author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. James Edward SCHWAB, Appellant.
    No. 95-3385.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 7, 1996.
    Decided May 20, 1996.
    Leonard L. Meyer, Independence, MO, for appellant.
    Bruce E. Clark, Kansas City, MO, for appellee.
    Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   PER CURIAM.

James Edward Schwab appeals from the district court’s order revoking his supervised release and sentencing him to 21 months imprisonment. We affirm.

Schwab was convicted of conspiring to transport and receive stolen property, and was sentenced to 30 months imprisonment and three years supervised release. While on supervised release, he attempted to steal from a department store two items valued at $1,100 each and was charged in Kansas state court with “felony theft, a Class C felony”; Schwab ultimately pleaded guilty to a misdemeanor offense.

The district court held a revocation hearing at which Schwab admitted his conduct and conceded that the value of the items was sufficient to trigger a felony theft charge in state court. Schwab contended, however, that for purposes of determining the Guidelines range, the classification of his revocation violation should be based on the offense to which he pleaded guilty in state court, a misdemeanor. Based on his admission, the district court found that Schwab violated the terms of Ms supervised release; and that the value of the stolen items was enough to push Schwab over the felony threshold, which indicated a Class B supervised release violation under U.S.S.G. § 7Bl.l(a)(2), resulting in a Guidelines range of 21 to 24 months.

Schwab contends the district court erroneously applied the Guidelines by relying on Ms actual conduct — rather than the offense to which he pleaded guilty — in classifying Ms supervised release violation. We disagree. We review for an abuse of discretion a sentence below the statutory maximum (24 months in this case), United States v. Carr, 66 F.3d 981, 983 (8th Cir.1995) (per curiam), and review de novo the district court’s construction of the Guidelines, see United States v. Hensley, 36 F.3d 39, 41 (8th Cir.1994).

Supervised release violations are classified as one of three grades. As relevant here, “conduct” constituting an offense pumshable by a term of imprisonment exceeding one year is a Grade B violation, while “conduct” constituting an offense pumshable by a term of imprisonment of one year or less is a Grade C violation. U.S.S.G. § 7B1.1(a)(2, 3). We conclude that the district court properly looked to Schwab’s actual conduct in determining the grade of Ms supervised release violation, rather than the crime to wMch he pleaded guilty. “The grade of violation does not depend upon the conduct that is the subject of criminal charges or of wMch the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant’s actual conduct.” U.S.S.G. § 7B1.1, comment, (n.1); see United States v. Lee, 78 F.3d 1236, 1240 (7th Cir.1996).

Because under Kansas law Schwab’s conduct constituted a felony punishable by a prison term exceeding one year, the district court correctly classified the violation as a Grade B violation. See U.S.S.G § 7B1.1(a)(2); Kan.Stat.Ann. §§ 21-3701(b)(2) (defimng theft), 21-3105(1, 3) (defining felomes and misdemeanors), 21-4502(1)(a) (limiting pumshment for misdemeanor to no more than one year imprisonment) (1994). As the district court sentenced Schwab below the statutory maximum and at the bottom of the appropriate Guidelines range, we conclude it did not abuse its discretion in imposing a 21-month sentence.

Accordingly, the judgment of the district court is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN EAGLE INSURANCE COMPANY, Plaintiff-Appellant, v. John H. THOMPSON, Defendant-Appellee.
    No. 95-2672.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 8, 1996.
    Decided May 28, 1996.

      Cynthia Hollingsworth, Dallas, Texas, argued (Stephen Ward, on the brief), for Plaintiff-Appellant.
    Bill Wayne Bristow, Jonesboro, Arkansas (argued), for Defendant-Appellee.
    Before WOLLMAN, CAMPBELL, and MURPHY, Circuit Judges.

       The Honorable Levin H. Campbell, Senior United States Circuit Judge for the First Circuit, sitting by designation.

   LEVIN H. CAMPBELL, Senior Circuit Judge.

Plaintiff-appellant American Eagle Insurance Company (“American Eagle”) filed this diversity action in the Eastern District of Arkansas seeking a. declaration that John H. Thompson was not covered under an aviation insurance policy issued by it to Arkansas Aircraft Inc. (“Arkansas Air”). American Eagle sought a determination that it had no duty to defend or indemnify Thompson in two underlying state tort actions in Georgia. After a jury concluded by special verdict that Thompson was an employee of Arkansas Air, the district court ruled as a matter of law that Thompson was covered by the policy. The court denied American Eagle’s motion for judgment as a matter of law or in the alternative for a new trial. American Eagle appeals from the final judgment entered in favor of Thompson. We reverse and remand.

I.

Arkansas Air is the fixed-base operator-the company that fuels, services and hangars airplanes-at the Jonesboro, Arkansas airport. The company also runs an air charter business and buys and sells used airplanes. Mark Haggenmacher and Larry Grisham, the owners of Arkansas Air, occasionally hired John Thompson to fly their planes. . Thompson worked full-time in the real estate business, but sometimes accepted piloting jobs from various companies in order to keep up his pilot licenses. Thompson charged an hourly rate for his services; he had no formal employment relationship with Arkansas Air or with any other company for which he piloted.-

In April 1993, the owners of Arkansas Air loaned an airplane to one of their friends, Nelson Henry. Henry, not being a pilot, asked if Arkansas Air could arrange for Thompson to fly him to and from Hilton Head, South Carolina, on April 27. Haggenmaeher called Thompson, relayed the departure and return times for the flight, and Thompson agreed to pilot. The flight from Jonesboro to Hilton Head took place as scheduled. On the return trip, as Thompson was landing for an interim stop at Statesboro, Georgia, his plane collided in mid-air with another airplane. Henry and the student pilot of the other aircraft died as a result of the accident.

Separate lawsuits arising from the crash were filed on behalf of the deceased student pilot in Georgia state court against Thompson and Arkansas Air. Arkansas Air’s insurance policy then in effect provided in relevant part:

[Y]our bodily injury and property damage liability coverage protects you and any of your employees while in the scope of his or her employment whom you permit to fly your aircraft, and any person or organization using your aircraft while it is operated by you or your employee.

American Eagle Aircraft Insurance Policy No. AFN0061519 (emphasis supplied). Thompson asserted that he was an employee of Arkansas Air at the time of the crash and therefore was within the policy coverage. American Eagle filed this action in the district court pursuant to the federal Declaratory Judgement Act, 28 U.S.C. §§ 2201 et seq., seeking a declaration of noncoverage under Arkansas Air’s insurance policy.

The action was tried to a jury which was instructed to answer a single factual question — whether Thompson was an employee of Arkansas Air at the time of the accident. The district court indicated to counsel that a jury verdict finding that Thompson was an employee of Arkansas Air would result in a ruling that Thompson was covered under the policy, but that a jury verdict finding that Thompson was not an employee would leave the question of coverage for the court to determine after interpreting the insurance contract. The jury concluded that Thompson was an Arkansas Air employee, and the court therefore ruled that he was covered by the insurance policy. Thompson was granted attorney’s fees pursuant to Ark.Code Ann. § 23-79-209 (Michie 1992).

II.

A. Sufficiency of the Evidence

American Eagle asserts on appeal that the district court erred in not granting its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. When reviewing the district court’s refusal to grant judgment as a matter of law, we resolve factual conflicts and make all reasonable inferences in favor of the prevailing party. See Yannacopoulos v. General Dynamics Corp., 75 F.3d 1298, 1302 (8th Cir.1996). We affirm the judgment of the district court if the evidence allows reasonable jurors to differ as to the conclusions. Grand Laboratories, Inc. v. Midcon Labs of Iowa, 32 F.3d 1277, 1280 (8th Cir.1994).

Here, while the jury could doubtless have found to the contrary, there is sufficient evidence to support the jury’s verdict that Thompson was an employee of Arkansas Air. The policy covered “employees,” but did not define that term. We believe that the jury could read it to include casual employees as well as full-time employees with offices, salaries, health and retirement packages, and other such benefits. The evidence at trial showed that the owners of Arkansas Air “hired” Thompson on multiple occasions to fly their planes. In these situations, Arkansas Air employees would direct Thompson as to the date of the flight, the departure time, the aircraft to be flown, the number of passengers on board the aircraft, the destinations, and the return times. Thompson himself testified that he was an employee of Arkansas Air and that Arkansas Air had the right to direct his action. See Blankenship v. Overholt, 301 Ark. 476, 478-79, 786 S.W.2d 814, 815 (1990) (“In drawing the line between independent contractor and servant, we look at the totality of the circumstances[, and] the extent of control [that the employer exercises over the work] is the principal factor in determining the relationship.”); accord Dickens v. Farm Bureau Mutual Ins. Co. of Ark., 315 Ark. 514, 516-17, 868 S.W.2d 476, 477-78 (1994). Although Thompson also piloted for several other companies, he was not setup formally in business as a contract pilot with the associated title, advertising, and records. We find no error in the district court’s denial of American Eagle’s motion for judgment as a matter of law.

B. The Burden of Proof

The district court placed the burden of proving that Thompson was not an employee of Arkansas Air upon American Eagle, after refusing a proposed instruction that would have assigned to Thompson the burden of proving that he was an employee. American Eagle argues that a new trial is warranted because the court’s assignment of the burden of proof departed from Arkansas law and prejudiced “substantial rights.” It asserts that the district court placed the burden of proof upon American Eagle simply because, seeking a declaratory judgment, it was in the procedural posture of plaintiff. American Eagle now asks this court to hold that the parties’ reversal of positions for purposes of this declaratory judgment action did not alter the fact that Thompson, the person seeking coverage, was required to carry the burden.

The burden of proof in a diversity action is typically a matter of state law. See Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 482, 87 L.Ed. 645 (1943); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1122 (8th Cir.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986); Lynch v. Travelers Indemnity Co., 452 F.2d 1065, 1068 n. 2 (8th Cir.1972). Under Arkansas law, a party who files suit seeking to benefit from insurance coverage generally bears the burden of proving coverage. See Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 82, 514 S.W.2d 400, 404 (1974); Hunt v. Pyramid Life Ins. Co., 21 Ark.App. 261, 266, 732 S.W.2d 167, 169 (1987) (en banc); Snow v. Travelers Ins. Co., 12 Ark.App. 240, 241-42 674 S.W.2d 943, 944 (1984). Once the person seeking insurance coverage has met his burden, the burden shifts to the defendant insurance company to prove any applicable exclusion to coverage. See National Investors Life and Cas. Ins. Co. v. Arrowood, 270 Ark. 617, 621, 606 S.W.2d 97, 100 (Ark.Ct.App.1980).

In this action brought under the federal Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., the assignment of the burden of proof is complicated by the fact that the usual plaintiff and defendant are reversed. Unlike the typical insurance coverage case where the person seeking indemnification sues the insurance company, the insurance company brought this action as plaintiff. American Eagle argues that the burden placed traditionally on the party seeking coverage should not be shifted to the insurer merely because the insurer is the nominal plaintiff. See Preferred Acc. Ins. Co. v. Grasso, 186 F.2d 987, 991 (2nd Cir.1951); Reliance Life Ins. Co. v. Burgess, 112 F.2d 234, 237-38 (8th Cir.), cert. denied, 311 U.S. 699, 61 S.Ct. 137, 85 L.Ed. 453 (1940). Supporting the contrary view is the argument that the burden of proof should not be placed on an unsuspecting defendant who has been hailed into court.

In deciding who bears the burden of proof in this case, we are guided by our earlier decision in Reliance, 112 F.2d at 237-38. There, an insurance company brought suit seeking a declaration of noncoverage under Missouri law. In assigning the burden of proof to the insurance company, this court reasoned:

The question as to whether the burden of proof in its primary sense rests upon the plaintiff or defendant is ordinarily to be determined by ascertaining from the pleadings which of the parties without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence. It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action. It is generally upon the party who will be defeated if no evidence relating to the issue is given on either side.

Id. In Reliance, we held that the burden rested with the insurance company, as it was the insurance company that had disputed coverage by asserting an affirmative defense of exclusion, and the insured did not assert any cause of action nor seek any affirmative relief. Id. at 238; see also State Farm Mutual Auto. Ins. Co. v. Pennington, 215 F.Supp. 784, 790 (E.D.Ark.) (placing the burden of proof on an insurance company trying to establish the applicability of a policy exclusion through a declaratory judgment action), aff'd, 324 F.2d 340 (8th Cir.1963).

In applying the factors described in Reliance, we find that Thompson asserted the affirmative of the question asked of the jury and that Thompson would lose in the absence of any evidence on the issue. American Eagle seeks only a declaration of non-liability; unlike the insurance company in Reliance, it does not seek to apply a policy exclusion. In addition, American Eagle timely and repeatedly objected to the district court’s imposition of the burden of proof. Cf. Liberty Mutual Ins. Co. v. Sweeney, 216 F.2d 209, 211 (3rd Cir.1954) (upholding the assignment of the burden of proof to the insurance company when insurance company brought the action and voluntarily went forward and attempted to prove case); Pacific Portland Cement Co. v. Food Machinery & Chemical Corp., 178 F.2d 541, 547 (9th Cir.1949). Stripped of its procedural posture, this action is, at base, a claim by Thompson that he is covered under an insurance policy and a denial by the insurer that coverage properly exists. Under Arkansas law, the burden in such cases falls on the person seeking insurance coverage. See Smith, 514 S.W.2d at 404. We see no reason to deviate from Arkansas burden of proof principles simply because this action was brought by the insurer under the federal Declaratory Judgment Act.

We hold that the district court erred in assigning the burden of proof to American Eagle. Since this error cannot be said to be harmless, we vacate the district court’s judgment and remand for a new trial. In so doing, however, we address several other issues raised by appellant as these seem likely to arise again in the course of trial and the court and parties may be aided by our determination now.

C. Evidentiary Rulings

American Eagle argues that the district judge erred in admitting highly prejudicial hearsay evidence on an issue not before the jury. The testimony in question is that of John Thompson’s wife, Sonja Thompson, who told the jury of statements made to her by Mike Medloek, an insurance agent, and Mark Haggenmacher, one of the owners of Arkansas Air. Mrs. Thompson testified as follows on direct examination, after the court overruled American Eagle’s objections:

A. Well, that morning at the airport, when we got to -when I got to the airport, the insurance agent was there and he had the files, the - the papers with him, you know, insurance or whatever.
Q. That - you’re talking - when you say “the insurance agent,” Mike Med-lock?
A. Mike Medloek, yes.
Q. Okay.
A. He had that with him in the manila file and all the papers and everything, and I was sitting there, you know, waiting, early. And he - and he talked with Mark, and then he came over and they -he sit [sic] down beside me, and Mark stood there, and he told me not to worry about-
Q. Now, who-who told-who told
A Mike Medloek.
A. Now, Mike Medloek did most of the talking at this point. And he - he slapped the insurance papers and all that and he said, “Don’t worry about anything,” he said, “Tommy is covered. We’ve got it handled. Just don’t worry about anything.” And-and I said, ‘Well, well, good,” you know.
Q. Okay. And what did Mark Haggenmacher say?
A. He said, “Do you understand that?” And I said “Yes.” And that’s about all Mark said at the time.

At trial, American Eagle argued that the above testimony was inadmissible hearsay, unduly prejudicial, and irrelevant to the issue before the jury — whether Thompson was an employee of Arkansas Air. The trial court allowed' Medlock’s statements finding that they were relevant to the issue of employment and they fell within an exception to the hearsay rule for admissions of a party-opponent. See Fed.R.Evid. 801(d)(2)(D). Haggenmacher’s statement was admitted, not as proof of the truth of the matter asserted, but as evidence of Haggenmacher’s understanding of the employment relationship between Thompson and Arkansas Air. Admitted for such purpose, Haggenmacher’s statement was not hearsay. Federal law governs the determination of whether evidence is admissible. Miller v. Yazoo Mfg. Co., 26 F.3d 81, 82 (8th Cir.1994). Evidentiary rulings are within the discretion of the trial judge, and are reviewed for an abuse of discretion. See Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754, 757 (8th Cir.1995) (“We review the district court’s rulings admitting or excluding evidence for abuse of discretion.”); Banghart v. Origoverken, A.B., 49 F.3d 1302, 1304 (8th Cir.1995).

In deciding whether the district court abused its discretion in admitting Medlock’s statements, we must decide whether the statements fall within the hearsay exception for admissions of a party-opponent. See Fed.R.Evid. 801(d)(2). The Rule states:

A statement is not hearsay if-

(2) Admission by party-opponent. The statement is offered against a party and is ... (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency relationship____

Fed.R.Evid. 801(d). To fit within this exception to the hearsay doctrine, Thompson, the party offering the testimony, was required to establish a foundation demonstrating that Medlock was an agent of American Eagle at the time the statements were made. See Gulbranson v. Duluth, Missabe & Iron Range Ry., 921 F.2d 139, 142 (8th Cir.1990); see also Glen Weissenberger, Federal Evidence § 810.20 at 418-19 (1995) (“The proponent of the vicarious admission must establish a foundation which demonstrates that the declarant at the time of the making of the statement was an employee or an agent of the party against whom the statement is offered.”). Although the federal rules of evidence do not define the term agent, courts have held that “Congress intended Rule 801(d)(2)(D) ‘to describe the traditional master-servant relationship as understood by common law agency doctrine.’ ” Lippay v. Christos, 996 F.2d 1490, 1497 (3rd Cir.1993) (quoting Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir.1989)); see also United States v. Saks, 964 F.2d 1514, 1523-24 (5th Cir.1992). The common law of agency is set forth in the Restatement (Second) of Agency. See Boren, 887 F.2d at 1038. The Restatement explains the nature of agency as follows:

(1) Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.

Restatement (Second) of Agency § 1 (1958).

The record before us does not demonstrate that Medlock was American Eagle’s agent at the time he made the relevant statements to Mrs. Thompson. In fact, the evidence shed no light at all on any relationship between Medlock and American Eagle. The evidence showed that Medlock was Arkansas Air’s insurance agent, and that he had been so for eight or nine years. Haggenmacher testified that Medlock had negotiated Arkansas Air’s insurance policies with “several insurance companies.” No evidence indicated that American Eagle authorized Medlock to act on its behalf. We are constrained to conclude that Mrs. Thompson failed to meet her burden of establishing the necessary agency relationship, see Gulbranson, 921 F.2d at 142; Lippay, 996 F.2d at 1497, and that the district court erred in admitting Medloek’s statements pursuant to Rule 801(d)(2)(D).

American Eagle also challenges the admission of Haggenmacher’s related statement (“Do you understand that?”) in response to Medlock’s assurance of coverage. The district court held that this statement was admissible not to show the truth of the matter asserted, but to show the state of mind of the speaker who was one of the owners of Arkansas Air. See 4 Jack B. Weinstein et al., Weinstein’s Evidence § 801(c)[01] at 801-103 (1996) (“A statement offered to show the state of mind of the declarant is analytically not hearsay....”). The district court reasoned that the statement was not hearsay to the extent that it revealed the state of mind and belief of a co-owner of Arkansas Air that Thompson was covered by its insurance policy. According to the district court, this state of mind was relevant to the question before the jury of whether Thompson was an employee of Arkansas Air. Various aspects of this ruling are close, as is the further question of Rule 403 admissibility. In view of the fact that Haggenmacher’s statement is dependent for its context on Medlock’s statements, we hesitate to review the court’s ruling at this juncture. It seems almost certain that, at a new trial, the basis for admission of both statements will be reexamined by counsel and new arguments may be presented then. It would not seem helpful to attempt to anticipate and dispose of these arguments at this point in time.

D. Attorney’s Fees under Section 23-79-209

Section 23-79-209 of the Arkansas Code provides that an insurance company that loses an action to declare rights under a policy “shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit” (emphasis supplied). The district court granted Thompson attorney’s fees under this statute, finding that although he was not the “holder of the policy”, he was a beneficiary of the policy and that was a sufficiently close relationship with the holder of the policy to entitle him to attorney’s fees. American Eagle asserts that the district court’s ruling is contrary to the clear wording of the statute which speaks only of the “holder of the policy.” We do not decide this issue of state statutory interpretation at this time, given that it may never arise on retrial.

The judgment of the district court is reversed and remanded for a new trial consistent with this opinion.

      . Arkansas Air had made similar loans of air-crafts in the past. These loans were not part of the company’s regular rental or charter service. Arkansas Air did not charge for the use of the plane but passed along the costs of the trip to the person borrowing the plane — Henry, in this case.

      . Although the juiy instructions explained the nature and function of the burden of proof, they did not explicitly state that the burden of proof was on American Eagle. The jury was, however, told on several occasions during trial that American Eagle had the burden of proof and was never told anything to the contrary. Therefore, we assume that the jury placed the burden of proof on American Eagle.

      . The Third Circuit has held that in a federal declaratory judgment action, the burden of proof as to a non-federal matter is determined by the rule of the forum state in similar declaratory actions. See Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1174-75 (3rd Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); see also 6A James W. Moore, Moore’s Federal Practice § 57.31 [3] at 57-265 (1995). In the Videfreeze case, as is also true here, the federal court was unable to find any analogous cases brought under the state declaratory judgment act in which the burden of proof was discussed. Therefore, we look to our own Reliance opinion for guidance.

      . Professor Moore has been cited for the proposition that the burden of proof should be on the plaintiff insurance company in a declaratory judgment action. 6A James W. Moore, Moore’s Federal Practice § 57.31[2] at 57-263 (1995). The relevant section of his treatise provides;
      Generally, it is reasonable and fair that one who brings another into court should have the burden of [proof].... Where the insurer seeks a declaration of noncoverage as to a particular accident, the insurance company should likewise experience no technical difficulty in producing proof of the facts it asserts. The insurer here seeks an advanced determination of its liabilities, and the injured third party is forced to litigate the coverage issue before it has established its claim against the insured. In these cases, since no policy or technical consideration dictates a change in the general rule, the plaintiff should bear the usual burden of proving his prima facie case.
      However, the situation described by Professor Moore is distinguishable from the case at hand, because here the injured party (the estate of the deceased student pilot) is not being forced to litigate against American Eagle before liability has been determined. This dispute concerns only American Eagle and Thompson, the party seeking coverage.

      . Hearsay, as defined in Fed.R.Evid. 801(c), is any out-of-court assertion offered to prove the truth of the matter asserted. Statements, made out-of-court, not offered to prove the truth of the matter asserted are not hearsay because reliability is not at issue. See United States v. Amahia, 825 F.2d 177, 181 (8th Cir.1987). By instructing the jury that Haggenmacher's statements could only be considered for the limited purpose of showing his state of mind, the court averted a hearsay problem.
      In its Memorandum and Order discussing American Eagle’s motion for judgment as a matter of law, the court changed its rationale for allowing Medlock’s statements into evidence, stating the statements were admissible to show the state of mind of Medloek and Haggenmacher, and as such, were not hearsay. The problem with this theory is that the jury was not given an appropriate limiting instruction with respect to Medlock’s statements. Instead, the jury was told that it could consider Medlock’s statements for the truth of the matter asserted. The court's failure to give a limiting instruction leads us to conclude that the jury, in all probability, considered the evidence as proof of the matter asserted. Thus, Medlock's statements fall within the definition of hearsay.

      . The district court gave the jurors an appropriate limiting instruction, stating that they could not consider the truth of the matter asserted, i.e., whether there is coverage, but could only consider the testimony as it bore on the existence of an employment relationship.

      . American Eagle argues that the statements of both Haggenmacher and Medlock should have been excluded because they were unduly prejudicial. Fed.R.Evid. 403 provides that "[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Given our ruling that it was error to admit Medlock's statements, we decline to address the Rule 403 admissibility of either Medlock’s or Haggenmacher’s statements, leaving that or any related question for determination by the court at retrial.

      . Section 23-79-209 provides in relevant part:
      In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be.
      ArkCode Ann. § 23-79-209 (Michie 1992).


author: RICHARD S. ARNOLD, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Michael YOUNG, Appellant.
    No. 95-4149SD.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1996.
    Decided May 29, 1996.

      John J. Simpson, Winner, SD, for appellant.
    David L. Zuercher, Assistant U.S. Attorney, for appellee.
    Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE, District Judge.

      The Hon. Bruce M. Van Sickle, United States District Judge for the District of North Dakota, sitting by designation.

   RICHARD S. ARNOLD, Chief Judge.

Michael Young was convicted in the District Court of assaulting, resisting, or impeding a federal officer in violation of 18 U.S.C. § 111. He was sentenced to four years’ probation, and a fine of $500.00 and a special assessment of $50.00 were imposed. Young appeals, arguing that the government did not prove that the other person involved in the altercation shown by the evidence at trial was a federal officer. We affirm.

The person claimed by the United States, and found by the District Court, to be a federal officer within the meaning of § 111 was a man named John Miller. Mr. Miller was not an employee of the United States. He was a Rosebud Sioux Tribe police officer. The Department of the Interior, however, had a contract with the tribe for the performance of law-enforcement functions. Such contracts are authorized by 25 U.S.C. § 450h, known as Public Law 93-638. In addition, 25 U.S.C. § 2804(a) provides that the Bureau of Indian Affairs of the Interior Department may enter into an agreement for the use of tribal personnel to enforce federal or tribal law. And, under 25 U.S.C. § 2804(f), such persons, though not otherwise federal employees, are employees of the Department of the Interior for purposes of § 111 of Title 18 when acting under authority granted by the Secretary under 25 U.S.C. § 2804(a). See United States v. Schrader, 10 F.3d 1345 (8th Cir.1993).

It is doubtless true, as Young argues, that not every person employed to carry out a “Public Law 638 contract” fits this definition. But the particular contract relevant to this ease was in evidence as an exhibit at trial, and it does authorize the Rosebud Sioux Tribe, through employees hired for the purpose, to perform law-enforcement functions that would otherwise be performed by BIA officers. It is undisputed that officer Miller was such a person. He was acting'pursuant to authority given to the tribe by its contract with the Department of the Interior. He is thus a federal officer within the meaning of 18 U.S.C. § 111 by the express words of 25 U.S.C. § 2804(f).

Young also argues that the evidence was insufficient to establish an assault, and that certain exculpatory information was improperly withheld by the government before trial. We have considered these arguments and hold that they are without merit. They are not substantial enough to deserve discussion.

Affirmed.

      . The Hon. Charles B. Kommann, United States District Judge for the District of South Dakota.


text:
    Eric Adam SCHNEIDER, Appellant, v. Paul DELO, Appellee.
    No. 95-2969.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 8, 1996.
    Decided May 30, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 25, 1996.

      Laura B. Allen, St. Louis, Missouri, argued, for appellant.
    Frank A. Jung, Assistant U.S. Attorney, Jefferson City, Missouri, argued, for appellee.
    Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit Judges.
   RICHARD S. ARNOLD, Chief Judge.

Eric Adam Schneider, who is under sentence of death for the murders of Richard Schwendemann and Ronald Thompson, appeals from the District Court’s denial of his petition for habeas corpus. We affirm.

I.

In order to place Schneider’s legal arguments in context, we begin by briefly summarizing the facts of the crime.

On January 7, 1985, Schneider and two friends, David Morgan and Charles Palmer, visited the home of Roland Johnson. While there, Schneider, who was carrying a sawed-off .22 caliber rifle, said that he “had to do a job or rob somebody.” On January 11, Schneider borrowed twenty dollars from Johnson. He told Johnson that he was “planning something” and would repay Johnson on January 13. On the afternoon of January 12, Schneider, Palmer, and Morgan were seen leaving Palmer’s apartment. They returned later that night, carrying personal property that had belonged to the victims, Richard Schwendemann and Ronald Thompson. Patricia Woodside, who had agreed to purchase the victims’ video-cassette recorder, commented that Schneider had “made a killing.” Schneider responded, ‘Tes. A couple of them.”

The next morning, Schneider and Morgan discussed their crime with Patrick Schaffer. Schneider stated that after he, Palmer, and Morgan had arrived at the victims’ home, they bound the victims and moved them to the basement. After Schwendemann started “getting tough,” Schneider shot him in the back. Palmer slit Thompson’s throat. Schneider and Palmer went upstairs and asked Morgan to watch the victims. But Morgan wandered away and when he returned, Thompson was missing. Morgan yelled for Schneider. Schneider and Morgan found Thompson staggering on the poolside patio and saw him fall into the pool.

When the police arrived at the victims’ home, they discovered Schwendemann’s body in the basement and Thompson’s in the swimming pool. Schwendemann had two broken ribs and had been shot in the back and forehead with bullets from Schneider’s gun. Thompson had fifteen stab wounds to his neck, scalp, chest, side, and back.

The jury found Schneider guilty of two counts of first-degree murder, two counts of armed criminal action, first-degree robbery, and first-degree burglary. It recommended two sentences of death, finding that the murders were committed for the purpose of receiving money or some other thing of monetary value, that the murders involved torture or depravity of mind, and that Schneider committed the murders while carrying out a first-degree burglary.

The Missouri Supreme Court affirmed Schneider’s convictions and sentence. State v. Schneider, 736 S.W.2d 392 (Mo.1987) (en banc), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). Schneider unsuccessfully sought post-conviction relief under Mo.S.Ct.R. 29.15, and the Missouri Supreme Court affirmed. Schneider v. State, 787 S.W.2d 718(Mo.) (en banc), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 186 (1990). Schneider then filed a petition for a writ of habeas corpus, which the District Court denied. Schneider v. Delo, 890 F.Supp. 791 (E.D.Mo.1995).

On appeal, Schneider raises three arguments. He claims that he was denied his Sixth Amendment right to effective assistance of counsel at the guilt and penalty phases of his trial; that the prosecutor made a number of improper statements during closing argument; and that the trial court unconstitutionally refused to permit him to introduce certain mitigating evidence at the penalty phase.

II.

Schneider argues that he did not receive effective assistance of counsel because his lawyer failed to have him examined by a psychiatrist and, at the penalty phase, presented only limited testimony regarding his social history.

A.

Before addressing the substance of Schneider’s argument that his counsel was ineffective for failing to investigate his mental condition, we must first decide whether part of this claim is procedurally barred. In the appeal from the denial of his Rule 29.15 motion for post-conviction relief, Schneider alleged:

The trial court clearly erred in denying appellant’s motion to vacate sentence because counsel was ineffective in failing to seek a mental evaluation in mitigation of punishment____ Appellant was prejudiced in that the jury was denied important information on which to base a life sentence, particularly his capacity for feeling, remorse, and rehabilitation.

Resp. Ex. K at 11. The state contends that because Schneider mentioned only the prejudice he may have suffered during the penalty phase of his trial, he is proeedurally barred from raising the issue of ineffective assistance of counsel at the guilt phase. See Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) (“when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice”).

The requirement that federal habeas claims must have been presented in state court is not meant to trap a petitioner who has poor drafting skills. The stakes in habeas cases are too high for a game of legal “gotcha.” Accordingly, in deciding whether a habeas claim has been fairly presented in state court, we “have not applied an unreasonable standard.” Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). We require that the “same factual arguments and legal theories should be present in both the state and federal claims.” Ibid.

Did Schneider present to the state courts the factual arguments and legal theories for his guilt-phase claim? Hill v. Lockhart, 28 F.3d 832 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 778, 130 L.Ed.2d 673 (1995), answers this question. In state court, Hill had specifically addressed only the prejudice he had suffered at the penalty phase from his lawyer’s failure to investigate his mental condition. We rejected the state’s argument that Hill had defaulted on his guilt-phase ineffective-assistance claim:

Significantly, the legal analysis to be applied by this court to Mr. Hill’s claim, ie., ineffective assistance of counsel related to failure to present evidence of an extensive history of mental illness is the same regardless of which of the discrete aspects of the state court trial is at issue—the guilt phase or the penalty phase. The question of mental condition, moreover, cannot neatly be divided into sanity at the time of the offense as the relevant issue at the guilt phase, and mitigating evidence as the relevant issue at sentencing. [A criminal defendant’s] intellectual understanding of his actions and their gravity [is] clearly in issue at both phases of the proceedings.

Id. at 835 (citations omitted). The same reasoning applies to this case, and we hold that Schneider’s guilt-phase claim is not proeedurally barred.

We now come to the substance of Schneider’s ineffective-assistance claim. In order to prevail, Schneider must show that his counsel’s performance fell below professional standards and that his defense was prejudiced by his counsel’s ineffectiveness. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Payne v. United States, 78 F.3d 343, 345 (8th Cir.1996).

Schneider points out that his lawyer had access to the report from a court-ordered psychiatric examination which was performed in 1983, after Schneider had been arrested for burglary. Although the report concluded that Schneider did not suffer from any mental disease or defect and was competent to stand trial, the report did state that Schneider had cut his wrists while in prison and had a history of drug abuse, and that two of his sisters had undergone psychiatric treatment. Moreover, Schneider’s school and military records indicated that he had sustained three head injuries when he was a child and that, as an adult, he had been diagnosed with hyperactivity and insomnia. Schneider argues that an effective lawyer would have responded to this evidence by arranging for another psychiatrist to examine Schneider.

We need not decide whether the performance of Schneider’s counsel fell below the standard required by the Sixth Amendment. If “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, [that] course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. A defendant is prejudiced by his lawyer’s performance if “there is a reasonable probability [ie. a probability sufficient to undermine confidence in the outcome] that, but for counsel’s errors, the result of the [guilt or penalty] proceeding^] would have been different.” Id. at 694, 104 S.Ct. at 2068. Even if Schneider’s counsel had been ineffective for failing to arrange a second psychiatric examination, our confidence in the outcome of the guilt and penalty phases of Schneider’s trial would not be undermined.

During Schneider’s state post-conviction proceedings, Dr. A.E. Daniel, a forensic psychiatrist, examined him. Dr. Daniel concluded that Schneider’s speech, comprehension, thinking, and reasoning abilities were normal. Dr. Daniel did diagnose Schneider as suffering from attention-deficit disorder (formerly known as “hyperactivity”), a condition which, in Dr. Daniel’s words, is manifested by a “failure to sustain attention on a given task, particularly for children, school tasks.” P.C. Tr. Vol. I, 9.

Schneider argues that there is a reasonable probability that a jury would have concluded that because Schneider suffered from attention-deficit disorder and insomnia, he did not have the capacity to commit first-degree murder, ie., “knowingly [to] eause[ ] the death of another person after deliberation upon the matter.” Mo.Rev.Stat. § 565.020(1). The argument strikes us as outlandish. Four days before the murders, Schneider, who was carrying a sawed-off rifle, commented that-because he was short of money, he “had to do a job or rob somebody.” On the day of the murder, Schneider said that he was “planning something.” The evidence shows that Schneider was quite capable of committing a crime after deliberation.

The question of whether there is a reasonable probability that evidence of Schneider’s mental disorder would have changed the outcome of the penalty phase is somewhat different. At the penalty phase, a jury is not limited to examining the narrow issue of whether a defendant is capable of committing a crime. Instead, the jury may consider “evidence about the defendant’s background and character [which] is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no excuse.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (citation omitted). Thus, even if evidence of a mental condition is not strong enough to convince a jury to accept an insanity or diminished-capacity defense, the evidence might cause that jury not to recommend a sentence of death. Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982).

In deciding whether, at the penalty phase, Schneider was prejudiced by his lawyer’s failure to mention his attention-deficit disorder and insomnia, we are guided by our decision in Guinan v. Armontrout, 909 F.2d 1224 (8th Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 800, 112 L.Ed.2d 861 (1991). Guinan had something called “antisocial-personality disorder,” a condition which caused him to be “aggressive, impulsive, [and] unreliable in maintaining employment.” Id. at 1229. We observed that Guinan did not suffer from any “thought disorder or possible schizophrenia” and concluded that “[w]hether evidence of this type would be considered mitigating by a jury is highly doubtful.” Id. at 1230. See also Whitmore v. Lockhart, 8 F.3d 614, 617 (8th Cir.1993) (lawyer was not ineffective for failing to introduce evidence, during the penalty phase, of the defendant’s antisocial-personality disorder).

We reach the same conclusion in this case. Dr. Daniel testified that Schneider’s symptoms are similar to those associated with antisocial-personality disorder. P.C.- Tr. Vol. I, 11. Schneider’s cognitive abilities are normal. He is neither schizophrenic nor bipolar. Cf. Antwine v. Delo, 54 F.3d 1357, 1368 (8th Cir.1995) (defendant’s penalty-phase defense was prejudiced by his lawyer’s failure to discover evidence that the defendant suffered from bipolar disorder), cert. denied, — U.S. -, 116 S.Ct. 753, 133 L.Ed.2d 700 (1996); Hill, 28 F.3d at 846 (defendant was prejudiced by counsel’s failure to present evidence at the penalty phase of the defendant’s paranoid schizophrenia and reliance on anti-psychotic drugs). Schneider is hyperactive and he suffers from insomnia. That is not nearly enough to undermine our confidence in the outcome of the penalty phase.

B.

Schneider also claims that his lawyer was ineffective for failing to present adequate evidence at the penalty phase relating to Schneider’s social history. We disagree.

At the penalty phase, Schneider’s mother was his. only witness. Mrs. Schneider testified to her son’s employment history, performance in school, artistic skills, helpfulness around the house, and the effect of her husband’s alcoholism on the family. See Tr. 1927-44. Schneider asserts that his counsel should have called other members of his family as witnesses and did only a superficial job of examining Mrs. Schneider.

Schneider’s counsel explained that after interviewing several family members, he determined that they would not have been effective witnesses because they were too upset with the verdict of guilt. Schneider’s family did testify in a state post-conviction hearing, after which the court observed that the “[f]amily members that testified in this proceeding were weak and offered little.” Resp. Ex. J at 20. We conclude that Schneider’s counsel made a reasonable strategic calculation, which we are not free to second-guess. See Laws v. Armontrout, 863 F.2d 1377, 1391 (8th Cir.1988) (en banc) (counsel’s decision not to have the defendant’s family testify because they would not have been effective witnesses was reasonable), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989).

Furthermore, Schneider has not shown that he was prejudiced by his lawyer’s failure to call additional witnesses or to examine Mrs. Schneider at greater length. Schneider points out that the jury never heard that he was devastated by the childhood death of his sister, Carolyn; started using drugs when he was 10 or 12 years old; loved music; helped his parents with chores; helped an elderly man who had fallen; and babysat for his nieces and nephews. This evidence is not enough to undermine our confidence in the outcome of the penalty phase.

III.

Schneider has brought two other groups of claims — that, at trial, the prosecutor made a number of improper statements, and that the trial court unconstitutionally excluded relevant mitigating evidence during the penalty phase.

A.

Schneider contends that in the course of the prosecutor’s closing argument during the penalty phase, the prosecutor improperly stated that he had knowledge of facts outside the record, he personally believed that the death penalty was an appropriate punishment, and that executing Schneider would deter crime. Schneider failed to raise these claims on direct appeal, and he has shown neither cause for this omission nor actual innocence. Consequently, the claims are procedurally barred.

Schneider also maintains that because David Morgan had told the prosecution that Charles Palmer was the only person who had stabbed Ronald Thompson, it was misleading for the prosecutor to say, during closing argument, that Schneider had killed Thompson. Schneider argues that the prosecutor’s statement deprived Schneider of his right to due process because the statement was “so egregious that [it] fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th Cir.1989) (citation omitted), cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990).

Although this claim is not procedurally barred, it is without merit. Schneider admitted to the Missouri Supreme Court that “it was possible for [the conclusion that Schneider had killed Thompson] to be inferred from the evidence.” Resp. Ex. E at 35. The Due Process Clause does not forbid prosecutors from drawing reasonable inferences from circumstantial evidence. United States v. Karam, 37 F.3d 1280, 1289 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995).

B.

Finally, Schneider asserts that two evidentiary rulings deprived him of his Eighth Amendment right to present evidence at the penalty phase regarding his “character or record and any of the circumstances of the offense....” Eddings, 455 U.S. at 110, 102 S.Ct. at 874 (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion)).

Schneider maintains that the trial court should have allowed him to present evidence that David Morgan had entered into a plea bargain in which the state had agréed to recommend a sentence of 30 years. In this appeal, Schneider has not articulated any reason why Morgan’s sentence was relevant mitigating evidence. Because Morgan did not testify, the plea agreement was not relevant as a means to impeach Morgan’s credibility. On direct appeal, Schneider did allege that under Lockett and Eddings, the plea agreement was relevant because the jury might have concluded that because Morgan received a 30-year prison term, it would be unfair to sentence Schneider to death. But, as the Missouri Supreme Court held, the disposition of Morgan’s case had nothing to do with Schneider’s “character or record” or with the “circumstances of the offense.” See Schneider, 736 S.W.2d at 395-97.

Schneider also contends that he should have been permitted to introduce evidence that Morgan had told the prosecution that Schneider did not kill Ronald Thompson. However, in state court, Schneider objected only to the exclusion of evidence that the state had agreed to recommend that Morgan receive a 30-year sentence. He never raised a claim regarding Morgan’s statement. Because he has shown neither cause for this default nor actual innocence, the claim is proeedurally barred.

IV.

For these reasons, the judgment of the District Court is affirmed.

      . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.

      . For a more detailed description of the crime, see State v. Schneider, 736 S.W.2d 392 (Mo.1987) (en banc), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988).

      . Attention-deficit disorder, which is usually diagnosed during childhood or adolescence, gives rise to the following symptoms:
      (1) often fidgets with hands or feet or squirms in seat (in adolescents, may be limited to subjective feelings of restlessness)
      (2) has difficulty remaining seated when required to do so
      (3) is easily distracted by extraneous stimuli
      (4) has difficulty awaiting turn in games or group situations
      (5) often blurts out answers to questions before they have been completed
      (6) has difficulty following through on instructions from others ...
      (7) has difficulty sustaining attention in tasks or play activities
      (8) often shifts from one uncompleted activity to another
      (9) has difficulty playing quietly
      (10) often talks excessively
      (11) often interrupts or intrudes on others ...
      (12) often does not seem to listen to what is being said to him or her
      (13) often loses things necessary for tasks or activities at school or at home ...
      (14) often engages in physically dangerous activities without considering possible consequences (not for the purpose of thrill-seeking), e.g., runs into street without looking.
      American Psychiatric Association, Diagnostic Criteria from DSM-III-R 56-57 (1987).

      . Schneider also argues that, in considering his ineffective-assistance claims, the District Court should have expanded the record developed in state court by admitting into evidence a number of affidavits and by holding an evidentiary hearing. A habeas petitioner is entitled to expand the state-court record only if he can show cause for his failure to develop the facts in state court and prejudice from that failure. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-12, 112 S.Ct. 1715, 1718-21, 118 L.Ed.2d 318 (1992). We agree with the District Court that Schneider has made no such showing. See Schneider, 890 F.Supp. at 842-43. Nor has he demonstrated that this default should be excused because he is actually innocent of his crimes or of the death penally. See Keeney, 504 U.S. at 12, 112 S.Ct. at 1721 (the cause-and-prejudice requirement does not apply if “a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.”)

      . During his guilt-phase closing argument, the prosecutor said that although Thompson’s body was found with 15 stab wounds, there had been testimony that Thompson had been stabbed only once, when he was in the basement. He explained why he thought that Schneider had inflicted the remaining wounds:
      After they left [Thompson] with the wound not being fatal he was able to get up. The knife was either still sticking in his neck or laying there. He picked it up as a defensive weapon and walked out to the rear basement window, dropped the knife down, climbed out the window. Because of the one wound. He couldn’t have done that with all of the other wounds in his body.
      He goes out to the pool. David Morgan comes downstairs and, according to Patrick, as soon as David finds he's gone yells out for who? He yells out for Eric.
      He goes, “Eric, he's gone.” Why does he yell for Eric? Because Eric is in control of everything. He's in charge.
      And then, Eric goes out and they find Mr. Thompson out by the pool and he takes, ladies and gentlemen, this particular knife and he’s finished off at the pool.
      That's the only way the murder could have happened. It would have been impossible for just the one wound—with all of those wounds for him to have been able to get out of the house, climb out that window and get out to the pool.
      Tr. 1813-14.

      . We reject Schneider’s argument that because Morgan would never have made his statement if he had not struck a plea bargain, his claim that he should have been allowed to introduce Morgan’s statement into evidence is part of his claim that the terms of the plea bargain should have been admitted. The statement was not contained in the plea agreement; the two are discrete pieces of evidence. Moreover, the reason that Schneider thinks Morgan’s statement was admissible — to cast doubt on the prosecution’s argument that Schneider was the ring leader who planned the burglary and stabbed Thompson— bears no resemblance to his argument as to why the plea bargain was relevant.


author: WOLLMAN, Circuit Judge.

text:
    TRITON CORPORATION, Appellee, v. HARDRIVES, INC., Appellant.
    No. 95-2678.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1996.
    Decided June 3, 1996.

      Dwight G. Rabuse, Minneapolis, MN, argued, for appellant.
    Murray G. Sagsveen, Bismarck, ND, argued, for appellee.
    Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
   WOLLMAN, Circuit Judge.

In this diversity action for damages pursuant to an oral contract, Hardrives, Inc. (Hardrives) appeals the district court’s evidentiary rulings and denial of its motion for judgment as a matter of law (JAML), or in the alternative for a new trial or remittitur of the jury award in favor of plaintiff Triton Corporation (Triton). We affirm.

I.

The City of Jamestown, North Dakota, annually invites bids to repair and repave its city streets. Triton attempted to submit a bid for the project in 1991 but was unable to obtain the required performance bond. Jerry Szarkowski, vice president of Triton, contacted Nick ZwiUing, vice president of Hardrives, with a proposal under which Triton would prepare a bid for the project and Hardrives would formaUy submit the bid to the city. If the city accepted the bid, Hardrives would subcontract the work to Triton and pay Triton 90% of the contract price. Hardrives would be paid 10% for obtaining the performance bond for the project.

On May 6, 1991, ZwiUing met with Szarkowski at Szarkowski’s home regarding the arrangement, and Szarkowski submitted the bid with Zwilling’s signature to the city that same evening. The Hardrives bid was the low bid, and the city awarded Hardrives the contract. ZwiUing and Szarkowski attended the preconstruction conference together, and ZwiUing told city engineering staff that Triton would be Hardrives’ representative at the site. In early June, ZwiUing informed Szarkowski that Triton could perform the street repair work only if Triton obtained a performance bond. When Triton was unable to do so, Hardrives subcontracted most of the job to a competing company.

Triton sued Hardrives for lost profits of $107,952.44. Upon finding that an oral contract existed between Triton and Hardrives and that Hardrives had breached the contract, the jury awarded damages of $62,-745.00. The district court denied Hardrives’ post-trial motions for JAML, new trial, and remittitur.

Hardrives argues on appeal that: (1) there was insufficient evidence supporting the finding that an oral contract existed; (2) the district court erred in admitting some of Triton’s evidence as to damages and excluding some of Hardrives’ damages evidence; and (3) the damage award was unsupported by the evidence.

II.

We review the district court’s denial of a motion for JAML based on sufficiency of the evidence de novo, applying the same standard used by that court. Kaplon v. Howmedica, Inc., 83 F.3d 263, 266 (8th Cir.1996). This standard requires us to resolve all conflicts in favor of Triton, giving it the benefit of all reasonable inferences and assuming as true all facts supporting Triton which the evidence tended to prove. See id. at 266-267. We will affirm the denial of the motion for JAML if a reasonable jury could differ as to the conclusions that could be drawn, and we will not set aside the jury’s verdict lightly. We will not weigh, evaluate, or consider the credibility of the evidence. Id. at 267.

North Dakota law applies in this diversity case, and we review the district court’s interpretation of that law de novo. See id. (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). An oral contract will be enforced if there has been an offer, acceptance, and mutual understanding of the terms of the contract. Lohse v. Atlantic Richfield Co., 389 N.W.2d 352, 355 (N.D. 1986). The contract must be definite enough to enable the court to ascertain what performance is required of the parties; indefiniteness as to an essential element may prevent creation of an enforceable contract. Id.

Hardrives argues that essential elements of the contract were never resolved in that the parties had not determined the final bid amount, how much of the work Triton would do and how much of the work would be subcontracted to other companies, or who would buy materials. Viewing the evidence in the light most favorable to Triton, however, we believe that the jury could have reasonably found that any terms left open were not essential terms of the contract.

Szarkowski testified that the parties had-agreed to a bid between $310,000 and $350,-000, and that Hardrives would retain 10% of the final bid amount, notwithstanding the number and identity of additional subcontractors. As the district court stated, the jury could reasonably have inferred that Triton was going to act as the de facto contractor on the project, complete with the power to subcontract for any work it would not perform itself, and needed Hardrives only for its credit history. Those obligations are reasonably definite and support an enforceable contract.

Hardrives also argues that Zwilling never agreed to Triton’s understanding of the agreement. Under North Dakota law, acceptance of an offer must be “absolute, unequivocal, and unconditional.” See Wucherpfennig v. Dooley, 351 N.W.2d 443, 444 (N.D.1984). The evidence in this case, construed favorably to Triton, shows such acceptance. Szarkowski testified that Zwilling agreed to the 10% fee, that he congratulated Szarkowski on getting the job, and that he held Szarkowski out to the city as the person performing the bulk of the work on the project. Such actions show unequivocal acceptance. Thus, we find that the evidence supported the jury’s verdict that a contract existed.

III.

Hardrives next argues that the district court committed reversible error in allowing Triton to present certain testimony and in disallowing certain of Hardrives’ proffered testimony. The district court has broad discretion in determining the admissibility of evidence, and we will review the court’s decision only for an abuse of that discretion. Brown v. United Missouri Bank, N.A., 78 F.3d 382, 388 (8th Cir.1996).

Hardrives argues that the district court should not have admitted evidence presented by Szarkowski regarding Triton’s bid amount. Szarkowski submitted the worksheet of his calculations in various categories that he used to determine the bid amount. He then attempted to refine the calculations “with the benefit of 20/20 hindsight,” adjusting the calculations based on weather reports and revised material quotes. After Hardrives objected to the testimony for lack of foundation and hearsay, Szarkowski was allowed to refine his original bid based only on the actual quantities that were finally required for the project. Hardrives did not object to the admission of this testimony by Szarkowski. The district court did not abuse its discretion in finding that Szarkowski was competent to testify regarding Triton’s expenses and expected profit from personal knowledge and experience, or in finding that underlying evidence of employee payroll records, standard equipment cost rates, and subcontractor quotations, while it may have bolstered Szarkowski’s testimony, was not necessary to support the testimony.

Triton’s actual damage calculation came from its expert, James Martin, an assistant construction engineer for the North Dakota Department of Transportation, who verified the reasonableness of Triton’s bid numbers. Hardrives challenges the admission of Martin’s testimony, arguing that Martin relied upon information not disclosed to Hardrives and that he relied upon Szarkowski’s numbers, which were not properly supported. The district court excluded evidence that was based on Szarkowski’s oral representations and other undisclosed information. The court allowed Martin to testify, however, using Szarkowski’s prepared bid sheet, adjusted for the actual quantities that were required for the project. Martin had compared the numbers Szarkowski used in his bid worksheet to the average bid prices for similar work in the state of North Dakota, using the Department of Transportation’s standard methodology for analyzing bids, and found them to be reasonable.

Because he was unable to rely on some of the information he had used, Martin reduced his calculation of damages from $107,952.44 to $80,222. Thus, his final calculation was not based on undisclosed evidence, and Hardrives was able to cross-examine him regarding the basis for his calculations. Hardrives submitted the testimony of its own expert, who testified that Triton’s profit calculation was unreasonable, to rebut Martin’s testimony. “As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility....” Loudermill v. Dow Chemical Co., 863 F.2d 566, 570 (8th Cir.1988). See also Norton v. Caremark, Inc., 20 F.3d 330, 340 (8th Cir.1994). Accordingly, we find no abuse of discretion in the district court’s admission of Martin’s testimony.

Hardrives argues that the district court erred in not allowing its proffered evidence regarding actual job costs. The district court disallowed testimony that Hardrives actually lost money on the job and that the company it hired in Triton’s place lost money. Counsel for Hardrives conceded that comparisons between a competitor’s profit and overhead and Triton’s profit and overhead would be difficult. The competitor’s losses, for example, included overhead costs, which Triton properly excluded from its expense calculation. Although Hardrives may have suffered a loss, it subcontracted out all of the work rather than performing the work itself, as Triton would have done. We thus find no abuse of discretion in the district court’s ruling that the testimony would not have provided a meaningful comparison and would confuse the jury.

IV.

Hardrives next argues that the damage award by the jury was excessive and was not supported by the testimony. A district court should grant remittitur only when the award is so excessive as to shock the court’s conscience. Norton, 20 F.3d at 340. We review the district court’s denial of remittitur for an abuse of discretion. Id. Under North Dakota law, uncertainty as to the amount of damages, as opposed to the fact of damages, will not prevent recovery. Bergquist-Walker Real Estate, Inc. v. William Clairmont, Inc., 333 N.W.2d 414, 420 (N.D.1983).

Although Hardrives argues that Martin did not make any allowance for equipment costs, the testimony does not bear this out. Martin testified that he included equipment costs in the fuel costs portion of his worksheet and that he did not include expenses for depreciation of equipment because that expense would have been incurred whether or not Triton was awarded the Jamestown project. Triton submitted expert testimony from a certified public accountant to the effect that it was proper to exclude Triton’s overhead costs as an expense of the Jamestown job. In addition, North Dakota law holds that such exclusion is proper. See Leingang v. City of Mandan Weed Bd., 468 N.W.2d 397, 398-99 (N.D.1991).

Hardrives also argues that Martin’s damages calculation did not include any money that Triton received in mitigation. Szarkowski testified, however, that the small jobs it obtained when the Jamestown project fell through could have been done even if Triton had done the Jamestown project because the Jamestown job had a reasonable time frame for completion. Taking this testimony as true, Martin’s calculations properly excluded a calculation for mitigated damages. Thus, the jury’s determination of damages was reasonable given the evidence adduced at trial, and the district court did not abuse its discretion in refusing to grant remittitur.

The judgment is affirmed.

      . The Honorable Karen K. Klein, United States Magistrate Judge for the District of North Dakota, to whom this case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).


text:
    Eugene Issac PITTS, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
    No. 95-2746EA.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1996.
    Decided June 4, 1996.

      George L. Lucas, argued, Fayetteville, AR, for appellant.
    Olan W. Reeves, argued, Little Rock, AR, for appellee.
    Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
   RICHARD S. ARNOLD, Chief Judge.

Eugene Pitts, who is serving a sentence of life in prison without parole, appeals the District Court’s denial of his third petition for a writ of habeas corpus. The Court concluded that the claims raised in the petition were procedurally barred. We affirm.

I.

We begin with a brief overview of the facts leading to Pitts’s conviction and ultimately to this appeal. In January of 1979, Pitts abducted Dr. Bernard Jones from his home and shot him once in the side of the head and three times in the back of the head, killing him. That same year, Pitts was charged with and convicted of capital felony murder, with kidnapping as the predicate felony. He was sentenced to life in prison without parole.

The Arkansas Supreme Court affirmed Pitts’s conviction in 1981. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). Pitts’s petition for state post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37 was denied as well. He then filed two habeas corpus petitions, both of which were denied. In this, his third habeas petition, he initially raised four claims. A magistrate judge filed a recommendation concluding that the claims were either abusive or successive, and that habeas relief should be denied. Following a de novo review of the record, the District Court entered an order adopting the recommendation and dismissed the petition.

Pitts now appeals one of the claims which he raised in the District Court: that his appellate counsel, who was a public defender, was rendered ineffective because a member of the public defender’s office allegedly had a personal relationship with the victim and participated in the murder investigation. Pitts admits that this argument is proeedurally barred. To overcome the bar, he advances the actual-innocence exception. We review the District Court’s decision to dismiss the petition de novo.

II.

Generally, claims raised or developed for the first time in a second or subsequent habeas are abusive and may not be considered on the merits. There are some exceptions to the rule. A claim that would otherwise be abusive may be considered on the merits if the defendant is able to demonstrate either cause and prejudice, or actual innocence.

Pitts relies upon the actual innocence exception. He claims that the evidence presented by the State was insufficient to convict him of capital felony murder predicated upon kidnapping. Citing the Arkansas Supreme Court’s holding in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), he argues that the State failed to prove that he possessed an independent intent to commit the predicate felony. In Parker, the court held that “in order to constitute capital felony murder, the murder must be in the course of, and in furtherance of the” predicate felony. 292 Ark. at 427, 731 S.W.2d at 759 (emphasis in original). Stated another way, the predicate felony “must have an independent objective which the murder facilitates.” Ibid. Pitts contends that the only objective of the predicate felony charged, the kidnapping of Dr. Jones, was the murder, and therefore his conviction violates Parker.

Pitts presented this exact argument as a basis for habeas relief in his second habeas petition and in the appeal of that petition. In that context, he argued, inter alia, that his conviction violated his due process rights. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We rejected the argument without addressing its merits, stating that it was not a constitutional claim, but purely an issue of state law which did not state a basis for habeas relief. Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir.1990), cert. denied, 501 U.S. 1253, 111 S.Ct. 2896, 115 L.Ed.2d 1060 (1991).

Here, Pitts seeks to advance the argument for a different purpose — as a gateway to considering the merits of his ineffective-assistance-of-counsel claim. See Schlup v. Delo, — U.S. -, -, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). To form a gateway through the procedural bar, Pitts must show, “based on new evidence, that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.1995) (quoting in part Schlup, — U.S. at -, 115 S.Ct. at 867), cert. denied, — U.S. -, 116 S.Ct. 1049, 134 L.Ed.2d 194 (1996). The argument must fail. The actual innocence exception is concerned with claims of actual, not legal, innocence. Anderson v. United States, 25 F.3d 704, 707 (8th Cir.1994). It is evidence of factual innocence coupled with a constitutional violation which triggers the actual innocence exception. Indeed, a credible claim of actual innocence “requires [a] petitioner to support his allegation of constitutional error with new reliable evidence....” Schlup, — U.S. at -, 115 S.Ct. at 865. Examples of evidence which may establish factual innocence include credible declarations of guilt by another, see Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992), trustworthy eyewitness accounts, see Schlup, — U.S. -, 115 S.Ct. 851, and exculpatory scientific evidence.

Pitts’s argument is one of legal innocence. He has presented no new evidence establishing his factual innocence. For these reasons, he has not demonstrated that he falls within the actual innocence exception. Pitts’s argument, in plain terms, is that he may have kidnapped Dr. Jones intending from the beginning to kill him. Therefore, he is not guilty of capital felony murder, which requires that the underlying felony have an objective independent of the killing. Even if Pitts is right, convicting him is not a fundamental miscarriage of justice by any stretch of the imagination.

III.

We conclude that the District Court did not err by dismissing Pitts’s petition. Pitts has faded to make the showing of actual innocence necessary to overcome the procedural bar to have his ineffective-assistance-of-eounsel claim considered on the merits. Because of the procedural bar, we do not reach the merits of the ineffective-assistance claim. The judgment is affirmed.

      . The Hon. Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas, acting on the recommendation of the Hon. Jerry Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas.

      . The Arkansas capital murder statute, Ark.Code Ann. § 5-10-101, states that:
      (a) a person commits capital murder if:
      (1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, §§ 5-64-101 — 5-64—608, involving actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

      . The District Court denied Pitts’s first petition for relief. A panel of this Court affirmed as to all issues with the exception of the death-qualified jury issue, on which we reversed. Pitts v. Lockhart, 753 F.2d 689 (8th Cir.1985), vacated, 476 U.S. 1111, 106 S.Ct. 1963, 90 L.Ed.2d 649 (1986). That reversal was later vacated as a consequence of the Supreme Court’s ruling in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). All claims raised in Pitts’s second petition were denied by the District Court, and the denial was affirmed on appeal. Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir.1990), cert. denied, 501 U.S. 1253, 111 S.Ct. 2896, 115 L.Ed.2d 1060 (1991).

      .Pitts raised the following claims before the District Court: (1) appellate counsel was rendered ineffective by a conflict of interest; (2) appellate counsel was ineffective because he withheld exculpatory evidence; (3) appellate counsel was ineffective in presenting the sufficiency of the evidence argument; and (4) denial of due process, equal protection, and access to the courts due to erroneous rulings in his prior federal habeas petitions regarding his sufficiency of the evidence claim. Pitts appeals only the denial of the conflict-of-interest claim.

      . The State says that the lawyer in question in fact worked for a completely different office. Our disposition of this appeal makes it unnecessary to pursue that question of fact.

      . In his reply brief, Pitts makes what could be construed as an attempt to show cause in order to excuse the abuse of the writ. He argues that the holding in Parker was ambiguous until the court decided Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). He notes that Allen was not available at the time of trial or at the time of his first and second petitions for writ of habeas corpus.
      It is true that legal unavailability may be cause excusing an abuse of the writ. Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir.1995). In such a case, the issue must be so novel as to present a clear break with the past. Id. at 334. The fact that Allen was not decided until after Pitts's second habeas is insignificant. The holding in Allen follows closely the reasoning employed in Parker, which was decided prior to Pitts’s second habeas petition. We do not consider Allen to be a clear break with past Arkansas law. There is simply nothing novel about Pitts’s claim.

      . Pitts urges us to remand this case to the District Court for reconsideration in light of Schlup because the Court applied the wrong standard when considering his actual innocence claim. The District Court applied the narrow "clear and convincing” standard of Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 2525, 120 L.Ed.2d 269 (1992), rather than the less narrow "more likely than not” standard of Schlup, - U.S. at -, 115 S.Ct. at 867 (adopting the standard established in Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)). Despite this error, we are not inclined to remand this case to the District Court for reconsideration, because Pitts has failed to make even a threshold showing that he is actually innocent under Schlup. See, e.g., Barrington v. Norris, 49 F.3d 440 (8th Cir.1995) (per curiam).


author: JOHN R. GIBSON, Circuit Judge.

text:
    DAVE KOLB GRADING, INC., Appellant/Cross-Appellee, v. TERRA VENTURE BRIDGETON PROJECT JOINT-VENTURE; American National Insurance Co., a General Partner; Bridgeton Development Company, a Kansas General Partnership; Jack W. Isley; L. Gary Turner; Larry D. Ross, Appellees/Cross-Appellants.
    Nos. 95-1721, 95-1788.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 11, 1996.
    Decided June 4, 1996.

      Joseph Devereux, argued, Clayton, MO, for appellanVcross-appellee.
    Roy Bash, argued, Thomas A. Sheehan, Kansas City, MO, for appellees/cross-appellants.
    Before BOWMAN and JOHN R. GIBSON, Circuit Judges, and KYLE, District Judge.

       The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota, sitting by designation.

   JOHN R. GIBSON, Circuit Judge.

Dave Kolb Grading, Inc., a grading contractor, appeals from the judgment in its suit against Terra Venture Bridgeton Project Joint-Venture, a real estate developer. Kolb sued to recover money due under a written contract with Terra Venture, as well as additional moneys Kolb claimed were due for extra work it performed on Terra Venture’s project. Terra Venture denied liability for the extra work, which it says it did not authorize, and also asserted a set-off claim for costs it incurred in settling a trespass' claim that it contends Kolb is responsible for. The magistrate judge awarded Kolb the entire amount it had earned under the contract, denying Terra Venture’s set-off claim, but also denying Kolb’s claim for the extra work. The court awarded Kolb prejudgment interest and attorneys’ fees under the contract. Kolb appeals the court’s denial of the extra work claim, and Terra Venture cross-appeals the court’s award of prejudgment interest and attorneys’ fees. We affirm.

Kolb contracted with Terra Venture to do the site' excavation and grading for a shopping center in St. Louis County, Missouri. The contract was a “lump sum” contract, meaning that it specified the work Kolb had to do and the total price Terra Venture had to pay (as opposed to, say, payment by the hour). The contract stated that no change order work would be approved or paid for without advance written approval by Terra Venture, in the form of the signatures of Terra Venture’s management consultant, E.B. Roberts, and its project manager, Kevin Fitzpatrick.

The contract turned out to be a money-loser for Kolb. The contract called for performance within thirty-five working days, but it actually took Kolb more than 230 days to complete its work. Bad weather caused delays. Terra Venture failed to get timely approvals from municipal and sewer authorities and easements from neighboring landowners. Terra Venture’s engineer also made frequent changes in the plans. The delays resulted in Kolb having to do site excavation while other contractors were already building on the site, which made Kolb’s job more time consuming.

During the course of Kolb’s performance, the parties executed two change orders for additional work by Kolb. The first change order was executed in writing in advance of the work, as required by the contract. Kolb then began a practice of filling out “hourly tickets” for work that its job superintendent, Lee Moorman, considered to be “extra” or beyond the scope of the contract. Moorman submitted these slips to Gene Bunton, who represented Phillips Construction Company, the general building contractor. Bunton had no authority to represent Terra Venture. Kolb then billed Terra Venture for the work represented by the slips. Terra Venture objected that the extra work had not been approved in advance, as the contract required, and at first refused to pay the extra charges. However, Kolb threatened to walk off the job if Terra Venture did not pay the charges, so Kevin Fitzpatrick met with Kolb and agreed to pay a portion of the charges as “change order two.” At the meeting, Fitzpatrick warned Kolb that in the future Terra Venture would not pay any extra charges that were not authorized in advance in accordance with the contract.

Nevertheless, after change order two was approved, Kolb continued to do work it considered to be beyond the scope of its contract obligations without getting authorization from Terra Venture. Kolb eventually billed Terra Venture an extra $188,602.13. (The original contract plus change orders one and two amounted to $501,499.10.)

Terra Venture refused to pay for the extra work and also withheld $88,112.81 of the amount due under the contract. Terra Venture had been sued by a neighboring landowner for trespass; Terra Venture claimed that the suit was the result of Kolb’s activities on the neighbor’s land and relied on a clause in the contract giving it the right to indemnification from any damages arising from Kolb’s negligence. Terra Venture eventually agreed to settle the trespass suit for $42,500, although the settlement had not been consummated at the time of the trial in this case, because Terra Venture had not fulfilled its obligations under the settlement agreement.

Kolb sued Terra Venture for the money due under the contract, as well as for the work it claimed was outside the scope of the contract. Terra Venture denied liability for the extra work, but on the first day of trial, offered to pay $38,560.11, which was the amount Terra Venture admittedly owed under the contract, less the settlement amount and expenses for the trespass suit.

The parties tried the ease to the court. After Kolb closed its case, the magistrate judge stated that Kolb had failed to put on any evidence that Terra Venture had authorized the extra work. In its rebuttal Kolb called a new witness, Jeff Kolb, whom it had not identified as a potential witness in its pretrial list of witnesses. Kolb’s lawyer asked Jeff Kolb:

Q: Well did you have any direct discussions or dealings with Mr. Fitzpatrick regarding authorization to do extra work sir?
A: Yes I did.
Q: Could you define when those occurred and where those occurred?

Terra Venture’s lawyer objected that this was improper rebuttal, since Kolb was trying to patch a hole in its case in chief. The court explored the issue thoroughly and concluded that there was prejudice to Terra Venture in letting Jeff Kolb testify when he had never been identified as a potential witness and therefore had never been deposed. The court excluded the rebuttal testimony. Kolb made no offer of proof on the subject of Terra Venture authorizing the additional work.

Since Kolb had failed to prove the extra work was authorized, the court denied its claim for payment beyond the contract amount. The court found that Terra Venture objected to Kolb’s practice of billing for extras after it had already done the work, instead of getting advance authorization. The court also found that much of the work Kolb characterized as extra was actually within the scope of its obligations under the lump sum contract, and that much of the work was properly billable to other contractors, rather than to Terra Venture.

On the other hand, the court rejected Terra Venture’s counterclaim for the costs resulting from the trespass claim. The court found Terra Venture had not established that Kolb’s activities were the basis of the trespass claim. The court also found that Terra Venture was to blame for failing to get an easement on the neighbor’s property.

Accordingly, the court entered judgment for Kolb in the amount of $88,121.81, the amount owed under the contract.

The court supplemented this amount in a later order, awarding Kolb attorneys’ fees and prejudgment interest. Terra Venture claimed it did not owe prejudgment interest because it had the right under the contract to withhold payment until it had resolved the third-party trespass claim. The court rejected this reading of the contract. The court reduced Kolb’s claimed attorneys’ fees by 20% to eliminate fees attributable to the claim for extra work, on which Kolb did not prevail.

I.

Kolb argues that it did not have to prove Terra Venture authorized it to do the extra work. Kolb contends that Terra Venture became obligated to pay for the work because it knew the work was being performed and it acquiesced. Kolb cites Winn-Senter Construction Co. v. Katie Franks, Inc., 816 S.W.2d 943 (Mo.Ct.App.1991); H.B. Deal Construction Co. v. Labor Discount Center, Inc., 418 S.W.2d 940 (Mo.1967); and Julian v. Kiefer, 382 S.W.2d 723 (Mo.Ct.App.1964), in which parties waived the requirement in their contract that change orders be written.

Two of the cited cases actually work against Kolb, because they involve owners who explicitly gave oral change orders, Winn-Senter, 816 S.W.2d at 946; Julian, 382 S.W.2d at 729. Accord Gilmartin Bros., Inc. v. Kern, 916 S.W.2d 324, 329 (Mo.Ct.App.1995). Kolb failed to prove that Terra Venture gave oral orders for the extra work.

H.B. Deal does involve, in part, a bank and escrowee’s implicit waiver of contractually required formalities by habitually paying change orders without protesting the lack of such formalities. 418 S.W.2d at 950 (alternative holding). But the district court’s factual findings in this case distinguish it from H.B. Deal. In contrast to the escrowee in H.B. Deal, Terra Venture did not habitually ignore the requirements of advance written authorization for change orders. The magistrate judge found that Terra Venture protested Kolb’s failure to comply with this formality and warned Kolb that it would not pay such orders. Even if we accept Kolb’s argument that evidence of explicit authorization was not necessary to its case, the magistrate judge’s findings rule out implicit acquiescence by Terra Venture. Kolb does not argue that the findings are clearly erroneous, and we hold the findings to be well supported in the record.

II.

Kolb’s second argument is that the magistrate judge erred in excluding Jeff Kolb’s testimony. Kolb contends that Jeff Kolb would have said Terra Venture orally authorized the extra work. There are three reasons to affirm the court’s exclusion of this evidence: Kolb made no offer of proof, see Strong v. Mercantile Trust Co., 816 F.2d 429, 432 (8th Cir.1987), cert. denied, 484 U.S. 1030, 108 S.Ct. 759, 98 L.Ed.2d 771 (1988); the proposed testimony was properly part of Kolb’s case in chief, but it was offered as rebuttal, see Gossett v. Weyerhaeuser Co., 856 F.2d 1154, 1156 (8th Cir.1988); and Kolb did not list Jeff Kolb as a potential witness in its pretrial filings, see Marti v. City of Ma plewood, 57 F.3d 680, 683-84 (8th Cir.1995). The magistrate judge heard argument and concluded that excusing Kolb from compliance with its duty to disclose witnesses would prejudice Terra Venture, since Terra Venture had never deposed Jeff Kolb. The ruling was well within the court’s discretion.

III.

Terra Venture contends that the magistrate judge erred in awarding Kolb attorneys’ fees and prejudgment interest. Terra Venture argues that the contract entitled it to withhold payment until it had resolved “claims filed by third parties,” that the trespass case was such a claim, and that the trespass case was not finally settled at the time this case was tried. Terra Venture argues that attorneys’ fees and interest would only accrue after payment was due. Since payment never became due, Terra Venture asserts it should not be liable for fees and interest.

This argument is disingenuous. Terra Venture admits there was a settlement agreement in the trespass case about three months before trial of this case, yet Terra Venture did not tender even the amount it admitted it owed until the first day of trial. Terra Venture says there was a settlement agreement, but the settlement had not become final. There was evidence at trial that the delay was attributable to Terra Venture’s failure to perform its duties under the settlement agreement. If Terra Venture could delay indefinitely its obligation to Kolb by merely failing to fulfill its duties under the trespass settlement, Kolb’s rights under the contract would be illusory. Therefore, even assuming that the trespass case would toll Terra Venture’s payment obligation for some time, Terra Venture cannot avoid liability for Kolb’s collection expenses by simply drawing out the settlement process in the trespass claim.

Alternatively, Terra Venture argues that even if we conclude the debt became due at some point, Terra Venture should only owe interest for the three-month period after it reached a settlement agreement in the trespass case. The magistrate judge rejected Terra Venture’s argument that the trespass suit was the kind of third-party claim that would entitle Terra Venture to withhold payment. The court held that the trespass suit resulted from Terra Venture’s “haphazard conduct of its development” — that is, its failure to obtain easements, as required by section 8.2 of the contract. The contract language permitting Terra Venture to withhold payment is vague, referring only to “claims filed by third parties,” without specifying what kind of claims. On the other hand, the contract elsewhere describes in detail the circumstances under which Kolb would be required to indemnify Terra Venture. We construe the contract to allow Terra Venture to withhold payment only in response to third-party claims for which Terra Venture is entitled to indemnification from Kolb. Any other reading would place Kolb entirely at Terra Venture’s mercy by permitting Terra Venture to withhold payment because of suits for which the Kolb was not responsible. The court held that Kolb was not liable to indemnify Terra Venture for the trespass suit. Terra Venture has not appealed that ruling. Therefore, we hold that payment was due under the contract despite the pendency of the trespass suit. We affirm the magistrate judge’s award of prejudgment interest and her conclusion that Kolb was entitled to attorneys’ fees.

Terra Venture also appeals the magistrate judge’s determination of the amount of attorneys’ fees. Terra Venture argues that the court did not properly reduce the requested fees to eliminate fees for the extra work claim on which Kolb lost. To the contrary, the magistrate judge’s opinion shows that she did adjust the award to eliminate fees incurred on the extra work claim. The court’s factual findings are not clearly erroneous.

We affirm.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri. Judge Perry was a magistrate judge at the time she tried this case. The parties consented to trial before a magistrate judge.

      . The court stated:
      Defendants’ project manager, Kevin Fitzpatrick, testified that he authorized payment for change order 2 only after Kolb had threatened to walk off the job and had in fact not shown up on the job for two days. He testified that he flew to St. Louis, met with representatives at Kolb, and explained in detail that any further work done without authorization by the partnership would not be paid, but that he would at this time agree to pay a portion of the extra work already done. The Court finds this testimony credible.