text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony D. COOK, Defendant-Appellant.
    No. 15-2529
    United States Court of Appeals, Seventh Circuit.
    Argued December 8, 2016
    Decided March 7, 2017

      Keith S. Alexander, Attorney, Office of the United States Attorney, Milwaukee, WI, Plaintiff-Appellee.
    James A. Walrath, Attorney, Milwaukee, WI, for Defendant-Appellant.
    Before MANION, KANNE, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

Anthony Cook participated in an armed robbery of a Community Financial Service Center (“CFSC”) in Milwaukee. He pled guilty to obstruction of commerce by robbery and to brandishing a firearm during the commission of a crime of violence. Over Cook’s objection, the district court applied two enhancements to his sentence: a 2-level increase for causing a loss to a financial institution and a 2-level increase for physically restraining a person during a robbery. On appeal, Cook argues that the district court erred in applying those enhancements. We disagree, so we affirm.

I. BACKGROUND

On January 6, 2013, Cook and three others — Coleman Ferrell, Claudene Rutledge, and Vernell Staten — robbed a CFSC in Milwaukee. Ferrell entered the CFSC and tackled the security guard to the ground. Ferrell drew his firearm and pointed it at the guard’s face, threatening to shoot. Cook then entered wearing a mask and approached the teller, Rutledge, who was in on the robbery. Rutledge promptly opened the door to the safe, and Cook took approximately $337,100 in cash. He placed the cash in a plastic garbage bag.' Cook and Ferrell then fled the scene with the cash in a getaway vehicle driven by Staten.

On December 2, 2014, a grand jury returned a three-count indictment against Cook. Count one charged him with conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2. Count two charged him with obstruction of commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2 (“Hobbs Act Robbery”). And count three charged him with brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Cook and the government entered into a plea agreement, in which Cook agreed to plead guilty to counts two and three, and the government agreed to dismiss count one.

The plea agreement also included a recommended sentencing guidelines calculation for count two. Cook and the government agreed that the base offense level for the offense charged in count two was 20 under U.S.S.G. § 2133.1(a). They further agreed to recommend a 3-level increase under § 2B3.1(b)(7)(D) for a loss of over $250,000 and a 3-level decrease under §§ 3El;l(a) and (b) for acceptance of responsibility. The government also recommended two additional enhancements: (1) a 2-level increase under § 2133.1(b)(1) for causing a loss to a financial institution and (2) a 2-level increase under § 2B3.1(b)(4)(B) for physically restraining a person during a robbery. Both of these additional enhancements were included in the plea agreement’s calculation, but with the disclaimer that Cook “may oppose the government’s recommendation” as to these enhancements. (R. 35 at ¶¶ 17, 18.) The plea agreement thus recommended an adjusted total offense level of 24 for count two.

The probation office then completed a presentence investigation report (“PSR”), which included its own guidelines calculation. The probation office’s calculation mirrored the calculation in the plea agreement, recommending an adjusted total offense level of 24 for count two.

At the sentencing hearing, Cook objected to the two additional enhancements included in the plea agreement and the PSR. First, he argued that the CFSC was not a financial institution under § 2B3.1(b)(l). Second, he argued that imposing the physical-restraint enhancement under § 2B3.1(b)(4)(B) would result in impermissible double counting of the same relevant conduct. The district court rejected each of these arguments and applied the guidelines calculation included in the plea agreement and the PSR. Based on Cook’s criminal history category of IV and his adjusted offense level of 24, the district court determined that the recommended guidelines range for count two was 77 to 96 months. The court further determined that count three carried a mandatory minimum of 84 months’ imprisonment. The court sentenced Cook to a below-guidelines sentence of 60 months on count two and 84 months on count three, to be served consecutively. Additionally, the court imposed a five-year term of supervised release and ordered that Cook pay $337,100 in restitution.

II. Analysis

On appeal, Cook argues that the district court improperly applied the financial-institution and physical-restraint enhancements. We review de novo the district court’s application of the sentencing guidelines. United States v. Lewis, 842 F.3d 467, 476 (7th Cir. 2016). We begin with Cook’s arguments regarding the financial-institution enhancement under § 2B3.1(b)(l) and conclude with his argu-merits regarding the physical-restraint enhancement under § 2B3.1(b)(4)(B).

A. Financial-Institution Enhancement

Cook first argues that the district court erred by applying an enhancement under § 2B3.1(b)(l), which provides for a 2-level enhancement “[i]f the property of a financial institution or post office was taken.” He first contends that the CFSC is not a financial institution. Alternatively, he argues that the term “financial institution” is unconstitutionally vague. We begin with his first argument.

When interpreting a specific provision of the sentencing guidelines, we “begin with the text of the provision and the plain, meaning of the words in the text.” United States v. Hill, 645 F.3d 900, 907-08 (7th Cir. 2011) (quoting United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005)). As part of this analysis, we also consider the guideline’s application notes, which “are considered part of the guidelines rather than commentary on the guidelines.” United States v. Rabiu, 721 F.3d 467, 471 (7th Cir. 2013). “[A]n application note has ‘controlling weight unless it is plainly erroneous or inconsistent with’ the text of the guideline it interprets.” United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (quoting Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). The application notes to § 2B3.1, however, are silent as to the meaning of financial institution.

The government argues that the application notes to a different section— U.S.S.G. § 2B1.1, a separate guideline that permits an enhancement for larceny or other theft involving fraud or deceit of a financial institution — are instructive here. Those application notes define “financial institution” in relevant part as “any state or foreign bank, trust company, credit union, insurance company, investment company, mutual fund, savings (building and loan) association, union or employee pension fund ... and any similar entity.” U.S.S.G. § 2B1.1 cmt. n.l. But because those application notes pertain to a different guideline, they are not binding on our interpretation of § 2B3.1. Our plain meaning analysis is thus limited to the text of that guideline.

Black’s Law Dictionary broadly defines “financial institution” as “[a] business, organization, or other entity that manages money, credit, or capital, such as a bank, credit union, savings-and-loan association, securities broker or dealer, pawnbroker, or investment company.” Black’s Law Dictionary, 663 (8th ed. 2004). The CFSC seems to fit this definition. According to its website, “CFSC is a third-generation, family-owned check cashing company with 175 + locations nationwide.” CFSC, About, https://www.cfsc.com/about/. Moreover, it offers its customers a variety of financial services including check cashing, money transfers, money orders, bill payments, and short-term loans. (R. 53-2.) In fact, the term “financial” is in its name — Community Financial Service Center.

Cook argues that this definition of financial institution is too broad, sweeping in far too many , types of businesses within the enhancement’s scope. He thus argues in favor of an alternative definition: a financial institution is an entity that serves a depository function. To reach this conclusion, Cook considers the text of the guideline. Bécause the guideline also covers the robbery of a post office — which is a depository of mail — Cook contends that all entities covered by the guideline must serve a similar depository function. A bank — which is a depository of money — is Cook’s paradigmatic example of a financial institution.

We are unpersuaded by Cook’s definition. He has cited no authority for it; nor could we find any. Moreover, although a post office is a depository, it is a depository of mail, not money: the functions of banks and post offices are inherently different. Accordingly, we reject limiting the definition of “financial institution” to those entities that serve a depository function.

We also think it is unnecessary to delve into the specific contours of the definition of financial institution here. We think it is enough to say that a business that offers an array of financial services, including check cashing, money transfers, money orders, and loans, surely fits within the plain meaning of the term “financial institution.” We hold that the CFSC is a financial institution under § 2B3.1(b)(l).

Alternatively, Cook argues that the term “financial institution” is unconstitutionally vague, relying on our decision in United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc) (invalidating § 4B1.2(a)(2)’s residual clause as unconstitutionally vague). This week, the Supreme Court overturned that decision, holding that “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.” Beckles v. United States, 580 U.S. -, 137 S.Ct. 886, 892, 197 L.Ed.2d 145, No. 15-8544 (Mar. 6, 2017). Cook’s vagueness argument is thus without merit.

B. Physical-Restraint Enhancement

Cook next argues that the district court erred by applying an enhancement under § 2B3.1(b)(4)(B), which provides for a 2-level enhancement “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.” Here, the district court applied this enhancement because of the actions of Cook’s accomplice, Ferrell, who tackled the security guard and held him at gunpoint.

To start, Cook doesn’t dispute that Ferrell’s conduct constituted a physical restraint. “[T]he fundamental characteristic of the physical-restraint enhancement is to punish one for depriving a person of his freedom of physical movement....” United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011). By tackling the security guard and pointing a gun at his face, Ferrell clearly deprived the guard of his freedom of physical movement. That is exactly the type of conduct that the physical-restraint enhancement covers. See id.

Cook also doesn’t dispute that Ferrell’s physical restraint was attributable to him as relevant conduct under § lB1.3(a)(1)(B). Ferréll’s act constituted “relevant conduct” attributable to Cook because it was clearly within the scope of, in furtherance of, and reasonably foreseeable in connection with their joint act of robbery. See U.S.S.G. § 1B1.3(a)(1)(B).

Instead, Cook argues that the district court erred by impermissibly double counting Ferrell’s act of physical restraint, which resulted in the imposition of a longer sentence. In the sentencing context, double counting refers to the district court’s use of the same conduct more than once to increase a defendant’s sentence. United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012). Double-counting claims come in two varieties. First, a defendant may claim that the district court used the same conduct to form the factual basis for an element of the underlying offense and to support an enhancement. Second, a defendant may claim that the district court used the same conduct to support multiple enhancements. Id. Cook’s claim is of the first variety. In short, he argues that the district court impermissibly double counted Ferrell’s restraint of the guard as both an element of the underlying offense of Hobbs Act Robbery and as conduct giving rise to the 2-level enhancement under § 2B3.1(b)(4)(B).

Cook’s argument, however, is a nonstarter. He cites two of our cases to support his argument: (1) United States v. Senn, 129 F.3d 886 (7th Cir. 1997), and (2) United States v. Taylor, 620 F.3d 812 (7th Cir. 2010). In those cases, we applied a general rule that “a characteristic shared by all instances of a crime is reflected in the base offense level for the crime and therefore is unavailable for use as an enhancement.” Taylor, 620 F.3d at 815; see also Senn, 129 F.3d at 897 (holding that impermissible double counting occurs “if the offense itself necessarily includes the same conduct as the enhancement”). We followed that general rule in other cases. See, e.g., United States v. Bell, 598 F.3d 366, 372 (7th Cir. 2010) (“Impermissible double counting occurs when ... the same underlying facts that establish an element of the base offense are used to justify an upward enhancement.”); United States v. Rodgers, 610 F.3d 975, 978 (7th Cir. 2010) (citing Senn, 129 F.3d at 897 and Bell, 598 F.3d at 372-73 for the same proposition).

But in 2012, we reversed course, holding that “the same conduct may determine the base offense level and also trigger cumulative sentencing enhancements and adjustments unless the text of the applicable guideline explicitly states otherwise.” Vizcarra, 668 F.3d at 525. We therefore clarified that “there is no background rule against double counting in the guidelines.” Id. Instead, double counting is presumed permissible as a “mechanism employed by the guidelines in part to reflect the seriousness of the offense.” United States v. Loffredi, 718 F.3d 991, 994 (7th Cir. 2013). Any language in our earlier cases contradicting our holding in Vizcarra is no longer good law: Cook’s reliance on Senn and Taylor is misplaced.

Even assuming that the district court double counted Ferrell’s restraint of the guard as both an element of the underlying offense of Hobbs Act Robbery and for purposes of the enhancement under § 2B3.1(b)(4)(B), a premise the government contests, the court committed no error. Again, we presume that this counting was permissible absent an indication to the contrary in the guidelines. Because § 2B3.1(b)(4)(B) and its application notes, contain no explicit prohibition against double counting the act of physical restraint, the presumption of permissibility cannot be overcome. The district court properly applied the physical-restraint enhancement.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment and sentence.

      . We note that double counting may not have even occurred here. As we discussed in Taylor, in a portion of the opinion that likely survived our decision in Vizcarra, it is possible to commit federal robbery without an act of physical restraint. 620 F.3d at 815-16. Therefore, physical restraint is not an element of federal robbery. Although Taylor involved federal bank robbery under 18 U.S.C. § 2113(a) and not specifically Hobbs Act Robbery, those crimes overlap to a significant degree. See United States v. Starks, 472 F.3d 466, 470 (7th Cir. 2006). Most importantly, they contain the same use-of-force requirement, which is the element of federal robbery that Cook argues is synonymous with physical restraint.


source: Caselaw Access Project

author: BAUER, Circuit Judge.

license: Public Domain

text:
    Eddie GILL, Plaintiff-Appellant, v. CITY OF MILWAUKEE, et al., Defendants-Appellees.
    No. 16-2846
    United States Court of Appeals, Seventh Circuit.
    Argued January 11, 2017
    Decided March 7, 2017
    Rehearing and Rehearing En Banc Denied April 19, 2017

      John A. Birdsall, Attorney, Birdsall Law Offices, S.C., Milwaukee, WI, Drew De Vinney, Kevin R. Martin, Attorneys, Martin Law Office, S.C., Oak Creek, WI, for Plaintiff-Appellant.
    Jan A. Smokowicz, Attorney, Milwaukee City Attorney’s Office, Milwaukee, WI, for Defendants-Appellees.
    Before BAUER, FLAUM, and EASTERBROOK, Circuit Judges.
   BAUER, Circuit Judge.

In February 2013, Eddie Gill confessed to and was charged with the murder of Jordin Crawley. Gill spent just over a year in jail awaiting trial. The charges were dropped, however, after a Milwaukee County Circuit Court judge suppressed Gill’s confession. Gill then filed a series of federal and state law claims in federal district court against the City of Milwaukee, Chief of Police Edward Flynn, and six Milwaukee police detectives. The district court entered judgment on the pleadings under Federal Rule of Civil Procedure 12(c) in favor of Defendants on all of Gill’s federal claims and dismissed the state law claims without prejudice. For the reasons that follow, we affirm.

I. BACKGROUND

On February 3, 2013, Jordin Crawley was shot and killed while standing in a crowd outside a club in Milwaukee, Wisconsin, just after it had closed for the night. Gill exited the club as it was closing and crossed the street to greet a group of friends that he saw at a gas station. After a couple minutes, Gill and the group walked back towards the crowd of people outside the club. Just then, multiple gunshots were fired, killing Crawley and wounding another man.

In the days that followed the shooting, Milwaukee Police detectives collected security video footage from the area and interviewed approximately 20 witnesses. One of the witnesses identified Gill from the video footage of the gas station parking lot. Detective Mark Peterson spoke with Gill on the phone and spoke with his mother in person. Gill’s mother explained to Peterson that Gill had cognitive impairments. At approximately 7:30 p.m. on February 12, 2013, Gill voluntarily came to the police station to be interviewed.

Detectives Timothy Graham and Erik Gulbrandson conducted the initial interview. Gill’s complaint states that the detectives knew of Gill’s intellectual disability prior to the interview, and that it was also apparent through his behavior and answers. During the interview, Gill made multiple statements that were disproved by the video footage, including the number of people he was with and where he was standing when the shooting occurred. Based on those statements, the detectives arrested Gill for obstruction and immediately read Gill his Miranda rights. Gill requested a lawyer, and .the detectives ended the interview.

As the detectives transported him to booking, Gill said that he wanted to take a polygraph test and that he wished to waive his right to a lawyer in order to do so. The next morning, Detective James Hensley retrieved Gill from his cell to take the polygraph test. Hensley reiterated that Gill could not take the polygraph without a lawyer present, unless he was willing to waive his right to a lawyer. Gill’s complaint states that he interpreted this to mean either that he could take a polygraph without a lawyer or that he could not take one at all. Still, Gill stated that he understood his Miranda rights and chose to proceed with the polygraph without a lawyer present. He denied any involvement with the shooting during the examination, which lasted over six hours.

After the polygraph, Detectives Hensley and Billy Ball took Gill to another room and continued interrogating him. The detectives again read Gill his Miranda rights, which he waived. Throughout this interrogation, which lasted five more hours, Gill continued to maintain his innocence.

The next morning, February 14, 2013, Hensley began interrogating Gill once again. Gill initially stated that he wanted a lawyer, but Hensley convinced him to waive his rights and continue with the interrogation. Hensley employed several interrogation techniques, including social isolation, confrontation, theme development, and minimization. He also falsely stated that Gill had been identified as the shooter by an eyewitness, and that Gill had failed his polygraph test. During the course of this interrogation, Gill professed his innocence more than 140 times, but eventually confessed to the shooting. He was charged with first degree reckless homicide and remained in jail.

Gill filed a motion to suppress his confession, which the trial court granted on February 24, 2014. The court specifically noted that Gill was “functionally illiterate,” that he had previously been found incompetent to stand trial for a different crime, and that his mother had advised Hensley of his intellectual disability. In light of those facts and the “stressful” interrogations, the court held that his confession was involuntary and inadmissible. As a result, the charges were dismissed on March 13, 2014.

Gill then filed this case in the district court, bringing federal claims under 42 U.S.C. § 1983, as well as supplemental state law claims. He brought claims against each of the individual detectives for violations of his Fifth and Fourteenth Amendment rights, a claim for false arrest, and a claim for concealment of favorable evidence. He also brought claims for conspiracy and failure to intervene, corresponding to each of those claims. Finally, he brought claims against Chief of Police Edward Flynn for supervisory liability, and against the City of Milwaukee for municipal liability. In two written opinions, the district court entered judgment in favor of Defendants on all of the federal claims under Federal Rule of Civil Procedure 12(c). The district court dismissed the supplemental state law claims without prejudice. Gill now appeals the judgment on his federal claims.

II. DISCUSSION

We review de novo an entry of judgment on the pleadings under Rule 12(c). Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Id. Therefore, we must determine whether the complaint states “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Fifth and Fourteenth Amendment Claims

Gill claims that the detectives coerced his confession in violation of his right against self-incrimination under the Fifth Amendment, as well as his substantive due process rights under the Fourteenth Amendment. He also claims that the detectives are liable for conspiracy and failure to intervene based on these violations. Defendants argue that they are entitled to qualified immunity on these claims.

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). To determine whether an official is entitled to qualified immunity, we must consider two questions: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2016) (citation omitted). We have the discretion to choose which of these inquiries to address first. Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer is disposi-tive, we address only vyhether the right at issue was clearly established.

“A clearly established right is one that is sufficiently clear that every reasonable official would understand that what he is doing violates that right.” Mullenix, 136 S.Ct. at 308 (citation and quotation marks omitted). The Supreme Court has continually reiterated that “clearly established law should not be defined at a high level of generality.” White v. Pauly, — U.S. -, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (citation and quotation marks omitted). While a case directly on point is not required, “the clearly established law must be ‘particularized’ to the facts of the case.” Id. at 551 (citation omitted). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S.Ct. at 308 (citation omitted).

Gill argues that the detectives violated his Fifth Amendment right when the “unconstitutionally coerced statements” were used against him in his criminal case, specifically in his preliminary hearing. He then claims that the detectives also violated his Fourteenth Amendment substantive due process right “to be free from coercive interrogation tactics.” Both claims depend upon the coercive nature of the interrogation. Gill argues, therefore, that his right to be free from coercive interrogation was well established, such that the unconstitutionality of Defendants actions was settled.

To support that argument, Gill relies primarily on two principles from our case law. First, he points to the proposition that individuals with a diminished mental capacity can be particularly susceptible to coercive interrogation tactics. See, e.g., Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) (citing Andersen v. Thieret, 903 F.2d 526, 530 n. 1 (7th Cir. 1990)). Second, he cites cases recognizing that interrogation tactics that “shock the conscience” may give rise to substantive due process claims. See, e.g., Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010) (citing Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952); see also Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir. 2006)). He argues that, together, these principles have clearly established his right to be free from coercive interrogation.

This characterization of the right at issue, however, is precisely the type of “high level of generality” the Supreme Court has rejected in the qualified immunity context. See White, 137 S.Ct. at 552. Whether interrogation tactics are unconstitutionally coercive is an inquiry that depends on the specific facts and circumstances present .in a particular case. Indeed, our cases have highlighted that “[t]here is no clear-cut analysis to determine what constitutes ‘conscience-shocking’ conduct ....” Fox, 600 F.3d at 841; see also Cairel v. Alderden, 821 F.3d 823, 833 (7th Cir. 2016) (“Determining what constitutes such behavior can bé difficult....”). This is true even where the officers have knowledge of a witness’s cognitive impairment. Cairel, 821 F.3d at 833-34. The right “to be free from coercive interrogation” is highly generalized. Therefore, it cannot be the basis for defeating a qualified immunity defense, unless there is closely analogous precedent that is “particularized” to the facts of the instant case. See White, 137 S.Ct. at 552.

“When looking at closely analogous cases to determine if a right was clearly established at the time of violation, we look first to controlling precedent on the issue from the Supreme Court and to precedent from this Circuit.” Estate of Escobedo v. Bender, 600 F.3d 770, 781 (7th Cir. 2010). Gill has not cited, and we have not identified, any precedent from the Supreme Court or this Circuit that puts the unconstitutionality of the officers’ conduct here “beyond debate.” See Mullenix, 136 S.Ct. at 308.

When no such precedent exists, we look outside our Circuit “to determine whether there was such a clear trend in the case law that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.” Escobedo, 600 F.3d at 781 (citation and quotation marks omitted). Gill relies exclusively on two cases from the Eighth Circuit that he argues clearly establish the contours of the right violated here. See Livers v. Schenck, 700 F.3d 340 (8th Cir. 2012); Wilson v. Lawrence Cty., 260 F.3d 946 (8th Cir. 2001). In both cases, the court denied officers summary judgment after determining that there were questions of fact as to whether the interrogation methods in question violated the Fifth and Fourteenth Amendment rights of a mentally disabled suspect. Livers, 700 F.3d at 354; Wilson, 260 F.3d at 954.

In our view, however, these two cases from another circuit are insufficient to establish a “clear trend” indicating that recognition of this right as clearly established in this Circuit is “merely a question of time.” Escobedo, 600 F.3d at 781 (citation omitted). This is particularly true in light of our recent holding in Cairel, where we rejected a closely similar substantive due process claim based on the interrogation of a suspect with a cognitive disability. Cairel, 821 F.3d at 833-34. There, the officers interrogated the suspect without a lawyer present, despite the fact that they were “aware of [the suspect’s] disability and knew that he might not have been fully able to understand what was going on.” Id.

In sum, Gill has failed to demonstrate that his right to be free from the interrogation tactics used here is clearly established. There is no precedent that places the constitutionality of the detectives’ actions “beyond debate.” See Mullenix, 136 S.Ct. at 308. For that reason, Defendants are entitled to qualified immunity on Gill’s Fifth and Fourteenth Amendment claims'.

Gill’s corresponding claim against the detectives for failure to intervene must also fail. To succeed on this claim, Gill must demonstrate that the Defendants (1) knew that a constitutional violation was committed; and (2) had a realistic opportunity to prevent it. See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). As we have demonstrated, Gill’s right to be free from these interrogation tactics was not clearly established. It follows then, that the detectives would not have known a constitutional violation was committed, and therefore, cannot be liable for failure to intervene. Similarly, because the Defendants are entitled to qualified immunity on the underlying claims, they are entitled to judgment on the corresponding conspiracy claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992) (noting that “[a] person may not be prosecuted for conspiring to commit’ an act that he may perform with impunity”).

B. False Arrest Claim

Next, we turn to Gill’s claim for false arrest, which was also accompanied by claims for conspiracy to commit and failure to intervene in the false arrest. Gill was arrested on February 12, 2013, for obstruction after lying to the detectives in his initial interview. After Gill confessed two days later, he was charged with murder, while he was still in jail for the obstruction charge. Gill does not quarrel with the arrest for obstruction. Instead, he argues that a “second and separate arrest” occurred when the murder charge was filed. The false arrest claim, therefore, is based on his theory that there was no probable cause for the “second arrest” (i.e., the murder charge), in light of the finding that his confession was involuntary.

Probable cause acts as an absolute bar to a claim for false arrest. Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 622 (7th Cir. 2010). We have previously explained that “probable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no probable cause.... ” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007) (citing Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). Gill concedes that there was probable cause for his initial arrest for obstruction. He remained in custody for that arrest until he confessed and was charged with murder. There was no period of release followed by a subsequent arrest. Thus, the existence of probable cause for his arrest for obstruction bars his claim for false arrest. See id.

Gill attempts to avoid this conclusion by arguing that Holmes only applies to a situation in which multiple charges are filed simultaneously. There is no indication in Holmes, however, that its reasoning applies only to charges filed simultaneously. Indeed, the Supreme Court has rejected such a distinction when determining the validity of an arrest. Devenpeck, 543 U.S. at 153-54, 125 S.Ct. 588.

What is important here is that the officers had probable cause for Gill’s arrest for obstruction and that he was in custody for that arrest when he was charged with murder. There was no “subsequent arrest.” Therefore, Gill’s claims for false arrest fails. For that reason, his related claims for conspiracy and failure to intervene, must also fail. See Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996) (explaining that there can be no conspiracy liability under § 1983 where there is no denial of constitutional rights); see also Leaf v. Shelnutt, 400 F.3d 1070, 1093 (7th Cir. 2005) (denying a claim for failure to intervene where there was no underlying constitutional violation).

C. Brady Claim

Gill’s next claim is that, under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the detectives violated his due process rights when they failed to disclose certain witness statements. He also brought corresponding conspiracy and failure to intervene claims against the detectives for this failure. On February 20, 2014, the trial judge handling Gill’s case learned that two of the detectives had recently filed incident reports of witness interviews that occurred over a year earlier. Gill claims that these statements supported his original account of the events, and that the officers withheld them from Gill, the prosecutors, and the trial court until approximately a year after Gill’s arrest.

To prevail on a Brady claim for an officer’s failure to disclose evidence, a plaintiff must show that (1) the evidence was favorable to him; (2) the officer concealed the evidence; and (3) the concealment prejudiced him. Cairel, 821 F.3d at 832. “Prejudice requires proof that the failure to disclose caused a deprivation of the accused’s liberty.” Id. Gill argues that his claim should move forward because he has sufficiently alleged that the concealment here prejudiced him by causing his continued pretrial imprisonment.

Our cases, however, have consistently held that Brady does not require the disclosure of favorable evidence prior to trial. Armstrong v. Daily, 786 F.3d 529, 552 (7th Cir. 2015) (recognizing that Brady disclosure obligations can be met “in the time leading up to or even during trial”); United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) (explaining that “Brady does not require pretrial disclosure” and demands only that disclosure come with enough time for a defendant to make use of the evidence). Gill argues, however, that language from our recent cases suggests that his claim is viable because of his pretrial detainment, despite the ultimate dismissal of his charges. As support, he specifically points to Cairel, which notes that “[a]s we explained in Armstrong, ... the key to a civil Brady claim is not conviction or acquittal, but a deprivation of liberty.” Cairel, 821 F.3d at 833 (citing Armstrong, 786 F.3d at 553-55).

In Armstrong, we held that the plaintiff had a viable claim where he alleged that state lab technicians deliberately destroyed exculpatory evidence, which caused him to remain in prison before the charges against him ultimately were dismissed before trial. 786 F.3d at 553. Armstrong made clear, however, that “Brady cases involving failures to disclose evidence are plainly distinguishable from this case involving destruction of evidence.” Id. at 552. In failure to disclose cases, such as Gill’s, “[t]he critical question under Brady is whether the exculpatory evidence is ‘disclosed in time for the defendant to make use of it.’ ” Id. (quoting Grintjes, 237 F.3d at 880); see Saunders-El v. Rohde, 778 F.3d 556, 562 (7th Cir. 2015); see also Bielanksi v. Cty. of Kane, 550 F.3d 632, 645 (7th Cir. 2008). Had Gill’s case proceeded to trial, he would have been able to make use of the statements that the officers failed to disclose initially. For that reason, his Brady claim fails. Again, Gill’s corresponding conspiracy and failure to intervene claims fail because there is no underlying violation. See Hill, 93 F.3d at 422; see also Leaf, 400 F.3d at 1093.

D. Supervisory Liability and Monell Claims

Gill’s remaining claims are against Chief of Police Flynn for supervisory liability and against the. City of Milwaukee for municipal liability under Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court held that Gill’s complaint did not plausibly allege the necessary elements of either claim.

To succeed on a claim for supervisory liability, a plaintiff must show that the supervisor was personally involved in the constitutional violation. Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (citation omitted). That means the supervisor “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might see.” Id. (citation and quotation marks omitted). Gill’s complaint fails to plausibly allege that Chief Flynn had such personal involvement in the detectives’ conduct. It states only that Chief Flynn failed to train the detectives adequately and that he was “deliberately and recklessly indifferent” to the detectives’ actions. There is, however, no allegation or plausible inference that Chief Flynn knew about or was personally involved in the specific conduct. Therefore, we agree with the district court that Gill cannot maintain a claim for supervisory liability.

Gill also failed to plead a plausible Monell claim. His complaint states that the City of Milwaukee has a de facto policy of “placing an emphasis on clearing cases and convicting suspects over seeking truth,” which led to the coercion of his confession and the concealment of exculpatory evidence. A municipal body may be liable for constitutional violations “pursuant to a governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. To succeed on this defacto custom theory, the plaintiff • must demonstrate that the practice is widespread and that the specific violations complained of were not isolated incidents. Jackson v. Marion Cty., 66 F.3d 151, 152 (7th Cir. 1995). At the pleading stage, then, a plaintiff pursuing this theory must allege facts that permit the reasonable inference that the practice is so widespread so as to constitute a governmental custom. See McCauley v. City of Chicago, 671 F.3d 611, 618 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 683, 129 S.Ct. 1937).

Gill’s complaint fails to do so. It does not provide examples of other Milwaukee police officers taking actions similar to those complained of here. More importantly, it does not plausibly allege that such examples exist. Instead, it simply states that this de facto policy caused the “Defendant Detectives named supra to commit the aforesaid wrongful acts against Plaintiff.” The specific actions of the detectives in Gill’s case alone, without more, cannot sustain a Monell claim based on the theory of a de facto policy. Id.; see also Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003) (explaining that “isolated acts of misconduct will not suffice; a series of violations must be presented to lay the premise” for a widespread practice claim under Monell).

III. CONCLUSION

For the foregoing reasons, Defendants are entitled to judgment on the pleadings on all of Gill’s claims before us. The judgment of the district court is AFFIRMED.

      . While we have determined that the specific right at issue here has not been well established, we must make clear that nothing in this opinion should be construed as condoning or approving the specific behavior and tactics of the detectives in this case.


author: RILEY, Chief Judge. COLLOTON, Circuit Judge, COLLOTON, Circuit Judge,

text:
    IN RE: WHOLESALE GROCERY PRODUCTS ANTITRUST LITIGATION Millennium Operations, Inc.; JFM Market, Inc.; MJF Market, Inc., Plaintiffs-Appellees v. SuperValu, Inc.; C&S Wholesale Grocers, Inc., Defendants-Appellants
    No. 15-1786
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 17, 2016
    Filed: March 1, 2017
    Rehearing and Rehearing En Banc Denied April 19, 2017
    Amending Order Denying Rehearing and Rehearing En Banc May 1, 2017

      Counsel who presented argument on behalf of the appellants was Erik T. Koons, of Washington, DC. The following attorneys also appeared on the appellant brief; Todd Alan Wind, of Minneapolis, MN., Karl Craig Wildfang, of Minneapolis, MN., Stephen Paul Safranski, of Minneapolis, MN., Charles A. Loughlin, of Washington, DC., Christopher J. MacAvoy, of Washington, DC., Martin Richard Lueck, of Minneapolis, MN., Jeffrey Sullivan Gleason, of Minneapolis, MN., Ochen D. Kaylan, of Minneapolis, MN., Nicole M. Moen, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellees JFM Market, Inc. and MJF Market, Inc. and appeared on the brief was Edward T. Dangel, III, of Boston, MA.
    Counsel who presented argument on behalf of the appellee Millennium Operations, Inc. was Richard Bruce Drubel, of Hanover, NH. The following attorneys also appeared on the appellee brief of Millennium Operations, Inc.; W. Joseph Bruckner, of Minneapolis, MN., Dan Kotchen, of Washington, DC., Elizabeth R. Odette, of Minneapolis, MN., Kimberly H. Schultz, of Hanover, NH., Matthew J. Henken, of Hanover, NH., Daniel Low, of Washington, DC.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   RILEY, Chief Judge.

A number of retail grocers sued two large full-line wholesale grocers, alleging the wholesalers’ contract to exchange retailer supply agreements constituted market allocation in violation of the Sherman Act, see 15 U.S.C. § 1. The retailers formed two putative classes, the Midwest Class and the New England Class. Each class had an Arbitration Subclass of retailers who had arbitration agreements with their current (post-swap) wholesaler. Each Arbitration Subclass sued only its previous wholesaler, with which it no longer had a current arbitration agreement. The district court dismissed the Arbitration Subclasses from the case on the theory that the previous wholesalers, as “nonsignatory” defendants, could compel the retailers to arbitrate based on equitable estoppel. See In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2011 WL 9558054, at *3-4 (D. Minn. July 5, 2011).

We reversed and then remanded for the district court to consider the wholesalers’ alternate theory that the nonsignatory defendants could compel arbitration because they were successors-in-interest to the signatory defendants. See In re Wholesale Grocery Prods. Antitrust Litig., 707 F.3d 917, 919-20, 925 (8th Cir. 2013) (Wholesale Prods. I). The district court rejected the successors-in-interest theory, as well as the wholesalers’ third alternate theory that they could directly enforce their previous arbitration agreements because some of the conduct at issue occurred when the previous agreements were still in effect. The wholesalers appeal.

1. BACKGROUND

In 2003, wholesale grocery suppliers Su-perValu, Inc. (SuperValu) and C&S Wholesale Grocers, Inc. (C&S) (collectively, wholesalers or defendants) entered into an Asset Exchange Agreement (AEA). C&S had recently purchased Fleming Companies, Inc.’s (Fleming) Midwest wholesale grocery business assets out of bankruptcy. In the AEA, C&S sold Fleming to Super-Valu and C&S purchased SuperValu’s New England business. Among the assets exchanged were supply agreements and arbitration agreements between each wholesaler and its numerous retail customers (the swap). According to the parties, the AEA contained reciprocal non-compete provisions. See id. at 920. Several retailers sued SuperValu and C&S, alleging the AEA unlawfully allocated the New England market to C&S and the Midwest market to SuperValu, in violation of the Sherman Act, 15 U.S.C. § 1. See Wholesale Prods. I, 707 F.3d at 920.

The plaintiff retailers proposed two classes: Midwest SuperValu customers and New England C&S customers. Each class had an Arbitration Subclass of retailers who had arbitration agreements with Su-perValu or C&S during the class period. Village Market (comprised of JFM Market, Inc. and MJF Market, Inc.) was the representative of the putative New England Arbitration Subclass and Millennium Operations, Inc. (Millennium) was the representative of the putative Midwest Arbitration Subclass. This appeal relates to the Arbitration Subclasses (collectively, retailers or plaintiffs).

As the district court explained, the Arbitration Subclasses “each asserted an antitrust conspiracy claim against the wholesaler Defendant with whom it d[id] not [then] do business and d[id] not [then] have an arbitration agreement (the ‘non-signatory Defendant’).... Village Market ... asserted an antitrust claim against SuperValu only, and Millennium ... asserted an antitrust conspiracy claim against C&S only.” The wholesalers moved to dismiss or stay the case, arguing equitable estoppel and successor-in-interest theories allowed the wholesalers to enforce the arbitration agreements to which they were no longer signatories. See id. at 920-21; Federal Arbitration Act, 9 U.S.C. § 1 et seq.

In July 2011, the district court granted the partial motion to dismiss or stay, concluding the nonsignatory defendants could compel arbitration through equitable es-toppel. See In re Wholesale Grocery Prods. Antitrust Litig., 2011 WL 9558054, at *3-4. “A non-signatory can ‘force a signatory into arbitration under the [equitable] estoppel theory when the relationship of the persons, wrongs and issues involved is a close one.’ ” Wholesale Prods. I, 707 F.3d at 922 (alteration in original) (quoting CD Partners, LLC v. Grizzle, 424 F.3d 795, 799 (8th Cir. 2005)). “[Equitable] es-toppel typically relies, at least in part, on the claims being so intertwined, with the agreement containing the arbitration clause that it would be unfair to allow the signatory to rely on the agreement in formulating its claims but to disavow availability of the arbitration clause of that same agreement.” Id. (alteration in original) (footnote omitted) (quoting PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830, 835 (8th Cir. 2010)).

In February 2013, we reversed the district court’s equitable estoppel ruling. See id.,at 919. We concluded plaintiffs’ claims against the nonsignatory defendants were not “ ‘so intertwined with the agreement containing the arbitration clause that it would be unfair to allow the signatory to rely on the agreement in formulating its claims but to disavow availability of the arbitration clause of that same agreement.’ ” Id. at 923 (quoting PRM Energy Sys., 592 F.3d at 835). This is because plaintiffs’ antitrust claims arose out of the Sherman Act, not alleged breaches of the parties’ contracts themselves. See id. at 923-24. We remanded the case for the district court to consider the wholesalers’ alternate successor-in-interest theory. See id. at 925.

On remand, the wholesalers argued they could enforce each other’s arbitration agreements under a “close relationship” exception because they “are successors-in-interest, standing in each other’s shoes with respect to the supply and arbitration agreements they exchanged in the AEA.” The district court first rejected this theory because SuperValu and C&S did not have the type of close, agency-like relationship that would give rise to an exception to the general rule that a nonsignatory cannot enforce an arbitration agreement.

The district court also reasoned that the nonsignatory defendants were “predecessors-in-interest, not successors-in-interest, to the arbitration agreements they seek to enforce.” That is, “SuperValu seeks to enforce the Village Market arbitration agreement that it. assigned to C&S under the AEA,” so as the assignor, “SuperValu is the predecessor-in-interest.” The same is true of C&S’s attempt to enforce Millennium’s arbitration agreement that C&S assigned to SuperValu. The district court observed the wholesalers had cited no authority supporting “the proposition that a predecessor-in-interest’s assignment of rights creates a ‘close relationship’ with its assignee that warrants allowing the predecessor-in-interest to assert the rights that it unconditionally assigned and voluntarily relinquished.”

Finally, the district court rejected the wholesalers’ additional theory that “they may directly enforce the arbitration agreements to which they are no longer signatories because some of the events giving rise to Millennium and Village Market’s claims occurred before the arbitration agreements were transferred,” on the grounds that an “ ‘assignor retains no interest in the right transferred.’ ” (Quoting Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 13 (Minn. 2002)). The wholesalers appeal.

II. DISCUSSION

We review de novo the district court’s decision whether to compel arbitration. See Lebanon Chem. Corp. v. United Farmers Plant Food, Inc., 179 F.3d 1095, 1099 (8th Cir. 1999). The wholesalers advance two legal theories which they believe permit them to compel arbitration under the arbitration agreements they assigned to each other.

A. Close Relationship/Successor.-in-Interest

First, the wholesalers argue that even if they cannot directly enforce the arbitration agreements they assigned, they can enforce them as nonsignatories under a “close relationship” theory. “ ‘[S]tate contract law governs the ability of nonsignato-ries to enforce arbitration provisions,' '' PRM Energy Sys., 592 F.3d at 833 (quoting Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 732 (8th Cir. 2009)), and the parties agree Minnesota law applies here. Under that exception, a nonsignatory can compel arbitration “when ‘the relationship between the signatory and nonsigna-tory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between signatories be avoided.’ ” CD Partners, 424 F.3d at 798 (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009)).

The wholesalers cite CD Partners, in which we concluded three corporate officers could compel arbitration under an arbitration agreement to which their corporation was a signatory, even though the officers themselves were not signatories, because the relationship between the corporation and the officers was sufficiently close and because the underlying arbitration agreement would be eviscerated if the officers could not compel arbitration. Id. at 797-800. According to the wholesalers, “the ‘close relationship’ doctrine is not limited only to agents or affiliates of a corporate signatory,” but also applies to “ ‘third-party beneficiaries of a contract, ... corporate officers or corporate entities affiliated with a signatory, or ... successors-in-interest of a signatory,’” (quoting Cent. Transp. Servs., Inc. v. Cole, No. 13-1295, 2013 WL 6008303, at *4 (D. Kan. Nov. 13, 2013)).

But here, as assignors, the “nonsignato-ry” defendants are predecessors-in-interest to their assignees, not successors-in-interest. We are aware of no authority supporting the proposition that a predecessor-in-interest bears a sufficiently close relationship to a successor-in-interest such that the predecessor-in-interest can compel arbitration under an agreement to which only the successor-in-interest is a signatory. Such a rule could create unforeseen mischief and encourage collusion. We conclude the district court did not err by rejecting this theory.

B. Direct Enforcement

Second, the wholesalers assert they can compel arbitration under the agreements to which they were once signatories “because plaintiffs’ claims are based on an alleged conspiracy that occurred when the original arbitration agreements were in effect between the arbitration plaintiffs and their former suppliers.” The wholesalers quote Litton Financial Printing Division v. NLRB, 501 U.S. 190, 205-06, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991), for the proposition that “a party’s right to compel arbitration survives the expiration of the agreement if the dispute ‘involves facts and occurrences that arose before expiration.’ ” But here the agreements between the wholesalers and the retailers did not expire or terminate, as in Litton. Instead, the wholesalers expressly agreed tq “convey, assign, transfer and deliver” to each other “all of [their] right, title and interest” in the underlying supply and arbitration agreements. See also Hoff, 642 N.W.2d at 13 (“An assignment generally operates to transfer all rights possessed by the assignor and the assignor retains no interest in the right transferred.”); Restatement (Second) of Contracts § 317(1) (“An assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.”). We see no reason to extend a presumption about what rights and obligations the parties to a contract might have intended to keep after the contract expired, see Litton, 501 U.S. at 204-06, 111 S.Ct. 2215, to a situation where a party has affirmatively given up — indeed, sold — everything it had under the contract.

The wholesalers insist — and the partial dissent takes for granted, post at 352-53-that Litton’s presumption about when a party retains the right to compel arbitration should apply “regardless of what caused the termination of the enforcing party’s [other] contractual rights and obligations,” whether expiration of the contract or deliberate relinquishment. But Litton, following Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 250-54, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), was about inferring an intent to arbitrate post-expiration disputes arising out of a contract from the parties’ “extensive obligation to arbitrate under the contract,” which suggested they did not mean to “eliminate all duty to arbitrate as of the date of expiration.” Litton, 501 U.S. at 203-04, 111 S.Ct. 2215. Whether the parties to a contract intended to be able to compel arbitration even after assigning away the right to do so, along with all their other rights, is an entirely different matter, and, we think, much less clearly implied by a general willingness to arbitrate disputes arising out of the contractual relationship. For one thing, although parties do not necessarily have the final say over whether a contract is allowed to expire or is terminated by their counterparty, and presumably would not want to subject the availability of “a pivotal dispute resolution provision” to such fortuities, id. at 208, 111 S.Ct. 2215, they generally do have control over whether and when they transfer their own rights.

In important respects, this case presents the flip side of Koch v. Compucredit Corp., 543 F.3d 460 (8th Cir. 2008). There, one bank had assigned a. contract containing an arbitration clause to another. See id. at 462-63. After applying Litton to conclude the obligation to arbitrate survived even though the contract arguably had terminated, we held the assignee bank could compel arbitration of a dispute arising out of the contract because “[t]hrough the assignment, [the assignee] assumed all of [the assignor’s] remaining rights and obligations under the contract.” Id. at 465-67. Here, it is the assignors, not their assignees, claiming a right to compel arbitration. The clear consequence of Koch’s logic is that the assignors' — in this case, the non-signatory wholesalers — should have nothing left to enforce, since “all of [their] remaining rights” were “assumed” by someone else.

It is true, as the partial dissent points out, “[t]he Asset Exchange Agreement did not transfer pre-assignment liabilities.” Post at 352. Knowing that, as they must have, perhaps the wholesalers should have bargained not to transfer the corresponding rights to compel arbitration on disputes regarding those pre-assignment liabilities. But they did not, and nothing in Litton or Koch convinces us to treat them like they did. The wholesalers may not directly enforce the arbitration agreements to which they are no longer signatories.

III. CONCLUSION

The district court is affirmed.

COLLOTON, Circuit Judge,

concurring in the judgment in part and dissenting in part.

The principal question on this appeal is whether the antitrust plaintiffs in this case are required to arbitrate their claims against the wholesale grocer defendants, SuperValu, Inc. and C&S Wholesaler Grocers, Inc. I conclude that the claims brought by Village Market against Super-Valu are subject to arbitration, and I would therefore reverse the decision of the district court in relevant part.

From April 2001 through September 2003, Village Market and SuperValu were parties to a supply agreement that was accompanied by an arbitration agreement. The arbitration agreement required arbitration of “[a]ny controversy, claim or dispute of whatever nature arising between [Village Market] and SUPERVALU ..., including but not limited to those arising out of or relating to any agreement between the parties.” App. 106.

In September 2003, as part of an asset exchange between SuperValu and C&S, SuperValu assigned its agreements with Village Market to C&S. Village Market later brought an antitrust claim against SuperValu, alleging that SuperValu conspired with C&S in violation of the Sherman Act. For several years, the parties have litigated whether Village Market should be compelled to submit its antitrust claim against SuperValu to arbitration. See In re Wholesale Grocery Prods. Antitrust Litigation, 707 F.3d 917 (8th Cir. 2013).

In this appeal, SuperValu contends that because Village Market alleges an antitrust conspiracy that began while the parties were subject to an agreement that required arbitration of such a claim, Village Market should be compelled to submit the antitrust claim to arbitration. Applying the principles set forth in Litton Financial Printing Division v. NLRB, 501 U.S. 190, 111 S.Ct. 2215 (1991), and Koch v. Compucredit Corporation, 543 F.3d 460 (8th Cir. 2008), I would direct the district court to compel arbitration. That Supervalu later assigned the arbitration agreement to C&S does not eliminate Village Market’s obligation to arbitrate a dispute that involves facts and occurrences that arose before the assignment.

Litton raised the question whether parties to a collective bargaining agreement with an arbitration clause had a duty to arbitrate grievances that were brought by a union after the expiration of the agreement. Litton applied Nolde Brothers, Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067 (1977), which found in the context of an expired agreement that there were “strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract.” Id. at 204, 111 S.Ct. 2215. Nolde Brothers established “a presumption in favor of postexpiration arbitration of matters unless ‘negated expressly or by clear implication,’ ” id. at 204, 111 S.Ct. 2215 (quoting Nolde Brothers, 430 U.S. at 255, 97 S.Ct. 1067), as long as the arbitration was “of matters and disputes arising out of the relation governed by contract.” Id.

Litton clarified that Nolde Brothers applies “only where a dispute has its real source in the contract.” Id. at 205, 111 S.Ct. 2215. In other words, “[t]he Nolde Brothers presumption is limited to disputes arising under the contract.” Id. “A postexpiration grievance,” the Court explained, “can be ■ said to arise under the contract only where [1] it involves facts and occurrences that arose before expiration, [2] where an action taken after expiration infringes a right that accrued or vested under the agreement, or [3] where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.” Id. at 206, 111 S.Ct. 2215. Because the employee layoffs at issue in Litton took place almost one year after expiration of the agreement, and the second and third categories were not implicated, the grievance was not arbitrable. Id. at 209-10, 111 S.Ct. 2215.

In Koch, this court applied Litton outside the context of collective bargaining. Koch involved a credit agreement with an arbitration clause. A credit card obligor alleged violations of the Federal Debt Collection Practices Act by the creditor, and assignees of the original creditor sought to compel arbitration. We concluded that even though the underlying credit agreement arguably was terminated by an earlier settlement, the obligation of the parties to arbitrate disputes arising under the contract survived any termination. Because the dispute at issue there involved facts and occurrences -that arose before expiration of the credit agreement, it was a dispute “aris[ing] under the contract.” 543 F.3d at 466 (quoting Litton, 501 U.S. at 206, 111 S.Ct. 2215). The dispute also fell within the scope of the arbitration clause, which covered “any claim, dispute, or controversy arising from or related to the Agreement.” Id. Because the obligor’s claim “would have been subject to [arbitration] had it arisen during the contract’s term,” id. (quoting Nolde Bros., 430 U.S. at 252, 97 S.Ct. 1067), and nothing in the arbitratioii clause excluded a dispute that was based in part on events occurring after termination of the agreement, we directed the district court to compel arbitration. Id. at 466-67.

A similar analysis demonstrates that Village Market should be compelled to arbitrate its antitrust claim against Super-Valu. Village Market’s antitrust claim involves facts and occurrences that arose before SuperValu assigned the arbitration agreement in September 2003: the claim is that SuperValu formed an antitrust conspiracy while negotiating an asset exchange agreement with C&S between July and September 2003. Although the arbitration agreement was assigned in September 2003, the evidence does not clearly negate a presumption that the parties intended to arbitrate matters that arose under the contract before the assignment. If, for example, Village Market and SuperVa-lu found themselves in a mine-run dispute under the supply agreement based on events in July 2003, there is nothing in the various agreements to suggest that the parties wanted that dispute litigated in federal court just because SuperValu assigned the arbitration agreement to C&S in September 2003. The Asset Exchange Agreement did not transfer pre-assignment liabilities. Although the instant claim asserts an antitrust violation rather than a breach of the supply agreement, the broad arbitration agreement covers it: “[a]ny controversy, claim or dispute of whatever nature arising between [Village Market] and SUPERVALU” must be arbitrated.

In rejecting SuperValu’s position, the court declines to apply the Nolde Brothers presumption of intent to arbitrate when a contract is assigned, apparently because an assignor “generally has control over whether and when they transfer their own rights.” Ante, at 350. But of course a contracting party generally has control over the expiration of a contract too: the termination date is a negotiated term of the agreement. The point of Nolde Brothers is that even when parties intentionally cause a contractual relationship to end, there are strong reasons to believe that the parties intend to retain arbitration duties for disputes arising under the contract. A contrary rule “would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract’s term.” 430 U.S. at 251, 97 S.Ct. 1067. The Court thought “it could not seriously be contended in either instance that the expiration of the contract would terminate the parties’ contractual obligation to resolve such a dispute in an arbitral, rather than a judicial forum,” id. yet the majority reaches precisely that unlikely conclusion here.

In a footnote, ante, at 350-51 n.4, the majority also questions whether assignment of the agreement extinguished Su-perValu’s right to compel arbitration. But the cited decision of a district court — accepting a broad allegation as true on a motion to dismiss — said only that the extent to which an assignment transferred the right to compel arbitration was “an unresolved issue.” HT of Highlands Ranch, Inc. v. Hollywood Tanning Sys., Inc., 590 F.Supp.2d 677, 684 (D.N.J. 2008). Two other district courts have concluded that an assignor seeking to arbitrate a dispute arising before the assignment is still a “party aggrieved” who may compel arbitration under the Federal Arbitration Act. Vainqueur Corp. v. Lamborn & Co., 305 F.Supp. 1007, 1008 (S.D.N.Y. 1969); Stations West, LLC v. Pinnacle Bank of Oregon, No. CIV 06-1419-KI, 2007 WL 1219952, at *3 (D. Or. Apr. 23, 2007). Consistent with our circuit precedent in Koch, the better view is that unless there is persuasive evidence that parties intended to extinguish a duty to arbitrate disputes that are based in part on facts that arose before an assignment, the arbitration agreement continues in effect as to those disputes. Accordingly, I would direct the district court to compel arbitration of Village Market’s claim against SuperValu.

As to the appeal by C&S concerning arbitration of the antitrust claim brought by Millennium Operations, I concur in the judgment affirming the district court. It is doubtful that C&S actually acquired Millennium’s supply agreement after Fleming Companies went through bankruptcy. The Asset Exchange Agreement required C&S to “use reasonable best efforts to cause Fleming to convey” the assets at issue “directly to SuperValu.” In any event, the scope of Millennium’s arbitration agreement was narrower than Village Market’s. It provided only for arbitration of disputes “relating to this Agreement,” and alleged unlawful restraint of trade is not conduct relating to the retail supply agreement. See In re Wholesale Grocery Products, 707 F.3d at 923-24. I also agree with the court that C&S cannot compel arbitration under a “close relationship” theory.

For these reasons, I would affirm the decision of the district court concerning the claim of Millennium Operations, but reverse the decision concerning Village Market and remand with directions to compel arbitration of Village Market’s claim against SuperValu.

ORDER

May 1, 2017

' The petitions for rehearing, en banc are denied. The petitions for rehearing by the panel are also denied.

COLLOTON, Circuit Judge,

respecting denial of rehearing en banc.

C&S Wholesale Grocers, Inc., filed a petition for rehearing that disputes conclusions of my separate opinion concurring in the judgment in part. C&S contends, in essence, that I should have dissented from the entire judgment. C&S recognizes, however, that its arguments “become germane” only if the full court rejects the view of the panel majority that the wholesalers’ assignments extinguished their ability to compel arbitration. I would be happy to consider any “germane” contention by C&S that the partial concurring opinion was mistaken, but because the court denies the petitions for rehearing aimed at reconsidering the decision of the panel majority, further consideration of C&S’s contentions is unnecessary at this time.

      . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota.

      . The parties agree such provisions existed, although we do not find these provisions in the AEA.

      . In 2014, Nemecek Markets, Inc. (Nemecek), a former customer of Fleming, joined the litigation. Nemecek had an arbitration agreement with Fleming, and has agreed to be bound by the arbitrability determination in this case.

      . We also find questionable the wholesalers’ position that because some of the challenged conduct occurred before the execution of the AEA, and some of it occurred after, both the assignor and assignee wholesaler can enforce the arbitration agreement in the same dispute. See HT of Highlands Ranch, Inc. v. Hollywood Tanning Sys., Inc., 590 F.Supp.2d 677, 684 (D.N.J. 2008) (explaining that if all rights and obligations under a contract are transferred, the assignor’s right to compel arbitration is extinguished, while leaving “unresolved” the factual matter of what rights the assignor actually transferred); cf. RRCI Constructors, LLC v. Charlie's/Diamond Ready Mix, Inc., No. 2007-147, 2009 WL 799660, at *5 (D.V.I. Mar. 24, 2009) (rejecting the theory that "both the assignor and assignee of an agreement may be compelled to arbitrate a dispute that comes within the scope of a valid arbitration agreement. Such a position is unsupported by law”).

      . The majority’s effort, ante, at 350, to glean support from the "logic” of Koch is unpersuasive. In Koch, an assignor transferred, pre-assignment assets and liabilities to an assign-ee, and the assignee was then entitled to compel arbitration of a pre-assignment dispute. Here, the assignor retained pre-assignment liabilities, and Koch says nothing to undermine the presumption that pre-assignment disputes arising under the contract remain subject to arbitration under the terms of the original agreement.