author: HAYNES, Circuit Judge:

text:
    FEDERAL INSURANCE COMPANY, Plaintiff-Appellant v. SINGING RIVER HEALTH SYSTEM, Defendant-Appellee Federal Insurance Company, Plaintiff-Counter Defendant-Appellee v. Singing River Health System, Defendant-Appellant and Singing River Health System Foundation, Counter Claimant-Appellant
    No. 15-60774
    Cons w/No. 15-60876
    United States Court of Appeals, Fifth Circuit.
    FILED March 1, 2017

      Steven W. Usdin, John W. Joyce, Laurence D. LeSueur, Jr., Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, Scott Timothy Ellzey, James G. Wyly, III, Esq., Attorney, Phelps Dunbar, L.L.P., Gulfport, MS, for Plaintiff-Counter Defendant-Appellee.
    Dan W. Webb, Jessie Wayne Doss, Jr., Esq., Roechelle Ryann Morgan, Esq., Catherine Carter Servati, Brandi Elizabeth Soper, Webb Sanders & Williams, P.L.L.C., Tupelo, MS, for Defendant-Appellant and Counter Claimanb-Appellant.
    Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

In this insurance coverage dispute, the district court granted partial summary judgment in favor of Singing River Health System and Singing River Health System Foundation and partial summary judgment in favor of Federal Insurance Company. The parties appeal, and we affirm in part, and reverse and render in part.

I.

Federal Insurance Company (“Federal”) provided insurance to Singing River Health System (“SRHS”) (collectively with Singing River Health System Foundation, “Medical Insureds”). This coverage dispute between Federal and Medical Insureds relates to various underlying lawsuits arising from SRHS’s alleged underfunding of its Retirement Plan and Trust (“SRHS Lawsuits”). The SRHS Lawsuits involve various claims, such as breach of fiduciary duty, breach of contract, violations of the United States Constitution and the Mississippi constitution, and violations of 42 U.S.C. § 1983.

As relevant to this appeal, Federal issued to SRHS a Health Care Portfolio, Policy No. 8211-9592, which had a policy period of March 1, 2014 to March 1, 2015 (the “2014-2015 Policy”). The 2014-2015 Policy contains two parts, both of which are written on a claims-made basis (1) a Fiduciary Coverage Section (“Fiduciary Coverage”), and (2) an Executive Liability, Entity Liability, and Employment Practices Liability Section (“ELI/EPL Coverage”). The policy limit for Fiduciary Coverage is $1 million for each claim, and the policy limit for ELI/EPL Coverage is $5 million for each claim. Under the Fiduciary Coverage, “[Federal] shall pay, on behalf of the Insureds, Loss for which the Insureds become legally obligated to pay on account of any Fiduciary Claim [under certain conditions].” The ELI/EPL Coverage contains a similar obligation to pay for loss.

The 2014-2015 Policy contains the following language relevant to this appeal:

The applicable limit(s) of liability to pay “loss” will be reduced, and may be exhausted, by “defense costs” unless otherwise specified herein.
The limit of liability to pay “loss” will be reduced and may be exhausted by “defense costs”, unless otherwise specified herein, and “defense costs” will be applied against the retention. In no event will the company be liable for “defense costs” or other “loss” in excess of the applicable limit(s) of liability.
If the Optional Separate Defense Costs Coverage is not purchased, Defense Costs shall be part of, and not in addition to, the Limits of Liability set forth ... for this coverage section, and the payment by the Company of Defense ■Costs shall reduce and may exhaust such applicable Limits of Liability,

(emphasis omitted). SRHS did not purchase the Optional Separate Defense Costs Coverage. The application for the 2014-2015 Policy states:

The limit of liability’ to pay damages or settlements will be reduced and nlay be exhausted by “defense costs,” and “defense costs” will be applied against the retention amount. In no event will the company be liable for “defense costs” or other “loss” in excess of the applicable limit of liability.

(emphasis omitted). In this application, SRHS did not check the box for Optional Separate Defense Costs Coverage.

The 2014-2015 Policy defines Defense Costs as “that part of Loss consisting of reasonable costs, charges, fees (including but not limited to attorneys’ fees and experts’ fees) and expenses ... incurred in defending any Claim.” “Loss,” in turn, is defined as “the amount that any Insured ... becomes legally obligated to pay on account of any covered [Claim], including but not limited to ... Defense Costs.” Finally, the ELI/EPL Coverage contains Exclusion 7(e), which provides that:

The Company shall not be liable for Loss on account of any Claim ... for any actual or alleged violation of the responsibilities, obligations or duties imposed by any federal, state, or local statutory law or common law anywhere in the world (including but not limited to the Employee Retirement Income Security Act of 1974 (except section 510 thereof) and the Consolidated Omnibus Budget Reconciliation Act of 1985), ... that governs any employee benefit arrangement program, policy, plan or scheme of any type ... (“Employee Benefits Program Laws”), including but not limited to any ... retirement income or pension benefit program ... [or] similar arrangement, program, plan or scheme.

SRHS and various individual insureds tendered defense of the SRHS Lawsuits to Federal, and Federal defended SRHS and the individual insureds under a reservation of rights. In its reservation of rights letter, Federal stated that, pursuant to the policy, Defense Costs deplete the policy limits. Federal also denied ELI/EPL Coverage on the grounds that Exclusion 7(e) covered the subject matter of the SRHS Lawsuits.

In its subsequent declaratory action, Federal sought a declaration that, inter alia, “the Limit of Liability under the Fiduciary Coverage Section is $1 million, subject to a $1 million aggregate limit, and a $10,000.00 Retention, with Defense Costs eroding or depleting those limits.” It also sought a declaration that no coverage exists under the ELI/EPL Coverage section. SRHS filed a counterclaim, which named as a party Singing River Health System Foundation, formerly known as Coastal Medical Healthcare Foundation Inc. (the “Foundation”). The counterclaim alleged “causes of action” for waiver, estoppel, civil conspiracy, breach of contract, tortious breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, bad faith, interference with contract and business relations, and conversion, and sought declaratory relief.

Medical Insureds moved for partial summary judgment and injunctive relief, or in the alternative for a preliminary injunction. By this motion, Medical Insureds requested the court order Federal to continue to pay all Defense Costs in the SRHS Lawsuits without regard to the policy limits. The district court granted the motion,entering judgment that “defense costs paid in the underlying pension plan litigation ... should not be deducted from the policy limits.”

While Medical Insureds’ motion was pending, Federal moved for summary judgment, requesting the district court issue a declaratory judgment that Federal’s defense and indemnity obligations for the SRHS Lawsuits are limited to the policy’s $1 million Limits of Liability for Fiduciary Liability Coverage and that Defense Costs erode this limit. Medical Insureds then moved to join necessary parties and for the court to continue its ruling on Federal’s motion so Medical Insureds could conduct discovery pursuant to Federal Rules of Civil Procedure 56(d). The district court denied Medical Insureds’ motion and granted Federal’s motion in part. After determining that there was no just reason for delay, the court entered a partial final judgment.

II.

The district court exercised diversity jurisdiction under 28 U.S.C. § 1332. Both parties appealed from the district court’s Rule 54(b) partial final judgment. Because the district court properly entered a partial final judgment under Rule 54(b), see Eldredge v. Martin Marietta Corp., 207 F.3d 737, 740 (5th Cir. 2000), we have jurisdiction.

We review a grant of summary-judgment de novo, applying the same standard as the district court. United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is proper where there is no genuine dispute of material fact, and a party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56(a).

We review a district court’s interpretation of a contract de novo, Gonzalez v. Denning, 394 F.3d 388, 392 (5th Cir. 2004), and a denial of a Federal Rule of Civil Procedure 56(d) motion for discovery for an abuse of discretion, Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999). Finally, we review the denial of a motion to join under Federal Rules of Procedure 19(a) and 20 for an abuse of discretion. Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 520 (5th Cir. 2010); Bank One Tex. N.A. v. Arcadia Fin. Ltd., 219 F.3d 494, 497 (5th Cir. 2000).

III.

A.

We first address the issue raised in Federal’s appeal: whether the district court erred in determining that “Defense costs paid in the underlying pension plan litigation pursuant to Moeller v. American Guarantee & Liability Insurance Co., 707 So.2d 1062 (Miss. 1996), should not be deducted from the limits applicable to the March 1, 2014 through March 1, 2015 policy.” The 2014-2015 Policy states in multiple places that Defense Costs erode policy limits and that Federal will not pay Defense Costs over and above policy limits. On appeal, Medical Insureds argue that (1) the policy terms and Moeller mandate the payment of Defense Costs separate and apart from the policy limit and (2) alternatively, public policy prevents Defense Costs from eroding policy limits.

Under Mississippi law, insurance policies are to be enforced according to their provisions. Noxubee Cty. Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1166 (Miss. 2004). The Mississippi Supreme Court has noted that

[w]hen parties to a contract make mutual promises (barring some defense or condition which excuses performance), they are entitled to the benefit of their bargain. Thus, insurance companies must be able to rely on their statements of coverage, exclusions, disclaimers, definitions, and other provisions, in order to receive the benefit of their bargain and to ensure that, rates have been properly calculated.

Id. “[I]n interpreting an insurance policy, this Court should look at the policy as a whole, consider all relevant portions together and, whenever possible, give operative effect to every provision in order to reach a reasonable overall result.” Corban v. United Servs. Auto. Ass’n, 20 So.3d 601, 609 (Miss. 2009) (alteration in original) (quoting J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552 (Miss. 1998)). Furthermore, where a contract is clear and unambiguous, it must be interpreted as written. Id. (citation omitted).

1.

With this framework in mind, we begin with Moeller, which, Medical Insureds maintain, requires Federal to pay their Defense Costs without regard to policy limits. In Moeller, the insurer defended the insureds, a law firm, in a business dispute under a reservation of rights. 707 So.2d at 1064, 1066. In addition to being represented by the insurer’s choice of counsel, the law firm retained separate counsel in the business dispute. Id. The law firm later sought to be reimbursed by the insurer for the cost of its separate counsel. Id. at 1067. In holding that the insurer was responsible for this cost, the Mississippi Supreme Court discussed the ethical obligations of counsel and noted that “other jurisdictions have generally held that in such a situation, not only must the insured be given the opportunity to select his own counsel to defend the claim, the carrier must also pay the legal fees reasonably incurred in the defense.” Id. at-1069-71 (citing cases).

Moeller does not stand alone, but. rather reflects the commonly accepted rule that where a conflict of interest exists, the insurer must pay for the insured’s separate counsel. See 12 New Appleman on Insurance Law Library Edition § 148.04 (2016). Moeller did not speak to the ability of an insured to include Defense Costs as eroding the policy limit.

Indeed, Southern Healthcare Services, Inc. v. Lloyd’s of London, 110 So.3d 735 (Miss. 2013), establishes that Moeller does not create an absolute right to reimbursement of all defense costs. There, the Mississippi Supreme Court enforced a provision in an insurance contract that required the insureds to pay a deductible of $250,000 towards any liability, which included defense costs. S. Healthcare Servs., 110 So.3d at 747. In so determining, the court noted that Moeller “cannot be read in a vacuum.” Id. at 748. Rather, there was no indication that the policy in Moeller included a deductible, and “the principles therein cannot be strictly applied without taking into account the terms of the specific policies at issue.” Id. Accordingly, “where the policy specifies that defense costs are included in the deductible, the insurer is not responsible for defense costs until the deductible has been paid.” Id. At bottom, the Mississippi Supreme Court in Southern Healthcare determined that the general duty to provide independent counsel set forth in Moeller is subject to the terms of the applicable policy. Applying this rationale, Federal’s duty to pay Defense Costs is subject to the terms of the 2014-2015 Policy, which states in multiple locations that Defense Costs erode policy limits. Indeed, SRHS specifically declined to purchase separate coverage for Defense Costs.

Medical Insureds’ contention that Federal cannot subtract Defense Costs from the policy limits is based on Moeller and the language of the policy, specifically the phrase “becomes legally obligated to pay.” According to their argument, Defense Costs is defined by reference to Loss, which is “the amount that any Insured ... becomes legally obligated to pay.” Medical Insureds maintain that, because of this language, the only Defense Costs that can be eroded are those that Medical Insureds are legally obligated to pay and, under Moeller, they are not “legally obligated to pay” the Defense Costs because those costs are to be borne by the insurer, Federal. This argument rests on a misunderstanding of Moeller, which says nothing about an insured’s separate obligation to pay for its counsel. In support of their contention that they had no obligation to pay for their counsel, Medical Insureds point to various affidavits that merely restate this same misunderstanding of Moel-ler. These affidavits do not undercut the basic premise that, without the insurance policy, the attorneys’ fees incurred in defending a case would be borne by the client either under contract law, a theory of unjust enrichment, or otherwise. Cf. Gon v. First State Ins. Co., 871 F.2d 863, 868 (9th Cir. 1989) (where the insurer agreed to pay defense costs that the insured is “legally obligated to pay,” the insurer “must pay legal expenses as they are incurred, because an insured becomes legally obligated to pay legal expenses as soon as the services are rendered”). The fact that the insurance policy places some burden to pay the fees on the insurance company does not undermine this principle.

•Moreover, Medical Insureds’ argument reads the several eroding policy provisions out of the policy. They have identified no circumstance under their reasoning where attorney’s fees would be both covered by the policy and fees that the insured would be “legally obligated to pay.” In other words, Medical Insureds argue that Federal must defend all covered or potentially covered claims and that such sums are ones that they are not “legally obligated to pay.” Under this reasoning, there would never be any “Defense Costs” as defined in the policy. Reading several clauses out of the policy, including ones that make clear that a non-eroding policy will cost extra, is inconsistent with the requirement to consider the language of the policy as a whole. See Corban, 20 So.3d at 609. The only reasonable construction of the policy is that the insurance company assumes the burden of fees and losses that, but for the insurance policy, would be the insured’s legal obligation. Accordingly, we reject Medical Insureds’ argument that Moeller and the policy language require Federal to pay Defense Costs without regard to policy limits.

2.

We next turn to Medical Insureds’ public policy arguments. “[CJourts must enforce contracts as they are written, unless such enforcement is contrary to law or public policy.” Allstate Ins. Co. v. Chi. Ins. Co., 676 So.2d 271, 275 (Miss. 1996) (citation omitted). “In determining whether contracts should be invalidated on the ground that they violate public policy, [the Mississippi Supreme Court] ha[s] held that this should not be done unless the contract is prohibited by the Constitution, a statute, or condemned by some decision of the courts construing the subject matter.” Cappaert v. Junker, 413 So.2d 378, 380 (Miss. 1982).

Medical Insureds’ first public policy argument is based on Moeller, but, as already explained, Moeller does not create an absolute duty to defend. Accordingly, Moeller does not create a prohibition on a defense-within-limits policy as a matter of public policy.

We also reject Medical Insureds’ public policy arguments based on Mississippi statutory law, specifically Mississippi Code sections 41-13-11 and 11-46-17(3). Mississippi Code section 41-13-11 authorizes the board of trustees of any community hospital to purchase liability insurance. Under the statute, “[s]uch insurance shall be for such amounts of coverage ... as the board of trustees, in its discretion, shall determine.” Miss. Code Ann. § 41-13-11(4). According to Medical Insureds, section 41-13-11 prohibits an eroding policy because the insurance “shall” be for the amount of coverage specified. This is an improper interpretation of section 41-13-11. This section simply provides that the board of trustees determines the amount of coverage. See Sw. Miss. Reg’l Med. Ctr. v. Lawrence, 684 So.2d 1257, 1265 (Miss. 1996) (noting that, under Section 41-13-11, “[a] community hospital, in its discretion, may obtain liability insurance coverage out of its operating funds”). Section 41-13-11 does not require that Defense Costs be excluded from calculation of the amount of coverage.

Medical Insureds’ interpretation of section 11-46-17 is similarly misplaced. In its relevant part, this section provides:

The policy or policies of insurance or self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All the plans of insurance or reserves or combination of insurance and reserves shall be submitted for approval to the board.... Whenever any political subdivision fails to obtain the board’s approval of its plan, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance or reserves or combination of insurance and reserves to be approved by the board.

Miss. Code Ann. § 11-46-17(3). By its clear terms, section 11-46-17(3) places any obligation to obtain board approval on SRHS, not on Federal. Moreover, the statute does not indicate that any failure to obtain board approval somehow invalidates the policy. See also Imperial Premium Fin., Inc. v. Khoury, 129 F.3d 347, 350-51 (5th Cir. 1997) (analyzing a Texas Insurance Code provision). Rather, it states that, in the event of any such failure, the political subdivision “shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance or reserves or combination of insurance and reserves to be approved by the board.” Miss. Code Ann. § 11-46-17(3). Indeed, if the effect of any such failure were the invalidation of the policy, the entire policy would have to be invalidated, not just the defense-within-limits policy. Moreover, there is proof that the policy was agreed to after a full and fair negotiation of all limitations and exclusions. As the district, court noted, the application for the policy was signed by the CEO and CFO of SRHS.

In their final public policy argument, Medical Insureds maintain the defense-within-limits clause is unenforceable because it was not placed on the board’s minutes. Mississippi law requires that contracts between a public board and a contracting entity be “spread upon the minutes” of the board and places the responsibility of complying with the “minutes rule” on the contracting eptity. Wellness, Inc. v. Pearl River Cty. Hosp., 178 So.3d 1287, 1291 (Miss. 2015). “[B]y enforcing the minutes rule, the [Mississippi Supreme] Court has recognized the importance of recorded, express consent by all board members to board actions, as board members are elected officials charged with .the protection of the public’s funds.” Id. at 1292 (citation omitted). Despite the existence of this general legal proposition, however, Mississippi law specifically authorizes the board of trustees of a community hospital to obtain insurance in a statute that does not incorporate the “minutes rule.” See Miss. Code Ann. § 41-13-11(4). In light of this clear statutory dictate, we cannot say that the defense-within-limits provision is unenforceable for failure to place it on the minutes.

Ultimately, “insurance companies must be able to rely on their statements of coverage, exclusions, disclaimers, definitions, and other provisions, in order to receive the benefit of their bargain, and to ensure that rates have been properly calculated.” United States Fid. & Guar. Co. v. Knight, 882 So.2d 85, 92 (Miss. 2004). Mississippi law does not allow the courts to use rules of construction to defeat the parties’ own agreement as expressed in the policy. See State Auto. Mut. Ins. Co. of Columbus v. Glover, 253 Miss. 477, 176 So.2d 256, 258 (1965)). Furthermore, “if the insured wanted a policy that had an unlimited defense obligation, rather than an eroding one, it should have contracted for such a policy.” N. Am. Specialty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 559 (5th Cir. 2008). Here, the policy states that Defense Costs erode policy limits, and public policy does not bar such a provision. Accordingly, the district court erred in determining that Defense Costs did not erode the policy limit, and Federal is entitled to judgment on this issue.

B.

1.

We now turn to Medical Insureds’ cross-appeal. The district court granted partial summary judgment in favor of Federal, determining that,

[a]ll of the claims asserted in Almond, Jones, et al., Thompson, Aguilar, Drury, Bosarge, Cobb, et al., Broun, et al., Eiland, Lay, and Lowe, et al., and Counts 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, and 22 of the Beasley Complaint are excluded by the plain language of the Employee Benefits Program Laws exclusion [Exclusion 7(e) ] in the ELI/EPL section of the policy.

We have previously explained that, under Mississippi law, exclusionary provisions are construed against the insurance company such that if there are two reasonable constructions of such a clause, the one favoring the insured must be applied. Liberty Mut. Fire Ins. Co. v. Canal Ins. Co., 177 F.3d 326, 331 (5th Cir. 1999). To determine whether Federal has a duty to defend, this court looks to the allegations in the underlying complaints. Am. Guarantee & Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 610 (5th Cir. 2001).

We start by noting that the language in the exclusion is broad, encompassing “any Claim ... for any actual or alleged violation of the responsibilities, obligations or duties imposed by any federal, state, or local statutory law or common law anywhere in the world ... that governs' any employee benefit arrangement program, policy, plan or scheme of any type.... ” We disagree with the Medical Insureds’ argument that the district court read “govern” too broadly in determining the identified claims fell under Exclusion 7(e). Laws such as ERISA, the Mississippi Uniform Trust Code, the Civil Rights Act, the United States Constitution, the Mississippi constitution, and general common law create obligations with which employee benefit plans must comply. Accordingly, they “govern” employee benefit plans because the obligations they create control the pension plans. Indeed, the plaintiffs in the SRHS Lawsuits only bring claims under the identified common law and statutes because they create obligations with which pension plans must comply. Moreover, the language of the exclusion indicates that the exclusion cannot be limited to laws that “solely governs” employee benefit plans, such as ERISA or COBRA. The exclusion states that the law provided includes but is not limited to ERISA and COBRA, meaning the realm of covered law is larger than those two statutes alone.

We also reject Medical Insureds’ argument that the constitutional violations alleged in the Jones, Cobb, and Beasley complaints fall outside of the exclusion because, by its terms, Exclusion 7(e) only applies to a “violation of the responsibilities, obligations or duties imposed by any federal, state, or local statutory law or common law.” Put another way, Medical Insureds maintain the exclusion does not encompass constitutional claims. Assuming that “statutory law” and “common law” modify both “federal” and “state,” Medical Insureds have not identified a constitutional provision that gives them the right to sue and receive a remedy. Rather, the “constitutional claims” are based on statutory or common law, albeit based on an underlying violation of the constitution. See, e.g., 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Accordingly, the “constitutional claims” fall within Exclusion 7(e) and the district court did not err in determining there was no ELI/EPL Coverage as to the identified claims.

2.

We likewise reject Medical Insureds’ remaining arguments on appeal. Medical Insureds maintain that “issues raised in [their] Verified Counterclaim, asserting multiple other bases requiring Federal to defend and indemnify under multiple policies issued from 2009 through 2016, independently preclude any judgment for Federal on direct or cross-appeal.” To the extent this argument refers to their waiver and estoppel arguments, the district court explicitly addressed and rejected these claims, and Medical Insureds do not challenge these determinations on appeal. To the extent this argument refers to additional policies, as the district court noted, the existence of a separate policy between Foundation and Federal was irrelevant because that policy was not at issue in the motion for summary judgment. Indeed, the district court only entered partial final judgment.

In its final argument, Medical Insureds maintain that the district court erred in denying their request for joinder of all insureds and plaintiffs in the underlying SRHS Lawsuits under both Federal Rules of Civil Procedure 19(a) and 20. Under Rule 19, a party must be joined if:

(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter- impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1).

Medical Insureds maintain that all insureds needed to be joined under 19(a)(1)(A) because their presence was necessary to afford complete relief. But the partial final judgment neither mentions any insureds other than SRHS, nor does it make Federal’s requested declaration as to the judgment being binding on the other insureds. The district court was therefore able to afford complete relief among the parties without joining the additional insureds, and thus Rule 19(a)(1)(A) did not require their joinder. Medical Insureds also argue the additional insureds needed to be joined under 19(a)(1)(B) because (1) the additional insureds have an interest in establishing the amount of available funds and preserving those funds to cover judgments against them and (2) Federal was exposed to a risk of incurring multiple or inconsistent obligations. But because Medical Insureds and the additional insureds had the same interest — maximizing coverage — their interests were protected. See Bacardi Int’l Ltd. v. Suarez & Co., 719 F.3d 1, 10-12 (1st Cir. 2013). As to the risk of multiple or inconsistent obligations, this risk is borne by Federal, who opposed the motion to join the additional insureds. The district court determined that the likelihood was not substantial as required by the statute, and on appeal, Medical Insureds make no attempt to explain how that determination was in error.

Turning to the joinder of the plaintiffs in the SRHS Lawsuits, Medical Insureds maintain their financial interest in the outcome of coverage dispute makes them required parties under Rule 19(a)(l)(B)(i). Although we have determined that insurance plaintiffs may fall under that subsection, see Ranger Ins. Co. v. United Hous. of N.M., Inc., 488 F.2d 682, 683 & n.3 (5th Cir. 1974), that case is distinguishable. There, the plaintiffs could not intervene in the federal action because their presence would divest the court of diversity jurisdiction. Id. at 682-83. By contrast, here, the plaintiffs can intervene because they are diverse. Accordingly, plaintiffs have means to protect their interest. See Smith v. State Farm Fire & Cas. Co., 633 F.2d 401, 405 (5th Cir. 1980) (noting that an absent trustee’s ability to protect his interest was not significantly impaired where “[i]t is clear from the record that the trustee was aware of this litigation yet did not attempt to be made a party”); see also Am. Safety Cas. Ins. Co. v. Condor Assocs., Ltd., 129 Fed.Appx. 540, 542 (11th Cir. 2005) (discussing the relationship between required Rule 19(b) and the possibility of intervention). Moreover, as the district court noted, the plaintiffs have the same interest as Medical Insureds — maximizing coverage — so, like the additional insureds, their interests are protected by Medical" Insureds’ vigorous litigation in the coverage dispute. See Bacardi Int’l, 719 F.3d at 12 (“Where an existing party has ‘vigorously addressed’ the interests of absent parties, we have no need to protect a possible required party from a threat of serious injury.”). Furthermore, as the district court noted, both the additional insureds and plaintiffs in the underlying SRHS Lawsuits had not moved to intervene. See United States v. San Juan Bay Marina, 239 F.3d 400, 407 (1st Cir. 2001) (noting that an alleged required party’s “decision to forgo intervention indicates that [it] d[id] not deem its own interests substantially threatened by the litigation, [and thus] the court should not second-guess [the district court’s determination it was not a required party], at least absent special circumstances”).

Under Rule 20, joinder of plaintiffs is permissive “when (1) their claims arise out of the ‘same transaction, occurrence, or series of transactions or occurrences’ and when (2) there is at least one common question of law or fact linking all claims.” Acevedo, 600 F.3d at 521. But “even if this test is satisfied, district courts have the discretion to refuse joinder in the interest of avoiding prejudice and delay, ensuring judicial economy, or safeguarding principles of fundamental fairness.” Id. (citations omitted). The district court noted that the logistics in joining all of the requested parties would create substantial delay, whereas it was in the best interest of all parties to have coverage determined as soon as possible. We have previously approved of the exercise of discretion to deny a motion under Rule 20 due to concerns of delay and judicial economy, see Acevedo, 600 F.3d at 522, and do so here. At bottom, the district court did not err in denying Medical Insureds’ motion to join additional parties.

IV.

As to the district court’s decision regarding Defense Costs, we REVERSE the grant of summary judgment in favor of Medical Insureds and RENDER judgment in favor of Federal. We AFFIRM the district court’s grant of partial summary judgment in favor of Federal regarding ELI/EPL Coverage.

      . "A ‘claims made' policy protects the holder only against claims made during the life of the policy, while an 'occurrence' policy protects the policyholder from liability for any act done while the policy is in effect.” Jones v. Baptist Mem’l Hosp.-Golden Triangle, Inc., 735 So.2d 993, 999-1000 (Miss. 1999) (citation omitted).

      . "When an insurer provides a defense for an insured under a reservation of rights, the insurer defends the insured 'while at the same time reserving the right to deny coverage in [the] event a judgment is rendered against the insured.' ” Hanford Underwriters Ins. Co. v. Found. Health Servs. Inc., 524 F.3d 588, 592 n.2 (5th Cir. 2008) (alteration in original) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d 1062, 1069 (Miss. 1996)).

      . Having determined the district court correctly entered its Rule 54(b) partial final judgment, we deny Medical Insureds’ motion to dismiss filed on February 12, 2016. It is therefore administratively unnecessary to consider Federal's first notice of appeal, as it is dupli-cative of its second notice of appeal. The Clerk of Court is directed to administratively close No. 15-60774, deny Medical Insureds' motion to dismiss filed November 13, 2015, as moot, and ensure that all documents related to Federal's second notice of appeal are docketed in No. 15-60876. Federal’s appeal and Medical Insureds’ cross-appeal are considered jointly under No. 15-60876.

      . Medical Insureds also make public policy arguments that are not based on statutes or cases. For example, although discussing the Mississippi Insurance Department’s "official position” on defense-within-limits policies, Medical Insureds provide no authority that a violation of this position is a violation of public policy. Rather, "contracts are not in violation of the public policy of the government unless either prohibited by express terms or the fair implication of a statute, or condemned by some decision of the courts construing the subject-matter.” Cappaert, 413 So.2d at 380 (emphasis added) (quoting State ex rel. Knox v. Hines Lumber Co., 150 Miss. 1, 115 So. 598, 605 (1928)).

      . We therefore do not address the potentially troubling premise of Medical Insureds’ argument — that, where a private party to a contract fails to spread a contract on the public entity's board’s minutes, the public entity can pick and choose which provisions of a contract it would like to enforce against the private party as opposed to invalidating the entire contract. See Wellness, 178 So.3d at 1291 (''[T]he minutes from the Board of Trustees’ meetings do not set forth sufficient terms to establish the liabilities and obligations of the parties, and thus the court cannot enforce the contract, much less the mediation or arbitration clauses therein.” (emphasis added)). Taken to its logical extreme, this would allow SHRS to enforce the requirement to pay the loss while disavowing the policy limits, an absurd result.

      . As an initial matter, we ‘ must consider whether it was proper for the district court to consider coverage before the SRHS Lawsuits are resolved. We have previously noted that, "[u]nlike the duty to defend, which can be determined at the beginning of a lawsuit, an insurer’s duty to indemnify generally cannot be ascertained until the completion of litigation, when liability is established, if at all.” Estate of Bradley ex rel. Sample v. Royal Surplus Lines Ins. Co., Inc., 647 F.3d 524, 531 (5th Cir. 2011) (citation omitted) (applying Mississippi law). "[U]nlike the duty to defend, which turns on the pleadings and the policy, the duty to indemnify turns on the actual facts giving rise to liability in the underlying suit, and whether any damages caused by the insured and later proven at trial are covered by the policy.” Id.; see also D.R. Horton-Tex.,

        Ltd. v. Market Int’l Ins. Co., 300 S.W.3d 740, 743-45 (Tex. 2009) (applying Texas law); Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009) (applying Louisiana law).
      While the duty to indemnify generally cannot be resolved solely on the pleadings, there is an exception to this rule. In Farmers Texas County Mutual Insurance Co. v. Griffin, 955 S.W.2d 81, 82, 84 (Tex. 1997), the Supreme Court of Texas announced that the duty to indemnify could be resolved at the summary judgment stage when "the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify.” Thus, the duty to indemnify may be non-justiciable at the summary judgment stage if "facts can be developed in the underlying ... suit” that negate "any possibility the insurer will ever have a duty to indemnify.” Griffin, 955 S.W.2d at 84 (emphasis omitted); see also Hartford Cas. Ins. Co. v. DP Eng’g, L.L.C., 827 F.3d 423, 430 (5th Cir. 2016) (discussing the ''no set of facts” exception in Griffin); see also Solstice Oil & Gas I, L.L.C. v. Seneca Ins. Co., 655 Fed.Appx. 221, 224-25 (5th Cir. 2016) (similar). We have applied the general rule of non-justiciability in a case governed by Mississippi law, noting that "nothing in our research [] suggests that the Mississippi Supreme Court would deviate from the accepted definition of indemnity if that court were called upon to decide the question before us.” Royal Surplus, 647 F.3d at 531 n.5. Because we ultimately conclude that all of the district court's identified claims fall within Exclusion 7(e) and there are no set of facts that could be developed in the SRHS Lawsuits that would create a duty to indemnify, judgment as to indemnity is not premature.

      . The district court determined that "all claims related to the pension plan are treated pursuant to the plain language of the policy as having been first made during the March 1, 2014, through March 1, 2015 policy issued to Singing River.” Medical Insureds do not appeal this determination.

      . Instead, they maintain that the district court abused its discretion in denying their motion to conduct discovery on these claims prior to ruling on Federal's motion for summary judgment. Rule 56(d) allows the district court to provide additional time for discovery before ruling on a motion if the nonmovant shows an inability to factually support its opposition. Fed R. Civ. P. 56(d). While "Rule 56(d) motions for additional discovery are broadly favored and should be liberally granted,” Am. Family Life Assurance Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)), the party filing the motion must demonstrate "how additional discovery will create a genuine issue of material fact,” Canady v. Bossier Par. Sch. Bd., 240 F.3d 437, 445 (5th Cir. 2001) (quoting Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994)). In evaluating a district court's ruling on Rule 56(d) motions, we generally assess whether the evidence presented would affect the outcome of a summary judgment motion. See Biles, 714 F.3d at 894.
      Medical Insureds have failed to explain how additional discovery would have affected the outcome of the summary judgment motion. See Prospect Capital Corp. v. Mut. of Omaha Bank, 819 F.3d 754, 758 (5th Cir. 2016) (affirming the denial of a Rule 56(d) motion where the party failed to "explain how such facts would influence the outcome of the summary judgment motion”); Biles, 714 F.3d at 894 (facts must "influence the outcome of the pending summary judgment motion”). The district court specifically addressed the issue of waiver, estoppel, and duty to defend and found the claims failed. Medical Insureds do not explain what other conduct, if proven, would have given rise to a claim for waiver or estoppel that was not already addressed and rejected by the district court. Accordingly, we reject their argument that the district court abused its discretion in denying their Rule 56(d) motion.

      . We do not address Medical Insureds’ argument, made for the first time in their reply, that this court should “revisit” the district court's decisions regarding whether the claims in Beasley constitute "related claims.”


source: Caselaw Access Project

author: EDITH BROWN CLEMENT, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Hector Feliciano LOPEZ-MONZON, Defendant-Appellant
    No. 15-41547
    United States Court of Appeals, Fifth Circuit.
    FILED March 1, 2017

      Jimmy Eric Pardue, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, Paul Eunkuk Kim, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee
    Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

Hector Feliciano Lopez-Monzon appeals from his convictions for possessing with intent to distribute 500 grams or more of methamphetamine and importing 500 grams or more of methamphetamine. He challenges the sufficiency of the evidence only as to the knowledge element of his convictions. For the reasons set forth below, we AFFIRM the judgment of the district court.

I

Lopez-Monzon, accompanied by Luis Fernando Rivera-De Leon, brought two tractor-trailers to Hotel Pena in Mexico, located near the United States border. Lopez-Monzon hired Juan Buentello-Garcia and Santiago Guadiana, freelance truck drivers, to drive the tractor-trailers into the United States. On December 26, 2014, Buentello-Garcia drove the first tractor-trailer — a white Freightliner with a car hauler (“Freightliner”) — with instructions to leave it at Transmigrante Mireya, a business located just inside the United States border. Guadiana did not drive the second tractor-trailer into the United States because it had a mechanical problem.

Buentello-Garcia entered the United States at the Los Indios, Texas port of entry. During an inspection by U.S. Customs and Border Patrol (“CBP”), liquid methamphetamine was discovered in the Freightliner’s passenger-side fuel tank. Buentello-Garcia was arrested, and in his interview he asserted that he was unaware that the fuel tank contained methamphetamine. A specialist later calculated that, a total of 200.3 kilograms of methamphetamine hydrochloride had been dissolved in the 100-gallon fuel tank, resulting in 411.4 kilograms of a substance, containing methamphetamine. That amount of methamphetamine was worth up to $3 million in Houston, Texas. When Guadiana learned of Buentello-Garcia’s arrest, he refused to drive the second tractor-trailer into the United States.

The next day, Lopez-Monzon and De Leon entered Texas on foot at the Los Indios Bridge port of entry. Later that day, at a gas station near the port of entry, Lopez-Monzon approached CBP Agent Jaime Vidal about the Freightliner. Lopez-Monzon identified himself as the owner of the Freightliner. Agent Vidal called for backup and escorted Lopez-Monzon and De Leon to the customs area.

Homeland Security Investigations Agent Angelico Santiago interviewed Lopez-Mon-zon and De Leon. Lopez-Monzon was nervous and anxious during the interview. Lopez-Monzon told Agent Santiago that he owned the Freightliner, and that he had bought the Freightliner with a man named Ruben “four to five months” earlier. He asserted that he did not know about the methamphetamine in the fuel tank, and that “if someone had put something in the gas tank, it would have been Ruben.”

Lopez-Monzon also told Agent Santiago that he and De Leon traveled together from Guatemala. He said that De Leon drove the Freightliner, and that Lopez-Monzon “follow[ed]” in a Ford F-150 pickup truck. Lopez-Monzon admitted that “he noticed that one of the tanks was not functioning properly” but told Agent Santiago that the defective fuel tank “did not bother him.” Lopez-Monzon explained that “he thought that the tank was full and the fuel inside was left there by ... the previous owner.”

Lopez-Monzon and Buentello-Garcia were charged with four counts: (1) conspiring to possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) (“Count One”); (2) possessing with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and 18 U.S.'C. § 2 (“Count Two”); (3) conspiring to import 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 963, 952(a) and 960(b)(1) (“Count Three”); and (4) importing 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 952(a), and 960(b)(1), and 18 U.S.C. § 2 (“Count Four”). The government dropped the charges against Buen-tello-Garcia after further investigation, and he was instead considered a material witness. Lopez-Monzon pleaded not guilty to all counts. ,

The government presented numerous exhibits and extensive testimony during a three-day jury trial. Lopez-Monzon moved for a judgment of acquittal at the ’end of the government’s case in chief, and again at the close of all evidence. See Fed. R. Crim. P. 29(a). The district court denied those motions. The jury found Lopez-Mon-zon guilty of Counts Two and Four and not guilty of Counts One and Three. Lopez-Monzon again moved for a judgment of acquittal. See Fed. R. Crim. P. 29(c). The district court again denied his motion.

The district court sentenced Lopez-Mon-zon to 292 months in prison and five years of supervised release. Lopez-Monzon timely appealed. He challenges the sufficiency of the evidence only as to ihe knowledge element of his convictions.

II

This court reviews de novo a district court’s denial of a post-trial motion for a judgment of acquittal. United States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir. 2006).

III

“A motion for judgment of acquittal challenges the sufficiency of the evidence to convict.” United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005) (quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998)). This court “owe[s] great deference” to the jury’s verdict. United States v. Gray, 96 F.3d 769, 772 (5th Cir. 1996). In deciding the sufficiency of the evidence, the relevant question is whether “any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This court must assume that the evidence offered by the prosecution is true, Rojas Alvarez, 451 F.3d at 326, and weigh the evidence “in a light most deferential to the verdict rendered by the jury.” Lucio, 428 F.3d at 522. To uphold the conviction, “the evidence need not exclude every hypothesis of innocence.” United States v. Diaz-Carreon, 915 F.2d 951, 953-54 (5th Cir. 1990). “[I]f the fact finder was presented with sufficient evidence to support the verdict reached, that verdict must be upheld.” Lucio, 428 F.3d at 522. “A jury is free to choose among reasonable constructions of the evidence.” Diaz-Carreon, 915 F.2d at 954 (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc)). This court does not determine “whether the jury correctly determined guilt or innocence” but only “whether the jury made a rational decision.” Rojas Alvarez, 451 F.3d at 326 (quoting United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005)).

To sustain a conviction for the crime of possession of a controlled substance with intent to distribute, the government must prove: “(1) knowledge, (2) possession, and (3) intent to distribute the controlled substance.” United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008). To sustain a conviction for the crime of importation of a controlled substance, the government must prove: “(1) the defendant played a role in bringing a quantity of a controlled substance into the United States from outside of the country; (2) the defendant knew the substance was controlled; and (3) the defendant knew the substance would enter the United States.” United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999). Lopez-Monzon challenges only the knowledge element of his convictions, arguing that the government failed to prove that he knew methamphetamine was concealed in the fuel tank.

“The necessary knowledge and intent can be proved by circumstantial evidence.” United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir. 1993). “[knowledge of the presence of a controlled substance may be inferred from the exercise of control over a vehicle in which the illegal substance is concealed.” Id. But where drugs are concealed in a hidden compartment, this court “also requirefe] circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.” United States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993). Such circumstantial evidence may include evidence of “consciousness of guilt, conflicting statements, or an implausible account of events.” Rojas Alvarez, 451 F.3d at 334 (citing Rodriguez, 993 F.2d at 1175). But this court has explicitly declined to limit the relevant circumstantial evidence to “a defendant’s nervousness, implausible explanations, and inconsistent statements, or matters similar or analogous thereto.” United States v. Resio-Trejo, 45 F.3d 907, 912 (5th Cir. 1995). Viewing the evidence as a whole, this court holds that the evidence is sufficient to support Lopez-Monzon’s convictions.

A

“Inconsistent statements are inherently suspicious.” Diaz-Carreon, 915 F.2d at 955. Such statements, whether inconsistent with previous statements or with other evidence, are circumstantial evidence of knowledge. See Rodriguez, 993 F.2d at 1176 (inconsistent statement where defendant denied knowledge of a vehicle owned by his sister when defendant “was observed unlocking and entering” that vehicle). A rational jury could credit the government’s presentation of documentary and other testimonial evidence as true, and infer that Lopez-Monzon’s statements to Agent Santiago were inconsistent with Lopez-Monzon’s understanding of what actually happened. In other words, a rational jury could infer that Lopez-Monzon attempted to mislead Agent Santiago — and such attempts to mislead certainly present circumstantial evidence of “consciousness of guilt.” Rojas Alvarez, 451 F.3d at 334.

The government presented evidence from which a rational jury could conclude that Lopez-Monzon omitted or changed details regarding his purchase of the Freightliner in his interview with Agent Santiago. Lopez-Monzon told Agent Santiago that he was the owner of the Freight-liner, and that he had bought the Freight-liner with a man named Ruben “four to five months” earlier. But Lopez-Monzon’s statements about his purchase and possession of the Freightliner were inconsistent with invoices and money orders found in his luggage — and the government presented evidence that those documents were themselves falsified. Lopez-Monzon contends that “the individual who sold the vehicle to Lopez-Monzon furnished him with a deceptive sales receipt.” Although Lopez-Monzon is correct that the government presented no direct evidence that Lopez-Monzon knew that the invoices were falsified, that is not the relevant inquiry. Even if the jury found that Lopez-Monzon thought the invoices were entirely accurate, his statements to Agent Santiago regarding the timing, price, purchaser, and location of the sale were inconsistent with the invoices he possessed and allegedly thought to be accurate.

The government also presented evidence that Lopez-Monzon’s statements to Agent Santiago about his travel to Guatemala were inconsistent with what actually happened. Lopez-Monzon told Agent Santiago that he and De Leon traveled together, and that De Leon drove the Freightliner and Lopez-Monzon “follow[ed]” in a Ford F-150 pickup truck. But according to the exit stamps in Lopez-Monzon’s and De Leon’s passports, Lopez-Monzon actually departed Guatemala a day earlier than De Leon. Lopez-Monzon failed to provide an explanation to Agent Santiago when asked about the discrepancy. He now contends that “the only logical inference ... is that Lopez-Monzon entered Mexico first, waited for his traveling companion to cross the border the next day, and then the two men continued the rest of their travels across Mexico together.” Even accepting Lopez-Monzon’s explanation on appeal, that “logical inference” is still inconsistent with Lopez-Monzon’s statement to Agent Santiago that he “followed]” De Leon from Guatemala and through the first part of their trip through Mexico. A rational jury could infer that Lopez-Monzon attempted to mislead Agent Santiago regarding his travel from Guatemala.

The government also presented evidence that Lopez-Monzon omitted mention of a second tractor-trailer in his interview with Agent Santiago. Guadiana and Buentello-Garcia testified that Lopez-Monzon brought two tractor-trailers to Hotel Pena, and that he hired them to drive both tractor-trailers into the United States. Guadia-na testified that people he believed to be members of the Mexican Mafia retrieved the second tractor-trailer from the parking lot of Hotel Pena after Lopez-Monzon’s arrest. In addition to the testimony of Guadiana and Buentello-Garcia, the government introduced evidence that Lopez-Monzon’s company had two insurance policies. De Leon was insured to drive the seized Freightliner, and Lopez-Monzon was insured to drive a second tractor-trailer. The insurance policies began and ended on the same date. A rational jury could infer from this evidence that Lopez-Monzon told Agent Santiago that he followed De Leon in a pickup truck because he did not want to admit the existence of the second tractor-trailer.

B

An “implausible account provides persuasive circumstantial evidence of the defendant’s consciousness of guilt.” Diaz-Carreon, 915 F.2d at 955. A rational jury may infer from “[a]n implausible account of exculpatory events ... that the defendant desires to obscure his criminal responsibility.” Id. The government presented evidence from which a rational jury could infer that Lopez-Monzon attempted to hide his knowledge of the methamphetamine from Agent Santiago by giving an implausible account of the defective fuel tank and attempting to blame Ruben for the presence of the methamphetamine.

Agent Santiago testified that Lopez-Monzon told him that “he noticed that one of the tanks was not functioning properly” but that it “did not bother him.” According to Agent Santiago, Lopez-Monzon stated that “he thought that the tank was full and the fuel inside was left there by ... the previous owner.” Lopez-Monzon also told Agent Santiago that he purchased the tractor-trailer “four to five months” earlier. A rational jury could have concluded that Lopez-Monzon’s statement — that it “did not bother him” that a fuel tank containing 100 gallons of valuable fuel was defective on a trip from Guatemala to the United States border — was implausible. Again, Lopez-Monzon admitted that he knew that the fuel tank was not “functioning properly.” A rational jury could infer, given the totality of the circumstances, that Lopez-Monzon took advantage of the defect to conceal the methamphetamine and import it into the United States.

Lopez-Monzon also told Agent Santiago that “if someone had put something inside the gas tank, it would have been Ruben.” Lopez-Monzon stated that Ruben owned a dealership in Guatemala and that they purchased the tractor-trailer together. But Lopez-Monzon failed to relate any other information about Ruben. Agent Santiago asked for additional information, but Lopez-Monzon did not provide even a surname. A rational jury could infer that Lopez-Monzon’s implausible statements regarding Ruben were an attempt to deflect blame from himself.

C

“[T]he value of the drug being transported” is “[o]ne example of circumstantial evidence which may be probative of knowledge.” United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). A particularly high value of drugs provides circumstantial evidence of knowledge. See Rodriguez, 993 F.2d at 1176; see also United States v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir. 2001) (holding that “quantity of drugs is one factor to consider in determining sufficiency of evidence for requisite knowledge element). The government presented evidence that the fuel tank of the Freightliner contained approximately 100 gallons of liquid methamphetamine, that the liquid contained 200.3 kilograms of actual methamphetamine, and that this amount of methamphetamine would be worth up to $3 million in the United States. The high volume and value of the drugs are not dispositive, but it does present circumstantial evidence that Lopez-Monzon knew ábout the methamphetamine. A rational jury could infer that whoever put the drug in the fuel tank would not have done so without Lopez-Monzon’s knowledge, given his ownership and control of the Freightliner throughout the trip.

D

Agent Santiago testified at trial that Lopez-Monzon was “[v]ery nervous [and] anxious” during the interview. “Nervous behavior ... frequently constitutes persuasive evidence of guilty knowledge.” Diaz-Carreon, 915 F.2d at 954. Lopez-Monzon argues, and the government concedes, that nervousness alone is insufficient to support a finding of the requisite knowledge. See Diaz-Carreon, 915 F.2d at 954 (“In the absence of facts which suggest that the defendant’s nervousness or anxiety derives from an underlying consciousness of criminal behavior, evidence of nervousness is insufficient to support a finding of guilty knowledge”). But given the totality of the circumstances, a rational jury could infer that Lopez-Monzon’s nervousness was additional circumstantial evidence of his consciousness of guilt.

IV

When the jury rendered its verdict of guilty, it determined beyond reasonable doubt that Lopez-Monzon had the requisite knowledge to support his convictions for possessing methamphetamine with the intent to distribute and importing methamphetamine. The jury’s verdict is supported by evidence that Lopez-Monzon: owned and controlled the tractor-trailer in which the methamphetamine was found; gave statements to Agent Santiago inconsistent with the evidence; gave implausible explanations regarding the fuel tank and the source of the methamphetamine; and was nervous during his interview. Given this evidence, as well as the high amount and value of the methamphetamine hidden in Lopez-Monzon’s tractor-trailer, a rational jury could find beyond reasonable doubt that Lopez-Monzon knew about the methamphetamine.- Considering the totality of the circumstances, we AFFIRM the judgment of the district court.


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Julie GRANT, also known as Juliana Jacobs Grant, also known as Juliana Okwue Jacobs Grant, also known as Julianna Okwuenu, Defendant-Appellant
    No. 15-10962
    United States Court of Appeals, Fifth Circuit.
    FILED March 1, 2017

      Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    Sherylynn Ann Kime-Goodwin, Helen Miller Liggett, Esq., Assistant Federal Public Defenders, Federal Public Defender’s Office, Lubbock, TX, Kevin Joel Page, John MacIntyre Nicholson, Federal Public Defender’s Office, Dallas, TX, for Defendant-Appellant.
    Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

D'efendanh-Appellant Julie Grant was charged with four counts of making false statements under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. § 152(3). She moved to dismiss Counts Two and Four of the indictment for failure to state an offense. The district court denied the motion. At trial, the jury found Defendant guilty on Counts Two through Four. In determining Defendant’s sentence, the district court calculated Defendant’s guideline range using the perjury guideline, U.S.S.G. § 2J1.3. Defendant timely appealed, challenging (a) the district court’s failure to dismiss Counts Two and Four; (b) the sufficiency of the evidence on Counts Two and Four; and (c) the district court’s decision to use the perjury guideline, instead of the fraud guideline, to calculate Defendant’s sentence. We AFFIRM.

I.

After filing five bankruptcy petitions between 2008 and 2011, Defendant was indicted on October 8, 2014, and charged with four counts of bankruptcy fraud under 18. U.S.C. § 152(3). Defendant moved to dismiss the indictment. The Government then filed a superseding indictment that, relevantly here, was' identical to the original indictment.

Count One of the superseding indictment alleges that in her December 2009 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her pri- or October 2008 and March 2009 bankruptcy filings. Count Two alleges that in'the same filing, Defendant knowingly and fraudulently disclosed only her social security number ending in XXXX (the “XXXX number”) when Defendant knew that she had also used another social security number ending in XXXX (the “XXXX number”). Count Three alleges that in her August 2011 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her prior October 2008 and March 2009 bankruptcy filings. Finally, Count Four alleges that in the same filing, Defendant knowingly and fraudulently disclosed only the XXXX number when Defendant knew that she had also used the XXXX number.

The district court treated Defendant’s motion to dismiss the indictment as one to dismiss the superseding indictment. Regarding Counts Two and Four, Defendant asserted that both Counts rested upon an erroneous statement of federal law because they alleged that Form B-21 (an official bankruptcy form that requires disclosure of the debtor’s social security numbers) required the disclosure of every social security number “ever used” by the debtor. She argued that Form B-21 does not require a debtor to disclose every social security number that the debtor has ever used, instead arguing that she needed to disclose only the social security numbers that she “has.” She contended that the offense required an affirmative false statement and asserted that her statement listing only one social security number was not false. The district court denied the motion. Before trial, the district court reexamined Defendant’s motion to dismiss Counts Two and Four. The court denied the motion, stating that the case would proceed with “the indictment as is.”

At trial, the Government presented extensive evidence that Defendant had the XXXX number from 1996 until at least 2008. In April 2008, Defendant applied for a new social security number and, in July 2008, she was issued the XXXX number. In a bankruptcy petition filed in December 2009, Defendant listed only the XXXX number on her Form B-21 filed in the bankruptcy proceeding. In August 2011, she filed another Form B-21 in a new bankruptcy proceeding and listed only the XXXX number. In both instances, the Forms B-21 required the debtor to list her social security number. Both Forms B-21 further directed the debtor to “state all” social security numbers if the debtor “has” more than one. Defendant declared both Forms B-21 true under penalty of perjury. Defendant presented no evidence and moved for a judgment of acquittal on all counts. The district court denied the motion. The jury found Defendant guilty of Counts Two through Four. She was found not guilty on Count One.

Defendant’s presentence report determined that her total offense level was 14, applying U.S.S.G. § 2J1.3 (perjury). With an offense level of 14 and a Category I criminal history score, Defendant faced a guidelines range of 15 to 21 months. Defendant objected to the use of the perjury guideline, arguing that her offense was a fraud offense and therefore, that the offense level should be calculated under U.S.S.G. § 2B1.1 (theft, embezzlement, receipt of stolen property, property destruction, and offenses involving fraud or deceit) (relevant here “fraud”). The district court found that perjury was the correct guideline and accordingly sentenced Defendant to three concurrent terms- of 15 months of imprisonment, followed by a total of one year of supervised release. Defendant timely appealed.

II.

A.

Defendant argues that “Counts two and four of the superseding indictment are legally deficient because they rest on an erroneous statement of federal law.” Specifically, she argues that “Form B-21 does not require disclosure of any number previously ‘used.’ It merely requires disclosure of the number the debtor currently ‘has.’ ” Defendant therefore reasons that the superseding indictment does not allege a false statement because it states that Form B-21 required that she “truthfully state all social security numbers ever used” by her when the Form did not actually require such disclosure.

This court reviews a preserved challenge to the sufficiency of an indictment de novo. United States v. Hoover, 467 F.3d 496, 498 (5th Cir. 2006).

“An indictment is intended to provide notice to the defendant that allows [her] to intelligently consider [her] defense or plea.” United States v. Angeles-Mascote, 206 F.3d 529, 532 (5th Cir. 2000) (citing United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993)). “Therefore, ‘[t]o be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense.’ ” United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th Cir. 2001) (quoting United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999), overruled on other grounds by United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)); see also United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986) (“An indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant what charge [s]he must be prepared to meet, and enables the accused to plead acquittal or conviction in bar of future prosecutions for the same offense.” (citations omitted)). Nonetheless, “[t]he test of the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it.conforms to minimal constitutional standards.” United States v. Fitzgerald, 89 F.3d 218, 222 (5th Cir. 1996) (citation omitted).

Counts Two and Four of the superseding indictment allege every element of Defendant’s offense. The elements of Section 152(3) are “(1) there was a bankruptcy proceeding; (2) defendant made a declaration or statement under penalty of perjury in relation to the proceeding; (3) the declaration concerned a material fact; (4) the declaration was false; and (5) defendant made the declaration knowingly and fraudulently.” United States v. Spurlin, 664 F.3d 954, 962 (5th Cir. 2011). Both Counts Two and Four allege each element. (1) Each count alleges that there was a bankruptcy proceeding, namely cases 09-38525-hdh7 and 11-35094-bjh13. (2) Each count alleges that Defendant made a statement under penalty of perjury in relation to that proceeding. (3) Each count alleges that Defendant’s false statement was “material.” (4) Each count alleges that Defendant made a “false statement” by submitting a “false Statement of Social Security Number(s) (Official Form B-21).” And (5) each count alleges that Defendant “knowingly and fraudulently made a material false statement.”

Even if Defendant is correct that the indictment misstated what Form B-21 requires, the indictment was not defective. This court “treat[s] the allegation of additional facts beyond those which comprise the elements of the crime as ‘mere sur-plusage.’ ” United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010) (quoting United States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1992)). The indictment here— even without the description of what Form B-21 requires — alleges every element of the offense. Accordingly, the additional factual description of Form B-21 is sur-plusage. “Surplusage ... may be disregarded provided it neither broadens the indictment nor misleads the accused.” United States v. Thompson, 990 F.2d 625, at *3 (5th Cir. 1993) (unpublished).

The description of what Form B-21 requires does not broaden the indictment because the indictment required the Government to prove a knowingly made false statement to secure a conviction. The indictment alleges that “Grant falsely represented and stated that Grant only had one social security number XXX-XX-XXXX, when Grant then well knew that she had used at least one other social security number in other bankruptcy petitions which Grant knew she was obligated to disclose.” By including the phrase “which Grant knew she was obligated to disclose,” the Government alleged that Defendant had an obligation to disclose her second social security number. Because Form B-21 requires only the disclosure of social security numbers that the debtor “has,” the obligation language limits the indictment to what Form B-21 requires — disclosure of all social security numbers that the debtor “has.”

Nor did the indictment mislead Defendant. By outlining each element of the offense, the indictment notified Defendant of the charges against her. See United States v. Griffin, 800 F.3d 198, 203 (5th Cir. 2015) (holding that an indictment gave sufficient notice when the defendant “knew before trial” the theory of criminality on which the Government would proceed); United States v. Trice, 823 F.2d 80, 89 n.8 (5th Cir. 1987) (holding that an indictment gave sufficient notice when the indictment charged the elements of the offense).

Accordingly, we hold that the indictment was not defective.

B.

Defendant next argues that she was prejudiced by the indictment because “[t]he jury received an indictment which assumed a duty which does not exist — that when answering a question which asks for all social security numbers a person ‘has’, she in fact has a duty to list all numbers she ‘has’ AND ones she has ever used, whether or not she still ‘has’ them.” We disagree.

When allegedly prejudicial sur-plusage is shown to the jury and then challenged on appeal, this court will not “invalidate” a conviction unless it is “convinced that the allegedly excessive language was irrelevant, inflammatory and prejudicial.” United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971). This standard is “strict[,]” United States v. Solomon, 273 F.3d 1108, at *1 (5th Cir. 2001) (unpublished), and “exacting[.]” United States v. Wood, 248 F.3d 1143, at *4 (5th Cir. 2001) (unpublished).

Generally, correct jury instructions cure deficiencies in the indictment. See, e.g., United States v. Coppin, 569 Fed.Appx. 326, 334-35 (5th Cir. 2014) (unpublished) (“The conviction under valid instructions creates a presumption that there was no harm arising from the failure of a grand jury to charge that missing element of the necessary intent.” (citation omitted)); United States v. Mauskar, 557 F.3d 219, 227 (5th Cir. 2009) (unanimity instruction sufficient to cure alleged duplicity in indictment); United States v. Dentler, 492 F.3d 306, 311-312 (5th Cir. 2007) (no prejudice where indictment excluded an element of the crime because the instructions included the element);

Here, the jury was warned that the indictment was “merely an accusation, nothing more[.]” The jury was further instructed that it was their duty “to follow all of the rules of law as” the district court explained them and that the instructions contained all of the law that applied to the case. The district court then proceeded to give the jury an extensive outline of bankruptcy law principles. These bankruptcy instructions specifically described Form B-21 and informed the jury that “[o]n the [Form B-21], below the line on which the debtor lists his or her social security number, the form states: ‘If more than one, state all.’ ” Defendant did not object to those instructions. Moreover, because the jury is presumed to follow its instructions, see United States v. Webster, 162 F.3d 308, 324 (5th Cir. 1998), we presume that the jury followed the instructions with regard to what Form B-21 requires. Accordingly, we hold that Defendant was not prejudiced by the jury receiving the indictment.

In any event, even if the jury instructions did not cure the error, we hold that any error was harmless. Defendant’s prejudice argument is that by receiving the indictment, the jury received an incorrect statement of the law. Specifically, Defendant complains that the indictment allowed the jury to convict on a theory (that Defendant “used” but did not “have” more than one social security number) that was not unlawful (because Defendant’s Forms B-21 could only have been false if Defendant has more than one social security number). Defendant’s prejudice theory therefore functions like the prejudice theory related to an overly broad jury instruction — both potentially allow a jury to convict based on conduct that is not unlawful. Jury instructions that misstate the law are subject to harmless error review. See, e.g., Neder v. United States, 527 U.S. 1, 9-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (collecting cases). Harmless error analysis is appropriate here as well. Indeed, this court has previously analogized errors in indictments to errors in jury instructions for the purposes of determining susceptibility to harmless error analysis. See, e.g., United States v. Robinson, 367 F.3d 278, 286 (5th Cir. 2004) (“We need not diminish the importance of the Fifth Amendment right to a grand jury indictment to conclude that the error at issue in Neder — the failure to include an element of the crime in petit jury instructions — is difficult to distinguish from the present one, and we find no compelling reason to carve out an exception to Neder1 s harmless error rule for such an analytically similar claim.”). And the analogy is especially apt here because Defendant’s prejudice theory is essentially that the indictment gave the jury an erroneous instruction.

“Erroneous jury instructions are harmless if a court, ‘after a thorough examination of the record, is able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.’ ” United States v. Cessa, 785 F.3d 165, 186 (5th Cir. 2015) (quoting United States v. Skilling, 638 F.3d 480, 482 (5th Cir. 2011)). We hold that any error related to the jury viewing the indictment was harmless.

First, the jury was given the Forms B-21 and received extensive instruction on what the Forms required. The jury could therefore see for itself what the Forms B-21 required. And the jury was also instructed that to convict, it had to find a false statement on the Forms B-21. See, e.g., United States v. Green, 246 F.3d 433, 437 (5th Cir. 2001) (considering the jury charge as a whole when conducting harmless error analysis).

Second, at trial Defendant vigorously argued that she did not “have” the XXXX number (or, indeed, more than one social security number at all) at the time that the Forms B-21 were signed. That the jury convicted, despite the argument, indicates that any instructional error was harmless. See, e.g., United States v. Montgomery, 747 F.3d 303, 311 (5th Cir. 2014) (“Finally, the [defendants] have not shown that the district court’s jury instruction prevented them in any way from presenting the full breadth of their good-faith defense to the jury. In fact, the [defendants’] good-faith defense was central to defense counsel’s closing argument[.] Thus, ... we are convinced that the erroneous jury instruction had no bearing....”).

Third, and most importantly, the Government presented overwhelming evidence that Defendant continued to have the XXXX number even after being issued the XXXX number. The Government provided ample evidence that before 2008, Defendant had the XXXX number. In 2008, Defendant applied for a second social security number and was issued the XXXX number. Defendant’s theory at trial was that once she received the XXXX number, she ceased to have the XXXX number. But the Government submitted overwhelming evidence to the contrary.

The Government demonstrated that in October 2008 — after receiving the XXXX number — Defendant filed for bankruptcy using the XXXX number. Moreover, in 2009, a Bankruptcy Judge told Defendant that “there are. going to be issues that have to be sorted through with respect to why you have two social security numbers .... ” Finally, the Government submitted evidence that the Social Security Administration did not know that Defendant had the XXXX number when it issued her the XXXX number and that it would not have issued Defendant a new number had it known that she already had one. Together this evidence indicated that Defendant continued to use both of her social security numbers — that is, that she had two numbers. Additionally, it would have been unreasonable for the jury to conclude that the Social Security Administration cancelled the XXXX number when Defendant was issued the XXXX number because the uncontroverted testimony demonstrated that the Social Security Administration did not even know that Defendant had been issued two numbers.

Taking together the facts that (1) the jury had before it the Forms B-21 and could see for itself what the Form required; (2) Defendant was free to argue— and did vigorously argue — that she did not have more than one social security number at the time she signed the Forms; and (3) the overwhelming evidence that Defendant did in fact have two social security numbers when she signed the Forms, we hold any prejudice introduced to the jury by the indictment’s “used” language was harmless.

III.

Defendant next argues that the evidence was insufficient to support her convictions on Counts Two and Four. Specifically, she argues that the Government did not prove that she continued to “have” the XXXX number after she received the XXXX number and, accordingly, the Government did not prove that she had two social security numbers on the respective dates that she signed the Forms B-21. We disagree.

Defendant preserved her challenge to the sufficiency of the evidence. Therefore, this court’s review is de novo. See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007) (citation omitted). “When reviewing the sufficiency of the evidence, this Court views all evidence, whether circumstantial or direct, in the light most favorable to the [g]overnment[,] with all reasonable inferences to be made in support of the jury’s verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (quoting United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997)). “[R]e-viewing courts must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citation omitted).

As explained above, the Government presented evidence from which the jury could have inferred that Defendant continued to have the XXXX number after receiving the XXXX number. Specifically, the Government submitted evidence showing that Defendant continued to use the XXXX number after receiving the XXXX number and that the Social Security Administration would have had no reason to cancel the XXXX number. From this evidence, the jury could have reasonably concluded that Defendant continued to “have” two social security numbers when she signed the Forms B-21. Accordingly, we-reject Defendant’s sufficiency challenge.

IV.

Defendant argues that the district court erred by applying U.S.S.G. § 2J1.3 (perjury) to her offense. Instead, she argues that the appropriate guideline is U.S.S.G. § 2B1.1 (fraud). This court reviews a district court’s selection of the applicable sentencing guideline de novo. United States v. Principe, 203 F.3d 849, 851 (5th Cir. 2000). “When sentencing a defendant, the district court must first determine which offense guideline section is most applicable to the offense of conviction, generally by reference to the guidelines’ statutory index found at Appendix A thereto.” Id. (citing U.S.S.G. § 1B1.2(a), cmt. 1). “If more than one offense guideline section is referenced for a particular statute, the district court must select the most appropriate section based upon the nature of conduct charged in the count for which the defendant was convicted.” Id. (citing U.S.S.G. § 1B1.2(a), cmt. 1).

The guidelines’ statutory index lists three possible guidelines for violations of 18 U.S.C. § 152: U.S.S.G. § 2B1.1 (fraud); U.S.S.G. § 2B4.1 (bribery); and U.S.S.G. § 2J1.3 (perjury). See U.S.S.G. App’x A. Circuit courts are divided over which of these three provisions applies to a conviction under Section 152(3). Broadly, two approaches have emerged. Some courts look at the defendant’s conduct to determine whether the crime more closely resembles fraud, bribery, or perjury. See, e.g., United States v. Turner, 182 F.3d 934, at *2 (10th Cir. 1999) (unpublished) (applying the fraud guideline because the defendant’s “false statement under bankruptcy petition was made for purposes relating to fraudulent activity”); United States v. Kaster, 139 F.3d 902, at *3 (7th Cir. 1998) (unpublished) (applying the perjury guideline because evidence indicated that the defendant did not have a pecuniary interest for making the false statement). Other courts look only to the allegations .in the indictment to determine whether the alleged offense more closely resembles fraud, bribery, or perjury. See, e.g., United States v. Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (applying the perjury guideline when “[t]he indictment did not characterize [the defendant’s] failure to disclose the prior bankruptcies as being part of a plan to avoid making payment to specific creditors. Rather, the indictment focused on the fact that her nondisclosure constituted a false declaration”); United States v. Lewis, 161 Fed.Appx. 322, 324 (4th Cir. 2006) (unpublished) (applying the perjury guideline when “the indictment concentrated on the gravity of the [the defendant’s] misrepresentation to the bankruptcy court”).

Under either approach, the district court did not err in using the perjury guideline. First, the Defendant’s conduct more closely aligns with perjury. The Government did not attempt to prove fraud at trial. More specifically, the Government introduced no evidence showing that creditors lost money because of Defendant’s conduct. And Defendant’s false statements could not have had an economic impact because both bankruptcy petitions were dismissed for procedural reasons independent of Defendant’s false statements. Accordingly, the conduct that Defendant was prosecuted for was not defrauding creditors, but was instead making false statements to the court. Second, the indictment charges that Defendant made false statements under the penalty of perjury; it does not focus on defrauding creditors at all. Put differently, “the indictment focused on the fact that [Defendant’s] nondisclosure constituted a false declaration made to the bankruptcy court under penalty of perjury. Thus, the gravamen of the charge was that [Defendant] interfered with the bankruptcy court’s administration of justice, not that she defrauded any creditors.” Boulware, 604 F.3d at 836. Accordingly, the proper guideline was the perjury guideline.

V.

Finding no reversible errors, we AFFIRM.

      . The authority Defendant cites is not to the contrary. Defendant cites two cases in support of her claim that the indictment is insufficient: McVay v. Perez (In re Perez), 415 B.R. 445 (Bankr. D. Colo. 2009), and United States v. Good, 326 F.3d 589 (4th Cir. 2003).
      In Perez, a debtor purchased and then used a social security number to obtain credit. 415 B.R. at 447. The debtor filed for bankruptcy using the purchased social security number. Id. The Trustee alleged that "[b]y listing a false Social Security number on his Petition and Statement of Social Security Numbers, the Debtor/Defendant knowingly and fraudulently made a false oath or account which is material to his bankruptcy case.” Id. at 449. Defendant claims that Perez indicates that debtors are “damned if you do, damned if you don't” because debtors can be charged with making false statements both if they disclose social security numbers that they used but did. not have (as Perez did) or if they fail to disclose a social security number that they use (as Defendant did). However, the prosecution in Perez is only in conflict with the prosecution here if Defendant is correct that the bankruptcy rules "only required a debtor to disclose his current, actual social security number.” But that is not what the bankruptcy rules require. Instead, a debtor is required to disclose all numbers that they have. This rule flows from the plain meaning of Form B-21. The Form recognizes that a debtor can have more than one social security number and requires debtors who have more than one number to disclose all of them. This reading of Form B-21 also harmonizes this case with Perez: Perez made a false statement by listing a number that he did not have, Defendant made a false statement by failing to list a number that she did have. And, as explained above, this theory of Defendant's prosecution, although not artfully charged in the indictment, was inherent in the allegation that Defendant made a false statement on Form B-21.
      In Good, the defendant applied for a Security Identification Display Area badge at the Norfolk Airport. 326 F.3d at 590. The application form asked, "Have you ever been convicted or found not guilty by reason of insanity of the following listed crimes ... 22. Burglary, Theft, Armed robbery, Possession or Distribution of Stolen Property ... 26. Dishonesty, Fraud, or Misrepresentation....” Id. (alterations in original). The defendant, who had previously been convicted of embezzlement, answered "no.” Id. Because of the embezzlement conviction, the Government charged the defendant with making a false statement on her application when she indicated that she had not been previously convicted of the listed crimes. Id. The defendant moved to dismiss the indictment, and the district court granted the motion. Id. The Fourth Circuit affirmed. Id. It reasoned that "[t]he defendant’s response to the question was literally true [because the form did not ask about embezzlement], and thus, her indictment ... was properly dismissed.” Id. at 592. Here, however, unlike in Good, Defendant's responses on the Forms B-21 were not “literally true.” That is, the failure to list an embezzlement conviction could never be false on the form at issue in Good because the form simply did not call for the disclosure of embezzlement convictions. The Forms B-21 call for the disclosure of a second social security number if the debtor has more than one. The indictment alleges that Defendant made a false statement on her Forms B-21. True, the Government’s explanation in the indictment of why Defendant’s statements were false was inartful. But the Government still alleges that Defendant made a false statement — and unlike in Good, the forms here could have required the disclosure that the Government demands. As the Fourth Circuit itself has explained, Good’s reasoning "does not apply in cases in which the focus is on the ambiguity of the question asked. Nor does it apply to an answer [that] would be true on one construction of an arguably ambiguous question but false on another.” United States v. Sarwari, 669 F.3d 401, 407 (4th Cir. 2012) (citations and quotation marks omitted, alteration in original). Defendant was certainly free to argue at trial — and did argue — that she did not "have” multiple social security numbers. But if the Government's allegations are taken as true, as they must be when assessing the sufficiency of the indictment, then Defendant did not malte a literally true statement on her Forms B-21, and thus Good does not apply.

      . Respectfully, we believe that the latter view is more in line with both the text of the guidelines and this court’s jurisprudence. The guidelines instruct courts to "[rjefer to the Statutory Index ... to determine the ... offense guideline, referenced in the Statutory Index for the offense of conviction.” U.S.S.G. § 1B1.2. The Commentary to Section 1B1.2 then provides that when the Statutory Index specifies more than one offense guideline "the court will determine which of the referenced guideline sections is most appropriate for the offence conduct charged in the count of which the defendant was convicted.” U.S.S.G. § 1B1.2, cmt. 1. Interpreting these provisions, this court has noted that, in determining the offense guideline section, courts should look only, to the offense conduct charged in the indictment or information, not to the defendant's specific conduct as proven at trial or at sentencing. See, e.g., United States v. Goldfaden, 959 F.2d 1324, 1329 (5th Cir. 1992), superseded on other grounds as recognized by United States v. Puckett, 505 F.3d 377, 384-85 (5th Cir. 2007); United States v. Brunson, 882 F.2d 151, 156 (5th Cir. 1989); United States v. Heli-Mejia, 239 Fed.Appx. 938, 938 (5th Cir. 2007) (unpublished).

      . We note that this court previously held that the fraud guideline (then Section 2F1.1), rather than the perjury guideline, was appropriately applied to a conviction under Section 152. United States v. Beard, 913 F.2d 193, 197-98 (5th Cir. 1990). But Beard was decided before the Sentencing Commission added the perjury guideline to the statutory index for Section 152. Hence other Circuit Courts have observed that Beard's analysis of the applicability of the perjury guideline to Section 152 may be superseded because of the subsequent amendment to the Guidelines. See Kaster, 139 F.3d 902, at *3 n.4.