author: KELLY, Circuit Judge.

text:
    Erin DINDINGER; Lisa Loring; Elizabeth Freund, Plaintiffs-Appellees v. ALLSTEEL, INC., Defendant-Appellant The Hon Company; Scott Mills, Defendants Equal Employment Opportunity Commission, Amicus on Behalf of Appellee(s)
    No. 16-1305
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: April 3, 2017

      Counsel who presented argument on behalf of the appellant was Frank Boyd Harty, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Frances M. Haas, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the appellee was Ann E. Brown, of Cedar Rapids, IA. The following attorney(s) appeared on the appellee brief; Brad J. Brady, of Cedar Rapids, IA., Ann C. Gronlund, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the amicus was Barbara L. Sloan, of Cedar Rapids, IA. The following attorney(s) appeared on the amicus brief; Jennifer S. Goldstein, of Washington, DC., Susan Ruth Oxford, of Washington, DC.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

After a five-day trial, a jury found that Allsteel, Inc. (Allsteel) was liable to the plaintiffs Erin Dindinger, Lisa Loring, and Elizabeth Freund for sex-based wage discrimination under the Equal Pay Act, Iowa Civil Rights Act, and Title VII. Allsteel appeals the district court’s denial of its motion for a new trial, as well as its grant of the plaintiffs’ motions for attorney’s fees and costs. We remand the issue of costs to the district court to determine whether it is the prevailing practice in Iowa to bill clients separately for Westlaw research, and affirm in all other respects.

I. Background

Dindinger, Loring, and Freund worked at Allsteel, a furniture manufacturer. They brought suit against Allsteel on October 10, 2011, alleging that it paid them less than it paid men performing equal work. All three women brought claims of sex-based wage discrimination under the Equal Pay Act, 29 U.S.C. § 206(d); Din-dinger and Loring also brought claims of sex-based wage discrimination under the Iowa Civil Rights Act, Iowa Code § 216.6A, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e; and Loring additionally brought a claim of sex-based discrimination for failure to promote under Title VII. With respect to the Equal Pay Act claims, the earliest possible date for which the plaintiffs could recover damages was either October 11, 2008 (if the violations were proven to be willful) or October 11, 2009 (if the violations were not proven to be willful); with respect to the Iowa Civil Rights Act claims, the earliest date was July 1, 2009; and with respect to Title VII claims the earliest date was October 12, 2009.

The plaintiffs presented evidence that Dindinger, who was a Safety and Environmental Manager at Allsteel’s Panel Plant between 2000 and May 20, 2011, was paid less than two male Safety and Environmental Managers who performed work equal to hers. Allsteel, on the other hand, presented evidence that her work was not equal to that of her male comparators. Allsteel also sought to establish that it paid Dindinger less than her male comparators based on factors other than sex— an affirmative defense to the Equal Pay Act and Iowa Civil Rights Act claims. Specifically, Allsteel presented evidence that Dindinger was paid less based on factors including prior education, outside experience, and seniority.

The plaintiffs presented evidence that Loring, a Safety and Environmental Manager in Allsteel’s Component Plant between March 2008 and November 1, 2013, was paid less than two male Safety and Environmental Managers who performed work equal to hers, and that Allsteel denied her a promotion based on sex. Allsteel countered with evidence that she did not perform equal work to her male comparators; that she was paid less based on factors including prior education, outside experience, and seniority; and that she was denied a promotion based on poor job performance.

Finally, the plaintiffs presented evidence that Freund, a Member and Community Relations (MCR) Plant Manager in Allst-eel’s Distribution Center between April 2008 and December 3, 2009, was paid less than a male MCR Plant Manager whose work was equal to hers. But Allsteel introduced evidence that her work was not equal to that of her male comparator, and that even if it was, she was paid less based on factors including outside experience.

Allsteel additionally sought to establish that it paid the plaintiffs less than their male comparators because of economic conditions. It introduced evidence that it experienced negative effects as a result of the economic recession that began in 2008, and that, to save costs, it laid off several employees, restructured job responsibilities, and froze merit-based pay raises. Allsteel also presented evidence that even if it did violate the Iowa Civil Rights Act or Equal Pay Act, the violations were not willful — an issue relevant to damages for the Iowa Civil Rights Act claims and to the limitations period for the Equal Pay Act claims. It submitted evidence that the Office of Federal Contract Compliance Programs (OFCCP), a Department of Labor office, had conducted an audit of Allsteel to ensure Allsteel complied with certain requirements for federal contractors, including requirements related to compensating men and women equally. The district court excluded the audit results, but Allsteel was permitted to present other evidence regarding the audit, including evidence about the audit process, the types of data collected and evaluated in the audit, and the conclusions Allsteel personnel reached based on the audit data.

The plaintiffs countered with evidence intended to demonstrate that Allsteel’s purported reasons for paying the plaintiffs less than their male comparators and for not promoting Loring were pretextual, and to establish that the alleged Equal Pay Act and Iowa Civil Rights Act violations were willful. Specifically, the plaintiffs submitted evidence that other female Allsteel employees were paid less than male employees despite their comparative seniority, experience, or education; that an email had accidentally been sent to certain Allsteel employees showing that some female employees were paid less than male employees, prompting one female Allsteel employee to file an internal complaint and lawsuit alleging wage discrimination; and that Loring had positive performance reviews until she filed the present lawsuit, at which point she began to receive negative reviews.

At the close of trial, the district court instructed the jury that Allsteel could establish an affirmative defense to the Equal Pay Act and Iowa Civil Rights Act claims if it proved that some factor other than sex justified the pay differentials. However, the court instructed the jury that Allsteel could not rely on economic conditions such as layoffs, restructuring, or pay raise freezes to establish the affirmative defense.

The jury found in favor of the plaintiffs on all claims except for Loring’s failure-to-promote claim. It also found that Allsteel’s violations of the Equal Pay Act and Iowa Civil Rights Act were willful. The jury awarded each plaintiff back pay, and awarded Dindinger and Loring damages for past emotional distress and punitive damages for their Title VII claims. After calculating liquidated damages and eliminating duplicative awards, the district court entered judgment for Dindinger in the amount of $61,000, for Loring in the amount of $83,000, and for Freund in the amount of $60,000. Allsteel filed a motion for new trial, arguing that the district court instructed the jury incorrectly on its affirmative defenses and made certain erroneous evidentiary rulings. The plaintiffs, meanwhile, moved for attorney’s fees and costs. The district court denied the motion for new trial, and granted the motion for attorney’s fees and costs. This appeal followed.

II. Discussion

A. Motion for New Trial

Allsteel contends it is entitled to a new trial on the grounds that the district court abused its discretion by: (1) instructing the jury Allsteel could not rely on economic conditions as a factor other than sex justifying the wage differentials; (2) allowing the plaintiffs to present certain “me-too” evidence about other female employees who were paid less than male employees; (3) excluding the results of the OFCCP audit; and (4) allowing testimony indicating that Allsteel retaliated against Loring for filing the present lawsuit. “We review the denial of a motion for a new trial for a ‘clear’ abuse of discretion, with the key question being whether a new trial is necessary to prevent a miscarriage of justice.” Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013) (quoting Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 351 (8th Cir. 2002)).

1. Jury instruction

First, Allsteel argues that it is entitled to a new trial because the district court incorrectly instructed the jury that Allsteel could not rely on economic conditions to establish its affirmative defense that a factor other than sex justified the pay discrepancies between the plaintiffs and their male comparators. “We review the jury instructions given by a district court for an abuse of discretion.” Brown v. Sandals Resorts Int’l, 284 F.3d 949, 953 (8th Cir. 2002). “Our review is limited to whether the jury instructions, taken as a whole, ‘fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case.’ ” Id. (quoting Ford v. GACS, Inc., 265 F.3d 670, 679 (8th Cir. 2001)). And “even where a jury instruction is erroneously given to the jury, reversal is warranted only where the error affects the substantial rights of the parties.” Id.

To establish a claim of sex-based wage discrimination under the Equal Pay Act or Iowa Civil Rights Act, “a plaintiff must show by a preponderance of the evidence that (1) she was paid less than a male employed in the same establishment, (2) for equal work on jobs requiring equal skill, effort, and responsibility, (3) which were performed under similar working conditions.” Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). But even if a plaintiff proves all three elements, an employer may establish an affirmative defense by demonstrating that “different payment to employees of opposite sexes ⅛ made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1)).

One way Allsteel endeavored to prove an affirmative defense was by seeking to establish that economic conditions were a “factor other than sex” justifying the pay differentials. It offered testimony that it began to feel the effects of the economic recession in October 2008. To save costs, it implemented several rounds of layoffs between October or November 2008 and June 2009, restructured job responsibilities, and imposed a freeze on merit-based pay raises from January 2009 through March 2010.

After the close of the evidence, the district court instructed the jury:

If you find [the plaintiff] proved all three elements of an Equal Pay Act claim by a preponderance of the evidence, you must next consider whether Allsteel then proved, by a preponderance of the evidence, that any difference in pay between [the plaintiff] and one or more male employees performing substantially equal work under similar working, conditions was not because [the plaintiff] was female, but was instead due to a factor other than sex. Factors other than sex could include job performance, education, experience, or tenure with the company. However, for this exception to apply [the plaintiffl’s sex must have played no role in the wage difference.
Allsteel cannot rely upon market forces or economic conditions as a factor other than sex to justify any pay differential complained of by [the plaintiff]. These market forces and economic conditions include downsizing, reductions in force, restructuring, and economic downturns. If the pay differential complained of by [the plaintiff] was based in any part upon her sex, market forces and economic conditions cannot justify perpetuation of that differential. It is not a defense under the Equal Pay Act that a woman may be paid less than a man in the same position simply because the woman is willing to accept less pay, or because the man demands more pay.

With respect to Dindinger’s and Loring’s claims under the Iowa Civil Rights Act, the district court further instructed the jury: “Just as under the Equal Pay Act, market forces and economic conditions are not a defense under Section 216.6A of the Iowa Civil Rights Act.”

Allsteel objected to the instructions before they were given, arguing that, in fact, economic conditions could be a factor other than sex justifying the pay differentials. But the district court concluded that the instructions were correct because Allsteel’s proposed economic-conditions defense was inconsistent with the Supreme Court’s decision in Corning Glass Works v. Brennan. In Corning Glass, the Supreme Court held that it is not a defense under the Equal Pay Act that an employer pays women less than men “simply because men would not work at the low rates paid women” and market forces therefore dictated lower wages for women. 417 U.S. at 205, 94 S.Ct. 2223. The Court explained: “That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work.” Id.

Allsteel contends that the district court erred in equating its economic-conditions defense to the market-forces defense at issue in Corning Glass. In Allsteel’s view, Corning Glass’ holding is limited to cases where employers pay female employees less solely because women are willing to accept less pay than men, and does not apply to all affirmative defenses based on economic forces. Allsteel points to several district court cases to support this argument. For example, in Brokaw v. Weiser Security, an employer presented evidence that it paid a newly hired female manager less than it had paid her male predecessor because its revenues had declined between the hiring of the male manager and the hiring of the female manager. 780 F.Supp.2d 1233, 1252 (S.D. Ala. 2011). The district court concluded this evidence established an affirmative defense, explaining: “It cannot be gainsaid that an employer may lawfully pay a new manager less money when the branch’s revenues are far lower than they were when the old manager’s pay was set.” Id.; see also, e.g., Joyner v. Town of Elberta, 22 F.Supp.3d 1201, 1209 (S.D. Ala. 2014) (suggesting a decline in revenue could be a factor other than sex justifying paying an employee less than her predecessor); Flockhart v. Iowa Beef Processors, Inc., 192 F.Supp.2d 947, 972 (N.D. Iowa 2001) (finding that comparing the wages of a female employee with those of a male employee who held the same position three years later was inapt because the company raised the standard wage for the relevant job classification in the meantime).

But even if we were to agree that economic conditions could be a factor other than sex justifying a pay differential in some circumstances, Allsteel did not present evidence to establish such a defense here. Allsteel points out that the economic downturn caused layoffs, the restructuring of job duties, and a freeze of merit-based pay raises. But Allsteel offered no evidence at trial showing how these cost-saving measures caused the plaintiffs to be paid less than their male comparators. No evidence suggested that the layoffs and job restructuring had any effect on the wages of the plaintiffs or their male comparators. And to the extent the merit-based pay raise freeze affected wages, the evidence demonstrates that it did not cause the plaintiffs to be paid less than their male comparators, but merely held pre-existing wage differentials in place. See Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003) (“[I]t is important to ensure that reliance on past salary is not simply a means to perpetuate historically lower wages.”).

“[T]he purpose of giving instructions is to inform the jury of the essential issues before them and of the various permissible ways of resolving those issues.” Fed. Enters. v. Greyhound Leasing & Fin. Corp., 786 F.2d 817, 820 (8th Cir. 1986). Accordingly, we do not review jury instructions in a vacuum, but “in light of the issues presented to the jury in a particular case.” Brown, 284 F.3d at 953 (quoting Ford, 265 F.3d at 679). Because Allsteel did not present evidence that economic conditions caused the pay differentials the plaintiffs experienced, the district court did not abuse its discretion in instructing the jury that Allsteel could not rely on economic conditions to establish an affirmative defense. See Fed. Enters., 786 F.2d at 820 (explaining that a “party is entitled to an instruction reflecting that party’s theory of the case” only if “there is evidence to support it”). Rather, the instructions given fairly and accurately represented the law in light of the evidence in the case.

2. Me-too evidence

Next, Allsteel argues a new trial is warranted based on the admission of “me-too” evidence — evidence that other female Allsteel employees who are not parties to the case were also paid less than male Allsteel employees. Specifically, it challenges the introduction of evidence relating to Margaret Bartenhagen, Kim Dez-eeuw, and Valerie Nissen — who, together with Dindinger and Loring, represented all but one of the female managerial employees in Operations at Allsteel between 2000 and 2013 other than Human Resources employees. It also challenges testimony of Stephanie Stammer and Michelle Mattingly — both group leaders at Allsteel — who said they had accidentally been emailed salary information showing that some female employees were paid less than male employees. As a result, Mattingly testified, she filed an internal complaint and a lawsuit against Allsteel alleging wage discrimination. Allsteel moved before trial to exclude all of the me-too evidence, but the district court denied the motion, and overruled objections Allsteel made to the evidence during trial.

We review the district court’s admission of evidence for abuse of discretion. Quigley v. Winter, 598 F.3d 938, 946 (8th Cir. 2010). “[E]videntiary rulings should only be overturned if there was a ‘clear and prejudicial abuse of discretion.’ ” US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 690 (8th Cir. 2009) (quoting Haynes v. Am. Motors Corp., 691 F.2d 1268, 1272 (8th Cir. 1982)). The Supreme Court has held that me-too evidence is “neither per se admissible nor per se inadmissible” under Federal Rules of Evidence 401 and 403. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). Rather, “[r]ele-vance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case.” Id. at 387, 128 S.Ct. 1140. The question of whether me-too evidence is relevant therefore “depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” Id. at 388, 128 S.Ct. 1140.

We have previously held that me-too evidence “should normally be freely admitted at trial” because “an employer’s past discriminatory policy and practice may well illustrate that the employer’s asserted reasons for disparate treatment are a pretext for intentional discrimination.” Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir. 1990); accord Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1105 (8th Cir. 1988) (concluding the district court abused its discretion in excluding circumstantial evidence of the employer’s discriminatory animus, including statistics about how often the employer hired and promoted black employees), overruled in part on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

Initially, Allsteel argues that the district court did not engage in case-by-case analysis of the evidence, as Sprint/United requires, but instead admitted it wholesale. We disagree. In its order on Allsteel’s motion in limine, the district court, citing Sprint/United, considered whether evidence of each woman’s experience was sufficiently related to the plaintiffs’ theory of the case. In particular, the district court noted that all of the other female employees were alleged to have experienced sex-based wage discrimination that occurred relatively close in time to the wage discrimination the plaintiffs alleged. This analysis demonstrates that the district court appropriately considered whether the evidence about each of the other female employees was relevant to the plaintiffs’ claims.

Next, Allsteel argues that the district court erred in admitting the me-too evidence with respect to Bartenhagen, Dez-eeuw, Nissen, Stammer, and Mattingly. First, Allsteel argues that the district court erred in admitting the me-too evidence regarding Bartenhagen, who testified that she was a factory manager in the Panel Plant in Operations between 2003 and November 2008, and that she was paid less than male factory managers who had less seniority than she did. In Allsteel’s view, Bartenhagen’s testimony was irrelevant to the plaintiffs’ claims, because she did not hold the same position as any of the plaintiffs, she was not involved in supervising the plaintiffs or setting their wages, and her employment overlapped only a few weeks with the plaintiffs’ recovery period.

However, in determining whether Bartenhagen’s testimony was admissible under Rule 401, the key question is not whether she was similar to the plaintiffs in every way, but whether her testimony was relevant “in the context of the facts and arguments” in the case. Sprini/United, 552 U.S. at 387, 128 S.Ct. 1140. Bartenhagen’s testimony tended to demonstrate that Allsteel did not uniformly set the wages of more senior employees higher than the wages of less senior employees. Thus, the testimony was relevant to rebut Allsteel’s affirmative defense that Dindinger and Loring were paid less than their male comparators because they had less seniority. The fact that Bartenhagen’s employment ceased shortly after the recovery period began did not render her testimony irrelevant. As we have previously explained, “[ejvidence of wage discrimination need not be confined to the [Equal Pay Actj’s ... limitation period ... for a court may consider relevant evidence from before that period while assessing the worker’s claims.” Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011). Accordingly, the district court did not err in admitting Bartenhagen’s testimony.

Allsteel also contends that the evidence that Dezeeuw and Nissen were paid less than male managers was irrelevant and should have been excluded. Dezeeuw worked as a group supply chain manager and as a factory manager in Operations from 2009 until at least 2012, and the plaintiffs presented evidence she was paid less than a male manager who had less seniority than she did, and who reported to her. Nissen worked as a factory manager in Operations from 2008 to 2010, and the plaintiffs presented evidence that she was paid less than male factory managers who had less education than she did. Allsteel points out neither Dezeeuw nor Nissen held the same position as any of the plaintiffs, was involved in setting the plaintiffs’ pay, or lodged pay discrimination complaints against Allsteel.

But, similar to Bartenhagen, the evidence regarding Dezeeuw and Nissen tended to show that Allsteel did not uniformly pay higher wages to employees with more seniority and education. Thus, the evidence was probative of whether Allsteel’s explanation that it paid Dindinger and Loring less than their male comparators based on seniority and education was pretextual, and the district court did not err in- admitting it.

Finally, Allsteel challenges the testimony of Stammer, who was a group leader at Allsteel from 2003 to 2007, and of Mattingly, who was a group leader beginning in 2007. Each woman testified that in 2007, she was mistakenly sent an email listing salary information for some group leaders and managers, which showed that female group leaders and managers (including Stammer and Mattingly) were paid less than male group leaders and managers. Stammer testified that she did not complain about her pay after receiving the email. Mattingly testified that she did file an internal complaint, but that Allsteel did not change its pay practices. In 2009, Mat-tingly filed a complaint with the Iowa Civil Rights Commission, as well as a lawsuit, asserting violations of the Equal Pay Act. According to Mattingly, Allsteel took no remedial action in response.

Allsteel argues that evidence relating to Stammer was irrelevant because she did not hold the same position or report to the same supervisors as any of the plaintiffs, was not employed at Allsteel during the recovery period, and did not file. a complaint about her pay. It argues the evidence relating to Mattingly was irrelevant because she did not hold the same positions or report to the same supervisors as any of the plaintiffs, she did not review the plaintiffs’ performance, her internal complaint was filed before the recovery period, and neither her complaint nor her lawsuit addressed the pay of the plaintiffs or their male comparators. Even so, their testimony was relevant to show that Allst-eel was aware that its female managers were paid less than its male managers, and that this could be a violation of state and federal law — evidence that is probative of whether Allsteel willfully violated the Iowa Civil Rights Act or Equal Pay Act. See Simpson v. Merchants & Planters Bank, 441 F.3d 572, 580 (8th Cir. 2006) (explaining that a violation of the Equal Pay Act is willful if the employer “act[ed] knowingly or with reckless disregard of whether the contested conduct was prohibited”). Thus, the district court did not err in admitting the me-too evidence relating to Stammer and Mattingly.

3. Audit evidence

Next, Allsteel argues that it is entitled to a new trial because the district court erred in excluding under Federal Rule of Evidence 403 the results of an audit of Allsteel’s pay practices conducted by the OFCCP. In reviewing a district court’s decision whether to admit evidence under Rule 403, “our task is not to reweigh the prejudicial and probative elements of the evidence, but rather to determine if the district court clearly abused its discretion.” Williams v. Neb. State Penitentiary, 57 F.3d 667, 670 (8th Cir. 1995). Additionally, “in an employment discrimination case the admission of administrative findings, such as an EEOC reasonable cause determination, is to be left to the sound discretion of the trial court,” particularly when the “employment discrimination claim is tried to a jury.” Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984).

Before trial, the plaintiffs filed a motion in limine to exclude two letters Allsteel had received from the OFCCP about the audit results. Allsteel agreed not to offer the letters, but argued that it was entitled to offer other evidence about the audit. The district court ruled that Allsteel would be permitted to present evidence about the audit in general, but it would not be allowed to offer any evidence about the results of the audit because the unfair prejudicial effect of such evidence would outweigh its probative value.

At trial, Allsteel presented evidence that because it is a government contractor, it is subject to audits of its compensation practices by the OFCCP, and that the OFCCP conducted such an audit in 2012. To comply with the audit, Allsteel collected compensation data from 2010 and 2011, including information about the relative pay of male and' female employees. Cherie McClusky, a manager in Human Resources, testified that she helped collect data for the 2012 audit, and that based on her review of the data, she did not believe Allsteel had a problem with pay disparities between male and female employees. Allst-eers in-house counsel Rebecca Schmidt testified that she provides legal counsel to Allsteel regarding compliance with the OFCCP’s requirements, and that Allsteel did not change its compensation practices after the 2012 audit.

Allsteel also made offers of proof to establish that, but for the district court’s order excluding the audit results, it would have presented evidence that OFCCP uncovered no violations during the audit; that Allsteel had never been barred from selling furniture to the federal government; that the federal government had never told Allsteel that too few women worked in its manufacturing facility; and that no court, consultant, or anyone associated with the state or federal government had informed Allsteel that its pay practices have a discriminatory impact on women.

In Allsteel’s view, the district court abused its discretion in excluding evidence about the results of the audit because the results were probative of whether Allsteel willfully violated the Equal Pay Act and Iowa Civil Rights Act,- and whether sex was a motivating factor in determining Dindinger’s and Loring’s pay — an element of their Title VII wage discrimination claims. Allsteel contends that this evidence was especially important because the plaintiffs presented evidence to show that Allsteel willfully violated the Equal Pay Act — in particular, Mattingly’s testimony that Allsteel took no action in response to her complaints and lawsuit.

We decline to disturb the district court’s exercise of its sound discretion to limit Allsteel’s ability to offer evidence regarding the audit. To begin with, we agree that admitting the OFCCP’s findings would be unfairly prejudicial because it would suggest to the jury that an official fact-finding body had already decided whether Allsteel had violated the Equal Pay Act. This would create the risk that the jury would rely on the OFCCP’s results instead of its own judgment in determining whether the plaintiffs had proven their claims. See Johnson, 734 F.2d at 1309 (“To admit the report under these circumstances would amount to admitting the opinion of an expert witness as to what conclusions the jury should draw.”)- Further, the audit results had limited probative value because Allsteel was otherwise permitted to introduce a significant amount of evidence about the audit and the conclusions Allsteel personnel reached based on it. See Fed. R. Evid. 403 advisory committee’s note to 1972 rules (“The availability of other means of proof may also be an appropriate factor” to consider in deciding whether to exclude evidence). Accordingly, the district court did not abuse its discretion in excluding the audit results.

4. Retaliation evidence

Allsteel next argues that it is entitled to a new trial because the district court erred “by permitting Plaintiff Lisa Loring to introduce evidence that Allsteel’s conduct toward her was motivated by a retaliatory animus.” Specifically, Allsteel points to particular testimony from Timothy Mattes, who was Loring’s supervisor, Douglas Baker, who was an MCR Manager, and Loring herself. Allsteel contends that because Loring never alleged a retaliation claim against Allsteel, the evidence was irrelevant under Rule 401 and should have been excluded. “[EJvidentiary rulings should only be overturned if there was a ‘clear and prejudicial abuse of discretion.’ ” US Salt, 563 F.3d at 690 (quoting Haynes, 691 F.2d at 1272).

First, Allsteel contends that the district court erred in allowing the plaintiffs to ask Mattes (1) whether Loring received negative performance reviews after she filed the present lawsuit, and (2) whether she claimed she had been “bullied” after she filed the present lawsuit. This questioning, Allsteel submits, was irrelevant and improperly suggested Allsteel retaliated against Loring. But Allsteel’s characterization of the testimony at issue omits crucial context. The questioning Allsteel challenges occurred during the plaintiffs’ redirect examination of Mattes. During Allsteel’s cross-examination, Mattes testified in part that Loring did not receive a promotion she had sought because her job performance and leadership skills were lacking. He further testified that Loring had received poor performance reviews, and that she often characterized negative feedback as “bullying.” Because Mattes’ testimony suggested that Loring was not promoted because of problems with performance and accepting feedback, the plaintiffs were entitled to attack the reliability of that testimony by asking questions about the timing of the purported problems. Thus, the evidence was relevant to the question of whether Allsteel failed to promote Loring based on sex, and the district court did not abuse its discretion in admitting it.

Second, Allsteel argues the plaintiffs “returned to [the] theme” of retaliation when they cross-examined Baker “and implied a direct connection between an evaluation of Loring’s performance and the filing of this lawsuit.” But, again, the questions at issue were relevant to rebut Allsteel’s suggestion that Loring was not promoted because of her performance. In its direct examination of Baker, Allsteel asked him about a document he prepared recounting a conversation with Loring. According to the document, she told him that she had decided not to resign from Allsteel based on her attorney’s advice, but that she was unhappy with certain aspects of her job. In the portion of the cross-examination Allsteel challenges, the plaintiffs asked Baker whether he prepared the document before or after the lawsuit was filed. Accordingly, the district court did not err in admitting the testimony-

Finally, Allsteel contends that Loring improperly “suggested that she had been the victim of retaliation.” In the portion of the testimony Allsteel cites, Loring testified — without objection — that when she worked at Allsteel, she felt overwhelmed and wanted a raise, and that she felt Allst-eel became more critical of her performance in 2013. Similar to the plaintiffs’ questioning of Mattes and Baker, Loring’s testimony was relevant to undermine Allsteel’s evidence that the reason Loring was not promoted was her poor performance. Thus, the district court did not err in admitting it.

B. Fees

Allsteel next contends that the district court erred in granting the plaintiffs “nearly all” of the attorney’s fees they requested, despite their “limited success” on their Iowa Civil Rights Act claims. The plaintiffs moved for $302,652 in attorney’s fees. Allsteel argued that the figure should be -reduced, in part because the plaintiffs failed to recover “a collective twelve years of [Iowa Civil Rights Act] claims that were time-barred.” The district court ultimately awarded the plaintiffs attorney’s fees of $269,877.67, after reducing the figure sought by the plaintiffs on various other grounds. But it rejected Allsteel’s argument that a further reduction was warranted for the Iowa Civil Rights Act claims. Allsteel argues on appeal that this was error.

We review a district court’s award of attorney’s fees for abuse of discretion, “but its rulings on issues of law are reviewed de novo.” Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002). “The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates.” Id. at 851; see Dutcher v. Randall Foods, 546 N.W.2d 889, 897-98 (Iowa 1996) (“[W]e adopt the federal analytical framework for the calculation of attorney fees under the Iowa Civil Rights Act.”). The district court should then take account of “other considerations that may lead [it] to adjust the fee upward or downward, including the important factor of the ‘results obtained.’ ” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In considering how the “results obtained” should affect attorney’s fees, courts are to consider two questions. Id. “First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” Id. “Claims are related, and hence deserving of compensation, if they ‘involve a common core of facts’ or are ‘based on related legal theories.’ ” Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001) (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933).

In their complaint, Loring and Dindinger sought back pay under the Iowa Civil Rights Act for the entire time during which each allegedly experienced wage discrimination. Alsteel moved for partial summary judgment, arguing in part that because Iowa Code § 216.6A went into effect on April 28, 2009, the plaintiffs could not recover damages under § 216.6A for wage discrimination allegedly occurring before that date. On Allsteel’s motion, the district court certified the question to the Iowa Supreme Court. The district court also noted that the plaintiffs could possibly claim wage discrimination under another provision of the Iowa Civil Rights Act, Iowa Code § 216.6. Thus, on its own motion, the district court also certified the question of whether and for what time period the plaintiffs could recover damages for wage discrimination under § 216.6.

On the first question, the Iowa Supreme Court held that Iowa Code § 216.6A went into effect on July 1, 2009, and that the plaintiffs could recover damages under § 216.6A only for discrimination occurring after that date. Dindinger, 860 N.W.2d at 566. On the second question, the Iowa Supreme Court held that the plaintiffs could collect damages under Iowa Code § 216.6 for wage discrimination occurring within 300 days of filing an administrative complaint. Id. at 575-76. Based on these rulings, the district court granted summary judgment to Allsteel to the extent Dindinger and Loring sought damages under Iowa Code § 216.6A for discrimination occurring before July 1, 2009, or under Iowa Code § 216.6 for discrimination occurring more than 300 days before they filed their administrative complaints. As recounted above, the jury ultimately found in favor of Dindinger and Loring on their Iowa Code § 216.6A claims. Dindinger and Loring elected not to pursue wage discrimination claims under Iowa Code § 216.6.

Allsteel argues that the district court abused its discretion in not granting a reduction in attorney’s fees for the Iowa Civil Rights Act claims for several reasons. First, Allsteel argues that the district court should have reduced the attorney’s fees to reflect the plaintiffs’ lack of success on the questions the district court certified to the Iowa Supreme Court. Allsteel cites Arneson v. Callahan, 128 F.3d 1243 (8th Cir. 1997), for the proposition that a party that is unsuccessful on appeal is not enti-tied to recover attorney’s fees for the work performed on the appeal. Allsteel contends that because a certified question of law is similar to an appeal, the district court therefore should have excluded fees for the work performed on the certified questions. However, this argument misconstrues Arneson. In Arneson, we reversed the district court’s grant of the appellee’s post-trial claims for prejudgment interest and a tax enhancement award. Arneson, 128 F.3d at 1247. Because the appellee was no longer the prevailing party with respect to those claims, and because those claims were “distinct and unrelated to” the claims the appellee had prevailed on, we remanded to the district court to redetermine attorney’s fees. Id. at 1248-49. In other words, Arneson merely instructed the district court on remand to update its calculation of attorney’s fees, recognizing its discretion to do so in light of the results of the appeal. It did not hold that a party’can never recover attorney’s fees for work on an ultimately unsuccessful appeal.

Second, Allsteel argues that denying attorney’s fees is appropriate under the Hensley test because the plaintiffs “failed to prevail on claims that were unrelated to the claims on which [they] succeeded.” Allsteel contends that under the Iowa Civil Rights Act, each separate instance of wage discrimination is a discrete, independent claim — such that “a new cause of action accrues with the issuance of each alleged discriminatory paycheck.” Further, Allsteel argues, the “discrete” Iowa Code § 216.6A claims that accrued before July 1, 2009, are unrelated to those that accrued after July 1, 2009, because the “core group of facts” surrounding each paycheck varied over time, and because the claims that accrued before July 1, 2009 were dismissed Based on their “time-barred nature” rather than on their merits. We disagree. Even assuming that each paycheck represents a separate claim under Iowa Code § 216.6A, the claims- that accrued before July 1, 2009, are inextricably related to those that accrued after that date, because they all involve the same course of conduct, and are all based on the same legal theory.

Finally, Allsteel argues that Dindinger and Loring did not “achieve a level of success that makes the hours reasonably expended a satisfactory basis” for an award of attorney’s fees. Allsteel points out that Dindinger and Loring were ultimately able to recover only a fraction of the back pay and liquidated damages they asserted they were entitled to in their responses to Allsteel’s interrogatories. But we have previously rejected the argument that “the percentage of attorney’s fees awarded should reflect the percentage of relief obtained versus that sought” in civil rights cases because doing so “would discourage litigants with small amounts of damages from pursuing a civil rights claim in court.” Simpson v. Merchants & Planters Bank, 441 F.3d 572, 580-81 (8th Cir. 2006). Accordingly, the district court did not abuse its discretion in not reducing the plaintiffs’ attorney’s fees for Dindinger’s and Loring’s Iowa Civil Rights Act claims.

C. Costs

Allsteel argues that the district court abused its discretion in awarding the plaintiffs costs for a RealTime transcript feed, redundant deposition transcripts and video depositions of the same witnesses, and Westlaw research fees. “We review de novo the legal issues related to ... costs and review for abuse of discretion the actual award of ... costs.” Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 516 (8th Cir. 2006). Under Federal Rule of Civil Procedure 54(d), “[a] prevailing party is presumptively entitled to recover all of its costs.” In re Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005). “However, such costs must be set out in 28 U.S.C. § 1920 or some other statutory authorization.” Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006).

First, Allsteel argues that costs for the RealTime transcript feed should be vacated because the feed was not necessary for the case. The district court awarded the RealTime transcript costs to the plaintiffs under 28 U.S.C. § 1920(2), which provides that “[a] judge or clerk of any court of the United States may tax as costs ... [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” But “[b]efore awarding such costs, the court should determine that transcripts were not obtained primarily for the convenience of parties but were necessary for use in the case.” McDowell v. Safeway Stores, Inc., 758 F.2d 1293, 1294 (8th Cir. 1985) (per curiam). The district court determined that the transcript feed was necessary because the case raised complex issues, and the district court had required counsel to research issues of law and prepare additional filings during the trial. We conclude that this determination — which the district court was particularly well-situated to make — was not an abuse of discretion.

Second, Allsteel argues that the district court erred in awarding costs for both printed transcripts and video recordings for the depositions of five witnesses, because the video recordings were redundant to the printed transcripts, and the plaintiffs never introduced the recordings at trial. AllsteeJ cites a district court case ruling that under 28 U.S.C. § 1920, a party may recover costs for printed transcripts or video recordings of depositions, but not both. But we have held that § 1920(2) “permits taxation of costs for both printed and electronically recorded transcripts of the same deposition as long as each transcript is necessarily obtained for use in a case.” Stanley v. Cottrell, Inc., 784 F.3d 454, 466-67 (8th Cir. 2015). In any event, the district court did not award the costs for the transcripts and recordings of the depositions under 28 U.S.C. § 1920; it awarded them under the fee-shifting provisions of the Equal Pay Act, 29 U.S.C. § 216(b), Iowa Civil Rights Act, Iowa Code § 216.15(9)(a)(9), and Title VII, 42 U.S.C. § 2000e-5(k). Allsteel does not argue that a court may not award costs for both printed transcripts and video recordings of depositions under the relevant fee-shifting provisions of the civil rights statutes. Thus, the district court did not abuse its discretion in awarding those costs.

Third, Allsteel argues that the district court erred in awarding costs for Westlaw research, because computerized legal research (CLR) costs are not recoverable as costs. It cites our decision in Leftwich v. Harris-Stowe State College, which held “that computer-aided research, like any other form of legal research, is a component of attorneys’ fees and cannot be independently taxed as an item of cost in addition to the attorneys’ fee award.” 702 F.2d 686, 695 (8th Cir. 1983). But after the parties in this case submitted their briefs, we held pursuant to an intervening Supreme Court case that “if the prevailing party demonstrates that separately billing for CLR is the ‘prevailing practice in a given community’ and that such fees are reasonable, the district court may award those costs.” Hernandez v. Bridgestone Ams. Tire Operations, LLC, 831 F.3d 940, 950 (8th Cir. 2016) (quoting Missouri v. Jenkins, 491 U.S. 274, 287, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)). Because the district court did not have the benefit of Hernandez at the time it calculated costs, we remand the issue of costs with instructions to determine whether charging clients separately for Westlaw research is the “prevailing practice” in Iowa.

III. Conclusion

We remand the issue of costs to the district court to determine whether it is the prevailing practice in Iowa to bill clients separately for Westlaw research, and affirm in all other respects.

      . The plaintiffs also brought other claims that were dismissed prior to trial.

      . The parties do not dispute that sex-based wage discrimination claims under the Iowa Civil Rights Act are substantively identical to sex-based wage discrimination claims under the Equal Pay Act for the purposes of the jury-instruction issue. Compare Iowa Code § 216.6A(b) with 29 U.S.C. § 206(d)(1); see Dindinger v. Allsteel, Inc., 860 N.W.2d 557, 564-65 (Iowa 2015) (explaining that the wording of Iowa Code § 216.6A is similar to the Equal Pay Act, and drawing on federal courts’ interpretations of the Equal Pay Act to interpret § 216.6A). Accordingly, we consider the Equal Pay Act and Iowa Civil Rights Act claims together.

      . The district court gave this instruction for Dindinger’s Equal Pay Act claim, and later incorporated it into its instructions for Lor-ing’s and Freund’s Equal Pay Act claims.

      . The plaintiffs contend that because Allsteel did not object to all of the me-too evidence adduced at trial, it has waived its right to challenge the evidence on appeal. Because we find the district court did not abuse its discretion in admitting the evidence, we need not consider the issue of waiver.

      . In its reply brief, Allsteel asserts that me-too evidence is admissible only if the other employee is “similarly situated in all relevant aspects” to the plaintiff. But that standard applies to evidence that a plaintiff has been treated differently from another employee who is not part of the protected class. Harris v. Chand, 506 F.3d 1135, 1140-41 (8th Cir. 2007). Me-too evidence, in contrast, is evidence that other employees who were part of the same protected class as the plaintiff were also discriminated against. See Sprint/United, 552 U.S. at 386, 128 S.Ct. 1140 (explaining that me-too evidence is “a very different kind of evidence” from differential treatment evidence).

      . Iowa Code § 216.6(1)(a) makes it "an unfair or discriminatory practice” for an employer to "discriminate in employment against any applicant for employment or any employee because of the ... sex ... of such applicant or employee, unless based upon the nature of the occupation.” Iowa Code § 216.6A(2)(b) makes it "an unfair or discriminatory practice” when "a discriminatory pay decision or other practice is adopted, when an individual becomes subject to a discriminatory pay decision or other practice, or when an individual is affected by application of a discriminatory pay decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Preston C. PHILLIPS, Defendant-Appellant.
    No. 15-1712
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 17, 2017
    Filed: April 4, 2017

      Ronna ,A. Holloman-Hughes, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.
    Bruce E. Clark, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   BENTON, Circuit Judge.

This case is on remand from the Supreme Court of the United States. Phillips v. United States, — U.S. -, 137 S.Ct. 634, 196 L.Ed.2d 507 (2017). Preston Charles Phillips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e). The district court sentenced him as an armed career criminal. He appealed, challenging, among other things, the ACCA designation. This court affirmed. United States v. Phillips, 817 F.3d 567 (8th Cir. 2016). The Supreme Court vacated the judgment and remanded for “further consideration in light of Mathis v. United States,” — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Phillips, 137 S.Ct. at 634. In light of Mathis, this court vacates the sentence and remands for resentencing.

Phillips objected to his classification as an armed career criminal, claiming his Missouri convictions for second-degree domestic assault and second-degree burglary were not violent felonies. Applying the “categorical approach,” this court held that two second-degree domestic assault convictions were violent felonies under the ACCA’s force clause, 924(e)(2)(B)(i), and one second-degree burglary conviction was an enumerated violent felony in 924(e)(2)(B)(ii).

On certiorari, the Supreme Court vacated and remanded for further consideration in light of Mathis. Id. This court vacated its March 8, 2016 opinion, recalled the mandate, and reopened the case.

“[T]he Supreme Court’s decision in Mathis, which did not address the ACCA’s force clause, does not alter [the] prior decision that [Phillips’ convictions for second-degree domestic assault] were ACCA violent felonies.” United States u. Lamb, 847 F.3d 928, 930 (8th Cir. 2017). ‘Mathis does require additional analysis” whether Phillips’ second-degree burglary convictions were “enumerated ACCA violent fel-onries].” Id.

Determining whether a past conviction is a violent felony, this court applies the categorical approach, looking “ ‘only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016), quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “If the statute of conviction lists elements in the alternative, the sentencing court may apply the ‘modified categorical approach.’ ” Id.

In United States v. Lamb, this court explained how to apply the “modified categorical approach” to determine whether a burglary is a violent felony after Mathis:

Many state burglary statutes are overin-clusive, that is, they define burglary more broadly than generic burglary. For example, a statute may include unlawful entry into places other than buildings, such as automobiles and vending machines. If an overinclusive statute has a “divisible” structure — defining multiple crimes by listing one or more elements in the alternative — the Court applies a “modified categorical approach” that “permits [federal] sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps [v. United States], 133 S.Ct. [2276] at 2281 [186 L.Ed.2d 438 (2013) ]. However, if the statute is overinclusive and not divisible, as in Descamps, no prior conviction under that statute qualifies for the ACCA mandatory minimum sentence enhancement.
In Mathis, the Court resolved a circuit conflict regarding the meaning of the term “divisible.” Under Mathis, when “faced with an alternatively phrased statute [we must first] determine whether its listed items are elements or means.” 136 S.Ct. at 2256. “Elements” are “the things the prosecution must prove to sustain a conviction.” Id. at 2248 (quotation omitted). “Means” are “[h]ow a given defendant actually perpetrated the crime.” Id. at 2251. To distinguish between elements and means, federal . sentencing courts should look at “authoritative sources of state law” such as “a state court decision [that] definitively answers the question,” or the statute’s text. If necessary, the court may “peek” at the record of the prior conviction, but only to determine if the statutory alternatives are elements or means. Id. at 2256-57 (quotation omitted). If the statute lists alternative elements, it is divisible, and therefore the prior conviction is subject to modified categorical analysis. Id.

Lamb, 847 F.3d at 931.

“The basic elements of the generic burglary offense are ‘unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.’ ” United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014), quoting Taylor, 495 U.S. at 599, 110 S.Ct. 2143. Phillips has two convictions for second-degree burglary under Missouri Revised Statute 569.170, which provided at the time of his convictions:

A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.

“Inhabitable structure” was defined to include:

(2) [A] ship, trailer, sleeping car, airplane, or other vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or
(c) Which is used for overnight accommodation of persons. Any such vehicle or structure is “inhabitable” regardless of whether a person is actually present!.]

RSMo § 569.010.

Before Mathis, this court held that “the basic elements of the Missouri second-degree burglary statute are the same as those of the generic burglary offense,” and, therefore, a conviction under Missouri’s second-degree burglary statute is a violent felony under the categorical approach. Olsson, 742 F.3d at 856. After Mathis, however, this court held:

Under Missouri law, “[a] person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Mo. Rev. Stat. § 569.170.1.. Initially, this crime appears to fit within the elements of generic burglary. However, Missouri law defines “inhabitable structure” to include “a ship, trailer, sleeping car, airplane, or other vehicle or structure.” Mo. Rev. Stat. § 569.010(2). The statute thus covers a broader range of conduct than generic burglary and therefore does not qualify categorically as a violent felony.

United States v. Bess, 655 Fed.Appx. 518, 519 (2016).

Although a Missouri second-degree burglary conviction is not a violent felony under the categorical approach, it “may qualify as [a] predicate offense! ] under the modified categorical approach” if “the relevant statute is divisible,” meaning the “statute lists alternative elements and thus defines multiple separate crimes.” Id. at 519-20. In Sykes, this court held the Missouri second-degree burglary statute lists “two alternative elements,” with burglary of “a building” describing “an element of second-degree burglary rather than a means.” Sykes, 844 F.3d at 715 (“[T]he statute contains at least two alternative elements: burglary ‘of a building’ and burglary of ‘an inhabitable structure,’ separated in the text by the disjunctive ‘or.’ ”), citing Mathis, 136 S.Ct. at 2248. Courts may, therefore, apply the modified categorical approach to determine whether a past conviction is a violent felony. Id. Applying this approach, Sykes held, “Second-degree burglary of a building conforms to the elements of a generic burglary promulgated in Taylor: (i) unlawful entry or remaining in (ii) a building or structure (in) with the intent to commit a crime.” Id., citing Taylor, 495 U.S. at 598, 110 S.Ct. 2143.

In Sykes, it was undisputed the defendant burglarized “a building.” Under the modified categorical approach then, the burglary was a violent felony. Here, the record is unclear. The presentence investigation report lists two second-degree burglary convictions. The 1988 conviction is described as burglary of a “residence.” The 2007 conviction is described as burglary of “an inhabitable structure.” Neither charging document is part of the record, and the government concedes neither “expressly states that Phillips unlawfully entered a ‘building.’ ” Still, the government argues that “the reference to a physical street address, together with the description of it as inhabitable, clearly demonstrates, on the face of the charging document alone, that Phillips was charged with unlawfully entering into a building.” The district court did not make a finding on this issue.

This court vacates the sentence and remands to the district court to determine whether Phillips’ second-degree burglary convictions were “of a building,” and thus violent felonies under the ACCA.

⅜ ⅝ ⅝ ⅝ ⅜ •!» $

The sentence is vacated, and the case remanded for resentencing.

      . The presentence investigation report lists two second-degree burglary convictions, one in 1988 and one in 2007. For the 1988 conviction, the report lists a violation of RSMo § 569.170, Missouri’s second-degree burglary statute. For the 2007 conviction, the report lists a violation of RSMo § 570.170, the Missouri bait advertising statute — obviously a typographical error.


author: LOKEN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Joseph Joshua JACKSON, Defendant-Appellant Red Lake Band of Chippewa Indians, Amicus on Behalf of Appellee
    No. 15-1789
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: April 4, 2017
    Rehearing and Rehearing En Banc Denied May 10, 2017

      Counsel who presented argument on behalf of the appellant was Keala C. Ede, AFPD, of Minneapolis, MN. The following attorney appeared on the appellant brief; Katherine M. Menendez, AFPD, of Minneapolis, MN.

      Counsel who presented argument on behalf of the appellee and appeared on the brief was Deidre Yvonne Aanstad, AUSA, of Minneapolis, MN.
    Counsel who presented argument on behalf of the amicus in support of the appel-lee and appeared on the brief was Thomas John Peckham, of Albuquerque, NM.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

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

   LOKEN, Circuit Judge.

Joseph Joshua Jackson, an Indian, was charged with committing federal felony offenses in the town of Redby, Minnesota, historically part of the Red Lake Indian Reservation. The Major Crimes Act grants federal jurisdiction over these offenses when committed by Indians “within the Indian country,” 18 U.S.C. § 1153(a), including the Red Lake Reservation, see 18 U.S.C. § 1162(a). Jackson moved to dismiss, arguing the district court lacked subject matter jurisdiction because a 1905 Act of Congress diminished the Red Lake Reservation, removing the town of Redby from Indian country. After the district court denied his motion to dismiss, Jackson conditionally pleaded guilty and appealed that ruling. Concluding the record did not adequately support the district court’s determination that Redby is part of Indian country as a matter of law, we vacated the district court’s order, allowed Jackson to withdraw his guilty plea, and remanded for further proceedings. United States v. Jackson, 697 F.3d 670, 678 (8th Cir. 2012) (“Jackson I”).

On remand, the parties agreed to resolve the issue of subject matter jurisdiction before Jackson decided whether to withdraw his plea. After an extensive evi-dentiary hearing, the district court again denied the motion to dismiss and subsequently entered final judgment sentencing Jackson to 136 months in prison. Jackson appeals the order denying his motion to dismiss, again arguing that the 1905 Act diminished the Red Lake Reservation and removed Redby from Indian country. Whether an act of Congress diminished or disestablished an Indian reservation is a question of statutory interpretation we review de novo. See, e.g., Nebraska v. Parker, — U.S. -, 136 S.Ct. 1072, 1079, 194 L.Ed.2d 152 (2016). We agree with the district court that the 1905 Act did not diminish the Red Lake Reservation. Accordingly, we affirm.

I. Background.

A. The term “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” 18 U.S.C. § 1151(a). As we explained in Jackson I, Congress can unilaterally alter reservation boundaries, and in modern times the Supreme Court has decided a series of cases “raising the question whether various surplus lands Acts [in the late nineteenth and early twentieth centuries] diminished or entirely terminated particular reservations.” 697 F.3d at 672. We summarized the relevant inquiry, quoting from South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343-44, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998). Last year, the Supreme Court confirmed that this remains the relevant inquiry:

Only Congress can divest a reservation of its land and diminish its boundaries, and its intent to do so must be clear. To assess whether an Act of Congress diminished a reservation, we start' with the statutory text, for the most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands. Under our precedents, we also examine all the circumstances surrounding the opening of a reservation.... [M]any surplus lands Acts did not clearly convey whether the opened lands retained reservation status or were divested of all Indian interests. For that reason, our precedents also look to any unequivocal evidence of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the United States and the State [where the reservation is located].

Parker, 136 S.Ct. at 1078-79 (citations and quotations omitted). Congress’ intent to “alter the terms of an Indian treaty by diminishing a reservation ... must be clear and plain.” Yankton Sioux Tribe, 522 U.S. at 343, 118 S.Ct. 789 (citations and quotation omitted). Although the 1905 Act here at issue was not a surplus lands act, we adhere to our ruling in Jackson I that this issue of diminishment is governed by the principles “developed by the Supreme Court in surplus lands Act cases.” 697 F.3d at 673.

B. The Red Lake Reservation resulted from an 1863 Treaty between the United States and the Red Lake and Pembina Bands of Chippewa Indians. Two subsequent acts of Congress significantly reduced the Reservation’s boundaries. The Nelson Act of January 14, 1889, 25 Stat. 642 (“1889 Act”), provided that the Red Lake Band will “cede, relinquish, and convey” over two million acres to the United States. The Act of February 20, 1904, 33 Stat. 46 (“1904 Act”), ratifying a 1902 agreement, stated that the Band “cede[d], surrender[ed], grantfed] and convey[ed]” more than 250,000 acres to the United States. Redby is located six miles inside the Red Lake Reservation’s present-day exterior boundary.

The 1889 and 1904 Acts were passed during the so-called “allotment era,” in which Congress passed surplus lands acts that allotted tribal lands to individual Indians and sold surplus lands to white settlers, reflecting Congress’ nationwide policy to promote Indian assimilation and accommodate settlers’ westward expansion. See Solem v. Bartlett, 465 U.S. 463, 466, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). These Acts provided that the Red Lake Band ceded its entire interest in the surrendered lands, creating “a nearly conclusive, or almost insurmountable, presumption of diminishment.” Jackson I, 697 F.3d at 675 (quotation omitted). Though the 1889 Act mandated the sale of “allotted lands in severalty to the Red Lake Indians on Red Lake Reservation,” 25 Stat. 642, 643, the Red Lake Band successfully resisted allotment. Congress in the 1904 Act removed mandatory allotment language, stating Band members “shall be entitled” to allotments. 33 Stat. 46. As late as June 1928, the Secretary of the Interior reported that “it has not yet been found to be practicable to allot the Red Lake Reservation.” U.S. Court of Claims, Report of the Commissioner No. H-76 at 96 (April 2, 1934) (“H-76 Report”). Red Lake has remained a “closed” reservation, meaning almost all lands are held communally, “apparently one of only two reservations in the nation to enjoy this status.” Nord v. Kelly, 520 F.3d 848, 858 n.7 (8th Cir. 2008) (Murphy, J., concurring).

C. During this period, Congress also actively promoted railroad development by granting railroad rights-of-way through various Indian reservations. In 1899, Congress passed a law enabling railroad companies to obtain rights-of-way, but limiting the amount of land that could be granted. See Act of March 2, 1899, 30 Stat. 990. In 1903, the Red Lake Transportation Company converted a temporary logging permit into a permanent railroad right-of-way extending through part of the Red Lake Reservation into modern day Redby. In 1904, the Minneapolis, Red Lake and Manitoba Railway Company (“MRL&M”), having acquired the Red Lake Transportation Company’s interests, petitioned Congress for additional lands surrounding the existing terminal to establish a lumber-shipping hub near Redby. See H. R. Rep. No. 3542 (1905). On February 8, 1905, Congress passed the statute here at issue, entitled an Act to Allow the Minneapolis, Red Lake, and Manitoba Railway Company to Acquire Certain Lands in the Red Lake Reservation (“1905 Act”). The 1905 Act provided, as relevant here:

Be it enacted ... That there is hereby granted to the Minneapolis, Red Lake and Manitoba Railway Company[,] ... a line of railroad ... having its northern terminus at a point ... in the Red Lake Indian Reservation[,] ... the right to select and take from the lands of the Red Lake Indian Reservation grounds adjacent to its northern terminus ... not to exceed in extent three hundred and twenty acres.
Sec. 2. That before title to said lands shall vest in the said railway company, and before said company shall occupy or use said lands, compensation therefor shall be made to the tribes of Indians residing upon the said reservation.... The amount of compensation for said lands shall be ascertained and determined in such manner as the Secretary of the Interior may direct and be subject to his final approval.
Sec. 3. That said company shall file maps ... showing the definite location of the grounds so selected and taken, which said maps shall be subject to the approval of the Secretary of the Interi- or....
Sec. 5. The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of intoxicating liquors in the Indian country, shall be in full force and effect throughout the territory hereby granted, until otherwise directed by Congress or the President of the United States, and for that purpose said tract shall be held to be and to remain a part of the diminished Red Lake Indian Reservation.
Sec. 6. That Congress reserves the right to alter, amend, or repeal this Act or any part thereof.

MRL&M timely selected 312.09 acres where the town of Redby is today, including 11.59 acres that formed its existing right-of-way. The Secretary of the Interior determined fair compensation to the Band, and MRL&M paid $6,816.20 in damages. MRL&M next sought a patent for the 312.09 acres to evidence its title. The Secretary denied the request because the 1905 Act did not include a patent provision and title was fully vested by the railroad’s compliance with the 1905 Act. Eventually, MRL&M abandoned the rail line, and in 1939 the Band began to restore the 312.09 acres into trust to benefit the Band, including through a $5,000 payment to the railroad. The United States now holds approximately 95% of the land MRL&M acquired under the 1905 Act in trust for the benefit of the Band.

D. In Jackson I, we noted that Indian country includes “rights-of-way running through the reservation,” 18 U.S.C. § 1151(a), but the 1905 Act “did not grant the railroad a right-of-way.... [T]he railroad already had its right-of-way and was operating.” 697 F.3d at 676. Though the 1905 Act did not provide that the Band “ceded” its interest in the 312 acres, language creating a “nearly conclusive” presumption of diminishment, Section 1 al-lowéd the railroad to “select and take from” the lands of the Reservation, language “obviously derived from earlier Acts granting lands in addition to rights-of-way to railroads.” Id. In addition, Section 1 granted the railroad more land than the minimum needed for a right-of-way, and Section 5 contained a liquor prohibition that was “unnecessary if the Act did not diminish the Reservation” and that referred to “the diminished Red Lake Indian Reservation.” Id. at 676-77. We considered the 1889 Act and the 1904 Act, and we noted the distinct railroading context of the 1905 Act. Jackson I, 697 F.3d at 673-77. We concluded the text of the 1905 Act did not provide “clear and plain evidence of congressional intent” to diminish the Red Lake Reservation, but these provisions contained “considerable indication of an intent to diminish.” Id. at 677.

Under the Supreme Court’s relevant inquiry, this textual ambiguity mandated consideration of extrinsic evidence — “the historical context surrounding the passage of the surplus land Acts and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there.” Yankton Sioux Tribe, 522 U.S. at 344, 118 S.Ct. 789 (quotation omitted). Unequivocal historical evidence establishing a “widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation” may support a finding of diminishment, even where the statutory language is ambiguous as to Congressional intent. Solem, 465 U.S. at 471, 104 S.Ct. 1161. Yet the record on appeal included only the 1905 Act, a single floor statement in the Act’s legislative history stating that it extends a railroad’s existing right-of-way, 39 Cong. Rec. 1854, a comparison to the 1904 Act, and documents that Jackson submitted showing that Beltrami County assesses taxes against some lots in Redby. On this spotty and inconclusive record, we concluded the government had not met its burden to present evidence permitting a court to “conclude, as a matter of law, that the reservation was not diminished by the 1905 Act.” Jackson I, 697 F.3d at 679.

II. Proceedings on Remand.

On remand, the parties and the Red Lake Band of Chippewa Indians, appearing as amicus curiae on behalf of the government, presented substantial testimony, exhibits, and briefing to address these issues at a two-day evidentiary hearing. Ian Smith, a Project Historian at Historical Research Associates, testified for the government regarding Congress’s intent in passing the 1905 Act, based on his research summarized in a comprehensive report, A Study of the Act of February 8, 1905, ■ and Its Impact on the Red Lake Indian Reservation, Minnesota. Researching the period from the late 1880s to the late 1910s, Smith reviewed the Congressional Record, including U.S. House and Senate floor statements and Committee Reports regarding the 1905 Act and its 1910 amendment; government reports and records from the Bureau of Indian Affairs, the Department of the Interior, and the Bureau of Land Management; annual reports of the Commissioner of Indian Affairs from 1897-1912; National Archives records; Congressional reports related to the Red Lake Reservation and legislation impacting the Reservation; Narratives and Statistical Reports by the Superintendent of Red Lake Agency from 1911-1922; and secondary sources regarding railroad development on reservation lands. Based on his review of these records, Smith concluded, “The record was fairly clear ... from a historical perspective that the documents leading up to and subsequent to the passage of these laws didn’t show evidence of lands being ceded from the Reservation or lands being diminished or boundaries being changed.”

The Red Lake Band as amicus curiae filed a post-hearing brief that expanded on this historical record. The Band provided Congressional records of negotiations that preceded the 1889 and 1904 Acts and a 1934 report of the Commissioner of the Court of Claims. These sources described the Band’s successful resistance to Congress’ mandatory allotment policy, which resulted in Congress using permissive allotment language in the 1904 Act, further evidence, the Band contended, that Congress did not intend to diminish this unique Reservation in the 1905 Act. The Band also presented evidence addressing the government’s subsequent treatment of the area, the current Indian character of Redby, the importance of the area to the Red Lake Reservation, and the residents’ expectations of the Band’s continued authority.

Other government witnesses addressed the subsequent treatment and current character of the Redby area — Harlan Beaulieu, a Red Lake Realty Officer; Debra Glynn, co-owner of the Redby One Stop in Redby; Janet Beaulieu, Assistant Director of the Red Lake Housing and Finance Corporation; and Captain Dana Lyons from the Red Lake Department of Public Safety. Jackson presented three witnesses who testified to the current character and the extent of state and local government involvement in Redby — Judy Kay Lussier, co-owner of the Redby One Stop; Charlene Sturk, Beltrami County Recorder; and Thomas Westbrook, owner of the Redby Store.

After a comprehensive review of the record, the district court on remand found that the statutory language read in historical context shows'that Congress did not intend to diminish the reservation through the 1905 Act. Further, while the record regarding the subsequent treatment of the land was somewhat mixed, the district court found the government presented more compelling evidence of the land’s retained Indian character. It concluded that the government presented sufficient extrinsic evidence to show that Congress intended the 1905 Act to extend MRL&M’s existing right-of-way rather than remove that land from the Red Lake Reservation.

III. Analysis.

On appeal, both parties represent that there is little disagreement, if any, over the facts in the record. The parties dispute whether these facts support a conclusion of diminishment such that Jackson’s offenses did not occur in Indian country. The parties and the Band as amicus quite properly focus, primarily, on the text of the 1905 Act, read in its historical context, and particularly on the evidence presented on remand addressing the provisions in the 1905 Act that we noted as possible indicators of Congressional intent to diminish. See Jackson I, 697 F.3d at 677.

A. Issues Relating to Statutory Text. Jackson first argues that differences between the 1905 Act and contemporary right-of-way acts suggest that the 1905 Act was a land cession instead of an extension of MRL&M’s existing right-of-way. He notes that the 1905 Act does not use the term “right-of-way” in its title or text, unlike contemporary • right-of-way acts. And unlike right-of-way acts, the 1905 Act gave MRL&M the right to acquire title to land that it would “select and take,” without limiting its permitted use of the land.

Historian Smith’s report and testimony addressed this issue at length. He compared the 1905 Act to five right-of-way acts passed between 1888 and 1900 affecting the Red Lake Reservation, or land ceded in the 1889 Act. These other acts similarly allowed railroad companies to “take” lands alongside their rights-of-way. See Act of April 17, 1900, 31 Stat. 134 (granting a right-of-way and stating “railroad company may take not exceeding forty acres in addition to the grounds allowed for station purposes for the corresponding section of ten miles” for railroading purposes); Act of October 1, 1890, 26 Stat. 660 (granting right-of-way and “the right to take and use one hundred and sixty acres of the lands in said reservation [to] be held for general railway uses and purposes only”). Smith opined that similarities between the 1905 Act and these earlier right-of-way acts suggest that Congress did not intend to diminish the Red Lake Reservation. The Red Lake Band argues that Section 6 of the 1905 Act, which was not referenced in Jackson I, incorporated language frequently used in right-of-way statutes.

Though the 1905 Act was not .explicitly a right-of-way statute, Smith’s research suggests that Congress intended the 1905 Act as an extension of MRL&M’s existing right-of-way. During House floor debate on February 3, 1905, Representative Steenerson characterized the purpose of the bill to “extend [MRL&M’s] right of way, so as to give it further terminals.” 39 Cong. Rec. 1854. Representative Clapp made similar reference to a right-of-way during debate regarding a 1910 Amendment to the 1905 Act. 45 Cong. Rec. 2554. A House of Representatives report presented the bill as an Act to allow MRL&M to “acquire certain lands in the Red Lake Indian Reservation in Minnesota for purposes of a proper terminus.” H. R. Rep. No. 3542 (1905). Jackson notes that the House Report included a letter in which the Acting Commissioner of Indian Affairs questioned whether Indian consent “should be obtained [prior] to the cession or grant of land.” Id. But, as the Report also stated, “grants for rights of way and station grounds to railroad companies through and upon Indian lands” are typically made without such consent. Id. The Commissioner’s reference to “cession or grant” is of little probative value, as one term suggests intent to diminish, the other does not. The “tenor” of the legislative record suggests Congress intended the bill that became the 1905 Act to simply extend MRL&M’s right-of-way. See Yankton Sioux Tribe, 522 U.S. at 351-52, 118 S.Ct. 789.

Jackson further argues that the provision for compensation in Section 2 of the 1905 Act indicates diminishment because “an unconditional commitment from Congress to compensate the Indian tribe for its opened land,” combined with use of cession language, creates a presumption of diminishment. Yankton Sioux Tribe, 522 U.S. at 344, 118 S.Ct. 789 (quotation omitted). But historian Smith’s research revealed that some contemporaneous right-of-way acts included provisions similar to the 1905 Act, requiring the Secretary of the Interior to approve plat maps, conduct appraisals, and accept damage payments for the Band. See Act of April 24, 1888, 25 Stat. 90. The record reflects that MRL&M paid $6,816.20 in damages for the value of 300.5 acres that was not already “property of the railroad” (its existing right-of-way), and for “Indian improvements” on the proposed townsite. As the Band notes, this method of compensation suggests that Congress intended to compensate members for an expansion of the railroad’s existing right-of-way.

Jackson renews his argument that the reference to “the diminished Red Lake Indian Reservation” in Section 5 “supports a finding that the 1905 Act diminished the reservation.” However, after reviewing government reports, contemporary laws, congressional documents, and archival records, historian Smith concluded that, by 1905, “diminished Red Lake Indian Reservation” had become a term of art government officials used in referring to the Reservation as diminished by earlier surplus lands acts, rather than by the 1905 Act itself. Smith cited references to the term in 1892, 1896, and 1902 compiled for a 1935 Court of Claims case, see H-76 Report at 92-93, 95, 98; government maps of the “diminished Red Lake Indian Reservation” after 1905; and the testimony of Red Lake Realty Officer Harlan Beaulieu at the evi-dentiary hearing.

Jackson again argues that the liquor prohibition in Section 5 is clear evidence of intent to diminish because the provision would otherwise be unnecessary. On remand, the government presented evidence that Congress passed other statutes with liquor prohibitions redundant to a general prohibition of liquor on reservations, see Act of July 23, 1892, 27 Stat. 260; that Congress was greatly concerned with the problem of alcohol abuse on reservations; and that Minnesota Congressman Steener-son presented Section 5 as a last minute amendment to address this concern.

Finally, Jackson argues that a 1910 amendment to the 1905 Act that was not part of the record in Jackson I demonstrates Congressional intent to diminish. Recall that in 1905, the Secretary of the Interior denied MRL&M’s request for a land patent because the 1905 Act did not include a provision for a patent and because title to the land was vested by the railroad’s compliance with the 1905 Act. But MRL&M persevered. In 1910 it obtained an amendment to the 1905 Act providing that “[t]he Secretary of the Interior shall cause a patent for the land selected and taken to be issued to said company ... to show the title vested in the company....” Act of June 25, 1910, 36 Stat. 855, 861. Issued in 1916, the patent granted MRL&M the land “together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto the said [MRL&M], and to its successors and assigns forever.”

Neither the 1910 amendment nor the 1916 patent demonstrates congressional intent to diminish the Red Lake Reservation in the 1905 Act. See 18 U.S.C. § 1151(a); Solem, 465 U.S. at 465 n.l, 470, 104 S.Ct. 1161. Moreover, the 1910 amendment’s legislative history, though scant, supports the conclusion that Congress viewed the 1905 Act as akin to a right-of-way act. MRL&M’s attorney, Mr. Babbitt, initially requested the patent in a 1905 letter to the Commissioner of Indian Affairs “for the lands in the Red Lake Indian Reservation.” During Senate debate on the amendment, Senator Moses Clapp explained the company preferred that “a patent shall issue to the company for the right of way.” 45 Cong. Rec. 2554.

On balance, we agree with the district court that the text of the 1905 Act, read in light of its legislative history, leans heavily in favor of the government’s position. Most significantly, the 1905 Act differed markedly from the 1889 and 1904 Acts that were viewed as diminishing the Reservation — the 1889 Act used the terms “cede, relinquish, and convey,” 25 Stat. 642, and the 1904 Act used the language “cede, surrender, grant, and convey,” 33 Stat. 46. As the Band notes, the 1889 and 1904 Acts transferred large areas of land by explicit terms of cession, language Congress did not use in the 1905 Act when it granted the railroad a “small island” six miles within the Reservation. Indeed, the different language in these earlier Acts, and the legislative history suggesting an intent merely to expand MRL&M’s right-of-way, confirm the lack of clear and plain Congressional intent to diminish. See Parker, 136 S.Ct. at 1080.

B. The Historical Context. Because Congress in this era often did not clearly convey whether transferred lands retained reservation status, the Supreme Court “also look[s] to any unequivocal evidence of the contemporaneous and subsequent understanding of the status of the reservation.” Parker, 136 S.Ct. at 1079 (quotation omitted). Once again, the record on remand extensively addressed this factor. As the record overall is inconclusive, we agree with the district court that it fails to show express or clear Congressional intent to diminish the Red Lake Reservation.

Jackson argues that the backdrop against which Congress legislated — an era of allotment and assimilation — indicates diminishment, because Congress pursued a nationwide policy of acquiring Indian lands. But diminishment analysis focuses on the historical context and language of the particular statute at issue. See Solem, 465 U.S. at 469, 104 S.Ct. 1161 (explaining that some surplus land acts diminished reservations, while some did not). Here, we agree with the district court that the record shows a history of successful resistance to allotment by the Red Lake Band that formed part of broader policy decisions and actions taken by the Government regarding the Reservation. See H-76 Report at 94-95. Congress in the 1904 Act removed mandatory allotment language, unlike statutes regarding other reservations passed a year before and after the 1904 Act. As late as June 1928, the Secretary of the Interior reported that “it has not yet been found to be practicable to allot the Red Lake Reservation.” Id. at 96. This congressional recognition of the Band’s entrenched opposition to allotment suggests that Congress would have expressly included cession language in the 1905 Act had it intended to diminish the Red Lake Reservation.

The government presented evidence of a contemporaneous understanding that the 1905 Act did not diminish the Red Lake Reservation, including the 1905 letter from MRL&M’s attorney requesting a patent for land “in” the reservation. There was testimony at the evidentiary hearing that Tribal members viewed the 1905 Act as a lease of 320 acres, given the lack of negotiations and MRL&M’s purpose in obtaining the land for railroad purposes.

Some of the historical context evidence is consistent with an intent to diminish. For example, Jackson argues that an itemized appraisal of Indian owned land on the “proposed townsite,” followed by compensation, is evidence of intent to diminish because Congress required that Indians leave the selected land, and there was no Indian presence immediately following the 1905 Act. He suggests the Commissioner of Indian Affairs treated the land as diminished, because his annual reports show the reservation reduced by 320 acres following the 1905 Act. But the reports are ambiguous, because they also refer to the 1905 Act as “granting 320 acres as a right of way.” As the Band argues, the “reduction” may simply reflect that 320 acres were no longer available for allotment, not that they were no longer a part of the Reservation. Overall, the record is inconclusive. “[Mjixed historical evidence ... cannot overcome [a] lack of clear textual signal that Congress intended to diminish the reservation” because it “in no way unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.” Parker, 136 S.Ct. at 1080, quoting Solem, 465 U.S. at 471, 104 S.Ct. 1161.

C. Subsequent Treatment and Current Character. The government’s treatment of the affected area, especially in the years immediately following the Act, offers “some evidentiary value,” and subsequent demographic history can provide an “additional clue” of Congressional intent. Parker, 136 S.Ct. at 1081, quoting Solem, 465 U.S. at 471-72, 104 S.Ct. 1161. But subsequent demographic history is the “least compelling evidence in our diminishment analysis.” Parker, 136 S.Ct. at 1082.

Jackson presented evidence that deeds of fee-owned property in Redby are registered at Beltrami County, just like non-tribal lands surrounding Red Lake, and that owners of lots within Redby pay property taxes to Beltrami County. He argues that the Band’s efforts to restore the 312.09 acres to trust status in 1939, including a $5,000 payment to MRL&M after it abandoned the rail line, shows that the land had been removed from the Reservation by the 1905 Act and the Band had to reclaim it.

The district court concluded that “[d]es'pite this evidence ... the Government presented] more compelling extrinsic evidence that the 312.09 acres have always retained their Indian character.” We agree. Following the 1905 Act, the federal government continued to treat the Reservation, including Redby, uniformly. Government maps include Redby within the Reservation’s boundaries, and annual reports of its Superintendent in the 1910s discuss Redby as part of the Reservation.

Today, Redby is one of four legislative districts in Red Lake, providing two elected representatives to the Tribal Council. The government and the Band presented evidence that Redby remains overwhelmingly Indian in character. The town is located six miles inside the Red Lake Reservation’s exterior boundary. The Band provides almost all public services, including public utilities, garbage pickup, street maintenance, education, and emergency services. Businesses are licensed and regulated by the Tribal Council. In enforcing the Tribal Code, the Red Lake police make no distinction between trust land and fee land, whether owned by Indians or non-Indians.

IV. Conclusion.

“[A] holding favoring federal jurisdiction is required unless Congress has expressly or by dear implication diminished the boundaries of the reservation.... ” United States ex rel. Condon v. Erickson, 478 F.2d 684, 689 (8th Cir. 1973). After careful review of this extensive record, the district court determined that the evidence failed to show that Congress clearly and plainly intended that the 1905 Act would diminish the Red Lake Reservation. We agree. The statute’s text, while somewhat ambiguous, reflects with the aid of historical records submitted by historian Smith and the Band that Congress intended the 1905 Act to accomplish a needed expansion of MRL&M’s existing right-of-way. Subsequent historical records are consistent with this interpretation, and present-day Redby is overwhelmingly Indian in character and governed by the Band’s tribal authorities. The record on remand is not unclear, but even if it were, we must presume Congress did not intend diminishment and hold in the government’s favor. See Solem, 465 U.S. at 481, 104 S.Ct. 1161.

For these reasons, the judgment of the district court is affirmed.

      . The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.

      . In the district court, the parties did not agree on the location in Redby where Jackson committed the offenses. The court determines whether a particular piece of land is in Indian country; the jury then decides whether the crime in fact occurred on that land. See United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999); United States v. Stands, 105 F.3d 1565, 1575-76 (8th Cir. 1997). Our conclusion that the 1905 Act did not diminish the Reservation fully resolves the Indian country issue.

      . See, e.g., Act of December 21, 1904, 33 Stat. 595, 596; Act of April 21, 1904, 33 Stat. 189, 217.