute generally changes the existing law, a statute can also simply clarify existing law). Section 523.283 appears to codify the Missouri law on the use of easements held by RECs and utilities.

Pre-2006 Missouri case law, which controls this case, is fully consistent with § 523.283 and Carroll Electric. In Eureka, a street railway condemned an easement for the “purpose of the railroad ‘together with all necessary sidetracks, turnouts, stations, power houses, sheds, yards, poles, wires and other appliances and means necessary and convenient for and appurtenant to the same.’” 200 S.W.2d at 330. The Supreme Court of Missouri explained that this easement allowed the railway’s successor to maintain a power line “to furnish power to streetcars.” Id. It held that the easement did not authorize the railway’s successor to permit an electric company to construct an “additional power line” that had “no connection whatever with the electric lines or purposes of the street railway.” Id. at 332. Accord Ogg, 142 S.W.3d at 808-10 (cable TV company’s installation of fiber-optic cables not authorized by electric cooperative’s prescriptive easement).

The Eureka court quoted from dicta in St. Louis, I.M. & S. Ry. v. Cape Girardeau Bell Telephone Co., 134 Mo.App. 406, 114 S.W. 586 (1908), addressing an easement use nearly identical to Sho-Me and Tech’s: where a “railroad right of way consists of an easement only ... and the telegraph is constructed thereon under a contract with the railroad company for the purpose of serving the railroad in its operations; but for the purpose, as well, on the part of the telegraph company, to serve the general public as a commercial enterprise.” Id. at 588. Under those circumstances, “in so far as the telegraph company serves the purpose of the railroad, its occupancy of the right of way easement is not an additional servitude or burden upon the fee of which he may complain” because “such use is a legitimate development for railroad purposes essentially contemplated in the grant of the easement.” Id. It further explained that use for the additional public-serving telecommunications purpose would not be permitted:

Nevertheless, in so far as the telegraph or telephone company thus rightfully occupying the right of way serves the general public as a commercial enterprise, distinct from the avocation of the railroad, it constitutes a use of the right of way easement other than for railroad purposes, and it is therefore a servitude not contemplated in the original grant and a burden upon the fee of which the adjacent owner may rightfully complain. It is obvious the transmission of intelligence by means of electricity to all the world who may be willing to pay for the service is not a railroad use, and such service is certainly not contemplated within the grant of the railroad right of way, for it is entirely disassociated therefrom.

Id. See also Eureka, 200 S.W.2d at 332 (quoting the first sentence of the above block quotation).

In 1966, the Supreme Court of Missouri again quoted Cape Girardeau Bell — this time, a 250-word passage that includes the block quotation above. Kansas City v. Ashley, 406 S.W.2d 584, 592 (Mo. 1966), quoting Cape Girardeau Bell, 114 S.W. at 588. The Ashley court also said that Eureka “relied upon” the Cape Girardeau Bell quotation. Id. Cape Girardeau Bell’s rule, repeatedly reaffirmed by the Supreme Court of Missouri, governs this case.

Under Ashley, Eureka, and Cape Girardeau Bell, Sho-Me’s easements do not authorize Sho-Me and Tech’s use of the fiber-optic cable to serve the general public as a commercial telecommunications enterprise distinct from Sho-Me’s electricity business. Sho-Me and Tech’s use of the landowners’ easements is indistinguishable from the railroad and telegraph company’s use of the easement discussed in Cape Girardeau Bell. In both cases, a cable can rightfully occupy the easement to serve the purpose authorized in the easement. But that cable cannot also serve the general public for purposes not authorized by the easement. That additional use — here, Tech’s use for public-serving commercial telecommunications unrelated to electric transmission — is an expanded use of the kind prohibited by § 523.238 and Carroll Electric.

Sho-Me and Tech invoke two additional doctrines — “same general character” and “unlimited reasonable use” — to justify their use. First, they argue that public telecommunications use was permitted because “the owner of land subject to a public easement has no right to insist that the public use remain precisely the same, and if the original use is changed to another of the same general character and no new or other burdens are imposed, ... the owner is not entitled to additional compensation.” Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 1149 (1939). As a threshold matter, they cite no authority that Sho-Me’s easements are “public easements.” But even assuming Riggs’s “same general character” test applies here, it does not authorize Sho-Me and Tech’s use. Riggs involved a city’s appropriation of an easement to use a stream for sewer purposes. Id. at 1148. Although the amount of sewage discharged into the stream varied over time, the city’s use was always within the bounds of its easement. See id. at 1152. Riggs supports only the notion that a public easement authorizes an increased degree of use so long as it is of the “same general character.” Sho-Me and Tech suggest that Riggs permits all uses physically similar to those explicitly authorized by their easements. That suggestion is incompatible with Eureka, Ogg, and Carroll Electric — all of which prohibited physically similar or identical uses serving unauthorized purposes.

Second, Sho-Me and Tech assert that their use is authorized because “an easement granted or reserved in general terms without any limitations as to its use, is one of unlimited reasonable use.” Mo. Pub. Serv. Co. v. Argenbright, 457 S.W.2d 777, 783 (Mo. 1970); Maasen v. Shaw, 133 S.W.3d 514, 518 (Mo. App. 2004). Sho-Me can make unlimited reasonable use of the easements, so long as each “easement’s use is limited to the purposes for which it was created.” Maasen, 133 S.W.3d at 519. See also Illig v. Union Elec. Co., 652 F.3d 971, 977-78 (8th Cir. 2011) (explaining that, under Missouri law, an easement can only be used for the purpose for which it was created). Sho-Me and Tech are limited to using the easements for the purpose of electric transmission.

Sho-Me and Tech claim they are not restricted by the “original purpose” of the easements, citing Henley v. Continental Cablevision, 692 S.W.2d 825 (Mo. App. 1985). Henley held that easements granted in 1922 to construct and operate “lines for telephone and electric light purposes” authorized “the addition of a single coaxial cable ... for the purpose of transmitting television images.” Id. at 827-28. The court stated, “The owner of an easement may license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted.” Id. at 828. Noting that the cable did not exceed the scope of the intended and authorized use, it explained, “The expressed intention” of the plaintiffs’ predecessors in granting the easements “was to obtain ... the benefits of electric power and telephonic communications.” Id. at 829. Pointing out that the future development of cable television was unforseen when the easements were granted, the court determined that “the intention of plaintiffs’ predecessors was the acquisition and continued maintenance of available means of bringing electrical power and communication into the homes of the subdivision.” Id. Henley held that the cable company could use telephone easements, not simply because such use was “reasonable,” but because cable television was within the easements’ (broadly defined) original purpose. Sho-Me’s easements are unlike those in Henley and nearly identical to the Carroll Electric easements. They do not indicate any intention to allow use for public-serving telecommunications purposes. See Maasen, 138 S.W.3d at 519 (“Any doubt concerning an easement’s scope should be resolved in favor of the servient owner’s free and untrammeled use of the land.”). Sho-Me and Tech’s use for those purposes exceeds the scope of the easements.

2.

Under Missouri law, “A trespass is a ‘direct physical interference with the person or property of another.’ ” Hansen v. Gary Naugle Constr. Co., 801 S.W.2d 71, 74 (Mo. banc 1990), quoting Mawson v. Vess Beverage Co., 173 S.W.2d 606, 613 (Mo. App. 1943). “[I]f an easement holder, while lawfully on the servient land, exceeds his rights under the easement in either the manner or extent of his use, he becomes a trespasser to the extent of the unauthorized use.” Branson W., Inc. v. City of Branson, 980 S.W.2d 604, 607 (Mo. App. 1998). See also, e.g., Grider v. Tingle, 325 S.W.3d 437, 447 (Mo. App. 2010); Ogg, 142 S.W.3d at 809; Maasen, 133 S.W.3d at 520; Macios v. Hensley, 886 S.W.2d 749, 752-53 (Mo. App. 1994). Sho-Me and Tech argue that their use of the easements for telecommunications purposes did not physically interfere with the landowners’ property and therefore" is not a trespass. They say that the landowners complain only of invisible light pulses and can point to no physical invasion of their property.

Sho-Me and Tech miss the fact that the fiber-optic cable is itself on the property, and when they exceed their rights by using it for unauthorized purposes, their use of the cable becomes a trespass. This is precisely what Cape Girardeau Bell says. Where a telegraph is used for purposes both authorized and not authorized by the easement, the owner of the land burdened by the easement “may rightfully complain” of uses for purposes not authorized by the easement. Cape Girardeau Bell, 114 S.W. at 588. Sho-Me and Tech ask this court to ignore this language. But this court’s task is to predict how the Supreme Court of Missouri would rule, and that court has twice quoted Cape Girardeau Bell’s language, suggesting it would adopt its approach. See Ashley, 406 S.W.2d at 592 (quoting and relying on full passage, albeit for different purposes); Eureka, 200 S.W.2d at 332 (quoting and relying on key sentence). Carroll Electric provides further evidence of how the Supreme Court of Missouri would rule. It holds that § 523.283 prohibits “use” of an electric transmission easement “other than for electric service.” Carroll Electric, 403 S.W.3d at 646. Sho-Me and Tech characterize Carroll Electric as discussing additional cables, quoting from a single cross-examination question at trial. But Carroll Electric’s analysis makes no mention of additional cables. Rather, it refers to “use” of the easements. Id. at 644-46.

Sho-Me and Tech also rely on an Eighth Circuit case holding that an excessive use nearly identical to Sho-Me and Tech’s was not trespass under Arkansas law. Int’l Paper Co. v. MCI WorldCom Network Servs., Inc., 442 F.3d 633, 636 (8th Cir. 2006). There, a telecommunications company simultaneously used a railroad right-of-way for both internal railroad communications purposes and public-serving commercial telecommunications purposes. The court said it saw “no reason to believe that Arkansas would recognize a claim for damages from an intangible trespass of light signals.” Id. The decisions of the Missouri courts, discussed above, indicate Missouri would recognize a claim for trespass where a cable installed on an easement is used for purposes not authorized by the easement. This court is bound to follow those Missouri court decisions, not a prior Eighth Circuit interpretation of Arkansas law. The district court’s grant of summary judgment to the landowners on Sho-Me and Tech’s trespass liability is affirmed.

B.

The district court found that Sho-Me and Tech’s excessive use of the easements makes them liable for unjust enrichment. The parties dispute whether unjust enrichment is an available remedy against entities with eminent domain power that have used property without authorization. The Missouri Court of Appeals recently thoroughly discussed the “body of law” “applicable to the subset of trespass actions filed against utilities otherwise empowered with the right of condemnation.” Sterbenz v. Kansas City Power & Light Co., 333 S.W.3d 1, 7-10 (Mo. App. 2010). It summarized the limited remedies available against those entities:

When an entity otherwise entitled to exercise the power of eminent domain ignores that power and trespasses upon private land, the landowner has an election of remedies. The landowner ‘may proceed by way of injunction to restrain the installation; or he may sue in ejectment; or he may avail himself of [section 523.090]; or he may maintain a common law action for damages.’

Id. at 7-8 (alteration in original) (footnote omitted) (citations omitted), quoting Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66, 70 (Mo. App. 1952). If property owners sue for damages, they may sue for trespass or, alternatively, for inverse condemnation. Id. at 8. Sterbenz does not list unjust enrichment as an available remedy.

The landowners say that Sterbenz’s silence on unjust enrichment is not a rejection. But Sterbenz is not just silent. It says that landowners have “an election of remedies” and lists four remedies. It makes little sense to say a plaintiff has an election of four remedies if the plaintiff can elect a fifth. The landowners do not identify any Missouri cases recognizing unjust enrichment as a remedy for unauthorized land use. The closest they come is a case where an employee gave his employer an idea for an invention, which the employer then used without paying him. Dewey v. Am. Stair Glide Corp., 557 S.W.2d 643, 648-49 (Mo. App. 1977). This does not show that Sterbenz overlooked unjust enrichment as a remedy for trespass to real property.

Two other Missouri authorities corroborate Sterbenz. First, in Young v. Home Tel. Co., 201 S.W. 635 (Mo. App. 1918), the Missouri Court of Appeals rejected landowners’ attempt to sue — “based upon a contract implied by law” — a telephone company that installed unauthorized poles. Id. at 636. Young held that this claim was not allowed:

It is clear where one takes and occupies the land of another as a trespasser, the law does not imply an agreement on the part of such trespasser to pay for such use and occupation. If it did, then a suit for use and occupation, based merely upon such use and occupation, could be maintained. But, as stated, the rule in our state is that such a suit cannot be maintained unless the relation of landlord and tenant, express or implied, exists between the parties. In other words, there must have been a prior mutual agreement existing between the parties or their privies to pay for such use and occupation, else a suit therefor cannot be maintained.

Id. at 637. The court of appeals assumed the suit was “not one for the use and occupation of land” directly, but rather one based on an implied contract. It held that the case was governed nonetheless by a statute providing, “A landlord may recover a reasonable satisfaction for the. use and occupation of any lands or tenements held by any person under' an agreement not made by deed.” Id. at 636-37, quoting § 7886 RSMo (1909). The Young court found that the statute limited suits for “use and occupation” to situations where a landlord-tenant relationship existed between the parties. Id. at 636. The same language is still in the Missouri Revised Statutes, now codified at § 441.200, and presumably still bars suits based upon “use and occupation” in the absence of a landlord-tenant relationship. Young suggests that the Supreme Court of Missouri would not recognize an unjust-enrichment action for fair market rental value against a trespassing entity with eminent domain power, at least in the absence of a prior agreement. See Young v. Sw. Bell Tel. Co., 318 Mo. 1214, 3 S.W.2d 381, 384 (1928) (saying “the correctness of [the court of appeals’ Young] ruling is well supported”). Second, § 528.283 specifically notes that “an action for trespass or expanded use” is available against RECs and utility companies that go beyond the scope of their easements, making no mention of unjust enrichment. § 528.283.4. The district court’s grant of summary judgment on unjust-enrichment liability is reversed.

III.

After the district court. granted summary judgment on liability for both the trespass and unjust-enrichment claims, the landowners sought damages on the unjust-enrichment claim alone. A jury awarded damages on that claim, and the district court entered judgment for damages on that claim. Since this court now reverses the grant of summary judgment on unjust enrichment, the damages award is vacated. This court need not address the jury instructions or evidentiary rulings.

On remand, the landowners may choose to pursue damages on their trespass claim. See Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016) (permitting plaintiff who elected RICO remedy that was reversed on appeal to pursue common law fraud remedy on remand); Shaw v. Raymond, 196 S.W.3d 655, 662 (Mo. App. 2006) (“When a plaintiff ... does not have ‘two remedies in point of fact,’ the fact that he sought a remedy to which he was not entitled does not bar him from pursuing a remedy to which he is entitled.” (quoting Pemberton v. Ladue Realty & Constr. Co., 359 Mo. 907, 224 S.W.2d 383, 385 (1949))). If the landowners make that choice, the district court should conduct further proceedings consistent with this opinion.

IV.

Sho-Me and Tech challenge the district court’s decision to certify the class of landowners. This court reviews the district court’s class certification decision for abuse of discretion. Ebert v. General Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016).

Sho-Me and Tech argue that this class action is not “manageable” because it will be difficult to determine class membership. See Fed. R. Civ. P. 23(b)(3)(D) (explaining that, for Rule 23(b)(3) class actions, “the likely difficulties in managing a class action” are “pertinent to” predominance and superiority). The district court addressed this argument at length in its order certifying the class, explaining that class members “will file a claim form with a sworn statement identifying the period of their ownership and attaching a deed.” Sho-Me and Tech do not specify how this process is unmanageable, much less how it is so unmanageable that the district court abused its discretion in certifying the class.

Sho-Me and Tech assert that they could raise an affirmative defense — landowner consent to their cable use — that should be individually investigated and adjudicated, making class certification inappropriate. “While the existence of individual defenses may be important in a court’s decision to certify a class, the relevance of such defenses must be subjected to the same rigorous inquiry as plaintiffs’ claims.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 619 (8th Cir. 2011) (citation omitted). Sho-Me and Tech point to no evidence that even one class member consented to their cable use. Their unsupported' allegation of individual consent questions does not undercut the district court’s finding that common questions predominate over individual ones.

Finally, Sho-Me and Tech contend that the need for individualized damages calculations prohibits class certification. Since this court has vacated the damages award, the nature of a hypothetical future damages award does not render class certification improper. See Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S.Ct. 1036, 1049-50, 194 L.Ed.2d 124 (2016) (declining to decertify class on basis of damages issues not yet resolved by district court). The district court did not abuse its discretion in certifying the class.

⅛: ⅜ ⅝ ⅜; ⅜ #

The judgment is affirmed in part, reversed in part, vacated in part, and remanded for proceedings consistent with this opinion.

      . The district court granted summary judgment to Sho-Me and Tech on easements in the remaining categories.

      . The Missouri Court of Appeals has relied on Professor Whitman's article to determine the meaning of another part of the 2006 statute. See Planned Indus. Expansion Auth. of Kansas City v. Ivanhoe Neighborhood Council, 316 S.W.3d 418, 426-27 (Mo. App. 2010). A unanimous Supreme Court of Missouri has relied on Whitman’s article to hold that a judicial remedy coexists with a remedy created by the 2006 statute. See Clay Cty. Realty Co. v. City of Gladstone, 254 S.W.3d 859, 864, 867-68 (Mo. banc 2008). One supreme court judge quoted Whitman’s article to support the conclusion that some language in the 2006 statute "codified” case law. See Centene Plaza Redevelopment Corp. v. Mint Props., 225 S.W.3d 431, 436 n.2 (Mo. banc 2007) (Stith, J., concurring). In predicting how the Supreme Court of Missouri would decide this issue, Whitman's article is persuasive evidence of the meaning of § 523.283. In any event, this court does not rest its determination that § 523.283 codifies earlier Missouri law solely on Whitman’s article. That determination rests largely on the consistency between pre-2006 case law, and § 523.283 and Carroll Electric.


source: Caselaw Access Project

author: WRIGHT, District Judge.

license: Public Domain

text:
    Jeannie K. MAY, Plaintiff-Appellee v. NATIONSTAR MORTGAGE, LLC, Defendant-Appellant Jeannie K. May, Plaintiff-Appellant v. Nationstar Mortgage, LLC, Defendant-Appellee
    No. 16-1285, No. 16-1307
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 15, 2016
    Filed: March 29, 2017

      Counsel who presented argument on behalf of the appellant/cross-appellee was Jeffrey Mark Tillotson, of Dallas, TX. The following attorneys also appeared on the appellanVcross-appellee brief; Kevin Michael Abel, of Saint Louis, MO., Rhiana Luaders, of Saint Louis, MO., Amy Elizabeth Breihan, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee/cross-appellant was Elizabeth Scott Letcher, of San Francisco, CA. The following attorneys also appeared on the appellee/cross-appellant brief; Paul M. Catalano, of Tulsa, OK., Robert T. Hea-ley, Jr., of Chesterfield, MO., Robert David Humphreys, of Tulsa, OK., Luke J. Wallace, of Tulsa, OK.
    Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT, District Judge.

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

      . The Honorable Wilhelmina M. Wright, United States District Judge for the District of Minnesota, sitting by designation.

   WRIGHT, District Judge.

Appellee/Cross-Appellant Jeannie K. May commenced this action to recover damages under state and federal law arising from the debt-collection practices of Appellant/Cross-Appellee N ationstar Mortgage, Inc. A jury found in favor of May on her invasion-of-privacy claim and her claim that Nationstar negligently violated the Fair Credit Reporting Act. The jury awarded May compensatory damages on both claims and punitive damages on her invasion-of-privacy claim.

On appeal, Nationstar argues that insufficient evidence supports the jury’s award of punitive damages because May failed to present clear and convincing evidence that Nationstar acted with an evil motive or with a reckless indifference to May’s rights. In the alternative, Nationstar contends that the punitive damages award is unconstitutionally excessive in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. May cross-appeals, challenging the district court’s exclusion of testimony at trial and its jury instruction addressing the Real Estate Settlement Practices Act. We affirm.

May purchased a home in Overland, Missouri, secured by a $100,000 mortgage in 2007. Shortly thereafter, she stopped making mortgage payments and filed for Chapter 13 bankruptcy. Through the bankruptcy process, May entered a five-year payment plan to pay down her mortgage and arrears. Although Nationstar acquired the servicing rights to May’s mortgage in ■2010, Nationstar did not communicate directly with May because of the pending bankruptcy. When May’s debt was discharged from bankruptcy in January 2013, she requested monthly mortgage statements from Nationstar.

May received her first mortgage statement in March 2013. The statement erroneously included thousands of dollars in “lender-paid” expenses. Also, rather than applying a $51 credit to May’s account, Nationstar improperly debited $5,162 from the account. Nationstar’s errors caused its records to incorrectly reflect a delinquency of $8,534.94 on May’s mortgage. Nations-tar initiated collection efforts.

May received her first collection call from Nationstar in March 2013, the same. month that she began receiving mortgage statements: May immediately contacted Nationstar, but Nationstar’s employees— acting on erroneous records — informed May that she was delinquent on her mortgage. During the next several months, May regularly received calls from Nations-tar at her home, in public and, most often, at work.

In April 2013, prompted by a call from May, Nationstar submitted May’s file to its research department. Nationstar determined on May 15, 2013, that it had made an accounting error in May’s account and directed its cash department to credit the account from Nationstar’s internal bankruptcy fund. Nationstar’s cash department rejected the requested credit, however, because May had been discharged from bankruptcy and her account no longer reflected a bankruptcy code. Nationstar’s research department never followed up on this discrepancy, and Nationstar never credited May’s account.

Instead, Nationstar resumed its collection efforts and presented May with two options — vacate her home or accept a loan modification. The proposed loan modification would have added the erroneously calculated arrears to May’s principal balance. May refused, and Nationstar initiated the loan modification anyway. May repeatedly attempted to correct the accounting errors by calling and sending written complaints to Nationstar. Although May continued tendering monthly mortgage payments, Nationstar began rejecting the payments in September 2013 because its internal policy required it to accept only full payments. Nationstar deemed May’s payments insufficient because of its erroneous determination that her account was in arrears. Nationstar initiated its foreclosure process. May retained counsel.

In his December 19, 2013 letter, May’s attorney attempted to explain May’s circumstances to Nationstar. In response, Nationstar’s correspondence verified the debt and enclosed the note, deed of trust and a payment history. May’s attorney requested a substantive response. Nations-tar in turn notified May of the February 24, 2014 foreclosure sale. Thereafter, Na-tionstar conducted frequent inspections of May’s residence, allegedly in preparation for the foreclosure sale.

May filed this lawsuit together with a motion for a temporary restraining order to stop the foreclosure sale. As relevant here, May alleged that Nationstar’s conduct (1) violated her right to privacy under Missouri law, (2) constituted negligent reporting under the Fair Credit Reporting Act, (3) willfully violated the Fair Credit Reporting Act, (4) violated the Fair Debt Collection Practices Act, and (5) violated the Real Estate Settlement Practices Act. Nationstar removed the action to the Eastern District of Missouri and cancelled the foreclosure sale. Nationstar’s subsequent investigative and remedial process took several months. On April 28, 2014, Na-tionstar credited the erroneously deducted $5,162 to May’s account, but Nationstar did not remove the improper “lender-paid” expenses or correct the rejection of May’s monthly payments. Nationstar’s revised records continued to erroneously indicate that May’s account was delinquent. The account balance on May’s mortgage was not corrected until October 2014.

At trial, May recounted her experience with Nationstar. This included May’s repeated efforts to remedy her áceount with Nationstar and stop Nationstar’s collection practices. May’s credit score was also adversely affected because Nationstar reported a delinquent debt that she did not owe. May and her physician testified that May experienced symptoms of severe stress attributable to Nationstar’s conduct, including abdominal pain, vomiting, depression and anxiety. May testified that Nationstar ignored her repeated requests to stop calling her, particularly at work, and that Nationstar’s employees spoke to her in a mocking and sarcastic manner on several occasions. May argued that Na-tionstar’s corporate culture unduly focused on collection efforts, which prevented Na-tionstar from correcting her account sooner.

Nationstar admitted that it made many mistakes when servicing May’s account, but disputed May’s allegations that these mistakes were intentional or the product of an institutionalized corporate practice. To counter May’s suggestion that Nationstar was motivated by profit when it sought to foreclose on May’s home, Nationstar presented evidence that it loses money when it forecloses on a property.

The jury awarded May $50,000 in compensatory damages and $400,000 in punitive damages for Nationstar’s invasion of her privacy, in violation of Missouri law, and $50,000 in compensatory damages for Nationstar’s negligent reporting, in violation of the Fair Credit Reporting Act. The district court subsequently denied Nations-tar’s motion to alter or amend the judgment. Nationstar’s appeal and May’s cross-appeal follow.

I.

Nationstar advances’ two arguments, in the alternative, that challenge the award of punitive damages. First, Nationstar argues that insufficient evidence supports the jury’s award of punitive damages because May failed to present clear and convincing evidence that Nationstar acted with an evil motive or a reckless indifference to May’s rights. Alternatively, Nationstar challenges the constitutionality of the punitive damages award, arguing that because it is excessive, the award violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We address each argument in turn.

A.

Nationstar asserts that insufficient evidence supports the jury’s award of $400,000 in punitive damages because the evidence fails to establish that Nations-tar acted with ill-will or malice. Rather, according to Nationstar, the evidence supports the conclusion that Nationstar’s errors were made in good faith. May counters that Nationstar was notified of its mistakes and its conduct thereafter demonstrated a “reckless disregard” to May’s rights. By concluding that Na-tionstar acted with a reckless indifference to her rights, May contends, the jury found Nationstar’s persistent collection efforts — despite May’s payment history and debt protests — were inconsistent with Nationstar’s claimed good faith.

When exercising diversity jurisdiction, as we do here, we apply the forum state’s substantive law to any state-law claims. See Bazzi v. Tyco Healthcare Grp., LP, 652 F.Bd 943, 946 (8th Cir. 2011). Under Missouri law, punitive damages may be awarded for invasion of privacy. Engman v. Sw. Bell Tel. Co., 591 S.W.2d 78, 81-82 (Mo. Ct. App. 1979). The purpose of punitive damages is not to compensate the plaintiff, but rather to punish and deter the defendant. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. 1996). As such, punitive damages are an extraordinary and harsh remedy that should be awarded sparingly. Id. Whether the evidence is sufficient to support an award of punitive damages is a 'question of law, which we review de novo. Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788, 799 (8th Cir. 2013) (citing Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 869 (Mo. Ct. App. 2009)).

Before punitive damages can be awarded, a plaintiff must present clear and convincing evidence of a defendant’s culpable mental state. Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. 1989). This standard requires proof that the defendant acted with either an evil motive or a reckless indifference to the plaintiffs rights. Id. Such proof can be established by direct or circumstantial evidence. Trickey, 705 F.3d at 800; Drury v. Mo. Youth Soccer Ass’n, 259 S.W.3d 558, 573 (Mo. Ct. App. 2008). A jury may infer that a defendant has the requisite culpable motive when evidence of the defendant’s reckless indifference to the interests and rights of the plaintiff is presented. Drury, 259 S.W.3d at 573. Such evidence supporting punitive damages need not be — and often is not — separate from the evidence supporting a substantive claim. Trickey, 705 F.3d at 800. It is the jury’s role “to evaluate [the] evidence and decide what inferences should be drawn from it.” JCB, Inc. v. Union Planters Bank, NA, 539 F.3d 862, 873 (8th Cir. 2008). We will overturn the jury’s verdict only when “there is a complete absence of probative facts” such that “no proof beyond speculation [supports] the verdict.” Wedow v. City of Kansas City, 442 F.3d 661, 669 (8th Cir. 2006).

In JCB, Inc., we rejected an argument very similar to the one Nations-tar advances here. When a bank and a private creditor disputed which party had a superior interest in a debtor’s property, the bank eventually provided notice of its intent to sell the property despite multiple objections from the creditor. JCB, Inc., 539 F.3d at 867-68. After the bank seized and sold the property, the creditor successfully sued for trespass and conversion and was awarded punitive damages. Id. at 869. The bank challenged the punitive damages award claiming, as Nationstar does here, that insufficient evidence supported the award because the bank believed in good faith that its actions complied with the law. Id. at 872-73. Such an argument did not prevail in JCB, Inc., nor does it here. “Simply presenting ... evidence of good faith to the jury does not immunize a defendant from punitive damages.” Id. at 873. Determining the weight and credibility of the evidence, and any inference to be drawn from it, is the province of the jury. Id. This record presents no basis to reject the jury’s determination.

Nationstar argues that the evidence demonstrates that its actions were nothing more than a series of unintentional errors. In doing so, Nationstar attempts to distinguish JCB, Inc., based on its responsiveness to May. Nationstar maintains that “the defendant in JCB defiantly ignored the plaintiffs complaint and actually went through with a full foreclosure and sale,” whereas here “Nationstar listened to May, tried to fix the problem with her account at multiple junctures, and never actually foreclosed on her home.” Evidence that Nationstar acted with a reckless indifference to her rights is legally sufficient to establish the requisite mental state to support the punitive damages awarded by the jury, May counters. We agree.

The record reflects that May contacted Nationstar repeatedly to demand that it resolve the issues with her account. But rather than suspending its efforts, Na-tionstar aggressively pursued collection, posted May’s home for foreclosure and conducted inspections of her residence. May also testified that Nationstar employees, at times, spoke to her in a mocking and sarcastic manner and that she suffered physical ailments from the stress caused by Nationstar’s conduct. In evaluating this evidence, it was the jury’s responsibility to determine the credibility and weight of the evidence presented. In doing so, the jury was free to reject Nationstar’s characterization of its conduct and determine that these facts and circumstances warranted punitive damages. The verdict reflects the jury’s decision to credit May’s arguments that her repeated protests and requests for assistance should have halted the collection process long before the foreclosure proceedings commenced. See JCB, Inc., 539 F.3d at 873 (explaining that it is the jury’s role “to evaluate [the] evidence and decide what inferences should be drawn from it”).

A review of the trial record establishes that there is ample evidence that supports the jury’s determination. The jury’s verdict reflects its assessment of the evidence, including its rejection of Nationstar’s good-faith theory and acceptance of May’s arguments that Nationstar acted with a reckless indifference to her rights. On this record, sufficient evidence supports the jury’s award of punitive damages. Nations-tar’s renewed assertions that it acted in good faith provides no legal basis to vacate the jury’s verdict.

B.

Nationstar next argues that the $400,000 punitive, damages award is unconstitutionally excessive because it violates the Due Process Clause of the Fourteenth Amendment. The constitutionality of punitive damages is subject to de novo review. Trickey, 705 F.3d at 802. Although juries have considerable flexibility in determining the amount of punitive damages, the Due Process Clause serves as a governor and prohibits “grossly excessive civil punishment.” Id. (quoting Ondrisek v. Hoffman, 698 F.3d 1020, 1028 (8th Cir. 2012)). Punitive damages are grossly excessive if they “shock the conscience” of the court or “demonstrate passion or prejudice on the part of the trier of fact.” Ondrisek, 698 F.3d at 1028 (quoting Stogsdill v. Healthmark Partners, L.L.C., 377 F.3d 827, 832 (8th Cir. 2004)).

We consider three factors when determining whether a punitive damages award shocks the conscience or demonstrates passion or prejudice. They are “(1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between actual or potential harm suffered and the punitive damages award (often stated as a ratio between the amount of the compensatory damages award and the punitive damages award); and (3) the difference between the punitive damages award and the civil penalties authorized in comparable cases.” Id. (quoting Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 602 (8th Cir. 2005)); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). These factors serve as the “guideposts” to ensure, that a defendant receives proper notice of possible penalties. Ondrisek, 698 F.3d at 1028. We address each factor in turn.

1.

We first evaluate whether the reprehensible nature of Nationstar’s conduct warrants punitive damages. Reprehensibility is the most important guidepost. Gore, 517 U.S. at 575, 116 S.Ct. 1589. When assessing reprehensibility, the Supreme Court instructs us to consider whether:

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The presence of just one indicium of reprehensibility is sufficient to render conduct reprehensible and support an award of punitive damages. See Trickey, 705 F.3d at 803.

The record here supports a conclusion that Nationstar’s conduct was reprehensible. May suffered physical harm. The severe stress attributable to Nationstar’s conduct caused May to experience abdominal pain, vomiting, depression and anxiety. See Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 790 (8th Cir. 2009) (concluding that physical symptoms attributable to severe stress qualify as physical rather than economic harm). Also, as addressed in Part II.A.1., the jury specifically determined that Nationstar acted with a reckless indifference to May’s substantive rights. See Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024, 1027 (8th Cir. 2000) (explaining that the jury’s substantive conclusion is relevant to a determination of reprehensibility). Nationstar concedes that May was financially vulnerable. Nor was Nationstar’s conduct an isolated incident. Nationstar repeatedly invaded May’s privacy over the course of two years through actions including making collection calls to May at her workplace, conducting home inspections and sending foreclosure letters. See, e.g., Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 839 (8th Cir.2005) (observing that a pattern of misconduct constitutes repeated actions). The reprehensible nature of Nationstar’s conduct supports the jury’s award of punitive damages. See Trickey, 705 F.3d at 803.

2.

As to the second factor, Nationstar contends that the 8-to-l ratio between May’s $400,000 punitive award and $50,000 compensatory award is too great. At most, according to Nationstar, a 1-to-l ratio is appropriate. We disagree.

We do not apply “a simple mathematical formula” to determine the constitutionality of a punitive damages award. Gore, 517 U.S. at 582, 116 S.Ct. 1589. But few awards exceeding a single-digit ratio of punitive to compensatory damages will satisfy due process. State Farm, 538 U.S. at 425, 123 S.Ct. 1513. A 4-to-1 ratio likely will survive any due process challenge “given the historic use of double, treble, and quadruple damages.” Wallace v. DTG Operations, Inc., 563 F.3d 357, 363 (8th Cir. 2009). Yet the 4-to-l ratio established in Wallace is not disposi-tive because an award of punitive damages turns on the specific facts of each case. State Farm, 538 U.S. at 425, 123 S.Ct. 1513; see also United States v. Big D Enters., Inc., 184 F.3d 924, 933 (8th Cir. 1999) (rejecting argument that punitive damages must be limited to 4-to-l ratio as “miscontrufing] the applicable law”). A higher ratio may be justified when the injury is hard to detect or the monetary damages are difficult to quantify. Gore, 517 U.S. at 582, 116 S.Ct. 1589. Indeed, we have explained that a 4.8-to-l ratio is the current constitutional boundary for multimillion dollar compensatory awards, see Ondrisek, 698 F.3d at 1030 (citing Eden Elec., Ltd. v. Amana Co., 370 F.3d 824, 827 (8th Cir. 2004)), and have affirmed higher ratios for smaller compensatory damage awards, see Trickey, 705 F.3d at 804 (affirming a 5-to-l ratio); Morse v. S. Union Co., 174 F.3d 917, 925-26 (8th Cir. 1999) (affirming a 5.7-to-l ratio).

Our decision in Morse provides a meaningful reference to analyze May’s award here. After the district court granted re-mittitur motions to reduce the original awards, the plaintiff in Morse received $70,000 in compensatory damages and $400,000 in punitive damages arising from the defendant’s violation of the Age Discrimination in Employment Act (ADEA). 174 F.3d at 921. When affirming other punitive damages awards, we have cited with approval the district court’s rationale for the punitive damages award in Morse:

[The plaintiffs] evidence, which the jury credited, shows that [the employer’s] top management [implemented policies that violated the ADEA] to achieve company objectives.... The award of $400,000 is less than one one-thousandth of [the employer’s] approximately $500,000,000 net worth and the ratio of punitive to compensatory damages ... is less than 6:1, a ratio that in these circumstances does not set off any alarm bells.

Trickey, 705 F.3d at 804 (citing Morse, 174 F.3d at 925).

When comparing May’s award to the award at issue in Morse, May received $50,000 in compensatory damages rather than $70,000, resulting in an 8-to-l ratio for May. But here, as in Morse and Trickey, the jury credited May’s evidence that Nationstar acted with a reckless indifference to her substantive rights. The $400,000 punitive award also accounts for thirty-three thousandths of one percent of Nationstar’s approximate $1.2 billion net worth. See id. (considering net worth of defendant- as relevant to the analysis). Under the facts and circumstances presented, the 8-to-l ratio of May’s award “does not set off any alarm bells,” and it is not unconstitutionally excessive. See id.

3.

The final factor for consideration is the “disparity between the punitive damages award and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 428, 123 S.Ct. 1513 (internal quotation marks omitted). The parties concede that there are no comparable civil penalties in this case because there is no civil penalty for invasion of privacy under Missouri law and the civil penalties for May’s federal claims are nominal. Although May argues that her federal claims could have included statutory penalties for the costs of prosecution, she concedes that there is no way to discern which conduct the jury considered to be an invasion of her privacy. In light of the similarities between this case and others in which we have upheld an award of punitive damages, however, the absence of comparable civil penalties does not render the punitive damages award unconstitutionally excessive. See Trickey, 705 F.3d at 804; Morse, 174 F.3d at 925-26.

In sum, the jury’s $400,000 punitive damages award does not violate the Due Process Clause of the Fourteenth Amendment.

II.

We next address May’s cross-appeal, in which she challenges the district court’s decision to exclude the testimony of Jennifer Prostredny, who allegedly experienced conduct by Nationstar that is similar to Nationstar’s treatment of May. May argues that the district court erred because the admission of Prostredny’s testimony would have rebutted Nationstar’s claims of good faith and established that Nations-tar’s conduct was reckless and reprehensible. May also contends that the district court erroneously instructed the jury on her claim under the Real Estate Settlement Practices Act. We address each argument.

A.

Before trial, Nationstar moved in limine to exclude “any reference to the facts or circumstances regarding or involving any borrower besides [May], including introducing any evidence regarding the facts and circumstances involving Jennifer Prostredny.” Nationstar argued that Prostredny’s testimony was inadmissible because it was irrelevant, prejudicial and improper propensity evidence. The district court granted Nationstar’s motion, but reserved its decision as to admissibility for the purpose of rebuttal. The district court’s ruling, however, precluded Nations-tar from employing a defense theory that May’s experience was isolated.

A Nationstar Vice President testified on cross-examination that May “was an exception” and “not [in] the majority ... not what we want to happen to other customers.” The district court immediately admonished Nationstar and instructed the witness not to address “this sort of an issue.” Because the witness was under cross-examination, however, the district court rejected May’s argument that Na-tionstar “opened the door” as to whether May’s experience with Nationstar was an isolated one. As a remedy, the district court permitted May’s counsel to ask the Nationstar Vice President whether Na-tionstar had treated other customers similarly when servicing their mortgages. The Nationstar Vice President admitted that “Nationstar ... made errors with other borrowers.”

The district court has broad discretion when deciding what evidence to admit at trial. Cummings v. Malone, 995 F.2d 817, 823 (8th Cir. 1993). We review a district court’s decision to exclude evidence for a clear and prejudicial abuse of discretion. Id. An abuse of discretion occurs when the district court erroneously excludes admissible evidence and “there is no reasonable assurance that the jury would have reached the same conclusion had the evidence been admitted.” King v. Ahrens, 16 F.3d 265, 268 (8th Cir. 1994) (quoting Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987)). We may affirm evidentiary rulings on any ground supported by the record. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 895 (8th Cir. 2010).

We have affirmed the exclusion of evidence under circumstances nearly identical to those here. In Bair v. Callahan, we held that the district court did not abuse its discretion by excluding evidence of an orthopedic surgeon’s mistakes in treating other patients on the ground that the evidence constituted improper, prejudicial propensity evidence. 664 F.3d 1225, 1229-30 (8th Cir. 2012). In addition, we concluded that admission of such evidence would result in “mini trials” that would needlessly confuse and distract the jury by drawing its attention away from the germane issues. Id. at 1230. We affirmed the district court’s decision to permit more limited questioning that preserved an argument for presentation to the jury while preventing litigation of each prior act. Id.

Here, the district court excluded the Prostredny testimony to foreclose a needless “mini trial” about another borrower’s experience for the improper purpose of establishing Nationstar’s alleged propensity for mistreating other borrowers. See id. This ruling did not improperly impede May’s presentation of evidence to undermine Nationstar’s good-faith defense, which the jury apparently credited when it awarded her punitive damages. The decision to exclude Prostredny’s testimony was well within the district court’s sound discretion.

B.

May also challenges the district court’s jury instruction on her Real Estate Settlement Procedures Act (RESPA) claim. May argues that the instruction was erroneous because it was founded on a statutory provision that had not become effective, it incorrectly defined an exception to Na-tionstar’s duty and it misstated provisions of the relevant regulation. Nationstar counters that May waived this issue by failing to object to the instruction at trial. Alternatively, Nationstar defends the instruction as a common-sense statement of applicable law and adds that any potential error had no effect on the jury’s verdict.

“A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P. 51(c)(1). When followed by litigants, Rule 51 affords the district court the opportunity to correct a defective instruction and helps “to prevent litigants from ensuring a new trial in the event of an adverse verdict by covertly relying on the error.” Mo. Pac. R.R. Co. v. Star City Gravel Co., 592 F.2d 455, 459 (8th Cir. 1979). Rule 51 requires a specific objection to a jury instruction before the jury retires, otherwise “a litigant waives the right on appeal to object to a jury instruction on those grounds.” Dupre v. Fru-Con Eng’g Inc., 112 F.3d 329, 333 (8th Cir. 1997). In the absence of a distinct objection, we will reverse only for plain error. See Fed. R. Civ. P. 51(d)(2); Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir. 1995). May did not object to the district court’s RESPA instruction in a substantive manner. Accordingly, plain-error review is appropriate. Plain-error review is narrow and “confined to the exceptional case in which error has seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006) (internal quotation marks omitted).

As a party asserting a RE SPA violation, May was required to demonstrate that (1) she sent Nationstar a qualified written request, (2) Nationstar failed to respond to that request, and (3) she suffered damages. See Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 510-11 (8th Cir. 2012). Jury Instruction 19A, the target of May’s appeal, stated: “Nationstar was not required to respond to any qualified written request if it reasonably determined that the request asserted the same error as an error previously asserted by May.” May argues that Jury Instruction 19A improperly relied on a regulation that was not in effect at the time of Nations-tar’s misconduct. The effective date of that regulation — 12 C.F.R. § 1024.35(g)(l)(I)— was January 10, 2014. According to May, many of her written requests to Nations-tar preceded that effective date. Nations-tar responds that Section 1024.35(g)(l)(I) is a codification of a preexisting “commonsense exception” to RESPA that applied to all of May’s written submissions.

The parties’ arguments demonstrate the importance of making a substantive objection when an instruction is offered. When such an objection is raised for the first time on appeal, we are placed in an untenable position.

To correct the error, we would have to notice sua sponte that the district court did not act sua sponte to provide a jury instruction that [a party] should have provided, and then we would have to remedy the problem in the face of [the complaining party’s] relative indifference to it. We have an adversarial system of justice, not an inquisitorial one, and to [correct the error despite the inaction] would be to blur the line between the two systems. We decline to do so.

Swipies v. Kofka, 419 F.3d 709, 717 (8th Cir. 2005) (emphasis added).

Assuming without deciding that Jury Instruction 19A is a misstatement of the law, such an error would not entitle May to a reversal under plain-error review. For example, in Christopherson v. Deere & Co., although the district court erroneously instructed the jury on a plaintiffs assumption of the risk, we affirmed because the exacting standard of plain error was not met. 941 F.2d 692, 694 (8th Cir. 1991) (concluding that “the essential fairness of the trial was not undercut by the omission of the word ‘unreasonably’ ... and plaintiffs, who have been awarded substantial compensatory damages, have not suffered a miscarriage of justice”). The same is true here. Given the multiple theories of defense to the RESPA claim that Nationstar advanced, we can only speculate about the reason for the jury’s verdict. Moreover, May recovered $500,000 in damages, a circumstance that undermines any argument that the alleged RESPA error resulted in a miscarriage of justice. On this record, May fails to establish that Jury Instruction 19A was plainly erroneous.

III.

Based on the foregoing analysis, we affirm on all grounds.

      .The Honorable Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).

      . Nationstar also relies on decisions from other jurisdictions that address the award of punitive damages. These cases are inapposite. For example, Nationstar cites inapplicable Minnesota law and circumstances when punitive damages were awarded on a negligence claim, which requires a different standard of proof from the reckless-indifference standard employed here. See, e.g., Litchfield v. May Dep’t Stores Co., 845 S.W.2d 596, 600 (Mo. Ct. App. 1992) (articulating standard in negligence cases involving punitive damages in which mere error is distinguished from negligent conduct evincing "complete indifference or conscious disregard” to the rights of others).

      . Missouri has adopted the federal standard for reviewing the constitutionality of a punitive damages award. See Krysa v. Payne, 176 S.W.3d 150, 156-57 (Mo.App.2005) (adopting federal standard, but noting deference to trial court’s findings of fact).

      . Nationstar contends that May failed to preserve this issue for review because Prostred-ny’s testimony is not included in the appellate record and May failed to proffer the testimony at trial. But a motion in limine preserves an evidentiary ruling for appeal absent an offer of proof at trial. See Lawrey v. Good Samaritan Hosp., 751 F.3d 947, 952 (8th Cir. 2014). The fact that Prostredny’s testimony is not included in the appellate record also is not dispositive. Nationstar relies on Rule 103(a), Fed. R. Evid., but that Rule provides that a claimed error is preserved if the substance of the excluded testimony is "apparent from the context.” Neither party disputes that Pros-tredny’s testimony relates to her experience with Nationstar that was allegedly similar to Nationstar’s treatment of May.

      . We do not endorse the district court’s statement to the parties regarding its expectation that specific remedial testimony would be rendered.

      . Case law supports each party’s position as to Jury Instruction 19A. In Campbell v. Nationstar Mortgage, the United States Court of Appeals for the Sixth Circuit concluded that an instruction similar to Jury Instruction 19A stated an exception that had yet to take effect. 611 Fed.Appx. 288, 297 (6th Cir. 2015). Notably, as the defendant in that case, Nationstar made an argument similar to the argument May now advances. But other courts have adopted Nationstar’s position in this case, that Jury Instruction 19A stated a common-law exception to RESPA for duplicate requests. See, e.g., Hawkins-El v. First Am. Funding, LLC, 891 F.Supp.2d 402, 409 (E.D.N.Y. 2012). This split in authority underscores the importance of substantive objections at trial for the district court’s consideration.


author: GRUENDER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Philip DELGROSSO, also known as Phillip Delgrosso, Defendant-Appellant United States of America, Plaintiff-Appellee v. Jeffrey Cain, Defendant-Appellant
    No. 16-1980, No. 16-1981
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 9, 2017
    Filed: March 30, 2017

      Counsel who represented Philip J. Delg-rosso, appellant was Joshua K. Roberts of Springfield, MO.
    Counsel who represented Jeffrey Cain, appellant was William D. Langston of Olathe, KS.
    Counsel who represented the appellee was Timothy A. Garrison, AUSA, of Springfield, MO.
    Before SMITH, GRUENDER, and BENTON, 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.

   GRUENDER, Circuit Judge.

A jury found Philip Delgrosso and Jeffrey Cain guilty of conspiracy to distribute methamphetamine, money laundering, and conspiracy to commit money laundering. Delgrosso also was found guilty of failing to file Internal Revenue Service (“IRS”) Form 8300. On appeal, Delgrosso argues that the district court erred by (1) denying his motion for a new trial based on newly discovered evidence; (2) denying his motion for a new trial based on government misconduct; (3) instructing the jury on “willful blindness”; (4) denying his motion for a judgment of acquittal after the verdict; and (5) denying safety-valve relief at sentencing. Cain joins in Delgrosso’s first and third points on appeal. For the reasons discussed below, we affirm.

I. Background

Delgrosso and Cain operated an automobile dealership called Missouri Auto Group. In 2013, they became acquainted with Jerry Wright. Wright approached the two men with a proposed business arrangement: he would provide funds for them to purchase automobiles at dealer auctions, they would sell those automobiles on the Missouri Auto Group lot, and the three men would split the profits. According to Delgrosso, Wright admitted to them that he had a criminal past but claimed that he acquired his money through legitimate means such as scrapping metal, selling other cars, and saving money from working in prison.

In reality, Wright acquired the money by operating a drug trafficking organization (“DTO”). Associates of the DTO would purchase methamphetamine in Phoenix, Arizona and transport the methamphetamine back to Missouri for distribution. Wright continued to operate this DTO during his acquaintance with Delgrosso and Cain.

Delgrosso and Cain accepted Wright’s offer, and they also hired him to work part-time at Missouri Auto Group as an independent contractor detailing cars. Over the next few months, Wright passed over $150,000 through Missouri Auto Group by providing cash to Delgrosso and Cain to purchase vehicles. For example, on one occasion, Cain purchased a vehicle in the name of Missouri Auto Group with more than $13,000 in cash provided by Wright. On other occasions, Delgrosso brought cash provided by Wright to Regions Bank to purchase cashier’s checks in the name of Missouri Auto Group. Delg-rosso then used these checks to purchase vehicles at 166 Auto Auction.

Eventually, following an investigation by Drug Enforcement Agency task force officer Brian Walsh and other law enforcement officers, the DTO was uncovered and its members arrested. As a result, thirteen of the DTO members, including Wright, pled guilty to methamphetamine and money laundering offenses. Delgrosso and Cain were charged with conspiracy to distribute methamphetamine, money laundering, and conspiracy to commit money laundering. Delgrosso also was charged with failure to file IRS Form 8300. Delgrosso and Cain proceeded to trial.

Previously, in response to an IRS subpoena to Missouri Auto Group, Delgrosso wrote an eleven-page letter detailing his relationship with Wright, stating that Wright had purchased multiple vehicles through Missouri Auto Group with funds that Delgrosso insisted were from legitimate sources. At trial, Delgrosso testified consistent with his letter. He denied any knowledge that Wright was involved with drug sales. He also insisted that he had questioned Wright about the source of the money before accepting his offer. However, Delgrosso admitted he never conducted a background check, confirmed Wright’s ownership of the vehicles he claimed to own, or checked with any references or with Wright’s probation officer. Cain declined to testify.

Wright invoked the Fifth Amendment and refused to testify at the trial of Delg-rosso and Cain. However, other members of the DTO testified about their knowledge of the two men. They testified that Cain smoked and snorted methamphetamine with other members of the DTO. According to one member, Robert Cantrell, Cain requested that DTO members remove from the Missouri Auto Group lot a vehicle with five pounds of methamphetamine concealed in it because someone was coming to visit the lot. Cantrell also testified that Wright gave methamphetamine to him while Cain sat at the desk in front of them and that, on another occasion, Wright gave methamphetamine to someone else while in the same room as Delgrosso. Another member, Perry Adams, testified that Delg-rosso called Wright “convict” and often admonished Wright about avoiding the appearance of unexplained wealth. The Government also introduced Delgrosso’s past criminal convictions showing that he had previously attempted to launder money by converting illicit funds into a cashier’s check.

At the end of the trial, the district court gave the jury a “willful blindness” instruction, stating that the jury may find Delg-rosso and Cain acted “knowingly” if it found beyond a reasonable doubt that they “believed there was a high probability that the financial and monetary transactions [they engaged in with Wright] involved funds derived from criminal activity and that they took deliberate actions to avoid learning of that fact.” Neither defendant objected to this instruction. The jury found Delgrosso and Cain guilty on all counts. Delgrosso moved for a judgment of acquittal after the verdict, which was denied.

After the trial, Wright wrote an affidavit from prison claiming that he misled Delg-rosso and Cain and that he believed they had no knowledge of the drug conspiracy. Prior to sentencing, Delgrosso and Cain filed motions for a new trial based on this newly discovered evidence and also based on government misconduct. The district court denied these motions.

At sentencing, Delgrosso argued that he met all of the requirements for safety-valve relief, including the full disclosure requirement. The district court disagreed, stating that Delgrosso’s testimony “most certainly was not forthright and most certainly was not designed to come clean.” Hence, the district court overruled Delg-rosso’s objection and sentenced both Delg-rosso and Cain to 120 months’ imprisonment, the statutory minimum for the methamphetamine-distribution-eonspiracy count. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Delgrosso and Cain now appeal their convictions.

II. Discussion

A. Newly discovered evidence

Delgrosso and Cain both argue that the district court erred in denying their motions for a new trial based on Wright’s post-trial affidavit. We review the denial of a motion for a new trial based on newly discovered evidence for abuse of discretion. United States v. Duke, 255 F.3d 656, 659 (8th Cir. 2001).

A defendant must satisfy five requirements to justify a new trial on this basis:

(1) the evidence must have been discovered after trial; (2) the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material; and (5) the evidence must be likely to produce an acquittal if a new trial is granted.

Id. Here, Delgrosso and Cain fail to satisfy the fifth requirement because Wright’s affidavit would not “be likely to produce an acquittal if a new trial is granted.” See id.

First, the affidavit itself likely would be inadmissible at a new trial. An affidavit offered in lieu of in-court testimony, if offered for the truth of the matter asserted in the affidavit, is hearsay evi-r dence. See Fed. R. Evid. 801(c). “Hearsay is inadmissible unless it falls within an established exception.” United States v. Smith, 591 F.Sd 974, 980 (8th Cir. 2010). Delgrosso contends that Federal Rule of Evidence 804(b)(3) would provide such an exception because the affidavit is a statement against interest insofar as it may expose Wright to new criminal charges. However, even if so, given Wright’s criminal record, it is far from clear that the district court would admit the affidavit under Rule 804(b)(3), which requires that the evidence be “supported by corroborating circumstances that clearly indicate its trustworthiness.” See Fed. R. Evid. 804(b)(3)(B); United States v. Halk, 634 F.3d 482, 490 (8th Cir. 2011) (considering “the general character of the speaker” in determining the trustworthiness of a hearsay statement against interest (citation omitted)). Thus, for a jury to consider this new evidence, Wright likely would need to testify at a new trial, and Wright has not indicated that he is willing to testify.

Second, even if Wright testified or the affidavit were admitted, the Government could impeach Wright’s credibility by introducing evidence of his seven prior felony convictions. See Fed. R. Evid. 609 (allowing use of prior criminal convictions to impeach witness); Fed. R. Evid. 806 (allowing impeachment of hearsay declarant with “any evidence that would be admissible for those purposes if the declarant had testified as a witness”). Thus, as the district court recognized, Wright would have serious credibility issues, and his statements “could have actually bolstered the government’s position.”

Third, even if a jury believed Wright’s statements, that does not mean that it likely would acquit Delgrosso and Cain. Wright’s affidavit states that he told Delg-rosso and Cain “half truths and ... left numerous questions unanswered to shelter and protect them from the knowledge of the true illegal nature” of the source of his funds. For example, Wright claimed that he showed them “multiple receipts where certain weeks $8 to $10,000.00 dollars were made through selling metal to the scrapyard.” But these statements do not prove that Delgrosso and Cain never realized the true nature of Wright’s operation.

In contrast, the Government provided ample evidence that would allow the jury to conclude that Delgrosso and Cain knew or willfully blinded themselves to the fact that Wright acquired his cash through drug sales. The Government produced evidence that Cain smoked and snorted methamphetamine with other DTO members, watched Wright give methamphetamine to another DTO member, and ordered DTO members to move a vehicle loaded with methamphetamine off the Missouri Auto Group lot. The Government also produced evidence that Delgrosso called Wright “convict” and admonished him to avoid the appearance of unexplained wealth, was in the same room as Wright when he passed methamphetamine to someone else, and had previous experience laundering money by converting illicit funds into a cashier’s check. This evidence was more than enough to allow a jury to infer that Delg-rosso and Cain either knew or willfully blinded themselves to the fact that Wright bought vehicles with proceeds from methamphetamine sales. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir. 1994) (noting that a defendant’s knowledge is generally proven through circumstantial evidence). Thus, even if a jury believes Wright’s statements, an acquittal is not likely. Because Delgrosso and Cain have failed to show that Wright’s affidavit would be likely to produce an acquittal, the district court did not abuse its discretion in denying their motion for a new trial.

B. Government misconduct

Delgrosso argues that he is entitled to a new trial because the Government engaged in misconduct that deprived him of due process of law in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Delgrosso contends that the Government’s case was predicated on police reports and an affidavit of task force officer Welch that contained false misrepresentations of fact and that the Government failed to disclose these false misrepresentations and other exculpatory evidence. ‘We review the denial of a motion for a new trial based on a Brady violation for an abuse of discretion.” United States v. Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009).

As an initial matter, Delgrosso’s motion for a new trial based on government misconduct was untimely. Federal Rule of Criminal Procedure 33(b)(2) requires that “[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Here, the jury returned its guilty verdict on August 28, 2015, and Delgrosso filed this motion for a new trial on February 11, 2016, well after the 14-day deadline. Moreover, Delgrosso’s Brady claim does not implicate newly discovered evidence. Rather, Delgrosso was aware of this alleged misconduct during the trial. Indeed, as the district court noted, Delgrosso raised these same allegations “numerous times during the pendency of this case.” Thus, his motion was untimely, and it may be properly rejected on this basis alone. See United States v. Boesen, 599 F.3d 874, 876, 878 (8th Cir. 2010) (affirming district court’s ruling that motion for a new trial was untimely); United States v. Oligmuel- ler, 198 F.3d 669, 671 (8th Cir. 1999) (“We may affirm the district court on any basis supported by the record.”).

Even if the motion were timely, however, Delgrosso’s Brady claim fails, “Under Brady v. Maryland, ‘suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). “[E]vidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Keys, 721 F.3d 512, 520 (8th Cir. 2013) (quotations omitted).

As the district court noted, Delgrosso has “allegations, not evidence,” and even if Delgrosso had evidence of government misconduct, his allegations would not “have any probability of changing the outcome of this trial because they either relate to issues that are irrelevant or are directly contradicted by some strong evidence in this case.” Indeed, Delgrosso presents no evidence showing that Welch’s statements were false, that the Government suppressed evidence, or that any suppressed evidence was material. Therefore, the district court did not abuse its discretion in denying Delgrosso’s motion for a new trial.

C. Willful blindness jury instruction

Delgrosso and Cain argue that the district court erred by giving a willful blindness jury instruction because the evidence did not support an inference of deliberate ignorance. Because neither defendant objected to the jury instructions at trial, we review for plain error. United States v. Garcia-Hernandez, 803 F.3d 994, 996 (8th Cir. 2015). “[Ujnder a plain-error standard of review, the party seeking relief must show that there was an error, the error is clear or obvious under current law, the error affected the party’s substantial rights, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).

“A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge, but the evidence supports an inference of deliberate ignorance.” United States v. Haire, 806 F.3d 991, 998 (8th Cir. 2015) (quotation omitted). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” United States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008). Thus, “[t]he evidence is sufficient to support the instruction if a jury could find beyond a reasonable doubt the defendants had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.” Id.

Delgrosso and Cain contend that they did inquire as to the source of Wright’s money before going into business with him and so a jury could not reasonably find that they deliberately failed to inquire or investigate. In particular, Delgrosso argues that his eleven-page letter to the IRS and his trial testimony showed that he “actually inquired into where Wright obtained the cash he gave to Missouri Auto Group to purchase the vehicles.”

However, Delgrosso and Cain ignore the fact that the jury was entitled to disbelieve their version of this conversation with Wright. See United States v. Trotter, 837 F.3d 864, 868 (8th Cir. 2016) (“Assessing the credibility of witnesses is a task for the jury.”). Indeed, as previously noted, the Government provided sufficient evidence for the jury to infer that Delgrosso and Cain not only “deliberately failed to inquire” about the source of funds but that they had “actual knowledge of the illegal activity.” See Whitehall, 532 F.3d at 751.

Moreover, even if the jury credited their version of this conversation, Delgrosso admitted that he never conducted a background check, confirmed Wright’s ownership of the vehicles he claimed to own, or checked with any references or with Wright’s probation officer. Delgrosso further indicated that he did not make such inquiries only because he was not hiring Wright to be in the “full-time employment of Missouri Auto Group,” suggesting that he could have made such inquiries. Because Delgrosso admitted .that he could have made further inquiries, the jury could have inferred that he and Cain “intentionally failed to investigate” once they were put on notice of criminal activity. See id. Therefore, it was not plain error for the district court to instruct the jury on willful blindness.

D. Motion for judgment of acquittal

Delgrosso next argues that the district court erred in denying his motion for judgment of acquittal because the verdict was against the weight of the evidence. He claims that the evidence shows that he was not a knowing participant in the conspiracy and that he did not know the source of Wright’s funds. We review de novo the district court’s denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the verdict. United States v. Paris, 816 F.3d 1037, 1038-39 (8th Cir. 2016). We will reverse the denial only if no reasonable jury could have found Delgrosso guilty. See id. at 1039.

Here, as previously noted, sufficient evidence supported the jury’s verdict. The jury reasonably could have inferred from the evidence presented that Delgrosso either knew or willfully blinded himself to the fact that Wright bought vehicles with proceeds from methamphetamine sales. Therefore, the district court did not err in denying Delgrosso’s motion for acquittal.

E. Safety-valve relief

Delgrosso next argues that the district court erred in denying him relief under the safety-valve provisions of 18 U.S.C. § 3553(f) and United States Sentencing Guideline (“U.S.S.G.”) § 5C1.2(a). These provisions allow a district court to impose a sentence below the statutory minimum sentence if the defendant satisfies each of five requirements. United States v. Brooks, 722 F.3d 1105, 1108 (8th Cir. 2013). Delgrosso contends that he has satisfied all five of the requirements. Because the Government concedes that Delg-rosso satisfied the first four requirements, the only remaining question is whether Delgrosso satisfied the fifth requirement: “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). The district court found that Delgrosso did not satisfy this requirement because his testimony “most certainly was not forthright and most certainly was not designed to come clean.” We review for clear error a district court’s findings regarding the completeness and truthfulness of information provided by a defendant. United States v. Hinojosa, 728 F.3d 787, 790 (8th Cir. 2013).

Here, Delgrosso did not make a formal safety-valve proffer before sentencing. Nevertheless, he contends that his trial testimony and letter to the IRS “truthfully provided all information and evidence he had regarding the offenses.” Delgrosso relies on our decision in United States v. Honea, in which a defendant received safety-valve relief even though he maintained that he never suspected that his codefen-dants were doing anything illegal. 660 F.3d 318, 326-27 (8th Cir. 2011).

However, this case clearly differs from Honea. First, in Honea, the district court granted safety-valve relief, and so we reviewed for clear error its conclusion that the defendant’s statements were complete and truthful. See id. at 327-28. Here, the district court denied safety-valve relief, and so Delgrosso must show that the court clearly erred in concluding that his statements were not complete and truthful. Second, in Honea, we concluded that the defendant “admitted that he failed to investigate facts that put him on notice that criminal activity was likely occurring.” Id. at 329. Here, Delgrosso never admitted that any facts put him on notice that criminal activity was likely occurring or that he failed to investigate them. Rather, he continued to press his innocence at sentencing. Thus, the district court was entitled to conclude from his statements that he did not truthfully provide to the Government all information and evidence he had 'concerning the offenses and that he therefore was not eligible for safety-valve relief. We find no clear error in this regard.

III. Conclusion

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

      . The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.

      . Delgrosso alleges eleven acts of misconduct, including the following: (1) Welch’s affidavit indicated that there was a Chevy Avalanche with a hidden compartment containing methamphetamine being transported on a car hauler when in fact it was not; (2) Welch stated that Wright had an identification card allowing him access to restricted areas of 166 Auto Auction when in fact he did not; (3) the Government inflated the amount of money provided to Delgrosso from Wright to $150,000 when it was in fact less than $70,000; and (4) the Government failed to disclose financial records of Downstream Casino which would have indicated that Wright laundered money through the casino and not Missouri Auto Group.

      . Although Delgrosso argued in his motion that there was no testimony that he knew he must file an IRS Form 8300, he does not mention this argument on appeal. Therefore, we consider his argument on this count waived. See United States v. Reinholz, 245 F.3d 765, 775 n.4 (8th Cir. 2001).