author: KELLY, Circuit Judge. BRIGHT, Circuit Judge,

text:
    Dale NEIDENBACH; Kim Neidenbach, Plaintiffs-Appellants v. AMICA MUTUAL INSURANCE COMPANY, Defendant-Appellee
    No. 16-1400
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: November 16, 2016

      Counsel who presented argument on behalf of the appellant was David C. Knier-iem, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Robert W. Cocker-ham, of Saint Louis, MO.
    Before WOLLMAN, BRIGHT, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Dale and Kim Neidenbach appeal the district court’s grant of summary judgment in favor of Arnica Mutual Insurance Company (Arnica). The Neidenbachs allege that a fire caused significant damage to their house and personal property. They contend that their insurance policy from Arnica covered the damage, but that Arnica refused to pay the claim. The district court concluded that the insurance policy was void under its terms because the Neidenbachs made material misrepresentations during the claims process. Accordingly, the court granted summary judgment in favor of Arnica, We affirm.

I.Background

The Neidenbachs were named insureds on a homeowner insurance policy issued by Arnica. The effective dates of the policy were May 8, 2012, through May 8, 2013. The policy provided, in part,

R. Concealment or Fraud
We provide coverage to no insureds under this policy if, whether before or after a loss, an insured has:
1. Intentionally concealed or misrepresented any material fact or circumstance;
2. Engaged in fraudulent conduct; or
3. Made false statements; relating to this insurance.

On October 10, 2012, either one or two fires occurred at the Neidenbachs’ property. There was substantial damage to the house and the personal property within. After the fire, the Neidenbachs claimed coverage under the insurance policy. They submitted a Sworn Statement in Proof of Loss (Proof of Loss) to Arnica, in which they claimed that their house and garage suffered a total loss. They sought the limits of their policy: $375,000 in damage to their house and garage, and $262,500 in damage to their personal property. Attached to the Proof of Loss was an inventory of the Neidenbachs’ personal property, which assigned a value to each item allegedly lost in the fire. According to the inventory, the total value of the personal property lost in the fire was over $300,000, exceeding the policy limit.

Approximately a year before the fire, the Neidenbachs filed for Chapter 13 bankruptcy. In their bankruptcy petition, the Neidenbachs declared—under penalty of perjury—that they jointly owned only $7,000 worth of household goods and furnishings, clothing, furs, jewelry, firearms, hobby equipment, and other personal property. The Neidenbachs do not dispute that they did not accumulate $255,500 worth of .personal property between filing the bankruptcy petition and submitting the Proof of Loss.

In April 2013, before Arnica made its final coverage determination, the Neiden-bachs filed the present suit in Missouri state court, seeking reimbursement for the fire loss. Arnica removed the case to federal court, and asserted a counterclaim for recovery of advances it had made to the Neidenbachs under the policy. After the close of discovery, Arnica moved for summary judgment, arguing in part that the insurance policy was void under its “Concealment or Fraud” provision because the Neidenbachs misrepresented the value of their personal property in their Proof of Loss.

The district court concluded that no reasonable jury would be able to reconcile the difference between the value of the personal property the Neidenbachs reported as lost in the fire and the value of personal property they reported in their bankruptcy petition a year earlier. Accordingly, the court determined that the insurance policy was void as a matter of law, and granted summary judgment to Arnica on the Neid-enbachs’ claims. The Neidenbachs appeal that determination. We have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

We review de novo the district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonmovants. Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Neidenbachs argue that the district court erred in granting summary judgment to Arnica because there is a genuine issue of material fact as to whether they intentionally made material misrepresentations on their Proof of Loss. In the alternative, they argue that, the insurance policy is severable, and that the alleged misrepresentations void only the portion of the policy covering their personal properly. The parties agree that Missouri substantive law applies,

A. Intentional misrepresentation

The Neidenbachs argue that there is a genuine dispute of material fact as to whether they intentionally misrepresented the value of their personal property in the Proof of Loss. The Neidenbachs reported owning only $7,000 worth of personal property in their bankruptcy petition. However, in their Proof of Loss, they sought reimbursement of $262,500 worth of personal property—a difference of $255,500, As the district court noted, several items listed in the Proof of Loss were not listed in the bankruptcy petition. And many of the items that were listed in the bankruptcy petition were assigned a much higher value in the Proof of Loss than in the petition,

“[í]n the ' absence of contrary proof,” a verified bankruptcy petition is assumed to be “a true and accurate representation of [the petitioner’s] personal property.” Liberty Mut. Fire Ins. Co. v. Scott, 486 F.3d 418, 423 (8th Cir. 2007). Thus; to survive summary judgment, the Neidenbachs were required to produce evidence from which a reasonable jury could find that “the figures [the Neidenbachs] listed in [their] bankruptcy petition were inaccurate,” that “the insurance proof of loss amounts resulted from mistake or were otherwise inadvertent,” or that some other circumstance accounted for the discrepancies between the bankruptcy petition and the Proof of Loss. Id. According to the Neidenbachs, the discrepancies are attributable to three circumstances.

First, the Neidenbachs contend that they used different methods of valuing their property in the Proof of Loss and the bankruptcy petition. The Neidenbachs state in their affidavits that them bankruptcy attorney instructed them to use the “garage sale value” of their personal property in their bankruptcy petition. For the Proof of Loss, on the other hand, they used the “fair market value” of their personal property. According to the Neiden-bachs, the former refers to “what a willing buyer would pay,” while the latter refers to “what a willing buyer would pay AND what a willing seller would sell it for.” The Neidenbachs contend that this explanation was sufficient to create a genuine issue of material fact as to whether they intentionally overstated the value of their personal property on the Proof of Loss.

We disagree. The facts of this case are closely analogous to those of Scott. In Scott, an insured claimed she had lost $93,077,19 worth of personal property in a fire, less than a year after she listed only $830 worth of personal property in her bankruptcy petition. 486 F.3d at 422. She claimed the discrepancy resulted from the different methods she used to calculate the value of her property: She reported the “actual value” of her property on the bankruptcy petition, and the “replacement cost” of her property on her insurance proof of loss. Id. at 423. Applying Missouri law, we concluded that—even assuming the insured was telling the truth about how she calculated the value of her property—“the vast difference in the two values is still too great to be reconciled based on the record before us.” Id Here, the $255,500 discrep: ancy between the Neidenbachs’ Proof of Loss and bankruptcy petition is even greater than the $92,247.19 discrepancy in Scott. And the explanation the Neiden-bachs offer is no more plausible than the one offered by the insured in Scott; if anything, the difference between garage sale value and fair market value is likely to be less than the difference between actual value and replacement cost. Accordingly, no reasonable jury could conclude that the difference between garage sale value and fair market value accounts for a $255,500 discrepancy between the Proof of Loss and the bankruptcy petition.

Next, the Neidenbachs point to Dale Neidenbach’s deposition testimony that their bankruptcy attorney “asked us what we declared on our personal property tax return and that’s the information we gave him” to fill out the bankruptcy petition. As the court understands the argument, the Neidenbachs suggest that they were required to list only some items of personal property on their personal property tax return, and that, therefore, their bankruptcy petition likewise did not include all of their personal property.

But the Neidenbachs have produced no evidence showing what items of personal property they omitted from their personal property tax return. Nor have they cited any authority explaining what personal property is required to be reported on a personal property tax return. Thus, even assuming Dale Neidenbach’s deposition testimony was accurate, we can only speculate as to whether the Neidenbachs owned personal property that was not listed on their personal property tax return. This evidence fails to show more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Finally, the Neidenbachs argue that because their property suffered a total loss, they were legally entitled to seek coverage up to the policy limits, regardless of their property’s true value. Under Missouri law, where an insured’s personal property is totally destroyed, the measure of damages is the “value fixed at the date of the policy, less depreciation from that date to time of the fire.” Duckworth v. U.S. Fidelity & Guar. Co., 452 S.W.2d 280, 285 (Mo. Ct. App. 1970); Mo. Rev. Stat. § 379.160. The insured bears the burden of proving that-no depreciation has occurred. Duckworth, 452 S.W.2d at 285. The Neid-enbachs’ policy limit for personal property was $262,500; thus, they argue, their claim for a $262,500 loss to personal property was not an intentional misrepresentation.

However, as the district court noted, there is no evidence that the Neidenbachs valued their personal property based on their insurance policy limit. Rather, they both state in their affidavits that they calculated the value of their personal property by determining the fair market value of each item. And, in fact, the total value of the personal property listed in the Proof of Loss far exceeds the policy limit. Accordingly, this argument fails to generate • a genuine issue of material fact as to whether the Neidenbachs intentionally misrepresented the value of their personal property in their Proof of Loss.

The Neidenbachs have produced no evidence that they computed the value of their personal property incorrectly on their bankruptcy petition, or that they excluded personal property from the petition because they believed it had no resale value. Cf. Merseal v. Farm Bureau Town & Country Ins. Co. of Mo., 396 S.W.3d 467, 472-73 (Mo. Ct. App. 2013) (concluding the jury’s verdict in favor of the insureds was supported by sufficient evidence where the insureds explained a discrepancy between their insurance claim and bankruptcy petition with evidence that they used a do-it-yourself software program to file for bankruptcy, computed the value of their personal property incorrectly, and excluded some, property because they believed it had no resale value). Similarly, the Neid-enbachs have produced no evidence that they made mistakes on their Proof of Loss. Cf. Young v. Allstate Ins. Co., 685 F.3d 782, 785-86 (8th Cir. 2012) (concluding there was a genuine issue of material fact as to whether the insureds intended to deceive the insurance company where the insureds explained a discrepancy between their initial insurance claim and a revised insurance claim with evidence that their daughter prepared the initial claim, and that they did not realize it contained errors until later). Rather, as in Scott, the only reasonable inference from the record before us is that the insureds intentionally made material misrepresentations in their Proof of Loss.

The Neidenbachs make two additional arguments in opposition to summary judgment (though it is somewhat unclear whether these arguments relate to the misrepresentations in the Proof of Loss, or to other misrepresentations the Neiden-bachs allegedly made). Initially, the Neid-enbachs argue that Arnica has failed to show that their misrepresentations were “material” because Arnica has not shown that it was actually prejudiced by the misrepresentations. However, we agree with the district court that the misrepresentations on the Proof of Loss were material because an accurate inventory of the property destroyed by the fire was necessary for Arnica to make a coverage determination. See Myers v. Farm Bureau Town & Country Ins. Co. of Mo., 345 S.W.3d 341, 349 (Mo. Ct. App. 2011) (“[T]he prejudice to [the insurance company] was obvious: the company was being asked to pay a fraudulent claim.”). Next, the Neidenbachs argue in general terms that Arnica relied on inadmissible hearsay in support of its motion for summary judgment. But they do not identify any particular evidence the district court erred in considering.. Thus, this argument is not sufficiently developed for appellate review, and we decline to address it.

B. Severability

Before oral argument, we instructed the parties to be prepared to address whether the misrepresentations as to the value of the personal property necessarily voided coverage for the dwelling. The parties submitted supplemental briefing on the issue. The Neidenbachs argue that even if the personal property coverage is void because of the misrepresentations in the Proof of Loss, the coverage for the house and garage is not. Arnica, on the other hand, argues that the policy is void in its entirety.

In Missouri, the .interpretation of a contract is a question of law. Schmitz v. Great Am. Assur. Co., 337 S.W.3d 700, 705 (Mo. banc 2011). In interpreting insurance contracts, Missouri courts apply “the meaning that would be understood by an ordinary person of average understanding purchasing the insurance.” Id. at 705-06. Any ambiguities are resolved in favor of the insured. Id. at 706. But an unambiguous policy “will be enforced according to its terms.” Id.

Additionally, in Missouri,
[w]here the policy separates the property insured into distinct classes and specifies the amount'of insurance upon each, the contract is severable into as many contracts as there are separate classes of property insured on separate valuations, and the fact that the policy may be void as to the insurance on one class will not necessarily impair its validity as to another.

Beckon, Inc. v. AMCO Ins. Co., 616 F.3d 812, 816 (8th Cir. 2010) (quoting Fager v. Commercial Union Assurance Co., 189 Mo. App. 464, 176 S.W. 1064, 1065 (1915)),

However, the parties agree that under Missouri law, where an insured breaches an insurance policy by committing a misrepresentation as to one class of coverage, such misrepresentation may void the entire policy, even if the policy would otherwise be severable. See Childers v. State Farm Fire & Cas. Co., 799 S.W.2d 138, 141 (Mo. Ct. App. 1990) (“Under Missouri case law a misrepresentation as to a portion of the loss may void coverage to the entire claim.”); Scott, 486 F.3d at 423 (finding that where an insured made a material misrepresentation as to the value of her personal property, her entire policy was voided); Patterson v. State Auto. Mut. Ins. Co., 105 F.3d 1251, 1253 (8th Cir. 1997) (concluding that a jury instruction was appropriate under Missouri law where it “allowed forfeiture of all benefits even if the jury found that [the insured] made a material misrepresentation with regard to only one type of coverage provided by the policy”).

. As the dissent has- thoroughly and persuasively explained, there are Missouri state court cases that have reached the opposite conclusion. See, e.g., State ex rel. Burton v. Allen, 312 Mo. 111, 278 S.W. 772, 775 (1925) (concluding that a jury instruction “declaring' that a false and fraudulent representation ... avoids the policy as to other articles insured, is in conflict with the decisions of- this court”). Nonetheless, “[a]bsent an intervening opinion by a [state] court,” we are bound by a prior panel’s interpretation of state law. Washington v. Countrywide Home Loans, Inc., 747 F.3d 955, 958 (8th Cir. 2014); see also Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002))). Accordingly, our decisions in Patterson and Scott control our analysis.

Arnica argues that even if the policy might otherwise be severable—which it does not concede—it is not severable in this instance because the Neidenbachs made material misrepresentations during the claims process. The Neidenbachs, on the other hand, argue that this exception to the general severability rule applies only where the language of the policy clearly provides that the entire policy is voided by misrepresentation. The Neiden-bachs. contend that the Concealment or Fraud provision of the policy is ambiguous on that point, because it is unclear whether a misrepresentation voids the entire policy, or merely the class of coverage to which the misrepresentation relates. Thus, according, to the Neidenbachs, we are required to construe the provision. against the insurance provider, and hold that only the personal property portion of the insurance is void.

As described above, the Neidenbachs’ insurance policy states, “We provide coverage to no insureds under this policy if, whether before or after a loss, an insured has ... [i]ntentionally concealed or misrepresented any material fact or circumstance....” We And that this provision unambiguously refers to the entire policy, not just the personal property coverage. To begin with, the cover page of the insurance policy document bears the title “Homeowners Policy.” And the policy consistently uses phrases such as “this policy/’ “your policy,” and “the policy” to refer to the entire policy, not just to specific classes of eoveragé. For example, one portion of the policy reads, “We will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy.” Thus, an ordinary person of average intelligence purchasing insurance would understand the phrase “this policy” to refer to the entire policy. And the fact that the policy might, in some circumstances, be regarded as severable under Missouri law does not change this plain meaning.

Accordingly, we conclude as a matter of law that because the Neidenbachs intentionally made material misrepresentations on the Proof of Loss, their entire insurance policy is void.

III. Conclusion

We affirm the judgment of the district court.

BRIGHT, Circuit Judge,

concurring in part and dissenting in part.

I concur in affirming the district court’s decision to void the personal property coverage of the Neidenbachs’ homeowner’s policy. I believe Liberty Mutual Fire Insurance Co. v. Scott, 486 F.3d 418 (8th Cir. 2007), controls the outcome in this case; I read Scott as holding that a large discrepancy between an insured’s valuation of personal property in a bankruptcy proceeding and the valuation of the same property in an insurance claim—absent evidence the bankruptcy petition was inaccurate or the amounts claimed in the insurance proof of loss resulted from mistake or inadvertence—establishes a material misrepresentation as a matter of law. See id. at 423. As the court notes, the discrepancy between the two values is even larger here than it was in Scott.

I do not believe, however, that a misrepresentation on the personal property coverage necessarily voided the Neidenbachs’ separate coverage for their dwelling. I therefore respectfully dissent from that portion of our opinion, and would reverse the district court’s decision to void the coverage on the dwelling.

In cases dating back as far as 1852, the Missouri Supreme Court has developed a well-established rule of treating each risk insured under a multi-coverage policy as a separate insurance policy. This rule is referred to as the doctrine of separability. Under the doctrine of separability, a misrepresentation as to one covered risk does not necessarily void coverage as to another covered risk unless the insurer shows the misrepresentation was also material to that specific risk. Arnica Mutual did not establish the misrepresentations the Neid-enbachs made with respect to their personal property were material to the separate coverage for the dwelling. As a result, Arnica Mutual was not entitled to summary judgment on the Neidenbachs’ claim for the loss of their home.

The doctrine of separability was first discussed by the Missouri Supreme Court in Loehner v. Home Mutual Insurance Co., 17 Mo. 247, 1852 WL 4280 (Mo. 1852). There the insured made a claim under a policy which .covered both personal property and a building after a mob destroyed the building, a piano, and some household furniture. The insurer sought to void coverage for both the building and the personal property on the grounds that the insured had not disclosed certain material information in the application for the policy, namely, the existence of a deed of trust upon the building, the fact that the building was to be used as a “bawdy house,” and the fact that the insured sold wine on the premises. Id. at 250.

, Although the court held the omissions in the application were warranties which would void the coverage for the building, the court used a different analysis for the separate coverage on the personal property. As to that issue, the court said the coverage would be void only if the insurance company could show the omissions amounted to misrepresentations that were material to the specific risk of insuring the personal property:

With respect to the furniture and piano, although they may be regarded as being insured in the building covered by the insurance, yet, because the statute arbitrarily avoids the policy as to the building, for the want of the disclosure of a fact which did not at all affect the risk of the insurer, we cannot come to the conclusion that the policy was likewise void as to the furniture and piano. The validity of the policy, as to them, will depend upon the answer to the question, whether the concealment or suppression of the facts that the house was incumbered by a deed of trust, was used as a bawdy house, and that wines were sold and drank, as stated in the evidence, did materially enhance the risk of the insurers, or would a knowledge of them have induced a refusal to insure. In relation to this matter, the doctrine of warranties in policies of insurance has no application, but the ground on which the invalidity of the contract of insur-anee is based, is a concealment or suppression of facts material to the risk.

Id. at 256-57.

The Missouri Supreme Court further developed this principle in 1894, in Trabue v. Dwelling House Insurance Co., 121 Mo. 75, 25 S.W. 848 (1894). As is the case here, Trabue involved a loss by fire and an insured’s claim for both personal property and a dwelling under a single policy. The policy had a provision which purported to void the entire policy if there was any change in the interest or title to the home. Prior to the fire, the insured died leaving a wife and four children and a will which divided up the interests in the home among all five of them, thus changing the interest or title to the home. Relying upon the provision purporting to void the entire policy, the insurance company sought to void both the coverage for the home and the personal property. Id. at 848.

Referring to its decision in Loehner, the Missouri Supreme Court rejected the insurer’s position and reaffirmed that—despite the policy language purporting to void the entire policy if there was any change in interest or title to the home— the separate coverage for the personal property remained valid. The court interpreted the policy’s use of the word “entire” to refer only to the portion of the policy affected by the change in title:

No reason is given here why a forfeiture should be enforced, except the insertion of the word “entire” into the policy. The risk was not increased. The premiums were taken, kept, and enjoyed for insurance on the personal property. The policy' as to the house'was avoided, doubtless, through the ignorance of the insured; but they have violated no condition as to this personal property. Holding, then, as we do, that this was a divisible contract, it results that the legal effect is the same as if two distinct and separate policies were issued, and, so reading the contract, we do not reject the word “entire” at all, but apply it to that policy, or portion of this policy, which the insured has forfeited by the change of title to which alone this clause refers [i.e., the coverage on the home]; and it avoids that “entire” policy, and hot the policy in which no condition or warranty has been broken [i.e., the coverage on the personal property].

Id. at 850.

In describing the holding in Loehner, the court said:

As early as the case of Loehner v. Insurance Co., 17 Mo. 247, it was held by this court that where a firm obtained insurance upon a storehouse and a stock of goods therein in separate amounts, and the insurance on the house was avoided because the interest in the. house was incorrectly described in the application, the policy was not vitiated as to the goods; in other words, this court then held that such a contract was divisible.

Id. at 849.

The Missouri Supreme Court also discussed the sound policy reasons behind dividing a multi-coverage policy into separate policies when the insurer calculates each risk separately:

When one applies for distinct and separate insurance, a part on real estate, a part on personal property, he can require two separate policies. The accidental circumstance that for convenience merely they are included’ in one policy does not merge them into one. If the goods alone were destroyed, the terms of the policy applying to them alone could be made the basis of recovery. ... There is nothing to indicate the company would not have assumed the risk on the house without taking one also on the goods, nor vice versa.

Id.

The rule of law announced by the Missouri Supreme Court in Loehner and Tra-bue was articulated by the Missouri Court of Appeals in 1915 in Fager v. Commercial Union Assurance Co., 189 Mo.App. 464, 176 S.W. 1064 (1915). In Fager, the court said:

Where the policy separates the property insured into distinct classes and specifies the amount of insurance upon each, the contract is severable into as many contracts as there are separate classes of property insured on separate valuations, and the fact that the policy may be void as to the insurance on one class will not necessarily impair its validity as to another.

Id. at 1065 (citing Loehner, Trabue, Koontz v. Hannibal Savings & Ins. Co., 42 Mo. 126 (1868); and Crossan v. Pa. Fire Ins. Co., 133 Mo.App. 537, 113 S.W. 704 (1908)).

Koontz, one of the cases Fager cites, also involved a misrepresentation claim under a policy covering both a building (a stable) and personal property (horses and other personal property located in the stable) from loss by fire. The insured misrepresented in the application that he owned the stable outright, when it was actually encumbered by a deed of trust. 42 Mo. at 128. The question presented was whether that misrepresentation also voided the separate coverage on the personal property. The court followed the rule announced in Loehner where “it was held that although a failure to disclose an encumbrance would avoid a policy on a house insured, yet it would not avoid it as to furniture insured in the same policy, but separately appraised, unless the fact concealed was shown to be material to the risk.” Id. at 129 (emphasis added). The court then held that the misrepresentation about the encumbrance on the building did not void the separate coverage for the personal property, because the “other property was separately valued and appraised, and there is nothing to show that the representation as to encumbrances on the stable formed an inducement to the execution of the policy covering the personal property.” Id at 130; see also State ex rel. Burton v. Allen, 312 Mo. 111, 278 S.W. 772, 775 (1925) (agreeing with a party’s argument that a jury instruction “declaring that a false and fraudulent representation that plaintiff was the owner of the stock ■ described avoids the policy as to other articles insured, is in conflict with the decisions of this court” and holding that alleged misrepresentations as to number of horses and mules separately valued under a policy that also insured vehicles and harnesses did. not void the separate coverage on the vehicles and harnesses). ■ •

The doctrine of separability developed by the Missouri Supreme Court in these early cases is still the law in Missouri. See, e.g., Beckon v. Amco Ins. Co., 616 F.3d 812, 817 (8th Cir. 2010) (applying the doctrine of separability under Missouri law and holding that a lack of insurable interest on an insured building did not necessarily void separate coverage for personal property); Consumer’s Money Order Corp. of Am., Inc. v. New Hampshire Ins. Co., 386 S.W.2d 674, 677 (Mo. Ct. App. 1964) (“If the character of the risks assumed is such that what affects the risk on one item does not affect the risk on the others the parties must have intended that the policy should be regarded as severable and divisible, and any warranty the breach of which could only affect one item will be deemed directed to that item and not to the policy as a whole.”); Allstate Indem. Co. v. Rice, No. 4:12-CV000178, 2013 WL 1314195, at *2 (W.D. Mo. March 28, 2013) (“Missouri law holds that where there exists a multi-coverage policy, each coverage may be analyzed as a separate contract of insurance. See Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 25 S.W. 848 (1894) (holding an insurance contract to be divisible to the effect of having two distinct and separate policies regarding coverage of the dwelling house and coverage of personal property).”).

In Hesselberg v. Aetna Life Insurance Co., we specifically noted that the doctrine of separability applies under Missouri law unless the “untrue representation affects all parts of the insurance contract.” 102 F.2d 23, 26 (8th Cir. 1939) (emphasis added). In other words, consistent with what the Missouri Supreme Court has said time and again, we recognized that a particular misrepresentation must be material to a specific insured risk in order to void that specific coverage in a multi-coverage policy.

My colleagues conclude we are bound by Patterson v. State Automobile Mutual Insurance Co., 105 F.3d 1251 (8th Cir. 1997). I disagree. True, Patterson held that “both federal' and state courts applying Missouri law have specifically stated that Missouri common law permits forfeiture ,.. of all benefits even if the jury found that Mr. Patterson made a material misrepresentation with regard to only one type of coverage provided by the policy[.]” Id at 1253. But four of the five cases to which Patterson referred were fraud cases, not misrepresentation cases, and were decided on fraud principles. See Vitale v. Aetna Cas. & Surety Co., 814 F.2d 1242, 1247-48 (8th Cir. 1987) (involving alleged arson where the insurer denied coverage on the basis of “fraud in the filing of an insurance claim” under a policy which barred all coverage “in the case of any fraud or false swearing by the insured relating thereto”); Farm Bureau Town & Country Ins. Co. v. Crain, 731 S.W.2d 866, 875 (Mo. Ct. App. 1987) (involving a “false swearing” fraud case); Arel v. First Nat’l Fire Ins. Co., 195 Mo. App. 165, 190 S.W. 78, 80 (1916) (involving a “false and fraudulent swearing” case decided on fraud principles); Hall v. W. Underwriters’ Ass’n, 106 Mo.App. 476, 81 S.W. 227, 227 (1904) (same).

As Arnica Mutual is quick to note, however, Missouri law distinguishes between fraud and misrepresentation. Arnica Mutual argues “Missouri courts consistently hold that an insurer is not required to prove the elements of fraud in order to avoid coverage [due to a misrepresentation].” Appellee’s Br; at 15 (citing Emp’rs. Mut. Cas. Co. v. Tavernaro, 4 F.Supp.2d 868, 870 (E.D. Mo. 1998)). Here, Arnica Mutual seeks to void coverage relying upon the policy’s misrepresentation clause, without proving the elements of fraud. Arnica Mutual therefore cannot rely upon cases decided under fraud principles in this misrepresentation case. Similarly, Patterson’s application of fraud cases to a misrepresentation claim was unsound.

Although the fifth case to which Patterson referred was a misrepresentation case, Childers v. State Farm Fire & Casualty Co., all the Missouri Court of Appeals said in Childers -was that “[u]nder Missouri case law a misrepresentation as to a portion of the loss may void coverage to the entire claim.” 799 S.W.2d 138, 141 (Mo. Ct. App. 1990) (emphasis added). That statement is true, and not inconsistent with the Missouri Supreme Court’s well-entrenched separability doctrine, where an insured may void all parts of a policy by showing the misrepresentation was material to each specific insured risk, but may not without making that requisite showing. To be consistent with Missouri Supreme Court decisions, the Missouri Court of Appeals’ use of the word “may” in Childers must be viewed as conditional—allowing a misrepresentation to void an entire policy only when the insurer makes the requisite showing'required by the separability doctrine. Instead, our court reads the word “may” as permissive—allowing an insured to void all coverage under all circumstances. Where there is an interpretation of Childers that can be harmonized with Missouri Supreme Court decisions, we should not adopt an inconsistent one.

Every case cited in both Patterson and Vitale were decisions from the Missouri Court of Appeals, not the Missouri Supreme Court. If there is a conflict between the “false swearing” fraud cases decided by the Missouri Court of Appeals (or the Childers case) and the separability doctrine/misrepresentation cases decided by the Missouri Supreme Court, we are bound to follow the latter. See Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921, 925 (8th Cir. 2015) (“In deciding matters of state law, we are bound by the decisions of the state’s highest court.”) (internal quotation marks and citation omitted).

Most importantly, the holding in Patterson conflicts with our recognition in Hesselberg that Missouri’s doctrine of separability applies unless the “untrue representation affects all parts of the insurance contract,” i.e., the insurer shows the misrepresentation is material to each specific insured risk. 102 F.2d at 26 (emphasis added). Hesselberg was decided prior to Patterson, and thus Hesselberg should control our decision in this case and not vice versa. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“[W]hen faced with conflicting panel opinions, the earliest opinion must be followed as it should have controlled the subsequent panels that created the conflict.”) (internal citation and quotation marks omitted). In addition, correctly interpreting the word “may” in Childers consistent with controlling Missouri Supreme Court decisions does not result in any intervening change in state law that would allow Patterson (or Scott) to implicitly overrule Hesselberg. Finally, Childers should not be considered an intervening state court decision in conflict with Hes-selberg in any event, because it is not a decision from the Missouri Supreme Court. See Beckon, 616 F.3d at 820 (explaining that a federal court must follow an intervening state court decision that cannot be harmonized with a prior federal appellate decision “[w]hen the highest court of a state disposes of an issue of state law contrary to the resolution of the issue theretofore suggested by a federal court”) (emphasis added) (internal citation and quotation marks omitted). As a result, the Patterson panel was not at liberty to use Childers to implicitly overrule Hesselberg’s correct application and interpretation of the Missouri Supreme Court’s well-developed separability doctrine.

Arnica Mutual has not yet shown that any misrepresentations the Neidenbachs made with respect to their personal property were material to the separate risk of insuring their dwelling. I therefore would reverse the district court’s grant of summary judgment with respect to the separate coverage on the dwelling, and remand this case for further proceedings.

      . The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri.

      . It is true that in 1939, an Eighth Circuit panel concluded that, under Missouri law, "[t]he doctrine of separability does not apply where the fraud or untrue representation affects all parts of the insurance contract.” Hesselberg v. Aetna Life Ins. Co., 102 F.2d 23, 26 (8th Cir. 1939) (emphasis added). And, generally, "when faced with conflicting panel opinions, the earliest opinion must be followed ‘as it should have controlled the subsequent panels that created the conflict.’ ” Mader, 654 F.3d at 800 (quoting T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006)). But in this instance, we conclude that Patterson and Scott implicitly overruled Hes-selberg on the basis of an intervening state court opinion. See Scott, 486 F.3d at 423 (citing Childers, 799 S.W.2d at 141); Patterson, 105 F.3d at 1253 (same). Because a prior panel’s interpretation of state law is binding only in the absence of an intervening state court opinion, Patterson and Scott were not obligated to follow Hesselberg. But until a Missouri state- court issues an intervening opinion on this point, we are obligated to follow Patterson and Scott,

      . To the extent the result in Vitale was based on the policy's misrepresentation provision, as opposed to its fraud provisions, the case is distinguishable from the circumstances present here because the “destruction of the [entire] property by arson and the amount, if any, of [the insured's] business interruption damages [were] material to the insurance contract as a whole.” 814 F.2d at-1250, Here, Arnica Mutual has not yet shown that the misrepresentations the Neidenbachs made with respect to their personal property were material to the separate coverage on the dwelling.


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Richard Angelo MCFEE, Defendant-Appellant
    No. 16-1304
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: November 17, 2016

      James Sanderson Alexander, Jeffrey S. Paulsen, Assistant U.S. Attorney, U.S. ATTORNEY’S OFFICE, District of Minnesota, Minneapolis, MN, for Plaintiff-Appel-lee.
    Richard Angelo McFee, Springfield, MO, pro se.
    Robert M. Paule, ROBERT M. PAULE, Minneapolis, MN, for Defendant-Appellant.
    Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

On May 10, 2015 Richard Angelo McFee discharged a firearm into an occupied residence. McFee was subsequently indicted on one count of being a felon in possession of a firearm to which he pled guilty. See 18 U.S.C. § 922(g)(1), At sentencing the district court determined that.he had three prior convictions that qualified as Armed Career Criminal Act (ACCA) predicate offenses. The court then sentenced him to 180 months imprisonment. McFee appeals, arguing that his prior conviction under Minn. Stat. § 609.713, subd. 1 (2004) for making terroristic threats does not qualify as an ACCA predicate offense. We vacate McFee’s sentence and remand for resen-tencing.

We review de novo whether a conviction qualifies as an ACCA predicate offense. United States v. Headbird, 832 F.3d 844, 846 (8th Cir. 2016). The ACCA imposes a mandatory minimum fifteen year sentence if a defendant has been convicted as a felon in possession of a firearm “and has three previous convictions ... for a violent felony.” 18 U.S.C., § 924(e)(1). The ACCA defines “violent felony” to include any federal or state offense punishable by more than one year imprisonment that either: “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B). The former is known as the force clause and the latter is known as the enumerated clause. See United States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016). Since McFee’s prior conviction is for terroristic threats, the only issue here is whether it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B).

To determine whether a prior conviction qualifies as an ACCA predicate offense under the force clause, we typically “apply a categorical approach, looking to the elements of the offense as defined in the ... statute of conviction rather than to the facts underlying the defendant’s prior conviction.” United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016) (quoting United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012)) (alteration in Dawn). If the statute of conviction is divisible however in that it defines multiple crimes, some of which are ACCA predicate offenses “and some of which are not, we apply a modified categorical approach to look-at the charging document, plea colloquy, and comparable judicial records for determining which part of the statute the defendant violated.” Id. “We then determine whether a violation of that statutory subpart is” an ACCA predicate- offense. Id.

Minnesota’s terroristic threats statute makes it a crime to “threaten[ ], directly dr indirectly, to commit any crime of Violence with purpose to terrorize another ... or in a reckless disregard of the risk of causing such terror.” Minn. Stat. § 609.713, subd. 1 (2004). The statute then states that “ ‘crime of violence’ has the meaning given ‘violent crime’ in section 609.1095, subdivision 1, paragraph (d).” Id. Section 609.1095, subd. 1(d) (2004) provides a list of crimes that qualify as “violent crime[s].”

Some of the crimes' listed in Minn. Stat. § 609.1095, subd, 1(d) (2004) qualify as ACCA predicate offenses and some do not. See United States v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011). A Minnesota terroristic threats conviction thus is not an ACCA predicate offense under the categorical approach. See Rice, 813 F.3d at 705. We must therefore decide whether we may apply the modified categorical approach to determine which crime McFee threatened to commit. See id. We may only apply the modified categorical approach if the statute is divisible. See Headbird, 832 F.3d at 846.

To determine whether Minnesota’s terroristic threats statute is divisible, we must ascertain “which words or phrases in the statute are elements of the crime” as opposed to the means, or specific facts, of satisfying these elements. Headbird, 832 F.3d at 847. A list of alternative elements is divisible, but a list of alternative means is not. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). The elements of a crime “are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.” Id. at 2248 (citation omitted). The specific facts underlying a prior conviction, however,- are “mere real-world things—extraneous to the crime’s legal requirements.” Id.'In Mathis the Supreme Court held that when analyzing which words or phrases of a statute constitute the elements of a crime, courts may look to state court decisions, the statute of prior conviction, and, as a last resort, “the record of a prior conviction itself.” Id. at 2256.

We conclude that the Minnesota terroristic threats statute’s definition of “crime of violence” is not divisible. The statutory construction here supports that conclusion. In Headbird we concluded that if a phrase is defined in a separate statutory section, that “provides textual support” that the definition is a list of “means by which [an] element may be committed.” 832 F.3d at 849. The fact that the definition of “crime of violence” is contained in a separate section of the Minnesota criminal statutes thus provides textual support for the- conclusion that the term “crime of violence” is intended to be an element of the crime and that the list of violent crimes in Minn. Stat. § 609.1095, subd. 1 contains alternative means by which that element may be committed. See id.

The record in McFee’s conviction for terroristic threats also' indicates that the definition of “crime of violence” is a list of means, not elements. In Mathis, the Supreme Court held that courts may look to the record of a prior conviction “if state law fails to provide clear answers.” 186 S.Ct. at 2256. Here, McFee’s charging document charged him with “wrongfully and unlawfully directly or indirectly threaten[ing] to commit a crime of violence, with purpose to cause, or in reckless disregard of the risk causing terror in another.” Since the charging document used the “single umbrella term” of “crime of violence” without specifying the particular crime threatened, the record suggests that the prosecution was only required to prove that McFee threatened a “crime of violence” but not the particular crime he threatened. See id. at 2257.

Moreover, at least one other circuit court has concluded that a similar terroristic threats statute is indivisible as to the specific crime threatened. United States v. Brown, 765 F.3d 185, 191-93 (3d Cir. 2014). In Brown, the statute at issue defined terroristic threats as “communicating], either directly or indirectly, a threat to: (1) commit any crime of violence with intent to terrorize another.” Id. at. 191 (quoting 18 Pa. Cons. Stat. § 2706(a)) (alteration in Brown). Another Pennsylvania statute defined “a ‘crime of violence’ for purposes of sentencing.” Id. at 192 (citing 42 Pa., Cons. Stat. § 9714(g)). The court thus concluded that the statute defining a “crime of violence” was a list of means because it was contained in a separate statutory section. See id. at 193.

The government argues that the Minnesota Court of Appeals concluded in State v. Jorgenson, 758 N.W.2d 316 (Minn. Ct. App. 2008), that the particular crime of violence threatened is an element- of Minnesota’s terroristic threats statute. The defendant in Jorgenson argued that the district court committed plain error by instructing the jury that the first element of terroristic threats was that “the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence.” Id. at 320 (emphasis removed). The defendant argued that it was plain error to instruct the jury that assault was a crime of violence because the definition of “crime of violence” includes first through third degree assault, but excludes fourth degree, fifth degree, and domestic assault. Id. at 323.

The Jorgenson court concluded that the instruction was erroneous because “instead of advising the jury that only assault in the first, second, and third degree are crimes of violence, the [district] court merely stated, ‘You are instructed that assault is a crime of violence.’ ” Jorgenson, 758 N.W.2d at 323-24. The court then determined that this error was plain because the instruction did not “specifically limit the definition of ‘violent crime’ to the applicable offenses listed in Minn. Stat. § 609.1095, subd. 1(d).” Id. at 324. The court indicated that in the future, district courts should instruct juries on “which predicate offenses constitute a violent crime and which do not for purposes of the facts of a particular case.” Id

The government’s argument that Jor-genson concluded that the particular crime of violence threatened is an element of Minnesota’s terroristic threats statute primarily relies on a statement in the opinion that “[t]o convict a defendant on a charge of felony terroristic threats, a jury must find that the defendant threatened a specific predicate crime of violence, as listed in Minn. Stat. § 609.1095.” Jorgenson, 758 N.W.2d at 325. This statement by the court was made in support of its conclusion that the erroneous jury instruction “affect[ed] the outcome of the case.” Id, The court was therefore explaining that the instruction that “assault is a crime of violence” affected the outcome of the case because the jury could have “interpreted the phrase ... to include all levels of assault,” which includes three levels of assault not listed as crimes of violence in Minn. Stat. § 609.1095. Id. Read in the context of the whole opinion, however, this quotation merely stands for the proposition that the jury must find that a defendant committed a crime of violence, as defined by Minn. Stat. § 609.1095, not that it must unanimously find which specific crime of violence a defendant threatened to commit,

We conclude that the phrase “to commit any crime of violence” is an element of the Minnesota terroristic threats statute, Minn. Stat. § 609.713', subd. 1, and that the separate definition of “crime of violence” in § 609.1095, subd. 1(d), lists means by which that element is met. The element “to commit any crime of violence” is not divisible. Minnesota’s definition of “crime of violence” is broader than the ACCA requirement that a prior conviction have “as an element the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B). McFee’s prior conviction for terroristic threats thus was not an ACCA predicate offense, and he does not qualify as an armed career criminal because he had only two prior ACCA predicate convictions.

For these reasons we vacate McFee’s sentence and remand for resentencing consistent with this opinion.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Roxanne MERRELL, Defendant-Appellant
    No. 15-3211
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: November 18, 2016

      Katharine Thornton Buzicky, Assistant U.S. Attorney, Sarah Elizabeth Hudleston, U.S. Attorney’s Office, Minneapolis, MN, for Plaintiff-Appellee.
    Deborah Kay Ellis, Deborah Ellis Law Office, Saint Paul, MN, for Defendant-Appellant.
    Roxanne Merrell, Pro Se.
    Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

Roxanne Merrell was convicted by a jury of two counts of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). The district court sentenced Merrell to 240 months imprisonment on each count, to be served concurrently. Merrell appeals, challenging various aspects of her trial and sentencing proceeding. We affirm.

I.

In 2013 the Department of Homeland Security (DHS) began investigating Travis Guenthner for the production of child pornography. The DHS investigation ultimately uncovered 50,000 photographs and 90 videos of suspected child pornography on Guenthner’s various computers and devices. That same year Guenthner pled guilty to five counts of sexual exploitation of minors and two counts of coercion or enticement and was sentenced to life in prison.

Among the child pornography found in Guenthner’s possession was a folder containing sexually explicit photographs of the torso region of a prepubescent girl (Minor A). A woman’s hands are visible in some of the images in the folder, sometimes spreading Minor A’s genitals apart. Through forensic examinations the investigators determined that these photos were created in 2010.

In 2014 Guenthner told investigators that Merrell had sent him the images of Minor A and that she had produced the images at his request. Law enforcement officers then obtained two search warrants, one for Merrell’s home and the other for the search of “[t]he person of Roxanne Merrell, specifically body views and photography of her hands.” Merrell was interviewed by officers during the execution of the warrants. In her recorded interview, she admitted that she had taken the pictures of Minor A sleeping and that her own hands appeared in the photographs. Officers took Merrell to a police station after this interview and recorded 47 photographs of her hands.

Merrell was indicted on two counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). At trial, the government elicited the testimony of federal agents and introduced audio clips of Merrell’s initial interview with law enforcement officers and cell phone records indicating that she and Guenthner had telephoned each other around the time of the alleged offenses. The government also called special agent James Cole as an expert witness. Over Merrell’s objections, Cole testified that it was likely that the adult hands •visible in the photographs of Minor A were hers.

The government also called Matthew Stephenson, a child protection worker who had conducted a videotaped interview of Minor A prior to trial. When asked on direct examination about Minor A’s reaction when she saw one of the photos of herself found in Guenthner’s possession, Stephenson testified that “[Minor A] seemed shocked and confused.” On cross examination, Stephenson testified about the questions he had posed to Minor A in the interview, but not her answers. After the government rested, Merrell attempted to introduce the videotape of Stephenson’s interview of Minor A. The district court excluded the videotape as hearsay.

The jury found Merrell guilty on both counts. At sentencing the district court determined that the applicable guideline range was 360 months to life, but varied downward and imposed a sentence of 240 months imprisonment on eách count, to be served concurrently. Merrell appeals.

II.

Merrell first argues that the district court erred by denying her motion to suppress the 47 photographs of her hands taken during execution of the search warrant. When reviewing the denial of a suppression motion, the district court’s findings of fact are examined for clear error and its conclusions of law are reviewed de novo. United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). Since there is no dispute about the relevant facts, we give de novo consideration to Merrell’s arguments regarding the constitutionality of the search.

Merrell contends that the 47 photographs should have been suppressed because they exceeded the scope authorized by the search warrant. We disagree. Although Merrell is correct that the Fourth Amendment requires a warrant to describe particularly “the things to be seized,” there is no requirement that “search warrants ... include a specification of the precise manner in which they are to be executed.” Dalia v. United States, 441 U.S. 238, 255, 257, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (citation omitted). We generally leave the “details of how best to proceed with the performance of a search authorized by warrant” to the judgment of the officers responsible for the search. Id. at 257, 99 S.Ct. 1682. In this case, the warrant specified that law enforcement could search “[t]he person of Roxanne Merrell, specifically body views and photography of her hands.” The manner in which the officers carried out the search here did not exceed the scope of the warrant.

Nor do we agree with Merrell that the photography process exceeded the bounds of reasonableness required by the Fourth Amendment. See U.S. Const, amend. IV; see also Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th Cir. 1994) (noting that a valid warrant does not immunize the execution of a search from reasonableness review). The Fourth Amendment reasonableness standard “is flexible” and intends to balance the private interests of citizens against the countervailing public interests of law enforcement. See United States v. Bach, 310 F.3d 1063, 1067 (8th Cir. 2002); see also Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam). Mer-rell argues that such a balance was exceeded in her case because it was not necessary to take her to the police station or to touch her in order to obtain the photographs. The fact that there may be less intrusive means by which law enforcement officers. could conduct a search does not make it necessarily unreasonable, however. United States v. Williams, 477 F.3d 974, 976 (8th Cir. 2007). Moreover, the abbreviated physical touching of Merrell was limited to her hands during a twenty minute period. Based on the totality of the circumstances, we conclude that the manner in which law enforcement executed the search warrant here was reasonable.

Finally, we reject Merrell’s argument that her due process rights under the Fourteenth Amendment were violated because the warrant’s execution was an “identification procedure” that had been “suggestive and unnecessary.” The photographing of Merrell’s hands by law enforcement officers. did not amount to an identification procedure, as Merrell terms it, because the photographs were not being presented to an eyewitness for the purpose of identifying an alleged criminal perpetrator. See, e.g., Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 721, 181 L.Ed.2d 694 (2012). Rather, the photographs were evidence gathered during the execution of a valid search warrant. Mer-rell’s due process rights were therefore not violated.

III.

Merrell next argues that the district court erred by admitting the expert testimony of special agent Cole. The admission or exclusion of expert testimony is reviewed for abuse of discretion. United States v. Roach, 644 F.3d 763, 763 (8th Cir. 2011) (per curiam). Under Federal Rule of Evidence 702 an expert witness may provide opinion testimony if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

When assessing whether expert testimony is based on scientific knowledge, trial courts, may consider various factors including: (1) whether the expert’s technique can be tested, (2) whether the technique “has been subjected to peer review and publication,” (3) whether there is a “known or potential rate of error,” and (4) whether the technique is generally accepted within the relevant scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). These same factors may also be relevant in assessing the admissibility of an expert’s testimony on the basis of “technical, or other specialized knowledge.” Fed. R. Evid. 702(a); see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In the case of all expert testimony the district court serves as a gatekeeper to ensure that only reliable and relevant, expert testimony is presented to a jury. See Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167.

Assuming Merrell is correct that the district court abused its discretion by failing to exclude Agent Cole’s testimony, this failure was harmless. Improperly admitted testimony warrants reversal of a conviction if the testimony “substantially influence^] the jury’s verdict.” United States v. Iron Hawk, 612 F.3d 1031, 1039 (8th Cir. 2010). Agent Cole’s testimony could not have substantially influenced the jury’s verdict here because of the overwhelming evidence provided by the government of Merrell’s guilt. Most important was Merrell’s confession which had been captured on tape by law enforcement officers. In that tape, she admitted that she had produced the child pornography at issue and that the adult hands visible in the photographs were hers. Merrell’s confession was corroborated by evidence of the phone records between Merrell and Guenthner around the time the photographs were produced. Since substantial evidence other than Agent Cole’s testimony supported the jury’s verdict, its improper admission does not warrant reversal for a new trial. See id.; see also United States v. Oliver, 908 F.2d 260, 264 & n.3 (8th Cir. 1990).

IV.

Merrell’s third claimed error relates to the district court’s exclusion of the videotape of Stephenson’s interview of Minor A as hearsay. We review the evidentia-ry rulings of a district court for abuse of discretion ánd will not substitute our judgment for its judgment. United States v. Condon, 720 F.3d 748, 754 (8th Cir. 2013). The district court did not abuse its discretion here.

Merrell .argues that the videotaped interview of Minor A was admissible because it fell within two exceptions to the hearsay rule: (1),.present sense impressions, and (2) then existing mental, emotional, or physical conditions. See Fed. R. Evid. 803(1), (3). Even assuming that Minor A’s statements fell within an exception to the hearsay exclusion, we see no abuse of discretion by the district court’s decision to exclude the statements under Federal Rule of Evidence 403.

Merrell argues that the failure to admit the videotape of Minor A’s interview kept her from putting on an effective' defense because she was prevented from presenting witnesses on her own behalf. There is no indication that the district court prevented Merrell from calling Minor A as a witness, however. Furthermore, Merrell fails to identify a single, critical statement made by Minor A in the interview that would have had the potential to affect the outcome of the case. We see no abuse of discretion in the district court’s conclusion that any probative value was substantially outweighed by the videotape’s potential to confuse the issues. See Fed. R. Evid. 403.

V.

Merrell also contends that the district court erred with respect to the jury instruction on lascivious exhibition. We review a challenge to a jury instruction for abuse of discretion and “will affirm so long as ‘the instructions, taken as a whole, fairly and adequately submitted the issues to the jury.’ ” United States v. Aleman, 548 F.3d 1158, 1166 (8th Cir. 2008) (quoting United States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001)).

The district court used the Eighth Circuit Model Instruction on lascivious exhibition, which is as follows:

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material. You may consider such factors as (1) whether the focal point of the picture is on the minor’s genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in. a place or pose generally associated with sexual activity; (3) whether the minor is, depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; (8) the caption(s) on the picture(s).
It is for you to decide the weight or lack of weight to be given to any of these factors. A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.

Model Crim. Jury Instr. 8th Cir. § 6.18.2252A (2014). Merrell asked the district court additionally to instruct the jury on the definition of lascivious exhibition outlined in the Modern Federal Jury Instruction treatise available on LexisNexis, which states:

The term “lascivious exhibition” means a depiction which displays or brings to view to attract notice to the genitals or pubic area of children in order to excite lustfulness or sexual stimulation in the viewer. Not every exposure of the genitals or pubic area constitutes a lascivious exhibition.

Leonard B. Sand et al., 3 Modern Federal Jury Instructions-Criminal Instr. 62-7 (2016). Merrell contends the district court’s refusal to give her proposed definitional instruction did not fairly submit the issues to the jury because the jury was deprived of an opportunity to assess whether the photographs were “clinical” and therefore not lascivious exhibition.

We see no abuse of discretion in the instructions given by the district court. It is well settled that a defendant “is not entitled to a particularly-worded instruction when the instructions actually given by the trial court adequately and correctly cover the substance of the requested instruction.” United States v. Espinoza, 684 F.3d 766, 783 (8th Cir. 2012) (quoting United States v. Cruz-Zuniga, 571 F.3d 721, 725 (8th Cir. 2009)). Such is the case here. We therefore conclude the district court did not abuse its discretion when it declined to give the specific instruction on lascivious exhibition requested by Merrell.

VI.

Merrell’s final argument is that the district court committed procedural error at her sentencing proceeding and that her sentence is substantively unreasonable. Since Merrell did not object during her sentencing proceeding, we review the district court’s actions at sentencing for plain error. United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016). We review the substantive reasonableness of Merrell’s sentence for abuse of discretion. United States v. Maxwell, 778 F.3d 719, 734 (8th Cir. 2015).

The procedural error claimed by Merrell is the district court’s alleged failures adequately to consider the sentencing factors outlined in 18 U.S.C. § 3553(a) or to explain the reasons for the sentence imposed. A district court is not required to recite the § 3553(a) factors mechanically or to “make specific findings on the record” about each factor. United States v. Fry, 792 F.3d 884, 891 (8th Cir. 2015) (quoting United States v. Deegan, 605 F.3d 625, 630 (8th Cir. 2010)). Instead, we review the record to ensure the district court gave due consideration to the statutory factors in fashioning the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). If a case “is conceptually simple, and the record makes clear that the sentencing judge considered the evidence and arguments, the law does not require the judge to write or say more.” Chavarria-Ortiz, 828 F.3d at 671 (citing Rita v. United States, 551 U.S. 338, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).

After careful review of the record in this case, we conclude the district court committed no procedural error. At sentencing the district court heard argument from counsel for Merrell and from counsel for the government, as well as statements by Merrell and Minor A’s father. The district court made clear that the sentence imposed was “appropriate and reasonable in light of the considerations set forth in 18 United States Code, Section 3553(a).” The court specifically noted that it had taken into consideration Merrell’s history and characteristics and the offense conduct at issue, concluding the “sentence- imposed is sufficient, but not greater than necessary, to afford adequate deterrence to future criminal conduct.” In the context of this case, we do not think the district court was required to say more.

Nor do we conclude that Merrell’s 240 month sentence on each count, to be served concurrently, .is substantively unreasonable. A sentence is substantively unreasonable if the district court “fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). Merrell argues that her sentence is substantively unreasonable because other defendants in this circuit have received shorter sentences for comparable offense conduct. At base, this is a disagreement with the manner in which the district court weighed the § 3553(a) factors in her case and does not establish that the district court abused its discretion. See United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010),

Moreover, we note that the district court varied downward 120 months from the bottom of the guideline range. As we have said before, “when a district court has sentenced a defendant below the advisory guidelines range, it is nearly inconceivable that the court abused its discretion in not varying downward still further.” Maxwell, 778 F.3d at 734 (citation omitted) (internal quotation marks omitted). Merrell. has failed to establish that hers is the rare case in which a decision not to vary further amounted to an abuse of discretion.

VII.

Accordingly, we affirm the judgment of the district court.

      . The Honorable David S. Doty, United States District Judge for the District of Minnesota.

      . The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the District of Minnesota, prepared a report and recommendation on Merrell’s pretrial motion to suppress which was subsequently adopted by Judge Doty.


author: GRUENDER, Circuit Judge.

text:
    Jill S. N. SCHAFFER; Callissa A. Schaffer, Plaintiffs-Appellants v. Bryan BERINGER, in his individual capacity; Jacy Nelsen, in her individual capacity; Jessica Wade, in her individual capacity; Mark Foley, in his individual capacity; Matt Betzen, individually and in his official capacity, Defendants-Appellees
    No. 15-3438
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: November 21, 2016

      Counsel who presented argument on behalf of the appellant was Jill Nikoleit Schaffer, of Vermillion, SD. of Vermillion, SD.
    Counsel who presented argument on behalf of the appellee was Joel Edgar Engel, III, of Sioux Falls, SD.,The following attorney(s) appeared on the appellee brief; Gary P. Thimsen, of Sioux Falls, SD.
    Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
   GRUENDER, Circuit Judge.

Jill and Callissa Schaffer brought this civil rights action under 42 U.S.C. § 1983 against officers of the Vermillion Police Department (“VPD”), alleging that the officers violated their First and Fourth Amendment rights. The district court. granted the officers’ motion for summary judgment, and we affirm.

I.

At approximately 12:15 a.m. on May 30, 2014, Vermillion Police Officer Mark Foley observed a car driving with a broken tail light. Officer Foley followed the car for four blocks, during which he observed no abnormal driving behavior. He-then initiated a traffic stop. Eighteen-year-old Cal-lissa Schaffer was the driver of the car, which belonged to Lee Sappingfield, who was located in the backseat. A third individual, Marilyn Wingo, was in the front passenger seat. . .

Officer Foley first asked to see Callissa’s driver’s license, which she did not have. He then asked for her name and date of birth, which she provided. During this conversation, Officer Foley smelled a strong odor of alcohol emanating from inside the car. Officer Foley contacted dispatch and requested that Officer Bryan Beringer come to his location. Officer Foley then asked Callissa to step out of the vehicle and asked her if she had been drinking, which she denied.

Officer Foley requested that Callissa take a preliminary breath test (“PBT”). Callissa declined the PBT and then called her mother, Jill Schaffer, to the scene. Meanwhile, Officer Beringer had arrived and began talking to Wingo, who admitted consuming several beers earlier even though she was only seventeen years old. Sappingfield also had consumed alcohol, but he was of legal age. Officer Beringer then walked over to Officer Foley and Callissa and observed that Callissa’s face was flushed and that her eyes were watery. Neither officer could determine whether the smell of alcohol was coming directly from Callissa or from the car.

Jill, an attorney, then arrived at the scene. She stood between the officers and Callissa and argued that the officers had no reason to think Callissa had been drinking. Jill also threatened to file a civil rights suit against the officers. Officer Beringer explained to Jill that she was physically and verbally obstructing a police investigation and then called Sergeant Jacy Nelsen to the scene.

Sergeant Nelsen arrived with Officer Jessica Wade. Sergeant Nelsen informed Jill that she needed to either step aside or be arrested, and Jill stepped aside. Callis-sa was again asked whether she would take a PBT and was informed that if she refused she would be detained at the police station while they sought a warrant. Callis-sa again refused the PBT. Callissa and Wingo both were placed in. handcuffs and frisked by Officer Wade before being driven to the VPD.

At the station, Wingo agreed to take the PBT, which revealed a blood alcohol content (“BAC”) "of .21. Meanwhile, Officer Foley prepared an affidavit for a search warrant to force Callissa to take the PBT. Officer Foley included in his affidavit that he could smell alcohol emanating from the car, Sappingfield performed a PBT on scene with a BAC of .05, Wingo had just performed a PBT at the station with a BAC of .21, and he noticed when speaking to Callissa that her eyes were watery and her face was flushed. A magistrate judge signed the warrant. More than two hours after the initial stop, Callissa finally performed the PBT, which revealed a BAC of .00.

, On July 2, 2014, Jill was indicted for violating South Dakota’s obstruction statute, SDCL § 22-11-6. She proceeded to trial and was convicted of obstructing an investigation. She did not appeal this conviction.

On September 4, 2014, Jill and Callissa Schaffer filed the complaint in this case. Pursuant to 42 U.S.C. § 1983, they alleged thirteen counts against the YPD officers for violations of various constitutional rights. The district court held that Officers Foley, Beringer, Wade, and Nelsen were entitled to qualified immunity on all counts and thus granted them summary judgment. The district court likewise held that Police Chief Matt Betzen was entitled to summary judgment on the claims against him in both his individual and official capacities.

On appeal, the Schaffers raise the following arguments: (1) the officers unlawfully arrested Callissa when they handcuffed and detained her; (2) the officers unlawfully searched Callissa when they frisked. Her; (3) Officer Foley purposefully misrepresented facts in the search warrant affidavit; (4) the officers committed retaliatory perjury in Jill’s obstruction trial; and (5) Chief Betzen failed to adequately train the officers. Wé address each of these arguments in turn.

II.

We review the district court’s order granting summary judgment de novo, viewing the evidence in the light most favorable to the Schaffers and drawing all reasonable inferences in their favor. See Joseph v. Allen, 712 F.3d 1222, 1225 (8th Cir. 2013). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A.

The Schaffers first argue that the officers violated Callissa’s Fourth Amendment right to be free from unreasonable seizures. The Schaffers contend that Cal-lissa was under arrest from the moment she was placed in handcuffs until she was released from the VPD, and they argue that the officers did not have probable cause to support this arrest. The officers assert that they are entitled to summary judgment on grounds of qualified immunity-

Qualified immunity shields government officials from liability unless their conduct “violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012). Thus, the qualified immunity analysis is divided into two prongs: (1) whether the facts alleged establish a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the alleged violation, such that a reasonable official would have known that his actions were unlawful. Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011). “If the answer to either question is no, then the [officials] are entitled to qualified immunity.” Id. Furthermore, “we may exercise our sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Mead v. Palmer, 794 F.3d 932, 936 (8th Cir. 2015) (quotation omitted).

“It is well established that a war-rantless arrest without probable cause violates an individual’s constitutional rights under the Fourth and Fourteenth Amendments.” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (quotation omitted). An officer has probable cause “when the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.” Ulrich v. Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013) (quotation omitted). However, “the issue for immunity purposes is hot probable cause in fact but arguable probable cause, that is, whether the officer should have known that the arrest violated plaintiffs clearly established right.” Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996) (citations and quotation omitted). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable.” Ulrich, 715 F.3d at 1059 (quotation omitted).

Thus, we need not decide whether the officers had actual probable cause. Rather, following Habiger v. City of Fargo, we need only address whether the officers had arguable probable cause and are thus entitled to qualified immunity. 80 F.3d at 295. Because a determination that the officers had arguable probable cause would end the inquiry, we will assume that Callissa was arrested when she was placed in handcuffs. See United States v. Pratt, 355 F.3d 1119, 1122 (8th Cir. 2004) (“[I]f an officer has probable cause, any inquiry into other acceptable justifications for the seizure is largely superfluous — ”).

The legal drinking age in South Dakota is twenty-one. SDCL § 35-9-2. South Dakota’s general DUI statute prohibits anyone from operating a motor vehicle if their BAC is .08 or higher. SDCL § 32-23-1. However, South Dakota’s minor DUI statute prohibits drivers under the age of twenty-one from operating a motor vehicle with a BAC of .02 or higher. SDCL § 32-23-21. Thus, the legal BAC limit for drivers under the age of twenty-one is significantly lower than the permissible level for drivers over twenty-one. Notably, no judicial decisions have addressed what circumstances would provide officers with probable cause to arrest a driver under the age of twenty-one for a violation of the minor DUI statute. In qualified immunity cases, this “absence of judicial guidance can be significant.” Walker, 414 F.3d at 993.

Officers Foley and Beringer personally observed Callissa’s watery eyes and flushed face, and both smelled alcohol emanating from the vehicle. See Sherbrooke v. City of Pelican Rapids, 577 F.3d 984, 987-88 (8th Cir. 2009) (considering watery eyes and smell of alcohol in probable cause analysis). Both passengers of the vehicle, including one minor, admitted to consuming alcohol. Given the totality of these circumstances, the relatively low .02 BAC limit under the minor DUI statute, and the absence of judicial decisions interpreting that statute, we find that the officers had at least arguable probable cause to believe that Callissa Schaffer had violated SDCL § 32-23-21. Because the officers had arguable probable cause, they are entitled to qualified immunity with respect to this claim.

B.

The Schaffers next argue that the officers deprived Callissa of her Fourth Amendment right to be free from unreasonable searches when she was frisked before being placed in the patrol car. They contend that the search was unreasonable because the officers had no reason to believe that Callissa posed a danger to them. The officers again assert qualified immunity as a defense.

“Under the Fourth Amendment, a warrantless search of the person is reasonable only if it falls within a recognized exception to the warrant requirement.” United States v. Chartier, 772 F.3d 539, 545 (8th Cir. 2014) (quotation omitted). One of these exceptions allows an officer to “conduct a limited pat-down search of the individual's outer clothing for the purpose of uncovering concealed weapons if the officer has a reasonable, articula-ble suspicion that the person is armed and dangerous.” United States v. Gilliam, 520 F.3d 844, 847-48 (8th Cir. 2008). Because the officers had no reason to believe that Callissa posed any danger to them, the Schaffers are correct insofar as this exception does not apply.

However, another exception to the warrant requirement is a “search incident to a lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). “Such a search may include a search of the arrestee’s person to remove weapons and seize evidence to prevent its concealment or destruction.” Chartier, 772 F.3d at 545. “It is the fact of arrest that enables the officer to conduct a search, not a particularized suspicion as to the suspect’s dangerousness.” Pratt, 355 F.3d at 1121. Thus, when officers have “at least arguable probable cause” to perform an arrest, they cannot be held liable for performing a search incident to that arrest. Meehan v. Thompson, 763 F.3d 936, 946 (8th Cir. 2014). Because we have already determined that the officers had arguable probable cause to arrest Callissa, they are entitled to qualified immunity on this claim as well.

C.

The Schaffers next argue that Officer Foley deprived Callissa of her Fourth Amendment right to be free from unreasonable searches because he purposefully misrepresented facts in his affidavit for a search warrant. “A warrant based upon, an affidavit containing deliberate falsehood or reckless disregard for the truth violates the Fourth Amendment and subjects the officer who submitted the affidavit to § 1983 liability.” Block v. Dupic, 758 F.3d 1062, 1063 (8th Cir. 2014) (quotations omitted). However, “[a] showing of deliberate or reckless falsehood is not lightly met,” United States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quotation omitted), and “[m]ere allegations of deliberate or reckless falsehoods are insufficient,” United States v. Kattaria, 553 F.3d 1171, 1177 (8th Cir. 2009).

The Schaffers argue that Officer Foley made deliberately or recklessly false statements because he included his observation of Callissa’s watery eyes and flushed face in his affidavit but not in the police report he prepared. However, Officer Foley’s police report does not contradict his search warrant affidavit merely because the police report does not repeat everything stated in the affidavit. Therefore, this fact alone does not demonstrate that the affidavit contained deliberate or reckless falsehoods.

The Schaffers also argue that Officer Foley made deliberately or recklessly false statements by omitting certain facts from his affidavit. However, “[a] law enforcement official is not required to include everything he knows about a subject in his affidavit, whether it is material to a finding of probable cause or not.” Tech. Ordnance, Inc. v. United States, 244 F.3d 641, 649 (8th Cir. 2011). Thus, omissions can vitiate a search warrant only if “(1) the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading, and (2) the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Hawkins v. Gage Cty., 759 F.3d 951, 959 (8th Cir. 2014) (quotation omitted). Furthermore, to prove “reckless disregard,” a plaintiff must “show that the omitted material would be clearly critical to the finding of probable cause.” Id. (quotation omitted).

Here, the Schaffers fail to show that Officer Foley acted either intentionally or with reckless disregard with respect to the alleged omissions. They contend that Officer Foley should have included information that may have suggested Callissa was a designated driver, such as her competent driving and positive demeanor, and that he should have mentioned that none of the officers on the scene positively detected alcohol on Callissa’s person. Other than mere allegations of “purposeful misrepresentation,” the Schaffers present no evidence that Officer Foley omitted these facts with the intent to mislead the magistrate judge. Moreover, they fail to show that he acted with reckless disregard because none of these facts would be clearly critical to the finding of probable cause. Although the officers did not notice impaired driving and could not positively detect alcohol on Callissa’s person, those facts alone would not negate their suspicions of a violation, especially given the relatively low BAC limit of .02 for drivers under the age of twenty-one. Because the Schaffers cannot show that any of these omissions were intentional or reckless, Officer Foley is entitled to qualified immunity on this claim,

D,

Jill also argues that the officers retaliated against her for engaging in speech protected by the First Amendment. To establish a First Amendment retaliation claim, Jill must show that (1) she engaged in a protected activity, (2) the officers took adverse action against' her that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). Jill argues that she engaged in a protected activity by criticizing the officers and stating that she would file a civil rights suit against them. She also alleges that the officers took adverse action against her by committing perjury during her trial for obstruction.

As a preliminary matter, we recognize that this claim may be barred by the rule expressed in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck states that, in order to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal.” 512 U.S. at 486-87, 114 S.Ct. 2364. Jill did not appeal her obstruction eonviction, and a finding of perjury would- at least cast doubt on the validity of that conviction, if not render the conviction invalid. See United States v. Clay, 720 F.3d 1021, 1025 (8th Cir. 2013) (“A conviction obtained by the knowing use of perjured testimony is. fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”) (quotation omitted). However, we need not decide whether Heck bars this claim, because even if the claim is not barred, Jill does not present sufficient evidence to create a genuine issue of material fact as to whether the officers committed perjury.

To commit perjury, a person must state, “intentionally and contrary to the oath, any material matter which the person knows to be false.” SDCL § 22-29-1. In South Dakota, “minor discrepancies [are] not sufficient to. establish perjury.” Orricer v. State, 85 S.D. 293, 181 N.W.2d 461, 465 (1970). As evidence of perjury, Jill points to four instances of the video evidence contradicting the officers’ police reports and trial testimony.

First, Jill alleges that Sergeant Nelsen wrote in her police report and testified that Jill had delayed the investigation by more than two hours, but Sergeant Nelsen recanted after being confronted with the video time stamps. However, Sergeant Nelsen’s police report states only that the PBT was taken more than two hours after the traffic stop, not that Jill delayed the investigation for two hours. Second, Jill contends that the video evidence is inconsistent with Sergeant Nelsen’s police report statement that Jill “was interjecting with our conversations again yelling that the vehicle was legally parked and to just leave [Sappingfield] alone.” However, the video evidence is not inconsistent with Sergeant Nelsen’s police, report. Jill claims that the video shows that the officers initiated this interaction and that they asked Jill to sign for custody of Sappingfield’s vehicle. However, the video from Officer ■Beringer’s vehicle shows that Jill initiated this interaction when she returned to the stop, threatened to sue the officers, and complained about the treatment of Sap-pingfield’s vehicle. Third, Officer Wade wrote in her police report and testified that Jill had brushed up against her, but she recanted after watching the video and seeing that Jill did not brush up against her. Nevertheless, Officer Wade insisted that Jill “felt close enough” to feel that Jill was brushing up against her. Lastly, Officer Beringer wrote in his police report and testified that Jill had interrupted his “attempts at talking to Callissa,” but the video evidence does not show Officer Bering-er actually speaking to Callissa until he asks her if she will take a PBT.

Even when viewed in the light most favorable to Jill, none of these statements suggest that any of the officers committed perjury. At most, these statements amount to minor discrepancies that would not support a finding of perjury. Thus, the officers’ statements do not rise to the level of an .adverse action that would chill a person from engaging in protected activity. See Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002) (holding that multiple instances of city council embarrassing the plaintiff—including publicly scolding her at city council meetings, publicly calling her names, and circulating false information about her family—were not “sufficiently egregious” to satisfy adverse action prong). As such, the officers are entitled to summary judgment on this claim.

E.

Lastly, the Schaffers assert that Chief Betzen is liable in both his individual and official capacities for failing to adequately train, monitor, and discipline his subordinate officers. They allege that the officers have not been trained to know that handcuffing and transporting a suspect to a secured area of the VPD converts a detainment into an arrest requiring probable cause. They also assert the existence of a VPD policy authorizing the officers to perform these arrests based only on reasonable suspicion rather than probable cause.

“A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.” Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). “The plaintiff must prove that the municipality itself caused the constitutional violation at issue.” Id. (quotation omitted). “Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To prove the existence of a policy, a plaintiff must point to “an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). Further, the plaintiff must prove that the policy was the “moving force” behind a constitutional violation. Id. (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

A supervisor’s failure to train an inferior officer may subject the supervisor to liability in his individual capacity only “where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010) (quotation omitted). In addition, the plaintiff must prove that the alleged failure to train “actually caused” a constitutional deprivation. Id. (quotation omitted).

Thus, the Schaffers can succeed on their claims only if they can create a genuine issue of material fact regarding the existence of a policy or failure to train that actually caused a constitutional violation; that is, the policy or failure to train must have actually caused Callissa to be arrested without probable cause. However, as in our analysis of the unlawful seizure claim, we need not decide whether Callissa was placed under arrest or whether the officers had actual probable cause. Rather, the Schaffers’ claim fails because (1) they fail to show the existence of a policy or failure to train; and (2) even if they did, they have failed to show that such policy or failure to train actually caused the alleged violation.

As evidence of a VPD policy or failure to train, the Schaffers point to the admissions of Officers Foley and Beringer in Jill’s obstruction trial, in which they admitted that they believed at all times that Callissa was merely “detained” and “not under arrest.” In addition, they point to Officer Beringer’s trial testimony revealing that he believed they needed only “reasonable suspicion” to detain Callissa. The Schaffers argue that this evidence would allow a jury to conclude that a VPD policy exists that encourages VPD officers to conduct arrests with less than probable cause and that Chief Betzen failed to train his officers to the contrary.

However, these statements alone do not create a genuine issue of material fact regarding the existence of a policy or failure to train. See Atkinson v. City of Mountain View, 709 F.3d 1201, 1216 (8th Cir. 2013) (affirming summary judgment where officer testified that his actions were “consistent with his department’s ‘policies, procedures, and guidelines’ ” but plaintiff “[could] point to no city policy or custom—written or unwritten”). Although they cite portions of the VPD Police Manual to show that Chief Betzen is responsible for formulating policy and managing the department, the Schaffers identify no “official policy” authorizing officers to perform these types of arrests with less than probable cause. See Mettler, 165 F.3d at 1204. Nor do they identify any evidence showing that Chief Betzen had notice of such conduct or exhibited any “deliberate indifference” to Fourth Amendment violations. See Parrish, 594 F.3d at 1002.

Moreover, even if such a policy or failure to train did exist and even if a constitutional violation did occur, the Schaffers cannot show that the former caused the latter. Although “[c]ausation is generally a jury question,” to find that the officers here would not have detained Cal-lissa even if they believed that they needed probable cause would be “an exercise in pure speculation.” See Ricketts v. City of Columbia, 36 F.3d 775, 779-80 (8th Cir. 1994); see also Habiger, 80 F.3d at 297 (rejecting municipal liability claim without deciding whether “actual probable cause” existed because, in any event, “inadequate training was not the proximate cause of plaintiffs alleged constitutional injury”) (quotation omitted). This is because the officers nevertheless had arguable probable cause to arrest Callissa. Because the officers had arguable probable cause, the Schaffers cannot show that the alleged policy or failure to train was the moving force behind or the actual cause of the alleged violation. See Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 2004) (“[B]ecause each of the individual defendants had arguable probable cause, the County is likewise entitled to summary judgment in its favor.”). Therefore, Chief Betzen is entitled to summary judgment on both the official capacity and individual capacity claims.

III.

For the foregoing reasons, we affirm the district court’s grant of summary judgment on all claims.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.

      . The Schaffers also contend that the text of SDCL § 32-23-21, unlike that of SDCL § 32-23-1, authorizes an arrest only if there is physical evidence of a BAC of .02 or higher and not when officers have only probable cause that a driver has been drinking. However, they raise this argument for the first time on appeal, and they point to no cases interpreting the two statutes differently. Therefore, we decline to consider this argument. See McBurney v. Stew Hansen’s Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir. 200S) ("Absent exceptional circumstances we will not consider arguments raised for the first time on appeal.”).