author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Frank Russell MCCOY, Defendant-Appellant
    No. 16-1853
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: January 31, 2017

      Counsel who presented argument on behalf of the appellant was Michael Christopher Hager, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Katharine Thornton Buzicky, AUSA, of Minneapolis, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   BENTON, Circuit Judge.

A jury found Frank R. McCoy guilty of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court sentenced him to 121 months’ imprisonment. He appeals the conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

McCoy wrote, posted, and emailed links to stories about the rape, torture, and murder of children. He was convicted of transporting obscene matters, in violation of 18 U.S.C. § 1462, and sentenced to 18 months’ imprisonment and two years’ supervised release. The Eleventh Circuit affirmed the conviction. United States v. McCoy, 602 Fed.Appx. 501 (11th Cir.), cert. denied, — U.S.-, 136 S.Ct. 122, 193 L.Ed.2d 95 (2015). The conditions of release, proposed by McCoy, required random inspections of his internet and email.

By the conditions of release, U.S. Probation Officers Timothy Norgren and Lisa Martinetto inspected McCoy’s house. Officer Martinetto, a specialist in computer-related cases, observed a suspicious amount of computer equipment, including multiple hard drives and at least two custom-built computers. One custom-built An-tee computer had five hard drives, three configured in a Redundant Array of Independent Disks (RAID). According to Officer Martinetto, it is “very unusual for a personal computer user to have a computer with multiple hard drives and especially 'to use a RAID system.” McCoy told Officer Martinetto he had written a program to remove pornography from his computers, offering to let her view them. Due to the large amount of equipment, the officers did not examine the computers. Based on these suspicions, however, Officer Mar-tinetto' received permission from the district court to seize and review any computer equipment in plain sight or voluntarily provided by McCoy.

Officer Martinetto seized the custom-built Antee and three other computers— which contained a total of nine hard drives — and six USB drives. She sent them to a forensic lab for review. McCoy again told Officer Martinetto he used a program to remove pornography from the computers, but added he “might have missed a file.”

Using standard forensic techniques to copy the hard drives, Probation Officer. Todd Garrett found child pornography on an unformatted drive. Agents obtained a warrant for a complete search of the hard drives. James Fottrell, director of the High Technology Investigative Unit of the U.S. Department of Justice Child Exploitation and Obscenity Section, conducted a full forensic analysis of the computers, discovering 88 child pornography videos on the custom-built Antee. The videos had been loaded, after McCoy’s conviction, from the Antee to a handheld RCA media player.

A grand jury indicted McCoy on one count of possessing child pornography. He moved to suppress the evidence seized by Officer Martinetto, arguing it was obtained without consent, probable cause, or a search warrant, and exceeded the scope of his conditions of release. At the suppression hearing, Officer Garrett testified, “There is no one central repository for Internet artifacts on a computer hard drive and the Windows operating system,” and that forensic examiners are unable to ascertain the full scope of Internet activity from web-browser activity alone. He explained it would not have been forensically appropriate for Officer Martinetto to examine the computers onsite because she could not “preserve the state and integrity of the original media.” The district court denied the motion.

At trial, the only issue was whether McCoy knowingly possessed child pornography. Officer Martinetto testified that McCoy lived alone, acknowledged ownership of the computer equipment, and discussed his computer skills and sophistication. Officer Garrett testified he found the videos in a folder on McCoy’s computer titled “My Documents/My Videos/RCA/RCA_1271_0223.” Fottrell testified he found special software for converting child pornography videos to a recognizable RCA media player format. He added that someone transferred them to the RCA player because it was “not something the computer would automatically do.” The government introduced recorded calls McCoy made in prison claiming he had removed “everything” from his computer. At the close of the government’s case, the district court denied a motion for judgment of acquittal. The jury convicted.

At sentencing, the district court applied the ten-year mandatory minimum for recidivist offenders based on McCoy’s conviction for transporting obscene matters in violation of 18 U.S.C. § 1462. The court denied his downward departure motion, sentencing him to 121 months, the bottom of the guidelines range. He appeals the denial of the suppression motion, the sufficiency of the evidence, the application of the mandatory minimum, and the denial of the downward departure motion.

II.

McCoy argues the warrantless search and seizure was unreasonable under the Fourth Amendment. Reviewing a motion to suppress, this court considers factual findings for clear error and legal conclusions de novo. United States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012). This court affirms the denial unless it is “unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011).

McCoy says: “He was not subject to warrantless searches as a condition of release.” To the contrary, the conditions of release say:

[H]e will be subject to random inspections of his computer’s internet and email usage history by the Pre-Trial Services Officer assigned to his case, in order to ensure compliance with the parameters of these conditions.

McCoy’s conditions of release, which he proposed, expressly authorized the search. See Samson v. California, 547 U.S. 843, 846,126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (holding the government may conduct war-rantless, suspicionless searches of parolees).

Also without merit is McCoy’s assertion that the search “went well beyond the conditions of release to inspect not only internet or email, but extensive user files.” As Officer Garrett testified, it is impossible to evaluate Internet activity based solely on web-browser history. Because “[tjhere is no one central repository for Internet artifacts on a computer hard drive and the Windows operating system,” a broader examination was necessary.

The search and seizure were reasonable. “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Determining reasonable suspicion, a probation officer may consider “the detail and consistency of the information suggesting the presence of contraband ... [information provided by the [probationer] which is relevant to whether the [probationer] possesses contraband ... [and] [t]he experience of a staff member with that [probationer] or in a similar circumstance.” Griffin v. Wisconsin, 483 U.S. 868, 878-79, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (internal quotations and citations omitted). Officers had reasonable suspicion to seize and search McCoy’s computer equipment based on his: (1) pri- or criminal history; (2) computer sophistication; (3) unusually large number of electronic storage devices; (4) sophisticated RAID array; and (5) statements about erasing pornography from his computers.

The district court properly denied the motion to suppress.

III.

McCoy asserts insufficiency of the evidence. “This court reviews the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Moran, 612 F.3d 684, 690 (8th Cir. 2010).

The only issue for the jury was whether McCoy knowingly possessed child pornography. Evidence of knowledge included testimony from Officer Garrett and James Fottrell who found child pornography on McCoy’s computer. As Fottrell testified, an individual moved the files from the computer to an RCA player. The government also introduced McCoy’s statements to Officer Martinetto and his recorded prison calls discussing his attempts to erase child pornography from his computers. This evidence indicates knowledge that the computers contained illegal content. See United States v. Hill, 750 F.3d 982, 988 (8th Cir. 2014) (holding a jury could reasonably infer that a defendant’s “intentional attempt to delete child pornography files, such as by placing them in [his] computer’s recycle bin ... suggested] he was aware of the files and their contents”), quoting United States v. Breton, 740 F.3d 1,17 (1st Cir. 2014).

The evidence sufficiently supported the jury’s verdict. The district court properly denied the motion for judgment of acquittal.

IV.

McCoy contends the district court improperly enhanced his sentence based on a prior conviction. This court reviews de novo the use of prior convictions for sentencing enhancements. United States v. Lockwood, 446 F.3d 825, 827 (8th Cir. 2006).

Recidivist offenders are subject to enhanced penalties under 18 U.S.C. § 2252(b)(2). In 2013, McCoy was convicted of transporting obscene matters in violation of 18 U.S.C. § 1462. This conviction — an enumerated federal offense in Title 18, Chapter 71 — triggers the enhanced penalty. As the district court explained:

The bottom line is that Mr. McCoy was convicted of an offense under Chapter 71, and his conviction was affirmed by the Eleventh Circuit. I therefore am required to follow the statute and apply the mandatory minimum.

McCoy argues the sentencing enhancement is unconstitutional as applied because his Chapter 71 conviction was non-obseene, non-assaultive, and protected by the First Amendment. This argument is without merit. As the Eleventh Circuit held in rejecting his argument that the First Amendment protected his stories:

Based on our independent review of McCoy’s stories, we conclude that they lack serious literary, artistic, political, or scientific value. The stories graphically describe sexual acts, incestuous relationships, molestation, masturbation, sexual abuse, rape, intercourse, violent acts, and arguably the torture and/or murder of very young children. The stories contain tenuous plots at best. Simply put, the stories are precisely the type of “ ‘hard core’ pornography” that the Supreme Court has made clear is unprotected under the First Amendment.

McCoy, 602 Fed.Appx. at 505, citing Miller v. California, 413 U.S. 15, 29, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The conviction is related to sexual assault and child pornography.

The district court did not err in applying the enhancement required by section 2252(b)(2).

V.

McCoy believes the district court erred in denying his downward departure motion based on his prostate cancer. “Under the advisory guidelines, [this court] generally will not review the district court’s refusal to grant a downward departure ‘unless the district court had an unconstitutional motive or erroneously thought that it was without authority to grant the departure.’ ” United States v. Varner, 678 F.3d 653, 658 (8th Cir. 2012), quoting United States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010).

“Guideline § 5H1.4 permits a downward departure based on a defendant’s ‘extraordinary physical impairment.’ ” United States v. Coughlin, 500 F.3d 813, 818 (8th Cir. 2007). “A departure based on a physical condition is a discouraged ground on which to depart and should be limited to exceptional circumstances.” Id. An “extraordinary physical impairment,” depends on three considerations:

First, is the particular defendant’s physical condition such that he or she would find imprisonment more than the normal hardship? Second, would imprisonment subject him or her to more than the normal inconvenience or danger? Specifically, would imprisonment worsen his or her condition or does he or she require special care not provided by the BOP? Third, does the physical condition have any substantial present effect on the defendant’s ability to function?

Id.

The district court answered the second and third Coughlin questions negatively, finding it unlikely that McCoy would require special care the BOP could not provide or that his physical condition would impair his ability to function. After hearing all the evidence, the district court concluded:

If Mr. McCoy was younger or in better health, I would give him a longer sentence. He is 72 years old and he is suffering from an aggressive form of prostate cancer. He is not likely to survive the 10-year sentence I’ve imposed. If he does survive, he is not likely to resume his collection of child pornography or pose any other danger to the community.
Under the circumstances, I believe that a sentence of 121 months is sufficient, but not greater than necessary, to accomplish the purposes of Section 3553(a).

The district court had no unconstitutional motive and knew of its authority to grant a downward departure. The court instead chose to sentence McCoy to the bottom of the guidelines range. The district court properly exercised its discretion in denying a downward departure.

The judgment is affirmed.

      . The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.


source: Caselaw Access Project

author: SHEPHERD, Circuit Judge.

license: Public Domain

text:
    IN RE: TARGET CORPORATION CUSTOMER DATA SECURITY BREACH LITIGATION Jim Sciaroni, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Jim Sciaroni, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee
    No. 15-3909, No. 15-3912, No. 16-1203, No. 16-1245, No. 16-1408
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: February 1, 2017

      Counsel who presented argument on behalf of all appellants was Melissa Ann Ho-lyoak, of Washington, DC. The following attorney(s) appeared on the brief of appellant Leif A. Olson was Theodore H. Frank, of Washington, DC. The following attorney(s) appeared on the brief of appellant Jim Sciaroni was Robert C. Black, III., of Edina, MN.
    Counsel who presented argument on behalf of the appellees was Vincent J. Es-ades, of Minneapolis, MN. The following attorney(s) appeared on the appellees brief; David Woodward, of Minneapolis, MN., Norman Siegel, of Kansas City, MO., John A. Yanchunis, of Tampa, FL., Eleanor Michelle Drake, of Minneapolis, MN., Daniel C. Girard, of San Franscisco, GA, Ariana J. Tadler, of New York, NY.
    Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa, sitting by designation.

   SHEPHERD, Circuit Judge.

This is a consolidated appeal from various district court orders in a lengthy and multifarious class action lawsuit against Target Corporation. Class member Leif Olson challenges the class certification for lack of adequate representation due to an alleged intraclass conflict. Class member Jim Sciaroni does not object to the certification but appeals the district court’s approval of the settlement agreement. Together, Olson and Sciaroni also challenge the district court’s order requiring them to post a bond of $49,156 to cover the costs of this appeal. For the reasons discussed below, we remand for further consideration of the class certification consistent with this opinion. We also reverse the order of the district court setting the amount of the appeal bond and remand with instructions to the district court to reduce the bond in accordance with the rule set forth below. We retain jurisdiction over this case and, to the extent necessary, will consider any remaining issues following the district court’s disposition on remand.

I. Background

In 2013, Target announced a security breach by third-party intruders that compromised the payment card data and personal information of up to 110 million Target customers. Some months later, 112 consumer representatives initiated a class action lawsuit against Target in the U.S. District Court for the District of Minnesota. The parties eventually agreed to settle. Upon request from the consumer-plaintiffs, the district court preliminarily certified a settlement class defined as “[a]ll persons in the United States whose credit or debit card information and/or whose personal information was compromised as a result of the [Target] data breach.” The court also preliminarily approved the parties’ proposed settlement agreement, which calls for Target to create a $10 million settlement fund for the class. Under the agreement, class members with documented losses are compensated from the fund first, and the remaining balance is distributed equally among class members with undocumented losses. Class members who suffered no loss from the security breach receive nothing from the settlement fund. The agreement also allows class counsel to request fees of up to $6.75 million, which Target must pay in addition to the $10 million fund. Finally, the settlement requires Target to commit to specific improvements in its data security practices, such as appointing a chief information security officer, developing safeguards to control, identifiable security risks, and providing security training to employees.

Between the district court’s preliminary and final orders certifying the class and approving the settlement, class members Leif Olson and Jim Sciaroni each objected to the settlement, alleging inadequate compensation and excessive attorneys’ fees. Additionally, Olson argued that the class could not be certified because it failed to meet the basic prerequisites of Federal Rule of Civil Procedure 23(a). Olson alleged that, unlike the class representatives, he incurred no expenses or costs making him eligible for compensation from the settlement fund. App. 309-10. Despite receiving no pecuniary relief, as a class member Olson is bound under the settlement to release Target from liability for any claims he may someday have should the breach injure him in the future. According to Olson, class members who are, like himself, ineligible for monetary compensation make up what he terms a “zero-recovery subclass.” Olson argued that no named plaintiff belongs to this purported subclass, App. 309, and therefore the court should certify a separate subclass with independent representation.

The district court overruled Olson’s objection and issued final certification and approval of the settlement. When this appeal was filed, the district court imposed a $49,156 appeal bond, which Olson’s counsel posted in full.

II. Discussion

A. Class Certification

We review a district court’s decision to certify a class for abuse of discretion. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1145 (8th Cir. 1999). Olson argues that, in its preliminary certification order, the district court did not properly analyze Rule 23(a) before concluding that the consumer-plaintiffs adequately represent the class. According to Olson, the court’s summary application of Rule 23(a) during preliminary certification, as well as its refusal to revisit the issue upon final certification, are independent grounds for remand. We agree.

A district court may not certify a class until it “is satisfied, after a rigorous analysis,” that Rule 23(a)’s certification prerequisites are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)) (internal quotation marks omitted). Consistent with the Supreme Court’s premise that “actual, not presumed, conformance with Rule 23(a) remains ... indispensable,” Falcon, 457 U.S. at 160, 102 S.Ct. 2364, after initial certification, the duty remains with the district court to assure that the class continues to be certifiable throughout the litigation, Petrovic, 200 F.3d at 1145. See also Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1214 (6th Cir. 1997) (“The district court’s duty to assay whether the named plaintiffs are adequately representing the broader class does not end with the initial certification....”). Where, as here, adequacy of class representation is at issue, “close scrutiny” in the district court is even more important given the need to protect the due process rights of absent class members. See Rattray v. Woodbury Cnty., 614 F.3d 831, 835 (8th Cir. 2010).

Though the Supreme Court has not articulated what, specifically, a “rigorous analysis” of class certification prerequisites entails, at a minimum the rule requires a district court to state its reasons for certification in terms specific enough for meaningful appellate review. “[Something more than mere repetition of [Rule 23(a)’s] language [is required]; there must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled.” Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011) (internal quotation marks omitted) (alteration omitted); accord Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 503 (5th Cir. 2004) (per curiam) (“[W]hen certifying a class a district court must detail with sufficient specificity how the plaintiff has met the requirements of Rule 23.”).

The district court’s certification of the settlement class does not meet this standard. In its preliminary order, the court replaces analysis of the certification prerequisites with a recitation of Rule 23 and a conclusion that certification is proper. Regarding Rule 23(a)(4)’s representation adequacy requirement — the issue at the heart of Olson’s appeal — the court states: “the Settlement Class Representatives and Settlement Class Counsel will fairly and adequately protect the interests of the Settlement Class as the Settlement Class Representatives have no interest antagonistic to or in conflict with the Settlement Class and have retained experienced and competent counsel to prosecute this matter on behalf of the Settlement Class.” These remarks are conclusions, not reasons, and on their own they do not constitute a “rigorous analysis” of whether certification is proper in this case. See Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002) (conclusory statement that “no conflicts exist to preclude certification” does not sufficiently analyze representation adequacy).

To be sure, there were no objections at the time the court entered its preliminary order, and'thus the class was initially certified without the benefit of adversarial briefing on the issue. But Olson objected before final certification, alleging an intra-class conflict that, if substantiated, would preclude certification of a single class and warrant inquiry into certification of an independent subclass. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Fed. R. Civ. P. 23(c)(5). Despite its continuous duty to evaluate certification throughout the litigation, Petrovic, 200 F.3d at 1145, the court dismissed Olson’s arguments, refusing to reconsider whether certification is proper solely because it had already preliminarily certified the class. The final order statés:

Olson argues that the settlement class cannot be certified because class members who have not experienced a concrete injury have an irreconcilable conflict will [sic] class members who did suffer a tangible injury. But the Court certified a settlement class in the preliminary approval order, and will not revisit that determination here.

Addendum 22 (emphasis added).

The lack of legal analysis in both the preliminary and final orders suggests that class certification was the product of summary conclusion rather than rigor. We hold that the district court abused its discretion by failing to rigorously analyze the propriety of certification, especially once new arguments challenging the adequacy of representation were raised after preliminary certification. See Falcon, 457 U.S. at 160, 102 S.Ct. 2364. Accordingly, we remand for the court to conduct and articulate a rigorous analysis of Rule 23(a)’s certification prerequisites as applied to this case. A sufficient analysis will clearly inquire into whether the named representatives (1) “have common interests with the members of the class[;]” and (2) “will vigorously prosecute the interests of the class through qualified counsel.” E.g., Paxton v. Union Nat’l Bank, 688 F.2d 552, 562-63 (8th Cir. 1982). In assessing these factors, the court must diligently aim to “uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231; see also Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012) (“[T]he linchpin of the adequacy requirement is the alignment of interests and incentives between the representative plaintiffs and the rest of the class.”).

Though not exhaustive, Olson’s objection raises important concerns for the district court to evaluate upon remand. First, whether an intraclass conflict exists when class members who cannot claim money from a settlement fund are represented by class members who can. Second, if there is a conflict, whether it prevents the class representatives “from fairly and adequately protecting the interests of all of the class members.” Petrovic, 200 F.3d at 1145. Third, if the class is conflicted, whether the conflict is “fundamental” and requires certification of one or more subclasses with independent representation. See In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249-50 (2d Cir. 2011) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 816, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999)); see also Prof'l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 648 (8th Cir. 2012) (“Given the nature of this case and the potential conflict at issue, the district court did not abuse its discretion in certifying the class or by ensuring fair and adequate representation for the entire class by means other than appointing separate counsel for each subclass.”).

To be clear, we take no position on the propriety of class certification. We only conclude at this point that the record is inadequate for our review because the district court has not conducted a meaningful analysis of class certification.

B. Appeal Bond

We next address the district court’s imposition of a $49,156 appeal bond under Rule 7 of the Federal Rules of Appellate Procedure. The parties agree that only $2,284 of the bond reflects the direct costs of this appeal. The remaining $46,872, according to the district court, is included in the bond to cover “the financial harm the class will suffer as a result of the delay caused by the appeal,” such as disruptions in the claims process, hindered distribution of settlement funds to class members, and the administrative costs of maintaining the settlement website and toll-free telephone number. Appellants argue that these delay costs cannot be included in the bond because no applicable statute or federal rule allows Appellees to recover those costs if Appellants lose their appeal. Appellees disagree, citing a myriad of district court opinions and one Third Circuit opinion — all unpublished — allowing Rule 7 appeal bonds to include delay-based administrative costs.

The issue is one of first impression in our Court: whether costs associated with delays in administering a class action settlement for the length of a class member’s appeal may be included in an appeal bond under Federal Rule of Appellate Procedure 7. While we ordinarily review the imposition of a Rule 7 bond for abuse of discretion, the determination of costs allowable in the bond is a legal question reviewed de novo. Adsani v. Miller, 139 F.3d 67, 71 (2d Cir. 1998); see also Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck Corp., 497 F.3d 805, 808 (8th Cir. 2007) (reviewing de novo the interpretation of federal appellate rules).

Rule 7 allows a district court to “require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal.” Fed. R. App. P. 7. Appeal bonds are a type of guarantee for an ap-pellee that an unsuccessful appellant can pay the costs the appellee incurs as a result of the appeal. Tennille v. W. Union Co., 774 F.3d 1249, 1254 (10th Cir. 2014). Appellate courts generally limit “costs on appeal” to “costs that a successful appellate litigant can recover pursuant to a specific rule or statute.” Id.; see also Azizian v. Federated Dep’t Stores, Inc., 499 F.3d 950, 953 (9th Cir. 2007) (allowing attorneys’ fees in a Rule 7 bond only when they are included as recoverable costs under an applicable fee-shifting statute); Pedraza v. United Guar. Corp., 313 F.3d 1323, 1333 (11th Cir. 2002) (same); In re Am. President Lines, Inc., 779 F.2d 714, 716 (D.C. Cir. 1985) (per curiam) (limiting “costs on appeal” under Rule 7 to “those that may be taxed against an unsuccessful litigant under Federal Appellate Rule 39”). The Sixth Circuit, for example, upheld the inclusion of delay-based administrative costs in an appeal bond in part because the applicable state law provided for the prevailing party on appeal to recover “any damages incurred, including reasonable attorney’s fees and costs.” In re Cardizem CD Antitrust Litig., 391 F.3d 812, 817-18 (6th Cir. 2004) (emphasis added). By the same logic, the Tenth Circuit reversed an appeal bond that included delay costs, as no rule or statute applied allowing for their recovery. Tennille, 774 F.3d at 1255.

We find our sister circuits’ approach sensible and fair. By linking the amount of the bond to the amount the appellee stands to have reimbursed, the rule secures the compensation due to successful appellees while avoiding creating “an impermissible barrier to appeal” through overly burdensome bonds. See Adsani, 139 F.3d at 76. Accordingly, we hold that “costs on appeal” for Rule 7 purposes include only those costs that the prevailing appellate litigant can recover under a specific rule or statute applicable to the case at hand. This approach is consistent with our recent ruling in In re Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation, 716 F.3d 1057, 1062 (8th Cir. 2013). In Uponor, the district court ordered class members appealing a settlement agreement to post a $170,000 Rule 7 bond comprised of $25,000 in direct appeal costs and the rest reflecting the expected administrative delays caused by the appeal. No.11-MD-2247, 2012 WL 3984542, at *6 (D. Minn. Sept. 11, 2012). On appeal, the class members argued that the bond was excessive because, among other reasons, it improperly included delay-based administrative costs. We agreed, “staying the requirement that Appellants post an appeal bond in excess of [the] $25,000 [in direct appeal costs].” Uponor, 716 F.3d at 1062 (internal quotation marks omitted). Though we did not directly address the question this case presents (as the parties did not pursue the matter following our stay), our reduction of the bond in Uponor to reflect only the direct appeal costs suggests that the more tenuous costs of administration are properly excluded in an appeal bond.

In light of our holding, we reverse and remand for the district eourt to reduce the Rule 7 bond to reflect only those costs that Appellees will recover should they succeed in any issues remaining on appeal following the district court’s reconsideration of class certification.

III. Conclusion

The record provides an inadequate basis for effective appellate review because the district court failed to articulate its analysis of the numerous disputed issues of law and fact regarding the propriety of class certification. We accordingly remand this case to the district court with instructions to conduct and articulate a rigorous analysis of Rule 23(a)’s certification prerequisites as applied to this case, which must expressly evaluate the arguments raised in Olson’s objection. We also reverse the order of the district court as to the amount of the Rule 7 appeal bond and remand for recalculation consistent with this opinion. This panel retains jurisdiction over any remaining issues following the district court’s disposition on remand. See 28 U.S.C. § 2106 (granting appellate courts the power to “require such further proceedings to be had as may be just under the circumstances”). Within 120 days, the district court shall certify to this Court its findings and conclusions supporting its reconsideration of class certification.

      . In doing so, the court also overruled Olson's and Sciaroni's objections to the settlement agreement, describing the agreement as a "significant victory” for the class. Sciaroni alone appeals this ruling. Because we agree with Olson that the district court did not conduct a proper certification analysis, we do not reach Sciaroni’s challenge to the settlement.

      . In the district court, Olson also argued that the settlement did not satisfy Rule 23’s superiority or predominance requirements, the settlement terms were unfair on account of self-dealing by class counsel, and the attorneys’ fee provision was unreasonable. Though the court rejected all of these arguments, Olson appeals only the district court’s ruling on certification.

      . Olson also argues that the district court erred in holding him jointly and severally liable with Appellant Sciaroni for the appeal bond. He provides no controlling authority for this assertion but cites cases from other circuits-that are inapplicable to the context at hand. See Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir. 1992) (search and seizure); Hous. Contractors Ass'n v. Metro. Transit Auth. of Harris Cnty., 993 F. Supp. 545, 558 (S.D. Tex. 1997) (equal protection). We therefore decline to overturn the district court’s imposition of joint and several liability for the appeal bond.
      Additionally, we recognize that, in light of our decision to remand this case to the district court for reconsideration of class certification, Appellant Olson has prevailed on his appeal. While there is some authority suggesting that this ordinarily moots a challenge to a bond, see Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1057 (7th Cir. 1998), we need not address mootness in this case because our decision today does not terminate this appeal. Rather, we retain jurisdiction in order to ad- . dress any issues remaining following remand, such as those raised by Sciaroni, which we set aside until the more fundamental issue of class certification is properly determined.

      . Appellant Olson's request for reassignment upon remand is denied. See Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“Not establishing bias ... are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.”).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rashad Arthur RUSSELL, Defendant-Appellant.
    No. 16-1700
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: February 1, ,2017

      Counsel who represented the appellant was Reynaldo A. Aligada, AFPD, of Minneapolis, MN.
    Counsel who represented the appellee was Thomas Calhoun-Lopez, AUSA, of Minneapolis, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   BENTON, Circuit Judge.

Rashad A. Russell pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In the plea agreement, he reserved the right to appeal the denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

A confidential informant (Cl) told Officer Adam Lepinski that he had observed Russell possessing firearms multiple times. Officer Lepinski knew that Russell’s criminal history prohibited him from possessing a firearm. The officer also knew the Cl had provided reliable information in the past.

A few weeks later, the Cl informed Officer Lepinski that Russell would be.riding in a “darker colored sedan,” carrying a “greenish-colQred handgun” in the Camden area of North Minneapolis. Within thirty minutes, the Cl provided the sedan’s license plate number. Officer Lepinski notified other officers, who set out to find Russell.

In the Camden area, officers found Russell riding in the passenger seat of a dark-colored sedan with a license plate matching the number from the Cl. Following the sedan, officers noticed it making unusual direction changes and rolling through a stop sign. A few blocks later, the sedan pulled over. Russell exited the passenger side.

Stopping Russell and patting him down, officers found a small bag of marijuana. Another officer approached the sedan, opening the door to ensure no one was armed. Smelling marijuana, he searched the sedan, finding a gun on the passenger side. The sedan was a rental car leased to Russell’s girlfriend but driven by another woman. His name was not on any rental documents, and he did not possess the keys.

Russell moved to suppress the gun, alleging no probable cause to search the sedan. Assuming without deciding he had standing to challenge the search, a magistrate judge recommended denying the motion. The district court adopted the recommendation.

Reviewing the denial of a motion to suppress, this court reviews factual findings for clear error and legal conclusions de novo. United States v. Anguiano, 795 F.3d 873, 876 (8th Cir. 2015). This court “may affirm the denial of a motion to suppress on any grounds supported by the record.” United States v. Allen, 705 F.3d 367, 369 (8th Cir. 2013).

“Fourth Amendment rights are personal rights that may not be asserted vicariously.” United States v. Barragan, 379 F.3d 524, 529 (8th Cir. 2004), citing Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “An individual asserting Fourth Amendment rights ‘must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.’ ” Id. at 529, quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). “The defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search.” United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). “If a defendant fails to prove a sufficiently close connection to the relevant places or objects searched he has no standing to claim that they were searched or seized illegally.” Barragan, 379 F.3d at 529-30, quoting United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994). Factors relevant to standing include:

ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.

Gomez, 16 F.3d at 256.

“Generally, a mere passenger does not have standing to challenge a vehicle search where he has ‘neither a property nor a possessory interest in the automobile.’ ” Anguiano, 795 F.3d at 878, quoting Rakas, 439 U.S. at 148, 99 S.Ct. 421. Russell was not an owner or registered user of the sedan and did not have a property interest in it. See United States v. Marquez, 605 F.3d 604, 609 (8th Cir. 2010) (holding defendant lacked standing where he “neither owned nor drove” the vehicle and only was “an occasional passenger therein”); United States v. Green, 275 F.3d 694, 698-99 (8th Cir. 2001) (holding defendant lacked standing where he was a passenger in a car driven by another).

Russell asserts a possessory interest because the sedan was rented by his girlfriend and allegedly operated at his request. A “defendant must present at least some evidence of consent or permission from the lawful owner/renter [of a vehicle] to give rise to an objectively reasonable expectation of privacy.” Muhammad, 58 F.3d at 855. Russell provides no evidence that his girlfriend permitted him to drive the sedan or otherwise exercise any pos-sessory control over it. Id. (holding defendant lacked standing where he “presented no direct evidence that [the lawful renter] had granted him permission to use the vehicle”). Because he did not establish a reasonable expectation of privacy in the sedan, he has no standing to challenge the search. See United States v. Macklin, 902 F.2d 1320, 1330 (8th Cir. 1990) (“[T]o have a legitimate expectation of privacy by way of a possessory interest, defendant must have possession of the vehicle and the keys.”), citing United States v. Rose, 731 F.2d 1337, 1343 (8th Cir.), cert denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984).

The judgment is affirmed.

      . The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.


author: WOLLMAN, Circuit Judge.

text:
    IN RE: LIFE TIME FITNESS, INC., TELEPHONE CONSUMER PROTECTION ACT (TCPA) LITIGATION. Plaintiffs’ Lead Counsel; Plaintiffs’ Executive Committee, Plaintiffs-Appellees, Lindsey Thut, Objector-Appellant, v. Life Time Fitness, Inc.,Defendant-Appellee.
    No. 15-3976
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: February 2, 2017

      Counsel who presented argument on behalf of the appellant was Robert William Clore, of Corpus Christi, TX. The following attorney(s) appeared on the appellant brief; Howard J. Bashman, of Willow Grove, PA., Christopher Andres Bandas, of Corpus Christi, TX.
    Counsel who presented argument on behalf of the appellee was Joni Marie Thome, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; David T. Butsch, of Clayton, MO., John Gordon Rudd, Jr., of Minneapolis, MN., Shawn J. Wanta, of Minneapolis, MN., Katrina Carroll, of Chicago, IL.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   WOLLMAN, Circuit Judge.

Lindsey Thut appeals from the district court’s order awarding class counsel $2.8 million in attorney’s fees and expenses in a class-action lawsuit against Life Time Fitness, Inc. We affirm.

■ In 2014, four law firms filed four separate class-action complaints against Life Time, each alleging that Life Time had violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by sending unsolicited text-message advertisements to putative class members’ cellular telephones. The class actions were consolidated at Life Time’s request and assigned to the District of Minnesota by the Judicial Panel on Multidistrict Litigation. After informal discovery, mediation, and “lengthy, arm’s length negotiations,” the parties entered into a settlement agreement in February 2015, under which Life Time agreed to pay a minimum of $10 million and a maximum of $15 million to settle the TCPA claims, to cover the costs of settlement administration, and to pay attorney’s fees and expenses “in the amount awarded by the [c]ourt.” The agreement provided that each class member who submitted a valid claim would be entitled to choose between a cash award of $100 or a Life Time membership award — either a three-month single membership or a $250 credit on an existing membership.

The district court granted preliminary approval of the settlement agreement on March 9, 2015, conditionally certifying the class for settlement purposes, appointing class representatives and class counsel, and directing that notice be provided to the class. Despite mediation and negotiation efforts, however, the parties were unable to reach an agreement regarding attorney’s fees and expenses. Class counsel filed an initial motion for an award of $4.2 million, submitting billing records to the district court for ⅛ camera review in support of the motion. Thut filed the sole objection by a class member. After the claims period closed, class counsel filed an amended motion for attorney’s fees, requesting an award of $3 million, or 30 percent of the guaranteed $10 million minimum payment Life Time was required to remit under the settlement agreement. Class counsel attached declarations in support of the requested fee amount, which documented the hours and various billing rates of the individuals who had worked on the lawsuit and which resulted in a lodestar of $687,928.75.

On November 17, 2015, the district court conducted a hearing on the parties’ joint motion for final approval of the settlement agreement and on class counsel’s amended motion for attorney’s fees and expenses. The parties and the court devoted a significant portion of the hearing to the issue of attorney’s fees, discussing in detail both the methods typically used for calculating fees. On December 1, 2015, the court granted final approval of the settlement agreement. It also granted in part and denied in part class counsel’s amended motion for attorney’s fees and expenses, applying class counsel’s requested percentage-of-the-benefit method to calculate the fee amount, rejecting Life Time’s argument for application of the lodestar method, and overruling Thut’s objection to the fee request. The district court found that class counsel had “expended substantial time and effort in their able prosecution” of the lawsuit, which ultimately resulted in a good-faith settlement that provided a “fair, reasonable, adequate!,] and certain result” for the class. The court awarded a total sum of $2.8 million in attorney’s fees and expenses — 28 percent of the minimum $10 million amount of the settlement fund — and authorized class counsel, “in their sole discretion, ... to allocate and distribute the fees among [themselves].”

Thut argues that the fee award was excessive and that the court improperly delegated to the four class-counsel law firms the authority to allocate the award among themselves. We review a district court’s award of attorney fees for abuse of discretion. See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1156 (8th Cir. 1999) (“Decisions of the district court regarding attorney fees in a class action settlement will generally be set aside only upon a showing that the action amounted to an abuse of discretion.”). In a certified class action, a district court “may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). In exercising its discretion to award attorney’s fees, a district court generally applies one of two methods to determine a reasonable fee amount: the “lodestar” method, under which “the hours expended by an attorney are multiplied by a reasonable hourly rate of compensation so as to produce a fee amount which can be adjusted, up or down, to reflect the individualized characteristics of a given action,” or the “percentage of the benefit” method, under which the fee amount is “equal to some fraction of the common fund that the attorneys were successful in gathering during the course of the litigation.” Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 244-45 (8th Cir. 1996); see also Petrovic, 200 F.3d at 1157 (noting well-established rule that a district court may use the percentage-of-the-benefit method in a common-fund settlement case). “It is within the discretion of the district court to choose which method to apply,” Johnston, 83 F.3d at 246, 247 (reiterating that “[t]he district court is free to utilize either the lodestar or the percentage of the benefit method”); see also Galloway v. Kansas City Landsmen, LLC, 833 F.3d 969, 972 (8th Cir. 2016) (same), as well as to determine the resulting amount that constitutes a reasonable award of attorney’s fees in a given case, see Travelers Prop. Cas. Ins. Co. v. Nat’l Union Ins. Co., 735 F.3d 993,1002 (8th Cir. 2013).

The district court reviewed the parties’ submissions on the attorney’s fee issue, heard extensive argument on the matter, and considered the fees awarded and the methods used to calculate those fees in similar cases. The court engaged in a pointed inquiry into class counsel’s requested percentage-of-the-benefit fee amount and Life Time’s suggested lodestar and appropriate multipliers and considered in detail argument from both parties. See Petrovic, 200 F.3d at 1157 (noting that use of lodestar method may be warranted to double-check the result of the percentage-of-the-fund method). The district court also reviewed in camera the itemized daily time records kept by each attorney and other legal professional who participated in representing the class and ultimately accepted those records as additional evidence that class counsel “expended substantial time and effort in their prosecution of claims on behalf of’ the class. Those efforts, the court found, led to an expeditious settlement of the class claims and an agreement that was “fair, reasonable, and adequate”; that achieved “substantial savings of time, money, and effort” for the court and the parties; and that “further[ed] the interests of justice.” The court determined that a percentage-of-the-benefit award of $2.8 million in attorney’s fees and expenses was reasonable, finding specifically that “the requested award is typical of that awarded in other class actions and TCPA settlements,” that class counsel “obtained a substantial benefit for the class [and] assumed significant risk in taking on [the lawsuit] on a contingency basis,” that the lawsuit “presented difficult legal questions,” that class counsel “devoted significant time and effort” to the lawsuit, and that “there was only one objection,” which was filed by Thut and was rejected by the court as “not well founded.”

The district court’s analysis was thorough, its findings were amply supported, and it did not abuse its significant discretion by electing to use the percentage-of-the-benefit method to calculate the fee award or by determining that an award of $2.8 million in attorney’s fees and expenses was reasonable. See Galloway, 833 F.3d at 973 (observing that “[e]lass counsel can and invariably does propose that the court choose a certain” fee-calculation method, but noting that “the court has discretion to accept or reject that proposal”); Petrovic, 200 F.3d at 1157 (stating that “[i]t is well established in this circuit that a district court may use the ‘percentage of the fund’ methodology to evaluate attorney fees in a common-fund settlement”); see also In re U.S. Bancorp Litig., 291 F.3d 1035, 1038 (8th Cir. 2002) (concluding that district court did not abuse its discretion by applying percentage-of-the-benefit method to award “36% of the guaranteed $3.5 million fund amount,” where class counsel “obtained significant monetary relief on behalf of the class”).

Likewise, the district court did not abuse its discretion by including approximately $750,000 in fund administration costs as part of the “benefit” when calculating the percentage-of-the-benefit fee amount. The Seventh Circuit has indicated that district courts should scrutinize administrative costs to determine whether they really confer a benefit on the class before including them in fee-award calculations. See Redman v. RadioShack Corp., 768 F.3d 622, 630 (7th Cir. 2014). The Ninth Circuit, however, leaves inclusion of administrative costs to the district courts’ discretion, reasoning that “where the defendant pays the justifiable cost of notice to the elass[,] ... it is reasonable (although certainly not required) to include that cost in a putative common fund benefiting the plaintiffs for all purposes, including the calculation of attorneys’ fees.” Staton v. Boeing Co., 327 F.3d 938, 975 (9th Cir. 2003). The Ninth Circuit’s approach is in keeping with the deference our court affords district courts in awarding attorney’s fees. Since Thut makes no showing that the administrative costs were unjustifiable, the district court did not abuse its discretion by including them as part of the benefit.

Nor did the district court abuse its discretion by allowing class counsel themselves to determine how to allocate the total $2.8 million attorney’s fee award without further judicial oversight or approval. Thut argues that the court was required to monitor the allocation of the award, and she cites the Fifth Circuit’s decision in In re High Sulfur Content Gasoline Products Litigation, 517 F.3d 220, 227 (5th Cir. 2008), in support of her argument. Even if High Sulfur were controlling in this Circuit, it is distinguishable, for that case involved a dispute among class counsel over how to allocate a fee award. The Fifth Circuit noted a “district court’s duty to scrutinize the allocation of a fee award when an attorney objects to his co-counsels’ fee recommendations,” and it remanded with instructions for the district court to develop the record and determine the adequacy of the proposed allocation of the fee award among class counsel. Id. at 233-35 (“It is one thing for all attorneys to come to an agreement about dividing up fees, and quite another for five attorneys to declare how an award will cover themselves and seventy-four other attorneys with no meaningful judicial supervision or review.”). Here, by contrast, there is no dispute among class counsel over how to allocate the award of attorney’s fees and expenses, and the district court did not abuse its discretion by leaving the matter to class counsel to resolve among themselves.

The judgment is affirmed.

      . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.

      . The cash and membership awards were subject to a pro rata adjustment, depending on the number of valid claims submitted. Based on the 29,843 valid claim submissions, an upward adjustment of 60 percent was applied, which resulted in a cash award of roughly $160 and a membership credit valued at roughly $400.

      . In her opening brief, Thut argued that we should apply a de novo standard of review to assess this claim of error, but she has conceded in her reply brief that an abuse-of-discretion standard of review applies.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Timothy Kenneth WHITE PLUME, Defendant-Appellant.
    No. 16-1340
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: February 2, 2017

      Counsel who represented the appellant was Bruce Henry Ellison of Rapid City, SD.
    Counsel who represented the appellee was Eric Kelderman, Rapid City, IA.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

A jury convicted Timothy Kenneth White Plume of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and child abuse in violation of 18 U.S.C. § 1153 and South Dakota Codified Laws §§ 26-10-01 and 26-8A-2(3) and (6). White Plume asserts: (1) insufficiency of the evidence, (2) abuse of discretion in excluding evidence of past child abuse by his wife, and (3) precluding confrontation about his wife’s past child abuse. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On the afternoon of December 8, 2012, White Plume was at home with his wife Natalie and her infant grandson, L.L. Natalie was baking in the kitchen. White Plume was watching television with L.L. in the bedroom. Later that afternoon, White Plume became angry and visibly upset after Natalie accused him of infidelity. Shortly after 4:30 p.m., White Plume came out of the bedroom holding L.L., concerned something was wrong.

L.L. suffered significant, acute head trauma and a leg fracture. The complex skull fractures were caused by force like a fall from a roof to a concrete surface. L.L. — now blind, deaf, and severely cognitively impaired — has little chance of ever walking or talking.

White Plume initially denied responsibility. He suggested that a skin bump on L.L.’s head may have been responsible. Later, he said Natalie had dragged L.L. across the bed by his leg. White Plume eventually said he picked up and threw down the bed in anger, causing L.L. to fall off. White Plume, in a note for officers, apologized for what happened to L.L. At trial, he testified he never saw L.L. fall off the bed, instead claiming to black out shortly after arguing with Natalie. The next thing he remembered was standing in the bedroom with the box spring on top of his foot, with L.L. on the ground making a “gurgling” sound.

During a pre-trial conference editing the transcript of an audio recording of White Plume’s polygraph, he objected to the removal of this exchange with officers:

Q: Did the children or have your children been taken away from you? None of Natalie’s children have been taken away before.
A: Yeah, her son did.
Q: Okay. For what reason?
A: For her child abuse.
Q: What did she do?
A: Started spanking him; spanking is not legal.

White Plume pointed to evidence that Natalie spent three days in tribal jail for abuse. The district court excluded the exchange and anything about Natalie’s abuse as propensity evidence barred by Federal Rule of Evidence 404(b). The court precluded any cross-examination of Natalie about her prior child abuse.

II.

White Plume challenges the sufficiency of the evidence. This court, on de novo review, views “the evidence in a light most favorable to the verdict and accept[s] all reasonable inferences supporting the verdict.” United States v. Jenkins, 792 F.3d 931, 934 (8th Cir. 2015). This court reverses “only if no reasonable jury could have found guilt beyond a reasonable doubt.” United States v. Gray, 700 F.3d 377, 378 (8th Cir. 2012). A “verdict may be based in whole or in part on circumstantial evidence.” United States v. White, 794 F.3d 913, 918 (8th Cir. 2015).

White Plume agrees the injuries were severe, acute, and non-accidental. Most of his accounts include harming L.L. White Plume’s and Natalie’s testimony puts White Plume alone with L.L. immediately before the injury. A drastic change in a child’s condition while alone with the defendant sufficiently supports an inference of the defendant’s guilt. Id. at 919-20. See United States v. Iron Hawk, 612 F.3d 1031, 1037 (8th Cir. 2010) (holding a non-accidental, acute injury during defendant’s sole custody was sufficient to support conviction); United States v. Red Bird, 450 F.3d 789, 793 (8th Cir. 2006) (same).

White Plume’s apology note supports his guilt, as does his statement he was not blaming Natalie for L.L.’s injuries. His inconsistent accounts — different roles, none explaining L.L.’s injuries — support an inference that he was “seeking to develop an explanation to cover up [his] own misconduct in causing injury to [L.L.]” See id. See also White, 794 F.3d at 921.

The evidence sufficiently supports the verdicts.

II.

White Plume challenges excluding evidence of Natalie’s prior child abuse. He claims it was res gestae and reverse 404(b) evidence. This court reviews a “district court’s evidentiary rulings for clear abuse of discretion.” United States v. Webster, 797 F.3d 531, 537 (8th Cir. 2015).

White Plume wanted to introduce the exchange with officers about Natalie’s pri- or child abuse. He offered tribal records of the abuse and a court order that Natalie take anger-management classes. The Government countered with evidence that White Plume was involved in the abuse. White Plume also sought to introduce a tribal child-welfare-agency report that neighbors had seen and heard other abuse of Natalie’s son. The Government countered with a different report suggesting White Plume was involved in a yet another incident of neglect.

A.

Res gestae, or intrinsic evidence, is “evidence of wrongful conduct other than the conduct at issue ... offered for the purpose of providing the context in which the charged crime occurred.” United States v. Campbell, 764 F.3d 880, 888 (8th Cir. 2014). It is not governed by Rule 404(b), but is admissible because it “completes the story or provides a total picture of the charged crime.” United States v. Brooks, 715 F.3d 1069,1076 (8th Cir. 2013) (holding cell-phone videos and photos of defendant were intrinsic because they showed the cell phone belonged to defendant, linking him to the stolen vehicle where the cell phone was found). See United States v. Payne-Owens, 845 F.3d 868, 871-73, 2017 WL 31425, at *2 (8th Cir. 2017) (holding a hand gesture and slang words on Facebook were intrinsic, providing the total picture of unlawful possession of a firearm).

White Plume argues the prior child-abuse evidence is res gestae, giving context to the history of abuse in the household and to older injuries to L.L. (when White Plume may not have been at home).

Natalie’s prior child abuse did not involve L.L. The force causing the other injuries is not consistent with the charged crime. White Plume testified he had never seen Natalie hurt L.L. The prior child-abuse evidence does not “tend[ ] logically to prove any element of the crime charged,” so it is not “an integral part of the immediate context of the crime charged.” See United States v. Cook, 842 F.3d 597, 601 (8th Cir. 2016).

B.

Evidence of prior acts “may be admissible for another purpose [other than propensity], such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed: R. Evid. 404(b)(2). White Plume proffers reverse 404(b) evidence “introduced by the defendant and offered to implicate [a] third party in the charged crime.” United States v. Battle, 774 F.3d 504, 512 (8th Cir. 2014).

White Plume cannot establish the required non-propensity purpose. He argues that Natalie’s prior acts are relevant to the question “which of the two adults in the household committed that criminal acts of felony assault and child abuse against Natalie White Plume’s grandson, L.L.” White Plume says the prior acts show “it was more likely that Natalie White Plume” committed the crime. As the district court found, this evidence seeks to establish that because Natalie had abused a child before, she was more likely to abuse L.L. on December 8. This is propensity evidence barred by Rule 404(b). See id. at 513 (holding “non-propensity purpose” required for admissibility under Rule 404(b)).

White Plume claims the evidence shows Natalie’s state of mind, specifically her intent and motive. But, Natalie’s state of mind was not at issue. Whoever committed the crime intended to do it. Evidence of prior acts establishing intent is admissible when a party “places his state of mind at issue,” United States v. Turner, 583 F.3d 1062, 1066 (8th Cir. 2009), but not admissible when “intent [is] not a serious issue.” United States v. LeCompte, 99 F.3d 274, 279 (8th Cir. 1996).

White Plume asserts that the evidence shows Natalie’s motive, when overwhelmed by childcare, to abuse young children in the household. There was no showing she was angry or overwhelmed on December 8. Any connection between the past acts and L.L.’s injuries is speculative. Because there were conflicting accounts whether White Plume was involved in the prior child abuse, with both parties alleging additional abuse, the district court did not abuse its discretion by “focusing the trial on the offense at issue.” Battle, 774 F.3d at 514 (finding no abuse of discretion due to potential for distraction “in conducting mini trials on the detailed facts” of offenses sought to be introduced, compared to their low probative value). See United States v. Condon, 720 F.3d 748, 755 (8th Cir. 2013) (stating a district court has considerable discretion in “determining whether proffered evidence is misleading or confusing”).

According to White Plume, the evidence shows the identity of the abuser. The similarity standard for identity requires a “much greater degree of similarity between the charged crime and the uncharged crime ... than when it is introduced to prove a state of mind.” Le-Compte, 99 F.3d at 278. The charged crime and the prior abuse involve different victims, different injuries, and different degrees of severity. That they are both child abuse does not show they were carried out in an “unusual and distinctive manner.” See id. See also Battle, 774 F.3d at 513 (running from officers when confronted and carrying a weapon is too generic for modus operandi); United States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000) (that “the perpetrator wore a nylon stocking mask, carried a gun, and vaulted over the counter” in two bank robberies was not sufficiently similar for an identity argument). The district court did not abuse its discretion in excluding the prior-acts evidence.

III.

The court did not allow White Plume to cross-examine Natalie about her prior child abuse. He asserts a violation of the Confrontation Clause. This court reviews “evidentiary rulings regarding the scope of a cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo.” United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015). The Confrontation Clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” United States v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012) (emphasis in original), quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). District courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about ... prejudice, confusion of the issues ... or interrogation that is repetitive or only marginally relevant.” United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

White Plume argues that the proposed cross-examination impeaches Natalie’s credibility by showing she dealt with stress by becoming violent and wanted to shift the blame for L.L.’s injuries to White Plume. As discussed, the prior child abuse has little, if any, probative value. White Plume did not show she was overwhelmed by childcare on December 8, providing only speculation to connect the incidents. See Williams, 796 F.3d at 961 (preventing cross-examination on a speculative theory of bias with no good-faith basis is not an abuse of discretion). The district court properly weighed the low probative value against the potential confusion of the issues. See Condon, 720 F.3d at 755 (“Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues.”).

White Plume believes he was completely precluded from impeaching Natalie for bias. See Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. In fact, White Plume cast doubt on her credibility many ways. He examined her about her recent conviction for making a false statement to the government. He also highlighted several inconsistencies in her testimony, including her denial to officers of any argument on December 8 and her changing story whether White Plume helped in the kitchen. See United States v. Drapeau, 414 F.3d 869, 876 (8th Cir. 2005) (holding no Confrontation Clause violation in limiting cross-examination because the witness’s credibility was still challenged). The district court’s limit on Natalie’s cross-examination was reasonable. There was no Confrontation Clause violation.

The judgment is affirmed.

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


author: KELLY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robin M. SIMS, Defendant-Appellant.
    No. 16-1696
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: February 2, 2017
    See also 776 F.3d 583.

      Counsel who presented argument on behalf of the appellant was Rebecca L. Kurz, of Kansas City, MO. Also appearing on the brief was Todd Schultz, AFPD, Kansas City, MO.
    Counsel who filed a brief and presented argument on behalf of the appellee was Rudolph R. Rhodes, IV, AUSA, of Kansas City, MO.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

This is Robin Sims’ second time before the court. On the government’s interlocutory appeal in 2014, we found that the district court’s exclusion of DNA evidence as a sanction for the government’s late disclosure was not an abuse of discretion. The case then proceeded to trial, and a jury convicted Sims on all counts. Now, in Sims’ post-judgment appeal, he argues that the delay created by the government’s interlocutory appeal was a violation of his Sixth Amendment right to a speedy trial. Finding no such violation, we affirm.

I. Background

We set forth a detailed description of the facts leading up to trial in our prior opinion, United States v. Sims (Sims I), 776 F.3d 583 (8th Cir. 2015), which we incorporate herein. Relevant facts are repeated here for context.

Sims was arrested on June 24, 2013, and an initial indictment followed on July 17, 2013. Pursuant to a superceding indictment, Sims was charged with three counts of conspiring to distribute, distributing, and aiding and abetting the distribution of heroin; and one count of being a felon in possession of a firearm. During the first scheduling conference in August 2013, the district court set trial for April 28, 2014, pursuant to Sims’ request. It also ordered the government to disclose all expert evidence “no later than seven days before the pretrial conference.”

Five days after the pretrial conference and six days before trial, the government first notified Sims of its intention to call a forensic analyst to testify that Sims was the source of “the majority of the DNA on the gun” that was seized from him. Sims moved to exclude the DNA evidence as untimely and the government responded by seeking a continuance of the trial, which Sims opposed. The district court granted Sims’ motion, excluded the DNA evidence from trial, and denied the government’s motion for a continuance.

On April 25, 2014, the government filed an interlocutory appeal, arguing that the district court’s exclusion of the DNA evidence was too harsh of a sanction and it should have continued the trial instead. After filing, the government sought and received three extensions of the deadline to file its opening brief, one extension of its reply deadline, and two extensions of the filing date for a petition for rehearing which was never filed. Sims sought reconsideration of the court’s first grant of an extension in part on the ground that he wanted to go to trial. Reconsideration was denied. On January 14, 2015, we issued our opinion in Sims I affirming the district court’s exclusion of the DNA evidence as a sanction for the government’s non-compliance with the scheduling order.

First, in Sims I, we held that the district court did not abuse its discretion in concluding that the government had acted in reckless disregard of the discovery deadline. 776 F.3d at 586. We noted that although the gun was originally submitted to the crime lab for DNA testing in summer 2013, the analyst did not perform testing because she mistakenly believed she did not have Sims’ DNA on file to use as a comparator. Id. at 584. She emailed the detective on the case and informed him that she could not make the comparison, but the detective did not respond. Id Two weeks before trial, on April 14, 2014, the government contacted the lab to inquire about the DNA testing, and discovering that nothing had been done, requested expedited testing. Id. At a pretrial conference three days later, the government stated it was “definitely ready for trial,” and did not mention the DNA evidence or forensic expert. Id. The government received the DNA report on April 21, 2014, and disclosed it and its. expert to Sims and the court the following day. Id After Sims moved to exclude the forensic expert, the government added two supplemental forensic specialists to its witness list just four days before trial. Id. at 585. The court found these facts “confirm[ed] the district court’s conclusion that the government showed more than just negligence in missing the discovery deadline.” Id. at 586.

The Sims I court also agreed with the district court that the late disclosure prejudiced Sims because “[t]he DNA evidence would have played a key part in Sims’s prosecution on the firearm charge” and Sims had no opportunity to review or challenge it. Id The district court rejected the government’s suggested lesser sanction of a continuance in part because “the Defendant does not want to further delay resolution of this case, and a delay should not be forced on him because of the government’s conduct.” We held that the district court did not abuse its discretion in refusing to continue the trial. Id.

Prior to the issuance of the mandate in Sims I, on February 4, 2015, Sims filed a pro se motion to dismiss the indictment as a violation of his speedy trial rights, which the district court denied for lack of jurisdiction. After the mandate issued, Sims, through counsel, moved to dismiss on speedy trial grounds. The district court denied the motion without discussion.

A jury trial began on May 11, 2015, and Sims was convicted on all counts. Sims now appeals the district court’s denial of his motion to dismiss the indictment, arguing the government violated his Sixth Amendment right to a speedy trial by filing an interlocutory appeal of the district court’s decision to exclude the DNA evidence.

II. Discussion

“[W]e review the district court’s findings of fact on whether a defendant’s [Sixth Amendment] right to a speedy trial was violated for. clear error but review its legal conclusions de novo.” United States v. Wearing, 837 F.3d 905, 909 (8th Cir. 2016) (second alteration in original) (quoting United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007)). The Supreme Court has identified four factors, known as the Barker factors, to analyze whether a defendant’s Sixth Amendment speedy trial right has been violated: “(1) whether delay before trial was uncommonly long; (2) whether the government or the criminal defendant is more to blame for the delay; (3) whether, in due course, the defendant asserted his right to a speedy trial; and (4) whether he suffered prejudice as a result of the delay.” Aldaco, 477 F.3d at 1019 (citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)); see Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

1. Length of Delay

“[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the trial commences.” Wearing, 837 F.3d at 909 (alteration in original) (quoting United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002)). Sims was arrested on June 24, 2013, and his trial began on May 11, 2015; thus, the delay was twenty-two and a half months. Such a delay is “presumptively prejudicial” and stretches beyond the “bare minimum” needed to trigger judicial examination of the remaining factors. United States v. Walker, 840 F.3d 477, 485 (8th Cir. 2016) (quoting United States v. DeGarmo, 450 F.3d 360, 364-65 (8th Cir. 2006)); see Doggett, 505 U.S. at 652 n.1, 112 S.Ct. 2686 (noting that lower courts had generally found “delay ‘presumptively prejudicial’ at least as it approaches one year”); United States v. Shepard, 462 F.3d 847, 864 (8th Cir. 2006) (holding seventeen-month delay “compels us to look to the other factors”).

The government argues that we should only consider the delay to be twelve and a half months because the remainder of the delay was attributable to Sims’ request for a continuance of the trial date. However, the “responsibility for the delay” should be considered under the second factor, not the first. United States v. Erenas-Luna, 560 F.3d 772, 777 (8th Cir. 2009). In any event, even the twelve-and-a-half-month delay would be sufficient to consider the remaining factors. Walker, 840 F.3d at 485 (holding “delay of approximately eleven and a half months between Walker’s indictment and his trial meets the threshold, but barely”).

2. Reason for Delay

“As to the second factor, the court must determine whether the government or the defendant was ‘more to blame’ for the delay.” Walker, 840 F.3d at 485 (quoting United States v. Rodriguez-Valencia, 753 F.3d 801, 806 (8th Cir. 2014)). Sims admits that approximately ten months of the delay is attributable to him, as he initially requested a continuance of the trial date. Therefore, the question is whether the government is blameworthy for the remaining twelve-and-a-half-month delay during which it sought an interloeu-tory appeal of the district court’s exclusion of the government’s DNA evidence.

In United States v. Loud Hawk, 474 U.S. 302,106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Supreme Court acknowledged that delay caused by interlocutory appeal can be the basis for a Sixth Amendment speedy trial claim. See id. at 316, 106 S.Ct. 648 (“Under Barker, delays in bringing the case to trial caused by the Government’s interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial.”). Although “an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay,” the court nonetheless should consider the “purpose and reasonableness” of the appeal by examining: “the strength of the Government’s position on the appealed issue, the importance of the issue in the posture of the case, and — in some cases — the seriousness of the crime.” Id. at 315, 106 S.Ct. 648.

Sims argues that the interlocutory appeal was necessary only because the government recklessly disregarded discovery deadlines and unreasonably delayed in procuring and producing the DNA evidence. The government was aware that Sims opposed further continuance of his trial, but, Sims argues, it nonetheless sought interlocutory review and six extensions of its filing deadlines on appeal. In fact, the government’s brief on interlocutory appeal sought a continuance of the trial date, against Sims’ wishes, to allow Sims more time to examine the late-produced evidence. According to Sims, the appeal was meritless, and the government pursued the DNA evidence solely to ensure a conviction on the felon-in-possession charge because it carried the harshest sentence. The government responds that the DNA evidence was key to proving that Sims knowingly possessed the firearm, and, although the district court was ultimately affirmed, its appeal was not merit-less.

Although the government’s conduct demonstrates some indifference toward Sims’ intent to go to trial forthwith, there is no evidence of “bad faith or dilatory purpose on the Government’s part” in pursuing interlocutory appeal. W. at 316, 106 S.Ct. 648. We agree with Sims that seeking six extensions in the prosecution of an interlocutory appeal despite Sims’ insistence on a prompt trial is unreasonable, particularly where the appeal was premised on the government’s admitted discovery delays. At most, however, this delay can be characterized as negligent. See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered.... ” (footnote omitted)). In this case, any negligence is balanced by the fact that the interlocutory appeal, although ultimately unsuccessful, was not “clearly tangential or frivolous” to Sims’ prosecution: It concerned the admissibility of evidence that Sims admits, and the Sims I court found, was central to the felon-in-possession charge. Loud Hawk, 474 U.S. at 316, 106 S.Ct. 648; Sims I, 776 F.3d at 586. As this charge carried with it the most severe sentence, it was “sufficiently serious” to justify the government’s pursuit of an interlocutory appeal. Loud Hawk, 474 U.S. at 316, 106 S.Ct. 648 Even though the government’s dilatory conduct necessitated the appeal, the interlocutory appeal itself was legitimate and pursued within a reasonable timeframe. Thus, the delay it caused does not deserve “any effective weight” in Sims’ Sixth Amendment speedy trial claim. Id.

3. Assertion of Right to Speedy Trial

“The third Barker factor considers “whether in due course the defendant asserted his right to a speedy trial.’ ” Erenas-Luna, 560 F.3d at 778 (quoting United States v. Walker, 92 F.3d 714, 718 (8th Cir. 1996)). Despite the government’s argument to-the contrary, the record reveals that as soon as the government suggested a continuance Sims frequently and consistently asserted his intent to go to trial without delay, including at the district court’s hearing on the motion to exclude the DNA evidence, in Sims’ motion for reconsideration of our decision to extend the due date of the government’s opening brief, and in Sims’ pro se and counseled motions to dismiss the indictment on speedy trial grounds. These multiple requests for a prompt trial suffice to establish that Sims adequately asserted his speedy trial right. See Barker, 407 U.S. at 529, 92 S.Ct. 2182 (court evaluating third factor should “weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection”).

4. Prejudice

Finally, the court must consider whether the delay prejudiced Sims. In doing so, the court should assess the interests served by the speedy trial right, which are “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. 2182. Sims concedes that he suffered no actual prejudice as a result of the twelve- and-half-month delay caused by the interlocutory appeal. But, he argues that prejudice is not required, citing Doggett, 505 U.S. at 655, 112 S.Ct. 2686 (“[CJonsideration of prejudice is not limited to the specifically demonstrable, and ... affirmative proof of particularized prejudice is not essential to every speedy trial claim.”). The government disagrees, arguing that “[a] showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause.” United States v. Mallett, 751 F.3d 907, 914 (8th Cir. 2014) (alteration in original) (quoting Reed v. Farley, 512 U.S. 339, 353, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)).

Whether or not a showing of prejudice is required in every case, we have been clear that the degree of prejudice required, if any, depends on the defendant’s showing under the preceding Barker factors. See Erenas-Luna, 560 F.3d at 780 (following “Doggett’s instruction to vary the weight assigned to the presumption [of prejudice] according to the government’s negligence and the length of delay”). Here, the twelve-and-a-half-month delay attributable to the government “was not so great that we are able to discount [Sims’] inability to show particularized prejudice from that delay.” United States v. Williams, 557 F.3d 943, 950 (8th Cir. 2009) (holding sixteen-month delay caused by the government’s negligence was insufficient where the defendant could show no prejudice). Moreover, given the length of the delay, Sims cannot rely solely on presumptive prejudice where there is no evidence that the interlocutory appeal was illegitimate, made in bad faith, or used to gain a tactical advantage. See Doggett, 505 U.S. at 657, 112 S.Ct. 2686 (“To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.”). Because Sims failed to show any particularized prejudice resulting from the delay, this factor does not weigh in his favor.

Weighing the Barker factors, the court concludes that Sims has not proved the government violated his Sixth Amendment right to a speedy trial. Given that only twelve and a half months of the pretrial delay was attributable to the government, Sims’ failure to show that the government was at fault for pursuing the year-long interlocutory appeal or that the delay caused him prejudice is fatal to his claim.

III. Conclusion

We affirm the district court’s denial of Sims’ motion to dismiss the indictment.

      . The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.