text:
    UNITED STATES of America, Plaintiff-Appellee v. Cartez Lamar COOK, Defendant-Appellant
    No. 15-3651
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: November 22, 2016

      Counsel who represented the appellant was Caroline Durham of .Saint Paul, MN.
    Counsel who represented the appellee was Jeffrey S. Paulsen, AUSA, of Minneapolis, MN.
    Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

Cartez Lamar Cook was convicted by a jury of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Cook to 120 months imprisonment. Cook appeals, and we affirm.

I.

In the early morning hours of November 25, 2013, police officers were on routine patrol duty when they spotted an idling car in a high crime area of south Minneapolis. The officers could not immediately determine whether the. vehicle was occupied, Worried that, an idling vehicle could be taken by. an opportunistic thief, the officers decided to check on it by circling around the block. As the officers approached the vehicle a second time, they could tell that it was occupied by two people.

The officers decided to make contact with the occupants of the idling car. They parked behind it and then activated the “wig wag” setting for the patrol car’s emergency lights, which produces a distinctive pattern. As they approached the idling car, appellant Cook rolled down the window next to the driver seat. The officers were able to smell marijuana and decided to take Cook into custody, so he was removed from- the vehicle and handcuffed. While the officers attended to another passenger, Cook fled. He was apprehended several blocks away and arrested.

When officers looked in the vehicle Cook had been in at their first contact, they saw marijuana and crack cocaine in the back seat. They towed and impounded the car that night. Subsequently the officers obtained a warrant, searched the vehicle, and uncovered a firearm hidden in the vehicle’s center console. Analysis revealed that DNA on that' gun was consistent with Cook’s DNA, but not that of 99.6% of the general population including the other passenger. Ballistics testing also connected the gun to the death of Derek Holt, a man killed three days before Cook’s encounter with the police. At the time of Cook’s arrest, he had already been identified by police as a person of interest in Holt’s death.

Cook was indicted on one count of being a-felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Cook was convicted following a jury trial and sentenced by the district court to 120 months .imprisonment. Cook appeals.

II.

Cook argues that the district court erred by denying his pretrial motion to suppress the firearm as the fruit of an illegal seizure. When reviewing the denial of a suppression motion, a district court’s findings of fact are examined for clear error and its conclusions of law are reviewed de novo. United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). Since there is no dispute about the relevant facts, we give de novo consideration to Cook’s arguments regarding the constitutionality of the officers’ actions.

It is well settled that not all interactions between law enforcement officers and citizens amount to seizures under the Fourth Amendment. See United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005). Even without a basis for suspecting a person of committing a crime, officers may “generally ask questions of that individual” and “ask to examine the individual’s identification,” so long as “the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). For an officer’s behavior to rise to the level of a Fourth Amendment seizure, the officer must use “physical force or [a] show of authority” to restrain a citizen’s liberty. See Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The crucial question is whether an officer’s actions would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Bostick, 501 U.S. at 437, 111 S.Ct. 2382 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

In United States v. Barry, we held that a police officer approaching a parked car does not necessarily effect a seizure for Fourth Amendment purposes. 394 F.3d at 1075. In Barry, an officer on patrol late at night noticed a car parked in an alley behind a shopping mall. Id at 1072. The officer decided to investigate and parked his vehicle in front of the car. Id. The officer then approached the vehicle while shining his flashlight on his uniform and keeping a hand on his holstered gun. Id. The officer knocked on the passenger side window twice without receiving a response, but on the third knock a person inside the car rolled the window down. Id. The officer smelled marijuana inside the car, which he determined was adequate grounds to detain the car’s occupants. H.

We concluded in Barry that the occupants. of the vehicle had not been seized until they were asked to exit their vehicle. See id. at 1075. More specifically, we determined that the officer’s actions in approaching the parked car, shining a light on his uniform, keeping a hand on his holstered gun, and knocking on the passenger side window “did not amount to a show of authority such that a reasonable person would believe he was not at liberty to ignore [the officer’s] presence and go about his business.” Id.

The facts in the present case are not meaningfully different from the facts in Barry, and for substantially the same reasons we conclude there was no Fourth Amendment seizure here until the officers removed Cook from the idling car. This seizure permissibly came after the officers had detected the odor of marijuana coming from Cook’s voluntarily opened window. As in Barry, our conclusion that there was no seizure before that point is informed by the fact that (1) the car Cook was in was parked when the officers decided to investigate, (2) the interaction between Cook and the officers took- place late at night in a high crime area, and (3) there is no indication the officers ordered Cook to roll down his window or engage with them in any way.

We also note that the wig wag lights activated by the officers are different from the full light bar which is used to notify motorists in moving vehicles that they are required to stop. See United States v. Dockter, 58 F.3d 1284, 1287 (8th Cir. 1995) (no seizure where police officer pulled behind a parked car and “activated his amber warning lights”); cf. Barry, 394 F.3d at 1075 (suggesting that activation of full “emergency lights” could be a show of authority sufficient to be a seizure under the Fourth Amendment). Here, officers activated' the wig wag lights in order to identify themselves as police for the safety of all parties involved. A reasonable person seeing the wig wag lights under these circumstances would have thought that he was still “at liberty to ignore the police presence and go about .his business.” Bostick, 501 U.S. at 437, 111 S.Ct. 2382 (citation omitted).

Since Cook was not unlawfully seized, the district court did not err in denying Cook’s motion to suppress.

III.

Cook also argues that the district court erred by admitting circumstantial evidence that connected him to the shooting death of Derek Holt. A district court’s evidentiary rulings are reviewed for abuse of discretion. United States v. Battle, 774 F.3d 504, 511 (8th Cir, 2014).

The district court permitted the government to introduce circumstantial evidence that tied Cook to the death of Derek Holt three days before Cook’s arrest. The government’s evidence included: (1) a witness who identified the gun Cook was charged with possessing as belonging to Holt; (2) cell phone records that indicated Cook had traveled to the area in which Holt lived and called him shortly before his death; (3) evidence that Holt’s pants pocket had been turned out and $80 he had possessed the night before was missing; and (4) evidence that DNA consistent with Cook’s was found in Holt’s pants pocket. In sum, the government’s circumstantial evidence was intended to paint a picture of Holt’s death in which Cook met up with Holt, shot him with his own gun, rifled through his pockets, and then fled. The government reasoned that its ability to present this theory of Holt’s death was essential to establish how Cook had come to possess the gun found hidden in the vehicle in which he was riding prior to his arrest.

Cook argues that evidence of his involvement in Holt’s death should have been excluded by the district court. We disagree. Evidence of other crimes that “tends logically to prove any element of the crime charged” is “admissible as an integral part of the immediate context of the crime charged” and is therefore “not governed by Rule 404(b).” Battle, 774 F.3d at 511 (quoting United States v. Bass, 794 F.2d 1305, 1312 (8th Cir. 1986)). Cook was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). An essential element of that crime is knowing possession of a firearm. See Battle, 774 F.3d at 511. Evidence that tended to show that Cook had used the gun to shoot Holt just three days earlier would therefore be admissible and “highly probative of the defendant’s possession of that weapon.” Id.

Cook argues that his case is distinguishable from other cases in which we have found evidence of prior gun possession admissible, see, e.g., Battle, 774 F.3d at 511, because there was no direct evidence he shot Holt with the gun he was charged with possessing. We do not find this distinction persuasive. Circumstantial evidence is “intrinsically as probative as direct evidence.” United States v. Tschacher, 687 F.3d 923, 934 (8th Cir. 2012) (quoting United States v. Brown, 634 F.3d 435, 439 (8th Cir. 2011)). Evidence that Cook shot Holt with his own gun is therefore not inadmissible solely because that evidence did not take the form of testimony from an eyewitness who saw Cook shoot Holt. Moreover, there is a strong temporal and logical connection between the evidence the government introduced of Cook’s possible involvement in Holt’s death. and its argument that Cook knowingly possessed the gun found hidden in a car he occupied just three days later. Finally, both the government and the court repeatedly told the jury that Cook was not on trial for Holt’s death, which mitigated any risk of unfair prejudice from admitting the evidence. See Battle, 774 F.3d at 512. The district court therefore did not abuse its discretion by admitting the evidence Cook challenges.

IV.

Accordingly, we affirm the judgment of the district court.

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

      . The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the District of Minnesota, prepared a report and recommendation on Cook’s motion to suppress which was subsequently adopted by Judge Montgomery.


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Kyle Joseph TURNER, Defendant-Appellant
    No. 16-1142
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 14, 2016
    Filed: November 22, 2016

      Counsel who represented the appellant was Mark C. Meyer of Cedar Rapids, IA.
    Counsel who represented the appellee was Erin R. Eldridge of Cedar Rapids, IA.
    Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

Kyle Joseph Turner pled guilty to one count of possession of a firearm and ammunition by. an unlawful drug user in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), conditioned on his right to appeal the denial of his pretrial motion to dismiss. He argues on appeal that 18 U.S.C. § 922(g)(3) is unconstitutionally vague and that the district court made various sentencing errors. We remand for further proceedings.

I.

On June 11, 2015 state corrections officer Steve Warner visited the home of Kyle Turner who was serving a state probationary sentence. Turner told officer Warner that he had a shotgun in his possession. Warner located the shotgun in Turner’s bedroom next to some ammunition. Later that day, Turner provided a urine sample that tested positive for methamphetamine. He was thereafter indicted for possession of a firearm by an unlawful drug user in violation of 18 U.S.C. § 922(g)(3), specifically for possessing a firearm while being an “unlawful user of methamphetamine.”

Turner filed a motion to dismiss the indictment. He argued that § 922(g)(3) was unconstitutionally vague as applied to his conduct because his indictment failed to allege that he “engaged in regular use of methamphetamine.” The government responded that the motion to dismiss was premature because it turned on evidence that would be presented at trial. The district court denied the motion, concluding that the indictment alleged sufficient facts to defeat Turner’s vagueness challenge. Turner subsequently entered a conditional guilty plea, reserving his right to appeal the denial of his motion to dismiss. Turner’s plea agreement stated that on June 11, 2015 he “was an unlawful user of methamphetamine.” The agreement further stated that on June 11, 2015 he had “tested positive for methamphetamine” and “admitted to using methamphetamine approximately one week prior.”

After conditionally pleading guilty, Turner moved for reconsideration of the motion to dismiss. Turner also requested an evidentiary hearing to introduce the documentary “evidence upon which [he] was indicted” and “upon which the plea was entered.” The government’s opposing motion included additional exhibits that purportedly showed Turner’s prior drug use. The district court once again denied the motion to dismiss, this time finding that the government’s evidence established that Turner had engaged in “regular drug use” at a time “overlapping his possession of a firearm.” Turner was subsequently sentenced to 15 months imprisonment, and appeals, challenging both the denial of his motion to dismiss and his sentence.

II.

Turner argues that the district erred in denying his motion to dismiss which raised the affirmative defense that 18 U.S.C. § 922(g)(3) was unconstitutionally vague as applied to the facts of his case. We review the denial of a motion to dismiss de novo. United States v. Huggans, 650 F.3d 1210, 1217 (8th Cir. 2011). A criminal statute is unconstitutionally vague in violation of the Fifth Amendment due process clause if it “fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015).

Federal Rule of Criminal Procedure 12(b)(1) permits parties to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” A motion is capable of pretrial determination “if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity” of the motion. United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969). The district court must rule on such a motion before trial unless there is “good cause to defer a ruling” and deferral will not “adversely affect a party’s right to appeal.” Fed. R. Crim. P. 12(d).

We conclude that “a trial on the merits” was needed to decide Turner’s pretrial motion to dismiss. As a preliminary matter, the parties dispute what evidence the district court could consider in making its ruling. Courts may consider evidence beyond the pleadings to make factual findings in pretrial orders. See United States v. Bloomfield, 40 F.3d 910, 913-15 (8th Cir. 1994) (en banc); see also Fed. R. Crim. P. 12(a) (defining “pleadings”). Indeed, Rule 12 contemplates that district courts may sometimes make factual findings when ruling on pretrial motions and requires that the court “state its essential findings on the record.” Fed. R. Crim. P. 12(d). Courts may not, however, make factual findings when an issue is “inevitably bound up with evidence about the alleged offense itself.” United States v. Grimmett, 150 F.3d 958, 962 (8th Cir. 1998) (quoting United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994)). The relevant question is thus not what evidence the court relied upon in its ruling, but rather what type of factual finding it made.

The phrase “unlawful user of ... any controlled substance” in -18 U.S.C. § 922(g)(3) is not defined by statute and “runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and regular drug use.” United States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003) (emphasis added), vacated, 543 U.S. 1099, 125 S.Ct. 1047, 160 L.Ed.2d 993 (2005), reinstated, 414 F.3d 942 (8th Cir. 2005) (per curiam). In order to rule on Turner’s as applied constitutional challenge, the district court therefore had to determine whether he had engaged in “regular drug use” at the time he possessed the firearm. The “facts surrounding the commission of the alleged offense” would assist with that determination, and the • contested defense therefore could not be ruled upon without a “trial on the merits.” See Covington, 395 U.S. at 60, 89 S.Ct. 1559; Fed. R. Crim. P. 12(b)(1).

We conclude that the district court erred by definitively ruling on the motion at that point instead of informing Turner that it would defer a ruling until trial. Pretrial motions should be ruled on unless there is “good cause to defer a ruling.” Fed. R. Crim. P. 12(d). Good cause exists and a decision should be deferred if disposing of the pretrial motion requires making factual determinations that “fall[ ] within the province of the ultimate finder of fact.” United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994) (quoting United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986)).

Here, the district court could not rule on Turner’s as applied constitutional challenge without resolving factual issues related to his alleged offense, such as the extent of his drug use, and therefore the court should have deferred ruling until trial. The court’s premature ruling prejudiced Turner’s ability to obtain appellate review of his constitutional challenge, for he conditionally pled guilty under his mistaken assumption that he could “have an appellate court review an adverse determination” of his motion to dismiss. See Fed. R. Crim. P. 11(a)(2). He could not have obtained such an adverse determination without proceeding to trial, however, and thus could not both plead guilty and obtain appellate review of his constitutional challenge. Had the district court informed Turner that it would have to defer a final ruling on his motion, Turner could have “move[d] to vacate [his] guilty plea[ ]” and “proceeded] to trial on the original charges.” See Grimmett, 150 F.3d at 962. We remand for Turner to have the opportunity to consider this choice.

III.

For the foregoing reasons, the district court order denying Turner’s motion to dismiss is reversed, the judgment is vacated, and the case is remanded for further proceedings consistent with this. opinion.

      , Although a facial challenge to 18 U.S.C. § 922(g)(3) could be brought in a pretrial motion to dismiss, see United States v. Pope, 613 F.3d 1255, 1261 (10th Cir. 2010), a panel of our court has held that criminal statutes challenged on non First Amendment grounds are not amenable to facial attacks. See, e.g., United States v. Ghane, 673 F.3d 771, 777 (8th Cir. 2012); but see Johnson v. United States, 135. S.Ct. at 2561 (stating that the Supreme Court "holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp”).

      . Because of this disposition, it is not necessary to reach Turner's alternative sentencing arguments.


author: PER CURIAM.

text:
    CENTURY SURETY COMPANY, Plaintiff-Appellant v. JIM HIPNER LLC; Robert Lopez; Huey Brock; Jose Chavez; Abraham Reyes, Defendants-Appellees
    No. 15-2120
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: November 23, 2016

      Counsel who represented the appellant was Jeffrey Charles Gerish, of Bloomfield Hills, MI and Bradford S. Moyer of Kalamazoo, MI.
    Counsel who represented the appellee was Duane A Lillehaug, of Fargo, ND, Colleen Pratt, of Long Beach, CA, and Michael D. Ainbinder of Long Beach, CA.
    Before SMITH, BYE, and BENTON, Circuit Judges.

      . This opinion is being filed by Judge Smith and Judge Benton pursuant to 8th Cir. Rule 47E.

   PER CURIAM.

Century Surety Company (“Century”) appeals from a final judgment of the district court determining that Jim Hipner, LLC (“Hipner”) does have coverage under an umbrella policy entered into between Century and Hipner. After finding the notice provision in the policy ambiguous, the district court concluded that the governing law, the law of Wyoming, would consider Hipner’s delayed notice of claim not to be untimely. Century appealed, seeking reversal of the district court’s determinations that the notice provision is ambiguous and that Hipner gave timely notice. Because Wyoming law, however, had not definitively addressed whether an insurer must be prejudiced before being entitled to deny coverage when the insured has failed to give notice “as soon as practicable,” we certified the question to the Supreme Court of Wyoming. See Wyo. Stat. Ann. § 1-13-106.

On certification, the Supreme Court of Wyoming adopted the notice-prejudice rule, holding that “prejudice to the insurer [is required] before coverage may be denied based upon a violation of a notice provision contained in the policy.” Century Sur. Co. v. Jim Hipner, LLC, 377 P.3d 784, 791 (Wyo. 2016). Additionally, the court held that “an insurance clause is [not] enforceable where it excludes coverage unless the insured notifies the insurer ‘as soon as practicable ... whether [the insurer] [is] prejudiced or not.’ ” Id. at 792 (ellipses in original) (second and third alterations in original). After supplemental briefing to this court, we now affirm the district court.

I. Background

In 2010, Hipner, a trucking company, purchased a $2 million umbrella policy (“Century Policy”) from Century. In paragraph 3, the Century Policy contains the following notice provision:

b. If you notify any “underlying insurer” of an “occurrence” or an offense involving “bodily injury” or “personal and advertising injury[,”] you must see to it that we are also notified in writing as soon as practicable.

Later, in the same paragraph, the Century Policy contains an exclusion provision that states:

Failure to notify us, as required per paragraphs 3. a. and 3. b. above, of an “occurrence” or offense as soon as practicable will result in exclusion of coverage whether we are prejudiced or not.

On March 31, 2011, one of Hipner’s drivers created a road obstruction that caused a multi-vehicle collision (“the accident”) in North Dakota. According to the North Dakota Motor Vehicle Crash Report, a passenger in a car that was rear-ended by another vehicle suffered injuries deemed minor at the time. The Motor Vehicle Crash Report indicates that the other persons involved in the accident had “non-incapacitating” injuries at the time of the accident. Jim Hipner (“Jim”), a co-owner of Hipner, learned of the accident the same day that it occurred.

Jim testified that, upon his arrival to the scene of the accident, the state patrol officer told him that “there were no serious injuries.” Jim also testified that the officer told him that one of the passengers had “some numbness or tingling,” but that “it was nothing to worry about” and that this “happens quite often in these cases.” According to the medical records, one person, Huey Brock, arrived at Trinity Hospital on March 31 unable to move his arms or legs.

On the day of the accident, Jim called and reported the accident to representatives at Willis of Wyoming and Great West Casualty Company (“Great West”), his company’s primary insurers. But, no one at Hipner notified Century. In his deposition, Jim stated that he thought that notifying Willis of Wyoming satisfied his obligations to notify all of the insurance companies. On March 31, Great West set up a claim and began investigating the accident.

Brock’s injuries rendered him quadriplegic. Jim testified that he did not know that Brock sustained significant injuries from the accident until May 2011. On September 20, 2011, Century received notice of the accident indirectly when Willis of Wyoming sent Century the policy renewal for Hipner. The next day, Century created an umbrella claim relating to the accident. On December 13, 2011, Great West sent its claim file, including the investigation materials, to Century. Century did not perform its own investigation of thé accident because “[t]h'e duty to investigate the accident fell upon Great West Casualty. Century Surety relied upon Great West Casualty to perform a competent investigation.” Nevertheless, Century later found fault with Great West’s' investigation, claiming that it was not thorough enough. After reviewing the materials that Great West sent to Century, Century concluded that Great West did not do a timely and thorough investigation of the claim. According to Century, Great West “did not do ... the type of investigation that an insurance company should do when [it] receive[s] a claim involving injuries involving a quadriplegic-.” Century subsequently asked Great West to investigate further. Specifically, it asked Great West to retain an accident reconstructionist, but Great West declined that request and indicated that it would not hire an accident recon-structionist unless litigation resulted. Century admitted that nothing prevented it from obtaining an accident reconstructionist or investigating further.

In November 2012, Century received Brock’s settlement demand but declined to participate in the settlement “based upon lack of coverage for Jim Hipner LLC under the Century Policy coupled with serious questions regarding liability and damages.”

Century then filed the instant action in federal court seeking a declaratory judgment that Century does not have an obligation to defend or indemnify Hipner in connection with any claims arising out of or relating to the accident. Both Hipner and Brock filed motions for summary judgment, or in the alternative, a motion for partial summary judgment, requesting Century’s claims for declaratory relief be denied. Century, in response, filed a cross-motion for summary judgment seeking a declaration that it has no obligation to defend or to indemnify Hipner in connection with the accident. Specifically, Century argued that it was not liable under Wyoming law because Hipner failed to provide written notice “as soon as practicable” as required by the Century Policy.

The district court determined that although the Century Policy clearly and unambiguously requires written notice of a claim, the “as soon as practicable” requirement is ambiguous. Citing to Pacheco v. Continental Casualty Co., 476 P.2d 166 (Wyo. 1970), the district court concluded that Wyoming courts have found similar language ambiguous. After a “balancing of the beneficiary’s right to have the policy liberally construed in his favor with the legitimate interest of the insurer in being protected from stale claims,” id. at 169, the district court found that Century received timely notice under the Century Policy as a matter of Wyoming law. The district court explained that “Century Surety’s choice to rely on Great West’s investigation and not to independently investigate the accident, posed the substantial obstacle to Century Surety ascertaining the facts surrounding the accident rather than Hip-ner LLC’s failure to notify Century Surety for approximately three to four months.”

II. Discussion

On appeal, Century argues that the policy language at issue is unambiguous and that, applying Wyoming’s notice-prejudice rule, it suffered prejudice from the delay in receiving notice of the accident as a matter of law.

“The construction and interpretation of the terms of [an insurance] policy are questions of law for the court, where there is no ambiguity in the language of the policy when applied to the undisputed facts, and it is error to leave its construction. to the jury...,.” Tadday v. Nat’l Aviation Underwriters, 660 P.2d 1148, 1156 (Wyo. 1983) (Thomas, J., concurring) (footnotes omitted) (quoting 46 C.J.S. Insurance § 1368 (1946)). Furthermore, “whether the notice-prejudice rule applies in this context is a question of law.” In re Centrix Fin., LLC; No. 09-CV-01542-PAB-CBS, 2015 WL 3499853, at *4 (D. Colo. June 2, 2015).

As a threshold matter, the Supreme Court of Wyoming held in Century Surety that Century’s exclusion provision “excluding] coverage unless the insured notifies the insurer ‘as soon as practicable ... whether [the insurer] [is] prejudiced or not’ ” is unenforceable. 377 P.3d at 792 (ellipses in original) (second and third alterations in original). As a result, we must apply Wyoming’s “two-step approach to an insurer’s claim of late notice.” Id. at 791.

First, we must determine whether Hipner’s

notice was untimely, in violation of the notice requirement contained in the insurance policy. The question of the timeliness of the insured’s delay in providing notice will depend upon a number of factors, including, but not limited to, the language of the notice requirement in the policy, the timing of the notice, the insured’s knowledge of the underlying facts and ability to provide notice, the sophistication of the parties, the type of insurance at issue, and the reasonableness of any delay.

Id. (citing Northbrook Prop. & Cas. Ins. Co. v. Applied Sys., Inc., 313 Ill.App.3d 457, 246 Ill.Dec. 264, 729 N.E.2d 915, 922 (2000)). Second, if we conclude that Hip-ner’s notice was untimely, we must then determine “whether the insurer was prejudiced by that delay. If the insurer was prejudiced, then the insurer. .will be relieved of its obligation to provide coverage.” Id.

A. Timeliness of Notice

As to the first inquiry,, the district court determined that although the Century Policy clearly and unambiguously requires written notice of a claim, the “as soon as practicable” requirement is ambiguous. It then balanced the parties’ competing interests and found that Century received timely notice under the Century Policy as a matter of Wyoming law.

We conclude that the “as soon as practicable” requirement is unambiguous. Wyoming law provides that the phrase “as soon as practicable” means “within a reasonable time.” See Black & Yates, Inc. v. Negros-Philippine Lumber Co., 32 Wyo. 248, 231 P. 398, 401 (1924) (“Where no time for performance is specified in a contract the law implies that it must be performed within a reasonable time. This is substantially true even where the mode of defining the time of performance of a commercial contract is by the use of the phrase ‘as soon as practicable’ or other similar phrases.” (citations omitted)).

• We also conclude, under the undisputed facts of this case, that notice to Century would have been no less “practicable” than the notice given to the primary carriers. The record shows that Hipner notified the underlying primary insurance companies on March 31, 2011; however, he never directly provided notice to Century. Instead, Century received notice of the accident indirectly when Willis of Wyoming sent Century the policy renewal for Hipner. Jim Hipner attributed his failure to notify Century of the accident to his belief that notice to Willis of Wyoming satisfied his obligations to notify all of the insurance companies. Under-the'undisputed facts of this case, we conclude that Hipner did not provide timely notice of the accident to Century.

B. Prejudice to Century

We must now determine whether Century was prejudiced by the delay in receiving notice of the accident. Century received indirect notice of the accident on September 20, 2011, four months after the accident occurred.

Century argues that the delay in receiving notice of the accident prejudiced it as a matter of law. Century contends that a rebuttable presumption of prejudice exists where the insured fails to show substantial compliance with a condition pi-ecedent, see Gainsco Ins. Co. v. Amoco Prod. Co., 53 P.3d 1051, 1067 (Wyo. 2002), and that Hip-ner failed to submit evidence rebutting the presumption of prejudice to Century based on the delay in receiving notice of the claim. Century cites the following evidence in support of its argument that it was prejudiced: (1) Century was not provided the claim file from Great West, the underlying insurer, until nine months after the accident; (2) Great West did not do a timely or thorough investigation of the claim; (3) Great West did not retain defense counsel until about five months after the accident; (4) Century learning of an accident that occurred months prior prevented Century from interviewing witnesses while the facts were still fresh in their minds; (5) the vehicles were not preserved; and (6) Century was unable to take scene photos.

Century’s argument fails because Century does not show how the four-month delay in receiving notice actually prevented it from taking any meaningful investigatory steps that it would have done had there been no delay. This is because Century chose not to investigate once it received the investigative materials from Great West. If Century believed that something was missing after receiving the investigative materials, it could have launched its own investigation or followed up with Great West’s investigation, but it chose not to. Specifically, it did not (1) interview any persons involved; (2) take any photographs of any vehicle involved in the accident or the accident scene; (3) obtain any medical records regarding any individual involved in the accident other than what Great West provided; (4) contact any employers of any of the people involved in the accident; (5) hire any outside company to do an investigation regarding witnesses, statements, or photographs; or (6) hire an accident reconstructionist. Century admitted that nothing prevented it from investigating further. During the span of time between when Century received notice— September 2011—and when it denied coverage—May 2012—Century made no attempt to ascertain whatever information that it deemed necessary. For that reason, we hold, as a matter of law, that Century suffered no prejudice from the delay in notice. As the district court concluded:

Century Surety’s choice to rely on Great West’s investigation and not to independently investigate the accident, posed the substantial obstacle to Century Surety ascertaining the facts surrounding the accident rather than Hipner LLC’s failure to notify Century Surety for approximately three to four months. Century Surety cannot postpone its independent investigation based on its reliance on Great West’s investigation and then later submit Great West’s investigation was incompetent and that too much time has lapsed for Century Surety to perform an investigation; Century Surety cannot have it both ways.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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

      . The named appellees in this case are Jim Hipner, LLC, Robert Lopez (Hipner’s employee), Huey Brock (an injured passenger), Jose Chavez (an injured driver), and Abraham Reyes (an injured passenger). However, the present appeal relates only to the contractual relationship between Century and Hipner.

      . Ultimately, the district court granted summary judgment in favor of Century, concluding that the policy was not triggered because there was no “ultimate net loss,” as required by the insuring agreement and because Hip-ner’s settlement with Brock did not allow judgment to be entered against Hipner. But the district court suggested that because of the personal-injury statute of limitations, Brock had time to sue Hipner in connection with the collision and attempt to establish that Hipner’s liability and damage exceed the underlying policy limits, notwithstanding the agreement fully releasing Hipner from all liability. Brock has now sued the insured, Hip-ner, for negligence in connection with the collision. Because the district court rejected Century’s late-notice defense, collateral estop-pel would preclude Century from raising the same defense if Brock or Hipner seeks umbrella coverage under the Century policy. For that reason, Century has standing to appeal the district court's judgment even though it was the prevailing party on summary judgment.

      . Other courts are in agreement that the phrase "as soon as practicable” means "within a reasonable time.” See, e.g., Weitz Co., LLC v. Lexington Ins. Co., 982 F.Supp.2d 975, 1000 (S.D. Iowa 2013), aff’d, 786 F.3d 641 (8th Cir, 2015) (“First, regarding the 'substantial compliance’ issue, this Court must interpret the phrase 'as soon as practicable' from Lexington/Allied’s insurance policy. Iowa courts are in agreement that 'as soon as practicable' means ‘within a reasonable time in light of the circumstances.’ ” (citation omitted)); Hughey v. Aetna Cas. & Sur. Co., 30 F.R.D. 508, 511 (D. Del. 1962) ("Delaware law further provides a requirement to give notice ‘as soon as practicable’ means within a reasonable time under the circumstances; mere time lapse is not the determining factor,”); Greenway v. Selected Risks Ins. Co., 307 A.2d 753, 755 (D.C. 1973) ("The words 'as soon as practicable’ have uniformly been held to mean within a reasonable time in view of .all the facts and circumstances of each particular case.”); Bass v. Allstate Ins. Co., 77 N.J.Super. 491, 187 A.2d 28, 30 (1962) ("The policy in question requires that written notice of the occurrence shall be given to. the company as soon as practicable. This phrase has been construed to mean within a reasonable time.”); Ragland v. Nationwide Mut. Ins. Co., 146 W.Va. 403, 120 S.E.2d 482, 490-91 (1961) ("It is apparent from the decisions of. courts of other jurisdictions and by the great weight of authority that: (1) The phrase ‘as soon as practicable’ means a reasonable time; and (2) more than five months is not, under normal circumstances, a reasonable time for an insured to report a fatal accident to his insurer.”); Wallace v. State Farm Mut. Auto. Ins. Co., 187 Tenn. 692, 216 S.W.2d 697, 700 (1949) ("The language 'as soon as practicable’ < means a reasonable time.”).