author: BAUER, Circuit Judge.

text:
    Scott ALLIN, Plaintiff-Appellee, v. CITY OF SPRINGFIELD, et al., Defendants-Appellants.
    No. 16-1155
    United States Court of Appeals, Seventh Circuit.
    Argued October 27, 2016
    Decided January 11, 2017

      Louis J. Meyer, Attorney, Meyer & Kiss, Peoria, IL, for Plaintiff-Appellee.
    Steven C. Rahn, Attorney, Office of the Corporation Counsel, Ronald J. Stone, Attorney, Stone Law Office, Springfield, IL, for Defendants-Appellants.
    Before WOOD, Chief Judge, and BAUER and MANION, Circuit Judges.
   BAUER, Circuit Judge.

Plaintiff-appellee, Scott Allin, brought this action against Patricia Baskett, Sergeant Jeff Barr of the Springfield Police Department, and the City of Springfield, Illinois, raising both 42 U.S.C. § 1983 and state law claims.

Allin asserts that his Fourth Amendment rights were violated when Baskett, with Barr in attendance, came to his residence to gather her property, and, after a dispute about the ownership of a motorcycle, Barr announced he would not prevent her from taking it. Barr filed a motion for summary judgment on Allin’s § 1983 claims, contending that he was entitled to qualified immunity. The district court denied his motion. We reverse and remand.

I. BACKGROUND

Allin and Baskett lived together in Al-lin’s residence from December 2010 until February 2012. In late July or early August 2011, Allin was in poor health and signed over the titles to the numerous vehicles that he owned, including a 2001 FLSTS Harley Davidson motorcycle, believing it “would make it easier for his survivors if he passed away.”

On August 29, 2011, the Illinois Secretary of State issued a change of ownership on the motorcycle and a certificate of title in Baskett’s name.

By February 25, 2012, AHin and Bask-ett’s relationship had souredj They had an argument and Baskett moved 'in with her sister, Kelly McClure, Baskett asked Allin for $1,000 to help her find her own place, but Allin refused. Following this argument, he discovered that the certificate of title to his motorcycle was missing. He filed a theft report with the Springfield Police Department, alleging that Baskett had stolen the title.

Sometime between February 25 and February 27, Baskett told McClure that she was concerned about retrieving her personal belongings from Allin’s residence; McClure contacted Ami Barr-^ergeant Barr’s wife and McClure’s cqjvprker— about Baskett’s fears. Ami knew :]3askett, having met her on a few occasions. Ami asked Barr if he would accompany Baskett to Allin’s residence when Baskett went to remove her belongings. Ban told Ami that he would.

On February 27, 2012, Baskett and others arrived at Allin’s residence to gather her personal property; Springfield police officers, including Barr, were there to ensure a peaceful transition of the property. At the residence, Allin and Baskett had a dispute as to the ownership of the motorcycle, and decided to present their conflicting stories to Barr. Baskett produced the certificate of title for the motorcycle and claimed that Allin gave her thswúorcycle for taking care of him when he was sick. Min admitted that he signed over the title, but he stated that he did not intend for ownership to pass to Baskett. Min also said that he reported the certificate of title stolen two days earlier.

The police ran a title search; it is the Springfield Police Department’s policy to run title searches and rely upon the results when responding to a removal of property call. The search showed that title to the motorcycle had been in Baskett’s name since August 29, 2011.

The officers also conducted a computer search of the reported theft records; the results did not indicate that the motorcycle was reported stolen.

Barr also claims to have sought advice from a superior, but Min disputes this; Barr’s call records failed to show that a call took place around that time. In light of the situation, Barr announced that he would not prevent Baskett from taking the motorcycle.

Ban’ left Min’s residence at 2:51 p.m. At approximately 7:00 or 8:00 p.m., Bask-ett removed the motorcycle from Min’s residence — officers were not present.

At some point after February 27, 2012, Baskett went to Halls Harley Davidson in Spring-field to obtain keys to the motorcycle. Later, Barr, Ami, McClure, and Bask-ett met at a storage unit where the motorcycle had been stored; however, the keys would not start the motorcycle due to a security system problem. Some time later, Springfield police officers and Baskett met at Halls, and Baskett provided a Halls’ employee with a copy of the title. The Halls’ employee then fixed the motorcycle’s security system.

The motorcycle was now operational, allowing Barr to take the motorcycle for a test drive. Following the test drive, Barr agreed to buy the motorcycle from Baskett for $7,000, and on March 13, 2012, the sale was complete.

On January 15, 2014, Min filed suit against the City of Springfield, Barr, and Baskett, raising both 42 U.S.C. § 1983 and state law claims. Min’s claims allege an unreasonable seizure of property, civil conspiracy, violation of substantive due process, and violation of procedural due process.

On July 31, 2015, each Defendant filed a motion for summary judgment. The district court denied the motions, and held that Barr was not entitled to qualified immunity. Barr and the City of Springfield have appealed.

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s denial of summary judgment on qualified immunity grounds. Leaf v. Shelnutt, 400 F.3d 1070, 1077 (7th Cir. 2005). Summary judgment is proper only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the factual record and draw all inferences in the light most favorable to the nonmoving party. Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013).

B. Qualified Immunity 1. Jurisdiction

We have interlocutory jurisdiction over a district court’s denial of summary judgment on qualified immunity grounds. Gibbs v. Lomas, 755 F.3d 529, 535 (7th Cir. 2014). We consider such ap peals to the extent that the defendant public official presents an “abstract issue of law,” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), such as “whether the right at issue is clearly established or whether the district court correctly decided a question of law,” Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014) (citing Leaf, 400 F.3d at 1078).

2. Qualified Immunity Framework

The doctrine of qualified immunity shields public officials from civil liability if their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). When examining a qualified immunity claim, we consider two questions: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Gibbs, 755 F.3d at 537 (quoting Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir. 2013)).

“A right is clearly established if it is sufficiently clear that any reasonable official would understand that his or her actions violate that right, meaning that existing precedent must have placed the statutory or constitutional question beyond debate.” Zimmerman v. Doran, 807 F.3d 178, 182 (7th Cir. 2015) (citing Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mullenix, 136 S.Ct. at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341,106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

The Supreme Court has repeatedly advised courts “not to define clearly established law at a high level of generality.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

The dispositive question is “whether the violative nature of particular conduct is clearly established.” ... This inquiry “‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ ” ... Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts.”

Id. (citations omitted).

Allin contends that the “case law establishes that the constitutional right at stake here is clearly established.” Appel-lee’s Br. at 13. He concedes that the district court did not identify a “closely analogous” case. Instead, Allin relies on generalized assertions of law. First, Allin argues that it was clearly established that a governmental actor is liable under § 1983 when he knows about a constitutional violation and has the requisite “personal involvement.” Second, he contends that there need not be a case directly on point for a reasonable officer to know that Barr’s actions were unlawful. As support, Allin provides a string cite to Soldal v. Cook Cnty., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), Perry v. Sheahan, 222 F.3d 309, 316 (7th Cir. 2000), and Dixon v. Lowery, 302 F.3d 857, 866-67 (8th Cir. 2002), with paren-theticals containing generalized assertions of law.

The conduct in the cases cited by Allin would not alert every reasonable police officer that the particular conduct taken by Barr would constitute governmental action or be in violation of the Fourth Amendment. In Soldal, the Supreme Court held that the forcible removal of the plaintiffs mobile home, leaving him dispossessed of his home, constituted a seizure invoking the protections under the Fourth Amendment. 506 U.S. at 61,113 S.Ct. 538. In Perry v. Sheehan, officers seized a plaintiffs firearms from plaintiffs apartment “even though they knew that the eviction had been stayed by order of the court and thus that the seizure was not pursuant to any court order.” 222 F.3d at 317. In Dixon v. Lowery, the Eighth Circuit found that reasonable officers would have known that the plaintiffs rights were being violated when the officers commandeered a restaurant, without a court order, to the exclusion of the owner and personally occupied the premises for three weeks. 302 F.3d at 864-66. While these cases are helpful in establishing, in general, that there is a Fourth Amendment right against unreasonable seizures, the particular conduct in those cases does not establish beyond debate that Barr’s particular conduct in the specific circumstances constituted either governmental action or a Fourth Amendment violation.

Contrary to what Allin must establish to defeat qualified immunity, the record here belies any contention that Barr acted plainly incompetently or that he knowingly violated the law. Baskett and Allin decided to present their dispute over the ownership of the motorcycle to Barr. Baskett told officers that Allin had given the motorcycle to her for taking care of him when he was sick. Baskett produced a certificate of title. Under Illinois law, the certificate of title “provide[s] the public with a readily available means of identifying the owners ... to the vehicle described in the certificate of title.” Spaulding v. Peoples State Bank of Bloomington, 25 Ill.App.3d 118, 323 N.E.2d 143, 144 (1975) (citation omitted). Thus, under Illinois law, there was a rebuttable presumption that Baskett was the owner of the motorcycle. Even then, Barr took additional steps in his investigation. It was undisputed that Springfield Police officers ran title searches and relied upon the results when responding to removal of property calls. Barr conducted a title search, which revealed that the title had been in Baskett’s name since August 29, 2011 — approximately six months before the day in question. In response, Allin admitted to Barr that he signed over the title, but claimed that he did not pass ownership to Baskett. Allin informed Barr that he filed a police report claiming that the title was stolen two days prior. The officers, however, ran a search on their computer and the search did not reveal that the motorcycle was reported stolen. In the end, with the evidence pointing to Baskett as the owner of the motorcycle, Barr is entitled to qualified immunity. The district court erred in denying Barr’s motion for summary judgment on qualified immunity grounds.

We reverse the district court’s denial of Barr’s motion for summary judgment on qualified immunity grounds, and direct the district court to grant the motion.

      . Out of the four claims Allin brought under 42 U.S.C. § 1983, the district court addressed only the unreasonable seizure of property and civil conspiracy claims.

      . We previously asked the parties to address the issue of this Court’s jurisdiction over the City of Springfield’s interlocutory appeal, We need not address this issue because it is now moot.

      . Significantly, Allin's argument based on these cases is raised for the first time on ■ appeal. These cases were not even mentioned in his opposition to Barr’s motion for summary judgment.


source: Caselaw Access Project

author: POSNER, Circuit Judge.

license: Public Domain

text:
    Jose Alberto RIVERA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-3225
    United States Court of Appeals, Seventh Circuit.
    Submitted December 21, 2016
    Decided January 12, 2017
    Jose Aberto Rivera, Pro Se.
    OIL, Daniel Shieh, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.
   POSNER, Circuit Judge.

Jose Aberto Rivera, a 58-year-old citizen of El Salvador who has resided unlawfully in the United States for the last 35 years because he immigrated illegally and has never adjusted his status to that of a citizen or lawful permanent resident, petitions us for review of an order of the Board of Immigration Appeals upholding an immigration judge’s denial to Rivera of asylum, withholding of removal, or relief under the Convention Against Torture, and affirming the immigration judge’s issuance of an order removing (deporting) Rivera from the United States to El Salvador.

In 2014, after having fought off a previous attempt by the government to deport him, Rivera had been convicted of possessing a “forged instrument” and the government had reopened removal proceedings. He responded, as noted in the preceding paragraph, basing his response on his fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, owing to his long residence in the United States.

He told the immigration judge that the gangs “do not care about anything” and “always” harm innocent civilians, whether they have money or not. Yet he conceded that nobody in El Salvador had ever threatened him or his family, while recounting the experience of an unidentified Salvadoran national with whom he had been detained who told Rivera of having been removed to El Salvador, where members of the MS-13 gang had “threatened” him after he rebuffed their attempts to recruit him to traffic drugs. Yet no harm had befallen him. Rivera also testified that about five years ago his sister, who has lived in the United States since the 1970s, visited El Salvador for a few days — without incident. And although he expressed uncertainty about whether the Salvadoran government would be able to protect him from the gangs, he denied any fear that he would be harmed by the government itself.

The immigration judge noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth,” and noted (essentially repeating Rivera’s statement) that nobody in El Salvador had ever threatened him or his family and that there was no reason to think that the Salvadoran government would torture him or acquiesce in his being tortured by nongovernment actors. And remember that his sister and the unidentified Salvadorian detainee, each of whom had visited El Salvador after living in the United States, had incurred no harm there.

The Board of Immigration Appeals agreed with the Immigration Judge’s assessment of Rivera’s claims, which were weak. Really all he argued was that as a long-time resident of the United States he would be perceived in El Salvador as wealthy. That may be correct, and we are dubious (see the concurring opinion in Gutierrez v. Lynch, 834 F.3d 800, 807 (7th Cir. 2016)) of the proposition announced in some cases that

the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members.

But when this is the claim the petitioner must submit evidence supporting it, as the probability that any given member of such a group would be held for ransom might be exceedingly low.

Although the majority opinion in Gutierrez rejected the petitioner’s argument that he was in danger of persecution because he belonged to a social group consisting of “Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico,” 834 F.3d at 805, Gutierrez like Rivera had not presented convincing evidence that he was in any such danger — and furthermore the Immigration Court had found that if he was in danger of persecution if he returned to the part of Mexico in which he had lived before immigrating to the United States “he could avoid [the] harm by relocating to another part of Mexico.” Id.

Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016), was a similar case. The petitioner feared persecution if returned to his country of origin because he could afford to pay a ransom, or at least his captors would believe that he (or his relatives in the United States) could afford to pay a ransom. But our opinion does not indicate that he had any reason to believe that anyone would force him to pay a ransom. So he lost, as did Gutierrez and as must Rivera as well.

The point, which is equally applicable to the present case, is that members of well-to-do coteries or established expatriate families are not, so far as the record of this case reveals, frequent targets of violence in El Salvador. And unlike applicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016), Rivera failed to present any evidence that he is a likely target of violence, despite the likelihood of his being thought wealthy (though by whom is not indicated) by virtue of his long residence in the United States.

A disturbing feature of the case, however, is the very high crime rate in El Salvador. See, e.g., Roque Planas, “How El Salvador Became the World’s Most Violent Peacetime Country,” WorldPost, March 4, 2016, www.huffingtonpost.com/entry/el-salvador-most-violent-country_us_56d9e 239e4b0000de4047fbe. (Actually Honduras is believed to have the highest homicide rate in the world — 90.4 homicides per 100,-000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, www. unodc.org/documents/gsh/pdfs/2014_ GLOBAL_HOMICIDEJBOOK_web.pdf.) But Rivera has not presented convincing evidence of how safe or unsafe he will be in El Salvador.

We note finally, for its possible relevance in future cases, that what doesn’t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant’s country of origin is, are wrong in thinking that anybody who’s lived in the United States is likely to be wealthy or have wealthy American connections. If that’s what the gangs think, and if (a big if, which requires evidence) as a result they hold deportees from the U.S. for ransom and kill them if it isn’t paid, those deportees are being subjected to persecution. We don’t think either a court or the immigration agencies could rationally deny that. But it isn’t this case.

Affirmed


author: SYKES, Circuit Judge.

text:
    Raymond E. KING, Plaintiff-Appellant, v. Steven M. NEWBOLD, et al., Defendants-Appellees.
    No. 15-1302
    United States Court of Appeals, Seventh Circuit.
    Argued December 6, 2016
    Decided January 12, 2017

      Meredith Martin Addy, Attorney, Tabet, Divito & Rothstein, Kimberly A. Beis, Stephen Benson, Attorneys, Katten Muchin Rosenman LLP, Chicago, IL, for Plaintiff-Appellant.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Michael John Charysh, Richard A. Tjepkema, Attorneys, Charysh & Schroeder, Ltd., Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, ROVNER and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

A defect in appellate jurisdiction prevents us from reaching the merits of this appeal. The threshold jurisdictional question is simple: Did the district court abuse its discretion in granting an untimely motion for a Rule 54(b) judgment? Our precedent is clear: An untimely Rule 54(b) motion may be granted only if there is a showing of extreme hardship. Because there was no showing of hardship — let alone extreme hardship — we dismiss the appeal for lack of appellate jurisdiction.

I. Background

Raymond King, an Illinois prisoner, suffers from a severe case of temporomandib-ular joint dysfunction. Since 2004 he has been confined at two different correctional facilities. He receives some medical care for his condition from healthcare personnel employed directly by the State of Illinois; the rest is overseen by employees of Wex-ford Health Sources, Inc., a private correctional healthcare company under contract with Illinois. After years of failed treatment for his condition, a complex surgery, and an unsuccessful postsurgieal recovery, King sued Wexford and multiple medical professionals alleging that they were deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment.

The defendants moved for summary judgment. On December 16, 2013, a magistrate judge granted the motion in part. Later, one defendant moved for judgment on the pleadings on the remaining claims against him. The judge granted this motion on December 5, 2014. The combined effect of these two orders was to significantly narrow the case; claims against two doctors remain.

On January 15, 2015, more than 30 days after the order granting judgment on the pleadings and more than a year after the partial summary judgment, King made an oral motion at a status conference for entry of a Rule 54(b) judgment on the claims for which summary judgment and judgment on the pleadings were granted. The judge granted the motion, setting up this appeal.

II. Discussion

The federal appellate courts have jurisdiction over “all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Orders resolving fewer than all claims are not final for purposes of appeal. General Ins. Co. of Am. v. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011). Rule 54(b) of the Federal Rules of Civil Procedure provides an exception. It allows a district court to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” but only if “there is no just reason for delay.” Fed. R. Civ. P. 54(b). If a Rule 54(b) motion is improperly granted, the appellate court lacks jurisdiction and must dismiss the appeal. See Horn v. Transcon Lines, Inc., 898 F.2d 589, 595 (7th Cir. 1990) (“We accordingly vacate the Rule 54(b) judgment and dismiss the appeal for want of jurisdiction”).

A Rule 54(b) motion requires the district court to examine questions of finality and readiness for appeal. That is, the court must first determine whether the order in question is truly final as to one or more claims or parties; if it is, the court must consider whether there is any good reason to delay entry of final judgment until the entire case is finished. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8,100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (requiring a district court to determine that it is dealing with a final judgment and that there is no just reason for delay).

Long ago we added a timeliness requirement as a hedge against dilatory Rule 54(b) motions. Schaefer v. First Nat’l Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972). We held in Schaefer that “as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates.” Id. We recognized that “[t]here may be of course cases of extreme hardship where dilatoriness is not occasioned by neglect or carelessness in which the application of this general rule might be abrogated in the interest of justice.” Id. But “[tjhose occasions,” we said, “ought ... to be extremely rare.” Id.

Here, King’s Rule 54(b) motion was made 13 months after partial summary judgment was granted and more than 30 days after the entry of partial judgment on the pleadings. Because the motion was seriously tardy, King needed to show hardship. He has not done so; nor has he given any good reason for the delay. Applying Schaefer, the appeal must be dismissed for lack of appellate jurisdiction.

Dismissed.


author: RILEY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Christopher Tracy PAYNE-OWENS, Defendant-Appellant
    No. 15-3445
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: January 4, 2017

      Counsel who represented the appellant was James Samuel Nelsen of West Des Moines, IA.
    Counsel who represented the appellee was Mikaela Jo Shotwell, AUSA, of Des Moines, IA.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

A jury found Christopher Payne-Owens guilty of possession of a firearm by a felon and unlawful drug user, see 18 U.S.C. § 922(g)(1), (3), and the district court sentenced him to 63 months in prison. Payne-Owens filed this timely appeal. He contends the district court erred by allowing the government to present evidence of his gang affiliation and by rejecting his combined motion for a new trial or judgment of acquittal. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

1. BACKGROUND

In January 2014, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) began investigating Payne-Owens and obtained a search warrant to access his Face-book account. While reviewing his profile, ATF agents found two pictures of interest from November 2012. In the first photo, entitled “Bout that life,” Payne-Owens posed with what looked to be a bandolier of ammunition around his head, and he held up four fingers — a gang sign associated with the Four Corner Hustlers, an offshoot of the Chicago-based Vice Lords gang. In the second photo Payne-Owens had what appeared to be a .45-caliber 1911-style handgun in his waistband and again raised the four-finger sign. Shortly after posting the pictures Payne-Owens sent two private Facebook messages to a friend, which included telling the friend to “See mi new pic big 45 on mi hip.”

Payne-Owens was subsequently indicted for unlawful possession of a firearm and ammunition under § 922(g)(1) and (3). He pled not guilty, arguing there was no proof that the gun or ammunition was real because neither artifact was recovered. Instead, the government planned to introduce circumstantial evidence that suggested the items were real, including: Facebook posts by Payne-Owens where he threatened general gun violence in the context of his involvement with the Four Comer Hustlers gang; testimony to explain the four-finger sign, who the Four Corner Hustlers are, and the various slang words in the Facebook messages; and a threatening Facebook exchange between Payne-Owens and another individual that apparently stemmed from a gang dispute about whether the other was a “real” or “fake” gang member. The parties filed competing motions in limine regarding the evidence that revealed Payne-Owens’s gang ties, and after a hearing the district court deemed the evidence admissible to the extent it provided context for “the circumstances surrounding the alleged crime” and suggested the gun and ammunition were, in fact, real.

At trial, the government called two witnesses. First, an ATF firearms expert testified that, although he could not state with absolute certainty the gun was real, the picture was consistent with a .45-caliber handgun like the one Payne-Owens referenced in the post-picture messages. Second, the ATF agent in charge of the case spoke about Facebook posts made by Payne-Owens, which were then admitted into evidence. As put by the district court, these Facebook statements by Payne-Owens evidenced his “desire to acquire a firearm, ability to help others acquire a firearm, and willingness to use a firearm against other people.” But the district court was also aware that some of the evidence and testimony “explicitly referenced gang activity,” so the district court verbally instructed the jury to consider the gang references only for the “real specific purpose” of determining “whether the firearm and ammunition were real and whether the defendant on trial here had a motive to possess [a real gun] and nothing else.”

Payne-Owens moved for acquittal at the conclusion of the government’s case, and the district court declined to rule on the motion immediately. See Fed. R. Crim. P. 29(a)-(b). Payne-Owens did not offer any additional evidence. During closing arguments, the government again mentioned Payne-Owens’s boastful Facebook statements about being a real gang member, unlike the fake gang member he taunted and threatened, to suggest the pictures show a “real gun and real ammunition because that’s what you pose with when you’re a real Four Corner Hustler from Chicago.” The jury then received its written instructions — including one regarding how to assess evidence that referenced his gang membership — and found Payne-Owens guilty of possessing a real firearm, but not ammunition, The district court rejected Ms combined motion for a new trial or judgment of acquittal and sentenced him to 63 months in prison. Payne-Owens appeals, challenging the district court’s determinations as to the evidentiary issue and the sufficiency of the evidence.

II. DISCUSSION

A. Evidence of Gang Membership

Payne-Owens first argues the district court abused its discretion by allowing the government to present evidence that revealed and related to his gang affiliation. In making this argument on appeal, Payne-Owens relies on Federal Rule of Evidence 404(b)(1), which provides: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” We review a challenged Rule 404(b) decision for abuse of discretion and “reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant’s propensity to commit criminal acts.” United States v. Brown, 148 F.3d 1003, 1009 (8th CM. 1998).

As the district court recognized, not all evidence relating to a defendant’s prior bad acts is barred by Rule 404(b). One reason such evidence may be admissible is because “Rule 404(b) applies only to extrinsic, not intrinsic, evidence.” United States v. Young, 753 F.3d 757, 770 (8th Cir. 2014). Evidence “ ‘is considered intrinsic when it is offered’ ” to contribute to the narrative of the story and provide context for the charged crime — a non-propensity purpose. Id. (quoting United States v. Johnson, 463 F.3d 803, 808 (8th Cir. 2006)). Also, by its own terms Rule 404(b) does not prohibit evidence of prior bad acts when it is offered for a different non-propensity purpose, like to suggest the defendant has motive to commit the crime. See Fed. R. Evid. 404(b)(2).

We agree with the district court that the disputed evidence was offered for reasons that do not implicate Rule 404(b)’s prohibition. To begin, the generic and fleeting testimony by the government’s witness about the Four Corner Hustlers, the significance of the hand gesture, and defining the slang words used in the Face-book messages contributed to the narrative of the charged crime. The district court correctly characterized this evidence as intrinsic because it helped “provide a total picture.” The fact that such testimony referenced Payne-Owens’s gang ties did not make it inadmissible under Rule 404(b). See United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997) (affirming admission of testimony about gang-related graffiti on a shotgun because “‘the jury probably could not have understood the meaning ” of it otherwise (quoting United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991) (approving admissibility of officer’s expert testimony on “the meamng of the graffiti and hand signs depicted in ... pictures,” relating them to gang affiliation))). Furthermore, the Facebook messages and posts that referenced gang membership included threats of violence that evidenced Payne-Owens’s motive to possess a real gun. The district court did not have to require the government to sanitize the messages and posts before allowing them into evidence because motive is a permissible purpose under Rule 404(b)(2).

Payne-Owens nonetheless contends the district court erred given our decision in United States v. Roark, where the gang-related evidence was “inherently and unfairly prejudicial.” United States v. Roark, 924 F.2d 1426, 1434 (8th Cir. 1991); see Fed. R. Evid. 403 (“[A] court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice.”); Fed. R. Evid. 403 advisory comm, notes to 1972 amendment (“ ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis.”); see also United States v, Johnson, 28 F.3d 1487, 1497-98 (8th Cir. 1994) (assessing the admissibility of gang-related evidence under Rule 403). We recognize, as did the district court, “[gjeneral evidence as to gang culture, aimed at simply establishing a violent or lawless culture, is often unduly prejudicial and can be irrelevant.”

In Roark, we ordered a new trial where the government had made a “relentless attempt to convict” the defendant based on his affiliation with a gang, and “the jury could not disregard the entire theme of the trial: guilty by association.” Roark, 924 F.2d at 1432-34. We gave great weight to the district court’s own expressions of regret for allowing the evidence, which effectively “made a perfect case for ordering a new trial.” Id. at 1432. In hindsight the district court acknowledged the evidence “did not go really to the guilt or innocence really of the defendant in this lawsuit,” but rather “to the general reputation” of the gang in its entirety and essentially made it “an uncharged defendant.” Id. at 1433— 34.

Payne-Owens cites United States v. Street only in passing, but in' that case we found the district court abused its discretion in allowing gang evidence. See United States v. Street, 548 F.3d 618, 629-33 (8th Cir. 2008). In Street, the government elicited testimony — which spanned twenty pages in the record — with the admitted “main purpose” of “illustrating] the violent, lawless propensities of outlaw motorcycle gangs” generally. Id. at 629. We noted the factual similarities to Roark, and expressed concern that “most of the gang reputation evidence had no discernible connection to the murder charges.” Id. at 632. In acknowledging “there is no blanket rule disallowing evidence of gang affiliation,” we outlined commonalities in cases where such evidence is allowed. Id. To begin, the defendant is usually a gang member himself. See id. Most cases allowing such evidence also “concern the mere fact of a defendant’s gang membership” rather than “sanction a wide ranging inquiry into the generic criminality and violent dispositions of gangs.” Id. And many times “mention of gang membership is allowed [because] it is generally an unavoidable incident of presenting other permissible evidence.” Id. None of these circumstances were present in Street, and we held admission of the gang testimony was “excessive, unduly prejudicial, and in great part completely irrelevant to the charged offenses.” Id. at 633.

On the other side of Roark and Street are cases like Johnson, 28 F.3d at 1497-98, Sills, 120 F.3d at 919-20, and Sparks, 949 F.2d at 1026, which more closely resemble the facts at hand. In Johnson, we affirmed the admission of “considerable testimony” about the defendant’s “past and current gang associations” and “the relationship between his gang ... and other gangs.” Johnson, 28 F.3d at 1497. But “this evidence was not, as was the case in Roark, the entire theme of the trial, much less a substantial theme of [the] testimony.” Id. There was “significant probative value to [the] gang-related testimony” in that it spoke to the key issue at trial: whether there was a drug conspiracy. Id. In Sills, the defendant denied knowing there was a shotgun in his car. See Sills, 120 F.3d at 920. A witness testified for the government that the defendant was a gang member and the graffiti on the shotgun “indicated animosity towards several rival gangs.” Id. at 919. We considered references to the defendant’s gang relevant to show motive and opportunity to knowingly possess a gun. See id. at 920. We held the district court did not abuse its discretion since the district court issued a limiting instruction and, “[although the government’s evidence ‘linked [the defendant] with gangs, it fell far short of establishing that [he] w[as] guilty ... by association.’ ” Id. (third and fourth alterations in original) (quoting Johnson, 28 F.3d at 1497).

Having reviewed the trial record here, we are convinced the district court did not abuse its discretion. Here, unlike in Roark, the government did not relentlessly attempt to convict Payne-Owens by arguing guilt by association; rather the government tailored its use of evidence that referenced his gang ties to merely provide context for Payne-Owens’s own words about his overlapping personal involvement with guns and gangs, and also to show he had motive to possess a real gun or ammunition (even if that alleged motive derived from his gang involvement). Such context and proof of motive is probative as to whether the gun or ammunition were real, the primary issues at trial. The district court twice gave the jury detailed limiting instructions on how to use (or not use) the disputed evidence. Although limiting instructions cannot always cure unfair prejudice, see Roark, 924 F.2d at 1433-34, we have repeatedly said they reduce the risk of it, see, e.g., United States v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001); Sills, 120 F.3d at 920.

Of concern to us are statements made by the government during closing arguments: “This [was] a real gun and real ammunition because that’s what you pose with when you’re a real Four Corner Hustler from Chicago. Do you really think that a real Four Corner Hustler from Chicago who’s calling out other Iowa gang members for being fake is going to go to the Internet and post a photograph of himself with a replica firearm and some dummy ammunition? No.” Though closer, we do not consider this to be reversible error. The statements went beyond suggesting mere guilt by association by referencing Payne-Owens’s own statements. See Roark, 924 F.2d at 1433-34. The prosecutor’s comments were fleeting and the district court issued two detailed limiting instructions. See id. at 1434 (“One statement, damaging but isolated, is easily remedied through a limiting instruction.”). We afford the district court broad discretion in controlling closing arguments. See United States v. Martin, 777 F.3d 984, 996 (8th Cir. 2015) (“[A] conviction will be reversed for an improper statement only for some clear abuse.”). Payne-Owens did not object to the closing statement at trial. See id. (“When an appellant has failed to object to an argument in the district court, its propriety is reviewed only for plain error and reversed ‘only under exceptional circumstances.’ ” (quoting United States v. Davis, 534 F.3d 903, 914 (8th Cir. 2008))). We do not exercise our discretion to reverse. See Davis, 534 F.3d at 914 (standard of plain error review).

B. Sufficiency of the Evidence

Payne-Owens also contends there was insufficient evidence to convict him, and therefore the district court erred in denying his motion for a judgment of acquittal. We review the sufficiency of the evidence de novo. See United States v. Bowers, 638 F.3d 616, 619 (8th Cir. 2011). “All reasonable inferences are accepted that support a jury verdict. The verdict will be upheld if any interpretation of the evidence could lead a jury to find guilt beyond a reasonable doubt.” Id. (citation omitted).

The gun Payne-Owens was found to have possessed was never recovered or offered into evidence, and the government’s expert could not state with absolute certainty that the gun in the picture was real without physically inspecting it. Payne-Owens relies on these facts to propose that the jury must have entertained some reasonable doubt as to whether the gun was real or fake. But we have previously found evidence of gun possession sufficient when the gun was not recovered, provided there was circumstantial evidence the gun was real. See, e.g., id. (finding eyewitness testimony from non-experts, video footage, and a confession sufficient); United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010) (surveillance videos, eyewitness testimony, and an unsworn admission to a third party); United States v. Garcia-Hernandez, 530 F.3d 657, 662-63 (8th Cir. 2008) (eyewitness testimony only). These cases establish “[t]he mere possibility that the weapon could have been fake does not preclude a reasonable jury from finding that the gun was real; the government is not required to disprove the theoretical possibility that the defendant carried only a sophisticated toy.” Stenger, 605 F.3d at 504 (citations omitted).

Like the cases above, the government here presented sufficient circumstantial evidence in lieu of the actual firearm: there was a picture of Payne-Owens with what appeared to be a gun; a nearly contemporaneous text message where he described it as a “big 45”; testimony from an expert that the photographed gun possessed attributes consistent with a .45-caliber pistol; text messages that evidenced Payne-Owens’s apparent ability and desire to obtain a gun; and back-and-forth messaging between Payne-Owens and another individual where Payne-Owens threatened violence. “The jurors were free to reach a logical conclusion based on the totality of the evidence presented at the trial[], and a reasonable jury could have found” that Payne-Owens possessed a real firearm in the picture he posted to his Facebook page. Id.

III. CONCLUSION

Because we conclude the district court did not abuse its discretion in allowing evidence of gang affiliation to the extent it provided context or suggested Payne-Owens had a motive to possess a real gun, and because there was sufficient evidence to support the jury’s finding he did possess a real gun, we affirm.

      . The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.

      . "We recite the facts in the light most favorable to the juiy’s verdict." United States v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006).

      . The written instruction reinforced the prior oral instruction: "[Evidence of gang membership] can only be used to help you determine whether the firearm and ammunition ... are real, not replicas, and whether the defendant had a motive to possess a real firearm or ammunition. You cannot infer guilt ... from the mere fact of gang membership alone.... If you do not find the statements related to gang activity are attributable to the defendant, you do not believe that the defendant was involved in gang activity, or you do not find these statements helpful in determining whether the firearm or ammunition depicted are real or that the defendant had a motive to possess a firearm or ammunition, you should disregard this evidence.”

      . For example, one string of Facebook posts said: "And i heard u ,. plotting on big bro dont lose ur head.... ima just up da tool and go to work on u.... u better be ready to die ... me in mi shortys end wars.” The government’s witnesses clarified that "up da tool” means "to possess or get a firearm,” and “me in mi shortys end wars” refers to how he and his fellow gang members "end disputes violently.” It was at this point the district court issued a lengthy verbal instruction, telling jurors to consider the evidence "on the issue of whether the firearm and ammunition were real and whether the defendant on trial here had a motive to possess and nothing else.”

      . The district court in Roark realized its mistake too late when it admonished the prosecutor: "Now, you’ve elected to try, at least partially the Hells Angels Motorcycle Club, which was not necessary in this case.... What I’m kicking myself about is, under Rule 403 I could have refused it, and by applying hindsight it’s obvious that that’s what I should have done,” Id, at 1433.


author: COLLOTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Gary WINSTON, Defendant-Appellant.
    No. 15-3739
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: January 10, 2017

      Counsel who represented the appellant was Chris Tarver, AFPD, of Little Rock, AR.
    Counsel who represented the appellee was Stephanie Mazzanti, AUSA, of Little Rock, AR.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges. .
   COLLOTON, Circuit Judge.

John Gary Winston pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act, a defendant with three or more prior convictions for a serious drug offense or violent felony is subject to a statutory minimum of 15 years’ imprisonment and a maximum of life. 18 U.S.C. § 924(e)(1). At sentencing, the district court determined that Winston had sustained four qualifying prior felony convictions — one serious drug offense and three violent felonies. Winston acknowledges two qualifying prior convictions, but he argues on appeal that his Arkansas convictions for second-degree battery and first-degree terroristic threatening are not violent felonies under the statute.

The term “violent felony” means, among other things, “any crime punishable by imprisonment for a term exceeding one year ... that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). The “physical force” required is “violent force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265,176 L.Ed.2d 1 (2010).

To determine whether a crime of conviction is a violent felony under this subsection, we apply a “categorical approach” and determine whether the elements of the crime of conviction necessarily require the use, attempted use, or threatened use of physical force. See United States v. Lindsey, 827 F.3d 733, 738-39 (8th Cir. 2016). If the statute of conviction defines more than one crime by listing alternative elements, we apply a “modified categorical approach” to determine which of the alternatives was the offense of conviction. Mathis v. United States, — U.S. —, 136 act 2243, 2249,195 L.Ed.2d 604 (2016). The court may consider a limited class of documents in the judicial record, including the charging document, written plea agreement, and plea colloquy transcript, to make the determination. Shepard v. United States, 544 U.S. 13; 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court applied the modified categorical approach and concluded that both' disputed convictions qualified as violent felonies.

Winston argues that the district court erred because neither statute defining the two offenses of conviction requires the use, attempted use, or threatened use of physical force against the person of another. Because Winston acknowledges two qualifying prior convictions, the government need only establish that one of the other two also counts. We conclude that the battery offense qualifies and need not address the conviction for terroristic threatening.

The Arkansas second-degree battery statute under which Winston was convicted includes four alternative offenses. Winston’s charging document shows adequately that he was convicted under the second alternative: “A person commits battery in the second degree if ... [w]ith the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon other than a firearm.” Ark. Code Ann. § 5-13-202(a)(2) (1997). Although the charging document mistakenly referred at one point to “Battery in the First Degree,” the cover sheet and the summary of the charge referred to “Battery in the Second Degree,” and Winston concedes that he was convicted of the second-degree offense. The charging document alleged that Winston acted with “the purpose of causing physical injury” by means of a “deadly weapon,” and subsection (a)(2) is the only provision that pairs those two elements. The charge did omit the statutory phrase “other than a firearm” after “deadly weapon,” but the allegation still would have satisfied subsection (a)(2) as long as the proof involved a weapon other than a firearm. The charge that Winston caused physical injury with the purpose of causing physical injury points to subsection (a)(2). We discern no error in the district court’s conclusion on this point.

Winston contends, however, that physical injury is not the equivalent of physical force, and that a defendant might cause physical injury without using physical force. For this reason, Winston asserts that the batteiy offense does not contain the necessary element that he used physical force. We reject Winston’s position for the reasons given by Justice Scalia’s concurring opinion in United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014): “[Pjhysical force” means force “capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140,130 S.Ct. 1265, and “it is impossible to cause bodily injury without using force ‘capable of producing that result.” 134 S.Ct. at 1416-17 (Scalia, J., concurring). “Physical force” is “force exerted by and through concrete bodies,” as opposed to “intellectual force or emotional force,” Johnson, 559 U.S. at 138, 130 S.Ct. 1265, and it need not be applied directly to the body of the victim. Hypothetical scenarios involving no physical contact by the perpetrator (luring a victim to drink poison or infecting a victim with a disease) do not avoid coverage under § 924(e)(2)(B)(i). See Castleman, 134 S.Ct. at 1414-15 (opinion of the Court). Winston’s effort to show daylight between physical injury and physical force is therefore unsuccessful. See United States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011). The district court properly counted the battery conviction as a violent felony.

For these reasons, the district court did not err in concluding that Winston had been convicted of at least three violent felonies or serious drug offenses, and that he was subject to enhanced punishment as an armed career criminal. The judgment of the district court is affirmed.

      . The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

      . The statute provided as follows:
      la) A person commits battery in the second degree if:

        (1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
      (2) With the purpose of causing physical injury to another person, he causes physical injury to any person fay means of a deadly weapon other than a firearm;
      (3) He recklessly causes serious physical injury to another person by means of a deadly weapon; or
      (4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be: [a member of one of the listed protected classes].
      Ark. Code Ann. § 5-13-202(a) (1997).


author: SHEPHERD, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jason Brandon SCHULTZ, Defendant-Appellant
    No. 15-3787
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: January 10, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Anne M. Laverty, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA. The following attorney appeared on the appellee brief; Anthony R. Morfitt, AUSA, of Cedar Rapids, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Jason Brandon Schultz challenges three special conditions of supervised release the district court imposed when sentencing him on a supervised release revocation to 22 months imprisonment to be followed by one year of supervised release. We affirm.

I.

In October 2007, Schultz was convicted in Maryland state court of third-degree sexual assault. This conviction stemmed from a consensual relationship with a 14-year-old girl when Schultz was 23 years of age. Under federal law, Schultz was required to register as a sex offender in his state of residence. In November 2008, Schultz was residing in Iowa without having registered as a sex offender in that state. As a result, he pled guilty to failing to register as a sex offender, and the district court sentenced him to 30 months imprisonment to be followed by 5 years of supervised release. He began his supervised release term in June 2011.

In December 2012, the district court revoked Schultz’s supervised release based on multiple violations, including failure to comply with residential reentry center rules, disorderly conduct, excessive use of alcohol, and use of illegal drugs. The court sentenced Schultz to 21 months imprisonment to be followed by 3 years of supervised release.

After his release, Schultz again violated the terms of his supervised release by associating with persons involved in criminal activity and having contact with children under the age of 18. As a result, the district court modified the terms of the supervised release and ordered Schultz to serve two consecutive weekends in jail.

In November 2015, the district court again revoked Schultz’s supervised release. At the revocation hearing, Schultz admitted he used cocaine, twice failed to submit a urine sample for testing, and possessed cocaine. The district court also found Schultz had engaged in cocaine distribution. The court sentenced Schultz to 22 months imprisonment to be followed by 1 year of supervised release.

As part of the sentence, the court imposed three special conditions of supervised release relevant to this appeal. Special Condition 4 prohibited Schultz “from owning or having in his possession any pornographic materials” or from “entering] any establishment where pornography or erotica can be obtained or viewed.” Special Condition 5 directed Schultz to make any computer or electronic devices available for search or monitoring by a United States probation officer. Special Condition 6 prohibited Schultz from having contact with any children under the age of 18 without prior written consent of the probation office.

Each of these conditions had been part of the original sentence and the first revocation sentence. At the latest revocation hearing, Schultz only objected to Special Condition 6, arguing for a change in that condition because he had a one-year-old son with whom he desired regular contact. In response to the objection, the district court added to Special Condition 6 that “ [t]he United States Probation Office will work with you and your family to set up supervised communications and visits with your biological and legally adopted children.” Schultz now appeals the three special conditions.

II.

Generally, we review “the imposition of special conditions for abuse of discretion, but when a defendant has failed to properly object to the imposition of the condition at the sentencing hearing,” we review for plain error. United States v. Roberts, 687 F.3d 1096, 1100 (8th Cir. 2012). Therefore, we will review the district court’s continuation of Special Conditions 4 and 5 for plain error and the continuation, with modification, of Special Condition 6 for abuse of discretion.

“To obtain relief under a plain-error standard of review, the party seeking relief must show that there was an error, the error is clear or obvious under current law, the error affected the party’s substantial rights, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).

A district court has broad discretion to order special conditions of supervised release so long as “the conditions are reasonably related to the sentencing factors set forth in [18 U.S.C.] § 3553(a), involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a), and are consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Morais, 670 F.3d 889, 895 (8th Cir. 2012); see also 18 U.S.C. § 3583(d)(1)-(3).

As to Special Condition 4, Schultz argues the condition is not reasonably related to his crime and the district court failed to conduct an individualized inquiry before imposing this condition. Further, he argues the provisions are overbroad and vague, such that he has no clear notice as to what he can view or what businesses he can enter without violating his supervised release.

When the district court first sentenced Schultz, it noted “a number of things ... of concern, ... the two most serious” being his conviction for sexual contact with a minor female and his three convictions for violating a no-contact order as to a minor female. The court noted there “seems to be a pattern of interest in inappropriately aged females.” Without objection, the court imposed Special Condition 4 at the original sentencing and reimposed the condition at the revocation sentencing. We hold Schultz has not shown the district court plainly erred in imposing this condition. At the original sentencing, the court expressed its concern about Schultz’s prior sexual involvement with underaged females and indicated he had developed a “pattern” of inappropriate behavior in that regard. As we have previously held, “the need to protect children from future exploitation” justifies banning a defendant “from possessing any pornography.” See United States v. Mefford, 711 F.3d 923, 927 (8th Cir. 2013) (internal quotation marks omitted) (citing United States v. Ristine, 335 F.3d 692, 694-95 (8th Cir. 2003)). Further, after reviewing the record, we conclude the condition is appropriately tailored to Schultz’s circumstances in light of his original sex offense and the court’s finding of a “pattern” of inappropriate behavior towards minors. Additionally, we have previously rejected the overbreadth challenge Schultz makes here. See id. at 928 (rejecting over-breadth challenge where the special condition banned the defendant from “enter[ing] any location where pornography, erotica, or adult entertainment can be obtained or viewed” (alteration in original)). Accordingly, the district court did not err in imposing Special Condition 4. For the same reasons, we affirm the district court’s imposition of Special Condition 5, which does not prohibit Schultz’s access to computers, rather it only allows the United States Probation Office the ability to monitor his computer usage. This condition is reasonably necessary to monitor whether Schultz is violating the pornography restriction and to monitor whether Schultz is violating the restriction concerning his contact with minors — a restriction he has had difficulty complying with in the past.

Schultz only objected to the imposition and terms of Special Condition 6, which prohibits him from having contact with any minor children without written consent from the probation office. Due to concerns Schultz expressed about his desire to maintain contact with his infant son, the district court added language directing the probation office to “work with [Schultz] and [his] family to set up supervised communications and visits with [his] biological and legally adopted children.”

Schultz argues the district court abused its discretion in imposing this special condition because the district court did not make individualized inquiry into the need to prevent Schultz from having contact with his own children. Further, Schultz claims the restriction is not narrowly tailored to meet the considerations of § 3553(a).

We addressed a similar challenge in United States v. Simons, 614 F.3d 475 (8th Cir. 2010). There a defendant, who like Schultz was convicted of failing to register as a sex offender, challenged the special condition prohibiting him from having contact with children under the age of 18, including his own children, unless the contact was approved in advance by the defendant’s probation officer. Id at 481. We upheld the special condition, noting, “[i]n many of our cases affirming no-contact conditions, we have cited a defendant’s history of sexual abuse of minors as a factor in our decisions.” Id Looking at Schultz’s personal history, he was originally convicted in state court of having a sexual relationship with a 14-year-old girl when he was 23 years of age. At the original sentencing, the district court took notice of the prior conviction and convictions for violating no-contact orders with other minor females.

In light of this history and the district court’s recognition of the need for Schultz to maintain a relationship with his children, the district court made individualized findings and the restriction is narrowly tailored to address the circumstances of Schultz’s criminal history as well as his family situation. Accordingly, the district court did not abuse its discretion in imposing Special Condition 6.

III.

We affirm the sentence.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.


text:
    JERRY’S ENTERPRISES, INC., Plaintiff-Appellant v. U.S. SPECIALTY INSURANCE COMPANY, Defendant-Appelle
    No. 15-3324
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 18, 2016
    Filed: January 11, 2017

      Counsel who presented argument on behalf of the appellant was Richard D. Snyder, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Richard D. Snyder, of Minneapolis, MN.

      Counsel who presented argument on behalf of the appellee was Douglas M. Man-gel, of Washington, DC. In addition to Mr. Mangel, the following attorney(s) appeared on the appellee brief; Robert Lowell McCollum, of Minneapolis, MN., Alexander Karam, of Washington, DC.
    Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Jerry’s Enterprises, Inc. (“JEI”) brought a breach of contract and declaratory judgment action against its liability insurance carrier, U.S. Specialty Insurance Company (“U.S. Specialty”). The conflict concerned the insurance carrier’s refusal to indemnify JEI for the settlement of a lawsuit. U.S. Specialty argued that the underlying suit, brought by a former director of JEI, was excluded from coverage by language in the directors’ and officers’ liability insurance policy. On cross-motions for summary judgment,- the district court ruled in favor of U.S. Specialty. We note jurisdiction over this final order of the lower court, see 28 U.S.C. § 1291, and affirm.

I. Background

A. Facts

In 1950, Jerry Paulson founded JEI as a small butcher shop in Edina, Minnesota. Over the decades, JEI came to operate a score of retail and grocery stores in Minnesota, Wisconsin, and Florida. The closely held family company now employs approximately 4,000 employees. As he grew the business, Jerry Paulson gifted non-voting shares in JEI to his three daughters, including Cheryl Sullivan. He also gifted shares to his grandchildren, including Sullivan’s daughters Kelly and Monica. Paulson established an estate plan that, upon his death, appointed his daughters as members of the JEI Board of Directors. They would remain as directors until such time as their shares, and those of his grandchildren, were redeemed.

Jerry Paulson died on April 5, 2013. In accordance with Paulson’s estate plan, Sullivan became a director of JEI in April, and she held that position until August, when her shares were redeemed. At that time, Cheryl Sullivan owned 28.06% of all outstanding company shares, while Kelly and Monica owned 2.4% and 1.2%, respectively. During her stint as a company director, Sullivan raised a number of concerns with directors of JEI in regards to how her shares were being valued. These concerns were never addressed to her satisfaction.

As a result, Sullivan and her daughters filed suit against JEI, alleging multiple acts of misconduct by JEI directors designed to lower the value of their shares. The complaint contained claims for declaratory judgment, breach of fiduciary duty, aiding and abetting tortious conduct, equitable relief under Minnesota common and statutory law, breach of contract, civil conspiracy, and preliminary and permanent injunctive relief. All claims were brought jointly by all three plaintiffs. After several months of negotiation, JEI reached a confidential settlement agreement with Sullivan and her daughters. When JEI sought coverage for its defense costs and for sums paid under the settlement agreement, U.S. Specialty refused to pay.

B. The Insurance Policy

JEI held a directors’ and officers’ liability insurance policy — Policy No. 14-MGU-12-A27558 — through U.S. Specialty. Under the policy, U.S. Specialty agreed to “pay to or on behalf of the Insured Persons [or the Insured Organization] Loss arising from Claims first made against them during the Policy Period or Discovery Period (if applicable) for Wrongful Acts.” (Appellant App. 32.) There is no dispute that the Sullivan lawsuit is a claim made during the policy period for wrongful acts. The policy defines Insured Person as “any past, present or future director, officer, managing member, manager or Employee of the Insured Organization.... ” (Appellant App. 34.) Claim is defined, in relevant part, as “any civil proceeding commenced by service of a complaint or similar pleading.” (Appellant App. 32.)

Aside from these particular definitions, JEI’s insurance policy contains two other provisions significant to this appeal. The first is the “Insured vs. Insured” exclusion. This provision excludes from coverage under the policy any claim:

[B]rought by or on behalf of, or in the name or right of ... any Insured Person, unless such Claim is:
(1) brought and maintained independently of, and without the solicitation, assistance or active participation of ... any Insured Person_

(Appellant App. 69.)

The second significant provision of JEI’s policy is the allocation clause. This clause deals with a lawsuit involving both covered and uncovered loss in the following way:

If Loss covered by this Policy and loss not covered by this Policy are both incurred in connection with a single Claim, either because the Claim includes both covered and uncovered matters, or because the Claim is made both against Insureds and against others not included within the definition of Insured, the Insureds and the Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts....

(Appellant App. 42.)

C. Procedural History

After repeated communications between the parties, in which U.S. Specialty steadfastly refused to extend coverage for the Sullivan settlement and related defense costs, JEI filed this action in Minnesota state court. U.S. Specialty subsequently removed the case to federal district court, which had diversity jurisdiction pursuant to 28 U.S.C. § 1332. JEI’s suit alleged claims of breach of contract, declaratory judgment, and estoppel. Both parties filed motions for summary judgment in the district court, raising three primary issues. First, whether Cheryl Sullivan qualified as an Insured Person under the insurance policy. Second, whether the Insured vs. Insured exclusion applied to Cheryl Sullivan’s claims. Third, whether the Insured vs. Insured exclusion applied to the claims brought by Sullivan’s daughters.

The district court ruled in favor of U.S. Specialty on each issue. It found that the plain language of the insurance policy qualified Cheryl Sullivan as an Insured Person and so the Insured vs. Insured exclusion applied to her claims. The court also held that the exclusion applied to the claims brought by Sullivan’s daughters. On this last point, the court’s reasoning centered on the nature of the suit. Each and every claim of the suit was brought jointly by Sullivan and her daughters. Therefore, since the Insured vs. Insured exclusion allows coverage only for claims asserted by Insured Persons if they are brought independently and without the active participation of the Insured Person, the claims brought by Sullivan’s daughters were not subject to coverage under the policy.

JEI appeals this last ruling of the district court on the issue of coverage for the claims brought by Sullivan’s daughters.

II. Discussion

“We review de novo ‘the district court’s interpretation of the terms of the insurance policy and its’ summary judgment decisions.” Oakdale Mall Assocs. v. Cincinnati Ins. Co., 702 F.3d 1119, 1122 (8th Cir. 2013) (quoting Corn Plus Co-op. v. Cont’l Cas. Co., 516 F.3d 674, 678 (8th Cir. 2008)). We will uphold a grant of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The interpretation of an insurance contract is a question of law. Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn. 2013). “Because this case is in federal court based on diversity jurisdiction, Minnesota’s substantive law controls our analysis of the insurance policy.” Corn Plus, 516 F.3d at 678 (citation omitted).

“We must predict how the Supreme Court of Minnesota would rule” if this issue came before it. Neth. Ins. Co. v. Main St. Ingredients, LLC, 745 F.3d 909, 913 (8th Cir. 2014) (citation omitted). “Under Minnesota law, the insured bears the initial burden of establishing that coverage exists, at which point the insurer then carries the burden of demonstrating that a policy exclusion applies.” Friedberg v. Chubb & Son, Inc., 691 F.3d 948, 951 (8th Cir. 2012) (citing Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888, 894 (Minn. 2006)). If the insurer succeeds, the burden shifts back to the insured to show that an exception to the exclusion applies. Wolters, 831 N.W.2d at 636.

General contract principles apply to the construction of an insurance policy under Minnesota law, and we must interpret the policy to effect the intentions of the parties. See Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2002). “An insurance policy ‘must be construed as a whole, and unambiguous language must be given its plain and ordinary meaning.’ ” Wolters, 831 N.W.2d at 636 (quoting Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn. 1986)). “Language in a policy is ambiguous if it is susceptible to two or more reasonable interpretations.” Id But we will not read ambiguity into the plain language of an insurance policy. “The courts ‘must fastidiously guard against the invitation to create ambiguities where none exist.’” Oakdale Mall, 702 F.3d at 1122 (quoting Latterell v. Progressive N. Ins. Co., 801 N.W.2d 917, 921 (Minn. 2011)).

A. The Insured vs. Insured Exclusion

We turn first to the actual language of the exclusion clause. The language itself, as it applies to this case, is straightforward: “the Insurer will not be liable to make any payment of Loss in connection with a Claim brought by ... any Insured Person.” The policy defines Claim, in relevant part, as “any civil proceeding commenced by service of a complaint.” Finally, an Insured Person includes any past director. In essence, therefore, the Insured vs. Insured exclusion bars coverage for any lawsuit brought by a former director. An exception exists if the lawsuit is brought independently of the former director, and without their active participation. Under these circumstances, the exclusion does not apply and coverage is restored for the lawsuit.

Application of the exclusion to the present case demonstrates that U.S. Specialty does not owe coverage to JEI. Cheryl Sullivan is, JEI concedes, an Insured Person under the policy due to her brief time as a director of JEI’s board. Her lawsuit was a civil proceeding commenced by service of a complaint — in other words, a Claim. She (along with her two daughters) brought the lawsuit against JEI. Our conclusion seems inescapable: loss associated with the Sullivan lawsuit is not covered under the insurance policy due to the presence of a former director — Sullivan—as an active participant.

JEI objects to this seemingly straightforward application of the exclusion clause. According to JEI, a fundamental principle of Minnesota insurance law is that exclusion clauses are to be “narrowly considered” and construed “in favor of the insured.” Gen. Gas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 575 (Minn. 2009); Safeco Ins. Co. v. Lindberg, 380 N.W.2d 219, 222 (Minn. Ct. App. 1986); see also Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 613 (Minn. 2001) (“We ... construe exclusions strictly against the insurer.”). The Minnesota Supreme Court, JEI continues, would narrowly construe the exclusion clause to allow for coverage of loss associated with the claims of Sullivan’s daughters, who, after all, are not Insured Persons under the policy.

JEI’s argument exhibits a fundamental misunderstanding of the insurance policy and our role in analyzing the policy’s language. The cases cited by JEI pertain to insurance policies with readily apparent ambiguities. See Walser, 628 N.W.2d at 609 (relevant language not defined in the policy); Lindberg, 380 N.W.2d at 221-22 (an exclusion not clearly identified in the policy). Here, the exclusion clause contains no ambiguity, and we must not read ambiguities into its language. See Oakdale Mall, 702 F.3d at 1122. JEI and U.S. Specialty entered into an agreement in which they defined the terms of that agreement. It is our responsibility to give effect to that contracted language. See Thommes, 641 N.W.2d at 879. JEI’s repeated references to the separate claims of Sullivan and her daughters betray the language as actually contracted by the parties. A claim is not afforded its ordinary meaning under the insurance policy. Rather, the policy defines Claim as a civil proceeding commenced by service of a complaint, i.e. the entirety of the Sullivan lawsuit. U.S. Specialty, therefore, need only show that the exclusion clause applied to the lawsuit as brought. It has done so. We have no room under the language of the exclusion clause to apply the clause to some parts of a lawsuit but not others.

B. The Allocation Clause

JEI next presents a fallback position: loss suffered in the Sullivan lawsuit should be allocated, pursuant to the allocation clause, between covered and uncovered matters, resulting in payment for settlement of claims solely attributable to Sullivan’s daughters. The insurance policy’s allocation clause reads: “If Loss covered by this Policy and loss not covered by this Policy are both incurred in connection with a single Claim ... because the Claim includes both covered and uncovered matters ... the Insureds and Insurer agree to use their best efforts to determine a fair and proper allocation of all such amounts.In other words, if a lawsuit includes both covered and uncovered matters, U.S. Specialty owes coverage for those matters that are covered under the insurance policy. No Minnesota court or Eighth Circuit panel has reviewed this kind of clause in an insurance contract; the parties instead direct our attention to three out-of-circuit cases analyzing the issue of allocation.

In Level 3 Communications, Inc. v. Federal Insurance Co., 168 F.3d 956 (7th Cir. 1999), the Seventh Circuit first faced the issue of insurance policy allocation clauses. The policy in that case contained an exclusion clause precluding coverage for any “Claim made against an Insured Person” when the Claim was “brought or maintained by or on behalf of any Insured.” Id. at 957. The underlying suit against Level 3 was a securities action that settled out of court. One of the eight plaintiffs was a former company director who joined the suit six months after it had been filed. Id. The Seventh Circuit quickly concluded that “the contract clearly excludes coverage for the part of the settlement ... allocable to [the former director].” Id at 958. But the issue of coverage for the rest of the settlement gave the court pause. It expressed concern for a potentially “whacky result” — that a former director could be an unnamed member of a multimillion dollar class action, with a personal stake of only $10, and thus defeat insurance coverage for the entire suit. Id This would transform a suit from one entirely covered by insurance when filed into one wholly uncovered when later joined by an Insured Person. Id. at 960. Finding this potential outcome discomforting, the court looked to the policy’s allocation clause. With language nearly identical to that in JEI’s allocation clause, the Level 3 court ultimately allocated loss between covered and uncovered matters in the underlying lawsuit, reasoning that “a matter could be ‘uncovered’ ... because it excluded a particular type of claimant who had joined in the suit with persons whose claims were covered.” Id

The Eleventh Circuit reached the opposite result in Sphinx International, Inc. v. National Union Fire Insurance Co., 412 F.3d 1224 (11th Cir. 2005). Sphinx also involved a securities action brought by a group of plaintiffs, one of whom was a former director of the company. Id. at 1226. Unlike the former director in Level 3, this former director was the driving force of the lawsuit; he brought the original suit on his own, adding additional plaintiffs only later in the litigation process. Id. When Sphinx sought coverage for the lawsuit from its insurance provider, the provider denied coverage based on the Insured vs. Insured exclusion. Id The exclusion barred coverage for any Claim brought by a former director “unless such CLAIM is instigated and continued totally independent of, and totally without the solicitation of, or assistance of, or active participation of, or intervention of’ that former director. Id. Sphinx argued that coverage should be allocated between the former director’s uncovered loss and the other covered losses. Id at 1230. The Eleventh Circuit rejected this argument. The court distinguished Level 3 in two ways. First, the former director in Level 3 was a passive shareholder who joined a larger suit, in contrast to this former director who “brought the lawsuit and recruited every other plaintiff.” Id. at 1231. Second, the language in Sphinx’s exclusion clause was materially different than the one in Level 3; specifically, the exclusion clause in Sphinx contained an elaborate assistance exception that would act to restore coverage if the former director did not actively participate in the lawsuit. Id. Level 3 contained no such assistance exception. The court therefore held, “While the language in Level 3 Communications gave the court some wiggle room, the language in our case is plain and clear, compelling our conclusion that [the insurer] need not cover Sphinx for [the underlying] lawsuit.” Id

The Seventh Circuit revisited the issue of an insurance policy’s allocation clause in Miller v. St. Paul Mercury Insurance Co., 683 F.3d 871 (7th Cir. 2012). In Miller, five plaintiffs, including two former company directors, brought suit against the company and its directors. Id. at 873. The company’s insurance provider refused to indemnify, citing the policy’s Insured vs. Insured exclusion. Id. The court reaffirmed its holding in Level 3, but then turned its attention to the Eleventh Circuit’s reasoning in Sphinx. Id. at 876-79. The Miller court noted the inclusion of an assistance exception in Sphinx’s exclusion clause, whereas both Level 3 and Miller involved exclusion clauses containing no exceptions. Id. at 879. “A proper appreciation of the different policy language in the two cases is more than sufficient to support” the differing results. Id.

After considering these cases for the persuasive authority they offer, we hold that the allocation clause does not restore coverage for any part of the Sullivan lawsuit. Like the former director in Sphinx, Cheryl Sullivan was the driving force of the litigation. She owned the vast majority of shares at issue in the underlying lawsuit, and she was the former director who repeatedly raised concerns about the valuation of shares to JEI’s board of directors. She then brought the suit as one of the original plaintiffs, unlike Level 3’s passive shareholder who joined the lawsuit six months after it had been filed.

The presence of an assistance exception both alleviates the concerns expressed in Level 3 and distinguishes the present case from those decided by the Seventh Circuit. The Level 3 court made its decision, in part, out of a concern for a class-action lawsuit otherwise covered under an insurance policy, rendered uncovered due to the presence of an Insured Person as an unnamed class member, even though that Insured Person’s personal stake in the suit was de minimis. See Level 3, 168 F.3d at 958. The assistance exception in JEI’s insurance policy prevents such an outcome. The exception allows for coverage as long as the Insured Person did not solicit, assist, or actively participate in the lawsuit. This language, also found in Sphinx, does not appear in the insurance policies analyzed by the Seventh Circuit in Level 3 and Miller. As the Miller court intimated, an appreciation of the differing policy language supports our conclusion that the allocation clause does not restore coverage for a suit brought with the active participation of an Insured Person.

We here acknowledge the tension that exists between the Insured vs. Insured exclusion and the allocation clause. We also recognize that, of the cases we have analyzed, Level 3 and Miller both had allocation clauses but no assistance exception whereas Sphinx involved an assistance exception but no allocation clause. So, the persuasive authority offered by these cases is limited. JEI has presented various arguments for allocating loss among the claims of Cheryl Sullivan and her daughters despite the presence of the assistance exception, and these arguments are not wholly without merit. But ultimately, two principles of Minnesota contract law counsel us to rule in favor of U.S. Specialty. First, applying the allocation clause to the Sullivan claim would render the assistance exception superfluous, effectively reading that exception out of the contract. See PowerSports, Inc. v. Royal & Sunalliance Ins. Co., 307 F.Supp.2d 1355, 1362 (S.D. Fla. 2004). That we cannot allow. See Hen-ning, 383 N.W.2d at 652 (insurance policies must be construed as a whole). Our holding, on the other hand, does not read the allocation clause out of the contract. It simply limits the reach of the allocation clause when more specific language exists elsewhere in the contract. Second, a basic principle of Minnesota contract law instructs courts to make specific contract language controlling over general language. See Bank Midwest v. Lipetzky, 674 N.W.2d 176, 181 n.8 (Minn. 2004) (“[CJon-tract construction compels us to determine that the more specific language takes precedence over the more general language.... ”). Here, the Insured vs. Insured exclusion speaks directly to lawsuits brought with the participation of Insured Persons. The allocation clause speaks generally to any claim brought with covered and uncovered matters. The exclusion clause controls.

III. Conclusion

For the foregoing reasons, we affirm the district court’s grant of summary judgment to U.S. Specialty.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.