author: RILEY, Chief Judge.

text:
    Gerakl Pavlovich CHAKHOV, Petitioner v. Loretta E. LYNCH, Attorney General of the United States, Respondent
    No. 15-1673
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 16, 2016
    Filed: September 14, 2016

      Counsel who represented the petitioner appearing on the brief was Matthew M. Armbreeht of Minneapolis, MN.
    Counsel who represented the respondent áppearing oh the brief was Erica Miles, Benjamin C. Mizer and Kohsei Ugu-mori of Washington, DC.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   RILEY, Chief Judge.

Gerakl Pavlovich Chakhov petitions for review of an order of the Board of Immigration Appeals (Board or BIA) affirming an immigration judge’s (IJ) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition for review.

I. BACKGROUND

Russian national Chakhov entered the United States in September 2007 as a non-immigrant visitor with authorization to remain in the United States until March 2008. Approximately one month after entering the United States, Chakhov applied for asylum, withholding of removal, and CAT protection by submitting a Form I-589 to the United States Department of Homeland Security (DHS). See 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.16(c). Chakhov, who was born in Georgia in 1964 and is of Greek and Russian descent, asserted he was afraid to return to Russia because he feared he would be subject to persecution by “skinhead-fascists” based on his non-Russian appearance.

On June 23, 2008, an asylum officer found Chákhov ineligible for asylum, determining the inconsistencies between Chakhov’s interview with the officer and his application for asylum undermined his credibility in material respects. DHS initiated removal proceedings against Chakhov in July 2008, ordering Chakhov to appear in immigration court. At the initial hearing before an IJ on February 12, 2009, Chak-hov admitted to the DHS’s factual allegations, conceded removability, and indicated he would pursue his applications for asylum, withholding of removal, and CAT relief.

When Chakhov appeared before the IJ at another preliminary hearing in April 2010, he made 22 corrections to his Form 1-589 and informed the IJ he wished to provide additional examples of mistreatment he suffered. The IJ told Chakhov he should submit documents proving his ethnicity and medical records, and Chakhov, through a Russian-language interpreter, told the IJ the medical records “exist somewhere but nobody is going to give then [sic] to me.” Chakhov later submitted a supplemental affidavit dated June 16, 2010, that provided additional incidents of discrimination and abuse.

The hearing was continued until January 4, 2011. Chakhov, again testifying by way of interpreter, described the discrimination he and his Russian-speaking family experienced while growing up in the nation of Georgia in the 1970s, Chakhov said that in seventh grade he got into a fight with a classmate who had called Chakhov, “Russian bigot,” and the classmate broke Chak-hov’s nose. In 1979,. Chakhov moved to St. Petersburg and attended a medical technical college. After graduation, Chakhov was drafted into the Soviet Union Army, where he served from. 1982 to 1984. Chakhov testified that in 1982, another soldier “lured [him] into a closed room” to “put [him] on [his] knees,” but when Chakhov refused, the soldier started throwing logs from a furnace woodpile at Chakhov.

After finishing his military service, Chakhov eventually began working for the St. Petersburg police department, continuing for twelve and a half years. Chakhov claimed that while living in St. Petersburg, he was harmed and targeted because of his ethnicity. According to Chakhov, people were able to tell he was from Georgia due to his dark hair, crooked nose, and facial features that are supposedly distinctive to people from Georgia or the “southern Republics.” For instance, Chakhov reported two men in 1988 “took [him] for somebody from Caucasus” and told him, “hey you, a black guy” and started beating him. Chakhov said in June 1990, he was approached on his way to work when someone yelled “hey you the black guy” and attacked and beat him, resulting in a concussion and kidney injury requiring Chak-hov to spend one month in the hospital recovering from his injuries. Chakhov also described that in November of 1998 he was attacked by four people with leather jackets, boots, and shaved heads — one carried a baseball bat. Chakhov claimed he spent another month in the hospital recovering from that attack, which further injured his right kidney.

Chakhov also testified about a visit to Georgia in 2000. He stated that while he was there, his bag was stolen and he was accused of being a Russian spy. Chakhov reported that he was detained, interrogated, and hit in the chest and in the face by Georgian police. When he returned to Russia, the police “threatened] [him] with a machine gun” at the border and “extorted money” from Chakhov in exchange for permitting him to return home. Chakhov testified he was “very afraid” to return to Russia because of “skinheads,” “fascists,” and, “not to such [a] degree as the Nazis[,] ... police.”

On May 1, 2013, the IJ issued an order denying Chakhov’s applications and ordering his removal. Taking into account “the rationality, internal consistency, and inherent persuasiveness” of Chakhov’s claim, the IJ, found Chakhov was “not credible based on inconsistencies and lack of corroborating evidence to support his claims of persecution in Russia.” Chakhov appealed the decision to the Board, and the Board dismissed his appeal. Chakhov submitted a petition for review. On March 3, 2014, the government moved to remand the case “to clarify ... to what extent an [IJ] may iricorporate or weigh an asylum officer’s adverse credibility determination when the application is renewed in removal proceedings.”' We granted the unopposed motion and remanded the order.

On March 4, 2015, the Board issued its decision again dismissing Chakhov’s petition. The Board determined the IJ had not deferred to the asylum officer’s credibility determination and concluded the IJ had “independently considered the totality of the evidence to conclude that the respondent was not a credible witness.” Chakhov timely petitioned for review. See 8 U.S.C. § 1252 (jurisdiction).

II. DISCUSSION

To demonstrate eligibility for asylum, the burden of proof is on the applicant to show that he is a refugee, see id. § 1158(b)(l)(B)(I), which requires the applicant to demonstrate that he “is unable or unwilling to” return to the country of the applicant’s nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(42). The burden may be satisfied through the applicant’s testimony, “but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” Id. §1158(b)(l)(B)(ii). Corroborating evidence may be required to bolster otherwise credible testimony “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id.

We review the Board’s “determination that an alien is not eligible for asylum, withholding of removal, or relief under the Convention Against Torture using the deferential substantial evidence standard.” Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir. 2008). “We review the BIA’s decision, as it is the final agency decision; however, to the extent that the BIA adopted the findings or the reasoning of the lJ, we also review the IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir. 2008).

Chakhov argues that the Board and IJ erred in making their credibility determination. We afford credibility findings from the IJ “much weight because the IJ sees the witness testify and is therefore in the best position" to determine his or her credibility.” Fofanah v, Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006). The IJ “may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency’ and “internal consistency” of the applicant’s “written and oral statements,” “and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.” 18 U.S.C. § 1158(b)(l)(B)(iii). The IJ’s reasoning must “be convincing enough that a reasonable adjudicator would not be compelled to reach the contrary conclusion.” Singh v. Gonzales, 495 F.3d 553, 558 (8th Cir. 2007).

Here, the IJ noted several discrepancies between Chakhov’s application for asylum, his interview with the asylum officer, and his later testimony. The IJ began her credibility discussion by describing the inconsistencies the asylum officer reported after reviewing Chakhov’s application, including discrepancies relating to whether Chakhov and his wife were ever fired from their jobs due to ethnic persecution, the status of Chakhov’s relationship with his wife, his police service, living in Georgia, and his non-Slavic appearance.

Chakhov argues the IJ merely repeated the asylum officer’s findings without conducting her own de novo review of his applications. The Board decided “it was appropriate for the [IJ] to take note of the statements made to the Asylum Officer by the respondent when performing a de novo review of the record.” The IJ did not “specifically disavow[ ] reliance on any credibility findings” contained in the asylum officer’s assessment, cf. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004), but the IJ did not merely adopt the asylum officer’s findings. The IJ considered the record, including all of Chakhov’s previous written and oral statements, and, specifically, Chakhov’s testimony before the IJ. See 8 C.F.R. § 1003.42(c), (d). The IJ explained that Chakhov only described attacks occurring in 1990 and 1998 in his application and supplemental affidavit, but when he testified before the IJ, he described additional attacks he suffered in 1982 and 1988. When questioned at the hearing why he had not previously disclosed the 1988 attack earlier, Chakhov testified he might have thought the 1988 attack was less important because his injury was not severe.

Chakhov admits that, over the course of the proceedings, he “continued to provide additional examples of the mistreatment he suffered in the Soviet Union,” but argues “‘evolving’ facts” alone do not provide an “adequate basis to find his testimony inconsistent” or “undermine the heart of his claim.” But, in assessing an applicant’s credibility, an IJ may take into account these types of inconsistencies or omissions. Cf. Ntangsi v. Holder, 554 F.3d 1142, 1147 (8th Cir. 2009) (“ ‘Inconsistencies or omissions in an asylum application that relate to the basis of persecution are not minor but are at the heart of the asylum claim.’ ” (citation omitted) (quoting Esaka v. Ashcroft, 397 F.3d 1105, 1110 (8th Cir. 2005))). We agree with the Board that these inconsistencies “touch on the circumstances of [Chakhov’s] persecution” and are “material to his application for asylum.” Furthermore, Chakhov’s explanation that “[i]n hindsight” he would have included these prior accounts if he had understood the REAL ID Act does not excuse his evolving claim. See REAL ID Act of 2005, Pub. L. No. 109-13; cf. Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007).

Chakhov contends the IJ clearly erred by questioning his father’s background and “[suggesting that this issue bears negatively on [his- own] credibility.” The IJ questioned Chakhov’s account of his father’s nationality, explaining she was “uncertain whether [Chakhov]’s father was a citizen or national of Greece or was merely of Greek descent,’-’ but did not question Chakhov’s own descent or nationality. The Board “agree[d] with the [IJ] that the noted inconsistencies and omissions make it difficult to know what to believe regarding these claims.” Given the IJ’s broad discretion to weigh “all relevant factors” under the totality of the circumstances when making a credibility determination, we cannot say taking into account this unresolved discrepancy was unreasonable. See 8 U.S.C. § 1158(b)(l)(B)(iii).

Chakhov also challenges the IJ’s finding that he provided insufficient corroborating evidence. Chakhov maintains the IJ erred by requiring Chakhov to obtain corroborating evidence when it was unreasonable to do so and by failing to explain why she rejected his proffered reason for the unavailability. See, e.g., Khrystotodorov v. Mukasey, 551 F.3d 775, 782 (8th Cir. 2008) (“A denial of asylum based on a lack-of corroboration must include an explicit ruling on the applicant’s credibility, an explanation of why it is reasonable to expect additional corroboration, or an assessment of the sufficiency of the explanations for the absence of corroborating evidence.”); see also Eta-Ndu v. Gonzales, 411 F.3d 977, 984 (8th Cir. 2005).

To corroborate his claims, Chakhov provided a medical report from Russia showing he was hospitalized from June 18,1990, through July-17,1990. According to the IJ, the report did not explain why Chakhov was being treated, why he was in the hospital, or any “account of [his] medical condition during that month,” The IJ also seems to have doubted the validity of ChakhoVs efforts to obtain police records documenting the attacks against him. Initially, Chakhov stated that even if the police had opened a record relating to the 1988 attack in St. Petersburg, “they probably closed it right, away. And maybe they send it to archives.” Later,, when the IJ inquired why Chakhov was unable to submit additional documents in support of his claims, Chakhov told the IJ he had tried to, but “when [he] realized that nothing would come out of it, they would not open the case, they would not persecute [sic] any culprits, they would not do anything about it, I just realized that my efforts would be just fruitless. And that’s it.” In her written order, the IJ observed that, although Chakhov said the effort was “fruitless,” he “did not say why the police department would not open his case.” We agree with the Board’s assessment that the IJ did not clearly err by finding Chak-hov’s explanation of why the records were unavailable was insufficient. See Khrystotodorov, 551 F.3d at 783-84 (affirming the IJ’s decision to discount the asylum applicant’s explanation of why providing corroboration was impossible); cf., e.g., Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“[W]hile we have sometimes remanded a case if the IJ failed to explain his reliance on a lack of corroborating evidence, the alien bears the ultimate burden of introducing such evidence without prompting from the IJ.”).

In sum, the IJ identified, and the Board adopted, specific, cogent reasons for Chak-hov’s adverse credibility finding that were supported by substantial evidence. See Singh, 495 F.3d at 556, 558; Tebyasa v. Holder, 593 F.3d 707, 711 (8th Cir. 2010) (upholding an adverse credibility finding where “numerous inconsistencies, some going to the heart of the claim, provide a specific, cogent reason to disbelieve [the applicant’s] claim of persecution”). As Chakhov’s applications for asylum, withholding of removal, and relief under the CAT “ ‘were based upon the same discredited testimony,’ ” his other claims for relief also fail. See Singh v. Lynch, 803 F.3d 988, 993 (8th Cir. 2015) (quoting Fofanah, 447 F.3d at 1040); see also Khrystotodorov, 551 F.3d at 781-82 (discussing the different and more stringent standards of proof that apply to claims for withholding of removal and CAT relief).

III. CONCLUSION

For all of these reasons, we deny the petition for review.

      . During his testimony at the hearing, Chak-hov initially stated this incident occurred in 1980, but later indicated it happened in 1988. In recounting Chakhov’s testimony in their briefs, the parties refer to the event as occurring in 1988.


source: Caselaw Access Project

author: PER CURIAM. SMITH, Circuit Judge,

license: Public Domain

text:
    Corrie BURCKHARD, as Personal Representative for the Estate of Todd Burckhard, Decedent; Maria Mack, as Personal Representative for the Estate of Blaine H. Mack, Decedent, Plaintiffs-Appellees v. BNSF RAILWAY COMPANY, a Delaware corporation; CUSA ES, LLC, doing business as Coach America Crew Transport, Defendants-Appellants
    No. 15-2106
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 11, 2016
    Filed: September 14, 2016
    Rehearing Denied October 19, 2016

      Counsel who presented argument on behalf of the appellant was Scott M. Stearns, of Missoula, MT. The following attorney(s) appeared on the appellant brief; Rebecca S. Thiem, of Bismarck, ND., Thomas J. Leonard, of Missoula, MT.
    Counsel who presented argument on behalf of the appellee was Richard L. Carlson, of Wayzata, MN. The following attorney(s) appeared on the appellee brief; Cortney Scott LeNeave, of Wayzata, MN., Thomas M. Flaskamp, of Wayzata, MN.
    Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, District Judge.

      . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation.

   PER CURIAM.

Plaintiffs, personal representatives of the decedents, sued BNSF Railway Company (BNSF) for the deaths of two BNSF employees, Todd Burckhard and Blaine Mack. After rejecting BNSF’s motions for judgment as a matter of law (JMOL), the district court submitted the case to a jury. The jury found in favor of plaintiffs. After the verdict, BNSF moved the district court to alter or amend the judgment based on an agreement that plaintiffs had entered with BNSF prior to trial. The district court denied BNSF’s motion. On appeal, BNSF argues that the district court (1) improperly denied its JMOL motions, (2) made several erroneous eviden-tiary rulings, and (3) improperly denied its motion to alter or amend the judgment. We affirm.

I. Background

Under federal law, railway employees can work a maximum of 12 consecutive hours. When their hours of service expire, railway employees need to be relieved, mid-route. BNSF contracted with Coach America to provide transportation for some of its crews. After Burckhard and Mack were relieved by an incoming crew, Coach America dispatched a driver, Timothy Rennick, to transport them from Oswego, Montana, to Glasgow, Montana. Rennick collected Burckhard and Mack and began the approximately 40-mile trip. While en route, a pickup truck driven by a drunk driver, Ron Keiser, struck their vehicle. The collision killed Burckhard and Mack.

Plaintiffs presented three theories of BNSF’s liability at trial: (1) BNSF, through its agent Rennick, negligently operated the vehicle used to transport Burckhard and Mack; (2) BNSF and its agent, Coach America, negligently failed to properly train Rennick;, and (3) BNSF, through its agent Rennick, negligently failed to follow appropriate defensive driving rules. The evidence at trial concerning the crash included Rennick’s statement taken the day after the crash by a BNSF claims .representative, the. testimony of the Montana State Trooper that investigated the accident, and data from Coach America’s vehicle’s video camera and “black box.” Additional evidence described the training that Coach America provided its drivers and a BNSF curfew policy.

Rennick told the claims representative that he saw Reiser’s truck veer into his lape about “a minute, maybe two minutes at the most” before the collision. Rennick responded by pulling into Reiser’s lane. Reiser steered his truck back into his lane of travel and collided with Rennick’s vehicle before Rennick could react. The investigating Montana State Trooper, Sergeant Jeffrey Rent, testified that he found no signs that Reiser’s truck left the paved road or 15-foot shoulder. The video camera captured the eight seconds before the collision in quarter-second snapshots. The camera’s footage shows that Rennick attempted to avoid Reiser’s vehicle by entering Reiser’s lane. According to the “black box,” Rennick did not apply braking until approximately 2.75 seconds before the collision. The “black box” also showed that the speed of Rennick’s vehicle was 51 miles per hour 2.5 seconds before the collision.

Over BNSF’S' objection, the district court allowed plaintiffs to submit evidence of a BNSF curfew policy that applied to “deadheading.” The curfew policy forbids transportation of .railway employees on public roads between 10:00 p.m. and 4:00 a.m. when “deadheading.” According to BNSF, one of the reasons for the curfew was “a commonsense, good-judgment decision of daylight versus night.” BNSF explained that transportation during the night presents additional risks, such as drunk and sleepy drivers.

BNSF sought to introduce evidence that Burckhard and Mack were given a choice between transportation by vehicle or train once they were relieved from service. The district court excluded the evidence to avoid confusing the jury and because the evidence could potentially inject irrelevant defenses into the trial.

BNSF also sought to have Sergeant Rent testify that he believed that Rennick did not act negligently and chose the safest course of action given the circumstances. Plaintiffs objected to the testimony as cumulative. The district court agreed and also held that it was inappropriate to allow Sergeant Rent to testify as a lay witness on the ultimate factual issue. The district court allowed Sergeant Rent to testify about factual information obtained as part of his investigation but prohibited Sergeant Rent from testifying that Rennick acted reasonably.

At the close of plaintiffs’ case, BNSF moved for JMOL pursuant to Federal •Rule of Civil Procedure 50(a). BNSF argued that plaintiffs’ first theory of liability failed because they did not offer sufficient evidence that the risk was reasonably foreseeable. Likewise, BNSF argued that plaintiffs’ third theory of liability failed because they did not offer expert testimony establishing that BNSF had a duty to implement a curfew policy covering employees, such as Burckhard and Mack. BNSF did not renew these motions under Rule 50(b) after the jury verdict.

Following the verdict, BNSF moved the district court to alter or amend the judgment. Plaintiffs received $600,000 before trial in “Off Track Vehicle Accident Benefits” as part of BNSF’s Collective Bargaining Agreement. BNSF claimed that the agreement required plaintiffs to apply the $600,000 as ah offset to any recovery. The district court denied the motion because it considered the agreement to be colláteral to the merits of the case. BNSF now appeals.

II. Discussion

Plaintiffs suit arises under the Federal Employers’ Liability Act' (FELA), 45 U.S.C. § 51 et seq. FELA renders railroads liable for injuries or deaths of its employees “resulting in whole or in part from the negligence of [the railroad].” 45 U.S.C. §51.

A. JMOL.Motions

In preverdict motions, BNSF moved the district court to enter JMOL on two bases: (1) “Plaintiffs failed to. offer any evidence that [BNSF] should have or could have foreseen the conduct of Reiser that cause[d] the harm at issue”-; and (2) “Plaintiffs failed to offer any expert testimony to establish the standard of care applicable to BNSF for crew calls and train movements.” BNSF argues that the district court erred in denying these JMOL motions. Plaintiffs contend that BNSF waived these arguments by failing to renew them in a Rule 50(b) motion. BNSF counters that its arguments involve legal questions and therefore did not need to be raised in a renewed JMOL.

Typically, we review de novo a district court’s denial of a JMOL motion, viewing the evidence in the light most favorable to the verdict. Hyundai Motor Fin. Co. v. McKay Motors I, LLC, 574 F.3d 637, 640 (8th Cir. 2009). But we have no basis to review a party’s JMOL motion challenging the sufficiency of the evidence where the party does not renew its Rule 50(a) motion in a postverdict Rule 50(b) motion. Ludlow v. BNSF Ry. Co., 788 F.3d 794, 800 (8th Cir. 2015). BNSF argues that legal questions, on the other hand, are appealable after final judgment even if not renewed in a postverdict motion. Assuming for the sake of analysis that a purely legal issue may be raised on appeal without a Rule 50(b) motion, neither of BNSF’s two disputed issues on appeal falls in that category.

1. Foreseeability

BNSF casts its foreseeability argument as a legal question. It argues that a drunk driver’s actions are not reasonably foreseeable. Therefore, BNSF contends, as a matter of law, that it did not breach its duty to Burckhard and Mack by failing to take measures to protect against Reiser’s driving.

Although FELA does not incorporate common law “proximate causation,” reasonable foreseeability of harm is an essential ingredient of FELA negligence. CSX Transp., Inc. v. McBride, 564 U.S. 685, 702-03, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011). Reasonable foreseeability circumscribes the duties a railroad owes its employees. Id. Where a railroad “has no reasonable ground to anticipate that a particular condition ... would or might result in a mishap and injury, then the [railroad] is not required to do anything to correct [the] condition.” Id. at 703, 131 S.Ct. 2630 (first and third alteration in original) (quotation and citation omitted). Provided that negligence is proved, no matter' how insignificant its role in producing the injury, “the manner in which [the injury] occurred” need not be foreseeable. Id. at 703-04,131 S.Ct. 2630.

At oral argument, BNSF argued that plaintiffs needed to prove certain things — “a pattern of accidents,” “frequent death, injury, disability,” and a “dangerous road” — for the accident to be reasonably foreseeable. Its brief likewise argues that “there must be evidence of foreseeability of injury to the railroad for a plaintiff to prevail in an FELA case.” (Emphasis added.) Nevertheless, when confronted with its failure to renew its argument in a post-verdict JMOL motion, BNSF urged that foreseeability is a legal question and not something to be proved. Our case law addressing reasonable foreseeability of harm, however, reveals that the question is factual and not legal. See, e.g., Lager v. Chicago Nw. Transp. Co., 122 F.3d 523, 525 (8th Cir. 1997) (affirming grant of summary judgment to railroad because “[t]he evidence in the record ... [was] insufficient to support [plaintiffs] claim”); Vidlak v. Burlington N. R.R., 16 F.3d 1229 (8th Cir. 1993) (unpublished per curiam) (affirming grant of summary judgment to railroad because plaintiff “failed to offer any evidence of foreseeability”); Ackley v. Chicago & N. W. Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987) (noting that “[t]he Supreme Court has emphasized the jury’s role in determining whether an employer has breached its duties under the FELA”); Richardson v. Missouri Pac. R. Co., 677 F.2d 663, 666 (8th Cir. 1982) (reversing judgment of the district court because plaintiff “failed to adduce sufficient evidence” of reasonably foreseeability). The Supreme Court’s decision in McBride confirms this route. Whether a railroad has reasonable grounds to foresee that a particular condition might result in an injury depends on the evidence of each particular case. See McBride, 564 U.S. at 702-03, 131 S.Ct. 2630. We have no basis to review BNSF’s foreseeability argument because it challenges the sufficiency of the evidence and was not renewed in a Rule 50(b) motion.

2. Expert Testimony

BNSF also contends that whether expert testimony concerning the applicable standard of care was required to support the jury’s finding of negligence is a legal issue that need not be renewed in a Rule 50(b) motion. We reject this suggestion and conclude that BNSF failed to preserve its challenge on this point.

According to BNSF, the disputed issue at trial was whether it breached its standard of care by allowing employees to choose between transportation by van or by train. The company contends that the plaintiffs should have been required to present expert testimony on BNSF’s standard of care in transporting employees. Without such evidence, BNSF asserts, the district court should have dismissed the claim alleging negligence for allowing the decedents to be transported by van at night.

Assuming for the sake of analysis that “purely legal issues” need not be raised in a Rule 50(b) motion to preserve those issues for appeal, BNSF’s argument on expert testimony is not such an issue. Whether expert testimony is necessary depends on the facts of the case. Here, the question is whether there was sufficient evidence to establish a standard of care without expert testimony. The district court said that lay testimony was enough to support a finding of negligence; BNSF argues that the lay testimony was insufficient and that an expert was needed. Our cases show that this is a dispute over the sufficiency of the evidence. S & A Farms, Inc. v. Farm.com, 678 F.3d 949, 954-55 (8th Cir. 2012) (concluding that where plaintiff presented no expert testimony on the relevant standard of care, a reasonable jury would have no way of knowing whether Farms.com acted within the standard of care, so summary judgment was appropriate); Hall v. Arthur, 141 F.3d 844, 847 (8th Cir. 1998) (concluding that because expert testimony concerning surgeon’s standard of care could be applicable to his assistant, “we reject Dr. Gocio’s assertion that there was insufficient evidence that he violated the standard of care”); see also Olivier v. Robert L. Yeager Mental Health Ctr., 398 F.3d 183, 190-91 (2d Cir. 2005) (“Because Olivier did not introduce expert testimony as to medical standards, there was no legally sufficient evidentiary basis for a reasonable jury to find for Olivier.”) (internal quotation and brackets omitted).

BNSF was required to renew in a Rule 50(b) motion its contention that lay testimony was insufficient to establish a standard of care and that expert testimony was required. See Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d 1283, 1292 (11th Cir. 2016). Because BNSF failed to do so, the issue is waived.

B. Evidentiary Rulings

BNSF next argues that the district court erred in the following three eviden-tiary rulings: (1) the district court excluded evidence that Burckhard and Mack had the option to be transported by train or car, (2) the district court admitted evidence of BNSF’s curfew policy, and (3) the district court limited Sergeant Kent’s testimony. We review a district court’s eviden-tiary rulings “for clear abuse of discretion, reversing only when an improper eviden-tiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.” Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir. 2011) (quotation and citation omitted).

1. Choice of Means of Transportation

BNSF sought to introduce evidence that Burckhard and Mack were given a choice of train or ear transportation upon expiration of their hours of service. BNSF argues that it was prejudiced by the district court’s refusal to allow the proffered evidence because plaintiffs were able to leave the jury with the impression that BNSF forced Burckhard and Mack into a less-safe mode of transportation.

The defenses of contributory negligence and assumption of the risk were not present in the case. The district court excluded evidence relating to choice of transportation under Federal Rule of Evidence 403 to avoid potentially injecting those defenses into the trial. Rule 403 permits a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

The district court did not abuse its discretion in excluding the evidence. A district court’s Rule 403 ruling “depends on factors that are uniquely accessible to the trial judge who is present in the courtroom and uniquely inaccessible to an appellate judge who must take the case on a cold record.” Olson v. Ford Motor Co., 481 F.3d 619, 623 (8th Cir. 2007). BNSF contends that the probative value of the evidence was high because it helped establish that the risk of a drunk driver was not foreseeable. Assuming that the evidence had some probative value, the district court, nonetheless, had to weigh its probative value against its potential prejudice. Offering evidence that the decedents could have chosen a different mode of transportation proves little where the gravamen of the negligence claim is not the mode of transportation but the negligence of the transport operator. Despite the exclusion of its preferred evidence, BNSF was able to offer evidence that federal law permitted transportation at night on public roadways. BNSF was also allowed to argue in closing that transportation at night on public roadways is not negligent. The district court ultimately determined that the evidence’s probative value was substantially outweighed by the potential of confusing the issues caused by injecting irrelevant defenses. This was not an abuse of discretion.

2. Curfew Policy

BNSF also argues that the district court erred when it admitted evidence of BNSF’s curfew policy. Plaintiffs were allowed to introduce evidence that BNSF prohibited deadheading train crews from public-roadway transportation between 10:00 p.m. and 4:00 a.m. BNSF argues that the evidence had “no bearing on this action” because Burckhard and Mack were not deadheading and that it “proved to be extremely prejudicial.”

. Rule 401 defines relevant evidence as evidence that “has any tendency to make a [consequential] fact more or less probable than it would be without the evidence.” Fed. R, Evid. 401. Here, the district court found that the evidence was relevant because it showed that BNSF had some concerns about the transportation of its employees at night on the public roadways. BNSF’s knowledge of the risks associated with nighttime driving was a consequential fact in plaintiffs’ negligence action. This evidence had some tendency to make that fact more probable. The admission of the evidence also did not unfairly prejudice BNSF. The district court permitted BNSF to offer evidence addressing the differences between deadheading crews and the combined service crews. The district court did not abuse its discretion in admitting the evidence relating to BNSF’s deadheading policy.

3. Sergeant Kent’s Opinion Testimony

BNSF sought to have Sergeant Kent testify that in his opinion Rennick did not react negligently to Reiser’s driving. BNSF argues that the district court improperly excluded a portion of Sergeant Kent’s trial testimony for two reasons. First, it claims that the district court improperly treated Sergeant Kent’s testimony as lay opinion rather than expert testimony. Second, even if it were lay opinion, BNSF argues that the testimony was improperly excluded under Rule 403.

The district court determined that Sergeant Kent’s proffered testimony characterizing Reiser’s driving went beyond the scope of inquiry of an investigating officer. The district court ruled that a qualified expert should provide analysis of Rennick’s reaction to Reiser’s driving instead. The district court also considered the testimony inadmissible under Rule 403 on the' grounds that its probative value was far outweighed by the dangers of unfair prejudice and cumulative evidence. The district court permitted two other BNSF witnesses — Aubrey Hutchins, Coach America’s safety director, and Clancy King, BNSF’s defensive driving expert — to comment on Rennick’s driving. Sergeant Kent’s testimony was cumulative of the testimony of these witnesses, and it was not an abuse of discretion for the district court to exclude it on that ground. See Fed. R. Evid. 403; see also Van Dyke v. Coburn Enters., Inc., 873 F.2d 1094, 1101-02 (8th Cir. 1989) (explaining that a district court may exclude evidence that has been “rehashed and rehashed”).

C. Rule 59(e) Motion

Lastly, BNSF argues that the district court erred in denying its motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). After the jury returned its verdict and the district court entered judgment,. BNSF moved the district court to offset the judgment based on the “Off Track Vehicle Accident Benefits” agreement entered into by plaintiffs and BNSF. The agreement stated that the amounts received by plaintiffs “may be applied as an offset by the railroad against recovery that is obtained.” (Emphasis added.) We accord a district court broad discretion in determining whether to grant a motion to alter or amend judgment, and we will not reverse absent a clear abuse of discretion. United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).

One of the main purposes of Rule 59(e) is to allow a district court to “rectify its own mistakes in the period immediately following the entry of judgment.” White v. N.H. Dept. of Emp’t Sec., 455 U.S. 445, 450, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (footnote omitted). “Federal Rule of Civil Procedure 59(e) was adopted to clarify a district court’s power to correct its own mistakes in the time period immediately following entry of judgment.” Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (citation' omitted). Thus, Rule 59(e) generally may be invoked “only to support reconsideration of matters properly encompassed in a decision of the merits.” White, 455 U.S. at 451, 102 S.Ct. 1162 (citation omitted).

The district court denied BNSF’s motion because the agreement that was the basis for BNSF’s claimed setoff was collateral to the merits of plaintiffs’ FELA action. BNSF’s motion to alter or amend the judgment is based upon payments it made to plaintiffs pursuant to an agreement that was not an issue resolved at trial. The action before the district court, and tried to the jury, encompassed only claims under FELA and negligence under Montana common law. The agreement was not encompa'ssed within the decision on the merits of plaintiffs FELA case. Moreover, the agreement had the potential to spawn additional litigation over the use of the word “may.” The district court did not abuse its discretion in denying BNSF’s Rule 59(e) motion.

III. Conclusion

Accordingly, we affirm the judgment of the district court,

SMITH, Circuit Judge,

concurring.

I concur in the court’s opinion. I write separately because I conclude that whether expert testimony concerning the applicable standard of care was required to support the jury’s negligence finding is a legal question that BNSF need not have renewed in a Rule 50(b) motion. See supra Part.II.A.2. Nonetheless, I find that the district court did not err in refusing to require plaintiffs to offer expert testimony.

Subject matter requiring specialized knowledge and training such as medicine, engineering, and architecture generally requires expert testimony to aid the factfin-der, But, where the claim is "basic negligence and no specialized knowledge is needed, the jury can render a decision without expert testimony. Deciding whether expert testimony is needed to establish a claim turns on the specific facts of the case. See Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980). While the determination is fact dependent, it also rests upon a legal standard. The question is neither purely legal nor purely factual; it is a mixed question of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 290 n.19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (noting that mixed questions of law and fact are “questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated”). We have committed the determination of whether expert testimony is admitted to the sound discretion of trial courts, and we will not reverse a trial court’s decision unless it is clearly erroneous. Bartak, 629 F.2d at 530.

Here, BNSF’s argument is that the case presented questions that simply could not be determined by a factfinder without expert input of the standard of proper or reasonable care in the railroad industry. This is a legal question, and like all legal questions, it cannot be resolved in the abstract but must be analyzed in conjunction with the facts of the particular case. Doing so does not convert it into a sufficiency-of-the-evidence argument; it remains a legal question. Cf. Rosemann v. Sigillito, 785 F.3d 1175, 1181 (8th Cir. 2015) (agreeing with the district court that expert testimony was required to establish the proper standard of care and, without it, the plaintiffs claim of professional negligence was not submissible); Brooks v. Union Pac. R.R., 620 F.3d 896, 900 (8th Cir. 2010) (affirming grant of summary judgment to defendant because plaintiff failed to offer expert testimony). For that reason, I conclude that BNSF’s argument challenges a determination committed to the district court, not the jury, and, therefore, is not an argument that must be renewed in a Rule 50(b) motion. See Linden v. CNH Am., LLC, 673 F.3d 829, 833 (8th Cir. 2012) (limiting the requirement to renew a Rule 50(a) motion to sufficiency-of-the-evidence challenges). We require an argument to be renewed in a Rule 50(b) motion “because it allows the district court, which has first-hand knowledge of witnesses, testimony, and issues, an opportunity after the verdict to review the legal sufficiency of the evidence.” Ludlow, 788 F.3d at 800 (quotations and citations omitted). The trial court thus is able to review the decision of the factfinder, be it a jury or the court itself. Whether expert testimony is necessary, though, is not entrusted to the factfinder; rather, it is a determination made by the court to assist the factfinder in weighing the evidence. Here, BNSF’s expert-testimony argument, directed at the trial court, is preserved for appellate review.

The ultimate determination of whether expert testimony is required, however, remains committed to the trial court’s sound discretion; here, the district court did not err in refusing to require plaintiffs to offer expert testimony on crew calls and train movements. Plaintiffs’ theory of liability did not rely on BNSF’s negligence in the mode of transportation. In its final jury instructions, the district court told the jury to disregard any evidence or argument “suggesting that BNSF should have scheduled its trains and crews to make sure that Todd Burekhard and Blaine Mack reached Glasgow before their 12-hours in service expired.” The district court permitted plaintiffs to reference BNSF’s curfew policy in arguing that BNSF knew that nighttime transportation by public roadways presented additional risks. The district court considered these additional risks a “matter of common sense.” Plaintiffs’ argument went to the narrow issue of the foreseeability of drunk drivers; contrary to BNSF’s contention, it did not introduce the additional theory of liability that BNSF was negligent for permitting nighttime transportation on public roadways. Thus, BNSF’s standard of care for crew calls and train movements was not at issue. Accordingly, I conclude that expert testimony was not necessary on this subject.

      .- The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota.

      . Rennick passed away before he could be deposed.

      . BNSF describes "deadheading” as a process that involves transporting train crews over a long distance in order to staff terminals sufficiently. BNSF explains that this process is planned in advance and is different than the transportation required to relieve railway employees when their hours of service have expired. Burckhard and Mack were not transported pursuant to a "deadheading” process but were relieved as part of a combined service crew.

      . The per curiam opinion cites Hall v. Arthur, 141 F.3d 844 (8th Cir. 1998), in support of its conclusion that BNSF’s argument that expert testimony was required is a sufficiency-of-the-evidence argument. Specifically, the opinion relies on the following statement: "[W]e reject Dr. Gocio’s assertion that there was insufficient evidence that he violated the applicable standard of care.” Id. at 847. This statement does not bear the load placed upon it, as it simply does not state that the determination of whether expert testimony is required is a sufficiency-of-the-evidence question. Hall dealt with a doctor arguing “that since he acted only as an assistant in Mr. Hall’s surgery, the Halls had to produce expert testimony as to the standard of care applicable to an assistant in order to allow the jury to reach the question of his potential negligence.” Id. As the court noted, the applicable law required that the violation of the standard of care be established by expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Id. The court merely rejected the doctor’s argument that a separate expert was required to establish the standard applicable to him as an assistant and that the plaintiffs could not rely on the expert to establish the standard of care for the lead doctor. Id.


author: LOKEN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Robyn Renea HAMILTON, Defendant-Appellant
    No. 15-2368
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 17, 2016
    Filed: September 14, 2016

      Counsel who presented argument on behalf of the appellant was Alan Stoler, of Omaha, NE, ■ .
    Counsel who presented argument on behalf of the appellee was Thomas J. Kang-ior, AUSA, of Omaha, NE.
    Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

A superseding indictment charged Robyn Renea Hamilton and eight others with conspiracy to possess with intent to distribute more than 50 grams of actual methamphetamine “in the District of Nebraska and elsewhere” beginning in January 2002 and continuing until June 2014. Hamilton and one co-defendant went to trial in March 2015. After a five-day trial, the jury convicted Hamilton of the conspiracy offense and acquitted her co-defendant. The district court sentenced her to the mandatory minimum of 120 months imprisonment followed by five years supervised release. Hamilton appeals the conviction, arguing that the evidence was insufficient in two respects: first, the government presented insufficient evidence that Hamilton knew of and knowingly participated in the alleged conspiracy; second, if there was sufficient evidence she was a member of some conspiracy, the government failed to prove she was a member of the single conspiracy alleged in the superseding indictment. In reviewing these sufficiency claims, we view the evidence “in the light most favorable to the jury’s verdict,” reversing only if no reasonable jury could have found the defendant guilty of the charged offense. United States v. Walker, 818 F.3d 416, 419 (8th Cir. 2016) (quotation omitted). We affirm.

A. Knowing Participation in a Conspiracy To Distribute Controlled Substances. To convict Hamilton of the charged offense, the government had the burden to prove beyond a reasonable doubt the three elements of a conspiracy offense: “(1) a conspiracy existed for an illegal purpose; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly joined in it.” United States v. Alama, 486 F.3d 1062, 1064 (8th Cir. 2007) (quotation omitted). This required' proof that Hamilton' “knowingly contribute^] to the furtherance of the conspiracy,” which “requires some element of cooperation beyond mere knowledge of tlié existence of the conspiracy.... The government need not prove that the defendant knew all the conspirators or was award of all the details.” United States v. Askew, 958 F.2d 806, 810 (8th Cir. 1992) (quotation omitted).

' The government presented substantial evidence of a large conspiracy in which Eduardo Valenzuela, working for two men in Mexico, ran an illegal drug distribution' network across the United States. Members of the network and law enforcement investigators testified at trial. Valenzuela testified that fifteen or sixteen people worked with him. Cátalina Sanchez, Valenzuela’s former girlfriend, explained the broad scope of the conspiracy.

There was also substantial evidence that Hamilton knowingly contributed to the furtherance of a drug distribution conspiracy. Javier Rodriguez-Compean (“Rodriguez”), a distributor, testified that Valenzuela supplied him methamphetamine starting in early 2012. His main customer was Kailee Davis, who told Rodriguez to bring drugs to Hamilton’s residence, located on the Nebraska side of the South Dakota border. Rodriguez testified that Hamilton was present in her house or in the garage each of the five or six times he visited her residence to meet Davis. Davis introduced Hamilton to Rodriguez as “her friend, the owner of the house,” and told Rodriguez that Hamilton “handled the money, kept the books and kept the drugs at her house.” Hamilton would retrieve the money Davis paid Rodriguez in exchange for drugs.

Rodriguez testified that he delivered pounds of methamphetamine to Hamilton’s house, discussed drug business with both women (using his brother or brother-in-law as an interpreter), and smoked methamphetamine with them. On one occasion, when Rodriguez delivered four pounds of methamphetamine to Davis, Valenzuela followed Rodriguez to Hamilton’s residence, a trip corroborated by Sanchez. Hamilton was in the home, but did not come to the garage where the transaction took place. Rodriguez told Valenzuela that the house belonged to “India.” When law enforcement searched Rodriguez’s residence, they found a ledger that included the names “Wera,” referring to Davis, and “Viejón,” referring, to Valenzuela. The ledger listed thousands of dollars of drug transactions.

Other conspirators testified to Hamilton’s involvement. Oscar Hernandez met Davis at Hamilton’s residence on multiple occasions, acting as interpreter when his brother-in-law, Rodriguez, went there to pick up money. Hernandez knew Hamilton as “La India” and understood that her house was Davis’s safe house where she stored cash and drugs. Rodriguez’s brother, Gabriel Rodriguez, testified that he went to Hamilton’s house multiple times to interpret for Rodriguez when he delivered drugs and picked up money. Gabriel testified that Hamilton and Davis counted out money together to give to Rodriguez, and that Hamilton was always there when he visited. He also testified to using methamphetamine with Hamilton.

Davis testified that she had been selling methamphetamine since approximately 2005. In December 2011, she needed someone to store large shipments of methamphetamine and help her keep track of the proceeds. She had known Hamilton for some time, trusted her, and knew of her methamphetamine habit. Davis asked her to help in exchange for “money and dope.” Davis testified that Hamilton kept the money in a safe (for which Davis did not have the combination), kept the drugs in a toolbox, and maintained records — later discarded — of Davis’s transactions with Rodriguez. After describing Hamilton as her “partner,” Davis said on cross-examination that she “used” Hamilton. She also testified that Hamilton used some of the drug proceeds to pay rent.

Hamilton argues the government failed to prove she knowingly contributed to a drug conspiracy headed by Eduardo Valenzuela, noting that Rodriguez did not sell or deliver drugs to Hamilton, and the one time Valenzuela followed Rodriguez to Hamilton’s house, she was not present when a drug transaction took place. Thus, Hamilton argues, the government only proved her presence at drug sales, and “a defendant’s mere presence, coupled with the knowledge that someone else who is present intends to sell drugs, is insufficient to establish membership in a conspiracy.” United States v. Ruiz-Zarate, 678 F.3d 683, 690 (8th Cir.) (quotation omitted), cert. denied, — U.S.-, 133 S.Ct. 454, 184 L.Ed.2d 278 (2012).

As in Ruiz-Zarate, we conclude there was substantial evidence from which a reasonable jury could infer Hamilton’s knowing participation in a conspiracy to distribute controlled substances. She allowed conspirator Davis to use Hamilton’s residence as a “stash house” for drugs and drug proceeds, was present at multiple drug transactions, kept records of the drug transactions, and was furnished some of the methamphetamine delivered to her home. This was sufficient evidence of knowing participation. See, e.g., United States v. Nunez, 257 F.3d 758, 763-64 (8th Cir. 2001); United States v. Tran, 16 F.3d 897, 904 (8th Cir. 1994). Although Hamilton’s role was. relatively minor, “a defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he, or she was a member of the conspiracy.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir.) (en banc), cert. denied, 549 U.S. 898, 127 S.Ct. 214, 166 L.Ed.2d 172 (2006); see United States v. Miller, 698 F.3d 699, 703 (8th Cir. 2012), cert. denied, — U.S.-, 133 S.Ct. 1296, 186 L.Ed.2d 224 (2013). Here, the evidence was sufficient to prove far more than a mere user-supplier relationship between Davis and Hamilton. See, e.g., United States v. Adams, 401 F.3d 886, 897-98 (8th Cir.), cert. denied, 646 U.S. 966, 126 S.Ct. 492, 163 L.Ed.2d 373 (2006).

B. Participation in the Charged Conspiracy. Hamilton argues alternatively that, if there was sufficient evidence she knowingly participated in a conspiracy to distribute controlled substances, it was only a smaller, separate conspiracy with Kailee Davis, not the single, large Valenzuela-run conspiracy alleged in the indictment. “Whether the government’s proof established a single conspiracy or multiple conspiracies is a question of fact for the jury.” United States v. Morales, 113 F.3d 116, 118 (8th Cir. 1997). We review the jury’s finding on this question under our deferential sufficiency-of-the-evidence standard. See Askew, 968 F.2d at 810. If we conclude that no reasonable jury could have found the single conspiracy charged in the indictment, we must then consider whether this variance in the government’s proof “has prejudiced a defendant’s substantial rights.” Morales, 113 F.3d at 119.

The superseding indictment alleged that defendants knowingly conspired and agreed “together and with other persons known and unknown to the Grand Jury” to distribute controlled substances “in the District of Nebraska and elsewhere” during the time period alleged. The district court instructed the jury, without objection, that it must decide “whether the conspiracy existed” and whether the government proved that Hamilton had “an understanding of the unlawful nature of the plan” and “some degree of knowing involvement and cooperation,” even if she agreed “to play only a minor part in the conspiracy.”

The evidence was sufficient to permit a reasonable jury to find that the alleged conspiracy existed and that Hamilton knowingly participated. Hamilton argues the government proved only that she had an agreement with Davis for a limited period of time, and that Davis started selling years before Hamilton was involved and continued selling after she stopped using Hamilton’s house. However, “[m]ulti-ple groups and the performance of separate crimes or acts do not rule out the possibility that one overall conspiracy exists.” United States v. Edwards, 994 F.2d 417, 421 (8th Cir. 1993) (quotation omitted), cert. denied, 610 U.S. 1048, 114 S.Ct. 701, 126 L.Ed.2d 667 (1994). “A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” United States v. Smith, 450 F.3d 866, 860 (8th Cir. 2006) (quotation omitted). Here, Hamilton knowingly joined a far-flung conspiracy when she allowed distributor Davis to store multiple pounds of methamphetamine and the proceeds of drug sales at Hamilton’s Nebraska residence.

The judgment of the district court is affirmed.

      . The Honorable John M. Gerrard, United States District Judge for the District of Nebraska.


author: KELLY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Tyson Bartholomew TROTTER, Defendant-Appellant
    No. 15-2606
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 20, 2016
    Filed: September 14, 2016

      Counsel who represented the appellant was Steven R. Morrison of Grand Forks, ND.
    Counsel who represented the appellee were Nicholas Whitney Chase, AUSA, of Fargo, ND., Megan A. Healy, AUSA, of Fargo, ND.
    Before RILEY, Chief Judge, COLLOTQN and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Tyson Trotter was convicted by a jury of a conspiracy to distribute, and to possess with intent to distribute, methamphetamine in violation of 21 U.S.C. § 846. The district court sentenced Trotter to the statutory mandatory minimum sentence of twenty years’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A). On appeal, Trotter asserts the district court erred in allowing testimony at trial regarding text messages in violation of the best evidence rule. He also appeals his conviction on the grounds that the evidence was insufficient to prove he entered into a conspiracy and that the court’s jury instructions were erroneous. Finally, he claims error in the calculation of the amount of drugs attributable to him for purposes of sentencing. Having jurisdiction under 28 U.S.C. § 1291, and finding no error, we affirm.

I. Background

In June 2014, Katie Feist took over her husband’s methamphetamine distribution business after he was arrested and sent to prison. Later that summer, she started getting methamphetamine from John Dheilly. Dheilly told Feist his supplier was named “Tyson” — Trotter’s first name— and that they met in the parking lot of a restaurant named Mabel Murphy’s in Fergus Falls, Minnesota, to exchange drugs and money.

In November 2014, Feist approached the Grand Forks Narcotics Task Force (GFNTF) and offered to help them with their investigation of drug trafficking in the Grand Forks area in an effort to earn a reduction in her husband’s sentence. On November 19, 2014, Feist conducted a controlled buy of methamphetamine from Dheilly, providing him $3,000 in marked money.

On November 22, 2014, Feist accompanied Dheilly to Mabel Murphy’s restaurant to obtain methamphetamine. Members of the GFNTF and the West Central Drug and Violent Crimes Task Force conducted surveillance and observed Dheilly get something out of the trunk of a white BMW. Law enforcement stopped both Dheilly’s vehicle and the BMW after they left the parking lot. Trotter was driving the BMW. During a search of the BMW, officers found $13,000 under the car seat and $3,000 in the center console. The serial numbers on $2,900 of the money found in the console matched the serial numbers on the money Feist had given Dheilly in the controlled buy on November 19, 2014. During a search of Dheilly’s car, officers found almost half a kilo of methamphetamine, various items associated with the use of methamphetamine, and three cell phones.

On November 26, 2014, Feist informed GFNTF officers that additional drugs would be found in her apartment. The officers conducted a consent search of the apartment and found approximately 40 grams of methamphetamine, drug paraphernalia, and $611 in cash. Feist told officers the money was drug proceeds.

On December 18, 2014, a grand jury indicted Trotter and Dheilly on one count of a drug conspiracy in violation of 21 U.S.C. § 846. Trotter proceeded to trial. Various members of the GFNTF testified, as did Feist.

Joel Lloyd, the agent assigned to work with Feist, testified that after a search warrant was obtained for the cell phones found in Dheilly’s vehicle, he extracted all text messages from Dheilly’s contact list, saving the information to a thumb drive. Agent Karsten Anderson analyzed the drive and prepared a 345-page exhibit containing all text messages between Dheilly and Trotter from July 26, 2014, through November 22, 2014. At trial, Anderson testified about the text messages and his report was admitted as Exhibit 35.

After trial, Trotter was convicted of conspiracy to distribute, and to possess with intent to distribute, 500 grams or more of methamphetamine, and he was sentenced to the statutory mandatory minimum sentence of twenty years in prison. We address each of Trotter’s alleged errors in turn.

II. Discussion

We first address Trotter’s argument that allowing Agent Anderson to testify as to the content of the text messages between Trotter and Dheilly from July 26, 2014, through November 22, 2014, violated Federal Rule of Evidence 1002, the best evidence rule. Trotter asserts Anderson’s testimony violated the rule because only “some of the text messages from November 22” were introduced into evidence. Trotter did not object to the officer’s-testimony before the district court, so our review is for plain error. United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011) (holding that if there is not a timely objection to the admission of evidence at trial, review is for plain error). To obtain relief under plain error review, Trotter “must show (1) the district court committed an error, (2) the error is clear or obvious, and (3) the error affected his substantial rights.” Id. Even if these first three requirements are met, however, we “will only reverse if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Jean-Guerrier, 666 F.3d 1087, 1091 (8th Cir.2012) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)).

Trotter cannot meet this burden. Contrary to Trotter’s assertion otherwise, Anderson’s report contained all the text messages between Trotter and Dheilly from July 26, 2014, through November 22, 2014, as extracted from Dheilly’s cell phone. Anderson’s report was then admitted at trial as Exhibit 35. Because the messages themselves were admitted into evidence, and Anderson’s testimony was based on them, allowing Anderson to testify about the text messages did not violate the best evidence rule. See United States v. Buchanan, 604 F.3d 517, 523-24 (8th Cir.2010) (“The purpose of the best evidence rule ... is to prevent inaccuracy and fraud when attempting to prove the contents of a writing.” (quoting United States v. Yamin, 868 F.2d 130, 134 (5th Cir.1989))).

Trotter next argues the evidence presented at trial was insufficient to prove Trotter and Dheilly entered into a conspiracy. Trotter contends the evidence showed no more than a buyer-seller relationship. Our review of the sufficiency of the evidence is de novo. United States v. Ruiz-Zarate, 678 F.3d 683, 689 (8th Cir.2012). We will not reverse unless no reasonable jury could have found the defendant guilty. Id.

To prove that Trotter conspired to distribute and possess with the intent to distribute methamphetamine under 21 U.S.C. § 846, the government must show (1) he entered into an agreement to distribute and possess with intent to distribute methamphetamine, (2) he knew the purpose the agreement, and (3) he intentionally joined the conspiracy. See United States v. Sanchez, 789 F.3d 827, 834 (8th Cir.2015). An agreement to join a conspiracy does not have to be explicit; it may be inferred from the facts and circumstances of the case. Id “[T]he mere agreement of one person to buy what another agrees to sell, standing alone, does not support a conspiracy conviction.” United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (quoting United States v. Prieskorn, 658 F.2d 631, 634 (8th Cir.1981)). While proof of a conspiracy requires evidence of more than simply a buyer-seller relationship, we have limited buyer-seller relationship cases to those involving “only evidence of a single transient sales agreement and small amounts of drugs consistent with personal use.” United States v. Boykin, 794 F.3d 939, 948-49 (8th Cir.2015) (quoting United States v. Peeler, 779 F.3d 773, 776 (8th Cir.2015)). As we have noted, “[ejvidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of a conspiracy to distribute.” Peeler, 779 F.3d at 776 (quoting United States v. Conway, 754 F.3d 580, 588 (8th Cir.2014)).

Trotter does not dispute that there was evidence to show he sold methamphetamine to Dheilly on November 22, 2014, but "argues the only other evidence supporting a conspiracy was the testimony of Feist. Trotter asserts Feist’s testimony was unreliable because she was using methamphetamine and admitted her drug use negatively affected her memory.

Assessing the credibility of witnesses is a task for the jury. United States v. Malloy, 614 F,3d 852, 861 (8th Cir.2010). “A jury’s credibility determinations are well-nigh unreviewable because the jury is in the best position to assess the credibility of witnesses and resolve inconsistent testimony.” United States v. Hodge, 594 F.3d 614, 618 (8th Cir.2010). It is “[o]nly when credibility determinations are internally inconsistent, based upon incoherent or implausible testimony, or directly at odds with objective evidence” that a more searching review is warranted. Id. That is not the case here.

Feist testified about traveling with Dheilly on more than one occasion to the Mabel Murphy’s parking lot to get methamphetamine from a person named “Tyson.” She testified that the amounts of methamphetamine they obtained were not small, personal use amounts, but larger quantities for distribution. Feist and Dheilly then repackaged and sold the methamphetamine. Though Feist conceded that using methamphetamine affected her memory about some things, such as whether she used methamphetamine after returning from Fergus Falls on November 22, the text messages between Dheilly and Trotter corroborated much of her testimony. As even Trotter concedes, the text messages were compelling evidence of a conspiracy. The text messages showed Dheilly and Trotter were in contact with each other approximately every month from July through November 2014 and the messages included discussions of when and where they would meet. The text messages showed Trotter was involved in an ongoing conspiracy with Dheilly rather than a onetime buyer-seller relationship. We conclude there was sufficient evidence in the record for a jury to find Trotter had entered a conspiracy with Dheilly.

Trotter next argues that the court erred in not instructing the jury first that a buyer-seller relationship alone is insufficient to create a conspiracy and second that it could only convict him for the conspiracy he was part of, not any other conspiracy. Trotter did not request either instruction and so our review is for plain error. United States v. Looking Cloud, 419 F.3d 781, 788 (8th Cir.2005) (“A party cannot preserve a claim of instructional error for appellate review unless he makes a sufficiently precise objection and also proposes an alternate instruction.”).

A defendant is entitled to an instruction explaining his or her theory of the case “if the request is timely made and if the proffered instruction is supported by the evidence and correctly states the law.” United States v. Slagg, 651 F.3d 832, 848 (8th Cir.2011) (citing United States v. Adams, 401 F.3d 886, 898 (8th Cir.2005)). Here, Trotter did not timely request a buyer-seller or multiple conspiracy instruction, and the evidence does not support either instruction. As to the buyer-seller instruction, Feist’s testimony and the text messages between Trotter and Dheilly demonstrated that Trotter and Dheilly were meeting at least once a month between July and November 2014 at the Mabel 'Murphy’s parking lot for the purpose of exchanging distribution-quantity amounts of methamphetamine and money. See Boykin, 794 F.3d at 948-49. “Whether trial evidence established a single conspiracy is determined by the totality of the circumstances, including consideration of the nature and location of activities and events, identities of the co-conspirators, and the time frame in which the acts occurred.” United States v. Sanchez, 789 F.3d 827, 835 (8th Cir.2015) (quoting United States v. McCauley, 715 F.3d 1119, 1123 (8th Cir.2013)). Trotter’s argument that there were multiple conspiracies in this case amounts to little more than an extension of his argument that he was not a knowing member of the charged conspiracy, and he identifies none of the factors relevant to the determination. The district court committed no error in not submitting either a buyer-seller or a multiple conspiracy instruction to the. jury. See Looking Cloud, 419 F.3d at 788.

Finally, Trotter argues that “the jury clearly erred in attributing 514.07 grams of methamphetamine to [him]” — an amount triggering the statutory mandatory minimum sentence of twenty years’ imprisonment under 21 U.S.C. § 841(b)(1)(A). He contends there was no evidence to connect him to the 27.75 grams of methamphetamine Feist purchased from Dheilly on November 19, 2014, or the 39.94 grams found during the November 26, 2014, search of Feist’s apartment. If these amounts are not included, Trotter asserts, he would not be subject to the twenty-year mandatory minimum.

“We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the jury’s verdict, resolving ' conflicts in the" government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Jefferson, 725 F.3d 829, 833 (8th Cir.2013). As an initial matter, we note that the jury did not attribute a specific amount of methamphetamine to the conspiracy — it found that the quantity of methamphetamine that was distributed or intended to be distributed as part of the conspiracy was 500 grams or more. Thus, we do not know if the jury included the disputed quantities when reaching the “500 grams dr more” finding. But even if the jury did not include these amounts, there was evidence of additional transactions between Trotter and Dheilly. For example, Feist testified that she accompanied Dheilly to the Mabel Murphy’s restaurant at the end of August, where Dheilly obtained a pound of methamphetamine. The text messages between Trotter and Dheilly around that time corroborate this testimony, showing The two men planned to meet at this location for the purpose Feist described. Other text messages indicated Trotter and Dheilly also met at the end of July. We conclude there was sufficient evidence to support the jury’s finding on the quantity of methamphetamine attributable to the conspiracy on which Trotter was convicted.

To the extent that Trotter asserts the district court erred in relying on the jury’s finding, we disagree. Because Trotter did not make this argument to the district court, our review is for plain error. United States v. Caballero, 420 F.3d 819, 822 (8th Cir.2005). The jury found beyond a reasonable doubt that Trotter was responsible for 500 grams or more of a mixture containing methamphetamine. Accordingly, that quantity became the “floor” for sentencing purposes. United States v. Umanzor, 617 F.3d 1053, 1062 (8th Cir.2010); see also United States v. Campos, 362 F.3d 1013, 1015-16 (8th Cir.2004) (“Once the jury found beyond a reasonable doubt that the amount of methamphetamine [the defendant] intended to distribute was [500] or more grams, it was a legal impossibility for the district court to find by a preponderance of the evidence that the amount [the defendant] intended to distribute was less than [500] grams.”). The district court did not make any drug quantity findings that increased Trotter’s sentence above the statutory mandatory minimum sentence required by the jury’s finding in the special interrogatory, and thus committed no error, plain or otherwise.

III. Conclusion.

For the reasons set forth above, we affirm the judgment of the district court.

      . The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota.

      . Rule 1002 provides that "[a]n original writ- • ing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

      . Trotter’s appellate attorney did not represent him at trial.

      . Trotter also argues the evidence was insufficient to support the guilty verdict because Anderson’s testimony was legally deficient and unfairly prejudicial since it violated the best evidence rule. As we have noted, however, Anderson's testimony was properly admitted. Trotter offers no other reason to question its admissibility or reliability, so we do not consider this argument in our analysis.

      . Section ,841(b)(l)(A)(viii) requires a district court to sentence a defendant convicted of distributing, or possessing with the intent to distribute, “500 grams or more of a mixture or substance containing a detectable amount of methamphetamine,” who has a finalized prior conviction for a felony drug offense, "to a term of imprisonment which may not be less than 20. years and not more than life imprisonment....” Trotter does not dispute he has a qualifying conviction.