author: COLLOTON, Circuit Judge.

text:
    IN RE: GENETICALLY MODIFIED RICE LITIGATION Riceland Foods, Inc., Plaintiff-Appellee, Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and Co-Trustees of the Genetically Modified Rice Common Benefit Fund, Movant-Appellee, v. Bayer CropScience US; Bayer CropScience LP; Bayer AG; Bayer CropScience Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG; Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA, Defendants-Appellants. In re: Genetically Modified Rice Litigation Riceland Foods, Inc., Plaintiff-Appellant, v. Bayer CropScience US; Bayer CropScience LP; Bayer AG; Bayer CropScience Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG; Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA, Defendants, Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and Co-Trustees of the Genetically Modified Rice Common Benefit Fund, Movant-Appellee. In re: Genetically Modified Rice Litigation Riceland Foods, Inc., Plaintiff-Appellee, v. Bayer AG; Bayer CropScience AG; Bayer BioScience NV; Bayer CropScience LP; Bayer CropScience LLC; Bayer CropScience Holding, Inc.; Bayer CropScience Inc.; Bayer Corporation, Defendants-Appellants. In re: Genetically Modified Rice Litigation Riceland Foods, Inc., Plaintiff-Appellant, v. Bayer AG; Bayer CropScience AG; Bayer BioScience NV; Bayer CropScience LP; Bayer CropScience LLC; Bayer CropScience Holding, Inc.; Bayer CropScience Inc.; Bayer Corporation, Defendants-Appellees. In re: Genetically Modified Rice Litigation Riceland Foods, Inc., Plaintiff-Appellee, Don M. Downing and Adam J. Levitt, Plaintiffs’ Co-Lead Counsel and Co-Trustees of the Genetically Modified Rice Common Benefit Fund, Movant-Appellant, v. Bayer CropScience US; Bayer CropScience LP; Bayer AG; Bayer CropScience Holding, Inc.; Bayer Corporation; Bayer BioScience NV; Bayer CropScience AG; Bayer CropScience Inc.; Bayer CropScience LLC; Bayer CropScience Holding SA, Defendants-Appellees.
    No. 15-2690, No. 15-2693, No. 15-2850, No. 15-2893, No. 15-3245
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 12, 2016
    Filed: August 31, 2016

      Counsel who presented argument on behalf of the appellants/cross-appellees Bayer Corporation, Bayer AG, Bayer CropScience LP, Bayer CropScience AG, Bayer BioScience NV, Bayer CropScience Holding, Bayer CropScience LLC, Bayer Crop-Science Inc., Bayer CropScience Holding SA and Bayer CropScience US was Eric R. Olson, of Denver, CO. The following attorneys also appeared on the appellants/cross-appellees brief; John M. Hughes, of Denver, CO, Jason C. Murray, of Denver, CO.
    Counsel who presented argument on behalf of the appellees/cross-appellants Don M. Downing and Adam J. Levitt was Todd E. Hilton, of Kansas City, MO. The following attorneys also appeared on the brief of appellees/cross-appellants Don M. Downing and Adam J. Levitt; Patrick Joseph Stueve, of Kansas City, MO, Bradley Wil-ders, of Kansas City, MO.
    Counsel who presented argument on behalf appellee/cross-appellant Riceland Foods was Christopher Martin Hohn, of Saint Louis, MO. The following attorneys also appeared on the brief of appel-lee/cross-appellant Riceland Foods; John R. Musgrave, of Saint Louis, MO, Barry Deacon, of Jonesboro, AR, Kimberly M. Bousquet, of Saint Louis, MO, Jason Mark Milne, of Saratoga Springs, UT.
    Before COLLOTON and SHEPHERD, Circuit Judges, and BOUGH, District Judge.

      . The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation.

   COLLOTON, Circuit Judge.

Bayer AG, along with several of its corporate subsidiaries, and Riceland, Inc., appeal an order of the district court requiring Bayer to cause the deposit of a portion of a settlement between Bayer and Rice-land into a common-benefit trust fund. This fund was established to compensate attorneys leading the multidistrict litigation (“MDL”) concerning Bayer’s Liber-tyLink LL601 genetically modified rice. We addressed challenges to the creation of the fund in In re Genetically Modified Rice Litigation (Rice I), 764 F.3d 864, 870-71, 873-74 (8th Cir.2014).

Bayer and Riceland argue that because their settlement was the product of negotiations following a state-court judgment, the district court lacked jurisdiction to order Bayer to cause a percentage of the settlement to be deposited into the fund. As the district court explained, however, Bayer and Riceland were parties to several federal eases in the consolidated federal litigation, and their settlement resolved the very claims asserted by Riceland in those federal cases. We conclude that the district court properly ordered Bayer to hold back a portion of the Bayer-Riceland settlement, and we therefore affirm the judgment.

I.

In 2006, Bayer reported to federal regulators that trace amounts of its experimental LL601 genetically modified rice, which was not approved for human consumption, had contaminated the commercial long-grain rice supply in the United States. In response to this disclosure, several major importers of U.S. rice — including Japan, the European Union, and Mexico — banned the import of U.S. long-grain rice or imposed stringent testing requirements. Rice commodity prices and export volume dropped precipitously following the disclosure. Although LL601 was retroactively approved for human consumption, the contamination caused significant economic loss to the domestic rice industry.

In hundreds of individual lawsuits, approximately seven thousand rice growers (“producers”) and others in the rice industry (“non-producers”) sued Bayer and related entities for losses suffered as a result of the LL601 contamination. Approximately three hundred of those lawsuits, comprising the individual claims of approximately five thousand plaintiffs, were filed in or removed to federal court; the remaining plaintiffs proceeded in state court. The Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C.. § 1407, transferred the federal cases to the United States District Court for the Eastern District of Missouri for pretrial proceedings. In re LLRice 601 Contamination Litig., 466 F.Supp.2d 1351 (J.P.M.L.2006).

In April 2007, the district court appointed a leadership group of plaintiffs’ attorneys to coordinate the centralized multidis-trict proceedings. Don Downing and Adam Levitt, appellees and cross-appellants here, were named co-lead counsel for this coordinated effort. Over the course of the litigation, the leadership group took over one hundred depositions, managed extensive discovery, and conducted several bellwether trials; evidence generated from each of these efforts was made available to all plaintiffs in state and federal court. In addition, the leadership group prevailed on several motions for summary judgment. A special master determined that the leadership group and other lawyers engaged by the leadership group invested over 100,000 hours for the common benefit of all plaintiffs.

To compensate lawyers who would contribute to this collective effort, the district court ordered the creation of a common-benefit trust fund (“Common Benefit Order”). This order required Bayer to hold back and deposit into the fund a percentage of all recoveries in the federal litigation: eleven percent of recoveries by producer plaintiffs, ten percent of recoveries by non-producer plaintiffs, and nine percent of recoveries by European non-producer plaintiffs. The district court “reluctantly” determined that it lacked jurisdiction to apply the Common Benefit Order to “settlements and judgments related to eases pending in state courts,” even though the state-court plaintiffs would be “unjustly enriched,” because plaintiffs in those cases were not parties before the district court. As a result, the court limited the scope of its order to gross recoveries “related to each .federal genetically modified rice case.” In Rice I, we affirmed the district court’s conclusion that it lacked jurisdiction over state-court plaintiffs, holding that an MDL judge “does not have the power to order parties in cases not before it to contribute to the Fund.” 764 F.3d at 874.

Riceland, an Arkansas rice-milling and wholesaling cooperative, was named as a defendant in over two hundred LL601-related lawsuits; in many cases, Riceland was a co-defendant with Bayer. But, in the words of Riceland’s attorney, the company “quickly pivoted and was immediately at the forefront of ... the LLRICE litigation as a plaintiff against Bayer.” Riceland filed a complaint and multiple cross-claims and third-party complaints against Bayer, claiming that Bayer was negligent in failing to prevent its experimental rice from contaminating the U.S. long-grain rice supply. Riceland asserted claims against Bayer in at least seven cases that were part of the consolidated multidistrict proceedings.

Two cases in which Riceland asserted claims against Bayer are relevant to this appeal. In Meins v. Bayer AG, No. CV-2008-108 (Ark. Cir. Ct. Arkansas Cty. filed Aug. 7, 2008), rice farmers and rice-farming entities sued Bayer and Riceland over the LL601 contamination. Riceland filed a cross-claim against Bayer in Meins; on the same day, Riceland filed an identical, original complaint against Bayer in federal court. Riceland Foods, Inc. v. Bayer AG, No. 3:09-cv-00008-BSM (E.D.Ark. filed Jan. 20, 2009), transferred, No. 4:09-cv-00433-CDP (E.D.Mo. dismissed Aug. 3, 2015).

The plaintiffs in Meins settled their claims against Bayer, leaving only Rice-land’s cross-claims for trial. A jury entered a verdict in favor of Riceland and awarded the company $11.83 million in compensatory damages and $125 million in punitive damages. The trial court, applying Arkansas’s statutory cap on punitive damages, reduced the punitive damages award to $1,073,292.

Riceland appealed the remittitur in Meins. After Riceland filed its notice of appeal, the Arkansas Supreme Court held in a separate LL601 case that the limit on punitive damages violated the state constitution. Bayer CropScience LP v. Schafer, 385 S.W.3d 822, 829-32 (Ark.2011). In its opening brief to the state supreme court, Riceland argued that Schafer required the court to reinstate the full punitive damage award; Bayer cross-appealed, arguing that the jury’s finding that Riceland was thirty percent at fault barred the company from recovering damages. On the punitive damages issue, Bayer conceded that Schafer applied, but argued that if the verdict stood, then remand was appropriate to determine whether the $125 million award violated the state or federal constitution.

After briefing was complete in the Meins appeal, Riceland and Bayer agreed to settle Riceland’s claims. Under the settlement agreement, Bayer agreed to pay Riceland $92 million and to indemnify Riceland against any claims arising out of the LL601 litigation. In exchange, Rice-land released “any and all claims ... growing or arising out of the presence in the United States rice supply of Bayer GM Rice.” The release clause stated: “This specifically includes, but is not limited to, the claims brought in the Scott Meins, et al. v. Bayer AG, et al. case.” The settlement also required Riceland to dismiss with prejudice its claim in Meins, but did not specifically mention Riceland’s pending federal lawsuit. Neither Bayer nor Rice-land moved to dismiss Riceland’s federal complaint. Bayer represents to the court that it has paid the $92 million due to Riceland under the settlement.

The plaintiffs’ leadership group attempted, on three separate occasions, to require Riceland to contribute to the common-benefit fund. On the eve of the Meins trial, the leadership lawyers moved in the district court for an order applying the Common Benefit Order to any recovery Riceland obtained in the state-court trial. The district court denied the motion, again concluding that although Riceland received a substantial benefit from the leadership group’s work, the court lacked jurisdiction over the state-court case. The leadership group also moved to intervene in Meins to have the state trial court determine whether Riceland should be required to abide by the Common Benefit Order; the motion to intervene was denied.

After Bayer and Riceland reached their settlement, the leadership group moved to apply the Common Benefit Order to Rice-land’s recovery under the settlement. Because Riceland was a non-producer plaintiff and a party in the coordinated federal proceedings, the leadership group argued that Riceland was bound by the Common Benefit Order to contribute ten percent of the settlement to the common-benefit fund. The district court agreed, concluding that the agreement’s release of “any and all claims” — including those asserted in Rice-land’s federal lawsuit — gave the court jurisdiction to order funds to be held back from the settlement. The court thus ordered Bayer to “cause to be deposited” $9.2 million into the common-benefit fund. The court entered a separate order dismissing Riceland’s federal lawsuit based on its finding that the settlement resolved the parties’ dispute. Bayer and Riceland appeal the application of the Common Benefit Order to the settlement.

Two other actions involving the subject matter of this appeal are currently pending. In Downing v. Riceland Foods, Inc., No. 4:13-cv-00321-CDP, 2013 WL 774313 (E.D.Mo. filed Feb. 20, 2013), the leadership group has sued Riceland for unjust enrichment and quantum meruit based on the services rendered by the leadership group. The district court stayed the suit pending resolution of this appeal. Riceland has also sued Bayer in Arkansas state court, seeking a declaratory judgment that the settlement agreement assigned to Bayer the cost of contributing to the common-benefit fund. Riceland Foods, Inc. v. Bayer CropScience LP, No. CV-2015-072 ND (Ark.Cir.Ct. Arkansas Cty. filed June 30, 2015).

II.

This issues presented on appeal can be distilled into three principal questions. First, Bayer and Riceland both argue that the order requiring Bayer to hold back a portion of the settlement should be vacated because the district court lacked jurisdiction to apply the Common Benefit Order to their settlement. Downing and Levitt, on behalf of the plaintiffs’ leadership group, maintain that the district court properly exercised jurisdiction over these parties. Next, even if the district court had jurisdiction to order an allocation of funds from the settlement, Bayer and Riceland argue that the amount ordered here was too large. Finally, if the court properly required a payment, the parties dispute whether Bayer or Rice-land should be required to deposit money into the common-benefit fund. Bayer and Riceland each argue that the other should be required to pay. The leadership group contends that the district court’s order was correct as entered, but argues alternatively that Riceland should be required to pay if Bayer is not.

A.

Bayer and Riceland argue that the district court lacked jurisdiction to order a contribution to the common-benefit fund. They contend that the order conflicts with this court’s decision in Rice I.

In Rice I, the plaintiffs’ leadership group appealed the district court’s conclusion that it lacked jurisdiction to apply the Common Benefit Order to plaintiffs who recovered damages from Bayer in state court. 764 F.3d at 873-74. State-court-only plaintiffs, the leadership group argued, benefited from the common-benefit work and would be unjustly enriched unless the Common Benefit Order was applied to them as well. Id. at 874. While recognizing the potential inequities involved, we agreed with the district court that it lacked jurisdiction over pláintiffs that were not in federal court. Id.; accord In re Showa Denko K.K. L-Tryptophan Prods. Liab. Litig.-II, 953 F.2d 162, 165-66 (4th Cir. 1992); Hartland v. Alaska Airlines, 544 F.2d 992, 994, 996, 1001-02 (9th Cir.1976). Bayer and Riceland now argue that Rice I precluded the district court from ordering an allocation from their settlement, because the settlement was the product of negotiations during the appeal of a state-court judgment.

Rice I does not control this case, because Riceland and Bayer were parties to multiple federal lawsuits before the district court at the time of settlement. Unlike the state-court-only plaintiffs in Rice I, Riceland pursued its claims against Bayer in both state and federal court. Applying the Common Benefit Order to the state-court-only plaintiffs in Rice I would have required the federal court to exercise authority over parties that never appeared in federal court. Riceland, by contrast, “voluntarily entered the litigation” and sought a federal forum by filing a -federal complaint and asserting third-party claims in the consolidated federal proceedings. Showa Denko, 953 F.2d at 166. The district court therefore had jurisdiction to enter any orders regarding Riceland that are consistent with the authority of a transferee court in centralized multidistrict litigation.

No party challenges the propriety of the Common Benefit Order or the “well established” authority of a district court to compensate leadership lawyers by ordering funds to be set aside from recoveries obtained by other plaintiffs in multidistrict litigation. Walitalo v. Iacocca, 968 F.2d 741, 747 (8th Cir.1992). The Common Benefit Order required Bayer to hold back amounts “related to each federal genetically modified rice case.” The Bayer-Riceland settlement released “any and all claims” of Riceland against Bayer, including Rice-land’s claims in the federal cases. As a payment in consideration for resolving all of Riceland’s claims, including those in federal cases, the settlement amount thus “related to” a federal genetically modified rice case within the meaning of the order.

Bayer and Riceland attempt to narrow the scope of the settlement to exclude the claims asserted in Riceland’s federal complaint and cross-claims. Riceland argues that the settlement’s release clause “expressly — and only — applies to Meins.” This argument is belied by the plain language of the settlement agreement, which states that the release “includes, but is not limited to,” the claims asserted in Meins. The agreement expressly disclaims that it applies only to Meins.

Bayer advances the more nuanced argument that even if the terms of the agreement could be interpreted as relating to the federal case, the parties clearly intended to exclude the “worthless” federal lawsuit. Bayer contends that in light of the jury verdict in Meins, it could have secured dismissal of Riceland’s federal lawsuit under the doctrine of claim preclusion. See Crockett & Brown, P.A. v. Wilson, 864 S.W.2d 244, 246 (Ark.1993) (holding that a judgment has preclusive effect even while on appeal). Bayer argues that it would be illogical to interpret the agreement as settling a case with de minimis settlement value.

That Bayer might have resolved or defeated Riceland’s federal claims in a different way, however, does not alter the plain terms of the settlement agreement. Bayer and Riceland opted for a release that “includes, but is not limited to” Meins and extends to “any and all claims.” “The term ‘any and all’ ... is all-encompassing” and includes Riceland’s federal claims against Bayer. See Sander v. Alexander Richardson Invs., 334 F.3d 712, 716 (8th Cir.2003).

Bayer might have eschewed such broad language and instead relied on the doctrine of claim preclusion to defeat other claims' — federal and state — arising from the presence of Bayer genetically modified rice in the U.S. rice supply. But Bayer’s proposed interpretation of the settlement agreement — excluding supposedly “worthless” claims arising from the same nucleus of operative facts — would mean that the agreement was in fact “limited to” Meins when the agreement said precisely the opposite. If the parties wanted to resolve only the Meins lawsuit, and to leave Rice-land’s federal claims open for resolution outside the agreement, then they could have drafted the settlement agreement more narrowly. The district court did not err by refusing to vary the terms of the written agreement. See Hurt-Hoover Invs., LLC v. Fulmer, 448 S.W.3d 696, 703 (Ark.2014).

Bayer also asserts that Riceland’s federal lawsuit was “never litigated,” but this too would not be a reason to ignore the agreement’s resolution of “any and all claims.” In any event, there was important litigation relating to Riceland’s federal claim. One month after Riceland filed its federal lawsuit, Bayer moved for partial summary judgment on all non-producer claims based on the preemptive effect of the Plant Protection Act, 7 U.S.C. § 7756(a). If Bayer had prevailed on its motion for summary judgment, then all of Riceland’s claims would have failed, but the leadership group successfully defeated Bayer’s motion. The l^dership group also obtained summary judgment on several of the affirmative defenses that Bayer asserted against Riceland, and it obtained extensive discovery materials that benefitted all plaintiffs. So while Riceland itself may have done little individually to litigate its federal claim, litigation on its behalf in the consolidated multidistrict proceedings did benefit Riceland’s claims.

Riceland takes a different tack, arguing that the federal case was moot once the parties settled, and that the district court thus lacked jurisdiction over the federal case when it ordered Bayer to cause a deposit into the common-benefit fund. Riceland’s argument effectively concedes that the settlement agreement encompassed the federal claims. But while Rice-land may be correct that the settlement mooted its federal lawsuit, the district court retained jurisdiction to resolve outstanding collateral matters, such as attorney fees. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Application of the Common Benefit Order was a comparable collateral matter that the district court had jurisdiction to resolve in light of the settlement.

B.

Bayer and Riceland argue alternatively that even if the -federal lawsuits gave the district court authority to order an allocation from the settlement, the amount ordered here was too large. Bayer contends that the court was required to apportion the amount between the federal and state cases, and to limit the order to an amount that “constituted a federal-court recovery.” Riceland similarly argues that the court erroneously “ascribed 100% of the value of the settlement to a defunct federal case.”

If the district court were- required to assess the relative value of Riceland’s federal and state lawsuits, then it would apply Arkansas state contract law to make that determination. See Amana Refrigeration, Inc. v. Pidgeon’s Furniture & Appliance Stores, Inc., 883 F.2d 657, 658 (8th Cir. 1989). But there is a first-order question here: whether the court was required to make an apportionment at all. That is not a question of state contract law but a question of federal law concerning the scope of a district court’s authority in overseeing multidistrict litigation.

The equitable common-benefit doctrine permits a district court to redistribute costs among plaintiffs when “the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.” Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 393-94, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); see Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 264 n.39, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); In re Diet Drugs, 582 F.3d 524, 546-47 (3d Cir.2009); In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1017-18 (5th Cir.1977). The district court found that the plaintiffs’ leadership group here conferred a substantial benefit on Riceland. Riceland was before the district court as a plaintiff, cross-claimant, or third-party claimant in at least seven federal cases. The district court had subject-matter jurisdiction over these federal actions. This jurisdiction was a sufficient basis for the court to exercise its equitable and managerial authority to prevent Riceland from freeriding on the work of the leadership group.

There is no separate requirement that the court also have jurisdiction over the corpus of the settlement, as though this were a quasi-m rem proceeding. The district court here chose to use amount of recovery as a proxy for the benefit conferred on individual plaintiffs, but the court could have assessed a flat fee or used some other measure. See Showa Denko, 953 F.2d at 164; cf. Mills, 396 U.S. at 392, 394, 90 S.Ct. 616. The key point is that Riceland was enriched by the work of the plaintiffs’ leadership counsel, and Rice-land’s participation in federal litigation gave the district court authority to order the setting aside of funds recovered from Bayer to prevent unjust enrichment of Riceland.

Riceland complains that the district court failed to consider its unique role as both a plaintiff and a defendant. The company says that it was denied access to some discovery material and forced to expend its own resources defending against litigation by the plaintiffs’ leadership group. For these reasons, Riceland contends that the district court should have analyzed whether the ten percent holdback is inequitable as applied to Riceland. Rice-land, however, did not object to entry of the Common Benefit Order. The district court, moreover, concluded that Riceland substantially benefited from the work of the leadership group, relying on its earlier finding that “the leadership group’s work in discovery, motion practice, and the bellwether trials has provided a foundation for all cases involved in the litigation.” That Riceland supplemented this foundation does not disprove or diminish the benefit it derived from coordinate pretrial litigation. Regarding Riceland specifically, the court noted that the leadership group mounted a successful defense on the preemption issue, and that Riceland’s own attorney sought reimbursement from the common-benefit fund, thus suggesting coordination with other plaintiffs’ counsel. Given the substantial deference owed to the district court, we cannot say the court committed an abuse of discretion by concluding that Riceland should be subject to the same set-aside requirement.as other parties who recover from Bayer.

The Bayer-Riceland settlement was the culmination of an extensive effort by Rice-land to assert its claims against Bayer in over a half dozen lawsuits in both state and federal court. The settlement “related to” and resolved Riceland’s federal claims. The district court therefore properly applied the Common Benefit Order to the settlement and required a percentage of the entire settlement to be redirected to the common-benefit fund.

C.

Having determined that the district court properly applied the Common Benefit Order to the Bayer-Riceland settlement, we now must address whether the district court properly ordered Bayer to “caused to be deposited” ten percent of the settlement into the common-benefit fund. Bayer contends that because it already paid the settlement amount to Riceland, the district court effectively compelled it to cover Riceland’s litigation expenses. Such an order, Bayer argues, violates the American Rule, which prohibits federal courts from shifting the costs of litigation between adverse parties without statutory authority or a contract between the parties. Walitalo, 968 F.2d at 747. Bayer did not present this argument to the district court, so we review for plain error. See Wiser v. Wayne Farms, 411 F.3d 923, 927 (8th Cir.2005).

Citing Universal Title Insurance Co. v. United States, 942 F.2d 1311, 1314 (8th Cir.1991), Bayer argues that we have discretion to consider a purely legal issue for the first time on appeal, and that plain-error review should not apply. But the two propositions are not necessarily inconsistent. If the resolution of a purely legal issue is “beyond any doubt,” see Wiser, 411 F.3d at 927, then the plain-error standard may well be satisfied. In any event, Universal Title merely recognized the court’s discretion to consider certain issues for the first time on appeal. 942 F.2d at 1314. We disagree with Bayer that it is entitled to more searching appellate review of a forfeited error than a criminal defendant challenging a conviction or term of imprisonment. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Bayer contends that the authority conferred under 28 U.S.C. § 1407, which authorizes consolidated pretrial proceedings in multidistrict litigation, is “merely procedural” and does not give the district court authority to enter a fee-shifting award. Rice I, 764 F.3d at 873-74 (quoting Showa Denko, 953 F.2d at 165). The district court, however, did not order Bayer to pay attorney fees. It ordered Bayer to comply with the Common Benefit Order and “cause to be deposited” a portion of the settlement into the fund. Bayer has never objected to its assigned role of holding back portions of recoveries. That Bayer opted to pay Riceland before clarifying its obligations under the Common Benefit Order did not convert enforcement of the order into an impermissible fee award.

Although Bayer is required under the order to cause a deposit into the common-benefit fund, the order does not mean that the district court has shifted the ultimate burden to finance Riceland’s litigation. The parties are disputing in state court whether the settlement agreement assigned to Bayer the cost of complying with the Common Benefit Order. Riceland Foods, Inc. v. Bayer CropScience LP, No. CV-2015-072 ND (Ark.Cir.Ct. Arkansas Cty. filed June 30, 2015). If Bayer assumed liability for the common-benefit fee by contract, that agreement would be a permissible form of fee shifting under the American Rule. See Walitalo, 968 F.2d at 747. Bayer also has not disclaimed an ability to seek contribution or indemnification from Rice-land, and the district court’s carefully worded order allowed Bayer to “cause” Riceland to make the deposit if Bayer had a legal basis to do so. We therefore find no plain error in the district court’s order assigning to Bayer the duty of causing a deposit of the funds due under the Common Benefit Order.

* * *

The big picture here is that Riceland was enriched by the work of the plaintiffs’ leadership group. The district court had authority to prevent unjust enrichment of federal-court plaintiffs through the administration of a common-benefit fund. We concluded in Rice I that where a party proceeded against Bayer exclusively in state court, the district court lacked jurisdiction to apply the Common Benefit Order to recoveries obtained in the state-court litigation. As a consequence, some plaintiffs proceeding exclusively in state court would be unjustly enriched by the work of the plaintiffs’ leadership group. Where, however, a plaintiff who benefited from this work chose to litigate against Bayer in both federal and state court, and to resolve its claims in a global settlement, the district court was not required to make the loophole larger. Application of the Common Benefit Order to the Bayer-Rice-land settlement was a proper exercise of the equitable common-benefit doctrine. The judgment of the district court is affirmed.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

      . Bayer’s motion for the court to take judicial notice of the state declaratory-judgment action is granted. See Fed. R. Evid. 201(b)(2), (d); Great Plains Tr. Co. v. Union Pac. R.R. Co., 492 F.3d 986, 996 (8th Cir.2007). Bayer’s motion to strike Parts I and II of the plaintiffs’ leadership group’s reply brief is denied.


source: Caselaw Access Project

author: KETCHMARK, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cameron ARNOLD, Defendant-Appellant.
    No. 15-3697
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 14, 2016
    Filed: August 31, 2016
    Rehearing and Rehearing En Banc Denied October 5, 2016

      Steven R. Davis, North Little Rock, AR, for appellant.
    Jana K. Harris, Erin O’Leary, Asst. U.S. Attys., Little Rock, AR (Christopher R. Thyer, U.S. Atty., on the brief), for appellee.
    Before SMITH and GRUENDER, Circuit Judges, and KETCHMARK, District Judge.

      . The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri, sitting by designation.

   KETCHMARK, District Judge.

Following a jury trial, Cameron Arnold was convicted of conspiracy to commit bank robberies and three counts of aiding and abetting the robbery of those banks. Arnold now appeals the district court’s denial of his motion to suppress, ruling on his Batson challenges, and imposition of his sentence. We affirm.

I.

On March 24, 2014, an Iberia Bank branch in Little Rock, Arkansas, was robbed. Detective Bobby Martin in the robbery unit with the Little Rock Police Department testified that Devonta Piggee was developed as a suspect and was arrested for the armed bank robbery. Piggee gave a statement to police that the person involved with him was from Pine Bluff, Arkansas, and named “Cam.” As a part of the Iberia Bank robbery investigation, a detective from the Pine Bluff Police Department was contacted, and he identified “Cam” as Arnold. Seven weeks later, on May 13, 2014, a U.S. Bank in Little Rock was robbed. At this point, the Little Rock Police Department began investigating Keyontae Johnson as a suspect. Officers were aware that Piggee, Johnson, and Arnold were all from Pine Bluff.

Two days after the armed robbery of the U.S. Bank, on May 15, 2014, Detective Martin received an anonymous telephone call. The caller told Detective Martin that Johnson was leaving Pine Bluff, and headed toward Little Rock to commit another bank robbery. The caller stated that Johnson was driving a gray Ford Taurus with a temporary license plate from Dane’s Auto Sales. Detective Martin then alerted his squad to this information. Later that day, Detective Martin learned that there had been an armed robbery of a bank in Benton, Arkansas. When Detective Martin notified the Benton Police Department about the anonymous tip, the department confirmed that a gray Ford Taurus had been involved in the armed robbery that morning.

Based on the determination that Johnson probably was involved in the armed robbery and would be returning to Pine Bluff, Little Rock Police Officers searched for the gray Taurus by traveling south on Interstate 530 from Little Rock toward Pine Bluff. Little Rock Police Detective Carrie Mauldin, in an unmarked patrol unit, located the gray Taurus at approximately mile marker 22 of Interstate 530. At this point, Little Rock Detective Grant Humphries, who was also in an unmarked patrol unit, joined Detective Mauldin. The two officers then followed the vehicle as it exited the interstate at mile marker 34. At the same time, law enforcement officers in marked patrol units from other agencies in that vicinity also joined to assist. After exiting Interstate 530 and taking two left turns, the gray Taurus was stopped by a roadblock of marked patrol cars. As it turned out, the roadblock stopped two cars. The other car stopped was a black Honda that had been traveling in front of the gray Taurus.

When Detective Martin arrived on the scene a few minutes after the stop, Johnson had been placed in the back of a patrol car. Detective Martin approached Johnson to verify that the individual in the patrol car matched the photograph he had obtained in the U.S. Bank robbery investigation. When Detective Martin looked into the patrol car, Johnson said something to the effect that the car ahead was involved. The black Honda contained two occupants, a female driver and Arnold, who was seated as a passenger. As part of the Iberia Bank robbery investigation, in which Arnold was identified as “Cam,” Detective Martin was aware that there was an outstanding warrant for Arnold’s arrest. After Arnold provided identification, he and the female driver were taken into custody. Arnold’s vehicle was stopped only five or six minutes before he was identified as a suspect in the Benton bank robbery that had just occurred. All three individuals that had been stopped by the roadblock were then transported to the Little Rock Police Department. Dnce at the police station, officers discovered that the female driver had more than $3,200 on her person.

On September 11, 2014, a grand jury charged Arnold in a four-count indictment with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (Count 1); and three counts of aiding and abetting the robbery of a federally insured bank, for the March 24, May 13, and May 15 bank robberies, in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 2, 3, and 4). Along with Arnold, Piggee was indicted in Counts 1 and 2, and Johnson was indicted in Counts 1, 3, and 4. Piggee and Johnson each pleaded guilty and were eventually sentenced to 30 months’ imprisonment, three years supervised release, and payment of restitution in the amounts of $4,907 for Johnson and $7,694 for Piggee. After the indictment, Arnold filed a motion to suppress the cash and his statement obtained as a result of the May 15, 2014 vehicle stop. The district court denied the motion following an evidentiary hearing at which the district court heard testimony from three government witnesses: Detectives Martin, Mauldin, and Humphries. In a two-day jury trial beginning on June 22, 2015, the jury found Arnold guilty on all counts. Piggee and Johnson testified at Arnold’s trial. The district court later sentenced Arnold to an aggregate term of 210 months’ imprisonment followed by three years of supervised release, and payment of $12,601 in restitution.

II.

Arnold presents three challenges on appeal. First, he argues that the initial stop violated his Fourth Amendment rights because officers lacked probable cause or reasonable suspicion to make the stop. Second, he argues that the district court erred in overruling his challenge to several of the government’s peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Finally, Arnold maintains that his sentence is substantively unreasonable in comparison with the sentences imposed on his co-defendants.

A. Motion to Suppress

Arnold argues that the stop of the vehicle in which he was a passenger was unlawful because the justification for it rested solely on an anonymous telephone call and there was no indication that the caller was reliable. In an appeal challenging the denial of a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Burston, 806 F.3d 1123, 1126 (8th Cir. 2015) (citation omitted).

To support his contention that the initial vehicle stop was unlawful, Arnold cites Supreme Court cases, Alabama v. White, 496 U.S. 325, 327-29, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) and Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), for the proposition that a stand-alone anonymous tip must possess sufficient indicia of reliability to justify an investigatory stop. It is well settled under Terry that an investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion that the person stopped is involved in criminal activity. Terry v. Ohio, 892 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Wheat, 278 F.3d 722, 726 (8th Cir. 2001). In White and J.L., the Supreme Court applied the reasonable suspicion standard in circumstances where the supporting information known to the officers came from anonymous calls about concealed criminal activity. White, 496 U.S. at 332, 110 S.Ct. 2412 (information from anonymous tip justified the stop where the tip bore adequate indi-cia of reliability); J.L., 529 U.S. at 271, 120 S.Ct. 1375 (information from anonymous tip did not create reasonable suspicion where the caller provided no information from which the police could form a basis for believing that the tipster had knowledge of any criminal activity).

Arnold’s argument misapprehends the correct standard to be applied in this case. Specifically, in certain circumstances, the Supreme Court has upheld brief, suspi-cionless seizures, such as roadblocks. See Illinois v. Lidster, 540 U.S. 419, 424, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (“[Special law enforcement concerns will sometimes justify highway stops without individualized suspicion.”). For the reasons discussed below, the constitutionality of the roadblock turns on reasonableness, not individualized suspicion. Thus, the question is whether the roadblock was reasonable under the Fourth Amendment when at the time of the stop, police did not have individualized suspicion for the car in which Arnold was a passenger.

In denying Arnold’s motion to suppress, the district court adopted the Tenth Circuit’s analysis of a roadblock in United States v. Paetsch, 782 F.3d 1162 (10th Cir. 2015), after concluding that the cases were substantially similar. We also adopt Paetsch’s reasoning. In Paetsch, the defendant robbed a bank and was given money that contained a tracking device. 782 F.3d at 1165-66. The tracking device allowed police to locate Paetsch within approximately a 60 foot diameter. Id. at 1166. Within about 15 minutes of the armed bank robbery’s occurrence, officers had created a roadblock designed to stop the vehicle containing the tracking device. Id. As a result of the roadblock, officers stopped a total of twenty cars containing twenty-nine people. Id. Paetsch’s car was among the cars stopped. Id. at 1167. After some difficulty in isolating the tracker’s signal, the officers eventually identified Paetsch’s car as containing the stolen money. Id. The Tenth Circuit affirmed the denial of Paetsch’s motion to suppress in which he argued, inter alia, that the initial stop violated his Fourth Amendment rights. Id. at 1168.

Ultimately, the Tenth Circuit concluded that the roadblock was constitutional at its inception because it was “ ‘appropriately tailored’ to catch a fleeing, armed bank robber.” Id. The Tenth Circuit further concluded that “the gravity of the public concern in apprehending the armed bank robber and the likelihood of advancing the public interest justified the intrusion on individual liberty — at least until police developed individualized reasonable suspicion of Paetsch.” Id. In finding that the roadblock was permissible, the Tenth Circuit recognized that police lacked reasonable suspicion for any particular person stopped by the roadblock. Id. at 1169. The Tenth Circuit reasoned, however, that “the touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Id. (quoting Samson v. California, 547 U.S. 843, 855 n.4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)). The Tenth Circuit then engaged in a thorough discussion of precedent in Fourth Amendment seizure cases, specifically group seizures without individualized reasonable suspicion, such as roadblocks and checkpoints. Id. at 1169-70. In accordance with this precedent, the Tenth Circuit applied the balancing test announced in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), weighing the public interests against intrusions on individuals’ liberty. Paetsch, 782 F.3d at 1169.

In determining whether the roadblock was reasonable, we must balance the following factors as set out in Brown: (1) the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest; and, (3) the severity of the interference with individual liberty. 443 U.S. at 51, 99 S.Ct. 2637; see also Brouhard v. Lee, 125 F.3d 656, 659 (8th Cir. 1997) (noting in the context of a civil rights action that highway checkpoints are reasonable under the Fourth Amendment if they maintained a proper balance between the Brown factors). A central concern in this balancing test is to guard individual liberties against “arbitrary invasions at the unfettered discretion” of law enforcement authorities. Id. (citing Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Accordingly, the Supreme Court has upheld certain types of brief roadblocks without individualized suspicion where the public interests advanced by the seizure outweighed the Fourth Amendment interests of the individual seized. Compare Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding sobriety checkpoint program to combat drunk driving), and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (upholding Border Patrol checkpoint to intercept illegal immigrants), with Brignoni-Ponce, 422 U.S. at 882-84, 95 S.Ct. 2574 (random Border Patrol roving-patrol stop to intercept illegal immigrants was impermissible), Prouse, 440 U.S. at 659-63, 99 S.Ct. 1391 (random spot checks to verify motorist’s driver’s license and registration without reasonable suspicion was impermissible), and City of Indianapolis v. Edmond, 531 U.S. 32, 47-48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (suspicionless stop at highway checkpoint was unreasonable where its primary purpose was indistinguishable from a general interest in crime control).

1. The Gravity of the Public Concerns Served by the Seizure

As the district court found, here, officers had reliable information implicating Johnson in two armed bank robberies and indicating that he was likely fleeing from the second armed bank robbery. These circumstances clearly represent a substantial public interest. See Paetsch, 782 F.3d at 1170-71 (citing United States v. Abbott, 265 Fed.Appx. 307, 309 (5th Cir. 2008) (per curiam) (“The public concern of apprehending armed bank robbers was substantial.”) (other citation omitted)).

2. The Degree to Which the Seizure Advanced the Public Interest

We next analyze the degree to which the seizure advanced the public interest by assessing the effectiveness of the roadblock in achieving the goal of apprehending an armed bank robber. Specifically, we consider what percentage of the total seizures uncovered criminal activity. The hit rate in Paetseh was 5 percent because the twenty cars were detained included one bank robber. 782 F.3d at 1171. In this case, only two ears were stopped and all three of the occupants were determined to have been involved in the armed robbery, representing a 100 percent hit rate, far in excess of the other roadblocks upheld by the Supreme Court as noted in Paetsch. See, e.g., Sitz, 496 U.S. at 454-55, 110 S.Ct. 2481 (upholding sobriety checkpoint with 1.6 percent hit rate, or arrest of two drunk drivers out of 126 vehicles stopped); Martinez-Fuerte, 428 U.S. at 554, 96 S.Ct. 3074 (upholding border checkpoint where illegal aliens were found in 0.12 percent of the vehicles stopped by the checkpoint).

In addition to the hit rate, the roadblock’s effectiveness is proven by the outcome in that three bank robbery suspects were taken into ' custody. This case is thereby distinguishable from programmatic checkpoints where each “hit” only incrementally advances the public interest served by the seizure. See Paetsch, 782 F.3d at 1171. Moreover, officers knew the roadblock would be effective because they knew the description of the vehicle that Johnson was driving and knew the route he was likely to be traveling to return to the city in which he was living. See id.; Edmond, 531 U.S. at 44, 121 S.Ct. 447 (an emergency roadblock without particularized suspicion must only be used where a criminal is “likely, to flee by way of a particular route”). We also note that officers were not required to employ a less intrusive means to apprehend Johnson rather than employ the roadblock. Paetsch, 782 F.3d at 1172; see Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (the Fourth Amendment does not require police to use the least intrusive means to apprehend the offender). Under these circumstances, the roadblock significantly advanced the public interest.

3. The Severity of the Interference with Individual Liberty

We next must weigh the first two Brown factors against the third factor, the severity of the interference with individual liberty. Paetsch, 782 F.3d at 1172. Upon examining the circumstances in this case, we conclude that the public interests advanced by the roadblock far outweighed Arnold’s individual Fourth Amendment interests. As identified in Paetsch, there are three important considerations. First, the Fourth- Amendment affords police more latitude, and in turn, affords individuals less protection, with respect to cars as compared with dwellings. Id. Second, whether officers took “reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy.” Id. (quoting Illinois v. McArthur, 531 U.S. 326, 332, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)). Third, whether “the duration of the seizure was no longer than reasonably necessary for the police, acting with diligence, to identify the perpetrator.” Id. (internal quotation marks omitted).

As found by the district court, the roadblock was appropriately tailored to stop the vehicle that Johnson was believed to be driving. At the time of the stop, officers had individualized suspicion that implicated Johnson in two armed bank robberies and that he was fleeing from the second robbery. As it happened, Johnson was following the car in which Arnold was a passenger. Although Arnold’s vehicle was not known to be involved in the robbery at the time of the roadblock, officers had reliable information that the bank robber was among the two cars that were stopped. Within five or six minutes of being detained, officers took Arnold into custody based on Johnson’s indication that Arnold’s vehicle was involved, having previously developed him as a suspect in the Iberia Bank robbery, and the knowledge that he had an outstanding warrant for his arrest. Consequently, the officers’ employment of the roadblock was reasonable. The district court properly denied Arnold’s motion to suppress.

B. Batson Challenges

The second issue Arnold raises on appeal is the district court’s denial of his Batson challenges to the government’s peremptory strike of two potential jurors. Because the district court’s ruling on objections to peremptory strikes largely turns on findings of fact, including the weighing of credibility, we review the district court’s decision for clear error. United States v. Ellison, 616 F.3d 829, 832 (8th Cir. 2010) (citing Batson, 476 U.S. at 98 n.21, 106 S.Ct. 1712, and United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)).

The Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges to strike potential jurors solely based on race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. Upon a prima facie showing that a peremptory challenge is racially motivated, the proponent must show a race-neutral explanation to overcome the objection. Ellison, 616 F.3d at 832. “Once the striking party provides a race-neutral explanation for the strike, the objecting party may come forward with a reason or reasons why the proffered explanation is really a pretext for discrimination.” United States v. Maxwell, 473 F.3d 868, 871 (8th Cir. 2007) (citation omitted). The district court then determines whether the objecting party has met its burden to show purposeful discrimination. Ellison, 616 F.3d at 832.

During voir dire, defense counsel posed the following questions to the members of the venire:

Do you believe that the police can make mistakes investigating a crime? You’ve heard of that to happen sometimes? Do you believe the Little Rock Police Department could make mistakes investigating a crime? That the Pine Bluff police could make the same mistakes, or make mistakes? And even the FBI? Okay. We’re all human. We would agree that anybody who is human is capable of making some kind of mistake. Is that correct?

Subsequently, the government exercised its peremptory strikes on three potential jurors who were females and who appeared to be African American. Arnold, who is African American, lodged objections to the strikes, arguing that the government struck these potential jurors based on improper racial considerations in violation of Batson. On appeal, Arnold now challenges the district court’s denial of two of the three peremptory strikes of potential jurors: Ms. B and Ms. F.

Upon Arnold asserting his Batson challenges at trial, the government first pointed out that “there were a number of African American members of the jury that we did not strike.” The government then offered two race-neutral explanations for striking Ms. B: (1) she previously served on a hung jury, and (2) she was “very animated” when defense counsel posed the questions stated above. Regarding Ms. F, the government stated that: (1) she is currently on a “committee that serves to adjudicate issues,” and (2) she, too, was “very agreeable” in response to defense counsel’s questions. Based on the decision-making involved, the government likened Ms. F serving on this committee to being an attorney. The government explained that while there were no attorneys or lawyers on the venire, this was “the closest thing you can get” to one. The government added that “[w]e struck everyone, to my knowledge, that my notes say that served on a hung jury.” The district court denied the Batson challenges, finding that these explanations were “legitimate, nondiserimi-natory reasons” and that according to the court’s notes, there were five other “African Americans who the government did not strike.”

Arnold contends that the real reason for moving to strike Ms. B and Ms. F was that they exhibited strong agreement with the suggestion that police could be wrong. Arnold appears to assert that, by itself, this explanation is illegitimate and discriminatory because distrust of police officers is prevalent among African Americans. Reviewing the voir dire record, we conclude that the district court did not clearly err in denying Arnold’s Batson challenges with respect to Ms. B and Ms. F. Based on their “very animated” or “very agreeable” response to defense counsel’s questions, concern about their potential bias or dissatisfaction with law enforcement by itself was a legitimate reason for the government to strike the two jurors. See United States v. Crawford, 413 F.3d 873, 875 (8th Cir. 2005) (per curiam) (“A juror’s bias or dissatisfaction with law enforcement is a race-neutral reason for striking the juror.”) (citing Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997), and United States v. Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997)); United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009); see also United States v. Swinney, 970 F.2d 494, 496 (8th Cir. 1992) (the government may use “intuitive guesses about jurors’ attitudes” toward the government, relying on jurors’ statements during voir dire as well as general demeanor).

Arnold next argues that the government made no indication that any of the Caucasian members of the jury panel believed police could be wrong. To the extent Arnold attempts to raise that there may have been similarly situated Caucasian jurors who were not struck by the government, Arnold did not raise the issue below. Therefore, “we will not consider claims of pretext based upon the failure to strike similarly situated jurors unless the point was raised in the district court.” United States v. Allen, 644 F.3d 748, 753 (8th Cir. 2011) (quoting United States v. Walley, 567 F.3d 354, 358 (8th Cir. 2009)); United States v. Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (“a ‘similarly situated’ argument is untimely and cannot be made if it is raised for the first time on appeal rather than at the trial level”).

Accordingly, Arnold fails to show pretext for race discrimination, and we affirm the district court’s denial of Arnold’s Bat-son challenges.

C. Sentencing

Arnold’s final argument challenges the substantive reasonableness of his sentence based on his assertion that it is unreasonably long in relation to his co-defendants. Arnold’s sentence included 210 months’ imprisonment, while co-deféndants, Piggee and Johnson, were each sentenced to a term of 30 months.

“We review a district court’s sentence in two steps: first, we review for significant procedural error; and second, if there is no significant procedural error, we review for substantive reasonableness.” United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Because Arnold makes no argument that the district court committed any procedural error, we move directly to the second step. United States v. Maxwell, 664 F.3d 240, 245 (8th Cir. 2011) (citing O’Connor, 567 F.3d at 397. We review the substantive reasonableness of a sentence under the abuse-of-discretion standard. Id. at 244-45 (citations omitted)). “[I]t is not an abuse of discretion for a district court to impose a sentence that results in a disparity between co-defendants when there are legitimate distinctions between the co-defendants.” United States v. Rojas-Olivera, 564 Fed.Appx. 249, 250 (8th Cir. 2014) (citations and internal quotations omitted).

Arnold argues that his sentence was excessive in light of the disparity factor of 18 U.S.C. § 3553(a)(6) in that it created -“unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Arnold submits that any sentence of more than three times his co-defendant’s sentence, or 93 months’ incarceration, is substantively unreasonable. We find no abuse of discretion. See United States v. Plaza, 471 F.3d 876, 880 (8th Cir. 2006) (holding that when a defendant is not similarly situated to his co-defendant, the district court does not need to impose sentences of the same length to avoid an unwarranted sentencing disparity).

We conclude that there are legitimate distinctions to support his longer sentence. At sentencing, the district court stated that it considered the need to avoid a sentencing disparity. The record shows that the district court considered the defendants’ relative ages, as well as Arnold’s culpability and extensive criminal history. Specifically, the district court stated that not only did Arnold, who is 30 years old, persuade “these two boys” — ages 18 and 19 — to commit the three bank robberies, but he “furnished them a gun, gave them instructions, sent them into the banks, told them what to do, and then they provided [Arnold] the money afterwards.” The district court further noted the following as to Arnold’s culpability:

[I]n my mind, the circumstances of it are worse for Mr. Arnold than if he had gone in by himself, because he sent these 18, 19-year-old boys in to do it, without any control over what was going to happen when they got in there. And he put them at risk rather than himself, and he put other people at risk, because there’s no telling what these kids would do with the guns that he furnished for them. And so in my mind, this is actually worse than if he’d gone in by himself, where he had the gun and was in control.

In addition, Piggee and Johnson pleaded guilty and testified at Arnold’s trial. See United States v. Chaika, 695 F.3d 741, 746 (8th Cir. 2012) (“A defendant’s cooperation with the government is a legitimate basis for sentencing disparity.”). Despite Arnold’s contention that he should be sentenced for no longer than 93 months, the district court’s imposition of 210 months was at the low end of the applicable guideline range. United States v. Paulino-Duarte, 670 F.3d 842, 844 (8th Cir. 2012) (we presume that a sentence imposed within the advisory guideline range is reasonable). In view of Arnold’s offense conduct and history, we hold that the district court’s sentence of 210 months’ incarceration was not unreasonable.

III.

For these reasons, we affirm the district court.

      . The Honorable J. Leon Holmes, United States District Judge for the Eastern District of Arkansas.

      .Upon Arnold’s motion, this Court ordered that the case be submitted on the briefs without oral argument.

      . At the police station, Detective Mauldin discovered that the female driver concealed $645 in her bra and also found $2,650 in the toilet after the female driver had exited the restroom.

      . In Arnold’s motion to suppress, he stated that the government’s theory of the case is that Arnold gave money from the robbery to the female driver and asked her to hide it on her person. Arnold argues that based on this theory, the cash found on, or believed to have been on the female driver should be suppressed.

      . As a threshold issue, Defendant correctly points out that he may challenge the constitutionality of the May 15, 2014 vehicle stop as a mere passenger. Brendlin v. California, 551 U.S. 249, 255-57, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (holding that a passenger is seized during a traffic stop and may therefore challenge the stop itself).

      . On March 18, 2016, appellee moved to supplement the record with the sentencing transcripts for Piggee and Johnson. Because we find Arnold’s challenge to his sentence unavailing, we deny the motion as moot.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joshua GREEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Dennis Hayes, Defendant-Appellant.
    No. 15-1734, No. 15-1737
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 14, 2016
    Filed: August 31, 2016

      Counsel who presented argument on behalf of the appellants were John Wesley Hall, Jr., Richard Lane Hughes, of Little Rock, AR.
    Counsel who presented argument on behalf of the appellee was Anne E. Gardner, AUSA, of Little Rock, AR. The following attorney(s) appeared on the appellee brief; Stephanie Mazzanti, AUSA, of Little Rock, AR.
    Before SMITH, GRUENDER, Circuit Judges, and KETCHMARK, District Judge.

      . The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri, sitting by designation.

   KETCHMARK, District Judge.

After a joint trial, Appellants Joshua Green and John Dennis Hayes were convicted of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. Hays and Green were also convicted of possessing, brandishing, and discharging a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Additionally, Hayes was convicted of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Green and Hayes raise four points in their joint brief. First, Green and Hayes argue that the evidence was insufficient as a matter of law to support the conviction for methamphetamine conspiracy. Second, Hayes argues that the evidence was insufficient as a matter of law to support his conviction for being a felon in possession of a firearm. Third, Green and Hayes contend that the district court erred in denying their motion to suppress and in not excluding all evidence obtained through a search as a sanction for late disclosure by the government. Fourth, Green and Hayes argue that the district court erred in refusing to give the jury an instruction on the defense of justification in connection with the shooting. For the reasons set forth below, we affirm.

I.

On January 30, 2012, Krystal Journigan, Jason Harcourt, and Jamar Williams drove from Little Rock, Arkansas, to Hayes’ residence in Alexander, Arkansas. Harcourt had been purchasing methamphetamine from Hayes through Journigan and another woman. That day, Harcourt intended to purchase a pound of methamphetamine directly from Hayes and “eliminate the females out of the middle of it.” Hayes would not agree to meet Harcourt, so Journigan agreed to be the “middleman” one more time. Journigan drove alone to Hayes’ residence and parked in the driveway. Harc-ourt and Williams remained parked in Williams’ truck some distance down the road from Hayes’ residence. Upon arriving at Hayes’ residence, Journigan met Hayes and entered. Journigan tried to get Hayes to talk to Harcourt on the phone, but Hayes refused. Harcourt became angry and walked toward the residence. •

While Journigan was in Hayes’ residence, she saw Joshua Green and Cammi Lewis arrive, with Green carrying a plastic bag. Journigan walked with Hayes and Green to a back bathroom, where Journi-gan saw that the bag contained four bundles of methamphetamine, which she presumed were quarter-pound packages.

Journigan and Hayes remained in the bathroom, and Green went to the kitchen/living room area. Hearing a commotion, Journigan and Hayes left the bathroom. Outside of the residence, Harcourt, wearing a black curly wig, and Williams were asking about buying a car that was parked adjacent to the residence. Green told them the car was not for sale and to leave, which they did.

Suspicious of the pair outside, back inside the residence, Hayes and Green each brandished a firearm and told Journigan to sit down and not leave. Journigan complied but later went to the bathroom and called Harcourt to alert him that she was being held at gunpoint. Journigan then left the residence, telling Hayes and Green she was “leaving regardless.” Hayes followed Journigan as she remained on the phone and left the residence. Journigan handed the phone to Hayes to speak with Harc-ourt. Hayes and Harcourt argued over the phone while Hayes stood with Journigan at her vehicle.

While Hayes and Green held Journigan at gunpoint, Harcourt had returned to Williams’ truck and dropped off the black curly wig. Harcourt and Williams then walked back towards Hayes’ residence. A woman waiting to pick up her child at a bus stop saw Harcourt and Williams walking up the street. She saw Harcourt talking on a cellular phone and heard Harc-ourt say that he was coming to get his money or his drugs and that he had a gun. Harcourt continued to argue with Hayes over the phone as he turned the corner onto Hayes’ street. Harcourt saw Hayes standing with Journigan and noted that Hayes had a firearm in his hand that was resting by his side. Harcourt had a Glock .45 firearm behind his right hip.

Harcourt and Hayes scuffled by Journi-gan’s vehicle. At some point, Hayes’ gun fired, shooting off a portion of his finger. Also at that time, Green appeared on the porch of Hayes’ residence and began firing a Ruger 9mm. Williams also appeared at the scene and began to fire at Hayes’ residence. Hayes and Harcourt fell to the ground near the cars parked in the street. Williams ran from the scene with his gun. Harcourt was shot in the wrist and forearm.

When shots were fired, Journigan ducked down in her car, turned over the ignition, and started to back out. Green shot her rear, driver’s side tire. Green had walked down to where Hayes was, and Journigan saw one or both of them standing over Harcourt, shooting him. Journi-gan drove off. Harcourt had multiple gunshot wounds and retreated behind a fence several yards away.

Green helped Hayes into Green’s vehicle. Green gathered the firearms at the scene and placed them in his vehicle. Green and Lewis drove Hayes to the hospital and dropped him off. Green returned to Lewis’ residence, driving near Hayes’ residence, where Saline County Sheriff’s Office and the Alexander Police had responded.

Upon execution of a search warrant inside Hayes’ residence, a detective found an empty Ruger firearm box, an empty Federal Cartridge ammunition box, and a 9mm Federal Cartridge round on the kitchen counter.

Another officer responded to the hospital where Hayes was having his finger treated. Hayes’ personal belongings were seized as evidence of the shooting. In a pocket of his pants was a Wal-Mart receipt for the purchase of 9mm Federal Cartridge ammunition dated January 30, 2012, at 1:09 p.m. Hayes told police that “Josh” was involved in the shooting but that he did not know his last name.

On February 2, 2012, law enforcement arrested Green for his 'role in the shooting at Hayes’ residence on January 30, 2012. Green gave a recorded statement. Despite initial denials, Green admitted that he fired the Ruger 9mm and that he took guns from the scene. Green told officers that the firearms were at his residence and agreed to turn them over to police. During, a consent search of Green’s home, officers recovered from an air vent a black computer bag containing four firearms, one of which was the Ruger 9mm used in the shootout on January 30, 2012. The air vent also contained a blue backpack and a black computer bag that had wheels. Within these bags were items identifying Green as the owner of the bags, as well as scales, pipes, baggies, and approximately seven grams of methamphetamine. The bags also contained cellular phones and a laptop computer. The Saline County Sheriffs office seized these items and placed them into secure storage.

Also on February 2, 2012, law enforcement located Green’s blue Trailblazer in the carport at Lewis’ residence. During a search of the vehicle, police located a Federal Cartridge ammunition box and fifty rounds of Federal Cartridge ammunition. During a search of Lewis’ residence, officers found Green’s clothing with .45 caliber bullets and a .380 bullet lying on top.

On September 11, 2013, Green and Hayes were charged with conspiracy and firearms violations. In May of 2014, prosecutors learned that the cellular phones and the computer found in Green’s air vent had not been searched. On May 14, 2014, the government obtained a search warrant based on probable cause obtained at the time of their seizure in 2012 and produced the evidence approximately a week before trial. The trial began May 27, 2014.

A search of the electronic devices resulted in photographic evidence from two of the phones and the computer, as well as text messages from one of the phones. The district court denied a motion to suppress evidence from that search on Fourth Amendment grounds. However, the district court excluded from trial inculpatory evidence obtained from the electronic devices based on late disclosure as a discovery sanction under Federal Rule of Criminal Procedure 16. Evidence excluded from trial included photographs of drug paraphernalia from a phone, the “contacts list” from a phone, a photograph from the computer showing 31.8 grams of methamphetamine on a scale, and several photographs of marijuana from the computer. Evidence admitted from the search included the two phones, three photographs of Green from one of the phones to show ownership of the phones, and a series of redacted text messages from one of the phones that was admitted under Federal Rule of Evidence 404(b).

II.

In their first point, Green and Hayes challenge the sufficiency of the evidence supporting their conviction for conspiracy to possess with intent to distribute methamphetamine. Specifically, Green and Hayes contend that the jury’s failure to make a finding on their special verdict form that the conspiracy included fifty or more grams of methamphetamine means that the jury must have convicted Green and Hayes based solely on the seven grams of methamphetamine found at Green’s home, but that there was no evidence at trial connecting that methamphetamine to charged conspiracy. Additionally, they argue that there was a complete withdrawal by everybody allegedly involved in that conspiracy through the shootout three days before the seven grams were found at Green’s house. According to Green and Hayes, because that methamphetamine was found after the shootout, the evidence was insufficient as a matter of law to establish their involvement in a conspiracy before the shootout. We disagree, and affirm their conspiracy convictions.

“When reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict rendered and accept all reasonable inferences which tend to support the jury verdict.” United States v. White, 816 F.3d 976, 985 (8th Cir. 2016) (citation omitted). “Although the evidence need not preclude every outcome other than guilty, we consider whether it would be sufficient to convince a reasonable jury beyond a reasonable doubt.” Id. We will reverse for insufficient evidence only if no reasonable jury could have found the appellants guilty beyond a reasonable doubt. Id.

To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: “(1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Sanchez, 789 F.3d 827, 834 (8th Cir. 2015) (citation omitted). “An agreement to join a conspiracy need not be explicit but may be inferred from the facts and circumstances of the case.” Id. “A defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspiracy.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (citation omitted).

As an initial matter, Green and Hayes are mistaken in their assertion that any specific finding regarding which methamphetamine was part of the conspiracy must be read from the jury’s special verdict form. As noted above, Green and Hayes were charged with conspiring to possess with intent to distribute at least fifty grams but less than 500 grams of methamphetamine. In its special verdict form, the jury determined that the amount was less than fifty grams. Green and Hayes speculate that because the amount listed on the special verdict form is less than fifty grams, the amount must have been the amount found at Green’s residence after the two had withdrawn from the conspiracy. No such inference is required, let alone suggested, by the jury’s verdict. Rather, the evidence at trial — including (1) evidence regarding a conspiracy to distribute methamphetamine prior to January 30, 2012; (2) evidence of the failed transaction that day, such as testimony that Green brought methamphetamine into Hayes’ home to sell; and (3) evidence found at Green’s home that is highly corroborative of methamphetamine trafficking — was more than sufficient for a rational jury to conclude that Hayes and Green conspired together, and with others, to distribute methamphetamine.

To that end, Green and Hayes cite no authority indicating that a special verdict in a case like this can render the evidence of the conspiracy insufficient to support the convictions.-The special verdict here applies only in determining the statutory minimum and maximum for the offense of conviction. See United States v. Rolon-Ramos, 502 F.3d 750, 754-55 (8th Cir. 2007) (“drug quantity is not an essential element of a conspiracy offense”). Here, that the jury found beyond a reasonable doubt an amount less than what the government charged does not impact the sufficiency of the evidence supporting the conviction. See id.

As to the appellants’ related argument that they had withdrawn from the conspiracy through the shootout, we have held that “[i]t is not easy to withdraw from a criminal conspiracy.” United States v. Zimmer, 299 F.3d 710, 718 (8th Cir. 2002) (citation omitted). To withdraw from a conspiracy, a defendant must do more than demonstrate that he or she undertook no conspiratorial activity after the cut-off date. Id. (citations omitted). Rather, a defendant must demonstrate that he or she .took affirmative action to withdraw from the conspiracy by making a clean breast to the authorities or by communicating withdrawal in a manner reasonably calculated to reach coconspirators. Id. To make a clean breast of a conspiracy, the conspirator must sever all ties to the conspiracy and its fruits, and act affirmatively to defeat the conspiracy by confessing to and cooperating with the authorities. Id. “Simply ceasing to be an active participant in the conduct of the conspiracy alone is not enough to establish a withdrawal from the conspiracy.” United States v. Shepard, 462 F.3d 847, 869 (8th Cir. 2006) (citation omitted).

Again, Green and Hayes do not appear to contest that any of the three elements were proven beyond a reasonable doubt. Rather, they contend that the shootout communicated withdrawal and an end to the conspiracy. But withdrawal does not negate an element of the conspiracy crime in this case. See Smith v. United States, — U.S.-, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013). “Far from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense.” Id. Because conspiracy is a continuing offense, “a defendant who has joined a conspiracy continues to violate the law through every moment of the conspiracy’s existence, and he becomes responsible for the acts of his co-conspirators in pursuit of their common plot.” Id. (citations and quotation marks omitted). “Withdrawal terminates the defendant’s liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy.” Id. The burden of establishing withdrawal rests upon the defendant. Id. at 720-21.

Here, neither Green nor Hayes appears to have submitted a jury instruction as to withdrawal, even though it was their burden to establish the defense. Id. Even without such a jury instruction, the jury was free to disbelieve that there was withdrawal as of the shooting. Specifically, the jury was free to disbelieve there was withdrawal from the conspiracy between Hayes and Green as they continued to further their crime through concealment, namely, Green providing Hayes at least one firearm used in furtherance of their conspiracy or Green removing the firearms from Hayes’ residence, which the jury could infer meant was for the purpose of hiding or disposing those firearms. The jury was additionally free to disbelieve Green’s testimony that the amount of methamphetamine found in his residence was for personal use. Rather, the jury was free to find that the methamphetamine was tied to the conspiracy, particularly as it was co-mingled with other evidence of narcotic trafficking, including multiple guns, multiple cellular phones, baggies, and scales. Finally, even assuming that all co-conspirators had withdrawn as of January 30, 2012 (an assumption we reject), the fact that this evidence was not recovered until two days later is simply inconsequential, as the jury could readily infer that it related back to the just-ended conspiracy.

III.

In the second point on appeal, Hayes challenges the sufficiency of the evidence supporting his conviction for felon in possession of a firearm, here, a Ruger 9mm. As noted above, in our review for sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we will reverse for insufficient evidence only if no reasonable jury could have found the appellants guilty beyond a reasonable doubt. White, 816 F.3d at 985.

To convict Hayes of being a felon in possession of a firearm under 18 U.S.C. § 922(g), the government had to prove: “(1) that [Hayes] had a previous conviction for a crime punishable by imprisonment exceeding one year, (2) that he knowingly possessed the firearms and ammunition, and (3) that the firearms and ammunition traveled in or affected interstate commerce.” Id. Hayes does not challenge the first and third elements; rather, he argues only that the evidence is not sufficient to show that he knowingly possessed the Ruger 9mm.

“A defendant knowingly possesses a firearm if he has actual or constructive possession of it, and the possession can be sole or joint.” United States v. Wells, 469 F.3d 716, 719 (8th Cir. 2006) (citation omitted). “Constructive possession of the firearm is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself.” Id.

Here, the record contains ample evidence from which a jury could conclude beyond a reasonable doubt that Hayes constructively possessed the Ruger 9mm firearm used during the shootout. When Hayes was arrested at the hospital, police confiscated the contents of his pockets, which included a Wal-Mart receipt for 9mm ammunition. Green testified that the Ruger 9mm was his and that he brought it inside Hayes’ residence that day for protection. An officer located the empty Rug-er 9mm firearm box and Federal Cartridge 9mm bullet box in plain view on the island between the kitchen and dining area of Hayes’ residence the day after the shooting. Journigan testified that Hayes and Green “pulled their guns” and together held her at gunpoint. Under these facts, a reasonable jury could find that Hayes had dominion and control over the contents of his home, including the Ruger 9mm. See Wells, 469 F.3d at 720.

rv.

In the third point on appeal, Green and Hayes contend that the district court erred in denying their motion to suppress evidence obtained from the delayed search of phones and a computer. Green asserts a Fourth Amendment violation because of the government’s continued possession of cellular phones and a computer, and Green and Hayes assert a violation of discovery rules.

As to Green’s argument that the district court erred in denying his motion to suppress evidence based on Fourth Amendment law, “we review the district court’s findings of fact for clear error and the ultimate question of whether the Fourth Amendment was violated de novo.” United States v. Allen, 705 F.3d 367, 369 (8th Cir. 2013) (citation omitted).

Green asserts that the government’s continued possession of various cellular phones and a computer that were included within evidence taken from his residence pursuant to a consent search on February 2, 2012, violated the Fourth Amendment. Specifically, Green contends that the government’s retention of the cellular phones and the computer for more than two years was without justification, warranting application of the exclusionary rule. The government responds that the cellular phones and computer were in its possession through Green’s consent such that no pos-sessory interest was infringed and that Green never sought return of the property.

Even assuming that the appellants are correct that the delay in securing a search warrant was a Fourth Amendment violation, admission of evidence from the cellular phones was harmless beyond a reasonable doubt. See Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (evidence admitted in violation of the Fourth Amendment is subject to review for harmless error). “An error is harmless if we conclude that no substantial rights were affected and that the error did not influence or had only a very slight influence on the verdict.” United States v. Tenerelli, 614 F.3d 764, 769 (8th Cir. 2010) (citation omitted); see also Fed. R. Crim. P. 52(a). Here, the government introduced evidence independent of that introduced pursuant to the May 14, 2014 search that supports the jury’s verdict. See United States v. Briley, 319 F.3d 360, 365 (8th Cir. 2003). As detailed above, completely independent of the photographs and the text messages, there was (1) sufficient evidence to convict Green and Hayes of conspiracy to possess with intent to distribute methamphetamine, and (2) sufficient evidence to convict Hayes of being a convicted felon in possession of a firearm. We conclude that any error in admitting evidence uncovered in the search pursuant to the May 14, 2014 warrant was harmless beyond a reasonable doubt as to those convictions.

As to the third conviction, possessing, brandishing, and discharging a firearm in furtherance of a drug trafficking crime, we also find that the government introduced sufficient evidence independent of that introduced pursuant to the May 14, 2014 search such that any error in the admission of that evidence was harmless beyond a reasonable doubt. To establish that the defendants violated § 924(c) as charged in this case, the government must prove that (1) the defendants' committed a drug trafficking crime; and (2) the defendants possessed, brandished or discharged a firearm in furtherance of that crime. United States v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010). With regard to the first element, and as shown above, there was sufficient evidence — without evidence from the contested search — to.support the jury’s finding that both appellants engaged in a conspiracy to distribute methamphetamine, which is a drug trafficking crime under § 924(c). See Rolon-Ramos, 502 F.3d at 757.

With regard to the “in furtherance of’ element of § 924(c), “the government must present evidence from which a reasonable [trier of fact] could find a ‘nexus’ between the defendant’s possession of the charged firearm and the drug crime, such that this possession had the effect of ‘furthering, advancing or helping forward’ the drug crime.” Robinson, 617 F.3d at 988 (alterations in original; citations omitted). As detailed above, there was sufficient evidence that both appellants possessed the Ruger 9mm. See United States v. Conway, 754 F.3d 580, 590 (8th Cir. 2014) (noting that possession may be actual or constructive; it need not be exclusive). There was also sufficient evidence to support the jury’s finding that Hayes brandished a firearm, in particular, the testimony that he brandished a firearm to Journigan inside the house. Likewise, Green’s own admissions, along with the other evidence detailed above, was more than sufficient to support the jury’s finding that he both brandished and discharged the Ruger 9mm. Moreover, all of these acts occurred during a methamphetamine transaction gone bad, which certainly provides a sufficient basis for the jury’s finding of the requisite nexus between this possessing, brandishing, and discharging and the drug trafficking conspiracy. As the evidence at trial was sufficient to support both Green’s and Hayes’ § 924(c) convictions even ignoring the evidence from the contested search, we conclude that any error in admitting evidence uncovered in the search pursuant to the May 14, 2014 warrant was harmless beyond a reasonable doubt.

In this point, Green and Hayes also argue that the district court abused its discretion under Rule 16 in its consideration of the evidence found pursuant to the May 14, 2014 search warrant.

We review for abuse of discretion a district court’s decision regarding the exclusion of evidence as a sanction for governmental discovery violations. If an actual discovery .violation exists, the sanction will be upheld or reversed based on (1) whether the Government acted in bad faith and the reason(s) for delay in production; (2) whether there is any prejudice to the defendant; and (3) whether any lesser sanction is appropriate to secure future Government compliance.

United States v. Polk, 715 F.3d 238, 249 (8th Cir. 2013). (internal citations and quotation marks omitted).

During a pre-trial hearing, the government conceded that the delayed search of the computer and phones was its error and that when prosecutors discovered that-the searches had not been done, the government obtained search warrants and disclosed the contents of the search as soon as possible. Because of late disclosures, the district court excluded multiple pieces of evidence. The record indicates that the district court’s review of the time-line and its treatment of the evidence was measured and considered. Notably, the district court found no bad faith and allowed in only limited evidence from that-late search. Additionally, the record reflects that following the disclosure, the defense had a week to prepare for this evidence. See Polk, 715 F.3d at 250 (affirming where defense had seven days prior to trial to prepare for trial following disclosure); United States v. Altman, 507 F.3d 678, 680 (8th Cir. 2007) (district court abused its discretion by excluding as untimely disclosed testimony where defense had four days to prepare). Accordingly, we hold that the district court did not abuse its discretion in fashioning its sanctions and allowing in some evidence of what was recovered in the May ,14, 2014 search.

V.

In the fourth point on appeal, Green and Hayes contend that the district court erred in prohibiting them from presenting a justification defense. “We review de novo a district court’s decision whether there is sufficient evidence to submit an affirmative defense to a jury.” United States v. El-Alamin, 574 F.3d 915, 925 (8th Cir. 2000 (citation omitted)). We reject this argument as well.

Although it appears we have not been faced with a challenge regarding the justification defense as it applies to § 924(c), we have previously declined to recognize “a defense of legal justification in violation of § 922(g).” United States v. Cooney, 571 Fed.Appx. 505, 506 (8th Cir. 2014) (citations omitted); see also United States v. Poe, 442 F.3d 1101, 1103 (8th Cir. 2006). In those § 922(g) cases, we have indicated that if such defense were available, we would require proof of the following four elements:

(1) that defendant was under an unlawful and “present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury,” (2) that defendant had not “recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct],” (3) that defendant had no “reasonable, legal alternative to violating the law, ‘a chance both to refuse to do the criminal act and also to avoid the threatened harm,’ ” and (4) “that a direct causal relationship may be reasonably anticipated between the [criminal] action and the avoidance of the [threatened] harm.”

Poe, 442 F.3d at 1104 (citation omitted; alterations in original). “To be entitled to a jury instruction on a justification defense, a defendant must show an underlying evi-dentiary foundation as to each element of the defense, such that a reasonable person could conclude that the evidence supported the defendant’s position.” Id. at 1104 (citations and internal quotation marks omitted).

Relying on Cooney, Green contends that he should have been allowed to raise a justification defense to his charge brought pursuant to § 922(g), and Green and Hayes make the same argument as to their conviction under § 924(c). Even if we were to recognize the defense as applied to either provision, Green and Hayes did not establish, at a minimum, that they did not recklessly or negligently place themselves in a situation where it would be probable that either man would be forced to choose the criminal conduct. As detailed above, there is sufficient evidence indicating that Green and Hayes were part of a dangerous drug conspiracy, and jointly possessed at least one firearm for protection during that conspiracy. Further, neither appellant provided any showing that he had no reasonable, legal alternative to violating the law. Where a defendant could have called the police, as either easily could have done after Harcourt and Williams first left Hayes’ residence, that defendant does not meet this element. See El-Amine, 574 F.3d at 926. Here, Green and Hayes pulled a gun on Journigan when they grew suspicious of Harcourt and Williams outside of the home. Rather than stay inside when the two individuals returned, they exited the residence and engaged in gunfire. This is not choosing unlawful conduct where no lawful conduct is available. This is consciously committing a crime, and the district court did not err in refusing a jury instruction or argument on justification under these facts.

VI.

Accordingly, we affirm the judgment of the district court.

      . The Honorable D. P. Marshall, Jr., United States District Judge for the Eastern District of Arkansas.

      . Green and Hayes also argue in this point that the § 924 firearms counts depend upon the conspiracy count and therefore that if the conspiracy count fails, then the dependent § 924 firearms counts fail as well. Because sufficient evidence supports the conspiracy count, this argument is without merit.

      . This issue often arises on review of a district court’s decision not to submit a jury instruction for withdrawal. See, e.g., United States v. Shepard, 462 F.3d 847, 868-69 (8th Cir. 2006). Green and Hayes do not raise this argument and do not point to any portion of the record indicating the submission of a withdrawal instruction.

      . Hayes concedes that he has no standing under the Fourth Amendment to challenge the search.