author: WOLLMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. John Michael RIEPE, Defendant-Appellant
    No. 16-1929
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: May 31, 2017

      Counsel who represented the appellant was Murray W. Bell of Bettendorf, IA.
    Counsel who represented the appellee was Melisa K. Zaehringer, AUSA, of Davenport, IA.
    Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
   WOLLMAN, Circuit Judge.

John Michael Riepe was convicted by a jury of one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). The district court sentenced him to 151 months’ imprisonment. He appeals, arguing that the evidence was insufficient to convict him of the charged offense and that the district court erred in admitting evidence of his prior bad acts under Federal Rule of Evidence 404(b). We affirm.

I. Background

On September 17, 2014, a letter addressed to “[MB], a very special student” was delivered to a high school in Betten-dorf, Iowa. MB was a female student who was then fifteen years old. The letter was signed “John Riepe” and listed no return address. It explained that Riepe had met MB at the Bettendorf YMCA some eight or nine months earlier but had not seen her since. He described his appearance and enclosed a picture of himself. The letter invited MB to contact Riepe, using the phone number set forth therein. The letter went on to state that Riepe might attend MB’s sporting events or otherwise “see [her] around.” MB recalled at trial that Riepe had approached her at the YMCA, that the two had exchanged small talk, and that she might have seen him there on one other occasion.

After MB showed the letter to her parents, they took it to the police. A check of the police department’s computer system revealed that Riepe was thirty years old and lived near a high school in Davenport, Iowa. With the' permission of MB and her parents, Detective Raehelle Kunde of the Scott County Sheriffs Office, a member of the Iowa Internet Crimes Against Children Task Force, began sending text messages to Riepe at the number he had provided, purporting to be MB.

Kunde and Riepe began exchanging text messages on September 22, 2014. After Kunde told Riepe that she had received his letter, Riepe suggested that the two exercise together again, stating that he “missed [his] [MB].” Riepe stated that “its nice to b able to talk to a rational girl for [once] and your so hot.” Kunde then complimented Riepe’s appearance and said, “U know wht is super cool? that u don’t treat me like a kid bcuz im 15!” Riepe asked when he could see her again and suggested that he attend her sporting events. Kunde responded that they could not meet at school or otherwise be seen together.

On September 26, Kunde texted Riepe, “hey! what u doin?” Riepe replied that he was watching television and thinking about MB. Riepe stated, “Gosh I love u lol !” (“lol” means “laugh out loud” in text-message speak). On September 27, Kunde declined Riepe’s offer to go “[h]aunted housing.” On September 28, Riepe texted that he was thinking of MB, that she made him smile, and that “U look so good walkn arnd the weight room.”

On September 29, Riepe texted “[MB] lol ! ; ) .” He told her that he had pulled a groin muscle while running. He asked how MB got home from school. Kunde replied that sometimes her mother picked her up and sometimes she rode with Mends. Riepe then asked, “Do u live far,” to which Kunde did not respond.

On October 3, Riepe texted, “Thinking of u :) hope you had a great week TGIF !” Riepe disclosed that he had driven past MB’s high school the previous day, and said, “i really like u as a fr[iend].... Or a gf [girlMend].” Kunde replied, “U would want me as yur gf??” Riepe responded, “Sure ... But seriously your great.” He asked if they could meet soon and attend a movie or go to a haunted house. Kunde responded that she would try. Riepe offered to give MB a ride home from school, but Kunde declined, noting that she did not want her mother or anyone else to see them together. Riepe stated, “I cant wait;) i was never cut lol,” which, he later explained, meant that he had not been circumcised. According to Riepe, this would result in “more pleasure for both.” He later told her, “U are the best [MB] ... I love you.” Kunde replied, “Love u 2.” Riepe stated, “Well we cn c eachother whnevr your ready.”

On October 10, Riepe texted, “[MB] :).” After Kunde replied that she had thought Riepe had forgotten about her, Riepe responded “I thnk abt u all the time.” Riepe’s October 16 text said that he was thinking of MB and that he did so daily. When asked about the nature of his thoughts, he replied, “sexually lol! Just u in general I cant wait to c u again.” Kunde asked, “U think about sex w me? :) .” Riepe answered, “Its possible lol !” Kunde then texted, “Ok :) I didn’t think u would wanna do that stuff w me lol.” Riepe replied, “I find u sexually attractive.”

Kunde told Riepe that she had not had sex before, but that she would do so if Riepe wanted to. Riepe replied, “Alright.” In response to her inquiry as to where they could have sex, Riepe said that they could do so at his house or a hotel room. When Kunde expressed concern that she would not know what to do, Riepe told her, “Lol ! U wld b fine ... we dnt have to do it right away we cn go c a movie first or whtever.” Kunde requested that Riepe use a condom because she did not want to risk becoming pregnant. Riepe asked MB not to get him into trouble. She replied that she would not. Riepe stated, “I feel rly horny rght nw.” After Kunde asked when he wanted to have sex, Riepe replied, “Its up to u ... ths wknd?” Kunde said that she could not meet over the weekend, but that she was available either that night or the following week. Riepe replied that they should meet the following week and that they should also visit haunted houses together. Riepe then discussed masturbation and described the size of his penis. He asked whether MB had seen, pornography and whether she enjoyed oral sex. He also stated, “technically your almost legal Rly 16” and that when they met, they could “do whtever haunted housing or.... We can go back to my place right away ; ) .” When Kunde asked if Riepe had had sex with girls her age before, he replied that she would be the first.

On October 21, Riepe asked if MB would like to visit haunted houses on Thursday or Friday, October 23 or 24. Kunde responded, “yea that b cool maybe like Thursday! :) .” Riepe then stated, “Perfect ... I cant wait to c u and give u a hug i havent felt a woman in so long : ( lol ! Seriously Though !”

On October 23, Riepe asked what Kunde’s plans were that night. She told him that she could not meet him that night. Riepe again told her that he thought about her every day. When Kunde asked in what way he thought about her, he replied, “U your attitude and how things are going and sexually ; ) .” Kunde asked,

“Really? That’s cool .. u still wanna do stuff w me sexual then?” Riepe answered, “Oh for sure if u do.” Riepe stated that he had wanted to have sex with MB the previous year, after their first conversation, but that he was not sure at the time if he should ask. In response to questions by Kunde, Riepe explained that they could have sex at his house and that she should ask her mother for permission to be gone for a few hours. Kunde again asked if Riepe would use a condom, and he said that he would. Riepe asked if MB wanted to meet him the following day. Kunde said that she wanted to and would ask her mother if she could go out with friends.

On October 24, Riepe asked Kunde how her day was going. She responded that she could not meet with him that night because her grandmother was visiting, but stated that she could meet with him the following week. When Riepe asked if she was still single, she replied that she thought Riepe was her boyfriend. Riepe told her that he was. He stated that he wanted to cuddle with her and was looking forward to the following week.

On October 25, Riepe texted Kunde that he was “deprived” because he had gone his whole life without talking to a girl like her, saying that, “i cld sure use u rght abt nw ; ) .” After Kunde asked what he meant, he said “Lol ! from like 5 a.m. till nw [at 10:41 AM] sometimes i gt very hard ; ) .” Kunde replied, “Oh!!! Lol,” and then, “U like mean to b w me and do it.” Riepe replied, “Perhaps,” then, “Lol ! Yeah thats wht I meant :) ,” and then, “Anal.” Kunde asked, “Really? Would that hurt tho?” Riepe answered, “Lol! Maybe u wld have to take it slow ... do u evn like it.” Kunde replied, “Not sure guess I could try.” Riepe then stated, “I love hw u talk to me i am so horny rght nw.” Kunde asked, “Next week right?” and Riepe replied, ‘Yes.” He then asked her to touch herself and boasted about the strength of his sperm, saying that he would have to wear a condom to prevent her from becoming pregnant. .

On October 27, Riepe asked if Kunde still wanted to visit a haunted house with him later that week. She stated that she would ask her mother if she could go out on Thursday, October 30. On October 28, Kunde told Riepe that her mother had said she could go to a friend’s house on Thursday. Riepe said they needed to spend some time together and asked her to give him a shoulder massage.

On October 29, Riepe texted to confirm their plans for Thursday or Friday. Kunde responded that she planned to meet him on Thursday. Riepe stated that he was nervous about their meeting “due to lack of companionship,” because he had not had a girlfriend in a long time. Kunde asked him, “u don’t wanna?” He replied, “No i do will cme back to my house first.” He told her, “We cn watch sme scary movies before we go haunted housing lol ! Amd u knw : ) if u want.” Kunde replied, “yea i still wanna if u do.” She asked if Riepe had condoms. They planned to meet near a church the next day.

At 9:18 A.M., October 30, Kunde asked if Riepe had received her message regarding the church where they planned to-meet. At11:35 P.M., Riepe replied that he was out of town but would be home soon. Kunde asked, “Ok do u still wanna do it. then or no?” Riepe replied, ‘Yea do u ? I thnk hauntd houses dnt open till like 7.” He stated, “Im actly rly hard rght nw lol!” and told her, “lol! Its up to u we cn just go out later if u wnt we dnt have to unless our hormones take over ;).” They agreed that Riepe would pick her up at 5:00 P.M, with Riepe later stating that he might not arrive at the meeting place until 5:30 and that he would be driving a red Toyota. At 5:34 P.M., Riepe told her that he was on his way and asked her to look up the locations of haunted houses. Kunde asked, “We still goin yur house first,” and Riepe answered, “Yes.” At 5:58 P.M., Riepe told Kunde that he had arrived at the church parking lot. Kunde told him she would walk over to meet him and that she would be wearing a pink sweatshirt.

After officers observed Riepe drive to the agreed-upon location and park, they arrested him. They found no condoms on Riepe’s person, in his vehicle, or in his house.

The district court denied Riepe’s pretrial motion to exclude evidence that Riepe had previously approached two other teenage girls and instructed the jury to consider this evidence only for the purpose of establishing Riepe’s plan, knowledge, and preparation regarding his contact with MB and not for the purpose of establishing his propensity to commit similar acts.

AM testified that in 2013 Riepe had approached her at the grocery store where she worked as a cashier. Riepe asked her her age and did not believe her when she said she was seventeen, so she showed him the birth date on her driver’s license. A few months later, Riepe went to AM’s register to buy one item, which AM found odd because there were two customers ahead of him with large orders. After making his purchase, he told AM, “Well, I haven’t seen you in a while.” Five or ten minutes later, Riepe again waited in AM’s checkout line to purchase a single item. He asked AM when she would be done with work. She falsely stated that her shift ended shortly, because she did not want Riepe to continue coming through her checkout line. After AM returned from a break, she was told that a man had been looking for her. That same evening, Riepe again entered the store and went through AM’s checkout line. AM told him that he was making her uncomfortable, and he asked to speak to her manager, who spoke with Riepe in a different room. AM subsequently filed a police report about Riepe. Two or three weeks later, AM saw Riepe outside her high school on school property and called the police.

RV testified that in October 2013, when she was a seventeen-year-old high school senior, she received a friend request from Riepe on a social network website. She accepted the request because it appeared that she and Riepe had mutual friends on the website. She testified that Riepe might have learned that she was a cheerleader for her school’s football team from a picture on her social network web page. Riepe sent RV a private message stating something to the effect of: “Thank you for accepting my friend request. I’m glad not everyone’s a stranger. I’m excited to go see you cheer. I’ll be at the Assumption versus Central game. I’ll come over to the Central side at half time. You’ll notice me. I seem to stand out in a crowd.” Recognizing that Riepe’s web-page picture showed that he was older than high school age, RV responded, “I don’t know you. Please don’t contact me.” A friend of RV saw Riepe at the game and told RVs parents, who contacted the police. Police officers escorted Riepe out of the stadium. RV thereafter saw Riepe looking in from outside the stadium’s gate. Riepe subsequently came to RV’s high school, purportedly to discuss the interaction at the football game, following which he was banned from all Davenport School District properties, including the attached YMCA buildings. RV also testified that Riepe called her home phone on two occasions.

II. Discussion

A. Sufficiency of the Evidence

“We review the sufficiency of the evidence supporting a conviction de novo,

‘viewing the evidence most favorably to the verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences.’ ” United States v. Muhlenbruch, 634 F.3d 987, 1000 (8th Cir. 2011) (quoting United States v. Spencer, 592 F.3d 866, 876 (8th Cir. 2010)). “We must uphold a jury’s verdict if ‘there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.’” Id. To convict a defendant of enticement of a minor, the government must prove beyond a reasonable doubt that the defendant: “(1) used a facility of interstate commerce, such as the internet or telephone system; (2) knowingly used the facility of interstate commerce with intent to persuade or entice a person to engage in illegal sexual activity; and (3) believed that the person he sought to persuade or entice was under the age of eighteen.” United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (quoting United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010)). “Attempt requires an intent to commit the predicate offense and conduct that is a substantial step towards the crime’s commission.” Id.

Riepe argues that the evidence was insufficient for the jury to find that he possessed the requisite intent to persuade MB to engage in sexual activity. He contends that the text messages described above demonstrate that he was interested in spending time with MB, but that it was Kunde who pursued the topic of sex, while Riepe suggested other activities, such as visiting haunted houses. We disagree. Riepe persistently pursued MB, repeatedly told her how attractive she was, and told her that he loved her and that she was his girlfriend. Riepe was first to broach the topic of sex, telling MB that he had not been circumcised and that this would produce “more pleasure for both.” He repeatedly told her when he felt sexually aroused, he discussed specific sex acts that he would like to perform with her, and he stated that they could have sex at his house. He ultimately arranged to meet her, arrived at the specified location, and confirmed shortly before the meeting that they would go back to his house.

This evidence was more than sufficient to support the jury’s conclusion that Riepe intended to persuade MB to have sex with him. See id. at 931 (“In attempted enticement of a minor cases, the defendant’s intent can be inferred when the defendant has online conversations of a sexual nature with a minor.” (quoting Young, 613 F.3d at 742)); see also id. (holding that the requisite intent was established where the defendant “engaged in sexually explicit chats, described the sexual acts he wanted to perform, placed a phone call to the putative victim, arranged for an in-person meeting at a motel, carried a note with [the putative victim’s] name and contact information, and traveled to the hotel, carrying condoms and recording devices”). Moreover, even if some of Riepe’s messages indicated that he did not intend to have sex with MB immediately after their meeting, the evidence would still be sufficient to demonstrate his intent despite such a willingness to delay the sexual activity.

Riepe argues that his failure to purchase condoms despite having agreed to Kunde’s multiple requests that he use one indicates his lack of intent to engage in sex with MB. Kunde testified that multiple stores near the church sold condoms, and thus Riepe’s nonpossession of condoms at the moment of his arrest was a matter for the jury to take into consideration in determining whether he had such intent.

B. Rule 404(b) Evidence

We review the admission of evidence under Rule 404(b) for abuse of discretion. United States v. Mora, 81 F.3d 781, 782 (8th Cir. 1996). Rule 404(b) provides that “[ejvidence 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,” but '“[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evidence is admissible under Rule 404(b) if it satisfies the following requirements:

(1) the evidence of the bad act or other crime is relevant to a material issue raised at trial; (2) the bad act or crime is similar in kind and reasonably close in time to the crime charged; (3) there is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and (4) the potential prejudice of the evidence does not substantially outweigh its probative value.

Mora, 81 F.3d at 783; see also Fed. R. Evid. 403 (allowing the court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of,” inter alia, “unfair prejudice”). “This Court has consistently construed Rule 404(b) as a rule of inclusion, precluding only evidence that is relevant solely to the defendant’s character.” United States v. Aranda, 963 F.2d 211, 215 (8th Cir. 1992). We will reverse the admission of evidence under Rule 404(b) only when it “clearly has no bearing upon any of the issues involved.” Id. (citation omitted).

The district court recognized that “404(b) evidence is always a difficult one, I think, for both sides.” It continued,

In this case I have done the analysis that is recommended by the Eighth Circuit and I do find that evidence regarding Defendant’s contacts with A.M. and R.V. and his presence at the various locations from which he’d been banned that were frequented by minors ... slightly more than a year before this charged conduct is relevant to show his planning, his knowledge, his preparation with respect to the contact that later happens with M.B.

The district court went on to say, “I do find this evidence is similar in kind and not overly remote to the crime charged; that it appears to be supported by sufficient evidence, ... and I find that it does have a higher probative value than prejudicial effect. So I will allow the 404(b) evidence as outlined by the Government ... for the purpose of showing Defendant’s plan, knowledge and preparation.”

Riepe argues that the evidence of his contacts with AM and RV did not relate to any element of the charged offense because it did not show that he broached the topic of sex with either girl. True enough, but the fact that Riepe contacted these two teenage girls, unbidden, and continued to do so over their objections, gives rise to an inference that his intent in contacting them was to persuade them to become involved in other than a platonic relationship with him. Thus, that evidence was relevant to show that Riepe’s intent in contacting MB was to persuade her to engage in sexual activity, and it was unquestionably relevant to his planning, his knowledge, and his preparation for his later contact with her. Cf. United States v. Hensley, 574 F.3d 384, 388-90 (7th Cir. 2009) (holding that evidence of defendant’s prior online sexual conversations with a minor was relevant to rebut the defendant’s claim that he did not believe the putative victim to be a minor); United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006) (holding that images of child pornography on defendant’s computer were relevant to his intent to entice a minor to engage m sexual activity). We thus conclude that the district court did not abuse its discretion in admitting the evidence for those purposes. Likewise, we conclude that those acts were sufficiently similar in kind to the conduct involving MB. See Mora, 81 F.3d at 783 (“[T]he prior acts need not be duplicates of the one for which the defendant is now being tried, because the admissibility of other crimes evidence depends on the nature and purpose of the evidence.” (internal quotation marks and citations omitted)).

We reject Riepe’s argument that the evidence should have been excluded under Rule 403 because its probative value was outweighed by a danger of unfair prejudice. “Reversal is appropriate only if the trial court failed to engage in the required balancing process or when it is impossible to determine from the record whether it did or not. It is sufficient if we can discern from the record that the trial court performed the requisite balancing.” United States v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008) (citation omitted). As set forth above, it is clear from the record that the district court engaged in the Rule 403 balancing analysis and found that the evidence had higher probative value than prejudicial effect. Moreover, the jury was correctly instructed to consider the evidence only as it related to Riepe’s plan, knowledge, and preparation. See United States v. Lindsey, 702 F.3d 1092, 1099 (8th Cir. 2013) (“The presence of a limiting instruction diminishes the danger of any unfair prejudice arising from the admission of other acts.” (quoting United States v. Halk, 634 F.3d 482, 488 (8th Cir. 2011))).

In any event, any error in admitting the evidence regarding AM and RV was harmless. “An evidentiary error is harmless ‘if, after reviewing the entire record, we determine that the substantial rights of the defendant were unaffected, and that the error did not influence or had only a slight influence on the verdict.’ ” United States v. Crenshaw, 359 F.3d 977, 1003-04 (8th Cir. 2004) (quoting United States v. Carroll, 207 F.3d 465, 470 (8th Cir. 2000)). The limiting instruction diminished the danger of unfair prejudice. Moreover, the evidence of Riepe’s intent to have sex with MB was overwhelming. See United States v. Turner, 781 F.3d 374, 391 (8th Cir. 2015) (“Given the extent and nature of the evidence presented against the defendants, however, if there was any error in the admission of this [prior-convictions] evidence, that error was harmless.”); United States v. Tarnow, 705 F.3d 809, 815 (8th Cir. 2013) (holding that any error in admitting evidence of physical abuse of defendant’s former wife was harmless “in light of the overwhelming evidence against [defendant] and the limiting instruction given to the jury”). Accordingly, we conclude that the introduction of the evidence regarding AM and RV did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Turner, 781 F.3d at 391 (quoting United States v. Mejia-Uribe, 75 F.3d 395, 399 (8th Cir. 1996)).

The judgment is affirmed.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.

      . Kunde used a service that allowed her to exchange messages with Riepe from either her computer or a cell phone and which made the messages appear to come from a real phone number. In the following summary of the messages exchanged between Kunde and Riepe, we quote the messages as they originally appeared, including misspellings and abbreviations. For simplicity's sake, we refer to Kunde as the person sending and receiving text messages, but in all of the messages described below she purported to be MB.


source: Caselaw Access Project

author: SMITH, Circuit Judge.

license: Public Domain

text:
    3M COMPANY, a Delaware corporation; 3M Employees Welfare Benefits Associates, a Minnesota corporation; Employee Retirement Income Plan of Minnesota Mining and Manufacturing Company, a citizen of New York, Plaintiffs-Appellants v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation; Great American Insurance Company, an Ohio corporation; St. Paul Fire & Marine Insurance Company, a Connecticut corporation; Federal Insurance Company, a New Jersey corporation; Zurich American Insurance Company, a New York corporation, Defendants-Appellees
    No. 15-3495
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 18, 2016
    Filed: May 31, 2017

      Counsel who presented argument on behalf of the appellants was James R. Murray, of Washington, DC. The following attorney(s) also appeared on the appellant brief; Christopher Yetka, Thomas C. Miel-enhausen, and Thomas A. Boardman, of Minneapolis, MN, Ann Marie Hanrahan, of Saint Paul, MN., and Jared Zola and Omid Safa, of Washington, DC.
    Counsel who presented argument on behalf of the appellees was David P. Pearson, of Minneapolis, MN. The following attorney(s) also appeared on the appellees’ joint brief; Thomas H. Boyd, Brent A. Lorentz, and Reid Golden, of Minneapolis, MN, for Appellee National Union Fire Insurance Company of Pittsburgh, PA.—Joel T. Wie-gert, of Minneapolis, MN, for Appellee St. Paul Fire & Marine Insurance Company.—Eric J. Magnuson, Richard B. Allyn, and Lisa L. Beane, of Minneapolis, MN, and Jeanne H. Unger, of Minneapolis, MN, for Appellee Federal Insurance Co.—Peter G. Van Bergen and Robyn K. Johnson, of Minneapolis, MN, for Appellee Zurich American Insurance Company.—Arthur N. Lambert and M. Diane Duszak, of New York, NY, for Appellee St. Paul Fire & Marine Insurance Company.—Nicholas A. Dolejsi and Patricia St. Peter, of Minneapolis, MN, and Stephen N. Dratch and Martin L. Fenik, of Livingston, NJ, for Appellee Great American Insurance Company.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   SMITH, Circuit Judge.

3M Company (“3M”) incurred losses on a number of investments due to fraud perpetrated by its own investment advis-ors. 3M purchased a “Blanket Crime Policy” (“the Policy”) issued by National Union Fire Insurance Company of Pittsburgh, PA, Great American Insurance Company, St. Paul Fire & Marine Insur-anee Company, Federal Insurance Company, and Zurich American Insurance Company (collectively, “the Insurers”). 3M claimed that it earned returns on investments that were subsequently lost due to its advisors’ malfeasance. 3M filed an insurance claim to recover the loss of the returns. The Insurers denied the claim, and 3M filed suit in Minnesota state court, seeking a declaration that the Policy covered 3M’s losses resulting from the theft of 3M’s alleged earnings. The Insurers removed the case to federal court and filed for summary judgment. 3M filed a cross-motion for partial summary judgment. The district court granted the Insurers’ motion and denied 3M’s motion, holding that the stolen earnings are not covered under 3M’s insurance policy because “3M does not meet the conditions of coverage set forth in the ‘ownership’ provision” of the Policy. We affirm.

I. Background,

In 1999, 3M began investing its employee-benefit-plan assets in WG Trading Company LP (“WG Trading”). 3M structured this investment as a limited-partnership interest in WG Trading. Stephen Walsh and Paul Greenwood founded and served as general managing partners of WG Trading and two related entities, Westridge Capital Management, Inc. (‘Westridge”) and WG Trading Investors, LP (“WG Investors”). Westridge provided marketing services for WG Trading, and WG Investors was a limited partner in WG Trading. WG Trading was regulated and audited, but WG Investors was not.

Eventually, 3M learned that Walsh and Greenwood fraudulently diverted hundreds of millions of dollars from WG Trading and WG Investors. Walsh and Greenwood ultimately pleaded guilty to federal criminal charges. The United States Commodity Futures Trading Commission and the Securities and Exchange Commission initiated civil lawsuits against Walsh, Greenwood, Westridge, WG Trading, WG Investors, and other related entities (“the defendants”). The United States District Court for the Southern District of New York seized the defendants’ assets and placed the assets into receivership. The receiver distributed the assets among the defrauded claimants, including 3M, who recovered the capital contribution that it invested in WG Trading. Although 3M recovered its capital contribution, 3M contends that it should also be entitled to recover lost earnings from the investments that WG Trading made in legitimate investment products that produced legitimate earnings.

3M’s employee-benefit plans are insured under Endorsement 3 of the Policy (the “ERISA Rider” provision). 3M sought coverage for the stolen earnings under the “Employee Dishonesty” provision, which (as amended by Endorsement 10) states:

1. Insuring Agreement 1, EMPLOYEE DISHONESTY, of the attached policy is hereby deleted in its entirety and replaced with the following:
The [Insurers] shall be liable for direct losses of Money, Securities or other property caused by Theft or forgery by any Employee of any Insured acting alone or in collusion with others.
2. Section 3., DEFINITIONS, is hereby amended to include the following:
Theft means the unlawful taking of Money, Securities or other property to the deprivation of the Insured.
3. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, limitations or provisions of the attached policy, except as above stated.
ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED.

Section 5 “OWNERSHIP OF PROPERTY; INTERESTS COVERED” defines “insured property,” and (as amended by Endorsement 8) states:

The insured property may be owned by the Insured, or held by the Insured in any capacity whether or not the Insured is legally liable, or may be property as respects, which the Insured is legally liable [ (“ownership requirement of Endorsement 8”) ]. Client property may be owned by the Client, held by the Client in any capacity whether or not the Client is legally liable, or may be property as respects which the Client is legally liable; provided the Insured is legally liable for such property and it is included in the. Insured’s proof of loss, in which event the third paragraph of Section 8 is applicable.

3M argued that the ownership requirement of Endorsement 8 does not apply to coverage for theft of other property under the Employee Dishonesty provision because the ownership requirement only applies to insured property. Alternatively, 3M contended that it “owned” the lost earnings because it had a right to possess the earnings and courts interpret the ownership requirement broadly.

The district court concluded that the ownership requirement of Endorsement 8 “limits the coverage available under the ‘Employee Dishonesty’ provision.” The court rejected 3M’s claim of ownership, holding that 3M’s limited-partnership interest in WG Trading did not confer ownership over the lost earnings because “[u]p until the point at which earnings were distributed to the partners, the earnings of WG Trading were owned by WG Trading, and not by 3M or any of the other limited partners.” 3M appeals, arguing that coverage under the Employee Dishonesty provision is not limited by an ownership requirement.

II. Discussion

“Insurance disputes are particularly well suited for summary judgment because the proper construction of an insurance contract is always an issue of law for the court.” Modern Equip. Co. v. Cont’l W. Ins. Co., 355 F.3d 1125, 1128 (8th Cir. 2004). However, the rules of construction are inapplicable if an insurance contract is unambiguous. Id. “When the words of an insurance contract are unambiguous, the intent of the parties is determined by the language of the policy itself. If the terms of an insurance contract are clear, they are to be accorded their plain and ordinary meaning.” Id. (citation omitted).

“Under Minnesota law, the initial burden of establishing coverage rests with the insured.” Grinnell Mut. Reinsurance Co. v. Villanueva, 798 F.3d 1146, 1148 (8th Cir. 2015) (citing Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn. 2013)). “When an insured establishes coverage, the burden shifts to the insurer to prove the applicability of an exclusion.” Id. (citing Wolters, 831 N.W.2d at 636). “ ‘[U]nambiguous words [are] given their plain, ordinary, and popular meaning.’ If the words are ambiguous, however, they are to be ‘construed against the insurer according to the reasonable expectations of the insured.’” Ritrama, Inc. v. HDI-Gerling Am. Ins. Co., 796 F.3d 962, 966 (8th Cir. 2015) (second alteration in original) (citation omitted) (quoting Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 575 (Minn. 2009)).

“An ambiguity exists when a word or phrase in an insurance contract is reasonably subject to more than one interpretation.” Mwt. Serv. Cas. Ins. Co. v. Wilson Twp., 603 N.W.2d 151, 153 (Minn. Ct. App. 1999). The absence of a definition in an insurance policy does not per se render a term ambiguous. See League of Minn. Cities Ins. Trust v. City of Coon Rapids, 446 N.W.2d 419, 422 (Minn. Ct. App. 1989); see also Hawkeye-Sec. Ins. Co. v. Bunch, 643 F.3d 646, 652 (8th Cir. 2011) (“We are also not persuaded that the lack of a definition of the word ‘vehicle’ in the uninsured and underinsured motorists sections renders them ambiguous.”). “[W]here a term is not defined in an insurance policy but possesses a clear legal or common meaning that may be supplied by a court, the contract is not ambiguous.” Genesis Ins. Co. v. City of Council Bluffs, 677 F.3d 806, 815 (8th Cir. 2012) (internal quotation marks omitted). “In deciding whether an ambiguity truly exists, however, a policy must be read as a whole.” Mut. Serv., 603 N.W.2d at 153. “The language must be considered within its context, and with common sense.” Id. “If a phrase is subject to two interpretations, one reasonable and the other unreasonable in the context of the policy, the reasonable construction will control and no ambiguity exists.” Id.

Id. at 969.

The Employee Dishonesty provision covers “direct losses of Money, Securities or other property caused by Theft or forgery.” Although the terms “Money” and “Securities” are defined in the Policy, the Policy fails to define “other property” (or even “property”). Thus, the “clear legal or common meaning ... may be supplied by [the] court.” See Ritrama, 796 F.3d at 969 (quoting Genesis Ins. Co., 677 F.3d at 815).

“Property” is defined “[e]ollectively, [as] the rights in a valued resource such as land, chattel, or an intangible. It is common to describe property as a ‘bundle of rights.’ These rights include the right to possess and use, the right to exclude, and the right to transfer.” Property, Black’s Law Dictionary (10th ed. 2014). Property and ownership are fundamentally inseparable under the law:

“ ‘Property (from the Lat. proprius, meaning belonging to one; one’s own) signifies, in a strict sense, one’s exclusive right of ownership of a thing.’ In their strict meanings, therefore, the right of ownership and property are synonymous, each term signifying a bundle or collection of rights. In a secondary meaning, however, the term ‘property’ is applied to every kind of valuable right and interest that can be made the subject of ownership, and in this sense, since it is the subject of ownership, land is called property. The term, therefore, includes both real and personal property, and it is often thus expressly defined in statutes. The word ‘property,’ however, may have different meanings, under different circumstances, according to the manner in which it is used.”

Id. (quoting William L. Burdick, Handbook of the Law of Real Property 2-3 (1914)). Thus, the term other property in the Employee Dishonesty provision necessarily denotes some form of ownership.

3M claims ownership of the earnings through its limited-partnership interest in WG Trading, which entitles 3M to a share of the profits of the limited partnership and the right to receive distributions of partnership assets. 3M contends that by using the term other property instead of insured property, coverage under the Employee Dishonesty provision does not require that such other property be insured property. Thus, 3M argues that coverage for other property under the Employee Dishonesty provision is not subject to the ownership requirement set forth in Endorsement 8 (which defines “insured property” as property “owned by [3M,] or held by [3M] in any capacity whether or not [3M] is legally liable, or may be property as respects, which [3M] is legally liable”). 3M reasons that because the Employee Dishonesty provision does not specify whose other property is covered, it must therefore cover 3M’s share of the profits of the limited partnership and the right to receive distributions of partnership assets. This is unreasonable.

Other property “must be considered within its context, and with common sense. If a phrase is subject to two interpretations, one reasonable and the other unreasonable in the context of the policy, the reasonable construction will control and no ambiguity exists.” Ritrama, 796 F.3d at 969 (citation omitted) (quoting Mut. Serv., 603 N.W.2d at 153). Although the Employee Dishonesty provision does not expressly state whose other property is covered, it is entirely unreasonable to interpret the provision as extending coverage under the Policy to other property that is not insured property. Interpreting the Employee Dishonesty provision as extending to coverage to other property that is not insured property runs afoul of Endorsement 8, which details the property and interests that are covered under the Policy. Thus, when viewed within its context and with common sense, the only reasonable construction of the Employee Dishonesty provision limits coverage under the provision to insured property. Thus, we determine that the ownership requirement of Endorsement 8, which defines insured property, applies to the Employee Dishonesty provision.

Because we determine that the ownership requirement of Endorsement 8 applies to the Employee Dishonesty provision, we quickly address 3M’s alternative arguments. First, 3M argues its limited-partnership interest in WG Trading satisfies the ownership requirement of Endorsement 8. However, up until the point at which the earnings were distributed to the partners, the stolen earnings were property of WG Trading—not property of 3M. It is fundamental that property acquired with partnership funds is partnership property, and individual partners do not own partnership assets until the winding up of the partnership. See Brindle v. Hiatt, 42 F.2d 212, 213 (8th Cir. 1930) (“There can be no question that in partnership property there is no individual ownership until, at least, the partnership has ceased activity and all of the debts have been paid so that there remains nothing but a division of the property.”); see also In re Bernard L. Madoff Inv. Secs. LLC, 708 F.3d 422, 427 (2d Cir. 2013) (noting that, under Delaware law, “the limited partnership interests sold by the Feeder Funds to investors ... did not confer an ownership interest in money that the Feeder Funds ultimately invested in BLMIS”); Cyrus v. Cyrus, 242 Minn. 180, 64 N.W.2d 538, 543 (1954) (“Unless the contrary intention appears, property acquired with partnership funds is partnership property.” (quoting Minn. Stat. Ann. § 323.07)). Thus, 3M does not own the stolen earnings and cannot Seek coverage for the earnings under the Policy.

Further, 3M claims it satisfies the ownership requirement because it “had ERISA fiduciary duties regarding the earnings such that the earnings were ‘property,’ and property ‘as respects [to] which [3M] is legally liable’ under Endorsement 8.” (Alterations in original.) It also claims that “3M’s limited partnership interests in WG Trading are ‘equity interests’ and ... ‘asset[s]’ under the governing ERISA.regulation.” However, the ERISA regulation, 29 C.F.R. § 2510.3-101, does not alter general commercial property rights, but merely defines the nature and scope of the fiduciary duties owed to plan participants. See Final Regulation Relating to the Definition of Plan Assets, 51 Fed. Reg. 41262, 41262-63 (Nov. 13, 1986); Sec. Inv’r Prot. Corp. v. Jacqueline Green Rollover Account, Nos. 12 Civ. 1039 (DLC), 12 Civ. 1139 (DLC), 2012 WL 3042986, at *8-9 (S.D.N.Y. July 25, 2012). Thus, this does not affect the ownership nature of WG Trading’s partnership assets.

III. Conclusion

Finding that 3M’s purported interest in the lost earnings does not satisfy the ownership requirement of Endorsement 8, we affirm the judgment of the district court and deny 3M’s motion to strike portions of the Insurers’ appellee brief as moot.

      . The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.

      . The Insurers removed this action to federal court under 28 U.S.C. § 1352, and the parties have treated Minnesota law as controlling. Thus, we will apply Minnesota law in interpreting this insurance contract. See Ohio Sav. Bank v. Progressive Cas. Ins. Co., 521 F.3d 960, 962 (8th Cir. 2008) (“Like the district court, we will ignore what might be a complex choice of law analysis because the parties have not identified a relevant state law conflict and have relied primarily on Minnesota and Ohio law; ignoring the issue in these circumstances is consistent with Minnesota choice-of-law principles.”).

      . 3M asserts that the lost earnings qualify as property “owned by [3M] ” or property for “which [3M] is legally liable.” Because 3M does not argue that the lost earnings were property “held by [3M] in any capacity,” we need not address whether the lost earnings could satisfy this alternative form of insured property described in Endorsement 8.