text:
    UNITED STATES of America, Plaintiff-Appellee v. Julilath KOUANGVAN, also known as Julilath Sisauyhoat, Defendant-Appellant
    No. 15-3784
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: January 4, 2017

      Counsel who represented the appellant was Alfredo G. Parrish of Des Moines, IA.
    Counsel who represented the appellee was Rachel J. Scherle, AUSA, of Des Moines, IA.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

Julilath Kouangvan claims the length of her prison sentence was influenced by race or national origin (both hers and the victims’), the fact she immigrated to the United. States, and her anticipated inability to afford to pay restitution—or at least that someone observing her sentencing hearing could have gotten that impression. We detect no reliance on forbidden considerations in the district court’s explanation of Kouangvan’s sentence, nor any encouragement of such reliance in the government’s'position at sentencing. With appellate jurisdiction under 28 U.S.C. § 1291, we therefore affirm.

I. BACKGROUND

Kouangvan pled guilty to filing a false income-tax return. See 26 U.S.C. § 7206(1). At sentencing, several of her friends and acquaintances testified they gave Kouangvan hundreds of thousands of dollars .to invest, with the expectation she would earn them high rates of return. She did not. Instead, she spent some of the money and shuffled the rest around, making enough repayments to keep her investors mollified while urging them to “reinvest” their gains—that is, to give her more money and let her keep what she already had.

By the time Kouangvan fell behind in her scheme and the money ran out, the large amounts of cash moving through her bank accounts—along with documents she submitted when she unsuccessfully filed for bankruptcy—attracted the attention of several law enforcement agencies, including the Criminal Investigation Division of the Internal Revenue Service. In exchange for the government dropping other charges, Kouangvan pled guilty to the tax-fraud count, on the theory that she should have reported the money she received as income. She also agreed to pay restitution to eight of the people who gave her the money. See 18 U.S.C. § 3663(a)(8) (authorizing restitution “to the extent agreed to by the parties in a plea agreement”).

At sentencing, the district court adopted the advisory sentencing range recommended in the plea agreement (10 to 16 months) and heard argument on what sentence to impose. Arguing for probation, Kouangvan emphasized her difficult childhood, including the nearly two years her family spent as refugees in Thailand after fleeing the communist regime in Laos. Kouangvan also introduced testimony about the practice of informal money lending in Lao immigrant communities, suggesting that even though the district court had already determined the amounts she received were investments, not loans, “[tjhere [still] was some semblance of recognition and interaction within that culture that allowed these payments or percentages to continue.” And Kouangvan suggested probation offered the “best opportunity” for her to pay thfe substantial restitution award—over $522,000 to the investors, plus nearly $200,000 in unpaid taxes—because she could, keep cleaning houses, which was her only real source of income.

This appeal is about what came next in the government’s counterargument. and the district court’s explanation of how it set Kouangvan’s sentence. The first statement Kouangvan takes issue with was the prosecutor’s opening line: “What happened here is not cultural, it’s criminal, and she should be punished as such. She victimized her fellow Laotians. I think most notable here, considering she’s discussing so much about her culture, she victimized fellow Laotians.” (Emphasis added). The other statements were from the district court:

I looked at the pictures from the refugee camp and I felt badly, and then I thought, what a way to pay back the United States of America for giving you a far, far, far better life than you could have dreamed of there, to come here and dupe your fellow Laotians, promised them a lot, gave them phony collateral, and then you paid them back and then took it back. And then ... you did threaten them. You made it look like they could be in trouble, too, and they had done nothing wrong. You took people—you crushed little people, and that’s the part that is just so painful to watch because I know how this is going to go. We’re going to try and squeeze every nickel we can out of you, and we’re just not going to get a lot. And so you’ve hurt irrevocably some good people that worked hard their whole life and you just todk it from them.
... I’ve had many situations where bank vice presidents embezzle three, four hundred thousand dollars from a bank, and each of them has done prison time. The difference is this isn’t an institutional theft, not to diminish the importance of institutional theft, but rather' a theft from unsophisticated, trusting persons from other countries.

(Emphasis added).

The district court ultimately sentenced Kouangvan to 14 months in prison. Kou-angvan did not make any objection to the sentence or the district court’s reasons given at the time. The only issue she raises on appeal is the claimed impact of improper considerations on her sentence. See, e.g., United States v. Mees, 640 F.3d 849, 856 (8th Cir. 2011) (recognizing “race, ... national origin, ... and socioeconomic status are not relevant in the determination of a sentence”); United States Sentencing Guidelines § 5H1.10.

II. DISCUSSION

Usually, we do not consider asserted mistakes that were not first raised to the district court unless the error is “plain” on appeal and “affects [a party’s] substantial rights.” Fed. R. Crim. P. 52(b); see also United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). We have sometimes followed this approach in cases closely resembling this one. See, e.g., United States v. Burnette, 518 F.3d 942, 949 (8th Cir. 2008) (“[The defendant] argues that the district court considered an improper factor ... [in setting his sentence]. This is a claim of procedural error, reviewed here for plain error.”). But in other, equally analogous "cases, we have gone directly to the merits without requiring a contemporaneous objection, apparently reasoning consideration of “ethnicity and other improper factors” would make a sentence substantively unreasonable, rather than procedurally defective. Mees, 640 F.3d at 856; accord United States v. Pena, 339 F.3d 715, 717-18 (8th Cir. 2003); see also United States v. Bain, 586 F.3d 634, 641 (8th Cir. 2009) (per curiam) (“No objection is needed to preserve an attack on the substantive reasonableness of a sentence.”). But cf. United States v. Wiley, 509 F.3d 474, 477 (8th Cir. 2007) (“[S]uch a requirement [of an objection in the district court] is not warranted, at least where a party asserts only that the length of the sentence is unreasonable.”). We need not resolve the apparent conflict between these two lines of cases here, because Kou-angvan is not entitled to relief even if we leave the heightened plain-error standard aside and simply review for abuse of discretion. See Mees, 640 F.3d at 856 (“‘A district court abuses its discretion when it ,.. gives significant weight to an improper or irrelevant factor.’ ” (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc))).

We begin with the statements Kouangvan believes reflect improper consideration of “race, national origin, and immigration status,” namely the government and district court repeatedly referring to her conning her “fellow Laotian’s.” Although nationality and such characteristics must not play any role in shaping a defendant’s sentence, the district court is not forbidden from ever acknowledging or mentioning them. See Pena, 339 F.3d at 718. Taking the challenged statements in context, we think it clear the point of emphasizing the background Kouangvan shared with many of the people whose money she took was to explain the district court’s perception of “the nature and circumstances of the offense,” 18 U.S.C. § 3553(a)(1), and the severity of her misconduct, id. § 3553(a)(2)(A)—how she used her place in the Lao immigrant community to develop connections she then exploited to convince vulnerable people to hand over their financial “nest eggs” in return for vague promises and worthless papers. The district court’s immediately preceding sentences made the contextual meaning explicit: ‘You [Kouangvan] duped relatively unsophisticated investors and you used their culture against them. That’s how you were able, to get their trust, and you took advantage of that association.”

We note Kouangvan first introduced and emphasized her Laotian heritage and culture as a basis for sentencing leniency because informal loans allegedly are common within the Laotian culture, and she was pursuing this practice. The district court did not aceept Kouangvan’s proposition. Having raised her race and national origin, as the government asserts, Kou-angvan, without more, should not be permitted to use her Laotian culture as both a shield and a sword.

Kouangvan also emphasizes the- “striking[ ] similarity]” between the district court’s comment , “what a way to pay -back the United States of America for giving you a far, far, far better life than you could have dreamed of [as a refugee in Thailand], to come here and dupe your fellow Laotians” and a portion of the explanation we found to necessitate resentencing in United States v. Onwuemene: “ ‘This country was good enough to allow you to come in here and to confer upon you ... a number of the benefits of this society, form of government, and its opportunities, and you repay that kindness by committing a crime like this.’ ” United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991) (omission in original). We acknowledge the similarity of the statements taken in isolation, but our decision in Onwuemene did not focus on that single line or treat it as demonstrating consideration of improper factors on its own. To the contrary, we quoted the district court in that case as explicitly stating, “ ‘The other thing that I feel that warrants imposition at the high end of the guideline range: You are not a citizen of this country ” and “ We have got enough criminals in the United States without importing any.’ ” Id.

There is nothing comparable here. The district court’s statement in this case was offered as a counterpoint to “look[ing] at the pictures from the refugee camp and ... fe[eling] badly” for Kouangvan. The comment clearly expressed the district court’s conviction that the hardship Kouangvan faced as a child did not excuse or diminish the severity of the crime she committed long after settling in the United States, rather than any idea that her status as an immigrant somehow warranted a harsher punishment. Cf. Pena, 339 F.3d at 717-18 (deciding another similar statement—“ You’ve been given an opportunity to come to the United States and become a productive citizen, but, in fact, you have repaid this courtesy by becoming a drug dealer’ ”—viewed in context, did not reflect an improper consideration, and distinguishing the statement from Onwuemene as “expressly indicating] that nationality was a factor in sentencing”). The district court did not abuse its discretion by giving any weight to race or national origin in establishing its sentence for Kouangvan.

We reach the same conclusion with respect to Kouangvan’s suggestion that the district court improperly considered her socioeconomic status. To be sure, we see no way to understand the statement “We’re going to try and squeeze every nickel we can out of you, and we’re just not going to get a lot” except as an observation that Kouangvan would likely be unable to pay the restitution the district court had ordered, particularly because there was no evidence she had tried to hide assets or obstruct collection efforts. However, it is far from clear that the district court’s observation resulted in a longer prison sentence than Kouangvan would have received otherwise. Unlike in the one case (from a different court) Kouangvan relies on, the district court here did not label Kouangvan’s. anticipated inability to pay restitution an “‘aggravating factor.’” United States v. Burgum, 633 F.3d 810, 814 (9th Cir. 2011) (“ ‘One additional aggravating factor ... is I just think realistically the chances of restitution in this case are probably slim, maybe even null in light of ... [the defendant] not really having the finances or the financial condition to even pay a fíne.’”). Nor did the district court otherwise signal or even imply it was increasing Kouangvan’s prison sentence to compensate for the expectation of not recovering much in restitution. Cf., e.g., Onwuemene, 933 F.2d at 651 (vacating a sentence because the district court described an improper consideration as “ ‘[an]other thing that I feel that warrants imposition at the .high end of the guideline range’ ”); United States v. Kaba, 480 F.3d 152, 155-58 (2d Cir. 2007) (vacating a-sentence because the district court stated, “ ‘it is entirely reasonable to assume ..that people from the Guinea community are going to say gee, do you hear what happened to [the defendant]? ... I hope that that has some effect here that will deter other people from that background from doing what you’ve done here’ ”).

To the contrary, the district court appears to have mentioned the likelihood of Kouangvan’s investors not receiving their money back priniarily as part of a general background description of what she did and the harm she caused. See 18 U.S.C. § 3553(a)(1), (2)(A). Beyond that, the statement served as a response to Kouangvan’s repeated suggestions that her demonstrated willingness to pay restitution justified a sentence without any prison time. By responding that, realistically, Kouangvan’s restitution payments probably would not amount to much, the district court simply made clear why the large sums she was ordered to pay did not materially affect the length of her prison sentence, in either direction. Cf. Pena, 339 F.3d at 718 (“The statement regarding [the defendant’s] political asylum was, unlike the statement in Onwuemene, not made as part of an explanation for the sentence imposed. Rather, it was an observation about testimony that [the defendant] had introduced regarding his struggle to come to the United States.”). That was not an abuse of discretion.

Finally, we are not swayed by Kouangvan’s insistence that even if we doubt the district court was actually biased, re-sentencing-is necessary as long as “[a] reasonable observer, hearing or reading the court’s remarks,” would perceive reliance on an improper factor. See Kaba, 480 F.3d at 156 (“Because ‘justice must satisfy the appearance of justice, even the appearance that the sentence reflects a defendant’s race or nationality will ordinarily require a remand for resentencing.’ ” (quoting United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994))). Perhaps the district court and the prosecutor should have been clearer when making statements bearing on nationality and socioeconomic status at sentencing, to reduce the risk of appearing to be influenced improperly by such concerns. Yet we believe a hypothetical reasonable observer would take what was said in context, just as we do. After careful review of the statements identified by Kouangvan, considering how and when they were made, that is, in context, we conclude the comments provide no reason to suspect any prohibited considerations infected the district court’s sentencing decision.

III. CONCLUSION

Kouangvan’s sentence is affirmed.

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

      . The government explains the district court’s statement as simply noting the fact Kou-angvan’s investors "were unlikely to ever-get their money back,” which increased "the seriousness of the offense and the harm to the victims.” Yet imprisoning poor criminals longer because they cannot afford to make their victims financially whole is precisely what we must not do.

      . In defending the district court’s statements, the government cites the order in which the district court denied Kouangvan's post-sentencing request to be released on bond while awaiting the results of this appeal. Though we find much of the reasoning in the order persuasive, we give little weight to the district court’s account of what it meant by the challenged statements, as distinct from our reading of them, because the repudiation of improper considerations in such a retrospective order “may have arisen from a variety of motives, including [the district court’s] realization subsequent to the sentencing hearing that [they] would trigger, and would not withstand, appellate review.” Onwuemene, 933 F.2d at 652 n.1.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    John D. DUNN; Christina Dunn, formerly known as Christina L. Lapetina, Plaintiffs-Appellants v. BANK OF AMERICA N.A., doing business as BANA, doing business as Bank of America Corporation, doing business as BANA Holding Corporation, doing business as BAC North America Holding Company, doing business as NB Holdings Corporation; Nationstar Mortgage, LLC, doing business as Nationstar Sub1, LLC, doing business as Nationstar Sub2, LLC, doing business as Nationstar Mortgage Holdings, Inc., Defendants-Appellees
    No. 15-3985
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 19, 2016
    Filed: January 4, 2017

      Carol A. Molloy, Law Office of Carol A. Molloy, Fitchburg, MA, for Plaintiffs-Appellants.
    Marc James Ayers, Bradley & Arant, Birmingham, AL, 'Mary Clay W. Morgan, Clarence Webster, .III, Bradley & Arant, Jackson, MS, for Defendants-Appellees.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

John and Christina Dunn brought , this action under the Truth in Lending Act (TILA), see 15 U.S.C/ § 1601, et seq., alleging > Bank' of America failed to provide necessary disclosures. The district court dismissed their complaint. Having appellate jurisdiction, we affirm. See 28 U.S.C. § 1291.

1. BACKGROUND

’ On October 5, 2009, John and Christina Dunn (the Dunns) obtained a loan for $262,525 from Bank of America. The loan was secured by a mortgage granting Bank of America a security interest in 2355 Se-quoyah Drive in Rogers, Arkansas, which was recorded in Benton County, Arkansas.

On February 28, 2011, the Dunns sent Bank of America a letter invoking their “Right of Rescission per the Truth in Lending Act, Regulation Z” under 15 U.S.C. § 1635 and 12 C.F.R. § 226.23. The Dunns’ letter stated they sought to rescind their loan because they “were not provided with any completed copies of the notice of our right to rescind the above consumer credit transaction.” The Dunns asserted Bank of America had twenty days to return “all monies paid and to take action necessary and appropriate to terminate the security interest.” Bank of America responded in a letter dated March 17, 2011. The letter stated the request for rescission was “forwarded to the appropriate department” and that the loan “remain[ed] in full force and effect.”

In July 2013, Bank of America assigned the Dunns’ mortgage to Nationstar Mortgage, and three months later, Nationstar Mortgage foreclosed. In August 2015, the Dunns brought' suit agáinst Bank of America and Nationstar Mortgage alleging Bank of America failed to provide them with two required copies of the “Notice of Right to Cancel” indicating the Dunns had three days to cancel the transaction. See 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23. The Dunns claimed defendants have failed to honor their notice of rescission and have not returned any money or terminated the security interest. The complaint also charged defendants with wrongful foreclosure and sought to quiet title of “the Property.” The Dunns requested declaratory and injunctive relief and actual and statutory damages. Attached to the complaint was a copy of the loan agreement.

Defendants moved for judgment on the pleadings, attaching to their motion a notarized warranty deed from the prior owners to John D. Dunn and Christina L. Lapetina executed on October 5, 2009, and recorded in Benton County, Arkansas. Defendants claimed this property was the same property secured by the loan, and, accordingly, the loan was a residential mortgage transaction exempted from the TILA’s right of rescission, see 15 U.S.C. §§ 1602(x), 1635(e). The district court took judicial notice of the warranty deed and concluded the Dunns’ claims failed as a matter of law, agreeing with the defendants that the loan was a residential mortgage transaction to which 15 U.S.C. § 1635(a) did not apply. See id. §§ 1602(x), 1635(e). Therefore, the notice of rescission the Dunns sent to Bank of America in February 2011 could not cancel the loan or provide a basis for wrongful foreclosure and quiet title actions. The district court determined even if defendants had been required to provide disclosures under the TILA, any claim for damages would have been barred by its one-year statute of limitations. See id. § 1640(e). The Dunns appeal.

II. DISCUSSION

“We review de novo a grant of a motion for judgment on the pleadings,” affirming “only if the moving party clearly established] that there are no material issues of fact and that it is entitled to judgment as a matter of law.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

The TILA requires creditors to provide “a meaningful disclosure of credit terms ... to protect the consumer against inaccurate and unfair credit billing ... practices.” 15 U.S.C. § 1601(a). Within Part B, Credit Transactions, of Subchapter I, Consumer Credit Cost Disclosure, § 1635 provides consumers with the right of rescission in certain applicable transactions. The statute provides:

[I]n the case of any consumer credit transaction ... in which a security interest ... will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section[.]

Id. § 1635(a). In a consumer credit transaction “[e]xcept as otherwise provided in this section,” the creditor is required to “clearly and conspicuously disclose ... to any obligor ... the rights of the obligor under this section.” Id. An obligor who exercises the right of rescission under subsection (a) “is not liable for any finance or other charge, and any security interest given by the obligor ... becomes void upon such a rescission.” Id. § 1635(b). The obligor must exercise the right of rescission within three years after the date of the transaction or upon the sale of the secured property. See id. § 1635(f).

Section 1635(e) lists exempted transactions to which the section does not apply. One of those exempted transactions is “a residential mortgage transaction as defined in section 1602(w) of this title.” Id. § 1635(e) (omitting footnote explaining section 1602(w) was “redesignated” as 1602(x)). A “ ‘residential mortgage transaction’” is “a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition ... of such dwelling.” Id. § 1602(x) (emphasis added); accord 12 C.F.R. § 226.23(f).

Based on the plain language of the statute, an obligor to a loan which qualifies as a residential mortgage transaction is not entitled to the right of rescission under § 1635(a). See Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1029 n.7 (9th Cir. 2014) (“TILA does not apply to residential mortgages used to finance the initial acquisition or construction of a dwelling.”); In re Groat, 369 B.R. 413, 416 n.10 (8th Cir. BAP 2007) (“Generally, a residential mortgage transaction or the refinance of a residential mortgage transaction is not rescindable.”).

In consideration of the warranty deed attached to defendants’ motion, the district court decided there was “no doubt that the loan agreement in question constitutes a residential mortgage transaction.” We agree. See, e.g., Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (“When considering ... a motion to dismiss .... the court ,.. may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.” (internal citation omitted)); Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011). Although the warranty deed lists the legal description of the property and not its address, identifying the property as “Lot 2, Sequoyah Woods Subdivision, Benton County, Arkansas,” it does list John Dunn’s address identifying where the tax statement should be mailed as “2355 Sequoyah Dr., Rogers, Arkansas”—the same address as the mortgaged property where the Dunns admitted in their complaint they resided. The same legal description of the property was also identified in the notice of the assignment of the mortgage. The warranty deed and the loan and accompanying mortgage on 2355 Sequoyah Dr. were signed and executed on the same date, October 5, 2009, and both recorded in the Benton County register’s office on October 8, 2009. The district court also noted the Dunns did “not dispute that the mortgage was created to finance the acquisition of the dwelling secured by it.”

For the first time on appeal, the Dunns contend the district court erred by “assuming] certain facts outside of the pleadings” in concluding the warranty deed financed the acquisition of the property. The Dunns claim the four parties to the warranty deed could have been joint owners of the property, so that the loan obtained to finance the conveyance from the previous owners to the Dunns actually could be a “refinance because the Appellants would already have been on [the] title.” Generally, we do not address parties’ arguments that were not raised before the district court. See Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002). Even so, we are unpersuaded by this line of reasoning—the deed clearly shows the Dunns acquired the property through that conveyance. Cf. Middleton v. Guaranteed Rate, Inc., No. 2:15-CV-00943, 2015 WL 3934934, at *3 (D. Nev. June 25, 2015), appeal dismissed (Oct. 27, 2015) (“[I]t is clear on the face of the Complaint ... and the judicially noticeable public records that [plaintiffs] obtained the loan in order to acquire the Property, not to refinance it. Prior to the purchase of the Property ... it belonged to the Federal National Mortgage Corporation.”). We similarly reject the Dunns’ other fresh arguments on appeal that the warranty deed was inadmissible hearsay and not properly authenticated. The deed was notarized and recorded by the circuit clerk of Benton County, resulting in authentication and a hearsay exception. See, e.g., Fed. R. Evid. 803(8), 803(14), 901(b)(7)(A), 902(8).

The remainder of the Dunns’ arguments on appeal assume they are entitled to rescission under § 1635(a) and address defendants’ conduct since the time the Dunns sent Bank of America their purported rescission notice of the loan. Because they were never entitled to rescission under § 1635(a), that notice of rescission had no.legal effect. The Dunns cite Jesinoski v. Countrywide Home Loans, — U.S. —, 135 S.Ct. 790, 792, 190 L.Ed.2d 650 (2015), arguing there is “no distinction between disputed and undisputed rescission.” Jesinoski, however, addressed what action an obligor had to take within § 1635(a)’s three-year statute of limitations to invoke the right of rescission—not whether § 1635(a) applied at all. See id. at —, 135 S.Ct. at 792-93; see also Beukes v. GMAC Mortg., LLC, 786 F.3d 649, 652 (8th Cir. 2015). Although the Supreme Court did not discuss the loan at issue in Jesinoski in great detail, it did indicate the loan refinanced the plaintiffs’ home mortgage, unlike the loan here. Jesinoski, — U.S. —, 135 S.Ct. at 791-92; cf. 15 U.S.C. § 1602(x); Beach v. Ocwen Fed. Bank, 523 U.S. 410, 413-15, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (explaining a refinance loan secured by a primary residence is subject, to § 1635(a) disclosure); Rand Corp. v. Yer Song Mona, 559 F.3d 842, 843 (8th Cir. 2009) (same).

The Dunns do not contest that, their action for. damages, under the TILA is barred by its one-year statute of limitations, yet they contend they are still entitled to declaratory relief. Because § 1635(a) does not apply, we disagree. Cf. In re Buckles, 189 B.R. 752, 763 (Bankr. D. Minn. 1995).

III. CONCLUSION

We affirm the judgment of the district court.

      . The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.

      . Christina Dunn was formerly known as Christina Lapetina.

      . For a discussion of the rationale behind the exception applying to purchase-money mortgages, see generally, Lea Krivinskas Shepard, It's All About the Principal: Preserving Consumers’ Right of Rescission Under the Truth in Lending Act, 89 N.C. L. Rev. 171, 179 n.32 (2010) ("Congress presumably was not concerned with providing borrowers a right of rescission in the purchase-money context, since, in such cases, it would likely be apparent to the borrower that the home would be encumbered by the new mortgage.”).

      . The Dunns did not address the district court’s dismissal of their other claims on appeal.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Terrell E. LEWIS, Defendant-Appellant
    No. 16-1524
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: January 4, 2017

      John R. Osgood, Lee’s Summit, MO, for appellant.
    D. Michael Green, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
   RILEY, Chief Judge.

Terrell E. Lewis seeks to appeal the district court’s order denying his motion to dismiss an indictment charging him with three counts of Hobbs Act robberies, in violation of 18 U.S.C. § 1951, and one count of aiding and abetting the use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); see also id. § 2 (accomplice liability). These four counts were originally brought against Lewis in a 2010 indictment, but were dismissed as part of a plea agreement in which Lewis agreed to cooperate with law enforcement. Lewis asserts the new indictment is barred by double jeopardy and collateral estoppel and by the terms of the plea agreement. We dismiss Lewis’s interlocutory appeal for lack of jurisdiction.

I. BACKGROUND

On December 7, 2010, Lewis was indicted and charged with three Hobbs Act robberies and three counts of using a firearm in connection with a crime of violence. On April 18, 2012, Lewis pled guilty to two of the firearms counts pursuant to a plea agreement. In the confidential supplement to the plea agreement, Lewis agreed:

f. I understand that my cooperation shall be provided to any local, state, and federal law enforcement agency deemed appropriate by the United States and that I may be called upon as a witness by any authority that has been provided my cooperation.
g. I agree and understand that this cooperation agreement requires that my cooperation continues even after the time I am sentenced. Failure to continue to cooperate after a sentence is imposed constitutes a basis to void this agreement by the United States and will allow the Government to re-institute charges that were previously dismissed pursuant to this agreementf.]

In September 2012, the district court sentenced Lewis. Pursuant to a motion for a downward departure filed by the government, Lewis’s consecutive sentences on the two firearms counts were reduced from 384 months to 144 months. The other four counts of the 2010 indictment were dismissed.

In approximately late August 2013, a Missouri state prosecutor determined Lewis’s testimony was necessary for a state murder prosecution. When the prosecutor called Lewis to her office to prepare him for his pretrial deposition, Lewis refused to talk to the prosecutor. At the government’s request, Lewis’s federal public defender visited Lewis in jail and reviewed the implications of Lewis’s refusal to testify in the state murder prosecution, including that the United States could move to re-sentence him or re-indict him on the four counts previously dismissed pursuant to the plea agreement. Lewis continued his refusal to cooperate, and the state dismissed the murder prosecution in December.

As a result of Lewis’s refusal to cooperate in the state murder prosecution, the government considered Lewis had breached his plea agreement. A federal grand jury indicted Lewis, charging him with the original three Hobbs Act robberies and the one firearms count that had been dismissed pursuant to the plea agreement from the 2010 indictment. • .

Lewis moved to dismiss the instant indictment, arguing he had performed all that was required of him in the previous federal case and this indictment was barred by double jeopardy. The government filed a response contending Lewis breached the plea agreement - by refusing to testify in the state murder prosecution.

In January 2016, a United States magistrate judge heard evidence on Lewis’s motion to dismiss. The magistrate judge recommended that Lewis’s motion to dismiss the indictment be denied because:

(1) [Lewis] knew at the time of his guilty plea and at the time of his sentencing that he was required to continue cooperating with the State including testifying [in the state murder prosecution], regardless of when that trial took place, (2) [Lewises refusal to cooperate and testify [in the state case] constituted a breach of the plea agreement, (3) the government was entitled to re-indict [Lewis] on the four previously dismissed charges, and (4) [Lewises Constitutional rights were not violated when he- entered a plea agreement without the benefit of a grant of immunity from the State of Missouri.

Lewis filed objections to the magistrate’s report and recommendation. The district court adopted the report and-recommendation and denied Lewis’s motion to dismiss the indictment. Lewis filed this interlocutory appeal.

II. DISCUSSION

Lewis first argues the indictment should be dismissed because it is barred as a matter of double jeopardy and collateral estoppel. “We have-jurisdiction to review a pretrial order denying a defendant’s motion to dismiss an indictment on.double jeopardy and collateral estoppel grounds where the defendant has raised a colorable claim.” United States v. Howe, 590 F.3d 552, 555 (8th Cir. 2009). We review a district court’s denial of a motion to dismiss an indictment de novo. See id.

“The Double Jeopardy Clause of the Fifth Amendment ... bars a second prosecution for the same offense or a lesser included offense.” United States v. Bailey, 34 F.3d 683, 687 (8th Cir. 1994), abrogated in part by United States v. Gaudin, 515 U.S. 506, 523, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). “Where the record clearly shows that jeopardy had not attached when the first indictment was dismissed, the defendant has failed to state a colorable double jeopardy claim.” Id. Double jeopardy “does not come into play until a proceeding begins before a trier having jurisdiction to try the question of the guilt or innocence of the accused.” Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (omitting internal citation). This court has held that “[j]eopardy attaches to a prosecution when the jury is empaneled and sworn or, in a nonjury case, when the court begins to hear evidence.” Bailey, 34 F.3d at 687.

The four counts in the 2010 indictment were dismissed before a jury was empaneled. Jeopardy did not attach during any of the pretrial proceedings. See United States v. Lasater, 535 F.2d 1041, 1047 (8th Cir. 1976) (holding jeopardy had not attached because the district court was without power to enter a judgment of conviction in a pretrial proceeding), abrogated in part by Gaudin, 515 U.S. at 523, 115 S.Ct. 2310. Lewis has failed to present a color-able double jeopardy claim.

For these same reasons, Lewis has failed to present a colorable claim for collateral estoppel. “Collateral estoppel ‘precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.’ ” Howe, 590 F.3d at 556 (quoting Yeager v. United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)). Here, the four counts in the 2010 indictment were dismissed before a jury was empaneled; therefore, there is no prior jury acquittal that prevents the government from litigating those charges.

Lewis also asserts the indictment should be dismissed because he fully performed his obligations under the 2012 plea agreement and his right to due process under the Fifth Amendment was violated when the government prosecuted charges that were previously dismissed. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) (explaining a plea can be challenged under the Due Process Clause if the defendant was not fairly apprised of the consequences of his plea), abrogated in part by Puckett v. United States, 556 U.S. 129, 138 n.1, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), We are also without jurisdiction to hear an interlocutory appeal from a pretrial order denying a motion to dismiss an indictment based upon an alleged breach of a plea agreement. See United States v. Ecker, 232 F.3d 348, 350 (2d Cir. 2000) (“[A]n order denying a motion to dismiss on the ground of an allegedly breached plea agreement is not appealable prior to the entry of final judgment.”); United States v. Ledon, 49 F.3d 457, 459-60 (8th Cir. 1995) (“[An] order denying [a] motion to dismiss for breach of [a] plea agreement is not final or appealable.”). Claims in a motion to dismiss other than double jeopardy claims are appealable “ ‘if, and only if, they ... fall within Cohen’s collateral-order exception to the final-judgment rule.’” Bailey, 34 F.3d at 689 (quoting Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1628 (1949).

In Bailey, we considered whether an order denying dismissal of an indictment based on a plea agreement fell within Cohen’s collateral order exception to the rule of finality. See Bailey, 34 F.3d at 690. Under Cohen, the collateral order exception applies, and a pretrial order is immediately appealable, “if (1) the order conclusively determines the disputed question, (2)it resolves an important issue separate from the merits of the action, and (3) it [is] effectively unreviewable on appeal from' a final judgment.” Id. at 689 (internal citations omitted). We determined an appeal from a denial of a motion to dismiss an indictment based upon an alleged plea agreement did not meet the third Cohen factor because that type of claim can be reviewed on an appeal from final judgment. See id. at 691 (“[T]he availability of dismissal after final judgment will adequately protect and secure for the defendant the benefit of his bargain under the [plea] agreement if he is entitled to it.”). Without a final judgment, we lack jurisdiction to hear the merits of whether the government violated the plea agreement between Lewis and the United States.

III. CONCLUSION

We dismiss this appeal for lack of jurisdiction.

      . The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri, adopting the report and recommendation of the Honorable Robert E. Larsen, United States Magistrate Judge.


author: WOLLMAN, Circuit Judge.

text:
    STAR CITY SCHOOL DISTRICT, Plaintiff-Appellant, v. ACI BUILDING SYSTEMS, LLC, Defendant-Appellee. ACI Building Systems, LLC, Third Party Plaintiff, v. Southeast Building Concepts, Inc.; Metal Building Components, Inc., Third Party Defendants.
    No. 15-3723
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: January 6, 2017

      George Jay Bequette, Jr., Bequette & Billingsley, Little Rock, AR, for Plaintiff-Appellant.
    Richard D. Bennett, Farris & Bobango, Memphis, TN, for Defendant-Appellee.
    . Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   WOLLMAN, Circuit Judge.

Star City School District (the District) filed suit against ACI Building Systems, LLC (ACI), a company that manufactured and supplied roofing materials that were used in the construction of a high school building. The complaint alleged that the building’s roof was not watertight and that ACI had failed to repair or replace the roof, despite its promises and obligation to do so. The district court granted ACI’s motion to dismiss the claims of fraud and constructive fraud and later granted summary judgment in favor of ACI on the remaining claims of breach of warranty, breach of contract, and negligence. We affirm.

I. Background

In 2003, the District entered into a construction contract with Southeast Building Concepts,'Inc. (SBC), for SBC to construct a new high school building. SBC served as the general contractor for the project and issued a performance and payment bond that named the District as the obligee. Steve Elliot served as the District’s architect.

SBC began working on the project in late April 2003 and thereafter entered into an agreement with ACI, under which ACI agreed to supply SBC with certain metal building and roofing materials to be used in the construction of the high school building. ACI was not a party to the con-’ struction contract between SBC and the District, and ACI did not install the roof. That work was completed by SBC or others as directed by SBC.

The school’s roof was not properly installed and has never been watertight. In a December 2004 letter addressed to the president of SBC and copied to the District’s superintendent, Elliot’s architectural firm expressed concerns that SBC had not yet repaired “several major roof leaks that [had been] brought to the job superintendent’s attention several months ago.” An ACI employee' also discovered problems related to the roof s installation while inspecting the roof in March 2005. In an" email to another ACI employee, he wrote: “I did a preliminary inspection on this roof yesterday—3/23/05. Absolutely pitiful— I don’t know if it will ever pass inspection. This is primarily FYI and to have a record in file.” SBC later assured ACI that-it had made the necessary repairs.

Elliot’s architectural firm issued a certificate of substantial completion on March 28, 2005, and the District took possession of the building that June. In February 2006, ACI and SBC issued a 10-year warranty on the roof that provides, in part:

[T]he total liability and warranty of [SBC] shall be only to provide such workmanship as is necessary to repair or replace any defective material or workmanship without cost to the original owner, and the total liability and warranty of [ACI] shall be only to repair or replace any material without cost to the original owner.

The warranty further provides:

2.) This warranty shall not be enforceable if the roof system was not erected in accordance with ACI Building Systems, Inc. erection drawings_
3.) This warranty does not apply to cover any damages or leakage caused by or associated with ... roof penetrations, trim, flashing, evidence of repair work done by unqualified or un-authorized personnel, or any modifications or alterations to material beyond ACI’s control....

Despite the continued leaks, the District did not make a claim on the bond. It made the final payment to SBC in May 2006. SBC thereafter continued work to repair the roof, but in early 2007, it advised the District that it would no longer make repairs. SBC eventually went out of business and filed for bankruptcy protection.

ÁCI vice president and chief operating officer Ron Knapp testified that he first became aware of the leaks in September 2006, when Elliot wrote to him and reported that the roof was leaking. Sometime after SBC stopped making repairs to the roof, both the District and ACI asked Steve Naff, the owner of a local construction company, to inspect the roof and advise whether it could be repaired. Naff, who had worked on other construction projects for the District, believed that he could fix the roof. ACI authorized him to do the work, even though ACI believed that the problems were caused by improper installation and poor workmanship and that the work thus was beyond the scope of ACI’s warranty. According to Knapp, ACI paid for the repairs as a gesture of goodwill.

According to the District, ACI repeatedly promised to repair or replace the roof. Naff made numerous repairs from 2007 through April 2011, but the roof continued to leak. Naff thereafter advised ACI and the District that he no longer believed that he could repair the. roof. In December 2012, the District made a claim on the bond, which was denied.

The District filed suit against ACI in Arkansas state court in February 2013. ACI removed the action to federal district court on the basis of diversity jurisdiction. The District alleged in its amended complaint that it “ha[d] been damaged by reason of ACI’s failure to appropriately manufacture and repair the roof on the Building in a workmanlike manner.” The District claimed that ACI had issued a warranty on the roof, even though' an inspection by ACI “revealed significant deficiencies, which ACI failed to disclose.” The District further alleged that ACI had repeatedly promised to repair or replace the roof, that the repairs were unsuccessful, and that the roof continued to leak. The District alleged claims of fraud, constructive fraud, breach of warranty, breach of contract, and negligence.

Applying the substantive law of Arkansas, the district court dismissed the District’s claims of fraud and constructive fraud for failure to state a claim. In its summary judgment order, the district court determined that the remaining claims were barred by the five-year statute of repose set forth in Arkansas Code § 16-56-112(a).

II. Discussion

A. Fraud and Constructive Fraud

The District argues that the district court erred in dismissing its claims of fraud and constructive fraud. We review de novo a district court’s order granting a motion to dismiss, accepting as true the allegations set forth in the complaint and drawing all reasonable inferences in favor of the nonmoving party. Farm Credit Servs. of Am., FLCA v. Haun, 734 F.3d 800, 803-04 (8th Cir. 2013). To withstand a motion to dismiss, the complaint must set forth sufficient factual allegations to provide the grounds on which the plaintiffs claims rest. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rule 9(b) of the Federal Rules of Civil Procedure requires that circumstances constituting fraud be pleaded with particularity. “We interpret this rule in harmony with the principles of notice pleading, and to satisfy it, the complaint must allege such matters as the time, place, and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (internal quotation marks and citation omitted).

Under Arkansas law, a cause of action for actual fraud requires proof of the following elements: “(1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that the representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable reliance by the plaintiff; and (5) resulting damage to the plaintiff.” Country Corner Food & Drug, Inc. v. First State Bank & Trust Co. of Conway, Ark., 332 Ark. 645, 966 S.W.2d 894, 897 (1998). The district court determined that Star City failed to plead a false representation or actual reliance. We agree.

The District first argues that it adequately pleaded a false representation, pointing to its allegations related to ACI’s assurances “that ACI would do whatever was necessary to repair or replace the roof.” Those assurances, however, relate to a future event of repairing or replacing the roof, and generally a “misrepresentation must relate to a past event or a present circumstance.” Rice v. Ragsdale, 104 Ark. App. 364, 292 S.W.3d 856, 864 (2009); see also Delta Sch. of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424, 427 (1989) (“In general, an action for fraud or deceit may not be predicated on representations relating solely to future events.”); Anthony v. First Nat’l Bank of Magnolia, 244 Ark. 1015, 1028, 431 S.W.2d 267 (1968) (“Reprsentations that are promissory in nature or of facts that will exist in the future, though false, do not support an action for fraud.”).

The District argues that ACI’s assurances are nonetheless actionable because they fall within “an exception to the ‘future events’ rule [that] arises if the promisor, at the time of making the promise, has no intention to carry it out.” Trakru v. Mathews, 2014 Ark. App. 154, 434 S.W.3d 10, 17 (2014). “[A] statement of future events may constitute fraud if the statement is false and the person making the representation, or prediction knows it to be false at the time it is made.” See Morrison v. Back Yard Burgers, Inc., 91 F.3d 1184, 1187 (8th Cir. 1996) (citing Delta Sch. of Commerce, 766 S.W.2d at 426-27). The exception “requires actual knowledge of falsity.” Id. The Distinct did not allege that ACI always knew the roof could not be repaired or that ACI had no intention of carrying out its promises to repair or replace the roof. The amended complaint" alleged that ACI had discovered “significant deficiencies” before ACI issued the warranty. It further alleged that ACI had “repeatedly assured [the District] that ACI would repair or replace the roof in order to stop the water intrusions,” that ACI tried to repair the roof, and that the repairs were unsuccessful and the roof continued to leak. In effect, the amended complaint alleged that ACI did not fulfill its promise to repair or replace the roof, but it did not plead any false representation. See P.A.M. Transp., Inc. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33, 36 (1993) (“An assertion limited to a future event may be a promise that imposes liability for breach of contract or a mere prediction that doés not, but it is not a misrepresentation as to that event.” (quoting 1 E. Allan Farnsworth, Farnsworth on Contracts § 4.11 (1990))).

The amended complaint also did not plead actual reliance by the District on ACI’s alleged misrepresentations. The Arkansas Supreme Court “has defined actual reliance to mean that the plaintiff acted or did not act by reason of the defendant’s misrepresentation.” SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157, 172-73 (2000). The District now argues that it “would have filed a claim on the surety bond or brought this action much sooner but for ACI’s representations,” but the amended complaint did not identify these or any other acts that the District took or refrained from taking based on ACI’s alleged misrepresentations. The district court thus properly dismissed the fraud and constructive fraud" claims for failure to plead actual reliance. See Yarborough v. DeVilbiss Air Power, Inc., 321 F.3d 728, 730 (8th Cir. 2003) (“A claim for constructive fraud, which lies when there is a confidential relationship between the parties, requires proof of all of the elements of actual fraud except scienter.” (citing Morrison, 91 F.3d at 1188; SEECO, Inc., 22 S.W.3d at 172-73)).

B. Breach of Warranty, Breach of Contract, and Negligence

The District argues that the district court erred in granting summary judgment in favor of ACI on its remaining claims. We review de novo the district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). Summary judgment is appropriate if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Arkansas Code § 16-56-112(a) sets forth a statute of repose that “protects] persons- engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit.” Okla Homer Smith Furniture Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696, 698 (1983). The Arkansas Supreme Court has explained that the statute “establishes a maximum five year period within which an injured party can bring suit against a person who deficiently constructs or repairs an improvement to real property.” E. Poinsett Cty. Sch. Dist. No. 14 v. Union Standard Ins. Co., 304 Ark. 32, 800 S.W.2d 415, 417 (1990). The effect of the statute of repose “is to cut off entirely an injured person’s right of action before it accrues, when that action does not arise until after the statutory period has elapsed.” Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438, 441 (2003). The statute provides, in relevant part:

(a) No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property paused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
(f) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, nor shall the parties to any contract for construction extend the above prescribed limitations by . agreement or otherwise.

Ark. Code Ann. § 16-56-112.

The broad language of the statute of repose seems to include “virtually everyone involved in the construction project.” See 2 David Newbern et al., Arkansas Civil Practice and Procedure § 5:11 (5th ed. May 2016 Update). The statute has. not been applied, however, to manufacturers of standardized goods or materials who are not involved in the installation process. See Brown v. Overhead Door Corp., 843 F.Supp. 482 (W.D. Ark. 1994). The District alleged in its complaint that it had “been damaged by reason of ACI’s failure to appropriately manufacture and repair the roof on the Building in a workmanlike manner.” The District does not argue on appeal that the roofing material itself caused the roof to leak, and we agree with the district court’s determination that there was no evidence that roofing material was at fault.

The District argues that the five-year statute of repose does not apply in this case because the building was never substantially completed. The term “substantial completion” is not defined in the statute, but it “generally means that the building or project has reached a point where it is ready for the use for which it was intended and whatever work remains to be done is minor.” Newbern et al., supra, § 5:11 (citations omitted). The District alleged in its complaint that “[t]he Building was substantially completed on March 28, 2005.” The District took possession of the building in June 2005, and the superintendent testified .that the building was furnished and ready to function as a high school by the time of an open house held in July 2005. Because the building was substantially completed well before February 21, 2008—which is five years before the District filed this action—the statute of repose bars the District’s claims.

The District next argues that the statute was tolled while ACI attempted to repair the roof. In support of its argument, the District cites Little Rock School District v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1978), a case in which the Arkansas Supreme Court determined that it was for the jury to decide whether the “statute of limitations” was tolled while repairs were made to an improvement to real property. The Arkansas Supreme Court later clarified, however, that “§ 16-56-112(a) is more accurately described as a ‘statute of repose’ than a ‘statute of limitations’” because the statute extinguishes the injured person’s right of action. Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421, 423 (1997). Absent fraudulent concealment of the deficiency, any right of action ceases to exist five years after the date of substantial completion of the improvement. See Ark. Code Ann. § 16-56-112(d); Curry, 128 S.W.3d at 441; Carlson v. Kelso Drafting & Design, Inc., 2010 Ark. App. 205, 374 S.W.3d 726, 729 (2010) (refusing “to adopt a ‘repair doctrine’ that would have the effect of tolling the statute during the period that appellees attempted repairs and representations were made that the repairs would cure the defect”). Because the record contains no evidence that ACI fraudulently concealed the roofs deficiencies, we reject the District’s argument that the statute of repose was tolled while ACI tried to repair the roof.

Finally, the District argues that the statute of repose does not apply because the District is suing ACI under the warranty, and not a construction contract. The statute of repose is not limited to parties to a construction contract, however. In First Electric Cooperative Corp. v. Black, Corley, Owens & Hughes, P.A., the plaintiff entered into a construction contract with an architect, who hired a company to design the building’s heating, ventilation, and air-conditioning (HVAC) system. No. CA 10-1257, 2011 WL 2473105 (Ark. Ct. App. June 22, 2011) (unpublished). The plaintiff later entered into a tolling agreement with the architect and the HVAC company to extend the limitations period. The Arkansas Court of Appeals rejected the plaintiffs arguments that § 16—56—112(f) applied only to the terms of an original construction contract and that it was against public policy to prohibit the tolling agreement in that case, stating: “We .., decline to interpret subsection (f) in a manner that would permit the parties to toll, by agreement, section 16-56-112’s statute of repose. Subsection (f) reflects a clear legislative mandate against such agreements, and we will not alter that mandate by judicial fiat.” Id. at *5. Similarly, in Varadan v. Pagnozzi, the Arkansas Court of Appeals rejected the plaintiffs’ argument that the statute of repose did not apply to a claim based not on a construction contract, but on a separate builder’s warranty, stating: “Even though they rely on the written builder’s warranty, the crux of appellants’ complaint is that they were damaged by the defective construction of their house. This fits-squarely within the statute of repose.” No. CA 12-216, 2012 WL 6200384, at *7 (Ark. Ct. App. Dec. 12, 2012) (unpublished). Here, the crux of the District’s remaining claims is that it was damaged by the defective installation of the roof and ACI’s subsequent failure to repair or replace the roof under the terms of the warranty. We thus conclude that the breach of warranty, breach of contract, and negligence claims fall within the statute of repose. See Okla Homer Smith Furniture Mfg., 646 S.W.2d at 698 (applying the statute of repose to a negligence claim where the character of the claim was negligent performance of a construction contract).

The judgment is affirmed.

      . The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.

      . ACI filed a third-party complaint against SBC and Metal Building Components, Inc,, seeking apportionment of fault and contribution. The third-party complaint was dismissed as moot after the district court granted summary judgment in favor of ACI.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darrell Alan LUSSIER, Defendant-Appellant.
    No. 16-1260
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: January 6, 2017

      Deidre Yvonne Aanstad, Assistant U.S. Attorney, U.S. Attorney’s Office, Minneapolis, MN, for Plaintiff-Appellee.
    Mark D. Nyvold, Fridley, MN, for Defendant-Appellant.
    Darrell Alan Lussier, Pro Se.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   WOLLMAN, Circuit Judge.

Following a jury trial, Darrell Alan Lus-sier was convicted of three counts of kidnapping, in violation of 18 U.S.C. §§ 1151, 1153(a), and 1201(a)(2), and three counts of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). The district court sentenced Lussier to 360 months’ imprisonment. Lus-sier appeals, arguing that the district court erroneously instructed the jury regarding assault resulting in serious bodily injury, that the- court erred by conditionally admitting a prior assault conviction as impeachment evidencej and that the evidence was insufficient to convict him of kidnapping. We affirm.

I.

Because Lussier challenges the sufficiency of the evidence, “we will examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences.” United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). In February 2015, Gregory Lee Maxwell resided in a duplex house in the Back of Town area of the Red Lake Indian Reservation. Maxwell was prohibited from having drugs in the house. Lussier and his then-girlfriend Cristy Sumner resided with Maxwell for approximately one month. Maxwell believed that he was on good terms with Lussier and Sumner, who had “pretty much left on their own,” but according to Maxwell, Lussier and Sumner had brought drugs into the house, despite knowing that drugs were mot allowed on the premises.

On or about February 7, 2015, David Roy and Maxwell were drinking alcohol together at Maxwell’s house. When Maxwell left to buy more alcohol, he instructed Roy not to let Lussier and Sumner into the house. When Maxwell returned home a few hours later, David Roy, his sister Nancy Roy, Lussier, and Sumner were present at his house. Lussier proceeded to beat Maxwell, David Roy, and Nancy Roy. According to Maxwell, Lussier hit him, jumped on his stomach and side, wrapped a bootlace around his throat, and dragged him by the bootlace, choking him. When Maxwell tried to leave, Sumner blocked the door, and Lussier told him: “Tonight is the night. Tonight is the night. You gonna die tonight. You got one hour to live.” David Roy and Nancy Roy were also badly beaten by Lussier. Lussier and Sumner threw Maxwell, David Roy, and Nancy Roy through a trap door into the crawl space underneath the house. They then shut the trap door to the crawl space, which was cold and poorly lit. Maxwell and Nancy Roy attempted to find the trap door and push it open but were unable to do so. The three remained in the crawl space until Maxwell’s nephew, Lawrence King-bird, discovered them on the morning of February 9, 2015.

Maxwell, David Roy, and Nancy Roy all eventually received medical treatment. Maxwell suffered a hemopneumotho'rax, blood and air in the chest cavity that placed pressure on the heart and lungs and required the placement of a chest tube; several rib fractures, which likely caused the hemopneumothorax; spinous process fractures; a dissection of his carotid artery, which caused him to suffer a stroke; a deep cut on his chin that required sutures; and a traumatic brain. injury. Maxwell was hospitalized for approximately ten days and spent ten more days in rehabilitation. Nancy Roy suffered a sub-dural hematoma and multiple facial bone fractures, which required surgery. She was hospitalized for approximately ten days. David Roy suffered hemorrhaging in his brain and facial fractures. He spent more than one month in the hospital and approximately one month in a psychiatric facility.

II.

A.

Lussier first argues that the district court erred in instructing the jury on assault resulting in serious bodily-injury. Because Lussier did not object to these instructions, ' we review for plain error. United States v. Davis, 237 F.3d 942, 944 (8th Cir. 2001). “[A] conviction will be affirmed ‘if the instructions, taken as a whole, fairly and adequately convey the law applicable to the case.’ ” United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002) (quoting United States v. McDougal, 137 F.3d 547, 568 (8th Cir. 1998)).

Lussier contends that the' jury instruction did not' require the jury to find that Lussier committed an assault that resulted in serious bodily injury, as the statute requires. See 18 U.S.C. § 113(a)(6). The district court instructed the jury that the offense has two elements: that -the defendant committed an assault,- and .that the person assaulted suffered serious bodily injury. The court defined assault as “an intentional and voluntary attempt or threat to do injury to another person, when coupled with the present ability to do so that is sufficient to put the other person in fear of immediate bodily injury.” Lussier argues that because the instruction defined assault only as a threat or attempt to injure another, it did not require that the assault actually caused the serious bodily injury. He acknowledges that we have previously upheld convictions for assault under § 113 when the offense conduct involved a harmful or offensive touching. See Whitefeather, 275 F.3d at 742-43; Davis, 237 F.3d at 944-45. But he argues that in those cases there was a legal basis for the assault conviction because the jury instructions defined assault to include an actual harmful or offensive touching, whereas here the instructions defined assault to include only the threat or attempt to injure another.

The jury was required to find that Lus-sier committed an assault and that the person assaulted suffered serious bodily injury. When these instructions are read together, the most natural meaning is that Lussier’s assault caused the serious bodily injury and thus that the assault involved harmful touching. Accordingly, the instructions “taken as a whole, fairly and adequately convey[ed] the law applicable to the case,” Whitefeather, 275 F.3d at 743, and thus the jury had a sufficient legal and factual basis to convict Lussier of that charge.

Moreover, even if the assault instruction was erroneous, it was not plain error because it did not affect Lussier’s substantial rights. See United States v. Vanover, 630 F.3d 1108, 1119 (8th Cir. 2011) (per curiam). “[A]n error only affects substantial rights if it is prejudicial, ie., the defendant proves there is ‘a reasonable probability that, but for [the " error claimed], the result of the proceeding would have been different.’” Id. (second alteration in original) (quoting United States v. Dominguez-Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). The evidence presented at trial showed that Lussier physically beat the victims, not that he attempted or threatened to beat them. Had the jury instructions defined assault to include physical striking, the jury doubtless would still have convicted Lussier. Accordingly, because Lussier has not shown a reasonable probability that the result of the trial would have been different had the instruction been worded differently, he has not shown plain error.

B.

Lussier contends that the .district court erred in ruling that it would admit impeachment evidence of his prior conviction for assault resulting in serious bodily injury if Lussier testified, arguing that the ruling violated his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. By not testifying, Lussier failed to preserve this claim in light of the Supreme Court’s holding in Luce v. United States that “to raise and preserve for review the' claim of improper impeachment with a prior conviction, a defendant must testify.” 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); see also United States v. Johnson, 767 F.2d 1259, 1270 (8th Cir. 1985) (“Although Luce was decided under Fed.R.Evid. 609(a)(1), its logic applies with equal force to motions under Rule 404.”).

C.

Lastly, Lussier contends that the evidence was insufficient to convict him of kidnapping. We review de novo a challenge to the sufficiency of the evidence after, denial of a motion for acquittal, viewing the evidence in the light most favorable to the verdict. United States v. Ford, 726 F.3d 1028, 1033 (8th Cir. 2013). We draw all reasonable inferences in the government’s favor, and reverse only--if no reasonable jury could have found the defendant guilty beyond a reasonable doubt, Bordeaux, 84 F.3d at 1547-48. Under 18 U.S.C. § 1201(a), a defendant is guilty of a crime if the defendant “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person.” Kidnapping under § 1201(a) thus has two elements: that of seizing, confining, inveigling, decoying, kidnapping, abducting,' or carrying away; and holding for ransom or reward or otherwise. Chatwin v. United States, 326 U.S. 455, 459, 66 S.Ct. 233, 90 L.Ed. 198 (1946). As to the second element, “[t]he act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim.” Id. at 460, 66 S.Ct. 233.

Lussier argues that the evidence was insufficient because it did not show that he “held” the victims. The district court instructed the jury that Lussier was charged with holding each victim “for the purpose of preventing him or her from contacting law enforcement and preventing the discovery of Defendant’s crime.” Lussier contends that the evidence does not show he held or had the intention to hold the victims because the trap door to the crawl space was not locked or obstructed, and there is no evidence that Lussier remained at Maxwell’s house to prevent the victims from escaping.

We conclude that the evidence was sufficient to convict Lussier of kidnapping. Lussier beat the three victims, causing each of them significant injuries. He then threw them into the crawl space and closed the door, leaving them in a cold, dimly lit space where they would not be readily found. A jury could reasonably infer from these facts that Lussier intended to confine the injured, incapacitated victims-and prevent them from reporting the assault notwithstanding his failure to lock or obstruct the trap door or personally stand guard to prevent them from escaping. Cf. United States v. Stands, 105 F.3d 1565, 1576 (8th Cir. 1997) (holding that evidence was sufficient for kidnapping conviction where Defendant inveigled or decoyed the victim for the purpose of transportation to an isolated location where assault would not be interrupted).

The judgment is affirmed.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.