author: HARTZ, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond ALCORTA, Defendant-Appellant.
    No. 15-3129
    United States Court of Appeals, Tenth Circuit.
    Filed April 10, 2017

      Jonathan Laurans, Kansas City, Missouri, for Defendant-Appellant.
    James A. Brown, Office of the United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
    Before KELLY, HARTZ, and MATHESON, Circuit Judges.
   HARTZ, Circuit Judge.

Defendant Raymond Alcorta was charged with conspiracy to traffic methamphetamine with Javier Vega, Karmin Salazar, Adrienne Lopez, and Angela Lopez, who acted as drug couriers. They all lived in California; the drugs were delivered to Kansas City. Vega and Salazar pleaded guilty, while Defendant, Adrienne, and Angela proceeded to a joint trial in the United States District Court for the District of Kansas. All three were found guilty of conspiracy to distribute more than 500 grams of methamphetamine, and the couriers were also convicted of possessing methamphetamine with intent to distribute. We have reversed the convictions of Adrienne and Angela because the search of their vehicle violated the Fourth Amendment. See United States v. Lopez, 849 F.3d 921, 929 (10th Cir. 2017). But because Defendant has no standing to complain of that search and has not done so, we can consider on this appeal the evidence obtained in that search.

Defendant appeals, challenging the sufficiency of the evidence and the admission of recorded jailhouse conversations of cocon-spirators. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Defendant’s conviction was supported by sufficient evidence, and his arguments challenging the admission of the conversations are unpersuasive.

I. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

We examine the record de novo to determine whether the evidence, viewed in the light most favorable to the government, could convince a reasonable jury that the defendant was guilty beyond a reasonable doubt. See United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003). Because successful conspiracies are secret affairs, guilt must often be established by circumstantial evidence. See United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005).

B. The Evidence

The evidence against Defendant consisted mostly of recorded jailhouse conversations and physical evidence (including cell phones) gathered from the vehicles of the arrested couriers. Kansas state police officer Scott Proffitt, who served on a task force with agents of the federal Drug Enforcement Administration (DEA), testified about his investigation into this conspiracy, including his interpretation of the coded language used by'the conspirators in their recorded conversations, his linking of the conversations to physical evidence, and his synthesis of this evidence. None of the conspirators testified.

The government presented evidence of three drug-trafficking trips by the couriers. Vega and Salazar were arrested during the first trip after a traffic stop in Kansas. Adrienne and Angela then successfully executed a trip before also getting arrested after a Kansas traffic stop on a later try. Each arrest yielded about four pounds of methamphetamine.

After the couriers were arrested and taken to jail, they used jailhouse phones to make calls that were recorded by jail officials. Before listening to the recordings, the police were unaware that the two arrests were related. But with the aid of the conversations, they pieced together the conspiracy and concluded that Defendant was at its helm.

1. The Three Trips

On April 27, 2013, Vega and Salazar were arrested while driving a Jeep Cherokee on Interstate Highway 70 near Russell, Kansas. They had fallen for a ruse devised by Kansas law enforcement. A sign on the highway falsely announced a drug-check lane ahead and another announced a drug dog in use. After Vega and Salazar passed the signs they took the next exit and were promptly pulled over for not stopping properly at a stop sign and nearly hitting another vehicle. Vega granted consent to search the vehicle, where four pounds of methamphetamine was hidden in a false battery. Officers also found five cell phones and various documents.

The Lopezes were arrested on U.S. Route 54 two months later, on June 21. After they were stopped for speeding near Liberal, Kansas, a search of their vehicle revealed about four pounds of methamphetamine. Four cell phones and various documents were also seized from their car. A rental receipt showed that the car had been rented near Los Angeles on June 20.

The government also presented evidence (discussed below) that the Lopezes drove drugs from California to Kansas City on June 11. After making the delivery, the .Lopezes flew back to Los Angeles with cash.

2. Connecting the Deliveries

The link between the two arrests was discovered by Officer Proffitt. Soon after the arrest of Vega and Salazar, Proffitt spoke with them in jail, seeking cooperation for a controlled delivery. Failing at that, he subpoenaed records of their phone calls, visitors, and commissary accounts while they were in jail.

The subpoenas yielded over 100 hours of recorded phone calls. Because of the delay between subpoenaing the calls and receiving the recordings, Proffitt listened to the calls more than a month after they occurred. He discovered that Vega had been communicating with Adrienne before she was arrested. In a call between Vega and his niece Michelle Holguin on June 8, three days before Adrienne’s successful drug-delivery trip to Kansas City, Holguin told Vega that a woman he barely knew named Grumpy (Adrienne’s nickname) had a crush on him and wanted to get to know him by writing to him in jail and talking on the phone. Vega was receptive to talking with her. The next day Adrienne called him and said that she would visit him at the Kansas jail. She told him that she would be headed to the area to “visit [her] sister” that week and hoped to see him then. Ex. 6 (Conversation 6-13).

When Adrienne and Vega talked again on June 11, she said that she was “like an hour” away from Kansas City. Ex. 6 (Conversation 6-16). Vega coached her to avoid ruse drug checkpoints (the police tactic that had landed him in jail), telling her, “[I]f you see anything on the freeway no matter what it says do not get off keep going.” Id. From later calls, Proffitt learned that Adrienne did not visit Vega on that trip but was already planning another trip to Kansas soon and would visit him.

On June 14, Adrienne told Vega that she would be “over there I think this week or next weekend.” Ex. 6 (Conversation 6-20). Upon hearing this, Vega reminded Adrienne of his warning about signs, saying, “Listen really carefully to what I’m telling you, okay? ... Whenever you’re driving on 605.... and you see any signs — no matter what it says, no matter what it says do not get off.” Id. She replied, “I know! You already told me,” and then said, “[D]on’t tell me nothing about none of that bullshit on the phone but I’ll talk to you when I see you.” Id.

On June 20, Adrienne told Vega that she and her friend Angela were planning to leave California that day, drive for 20 hours straight, and arrive in Kansas City the next day. After learning from later recordings that Adrienne and Angela had been arrested during this trip, Proffitt determined which DEA agent was investigating them, and the two investigations were merged.

3. Finding the Source

The investigation showed the connection of Defendant Raymond Alcorta to the conspiracy. We examine that evidence in retrospect, not as Proffitt discovered it.

The car used by Vega and Salazar on April 27 was owned by Vega’s sister, Veronica, who had been Defendant’s girlfriend. Defendant’s name appeared on several documents found in the car. The proof of insurance listed two insured drivers, Defendant and Veronica. There were papers relating to Defendant’s boxing business. And perhaps most significantly, there were receipts from auto-repair shops with Defendant’s name as the customer. (The drugs were concealed in a fake battery, and Proffitt testified that this alteration to the car would have required “some degree of time and effort to effect.” Aplt. App. Vol. VII at 1534.)

Proffitt examined the five phones found in the car. He explained to the jury the importance of cell phones to a drug conspiracy:

The criminal enterprise of distributing drugs is just like the rest of us. There has to be contact made. Usually at a distribution level it’s not a real close proximity, it’s a long distance. So these people probably aren’t driving over to the house and saying hello and discussing these things. It’s through phone calls and/or text messages. So in my job I would say one of my prime pieces of evidence is usually the cell phones that they’re taking with them or have with them.

Id. Vol. IV at 920.

Salazar claimed ownership of two of the phones, Vega claimed two, and neither claimed the fifth. The contact list on one of Salazar’s phones included the name “Ray” with a phone number in area code 562. That this “Ray” was Defendant was confirmed by evidence found in the car. Defendant’s full name and that number were listed on two of the invoices from auto-repair centers, on a Western Union money-transfer receipt, and on a handwritten note.

Several calls had been made on March 23 and 24 from Salazar’s phone to Defendant’s phone. And on March 28, Salazar sent Defendant the following text: “Hello. I’ve been in bed for the past two days. Haven’t done anything. But as soon as I do I’ll let you know. You know where I am and don’t think that I’m avoiding you.” Id. Vol. V at 984-85, Vol. VII at 1705-06. Defendant responded, “Okay.” Id. Vol. V at 985, Vol. VII at 1706.

On the unclaimed phone found in the car there were text messages on April 22 (five days before the .arrests) between a person who identified himself as “javi” — a name frequently used by Javier Vega in the recorded prison conversations — and Defendant’s 562 number:

Defendant: You almost here? ?
Vega: Where u @?
Vega: Its me javi where u @?
Defendant: Ok
Defendant: Call me
Defendant: ? ? ? ?
Defendant: I need to' know if you’re going
Defendant: ? ? ?

Aplee. App. at 15-25; Aplt. App. Vol. V at 1003-07.

The two phones in the car claimed by Vega had nothing stored on them. In a recorded jailhouse conversation with Defendant on June 22, Vega provided an explanation:

Vega: Listen, what I did when I was leaving, right—
Defendant: Uh huh.
Vega: And before I left, when everything was all ready, I mean, I had factory reset my phone.
Defendant: Uh huh.
Vega: You know what I’m saying?
Defendant: Yeah.

Ex. 6 (Conversation 6-41). Proffitt testified that a factory reset deletes all the information stored on a phone.

Additional recorded jailhouse conversations further indicated Defendant’s involvement in Vega’s foiled drug delivery. In one, Vega appears to be blaming Salazar for his decision to exit the highway after the ruse drug checkpoint, and he laments that Defendant did not send Adrienne on the trip instead of Salazar:

Vega: Why didn’t Ray ever tell me to take, to bring you to Kansas?
Adrienne: I don’t know.
Vega: This would have never happened, let me tell you.
Adrienne: I know, it wouldn’t never have happened.
Vega: Man, you don’t even know, man. I got off the freeway because they told me to, you know what I’m saying.
Adrienne: Yeah.
Vega: I was going, I was going to keep going straight, and she was like, no, get off, get off, get off.

Ex. 6 (Conversation 6-34) (expletives deleted). Sending Salazar was apparently not the first time that Defendant selected a courier to accompany Vega. In other conversations Vega'complained about another companion courier selected by Defendant, who foolishly attracted police attention by throwing napkins out the window while on the road. See Ex. 6 (Conversation 6-24) (“Ray tells me oh yeah you should take that person, that person you know she, she fits the profile ... [We] were like in San Bernardino ... and she grabs a handful of napkins and she throws them out on the freeway.”); Ex. 6 (Conversation 6-38) (“did I tell you about ... the girl Ray met and then told me ... she meets the, she fits the, she’s perfect? And she ... threw a big ol’ wad of paper ... on the freeway.”).

Despite his incarceration, Vega maintained ties with his coeonspirators. The list of persons authorized to visit him in jail comprised four people: Defendant, Adrienne, Holguin, and Veronica Vega. The recorded conversations indicated that Vega expected Defendant to provide him with financial assistance while in jail. One of Vega’s early calls after his arrest was to his niece, Holguin. He asked her, “Have you talked to Ray?” Ex. 6 (Conversation 6-1). When she said yes, Vega said, “Honey, tell him I don’t have any money. Nothing, nothing of money.” Id. A little later, Vega asked again, “What is Ray going to do? He isn’t going to do anything to help us?” Id. In his next call Vega said, “And make sure that Ray ... Ray don’t forget about me or Karmin [Salazar] either, please.” Ex. 6 (Conversation 6-2).

On May 10, in a conference call set up by Holguin, Vega reported to Salazar that “Ray sent us money.” Ex. 6 (Conversation 6-5). On June 8, Holguin told Vega that Defendant had given her $100 to put on Salazar’s account. Vega’s commissary account reflected a $100 deposit from Hol-guin in early July, a $45 deposit from her on July 29, another deposit from her on September 3, and a final deposit from someone using the name David Holguin on September 11. (There was no testimony about deposits before June or the amounts of the last two deposits.) Similarly, Salazar’s account reflected a $100 deposit from Adrienne in June, a $100 deposit from Michelle Holguin in early July, a $45 deposit from her in late July, a $30 deposit from Leticia Vega in August, a $44 deposit from Michelle Holguin in September, a deposit from David Holguin in September, two deposits totaling $85 from Michelle Holguin in October, and an $80 deposit from Defendant in November. It appears that Vega was particularly concerned that Salazar receive money as encouragement for her to stick to her initial story to police that she was responsible for the drugs found in the car. See Ex. 6,(Conversation 6-4) (Salazar: “I told [the police officer] everything was mine.”). In a June 14 conversation he seems to be telling Defendant that he has a good chance of avoiding jail time if Salazar does not feel that she is being hung out to dry. See Ex. 6 (Conversation 6-19) (“I got a really good chance at going home, if, I mean, if she, if Kandie keeps,- if Kandie starts feeling like I’m hanging her out to dry ... it’s like I’m gonna have no action, you know?” (expletives deleted)). Defendant responded, “I know what you’re saying, you don’t have to tell me. They put money on both you guys already.” Id.

In turn, Vega sought to help Defendant’s enterprise from jail. On May 4 he told Holguin to tell “Ray” “to get rid of his phone.” Ex. 6 (Conversation 6-1). On May 13 he told Defendant to get Vega’s “contacts.” Ex. 6 (Conversation 6-6). A few days later he told Holguin that the contacts in his phone were “the people that [he] was dealing with” and “the people that [he] was making money from.” Ex. 6 (Conversation 6-7). On July 1, Vega followed up with Defendant about getting those contacts, and Defendant replied that he had not yet done so. See Ex. 6 (Conversation 6-51).

With Vega and Salazar in jail, the conspirators had to take care not to disclose incriminating information in their communications. A good indication that the jailhouse conversations involved illicit activity was the conspirators’ practice of cutting each other off from saying too much and using ambiguous or coded language to discuss their business. A few examples illustrate the practice: When Vega repeated his warning about deceptive highway signs, Adrienne told him not to talk about that “bullshit on the phone,” saying she would “talk to you when I see you.” Ex. 6 (Conversation 6-20). When Vega told Defendant, “you have to get my contacts so we can ...,” Defendant cut him off, saying “Hey ... I know, I know what you’re saying.” Ex. 6 (Conversation 6-6). And Vega was chastised by Salazar' for calling Defendant by name:

Vega: Hey, Ray sent us money the other day. Okay?
Salazar: Okay. Don’t say names.

Ex. 6 (Conversation 6-5). Proffitt described the practice among the cbconspirators as follows: “If somebody starts to say too much, and not necessarily just names, the other person on the other end may try to shut them down or remind them that they are saying too much on the phone.” Aplt. App. Vol. V at 1080. Proffitt also noted that the conspirators used the word “friend” to refer to “people when they try not to say names.” Id. Vol. VII at 1641-42. Particularly with respect to Defendant, Proffitt observed:

Just listening to Ray Alcorta’s calls I feel like without the other calls I would have come to the same conclusion of what the organization was doing through the items that he said, that were said to him, instructions he was giving, things that he would even be telling Javier [Vega] to not say or shutting him down on occasion. When Javi is getting ready to obviously say something that would be good for me and Ray is telling him to stop, to me, that means Ray Alcorta knew what Javi was going to say and it shouldn’t be said where I could hear it.

Id. Vol. VII at 1726.

The recorded conversations also linked Defendant to the two drug trips by Adrienne and Angela. Defendant was the initial reference point for the link between Vega and Adrienne: Talking to Vega in jail, Hol-guin introduced Adrienne to him as the “girl that Ray knows with a tattoo on her face named Grumpy.” Ex. 6 (Conversation 6-11). On June 11, Vega asked Defendant if he thought Grumpy was responsible to “do it,” and Defendant responded that she was. Ex. 6 (Conversation 6-15). Although Defendant and Vega did not say what “it” was, the conversation was while Adrienne was driving to Kansas City. The government presented strong evidence that the purpose of the drive was to deliver drugs. First, in a conversation on June 11, Vega instructed Adrienne not to leave the highway, no matter what a highway sign may say — a warning that suggests her vehicle contained contraband. Second, less than two weeks' later, Adrienne and Angela were caught with drugs going to Kansas City. Third, on Adrienne’s phone, seized after her arrest, were photographs dated June 13 showing Angela and Adrienne on an airplane displaying wads of cash, and Angela’s phone seized at the same time contained similar photographs. Proffitt testified that the photos were meant “to show how much money they’re making from delivering their dope.” Aplt. App. Vol. VII at 1697.

The government showed that Defendant was in Kansas City at the same time as Adrienne and Angela. Airline records showed that he purchased a same-day ticket from Los Angeles to Kansas City for June 11, with a return trip the next day. The jailhouse conversations suggested that the timing of the two trips was not a coincidence. On June 13, Vega asked Adrienne if Defendant’s trip was successful. Adrienne’s answer showed that she was well aware of Defendant’s trip:

Vega: Where is Ray at?
Adrienne: Home.
Vega: He’s already home?
Adrienne: Home, yeah he is home sweet home.
Vega: Everything is cool?
Adrienne: Everything is cool.

Ex. 6 (Conversation 6-17). The next day, Vega confirmed directly with Defendant that he had returned home. He then asked Defendant if Adrienne had also returned. Not only did Defendant know that Adrienne had returned from her trip, but he also knew that she had gone on the trip with a companion:

Vega: She at home already?
Defendant: Yeah they’re at home right now.
Vega: Grumpy’s already home?
Defendant: Huh?
Vega: Grumpy’s already home?
Defendant: Yeah. Yeah.

Id. (emphasis added). Later that day, Vega asked Adrienne if Defendant shared her return flight home, a question that made sense if their trips were coordinated:

Vega: How long did it take you to get home?
Adrienne: How long? Oh, we flew.
Vega: You flew back?
Adrienne: Yeah.
Vega: Who, you and Ray?
Adrienne: No, just me.

Ex. 6 (Conversation 6-20).

Defendant’s daughter testified in his defense that he sometimes traveled to Kansas City to scout venues for his boxing business. But there was no evidence that he did so on this trip.

There was also convincing evidence that Defendant was involved in the unsuccessful trip of Adrienne and Angela. At 9 a.m. on June 20 — the day the two couriers left on their drive to Kansas — Adrienne told Vega that Defendant had been calling her:

Vega: Where’s Ray at?
Adrienne: I don’t know. He, they were calling me and calling me, but I was knocked out, and then when I woke up at the night time, in the middle of the night, I looked and I had a missed call from them.
Vega: From Ray or from Michelle?
Adrienne: From both. So now I gotta get up and get with it because I need to get over there.
Vega: What time are you going to take off?
Adrienne: I want to take off as soon as possible.
Vega: Be careful.

Ex. 6 (Conversation 6-36).

Soon thereafter, Adrienne told Vega that she was struggling to find a car for the trip. Vega had the following advice:

Vega: Adrienne tell them to help you get a car, he will do it.
Adrienne: No, no, no I don’t want to ask.
Vega: Look it, yon need to start taking advantage of it, he’s not a, you know what I’m saying?
Adrienne: I know but still I don’t like people doing things for me, because I don’t want to feel like I owe him.
Vega: But look, it’s not like he’s, he’s not doing it for you, because you’re part of the team.
Adrienne: No, I’m not part of the team.
Vega: How are, no I’m not talking about that team, I’m talking about, you’re part of the team like we’re, everybody is networking together so he’s got to help you. When I wanted to buy a car he helped me buy it.

Ex. 6 (Conversation 6-36) (expletives deleted). Vega did not state who “he” was in this exchange, but the two discussed the same topic in a conversation two-and-a-half hours later. Vega asked Adrienne how much money “he” had given her for gas, and explained that on his prior trips, the gas money he received was rarely sufficient. Ex. 6 (Conversation 6-37). Two or three minutes later, Vega was less cautious with names and said that when he needed to pay $1,700 to get his license, “Ray” offered to pay half. Id. That evening, Vega again asked Adrienne about receiving money for the trip, and she confirmed that she had received it.

Further, Adrienne’s phone records showed that on June 21, the day of her arrest, Defendant called her 25 times from two different numbers, twice before her arrest and 23 times afterwards. The calls were from Defendant’s 562-area-code number and from a 913-area-code number that appeared on the jail call log when Defendant called Vega. The night of June 21, Defendant told Vega that he had been calling “what’s her name” at her two numbers, but could not reach her because one phone was turned off and she did not answer on the other one. See Ex. 6 (Conversation 6-40). When Proffitt examined the contact list on Adrienne’s cellphone, he found that it contained Defendant’s 562 number but under the fake name “Dan.”

The next day, Defendant told Vega that he had learned from Adrienne’s cousin that she had been pulled over on her trip and was in jail. Although Adrienne’s name was not used, Defendant asked Vega who “she” was with, and Vega replied “Angela Lopez.” Ex. 6 (Conversation 6-41). The two men then had the following exchange:

Vega: I was telling her, you know, I was trying to tell her how to come.
Defendant: Mhm.
Vega: And she was telling me like, ahh no, no, don’t worry about it. And I’m saying like, I’m telling you, I already know, I already know the mistakes that people have done you know.
Defendant: Yeah, but there’s no reason for her to make mistakes because she’s just driving up there you know, she goes the speed limit you know.

Ex. 6 (Conversation 6-41). Defendant then went on. to provide a cover story for the conversation: “I know that she was trying to get there for a visit but [unintelligible] that’s why I was worried or her family was worried too that.” Id.

Officer Proffitt testified that Defendant later travelled to Kansas to bond Adrienne out of jail and bring her home to California. Two conversations supported his conclusion. On June 22, the day after Adrienne’s arrest, Defendant asked Vega what his bail was when he was arrested. Then on June 28 he told Vega: “[T]his girl got released at 6 a.m. and I said, you know what, I’m gonna pack my, I drove over 3,000 miles in three, two and a half days, me and my niece.... ” Ex. 6 (Conversation 6-45) (expletives deleted).

C. Defendant’s Conspiracy Conviction

The elements of the offense of conspiracy are (1) an agreement with another person to violate the law; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators. See United States v. Cornelius, 696 F.3d 1307, 1317 (10th Cir. 2012). The government introduced sufficient evidence from which a jury could reasonably find these elements beyond a reasonable doubt.

Evidence tying Defendant to the failed first delivery included the documents bearing his name found in the car; a text from Salazar to Defendant one month before she was arrested indicating that she would soon be ready to work for him; Defendant’s text to Vega a few days before Vega was arrested stating, “I need to know if you’re going”; Vega’s lament- to Adrienne that Defendant sent Salazar on the trip instead of Adrienne; Vega’s complaints that Defendant sent him on trips with a foolish companion who threw napkins out the' window; Vega’s statement to Defendant that he erased all the data on his two phones before he was arrested and his advice to Defendant to get rid of his phone; Vega’s statement to Defendant that he should take Vega’s contacts, which were the people that he was “dealing with” and “making money from”; Vega’s expectation that Defendant would provide money to him and Salazar while they were in jail, and Defendant’s fulfillment of that expectation; and Defendant’s vagueness and circumspection when speaking with Vega on the jailhouse phone.

Evidence tying Defendant to the successful second delivery included his conversation with Vega stating that Adrienne was responsible to do “it” just as she was driving to Kansas City to deliver drugs; his turnaround flight to Kansas City at the same time that Adrienne and Angela were there; his statement to Vega that Adrienne came back safely from the trip; and Adrienne’s report back to Vega that Defendant was “home sweet home” and that “everything is cool.”

Evidence tying Defendant to the failed third delivery included Adrienne’s statement to Vega on the day before her arrest that she missed a call from Defendant; Vega’s questions about whether Defendant provided gas money for Adrienne’s drive; Vega’s advice to Adrienne that she solicit Defendant for help obtaining a car for the drive to Kansas City; Defendant’s 25 phone calls to Adrienne on the day that she was arrested; his conversation with Vega about there being no reason for Adrienne to “make mistakes” on her drive; Adrienne’s using a fake name for Defendant in her phone contact list; and Defendant’s driving to Kansas to bail Adrienne out of jail after her arrest. This evidence shows much more than mere association among Defendant and the couriers. From this evidence, the jury could reasonably infer that Defendant conspired to traffic drugs with Vega, Salazar, Adrienne, and Angela.

On appeal Defendant lists “essential acts” allegedly necessary for his conviction, none of which, he asserts, “have been proven to have been performed by Alcor-ta.” Aplt. Br. at 68. Those “essential acts” include procuring, packaging, and loading methamphetamine; obtaining a car to transport it; locating a Kansas buyer; negotiating the sale; and recruiting the drivers. But Defendant does not cite a single case requiring any of those acts for a conspiracy conviction. Based on the circumstantial evidence in this case, a reasonable juror could be convinced beyond a reasonable doubt that Defendant was an integral part, probably the leader, of a conspiracy to distribute methamphetamine. Nothing more is needed.

II. ADMISSIBILITY OF RECORDED CONVERSATIONS

Defendant challenges the admission of a number of conversations recorded by the jails where his coconspirators were incarcerated. We can summarily dispose of his claim that admission of the conversations violated his rights under the Confrontation Clause of the Sixth Amendment. The Confrontation Clause “prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Ohio v. Clark, — U.S. —, 135 S.Ct. 2173, 2179, 192 L.Ed.2d 306 (2015) (internal quotation marks omitted) (emphasis added). A “testimonial statement” is one made with the primary purpose of creating evidence for the prosecution. See id. at 2180. The statements here — jailhouse conversations between criminal codefendants (none of whom were cooperating with the government) — do not satisfy that definition because that was not their purpose; quite the opposite. See United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir. 2013) (“[Statements ... made in furtherance of a conspiracy ... are nontestimonial and present no Sixth Amendment problem”).

Defendant’s more plausible challenge is that the conversations were inadmissible hearsay. The federal hearsay rule begins by defining a statement as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion,” Fed. R. Evid. 801(a), and then defines hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, “offer[ed] in evidence to prove the truth of the matter asserted in the statement,” id. 801(c). Excluded from that definition, however, is any statement “made by the party’s cocon-spirator during and in furtherance of the conspiracy.” Id. 801(d)(2)(E).

Before admitting statements into evidence under the coconspirator exception to the hearsay rule, the district court must determine by a preponderance of the evidence that (1) a conspiracy existed, (2) the declarant and the defendant were both members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy. See United States v. Morgan, 748 F.3d 1024, 1036 (10th Cir. 2014). Of central importance here is the in-furtherance requirement of the Federal Rules of Evidence, which “embodies the drafters’ desire to strike a balance between the great need for conspirators’ statements) in combating undesirable criminal activity which is inherently secretive and difficult of proof, and the need to protect the accused against idle chatter of criminal partners as well as inadvertently misreported and deliberately fabricated evidence.” United States v. Perez, 989 F.2d 1574, 1578 (10th Cir. 1993) (internal quotation marks omitted). A wide array of statements can fit this requirement, including those made “to induce enlistment or further participation in the group’s activities; ... to prompt further action on the part of conspirators; ... to reassure members of a conspiracy’s continued existence; ... to allay a co-conspirator’s fears; and ... to keep co-conspirators abreast of an ongoing conspiracy’s activities.” Id. (internal quotation marks omitted).

The trial court must state on the record its findings on the elements of the coconspirator exception. See United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993). On appeal, “while the ultimate issue of the admission or exclusion of evidence is reviewed for an abuse of discretion, preliminary foundational determinations, such as whether statements offered under Rule 801(d)(2)(E) were made during the course of and in furtherance of a conspiracy, are factual findings, reviewed for clear error.” United States v. Williamson, 53 F.3d 1500, 1517 (10th Cir. 1995) (internal quotation marks omitted). “Clear-error review asks whether, on the entire evidence, the appellate court is left with the definite and firm conviction that a mistake has been committed.” United States v. Zar, 790 F.3d 1036, 1046 (10th Cir.) (brackets and internal quotations marks omitted), cert. denied, — U.S. —, 136 S.Ct. 562, 193 L.Ed.2d 447 (2015).

Defendant makes the following five arguments on appeal: (1) the district court failed to make findings on the record that he was a coconspirator and that the statements were made in the course of and in furtherance of the conspiracy; (2) the district court failed to make a finding that the government rebutted the purported presumption that statements by incarcerated coconspirators do not further the conspiracy; (3) the recorded conversations before the June 21 arrests were not in furtherance of the conspiracy because they did not further the delivery thwarted by the June 21 arrests; (4) the conversations after the June 21 arrests were not made during the course of the conspiracy or in furtherance of the conspiracy because the conspiracy was thwarted by those arrests; and (5) there was insufficient nonhearsay evidence that Defendant participated in the conspiracy. We consider these arguments in turn.

A. District Court Findings

We reject as factually inaccurate Defendant’s allegation that the district court failed to find on the record that he was a coconspirator and that the recordings admitted against him were made in the course of and in furtherance of the conspiracy. The court followed the preferred procedure of this circuit and conducted two lengthy hearings (the transcripts for these hearings totaled more than 200 pages) under United States v. James, 590 F.2d 575 (5th Cir. 1979), to determine if the coconspirator exception was satisfied. See United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (noting circuit’s strong preference for James hearings). At the first James hearing the court heard testimony from Officer Proffitt and ruled that “the government ha[d] shown by a preponderance of evidence that a conspiracy existed and that it included the defendants.... ” Aplt. App. Vol. Ill at 544. At the second hearing the court questioned how specific conversations fit within the coconspirator exception. The government provided various rationales for the challenged statements. And it withdrew Exhibit 6 (Conversation 6-3) after admitting that it did not fit the cocon-spirator exception.

At the. hearing the court provisionally admitted most of the calls offered under the coconspirator exception, subject to the government’s connecting those statements to the conspiracy during trial. The court excluded four calls from its provisional ruling (eventually excluding three Of those from trial) and also reserved its decision on two of the calls until it received additional briefing about whether statements made to conceal a conspiracy can be in furtherance of the conspiracy. On the second day of trial the court admitted the provisionally admitted recordings into evidence over Defendant’s objection. On the third day of trial the court held that statements for the purpose of concealing the ongoing conspiracy were in furtherance of the conspiracy, and were therefore admissible.

At the conclusion of the government’s case, the court found that “the government ha[d] carried its burden by a preponderance of the evidence to establish that a conspiracy existed and that the defendants in this case were participants in it and that the [admitted statements] are statements that were made by coconspirators in furtherance and in the course of the conspiracy.” Aplt. App. Yol. VII at 1760. In our view, the court made all the required findings. There was no need for the court to go through each particular statement and repeat its finding.

B. In-Furtherance Requirement

Defendant contends that all the calls, except the 14 in which he participated, were improperly admitted because they were not in furtherance of the conspiracy. He raises three arguments, all based on the timing of the couriers’ arrests, not on the content of the statements. We are not persuaded. Defendant misconceives the scope and duration of the conspiracy and what can be in furtherance of a conspiracy.

To be sure, to qualify for the coconspirator exception a statement must have been made during the conspiracy. See Fed. R. Evid. 801(d)(2)(E); Perez, 989 F.2d at 1579. Statements made after the objectives of the conspiracy have either failed or been achieved are not made during the conspiracy and must be excluded. See Perez, 989 F.2d at 1579. Therefore, when an arrest terminates the conspiracy, postar-rest statements of any kind, including those made to prevent detection or punishment for the terminated conspiracy, are inadmissible because they were not made during the conspiracy. See Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (postarrest statements are inadmissible when central aim of conspiracy was foiled by arrest).

But “a conspiracy does not end simply because one conspirator has been arrested,” and “a conspirator’s arrest or incarceration by itself is insufficient to constitute his withdrawal from the conspiracy.” United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997). When a conspiracy is ongoing, statements that relate to “avoiding detection by law enforcement personnel” can be in furtherance of the conspiracy. Williamson, 53 F.3d at 1520; see United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir. 1988) (“[Concealment of the crime done in furtherance of the main criminal objectives of the conspiracy falls within the coconspirator exception.”).

Defendant’s first timing argument concerns all statements made by cocon-spirators after their arrests. He complains that the district court “made no findings to rebut the presumption that incarcerated co-conspirators’ statements do not further the conspiracy because of their proximity and inability to contribute to the achievement of a conspiratorial objective.” Aplt. Br. at 49. But Defendant’s sole cited support for such a presumption is a concurring opinion from another circuit. See United States v. Martinez, 430 F.3d 317, 344-45 (6th Cir. 2005) (Gilman, J., concurring). And even that opinion ends up stating that “[w]hether the presumption that the arrested declarant is no longer a co-conspirator is characterized as a starting point for the analysis or as a formal rebut-table presumption is of little significance because the government has the ultimate burden of proving admissibility under 801(d)(2)(E) by a preponderance of the evidence.” See id. at 344. Thus, the proposed “presumption” would not add to the district court’s duties. The district court needed to do nothing more than decide whether the government met its burden of showing admissibility by a preponderance of the evidence. See Morgan, 748 F.3d at 1036. That is exactly what it did.

Defendant’s second timing argument is that the conversations before the June 21 arrests were not in furtherance of the conspiracy because they were not “related to the upcoming June 21st drug transport.” Aplt. Br. at 52. But statements can be in furtherance of the conspiracy if they were intended to promote any conspiratorial objective, not just one objective. See Perez, 989 F.2d at 1578. For example, Vega’s statement to Holguin on May 4 that she must tell Defendant to “get rid of his phone” was meant to help Defendant avoid detection by law enforcement. Ex. 6 (Conversation 6-1). “Avoiding detection by law enforcement officials clearly furthers the aims .of a [continuing] conspiracy.” Williamson, 53 F.3d at 1520 (internal quotation marks omitted).

Also, Defendant’s argument is wrong on the facts. Even if a conversation needed to relate to a planned drug delivery, the government sufficiently proved that Adrienne and Angela transported drugs not once, but twice, and some of the admitted statements were made to further those trips. For example, Vega coached Adrienne to avoid ruse drug checkpoints during her first trip and before her second trip. Those instructions were indisputably in furtherance of drug deliveries.

We likewise reject Defendant’s third timing argument: that calls after June 21 could not be in furtherance of the conspiracy because the conspiracy terminated upon the arrests of Adrienne and Angela. That argument is based on an erroneous factual premise. As the district court found, the conspiracy did not terminate; it was ongoing. There was evidence that Adrienne continued to work for Defendant after her arrest. Defendant bailed her out of jail, and she returned to Los Angeles. On June 30, Vega encouraged her to solicit Defendant’s financial assistance; She took his advice, telling Vega on July 12 that she had been doing “jobs” for Defendant. See Ex. 6 (Conversation 6-59). Proffitt testified that “jobs” referred to “making [drug] sales locally and bringing in money,” a reasonable inference in light of her earlier drug trafficking. Aplt. App. Vol. VI at 1467. And given that the arrests of couriers Vega and Salazar did not end Defendant’s drug operations, there is no reason to believe that the operation ended with the arrests of Angela and Adrienne.

In addition to the arguments that have just been addressed, Defendant has set forth (in his briefs and in a postargument letter under Fed. R. App. P. 28(j)) brief summaries of several coconspirator recorded statements that he contends, without any additional argument, were inadmissible because not in furtherance of the conspiracy. Because of the absence of additional argument, he has waived ■ any right he has to our further review of the admissibility of the statements. But we have examined them anyway and confirm that the district court did not err in admitting them.

For some of the statements, the district court instructed the jury not to consider them against Defendant, and we presume that the jury obeys such instructions. See Morgan, 748 F.3d at 1043. Other “statements” were not statements as defined by Fed. R. Evid. 801(a) because they were not intended as assertions; they were questions or requests. See United States v. Cesareo-Ayala, 576 F.3d 1120, 1128-29 (10th Cir. 2009) (questions asserted nothing so they were not hearsay). Others-were assertions but were not offered as evidence of the truth of the assertions, because the truth was irrelevant or already clear. See id. at 1129. Others could reasonably be viewed as in furtherance of the ongoing conspiracy because they comforted coconspmators that they would be taken care of (so that they would perform their tasks and remain loyal), kept cocon-spirators advised of the ongoing investigation (so that they could take proper precautions and make appropriate plans), or helped them execute their tasks.

C. Nonhearsay Evidence of Defendant’s Participation in the Conspiracy.

Finally, Defendant argues that the government failed to present sufficient independent evidence, aside from the co-conspirator hearsay sought to be admitted, for the district court to determine that he was a member of the conspiracy. In Bourjaily v. United States, 483 U.S. 171, 180, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), the Supreme Court held that courts making factual determinations under Rule 801(d)(2)(E) may consider the hearsay statements sought to be admitted, but did not decide whether courts could rely solely on the hearsay statements to make those determinations. See id. at 181, 107 S.Ct. 2775. Since then we have held that Bourja-ily requires at most that there be some independent evidence linking the defendant to the conspiracy. See United States v. Owens, 70 F.3d 1118, 1124-25 (10th Cir. 1995). This evidence need not be “substantial.” Id. at 1125.

The government presented a good bit of incriminating nonhearsay evidence. This evidence included (1) documents bearing Defendant’s name found in the vehicle that Vega and Salazar were driving, (2) Defendant’s 25 phone calls to Adrienne on the day of her arrest, (3) his own June flight to Kansas City, where the drugs were delivered, and (4) all the phone calls in which Defendant participated and his text messages with Vega and Salazar before their arrests, which were admissible against him under Rule 801(d)(2)(A) as statements by an opposing party. In addition, as we have already discussed, much of the jailhouse conversation between conspirators was not hearsay because what was said was not intended as an assertion of fact or was not offered to prove the truth of the matter asserted. Taken as a whole, the nonhearsay evidence was more than adequate to link Defendant to the conspiracy. The district court did not err when finding that Defendant was a cocon-spirator.

III. CONCLUSION

We AFFIRM Defendant’s conviction.

      . Holguin is the daughter of Defendant's former girlfriend (and Javier Vega's sister), Veronica Vega. Although the government indicted Holguin for conspiracy and brought her to trial with Defendant, Adrienne, and Angela, it dismissed the charges against her during trial. Nonetheless, the government continued to assert that Holguin was a coconspirator for evidentiary purposes.

      . Some of the evidence that the conspiracy was ongoing was not offered against Defendant at trial (for reasons not apparent to us). But the district court could nonetheless rely on this evidence to make the preliminary factual determinations required by Fed. R. Evid. 801(d)(2)(E). The court is not bound by the •hearsay rules when making those determinations. See Fed. R. Evid. 104(a); Bourjaily v. United States, 483 U.S. 171, 178, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

      . See Ex. 6 (Conversations 6-48, 6-58, 6-59, and 6-65); Aplt. App. Vol. I at 169 (Jury Instruction No. 15).

      . See, e.g., Ex. 6 (Conversation 6-1: Vega asks, "What is Ray going to do? He isn’t going to do anything to help us?”); (Conversation 6-30: Vega asks, “What's up with Ray, have you talked to Ray today?”); (Conversation 6-31: Vega asks, "Did you talk to Ray yesterday?”); (Conversation 6-46: Vega asks Adrienne if she thinks Angela will cooperate with the authorities.).

      . See, e.g., Ex. 6 (Conversation 6-2: Vega tells Holguin, ”[M]ake sure that Ray ... Ray don’t forget about me or Karmin either, please.” Vega also requests prison information.); (Conversation 6-5: Salazar tells Vega, "Don’t say names.” Vega also tells Holguin, "Make sure that you have money in the books and anything for us.”); (Conversation 6-54: Vega tells Adrienne, "Tell Ray to help you get your car back.”).

      . See, e.g., Ex. 6 (Conversation 6-1: Vega’s assertion that he has no money is not relevant for its truth, but is part of his request to Holguin to tell Defendant that he has no money. Whether or not he lacks money is irrelevant. What is relevant is that he thinks Defendant would help him out, showing their relationship.); (Conversation 6-4: Salazar's statement to Holguin that the police searched her phone is not offered for its truth (the police obviously knew what they had searched) but to show that she thought Hol-guin would want to know.); (Conversation 6-18: Adrienne’s statements that Defendant returned to "home sweet home” is not offered for its truth (which was established by other evidence) but to show Adrienne’s knowledge of his return.); (Conversation 6-27: It is irrelevant whether Vega is telling the truth when he says how much personal-use money or drugs he needs from Defendant for a drug-trafficking trip; the statement is relevant only to show his relationship to Defendant.).

        .See, e.g., Ex. 6 (Conversation 6-1: Vega’s assertion to Holguin that Salazar took the blame for the drugs in the car comforts co-conspirators that Salazar will not inform the authorities about them and lets them know that Vega may soon be available to traffic again.); (Conversation 6-5: Vega’s statement to Salazar that Defendant put money on their accounts serves to preserve the cohesiveness of the conspiracy and placates her, thereby helping to conceal the participation of Defendant and Vega in the conspiracy.); (Conversation 6-25: Vega’s statement to Adrienne that people can get in trouble for not listening to Defendant is likely to keep Adrienne obedient to Defendant.); (Conversation 6-29: Vega’s statement to Adrienne about how generous Defendant was to him encourages Adrienne to continue working for Defendant and the conspiracy.); (Conversation 6-30: Vega’s statement to Adrienne emphasizing how well Defendant treats her encourages her to continue working for the conspiracy.); (Conversation .6-37: Vega’s discussion of the logistics of Adrienne's ’ drive to Kansas and his anecdotes about his prior trips help Adrienne plan and execute a successful journey.).


source: Caselaw Access Project

author: MORITZ, Circuit Judge.

license: Public Domain

text:
    VR ACQUISITIONS, LLC, Plaintiff-Appellant, v. WASATCH COUNTY; Jordanelle Special Service District; The Jordanelle Special Service District Utah Special Improvement District No. 2005-2; Jay Price; Dan Matthews, Defendants-Appellees.
    No. 15-4138
    United States Court of Appeals, Tenth Circuit.
    FILED April 10, 2017

      Timothy McCaffrey, Freeborn & Peters LLP, Chicago, Illinois (Michael R. Johnson, Robert G. Wing, and Matthew M. Cannon, Ray Quinney & Nebeker, Salt Lake City, Utah, with him on the briefs), for Plaintiff-Appellant.
    Mark R. Gaylord, Ballard Spahr, Salt Lake City, Utah (Melanie J. Vartabedian and Tyler Hawkins, Ballard Spahr, LLP, Salt Lake City, Utah, Barton H. Kunz, II, and Bryson R. Brown, Christensen & Jensen, P.C., Salt Lake City, Utah, with him on the brief), for Defendants-Appellees.
    Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
   MORITZ, Circuit Judge.

VR Acquisitions, LLC (VRA) owns a roughly 6,700-acre property in Utah’s Jordanelle Basin (the VR property). VRA brought this action in 2015, asserting three federal constitutional claims under 42 U.S.C. § 1983 and five state-law claims. All of the claims rested, to some degree, on VRA’s assertion that an invalid assessment lien was recorded against the VR property in 2009 — three years before VRA bought the property. The district court dismissed all eight claims with prejudice under Fed. R. Civ. P. 12(b)(6), and VRA appeals. Because the district court properly dismissed VRA’s § 1983 claims for lack of prudential standing, we affirm the dismissal of those claims with prejudice. But because the district court should have declined to exercise supplemental jurisdiction over VRA’s state-law claims, we reverse its dismissal with prejudice of those claims and remand with directions for the district court to dismiss those claims without prejudice.

Background

In 1993, thé Wasatch County Council (the Council) established the Jordanelle Special Service District (the JSSD) to provide sewer and water services to residents in the Jordanelle Basin. During the time period relevant to VRA’s allegations, Jay Price was a member of the Council and Dan Matthews was the JSSD’s manager.

At least as early as 2002, the JSSD intended to construct a regional sewage treatment facility and provide wastewater treatment services to both the JSSD service area and properties in neighboring special service districts. In 2005, the JSSD adopted Resolution No. 2005-18 (the Notice of Intention), declaring its intent to create the Jordanelle Special Service Improvement District No. 2005-2 (the District) and to levy assessments against properties within the District. In 2006, the JSSD adopted Resolution 2006-04 (the Creation Ordinance), creating the District and authorizing financing for the improvements described in the Notice of Intention. In 2009, after a period of public comment, the JSSD enacted Ordinance No. 09-10 (the Assessment Ordinance), levying assessments against properties within the District — including the VR property.

The assessment against the VR property totaled nearly $17.5 million. The property’s prior owner elected to pay the assessment over 20 years. On September 24, 2009, the JSSD recorded a Notice of Assessment Interest (the Assessment Lien) against the VR property.

ATC Realty Sixteen, Inc. obtained title to the VR property from the prior owner in 2010 through a deed in lieu of foreclosure. VRA bought the VR property from ATC Realty in 2012 with knowledge of the Assessment Lien.

Nearly three years later, VRA brought this action asserting three § 1983 claims: (1) a Fourteenth Amendment procedural due process claim, (2) a Fourteenth Amendment substantive due process claim, and (3) a Fifth and Fourteenth Amendment takings claim. VRA primarily sought a declaration that the Assessment Ordinance, the Creation Ordinance, and the Notice of Intention are void ah initio, and also sought removal of the Assessment Lien.

In support of these claims, VRA primarily alleged that the JSSD intentionally issued a false and misleading Notice of Intention in 2005 so property owners wouldn’t object to the creation of the District or the proposed assessments against their properties. VRA further attacked the validity of the Assessment Lien by alleging that the JSSD misused bond money and unlawfully permitted non-assessed property owners to benefit from water and sewer improvements that were paid for only by assessed property owners. Finally, VRA alleged that Price and Matthews abused their public positions by funneling bond money to friends and family through questionable real estate and water rights transactions related to construction of the improvements.

The defendants moved under Rule 12(b)(6) to dismiss VRA’s complaint. The district court granted the defendants’ motion and dismissed all of VRA’s claims with prejudice, reasoning that (1) the claims are time-barred under Utah Code Ann. § 11— 42-106’s 30-day limitation period for contesting an assessment; (2) the claims are time-barred under Utah Code Ann. § 78B-2-307(3)’s four-year statute of limitations; (3) VRA lacks standing to assert claims that belong to the VR property’s prior owner; and (4) the Notice of Intention isn’t false because it contained all information required by Utah Code Ann. § 17A-3-205 (2005).

Discussion

We review a Rule 12(b)(6) dismissal de novo. Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). We accept a plaintiffs well-pleaded factual allegations as true and determine whether the plaintiff has provided “enough facts to state a claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

As the plaintiff, VRA bears the burden of establishing standing to bring its claims. Brown, 822 F.3d at 1164. Here, the district court dismissed VRA’s § 1983 claims based, in part, on its conclusion that VRA failed to carry that burden: it ruled that VRA “cannot demonstrate Article III [sjtanding.” App. vol. 4, 806. But according to VRA, the district court’s analysis reflects that the court actually found that VRA lacks prudential — as opposed to Article III — standing.

We agree. In concluding that VRA lacks standing, the district court noted that VRA “did not even exist in 2005 when [the defendants] issued the alleged constitutionally deficient 2005 Notice of Intention.” Id. And it reasoned that VRA was therefore attempting to assert constitutional claims that belong to the VR property’s prior owner. Thus, the court concluded, VRA’s assertion of standing is foreclosed by our decision in Kemmerer Coal Co. v. Brigham Young University, 723 F.2d 54 (10th Cir. 1983). See id. at 57 (“[Tjhe general rule is that ‘a litigant may only assert his own constitutional rights or immunities.’ ” (quoting McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961))).

This analysis is clearly rooted in principles of prudential, rather than Article III, standing. Compare RMA Ventures Cali. v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 (10th Cir. 2009) (explaining that under doctrine of prudential standing, “litigants cannot sue in federal court to enforce the rights of others”), with Rector v. City and Cty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (noting that to demonstrate Article III standing, plaintiff must plausibly allege (1) injury in fact, (2) fairly traceable to defendants’ conduct, (3) that is redressable by favorable judicial ruling). Accordingly, despite the district court’s explicit reference to Article III standing, we conclude that the district court actually dismissed based on a finding that VRA lacks prudential standing.

VRA contends this was error. First, VRA asserts that as the VR proper-⅛⅛ current owner, it’s being harmed by the defendants’ actions. Specifically, VRA complains that the VR property is “burdened and clouded by illegal assessment liens,” and that “the government will forcibly take that property if [VRA] fails to pay the government tens of millions of dollars.” Aplt. Br. 24.

But VRA’s emphasis on its alleged injuries blurs the distinction between Article III standing and prudential standing. See Wilderness Soc’y, 632 F.3d at 1171 (stating that “[pjrudential standing imposes different demands than injury in fact,” and explaining that even if a party suffers “a cognizable injury” that party may “not possess a right to relief’). Thus, even assuming VRA is being harmed, that doesn’t necessarily demonstrate that VRA has prudential standing to bring its constitutional claims.

Next, VRA argues the district court erred in relying on Kemmerer Coal to conclude that it lacks prudential standing. There, the plaintiff brought an action in federal court, seeking to quiet title to certain coal deposits. 723 F.2d at 54. The district court granted summary judgment in the plaintiffs favor. Id. at 55. In doing so, the court reasoned that because the plaintiffs predecessor-in-interest — the San Rafael Fuel Company — didn’t receive notice of the tax proceedings that gave rise to the defendants’ tax titles, the related property assessment and subsequent tax sale were void for lack of due process. Thus, the court ruled, the plaintiff wasn’t barred by the Utah statute of limitations from attacking the defendants’ tax titles. Id.

Sitting in diversity, we reversed. Id. at 54, 58. After discussing the parties’ arguments as to whether the plaintiffs claim was time-barred, we concluded that we need not decide that issue because the plaintiff “itself ha[d] suffered no due process injury.” Id. at 57. Instead, we reasoned that if a constitutional violation had indeed occurred, “it was the taking of San Rafael’s property without due process.” Id. Because the plaintiff was therefore improperly seeking “to advance its claim by asserting a third-party’s constitutional rights,” we concluded that the Utah Supreme Court would hold that the plaintiff lacked standing. Id. Critically, in reaching that conclusion, we specifically noted that the general rule against asserting a third-party’s rights applies “to bar a grantee’s assertion that its. grantor’s due process rights were violated.” Id.

VRA attempts to distinguish Kemmerer Coal on its facts, arguing that it didn’t involve a claim based on “any ongoing restrictions on land that could affect a subsequent owner, and certainly did not involve a 20-year assessment lien.” Aplt. Br. 34. Instead, VRA argues, Kemmerer Coal “involved a discrete taking of title from [the original] owner” — a taking that, according to VRA, “uniquely injured only the prior landowner.” Id. VRA suggests that unlike the plaintiff in Kemmerer Coal, VRA is suffering injury as the current landowner from “the existence of liens that run with the land and continue to burden the land for years, coupled with the government’s enforcement of those liens and the ongoing requirement that [VRA] pay tens of millions of dollars going forward to avoid foreclosure.” Id.

But again, the fact that VRA may be suffering an injury isn’t dispositive of the prudential-standing inquiry. See Wilderness Soc’y, 632 F.3d at 1171. Moreover, even if we grant credence to VRA’s distinctions, we find the similarities between these cases more significant. Like the plaintiff in Kemmerer Coal, VRA alleges a due process injury because alleged deficiencies in the Notice of Intention deprived the prior owner of notice and an. opportunity to be heard. And, as in Kemmerer Coal, any constitutional violations the defendants committed in issuing a false and misleading Notice of Intention injured the due process rights of the prior owner, not of VRA. Accordingly, the district court didn’t err in relying on Kemmerer Coal.

Finally, VRA relies on three additional cases to support its position that it has prudential standing. But we agree with the defendants that none of these cases actually support VRA’s assertion.

First, VRA cites Commonwealth Property Advocates v. Mortgage Electronic Registration Systems, Inc., 680 F.3d 1194 (10th Cir. 2011). There, we concluded that the plaintiff had prudential standing to challenge the legality of foreclosure proceedings concerning three properties that the plaintiff purchased from defaulting borrowers. Id. at 1196, 1201. And in doing so, we specifically rejected one defendant’s argument that the plaintiff was impermis-sibly asserting the original borrower’s rights, reasoning, “Because Plaintiff is the current owner of the real property, a foreclosure would injure Plaintiff directly. Therefore, Plaintiff also has prudential standing.” Id. at 1201.

VRA argues that, like the plaintiff in Commonwealth Property Advocates, it’s asserting its own rights “as the current owner of property that will be taken by foreclosure absent relief from the Court.” Aplt. Br. 25. But unlike the plaintiff in Commonwealth Property Advocates, VRA doesn’t allege any legal violations in the context of current foreclosure proceedings. Instead, VRA alleges due process violations in the context of past legislative proceedings creating a special improvement district and levying an assessment against the VR property. And if any due process rights were violated by those past proceedings, they were the due process rights of the prior owner, not VRA. Thus, VRA’s reliance on Commonwealth Property Advocates is misplaced.

So too is its reliance on Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001); that case speaks to ripeness, not prudential standing. And if anything, Palazzolo’s ripeness discussion undermines VRA’s position. Palazzolo reaffirmed the general rule that the rights to assert a Takings Clause claim for a physical taking and to receive just compensation belong to the owner of the property at the time of the taking because “the fact and extent of the taking are known.” 533 U.S. at 628, 121 S.Ct. 2448. Palazzolo then recognized an exception in the land-use regulation context: it explained that a regulatory Takings Clause claim may involve a ripening period. And the Court held that title transfers occurring during that, period don’t preclude a subsequent purchaser or successive title holder from challenging the taking when the claim ripens. Id.

Here, assuming the assessment against the VR property constitutes a taking, “the fact and extent of [that] taking [were] known” in 2009 when the JSSD enacted the Assessment Ordinance and approved the approximately $17.5 million assessment. See id. Thus, at the very latest, any claim arising from the assessment ripened on September 24, 2009, when the JSSD recorded the Assessment Lien against the property. The VR property’s prior owner held title at both points in time and, at either point, could have asserted a Takings Clause claim absent any ripening period. Accordingly, the title transfer at issue here didn’t occur during a ripening period, and Palazzolo doesn’t support permitting VRA, as a twice-removed successive title holder, to squeeze the juice of just compensation out of an overripe Takings Clause claim.

The facts of the third ease that VRA cites — Pater v. City of Casper, 646 F.3d 1290 (10th Cir. 2011) — are more analogous to the facts present here. But like Palazzo-lo, Pater doesn’t speak to standing. And the Pater plaintiffs’ ownership status of the properties at issue was significantly different from VRA’s ownership status here. Unlike the plaintiffs in Pater, who actually owned their properties when the city recorded notices of assessments against those properties, Id. at 1291-94, VRA didn’t own the VR property when the JSSD issued the Notice of Intention, enacted the Creation Ordinance, enacted the Assessment Ordinance, and recorded the Assessment Lien. Thus, even though we said in Pater that “an encumbrance with the characteristics of the Notices of Assessment can be a deprivation of a property interest,” id. at 1297, we did so when the plaintiffs who owned the properties at the time the notices were recorded asserted that their own procedural due process rights had been violated. Here, VRA didn’t own the VR property when the JSSD recorded the Assessment Lien against the property. So again, if anyone was deprived of procedural due process when that lien was recorded, it was the property’s prior owner- — not VRA.

In sum, the cases VRA relies on don’t convince us that VRA has prudential standing to assert due process and Takings Clause violations. Instead, even assuming the defendants engaged in the misconduct VRA alleges, any constitutional violations arising from that misconduct violated the VR property’s prior owner’s constitutional rights, not VRA’s. Thus, we affirm the district court’s ruling that VRA lacks prudential standing to assert § 1983 claims based on those alleged violations and its order dismissing VRA’s federal claims with prejudice.

That leaves VRA’s five state-law claims, which the district court also dismissed with prejudice. While the district court didn’t make clear which of its “four independent reasons” justified such dismissal, App. vol. 4, 802, we need not parse the district court’s ruling to discern its justifications. Instead, we conclude that the district court should have simply declined to exercise supplemental jurisdiction over VRA’s state-law claims after it dismissed VRA’s federal claims. See 28 U.S.C. § 1367(c)(3); Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”). Thus, we reverse the district court’s order dismissing VRA’s state-law claims with prejudice and remand with instructions to dismiss those claims without prejudice. See Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (affirming district court’s dismissal of federal claims, reversing grant of summary judgment on state-law claim, and remanding with instructions to dismiss state-law claim without prejudice).

      . VRA also asserted a separate federal claim for "VIOLATION OF 42 U.S.C. §§ 1983 & 1988." App. vol. 1, 58. The district court dismissed "all claims” on four alternative grounds without separately addressing how those grounds applied to any particular claim. App. vol. 4, 802, 810. We affirm its dismissal of this purported fourth federal claim for two reasons. First, § 1983 is the "remedial vehicle for raising claims based on the violation of constitutional rights,” and "[tjhere can be no 'violation' of § 1983 separate and apart from the underlying constitutional violations.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). Second, § 1988 "does not create [an] independent cause[] of action” but instead "simply ‘defines procedures under which remedies may be sought in civil rights actions.' ” Schroder v. Volcker, 864 F.2d 97, 99 (10th Cir. 1988) (quoting Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985)).

      . VRA’s complaint doesn’t allege that VRA bought the VR property in 2012 or that it took title with knowledge of the Assessment Lien. But VRA doesn’t dispute these facts and doesn’t argue, in the context of its challenge to the district court’s ruling on standing, that we shouldn't consider them as true. Moreover, VRA acknowledged at oral argument that it knew of the assessment lien when it bought the property.

      . Whatever the actual basis for the district court’s ruling, we would normally have an independent obligation to verify that VRA has Article III standing to bring its § 1983 claims before proceeding any further. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013) ("[W]henever standing is unclear, we must consider it sua sponte to ensure there is an Article III case or controversy before us.”); see also Valenzuela v. Silversmith, 699 F.3d 1199, 1204-05 (10th Cir. 2012) (explaining that federal courts can’t "assume they have subject matter jurisdiction for the purpose of deciding claims on the merits”). But because we ultimately agree that VRA lacks prudential standing to bring its § 1983 claims, we may affirm the district court’s order dismissing those claims without first assessing whether VRA has Article III standing to bring them. See Wilderness Soc’y v. Kane Cty., 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc) ("Because [plaintiff] lacks prudential standing, we proceed directly to that issue without deciding whether [plaintiff] has constitutional standing....”).

      . Because VRA hasn't argued otherwise, we assume without deciding that it is appropriate to dismiss a complaint under Rule 12(b)(6), rather than Rule 12(b)(1), when the plaintiff lacks prudential standing. Because such standing isn’t jurisdictional, see Wilderness Soc’y, 632 F.3d at 1168 n.1, other courts have concluded that dismissals under Rule 12(b)(6) for lack of prudential standing are appropriate, see, e.g., Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011) ("Unlike a dismissal for lack of constitutional standing, which should be granted under Rule 12(b)(1), a dismissal for lack of prudential or statutory standing is properly granted under Rule 12(b)(6).”); Genesee Cty. Emps. Ret. Sys. v. Thornburg Mortg. Sec. Trust 2006-3, 825 F.Supp.2d 1082, 1212 (D.N.M. 2011) (citing Fifth Circuit’s view that prudential and statutory standing issues should be resolved under Rule 12(b)(6)). And because VRA doesn't challenge the district court's decision to dismiss the § 1983 claims with prejudice, we likewise need not consider whether the district court should have dismissed those claims without prejudice. Cf. Brumfiel v. U.S. Bank, 618 Fed.Appx. 933, 935-38 (10th Cir. 2015) (unpublished) (affirming Rule 12(b)(1) dismissal without prejudice on alternative ground that plaintiff lacked prudential standing without analyzing whether dismissal should have been with or without prejudice).

      . VRA argues that the district court erred in failing to separately analyze VRA’s standing to assert its Takings Clause claim. According to VRA, "the District extracts an illegal cash payment from [VRA] every year,” and that annual demand for money constitutes the taking. Aplt. Br. 49. But this claim too rests on VRA's theory that the Assessment Ordinance itself is illegal because the JSSD issued a false and misleading Notice of Intention and the defendants misused bond funds and engaged in self-dealing during construction of the improvements. And for the reasons discussed above, VRA isn’t the proper party to attack the validity of the Notice or the defendants' alleged misconduct. Moreover, the annual payments result from the choice that the VR property’s prior owner made to pay the' assessment over 20 years, not from the defendants’ actions leading to the assessment. Thus, we see no reason to separately address VRA’s standing to assert its Takings Clause claim.


author: PHILLIPS, Circuit Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Kent Duty, Intervenor Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, Defendant-Appellee. Equal Employment Opportunity Commission, Plaintiff-Appellant, and Kent Duty, Intervenor Plaintiff, v. BNSF Railway Company, Defendant-Appellee.
    No. 15-3259, No. 15-3265
    United States Court of Appeals, Tenth Circuit.
    FILED April 11, 2017

      Barbara L. Sloan (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Margo Pave, Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.
    Marie L. Gockel (Lynne Jaben Bratcher, with her on the briefs), Bratcher Gockel Law, L.C., Kansas City, Missouri, for Plaintiff Intervenor-Appellant.
    Bryan P. Neal (Stephen F Fink, with him on the brief) Thompson & Knight, LLP, Dallas, Texas, for Defendant-Appel-lee.
    Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
   PHILLIPS, Circuit Judge.

Kent Duty filed this suit against a railroad company, BNSF Railway Company (“BNSF”), after he applied to work there as a locomotive electrician. Duty has an impairment that limits his grip strength in his right hand. Fearing that Duty would fall from ladders, BNSF revoked his offer for employment. Duty and the Equal Employment Opportunity Commission (the “Commission”) sued BNSF for employment discrimination under the Americans with Disabilities Act (the “ADA”). The ADA protects disabled workers from discrimination. But it limits its protection by recognizing, that not all impairments are disabilities. Applying the ADA’s definition of “disability,” the district court found that Kent Duty was not disabled and granted summary judgment to BNSF. On appeal, we affirm.

BACKGROUND

I. Duty’s Injury and Work History

At age sixteen, a car accident left Kent Duty with severe injuries to his right arm. He suffered from nerve and muscle damage, which caused some of the joints in his right hand to contract into a visible “claw-hand.” Duty Opening Br. at 10. After two years of physical therapy, Duty’s right hand reached its maximum potential recovery, but he still lacks grip strength and cannot oppose his right thumb or perform fine-motor activities. With practice, he’s retrained himself to become left-handed and use his right hand as a “helper” to assist him in various tasks. The tasks that he can perform' include holding, grasping, turning, and pulling. He can also, pinch objects with his thumb and index finger and carry twenty-five pounds with his right arm and up to five pounds with his right hand.

Even with his impairment, Duty has been a capable employee. For over twenty years, he worked as a maintenance manager for a dry-cleaning company where he installed and maintained its equipment and buildings. There, he gained electrical experience and worked with a variety of tools including drills, saws, wrenches, sanders, and blow guns. He could climb ladders and perform all of his job functions. His employer considered him a valuable employee and gave him consistent raises and bonuses.

II. Duty’s Application to BNSF

When his employer declared bankruptcy, however, Duty started looking for another job. He applied to work at BNSF as a locomotive electrician. The job posting stated that BNSF expected its locomotive electricians to climb on and off locomotives and equipment, work around heavy machinery, lift equipment, use hand tools, and maintain and repair high-voltage electrical equipment.

Duty interviewed with a panel of BNSF employees who evaluated his electrical experience. Based on his work history, the panel recommended him for employment. Members of the panel noticed his hand condition but didn’t factor it into their consideration. BNSF made Duty a conditional job offer in which it explained that Duty would have to pass a background check and drug screening, and complete a medical-history questionnaire.

On the questionnaire, Duty revealed that he had nerve trauma and had undergone surgery in the past. BNSF’s third-party medical contractor, Comprehensive Health Services, contacted Duty-and arranged a medical exam with its physician, Dr. Gil Wright. Because of Duty’s answers to the questionnaire, Dr. Wright performed an occupational assessment and examined Duty’s musculoskeletal capabilities. His exam showed that Duty had a normal range of motion in his right shoulder and elbow, but that his range of motion in his right wrist, particularly his backward movement (dorsi-flexion), was zero when a normal degree of range is 60. The exam also revealed other abnormal results. On his written opinion form, Dr. Wright checked the box “Not Qualified — further evaluation required.” EEOC App. vol. 5 at 1343. Because Health Services is an information-gathering service, it can only recommend that BNSF disqualify an employee from service but cannot itself disqualify anyone. Health Services sent its evaluation to BNSF’s in-house medical staff where the chief medical officer, Dr. Michael Jar-rard, reviewed it.

Dr. Jarrará is an occupational-medicine physician. He determines an employee’s fitness for work and has the authority to disqualify an employee from service. When Dr. Jarrará reviewed Dr. Wright’s findings, he was principally concerned with Duty’s lack of grip strength and his ability to satisfy BNSF’s three-point-contact rule, a safety standard that applies to climbing in the workplace.

The parties dispute the specifics of BNSF’s three-point-contact rule. The rule comes from the Occupational Safety and Health Administration (OSHA), a federal agency that sets minimum workplace health and safety standards. OSHA’s version of the rule requires that employees •maintain three points of contact when climbing, which means that two feet and one hand or two hands and one foot contact the ladder at all times. From Dr. Jarrard’s understanding, the rule requires that employees have the strength to support their entire body weight with one hand to prevent falls when they lose their footing.

Before he could determine whether Duty qualified for the position, Dr. Jarrará needed additional information on Duty’s grip, grasp, and pinch strength.

III. BNSF Revokes Duty’s Offer

Dr. Jarrará, through his medical team, notified Duty that he needed a Functional Capacity Evaluation from a physical or occupational therapist measuring Duty’s full range of motion; his grip, pinch, and palmer-grip strength; and his fingertip dexterity. Duty wrote back explaining that he could use his hand and asked whether the exam was necessary. EEOC App. vol. 6 at 1382. When no one responded, Duty had the evaluation done.

The evaluation revealed that Duty had a passive, but not active, range of motion in his right fingers, meaning those fingers couldn’t move on their own but could be moved by another force (they were flexible). The test measured his grip strength at 7.5 pounds, his two-point- and three-point-pinch strength at zero pounds, and his lateral-pinch strength at 2.5 pounds. It concluded that Duty had a “functional hook grip,” which he could use to “handle materials with [his] right [upper extremity]/hand.” EEOC App. vol. 6 at 1359.

After Duty submitted the results to BNSF, Dr. Jarrará interpreted them to mean that Duty had “flaccid paralysis,” which he explained accurately ás lacking active movement. EEOC App. vol. 4 at 1142. But he also assumed that Duty would use his wrist or elbow to hook ladder rungs when climbing (which was inaccurate because Duty could use his hand as a hook). In the end, Dr. Jarrará determined that Duty wasn’t medically qualified due to his “inability to support [his] body weight with one hand during mandatory three point contact when climbing on and off locomotives.” EEOC App. vol. 7 at 1427.

On December 29, 2008, BNSF e-mailed Duty notifying him that it had revoked his offer. The e-mail stated that he “may be qualified for other BNSF positions such as dispatcher, yard master or clerk should [he] choose to apply and other positions [were] available.” Id. Duty never applied to any other positions at BNSF, stating they didn’t interest him.

IV. Duty Sues BNSF for Disability Discrimination

In February 2009, Duty filed a Charge of Discrimination with the Commission and the Kansas Human Rights Commission alleging that BNSF had discriminated against him based on his disability when it failed to hire him for the locomotive-electrician position. In 2012, the Commission sued BNSF on Duty’s behalf, claiming disability discrimination in violation of the ADA, 42 U.S.C. §§ 12112(b)(1) and (d)(3). Duty intervened, adding an additional count for retaliation. In its position statement to the Commission, a human-resources manager from BNSF, Tamala Cleaver, stated that Duty’s impairment posed a risk “with respect to the job tasks of climbing ... [and] firmly gripping hand tools with both hands.” EEOC App. vol. 6 at 1409. BNSF moved for summary judgment on all claims.

The district court found insufficient evidence that Duty had a “disability” within the ADA’s definition, so it granted BNSF summary judgment on all claims. On appeal, Duty and the Commission (collectively referred to as “Plaintiffs”) concede that Duty does not have an actual physical impairment that rises to a protected disability. Nevertheless, Plaintiffs contend he is disabled under the ADA because BNSF regarded him as disabled.

DISCUSSION

To establish a prima facie case of discrimination under the ADA, Plaintiffs must show that (1) Duty is disabled; “(2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job he holds or desires; and (3) [BNSF] discriminated against him because of his disability.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1189 (10th Cir. 2007). This case turns on element one — whether Duty is disabled; and therefore, we do not address the second or third elements.

1. Standard of Review

Because the district court granted summary judgment, our review is de novo. Adair v. City of Muskogee, 823 F.3d 1297,1304 (10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine dispute as to a material fact ‘exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.’ ” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cty. Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007)).

Because summary judgment rested on element one, disability, we briefly review the law surrounding this term and then analyze the parties’ arguments.

II. ADA Framework

The ADA defines “disability” in three ways. A disability is either “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Plaintiffs have limited their appeal to subsection (C), the “regarded as” definition. This definition recognizes “that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).

To show that Duty is disabled under this definition, Plaintiffs must present evidence showing that BNSF subjectively believed either (1) Duty “has a substantially limiting impairment” that he doesn’t have, or (2) Duty “has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Under both tests, we ask whether the employer mistakenly believed that the plaintiff was substantially limited in performing a major life activity. Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir. 2008). “Major life activities” are “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Sutton, 527 U.S. at 480, 119 S.Ct. 2139 (quoting 29 C.F.R. § 1630.2(i)) (internal quotation marks omitted). Plaintiffs argue that BNSF mistakenly believed Duty’s impairment substantially limited him in the major life activity of working; and, Duty adds, the major life activity of performing manual tasks. With that framework, we address both major life activities below.

A. Working as a Major Life Activity

Plaintiffs contend that BNSF mistakenly believes Duty’s impairment substantially limits him in the major life activity of working. In response, BNSF asserts that it only considered Duty for “the single job” he applied for. Appellee Response Br. at 36.

When the major life activity at issue is working, a plaintiff stretches the ADA to its “farthest reaches.” Dillon v. Mountain Coal Co., 569 F.3d 1215, 1219 (10th Cir. 2009) (quoting E.E.O.C. v. Heartway Corp., 466 F.3d 1156, 1162 (10th Cir. 2006)). To survive summary judgment, Plaintiffs must present some evidence that BNSF believed Duty was significantly restricted in his ability to perform both (1) the locomotive-electrician job, and (2) either (a) “jobs utilizing similar training, knowledge, skills or abilities” within the geographical area, or (b) a broad range of “jobs not utilizing similar training, knowledge, skills or abilities” within the geographical area. Heartway, 466 F.3d at 1162 (quoting Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997)). Though not an “insurmountable showing,” id. at 1163, it’s “safe to assume employers do not regularly consider the panoply of other jobs their employees could perform.” Id. at 1162 (quoting Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001)).

This inquiry has subjective and objective components, best broken into three steps. See generally id. at 1163, 1165-66 (analyzing the subjective and objective inquiries in three parts). First, we ask: did the Plaintiffs show that BNSF subjectively believed Duty was disqualified from the locomotive-electrician job? Id. at 1165. If we answer yes, on step two we ask: did BNSF also subjectively believe that Duty was disqualified from any additional jobs? Id. at 1166. If we also answer yes, on step three we ask the objective question: did these additional jobs amount to a “class of jobs” or a “broad range of jobs in various classes”? Id. at 1165-66. Only if Plaintiffs show evidence of each will we reverse the summary-judgment grant. As an initial matter, on step one, the evidence is undisputed that BNSF subjectively believed Duty was disqualified from the locomotive-electrician job. But, as discussed below, we find that Plaintiffs fail on step two. Therefore, we do not address the objective inquiry of whether any additional jobs amount to a class or broad range of jobs.

On our second step, whether BNSF regarded Duty as unable to perform other jobs aside from the locomotive-electrician position, we examine whether the evidence shows that BNSF subjectively believed that Duty was unable to perform other jobs. The Plaintiffs present the following evidence:

1. BNSF’s December 29, 2009 e-mail to Duty revoking his conditional offer;
2. Dr. Jarrard’s statement that Duty could only grip with his wrist or elbow;
3. BNSF’s lack of written materials about its three-point-contact rule;
4. Dr. Jarrard’s statement that the three-point-contact rule applies in other industries;
5. BNSF’s failure to respond to Duty; and
6. BNSF’s position statement to the Commission.

First, BNSF’s December 29, 2008 e-mail informed Duty that he was “not medically qualified for [the] Locomotive Electrician position” and suggested that he “may be qualified for other BNSF positions such as dispatcher, yard master or clerk.” EEOC App. vol. 7 at 1427. Duty argues that when BNSF suggested “dispatcher, yard master or clerk,” id. it intentionally excluded forty-six to forty-seven other jobs at BNSF. But generally,, an offer to apply to other positions rebuts a regarded-as claim when the major life activity is working. See McGeshick v. Principi, 357 F.3d 1146, 1151 (10th Cir. 2004). But see Justice, 527 F.3d at 1088 (holding that an employer’s offering an employee a different position in its factory was relevant but didn’t entitle the employer to summary judgment). Duty relies on Justice to argue that his offer doesn’t fall under this rule. In Justice, the employer admitted he thought the plaintiff could do “only about two jobs in the plant.” 527 F.3d at 1088. So when the employer offered the plaintiff a janitorial position, we held that its offer didn’t rebut its previous statement and the other evidence showing it regarded the plaintiff as unable to perform additional jobs. Id. at 1088-89. Here, the record lacks similar sweeping comments; and standing alone, a reasonable jury couldn’t infer that the three positions in BNSF’s e-mail excluded all others.

Second, Dr. Jarrard described Duty’s right hand as having “flaccid paralysis” instead of a functional hook grip. EEOC App. vol. 4 at 1142. Duty indeed has a functional hook grip and can grab ladder rungs with his impaired hand; but Dr. Jarrard incorrectly assumed he used his elbow or wrist. Nonetheless, as Dr. Jarrard correctly perceived, Duty couldn’t support his body weight with one hand, and- so he was incapable of complying with BNSF’s three-point-contact rule. See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001) (explaining that “[w]here the recognition of Plaintiffs limitations is not an erroneous perception, but is instead a recognition of fact, a finding that Plaintiff was regarded as disabled is inappropriate”). It’s well established that an employer’s belief that “an.employee is unable to perform one task with an adequate safety margin does not establish per se that the employer regards the employee as having a substantial limitation on his ability to work in general.” McGeshick, 357 F.3d at 1151 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)) (internal quotation marks omitted). In McGeshick, the evidence showed that the employer perceived the plaintiff as a safety hazard because of symptoms related to his Meniere’s disease, but it encouraged him to apply for other jobs. Id. at 1148. We held that where the employer’s “percep-. tion of [the plaintiffs] limitation is confined to concerns about specific tasks unique to the job,” the plaintiff had failed to show that the employer regarded him as substantially limited in his ability to work. Id. at 1150-51. Likewise, Dr. Jarrard’s perception of Duty’s hand related to a specific task, complying with the three-point-contact rale. That, combined with BNSF’s email inviting Duty to apply to other positions, cannot establish that BNSF regarded Duty as unable to work in general.

Third, Duty points to BNSF’s lack of written materials on its three-point-contact rule to argue that BNSF subjected Duty to a stricter standard than other employees. Without evidence that BNSF applies a less-rigid standard to its unimpaired employees, the absence of a written policy fails to show that BNSF intended to discriminate against Duty. See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002) (quoting Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)) (explaining that, under Title VI, “[t]o prove intentional discrimination by a facially neutral policy, a plaintiff must show that the relevant decisionmaker ... adopted the policy at issue ‘because of, not merely in spite of, its adverse effects upon an identifiable group’ ”) (internal quotation marks omitted). In fact, the evidence suggests that' BNSF’s stricter version of the three-point-contact rale may be necessary to protect its locomotive electricians from serious injuries. Dr. Jarrard stated that the locomotive workplace is unforgiving and that one employee lost both his legs after falling from a train. See E.E.O.C. v. Schneider Nat’l, Inc., 481 F.3d 507, 510 (7th Cir. 2007) (explaining that an employer “is entitled to determine how much risk is too great for it to be willing to take”) (emphasis in original); Detterline v. Salazar, 320 Fed.Appx. 853, 858-59 (10th Cir. 2009) (unpublished) (explaining that employers can consider the physical demands of a particular job and how an employee’s physical capabilities might affect those demands).

Fourth, Dr. Jarrard stated that the three-point-contact rule is “well-established in industrial settings.” EEOC App. vol. 4 at 1113-14. The Commission argues that this statement shows Dr. Jarrard considered Duty unfit for other industries. To agree, we must assume that Dr. Jarrard believed these other industries carried the same risks as the locomotive industry. The record contradicts such- an assumption. Rather, the record shows that Dr. Jarrard believed that the locomotive industry heightened the risks associated with a lack of grip strength, and that he balanced these risks against Duty’s capabilities.

Fifth, Duty points to Dr. Jarrard’s lack of communication as proof that Dr. Jar-rard failed to conduct an individualized inquiry. Evidence that an employer failed to conduct an individualized inquiry can show the employer’s concerns were based on “myths, fears, and stereotype.” McKenzie v. Dovala, 242 F.3d 967, 971 (10th Cir. 2001). But here, the evidence shows that Dr. Jarrard determined Duty’s fitness after he had the functional-capacity-evaluation results showing that Duty lacked grip strength. Thus, Dr. Jarrard conducted an individualized inquiry.

Sixth, the position statement said that Duty’s impairment “posed a significant safety risk with respect' to the job task[ ] of ... firmly gripping hand tools with both hands.” EEOC App. vol. 6 at 1409. The Commission argues that the statement, combined with Dr. Jarrard’s beliefs about “flaccid paralysis,” show that BNSF considered Duty incapable of “us[ing] a great many tools requiring two hands.” EEOC Opening Br. at 15, 44. In doing so, the Commission broadens what was a statement about safety standards to one of tool-use in general. The record counters such a leap. In fact, it shows that Dr. Jarrard believed that Duty could use tools. In response to the question “did you perceive that Mr. Duty was unable to use two hands to use tools,” Dr. Jarrard responded “No. No.... [H]e had significant limitations, but it doesn’t mean he had complete inability to do things.... So, no it doesn’t at all make me think that he could never, or under any circumstances use tools.” EEOC App. vol. 4 at 1136.

Further, BNSF’s position that Duty could use tools (but just not within an adequate safety margin) is supported by Dr. Jarrard’s response to the question “[d]id you have [sic] concern of whether or not Mr. Duty could use a pneumatic wrench,” in which he replied, “I had [sic] concern that he could do it safely, use them safely without having the normal grip strength in the right hand.” EEOC App. vol. 4 at 1143. And, as stated above, an employer’s belief that “an employee is unable to perform one task with an adequate safety margin does not establish per se that the employer regards the employee as having a substantial limitation on his ability to work in general.” McGeshick, 357 F.3d at 1151 (quoting Chandler, 2 F.3d at 1393) (internal quotation marks omitted).

Because Plaintiffs have failed to show that BNSF considered Duty unable to perform jobs other than the locomotive-electrician job, the district court properly held that Plaintiffs failed to show BNSF regarded Duty as substantially limited in the major life activity of working.

B. Performing Manual Tasks

Our conclusion on the major life activity of working doesn’t end our “regarded as” analysis because Duty also asserts that BNSF regarded him as substantially limited in the major life activity of performing manual tasks. He asserts that BNSF believed him incapable of climbing ladders using the three-point-contact rule and of gripping tools with both hands. EEOC App. vol. 1 at 56. “[T]o be substantially limited in performing manual tasks,” the impairment must prevent or severely restrict activities “of central importance to most people’s daily lives.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). For example, “household chores, bathing, and brushing one’s teeth” are manual tasks central to daily life. Id. at 202, 122 S.Ct. 681. Meanwhile job-specific tasks aren’t “necessarily important parts of most people’s lives,” and so have “only limited relevance to the manual task inquiry.” Id. at 201, 122 S.Ct. 681.

Complying with a three-point-contact rule while climbing and gripping tools with both hands are both jobs-centered tasks, which don’t amount to major life activities. See id. at 200, 122 S.Ct. 681 (stating the court of appeals erred “by focusing on [employee’s] inability to perform manual tasks -associated only with her job”). Accordingly, Duty has failed to show that BNSF regarded him as unable to perform any task central to his daily life.

III. Medical Evaluation

Duty also claims that BNSF violated the ADA by improperly “us[ing] the results of a pre-employment medical ‘examination’ by its physician to disqualify [him].” EEOC App. vol. 1 at 9. But the medical exam occurred after Duty received a conditional offer of employment. When Duty interviewed with a panel of BNSF employees, the panel assessed his job experience and considered whether he could perform electrical work. Without considering his medical qualifications, the panel approved him for a conditional offer. Then, once Duty received the offer, BNSF conducted its medical exams.

Any medical exams, therefore, were post-offer, pre-employment medical exams, which fall under 42 U.S.C. § 12112(d)(3). Thus, if Duty has a claim, it would arise under § 12112(d)(3) rather than (d)(2). Duty generally asserts that BNSF’s “medical examination process was not an individualized inquiry” and references subsection (d)(3)(C). Duty Opening Br. at 72. Here, this reference to (d)(3)(C) is important because only disabled individuals have claims for violations of (d)(3)(C). See Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 960 n.4 (10th Cir. 2002). Because Duty has failed to show that he is disabled, any claims under (d)(3)(C) necessarily fail.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of BNSF and grant Duty’s motion to seal portions of the appendix.

      . We grant Duty’s motion to seal portions of the appendix.

      . Congress amended the ADA through the ADA Amendments Act of 2008, which became effective on January 1, 2009 (after the alleged discriminatory conduct in this case arose). Because the Amendment does not apply retroactively, we apply the law as it stood prior to its effective date. Carter, 662 F.3d at 1144.

      . Duty also references 42 U.S.C. § 12112(d)(4)(A). But Duty failed to allege a violation of this subsection in the district court. Thus, he has waived appellate review. COPE v. Kansas State Bd. of Educ., 821 F.3d 1215, 1222 n.7 (10th Cir. 2016).