United States District Court,

M.D. Georgia,

Macon Division.

Jarrett LITTLE and Cindy Little, as guardians and natural parents of Lindsey Little, Plaintiffs,

v.

Alonzo K. McCLURE, et al., Defendants.

 

Civil Action No. 5:12–CV–147 (MTT).

Signed Aug. 29, 2014.

 

Caleb F. Walker, Katherine Lee McArthur, Macon, GA, for Plaintiffs.

 

Kurt M. Rozelsky, Greenville, SC, for Defendants.

 

ORDER

MARC T. TREADWELL, District Judge.

*1 Before the Court is the Defendants’ motion for partial summary judgment. (Doc. 38). This case arises out of a motor vehicle accident that occurred at the intersection of I16 West and I–75 North in Macon, Georgia. At oral argument on July 11, 2014, the Court denied the Defendants’ motion with regard to Plaintiff Lindsey Little’s negligence per se and the Plaintiffs’ claim for attorneys’ fees pursuant to O.C.G.A. § 13–6–11. (Doc. 52). The Defendants have also moved for summary judgment on the Plaintiffs’ direct negligence claim against Defendant Merchants Distributors, Inc. (“MDI”) and on the Plaintiffs’ punitive damages claims. For the following reasons, the Defendants’ motion is GRANTED in part and DENIED in part.

 

I. BACKGROUNDFN1

 

FN1. The Defendants initially did not file a statement of material facts pursuant to Local Rule 56 and only filed one in response to the Court’s Order to show cause why their motion should not be struck. Though the Plaintiffs were not required to respond to this late-filed statement of facts, the Court notes they failed to include a separate fact section in their response brief to the Defendants’ motion.

 

On February 20, 2012, Defendant Alonzo McClure was driving a tractor-trailer on I16 West toward its convergence with I–75. (Doc. 59 at 95:1–23).FN2 When McClure moved his tractor-trailer from the center lane to the right lane to continue onto I–75 North, he collided with Plaintiff Lindsey Little’s Honda Civic. (Doc. 61 at 50:16–17, 75:6–10). According to McClure, he checked his mirrors before changing lanes and did not see Little’s vehicle. (Doc. 59 at 101:20–103:14). After McClure’s tractor-trailer made contact with her car, Little climbed to the passenger seat and leapt out of the vehicle through the passenger side door. (Doc. 67 at 47:14–24, 48:17–49:11). Little’s vehicle became trapped under the tractor-trailer, and McClure dragged it for some distance before stopping. (Doc. 61 at 52:14–53:14). When he came to a stop, the Civic was wedged between the truck and the guardrail. (Docs. 59 at 111:23–112:9; 61 at 110:3–7). McClure testified he thought he had been rear-ended and did not see Little’s vehicle until he was pulling over to stop on the right shoulder. (Doc. 59 at 107:18–108:16, 110:12–111:4). Little’s left ankle and right hand were injured in the collision. (Doc. 67 at 66:18–67:16).

 

FN2. The page numbers reflect the deposition page numbers, as opposed to the CM/ECF page numbers.

 

The Plaintiffs’ punitive damages claim against McClure is based primarily on his cell phone use.FN3 The record shows McClure talked to other MDI drivers on his cell phone while they were driving their respective routes, including some lengthy calls on the day of the collision. (Docs. 59 at 66:1–68:25, 80:1–81:13, 83:23–86:4; 55–4). According to McClure, he uses a wireless hands-free device to talk on the phone while driving. (Doc. 59 at 64:24–65:3). McClure testified he hung up the phone on his hands-free device about a minute and a half prior to the wreck, though the Plaintiffs contend McClure’s cell phone records show he was talking on his phone during the time of the wreck. (Doc. 59 at 64:10–21, 65:19–21).FN4

 

FN3. The Defendants moved in limine to exclude McClure’s prior and/or subsequent cell phone use. (Doc. 33). The Court defers ruling on the motion because the outcome of the Defendants’ motion for summary judgment does not turn on whether McClure was using his cell phone prior to or after the wreck.

 

FN4. McClure contends his hands-free device must have malfunctioned. (Doc. 59 at 87:12–88:8). However, as discussed in the Court’s Order granting the Plaintiffs’ motion for sanctions, the device is not available for inspection because McClure returned it to the manufacturer. (Doc. 68).

 

Defendant MDI is McClure’s employer, and Defendant Merchants Transport of Hickory, Inc. (“MTH”) is the owner of the tractor-trailer McClure was driving at the time of the collision.FN5 Defendant Alex Lee, Inc. is the parent corporation of both MDI and MTH and is insured by Defendant Travelers Indemnity Company of Connecticut. The Plaintiffs’ punitive damages claim against MDI, MTH, and Alex Lee is based on their policy regarding driver cell phone use and its enforcement. The cell phone policy states:

 

FN5. Based on the complaint and answer, it appears MDI owns the vehicle. (Docs. 1–2, ¶¶ 10, 15; 8, ¶¶ 11, 16). However, the Defendants state in their brief that MTH is the owner. (Doc. 38–1 at 2). Because it is immaterial to the outcome, the Court assumes for purposes of the motion that MTH is the owner of the commercial vehicle.

 

*2 Drivers operating any vehicle that requires a CDL to operate, whether company owned or non-company owned, are prohibited from using cell phones without a hands-free device while driving the vehicle on company business. Cell phone use should be limited, but is permitted with the use of a headset if allowed by law.

(Doc. 55–3). MDI relies on its drivers to determine when cell phone use is permissible under the circumstances but does not specifically prohibit cell phone use as long as the driver uses a hands-free device. (Doc. 62 at 30:19–34:6).

 

II. DISCUSSION

A. Summary Judgment Standard

A court must grant summary judgment “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 factual dispute is not genuine unless, based on the evidence presented, “a reasonable jury could return a verdict for the nonmoving party.” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (internal quotation marks and citation omitted). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

 

The burden then shifts to the non-moving party, who must rebut the movant’s showing “by producing … relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir.2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-moving party does not satisfy her burden “if the rebuttal evidence ‘is merely colorable, or is not significantly probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249–50). Further, where a party fails to address another party’s assertion of fact as required by Fed.R.Civ.P. 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2). However, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge…. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.

 

B. Plaintiffs’ Claim of Negligent Hiring, Retention, and Training FN6 against MDI

 

FN6. Because the Plaintiffs assert claims of negligent hiring, retention, and training in their complaint, this is how the Court refers to the claims even though the Plaintiffs refer to them as negligent entrustment, hiring, retention, and supervision in their response brief. (Doc. 1–2, ¶ 22).

 

MDI argues it is entitled to summary judgment on the Plaintiffs’ negligent hiring, retention, and training claims because it has admitted that McClure was its employee and that he was acting within the course and scope of his employment at the time of the collision. (Doc. 8, ¶ 13). It is true that Georgia cases have repeatedly held an employer is entitled to summary judgment on its independent negligence in hiring and retaining an employee when it admits the applicability of respondeat superior. See, e.g., Kelley v. Blue Line Carriers, LLC, 300 Ga.App. 577, 580, 685 S.E.2d 479, 483 (2009); Durben v. Am. Materials, Inc., 232 Ga.App. 750, 751, 503 S.E.2d 618, 619 (1998); Bartja v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 218 Ga.App. 815, 817, 463 S.E.2d 358, 361 (1995). The rationale is that the two claims are coextensive. Because the employer would already be liable for the employee’s negligence by virtue of the respondeat superior doctrine, a claim for the employer’s independent negligence would not afford the plaintiff any additional recovery. Durben, 232 Ga.App. at 751, 503 S.E.2d at 619. An exception exists if there is a valid claim for punitive damages against the employer because the claims would no longer be coextensive. Id.

 

*3 The Plaintiffs contend both that there is a valid punitive damages claim against MDI and that the rule is no longer applicable due to Georgia’s abolishment of joint and several liability through its apportionment statute. See O.C.G.A. § 51–12–33.FN7 The Court finds the second argument persuasive. Because the jury must apportion separate percentages of damages to each party at fault, the employer’s liability will no longer necessarily be coextensive with the employee’s simply because respondeat superior applies. Under a system of joint and several liability, both the employer and employee would be liable for the entire amount of the plaintiff’s damages if respondeat superior applies, regardless of whether the employer was also independently negligent. However, under Georgia’s apportionment statute, an employer would be separately responsible for its degree of fault, if any, based on its independent negligence. A defendant is only liable for the percentage of a plaintiff’s damages attributable to his apportioned fault, so the employee’s negligence (for which the employer would be liable by virtue of respondeat superior ) would be apportioned separately from the employer’s independent negligence. See O.C.G.A. § 51–12–33(b).

 

FN7. “Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall … apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.” O.C.G.A. § 51–12–33(b).

 

The Defendants argue the apportionment statute does not alter the previous rule because the Georgia Court of Appeals has continued to apply it. See Mastec N. Am., Inc. v. Wilson, 325 Ga.App. 863, 865, 755 S.E.2d 257, 259 (2014). However, the plaintiff in Mastec did not argue the apportionment statute altered the analysis. Further, it is clear the apportionment statute removes the rationale for granting summary judgment on negligent hiring, retention, and training claims purely based on the employer’s admission of respondeat superior. Thus, MDI is not entitled to summary judgment on the Plaintiffs’ claims of negligent hiring, training, and retention on this ground. FN8

 

FN8. For reasons not apparent to the Court, Defendants Alex Lee and MTH did not move for summary judgment on the Plaintiffs’ claim of negligent hiring, retention, and training, except to the extent the Plaintiffs sought punitive damages based on that claim. It appears to the Court that the Plaintiffs joined all three Corporate Defendants in this claim because they were not sure who was responsible for McClure’s hiring, retention, and training. Now that MDI has admitted that it employed McClure, the Court questions whether there is any need for Alex Lee and MTH to remain parties, notwithstanding their failure to move for summary judgment. On a more substantive level, as discussed below in conjunction with the Plaintiffs’ punitive damages claim against Alex Lee, MDI, and MTH, it is clear that the failure to have and enforce a ban on cell phones is not an appropriate basis for this claim. Because the Defendants did not address this in their motion, the Court will give the Plaintiffs 14 days to file an additional brief addressing this claim. Otherwise, the Court will grant summary judgment for the Corporate Defendants.

 

C. Plaintiffs’ Punitive Damages Claims

The Plaintiffs have asserted punitive damages claims against all Defendants. Pursuant to O.C.G.A. § 51–12–5.1(b), “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “Negligence, even gross negligence, is inadequate to support a punitive damage award…. [S]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” Brooks v. Gray, 262 Ga.App. 232, 232, 585 S.E.2d 188, 189 (2003) (internal quotation marks and citation omitted). In actions based on vehicle collisions, “punitive damages are not recoverable where the driver at fault simply violated a rule of the road.” Carter v. Spells, 229 Ga.App. 441, 442, 494 S.E.2d 279, 281 (1997). But punitive damages are recoverable if the collision results from “a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively.” Brooks, 262 Ga.App. at 233, 585 S.E.2d at 189 (internal quotation marks and citation omitted).

 

1. Defendant McClure

*4 The Plaintiffs allege Defendant McClure’s “engag[ing] in an excessive number of purely social cell phone calls, some of which lasted up to and over an hour in length” during the trip he was making when the wreck occurred and his “engaging in a purely social cell phone call over thirty minutes in length [ ] while driving his tractor-trailer truck through a busy and dangerous interstate interchange” constitute a basis for punitive damages. (Doc. 28, ¶¶ 28–30). In their supplemental brief, the Defendants argue that the Plaintiffs’ claim for punitive damages is foreclosed by Lindsey v. Clinch County Glass, Inc., 312 Ga.App. 534, 718 S.E.2d 806 (2011).

 

In Clinch County Glass, the defendant truck driver collided with the plaintiff’s car because he was searching for a number on his cell phone and did not notice traffic was stopped at the red light in front of him until it was too late to avoid the collision. Though the defendants admitted fault, they sought summary judgment on the plaintiff’s claim for punitive damages. The plaintiff argued there was sufficient evidence to authorize a jury to award punitive damages because the driver frequently used his cell phone while driving even though he knew it was dangerous and admitted being distracted by looking up a number on his phone. The Court of Appeals disagreed:

 

Although there was evidence that [the driver] had a pattern of regularly talking on his mobile phone while driving, as stated above, the proper use of a cell phone while driving is permissible in Georgia, and thus the evidence of mobile phone use did not, without more, establish a policy or pattern of dangerous driving.

 

Id. at 536, 718 S.E.2d 806, 718 S.E.2d at 808.FN9 There was no evidence the defendant was “speeding, driving while under the influence, or that he had a history of distraction-related accidents, traffic violations, or other evidence that would show a pattern of dangerous driving or other aggravating circumstances so as to authorize an award of punitive damages.” Id. The court left open the possibility that punitive damages could be available in a case where the defendant was distracted due to cell phone use if “there is … evidence of a policy or pattern of dangerous driving or other aggravating circumstances.” Id. Thus, simply using a cell phone, even prolonged use, does not provide grounds for a punitive damages claim.

 

FN9. In Georgia, the proper use of a cell phone is not a violation of the duty to exercise due care while operating a motor vehicle. O .C.G.A. § 40–6–241.

 

The Plaintiffs argue punitive damages are authorized by the aggravating circumstances of this case. Specifically, the Plaintiffs contend punitive damages are available because McClure was using his cell phone while attempting to navigate a treacherous interchange, because he was oblivious to Little’s vehicle, and because he dragged the vehicle for some distance before pinning it between the truck and the guardrail.FN10 Although it is a close question, the Court cannot find as a matter of law that the Plaintiffs cannot prove aggravating circumstances that would warrant an award of punitive damages. Cf. Langlois v. Wolford, 246 Ga.App. 209, 210, 539 S.E.2d 565, 567 (2000) ( “[Wi]llful and intentional conduct is not essential to recover punitive damages, because where the facts and circumstances of the tort show an entire want of care, such conduct gives rise to a presumption of indifference to the consequences, i.e., wantonness, which is sufficient to support an award of punitive damages.”). Accordingly, the Defendants are not entitled to summary judgment on the punitive damages claim against Defendant McClure.FN11

 

FN10. The Plaintiffs emphasize that Little’s vehicle was dragged for more than one-tenth of a mile. There are two places in the record this distance appears: (1) the Plaintiffs’ questions posed to Brian Boggess, the Defendants’ accident reconstruction ist, during his deposition (in which Boggess states he cannot give any precise distances without his computer in front of him); and (2) McClure’s estimation during his deposition of his distance from the bridge leading onto I–75 North when he began changing lanes. (Docs. 61 at 75:11–13,109:16–110:2,167:9–168:19; 59 at 114:22–115:7). Although there may be other documentation establishing how far Little’s vehicle was dragged, the Plaintiffs have not cited it and the Court has not found it in the record.

 

FN11. The Plaintiffs’ alternative argument that McClure’s habitual cell phone use was not “proper” under O.C.G.A. § 40–6–241 because it violated industry standards is discussed below. The Plaintiffs also contend that McClure’s hours of service (“HOS”) violation and cell phone use after the collision show aggravating circumstances warranting punitive damages. The Court disagrees. That issue will be addressed in the Court’s ruling on the Defendants’ pending motions in limine to exclude the HOS violation and McClure’s prior or subsequent cell phone use. (Docs. 33; 34).

 

2. Defendants Alex Lee, MDI, and MTH

*5 As to Defendants Alex Lee, MDI, and MTH (“Corporate Defendants”), the Plaintiffs contend their failure “to enforce an adequate policy regarding driver use of cell phones with full knowledge of the danger of distracted driving posed by the use of cell phones while driving”—specifically by “allow [ing] their truck drivers to engage in a pattern and practice of making excessively long purely social cell phone calls among themselves and others while driving tractor-trailer trucks in the course and scope of their employment”—constitutes a basis for punitive damages. (Doc. 28, ¶¶ 31–33). Judge Land considered and rejected a nearly identical argument in Ellis v. Old Bridge Transport, LLC, 2012 WL 6569274 (M.D.Ga.). As Judge Land observed, failing to ensure that an employee does not engage in conduct that “is otherwise lawful and has been found by the Georgia Court of Appeals not to demonstrate a conscious disregard for safety” is not a basis for punitive damages. Id. at *2. Commercial truck drivers are permitted to talk on cell phones with hands-free devices under federal law. 49 C.F.R. § 392.82. Thus, the Plaintiffs’ position that the Corporate Defendants can be held liable for punitive damages based on their failure to have and enforce a ban on cell phones is without merit.

 

The Plaintiffs further argue that because the manner in which McClure used his cell phone was against industry guidelines, the Corporate Defendants’ failure to take action to address his cell phone use supports an award of punitive damages. The Plaintiffs cite a number of sources, including the North Carolina Commercial Driver’s Manual,FN12 to show that McClure’s pattern of “driving through major cities on hours-long social phone calls with other [MDI] drivers” was contrary to industry guidelines and thus improper. (Doc. 54 at 3). Even if the circumstances of McClure’s cell phone use were improper, this does not support a conclusion that the Corporate Defendants are subject to punitive damages.

 

FN12. The Defendants have also moved to exclude the North Carolina Commercial Drivers Manual from consideration as evidence of a heightened duty of care. (Doc. 35). The Court defers discussion of the manual’s admissibility until ruling on the Defendants’ motion in limine.

 

An employer can be held liable for punitive damages based on its negligent hiring or retention if it actually knew of “numerous and serious violations on its driver’s record, or, at the very least, … flouted a legal duty to check a record showing such violations.” W. Indus., Inc. v. Poole, 280 Ga.App. 378, 380, 634 S.E.2d 118, 120–21 (2006). These circumstances are sufficient to “support a conclusion that the employer acted with such ‘an entire want of care’ as to ‘raise [a] presumption of conscious indifference to [the] consequences.’ ” Id. (citation omitted). The Plaintiffs cite Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 435 S.E.2d 54 (1993) to show that taking no action to address a driver’s habitual negligence can subject an employer to punitive damages. In that case, the defendant trucking company had actual knowledge its driver received two traffic violations in a company vehicle, and the company violated its obligation under federal regulations to check the driver’s driving record. Id. at 828, 435 S.E.2d at 57. Had the company checked, it would have discovered “several other traffic violations on [the driver’s] record, including a DUI.” Id.

 

*6 The Plaintiffs have presented no evidence the Corporate Defendants actually knew about the nature of McClure’s cell phone use. They have only shown MDI did not specifically limit the circumstances of its drivers’ cell phone use. Nor have the Plaintiffs presented evidence the Corporate Defendants “flouted a legal duty to check” any records that would alert them to a pattern of habitual negligence. In fact, there is no evidence of any prior distraction-related accident in the record. Therefore, the Defendants are entitled to summary judgment on the Plaintiffs’ punitive damages claims against Alex Lee, MDI, and MTH.

 

III. CONCLUSION

For the reasons discussed above, the Defendants’ motion for partial summary judgment (Doc. 38) is GRANTED in part and DENIED in part. The Plaintiffs have 14 days to file an additional brief addressing their negligent hiring, retention, and training claim. Otherwise, the Court will grant summary judgment for the Corporate Defendants on this claim.

 

SO ORDERED.

United States Court of Appeals,

Eighth Circuit.

UNITED STATES of America, Plaintiff–Appellee

v.

Jeffrey Cole BENNETT, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.

Jennifer Rose Hogeland, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.

Clayton Craig Hogeland, Defendant–Appellant.

 

Nos. 12–3754, 13–1109, 13–2038.

Submitted: June 10, 2014.

Filed: Aug. 29, 2014.

 

Appeal from United States District Court for the District of Minnesota—St. Paul.Timothy Christopher Rank, AUSA, Minneapolis, MN, for appellee.

 

Nadia Wood, Saint Paul, MN, for appellant, Jeffrey Cole Bennett.

 

David Gerdtz, Minneapolis, MN, for appellant, Jennifer Hogeland.

 

John C. Brink, Minneapolis, MN, for appellant, Clayton Hogeland.

 

Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

 

GRUENDER, Circuit Judge.

*1 A jury found Jeffrey Bennett (“Bennett”), Jennifer Hogeland (“Jennifer”), and Clayton Hogeland (“Clayton”) guilty on several counts stemming from two fraudulent schemes. The district court FN1 sentenced them to ninety-five months’, fifteen months’, and 200 months’ imprisonment, respectively. Bennett and Clayton appeal both their convictions and sentences. Jennifer appeals her convictions. Clayton died while this appeal was pending. For the reasons described below, we vacate Clayton’s convictions and remand his case to the district court with instructions to dismiss the indictment as it relates to him. However, we affirm Bennett’s convictions and sentence, as well as Jennifer’s convictions.

 

I. Background

Clayton served as general manager of Advantage Transportation, Inc. (“Advantage”), a large Minnesota-based trucking-logistics company. As general manager, Clayton had “free reign” to manage the company’s operations, including contracting with outside vendors and approving invoices for payment. At Clayton’s recommendation, in May 2003, Advantage hired Bennett to oversee its Memphis, Tennessee office.

 

Soon thereafter, Clayton and Bennett hatched a scheme to defraud Advantage. Bennett created four corporations: American Logistics Advisors, Inc. (“ALA”); Transportation Marketing Concepts, Inc. (“TMC”);LTLDevelopment.com, Inc. (“LTL”); and Air Catering Solutions and Marketing, Inc. (“ACS”). Between 2003 and 2005, the corporations submitted numerous invoices to Advantage purportedly for various goods or services provided to Advantage. Clayton approved the invoices, after which checks were generated from Advantage to the corporate entities. The checks were then mailed or, on rare occasions, sent by common carrier to the recipients. While Advantage’s accounting staff knew that these payments were being made, they were unaware that the corporations were owned by Bennett. Despite receiving the payments from Advantage, Bennett’s corporations never actually provided the goods or services for which they had billed Advantage. Bank records for ALA, TMC, and LTL showed that the only payments the corporations had received were from Advantage and that they did not pay ordinary business expenses such as rent or utilities. The only business-expense payments revealed by ACS’s bank records were payroll checks to two employees. Instead, Bennett’s corporations wrote numerous checks to Jennifer, most of which she deposited into her bank account. Nearly all of the companies’ remaining funds were withdrawn by Bennett. In all, Bennett received $393,091 through the fraudulent scheme.

 

Beginning in 2003, Clayton also operated a separate fraudulent scheme with Carl Frey, an American Airlines employee who was responsible for finding trucking companies to deliver freight for the airline. The two agreed that Frey would steer American Airlines trucking business to Advantage, and, in exchange, Clayton would authorize payments from Advantage to Frey personally. In all, Frey received nearly $90,000. Neither American Airlines nor Advantage were aware of this scheme.

 

*2 Clayton resigned from Advantage in the spring of 2005, and Bennett left in September 2006. Neither Jennifer nor Clayton informed their tax preparers about the funds obtained through these fraudulent schemes, and thus their illicit income was not included on their joint federal income-tax returns for 2003, 2004, and 2005.

 

After the fraudulent schemes were discovered, a grand jury returned an indictment against Bennett, Clayton, and Jennifer. The indictment charged Bennett and Clayton with mail fraud, in violation of 18 U.S.C. § 1341; conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). The indictment also charged Bennett, Clayton, and Jennifer with income-tax evasion, in violation of 26 U.S.C. § 7201. After a joint trial, a jury found Bennett, Clayton, and Jennifer guilty on all counts. Bennett and Clayton appeal both their convictions and their sentences. Jennifer appeals only her convictions.

 

II. Discussion

 

A. Clayton’s Appeal

 

[1] As noted above, Clayton died while this appeal was pending. Thus, the criminal proceedings against Clayton abated ab initio. See Crooker v. United States, 325 F.2d 318, 319–20 (8th Cir.1963). Consistent with our practice in such situations, we vacate his convictions and remand his case to the district court with instructions to dismiss the indictment as it pertains to him. See United States v. Howe, 591 F.2d 454, 459 (8th Cir.1979).

 

B. Bennett’s Appeal

 

1. Statute of Limitations

 

[2] Bennett argues that the district court erred by denying his motion to dismiss the mail-fraud and mail-fraud-conspiracy counts on the ground that they are barred by the statute of limitations. We review the district court’s denial of a motion to dismiss an indictment based on the statute of limitations de novo. United States v. Mueller, 661 F.3d 338, 344 (8th Cir.2011). The five-year statute of limitations prescribed by 18 U.S.C. § 3282 governs both counts.

 

[3] The indictment alleged that on March 17, 2005, Bennett received a check from Clayton disbursing a fraudulent payment made by Advantage to ACS. Thus, the check must have been mailed, at the latest, on March 16, 2005. The indictment was filed on March 17, 2010. Bennett argues that the limitations period ended on March 16, 2010, five years after the check was mailed to Bennett.

 

[4][5][6] First, the statute of limitations did not bar the mail-fraud charge. In general, a criminal statute of limitations begins to run “when each element of that offense has occurred.” United States v. Gonzalez, 495 F.3d 577, 580 (8th Cir.2007) (quoting United States v. Yashar, 166 F.3d 873, 875 (7th Cir.1999)). The elements of a mail-fraud offense under 18 U.S.C. § 1341 are: “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) that the mail was used in furtherance of some essential step in the scheme.” United States v. Cole, 721 F.3d 1016, 1021 (8th Cir.2013) (quoting United States v. Louper–Morris, 672 F.3d 539, 555 (8th Cir.2012)). The fourth element can be satisfied by placing an item in the mail, sending or causing an item to be sent by common carrier, taking or receiving an item from the mail or a common carrier, or knowingly causing an item to be delivered by mail or common carrier. 18 U.S.C. § 1341. Thus, under our general rule, the date on which the statute of limitations begins to run “depend[s] on the specific use of the mails charged in the indictment.”   United States v. Crossley, 224 F.3d 847, 859 (6th Cir.2000); see also United States v. Pharis, 298 F.3d 228, 234 n. 3 (3d Cir.2002). The indictment here alleged that Bennett used the mail by receiving a check from Clayton on March 17, 2005, within five years of the date on which the indictment was filed. Thus, the statute of limitations did not bar the mail-fraud count against Bennett.FN2

 

*3 However, Bennett argues that our decision in United States v. Pemberton, 121 F.3d 1157 (8th Cir.1997), prescribes that the statute of limitations for mail fraud begins to run only on the date the item was deposited into the mail. In Pemberton, we stated that “[f]or mail fraud, the relevant date [for the running of the statute of limitations] is the date of mailing.” Id. at 1163. Bennett construes the phrase “date of mailing” to mean the date on which the sender deposited the item into the mail, even if the defendant violated § 1341 by using the mail in some other way, such as by receiving the item. Thus, Bennett argues, the statute of limitations began to run on the date the check was mailed to him; that is, on March 16, 2005—more than five years before the indictment against Bennett was filed.

 

Bennett misreads Pemberton because he decontextualizes our reference to “the date of mailing” from the issue presented in that case. In Pemberton, the defendants fraudulently induced an Indian tribe to enter into a series of contracts with them. Id. at 1160–61. They argued that the statute of limitations barred their mail-fraud charge because they had fraudulently induced the tribe to enter the contracts more than five years before the indictment against them was filed. Id. at 1162–63. However, within the limitations period, the defendants had used the mail to disburse the funds obtained under the contracts. Id. at 1162. We rejected the defendants’ argument and clarified that a mail-fraud offense is not completed—and the statute of limitations does not begin to run—until the date on which the defendant uses the mail in furtherance of his fraudulent scheme (that is, “the date of mailing” in that case). See id. at 1163–64. The limitations period does not begin simply because a fraudulent scheme has been hatched or the fruits of that scheme have been obtained. See United States v. Eisen, 974 F.2d 246, 263 (2d Cir.1992) (cited by Pemberton, rejecting argument “that the mail fraud claims date from the time the fraud was conceived”). Because the Pemberton defendants had used the mail in furtherance of the fraud within the limitations period, the statute of limitations did not bar the mail-fraud charges. We referred to “the date of mailing” only to emphasize that a defendant’s use of the mail—rather than some other aspect of the fraudulent scheme—determines when the limitations period begins. Pemberton did not establish an anomalous rule, inconsistent with our general approach to criminal statutes of limitations, under which the limitations period for mail fraud begins before all of the elements of the offense have been completed. In this case, the indictment alleged and the Government proved that Bennett received the check by mail within the limitations period on March 17, 2005. Thus, the statute of limitations did not bar the mail-fraud charge against Bennett. See Crossley, 224 F.3d at 859 (holding that statute of limitations did not bar mail-fraud charge where indictment alleged that defendant received mailing within limitations period).

 

*4 [7][8] Similarly, the statute of limitations did not bar the mail-fraud-conspiracy charge. “In a conspiracy charge, the limitations period begins to run from the occurrence of the last overt act committed in furtherance of the conspiracy that is set forth in the indictment.” Mueller, 661 F.3d at 347 (quoting United States v. Dolan, 120 F.3d 856, 864 (8th Cir.1997)). Bennett’s receipt of the check on March 17 was an overt act in furtherance of the mail-fraud conspiracy, one that was integral to carrying on the fraudulent scheme. See id. (explaining that the receipt by mail of life-insurance proceeds from policy insuring victim constituted an overt act in furtherance of a conspiracy to commit murder-for-hire). Because this overt act occurred within the limitations period, the statute of limitations did not bar his prosecution for conspiracy to commit mail fraud. Accordingly, the district court did not err by denying Bennett’s motion to dismiss the mail-fraud and mail-fraud-conspiracy counts of the indictment.

 

2. Sufficiency of the Evidence

[9][10] Bennett next argues that the district court erred by denying his motion for a judgment of acquittal on the mail-fraud charge because the Government failed to present sufficient evidence to support the jury’s verdict. Specifically, Bennett argues that the evidence did not permit the jury to find that the March 16, 2005 check was mailed to Bennett, that Bennett received the check, or that the mailing was in furtherance of a fraudulent scheme. “We review the denial of a motion for a judgment of acquittal based on the sufficiency of the evidence de novo.” United States v. Chatmon, 742 F.3d 350, 352 (8th Cir.2014). “We will affirm unless, viewing the evidence in the light most favorable to the Government and accepting all reasonable inferences that may be drawn in favor of the verdict, no reasonable jury could have found [the defendant] guilty.” Id. (alteration in original) (quoting United States v. Bynum, 669 F.3d 880, 883 (8th Cir.2012)).

 

[11] The Government presented sufficient evidence to permit the jury to find that the March 16 check was mailed, that Bennett received the check, and that the mailing was in furtherance of a fraudulent scheme. The Government introduced a check from Advantage made payable to ACS and dated March 16, 2005. Diana Goembel, an Advantage accounting manager, testified that it was Advantage’s business practice that once a check was signed for an out-of-state vendor, Advantage would then send the check to the vendor by mail or, on rare occasions, by common carrier. The address on the check indicated that it was being sent from Advantage in Minnesota to ACS in Tennessee, and the address was positioned on the check so as to be visible through an envelope’s clear-plastic address window. Bennett counters that Goembel was on maternity leave at the time the check was sent and thus that her testimony does not necessarily reflect Advantage’s practice at that time. However, no evidence was presented showing that Advantage altered its usual check-mailing practice while Goembel was on maternity leave. Therefore, the jury was permitted to rely on her testimony to find that the check was sent by mail to ACS. See United States v. Shyres, 898 F.2d 647, 654–55 (8th Cir.1990) (holding that a business’s “customary procedure for paying invoices” can support a finding that the defendant used the mail to commit mail fraud); see also United States v. Delfino, 510 F.3d 468, 471 (4th Cir.2007) (“[T]he use of the mails can be proven through evidence of business practice or office custom.”). From this evidence, the jury reasonably could have concluded that the March 16 check was mailed from Advantage. See also United States v. Kieffer, 621 F.3d 825, 832–33 (8th Cir.2010) (holding that jury could infer that the mails were used because an item was delivered to North Dakota from California).

 

*5 [12][13] The Government also presented evidence permitting the jury to conclude reasonably that Bennett received the check. ACS’s bank records reveal that a check was deposited in ACS’s bank account on March 19, 2005 for the same amount as the check sent from Advantage. Bennett was one of three individuals authorized to deposit funds into the account. He has not pointed to any evidence showing that the other two individuals ever deposited money into the account. This evidence regarding the deposit of the check permitted the jury to conclude reasonably that Bennett received the check that had been mailed to ACS, which he owned and managed, from Advantage. Bennett argues that the other two individuals authorized to make deposits—rather than he—could have received the check. While the jury perhaps could have reached that conclusion, it did not do so. “The facts and circumstances relied on by the government must be consistent with guilt, but they need not be inconsistent with any other hypothesis….” Chatmon, 742 F.3d at 353 (alteration omitted) (quoting United States v. Lam, 338 F.3d 868, 872 (8th Cir.2003)). Thus, the Government presented sufficient evidence to permit the jury to conclude reasonably that Bennett received the March 16 check through the mail.

 

[14][15] Finally, the jury could have reasonably concluded that Bennett’s receipt of the check was in furtherance of an essential step of the fraudulent scheme. See Cole, 721 F.3d at 1021. The Government presented extensive evidence of Clayton and Bennett’s multi-year scheme to defraud Advantage. Several Advantage employees testified that, despite exhaustive searches of the company’s records, they could find no proof that ACS and Bennett’s other companies actually provided any goods or services for which they had billed Advantage. Similarly, no other Advantage employees were aware of any work that Bennett’s companies had done for Advantage or goods they had supplied. Goembel testified that she had not known that Bennett owned the companies to which Advantage made numerous payments. The March 16 check was deposited in ACS’s bank account, and nearly the entirety of the funds in that account were distributed to Bennett or to Jennifer. From this evidence, the jury could have reasonably concluded that the March 16 check was mailed in furtherance of the scheme to have Advantage pay fraudulent invoices and distribute the proceeds of those invoices to Bennett and Jennifer. Accordingly, the district court did not err in denying Bennett’s motion for a judgment of acquittal.FN3

 

3. Sixth Amendment

[16][17][18] Bennett next argues that the district court violated his Sixth Amendment right to a jury trial by applying several enhancements under the advisory sentencing guidelines based on facts that were not found by the jury. We review a constitutional challenge to a sentence de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir.2011). Bennett relies primarily on the Supreme Court’s recent decision in Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). However, under Alleyne, the Sixth Amendment permits a district court to rely on facts beyond those found by the jury when the court calculates the applicable advisory sentencing guidelines range and selects a sentence within the statutorily-prescribed range. United States v. Davis, 753 F.3d 1361, 2014 WL 2609715, at *1 (8th Cir. June 12, 2014) (per curiam); Alleyne, 133 S.Ct. at 2161 n. 2. Here, the facts found by the district court did not alter the statutory maximum or minimum sentence that Bennett faced. Instead, the district court merely used those facts to calculate the applicable sentencing guidelines range and to exercise its discretion when imposing a sentence within the range prescribed by statute. Thus, the district court did not violate Bennett’s Sixth Amendment right to a jury trial.

 

4. Effect of Clayton’s Death

*6 [19] Bennett presents three arguments that Clayton’s death necessitates reversal of Bennett’s convictions and sentence. We find that each of these arguments lacks merit. First, Bennett argues that Clayton’s death abated ab initio the entire criminal proceeding in this case, thereby invalidating the conviction against Bennett. As noted in Part II.A above, the criminal prosecution against Clayton was abated by his death on appeal. This rule rests on two rationales: first, that a criminal defendant should not be deprived of the right to challenge his conviction on appeal, even by death; and second, that the punitive purposes of a conviction and sentence cannot be served once the defendant has died. United States v. Wright, 160 F.3d 905, 908 (2d Cir.1998). Obviously, neither of these rationales supports abating the criminal proceeding as to a deceased defendant’s living co-defendants. Thus, we decline to confer upon Bennett the inexplicable windfall that he seeks.

 

[20] Second, Bennett argues that he has been deprived of the opportunity to rely on the “rule of consistency.” Citing Getsy v. Mitchell, 495 F.3d 295, 307 (6th Cir.2007) (en banc), Bennett claims that his conspiracy conviction would be invalidated if Clayton’s conspiracy conviction had been invalidated on sufficiency-of-the-evidence grounds. But even if Bennett might have benefitted fortuitously from a favorable outcome in Clayton’s appeal, he has no right or entitlement to appellate review of his deceased co-defendant’s conviction. He still can challenge—and has challenged—the sufficiency of the evidence presented against him. Thus, we can see no reason why Bennett’s convictions are undermined by the fact that we no longer will consider Clayton’s sufficiency-of-the-evidence argument.

 

[21] Third, Bennett argues that Clayton’s death rendered invalid the district court’s application of a role-in-the-offense sentencing enhancement, see USSG § 3B 1.1(a), which was premised on Bennett’s participation in “criminal activity [that] involved five or more participants or was otherwise extensive.” Bennett argues that Clayton cannot be considered for purposes of the enhancement now that he is deceased, thereby reducing the number of participants in the fraudulent scheme to four. However, the guidelines enhancement does not limit its application to participants in the scheme who are living at the time the sentence is reviewed on appeal. Clayton participated in the scheme, and his subsequent death simply does not alter that fact. Nor does Clayton’s death affect whether Bennett’s fraudulent scheme was “otherwise extensive” when perpetrated, which the presentence investigation report—adopted by the district court—identified as a basis for applying the enhancement to Bennett. Thus, we reject Bennett’s challenge to the application of § 3B1.1(a).

 

C. Jennifer’s Appeal

[22][23][24][25] Jennifer appeals the district court’s denial of her motion to sever her trial from that of Clayton and Bennett. She does not argue on appeal that she was misjoined under Federal Rule of Criminal Procedure 8 but rather that the district court erred by denying her request for severance pursuant to Rule 14. Accordingly, we review the district court’s denial of her motion to sever for abuse of discretion. United States v. Mann, 685 F.3d 714, 718 (8th Cir.2012). “[T]o warrant severance [under Rule 14] a defendant must show ‘real prejudice,’ that is, ‘something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.” ’ United States v. Mickelson, 378 F.3d 810, 817–18 (8th Cir.2004) (quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir.1993)). “A defendant can demonstrate real prejudice to his right to a fair trial by showing (a) his defense is irreconcilable with that of his co-defendant or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants.” Id. at 818.

 

*7 Jennifer argues that the jury could not be expected to compartmentalize the evidence presented regarding her co-defendants’ fraudulent schemes-schemes in which she claims not to have been implicated—when considering her tax-evasion charges. We have explained that “[t]he risk of prejudice posed by joint trials is best cured by careful and thorough jury instructions.” Mann, 685 F.3d at 718 (quoting Mickelson, 378 F.3d at 818). Here, the district court’s final jury instructions admonished the jury: “Keep in mind that you must give separate consideration to the evidence about each individual defendant. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant.” We have found consistently that such an instruction adequately cured the risk that the jury would not properly compartmentalize the evidence against jointly-tried defendants. See, e.g., United States v. Mallett, 751 F.3d 907, 917 (8th Cir.2014); Mann, 685 F.3d at 718. In light of this limiting instruction, we conclude that the district court did not abuse its discretion by denying Jennifer’s motion for severance under Rule 14.

 

[26] We also note that much of the evidence regarding the fraudulent schemes was relevant to the tax-evasion charges against Jennifer. A violation of 26 U.S.C. § 7201 requires “the existence of a tax deficiency.” United States v. Perry, 714 F.3d 570, 573 (8th Cir.2013) (quoting Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965)). The existence of a tax deficiency depends, in turn, on whether the income that Jennifer failed to report to the Internal Revenue Service was taxable income. Evidence showing that the income resulted from the fraudulent schemes was necessary to show the source of the income and thus that the income was taxable. Therefore, the admission of evidence regarding the fraudulent schemes did not warrant severing Jennifer’s trial from that of Bennett and Clayton. See United States v. Lee, 374 F.3d 637, 647 (8th Cir.2004) (holding that severance was not required where evidence admitted against co-defendant was independently admitted against defendant seeking severance).

 

[27][28][29] Jennifer also challenges the district court’s refusal to provide limiting instructions immediately after several witnesses testified at trial. Her proposed instructions would have informed the jury that it should not consider those witnesses’ testimony when considering the charges against her. We review a district court’s decision not to give a limiting instruction for abuse of discretion. United States v. Velazquez–Rivera, 366 F.3d 661, 666 (8th Cir.2004). A district court need not instruct the jury regarding each item of evidence at the time the evidence is admitted if the court provides an appropriate instruction at the close of trial. See United States v. Kime, 99 F.3d 870, 881 (8th Cir.1996); United States v. Garrido, 995 F.2d 808, 816–17 (8th Cir.1993). As noted above, the instruction given by the district court at the close of trial adequately instructed the jury to compartmentalize the evidence presented against Clayton and Bennett from the evidence presented against Jennifer. See Mallett, 751 F.3d at 917; Mann, 685 F.3d at 718. In addition, the instructions specifically identified which defendant was charged with each offense, further reinforcing to the jury that the fraudulent schemes should not be considered improperly when assessing Jennifer’s guilt on the tax-evasion charges against her. Thus, the district court did not abuse its discretion by declining to give the limiting instructions requested by Jennifer.

 

III. Conclusion

*8 For the foregoing reasons, we vacate Clayton’s convictions and remand his case to the district court with instructions to dismiss the indictment as it pertains to him. However, we affirm Bennett’s convictions and sentence, as well as Jennifer’s convictions.

 

BEAM, Circuit Judge, concurring and dissenting.

I concur in the judgment of the court except for its affirmance of the mail fraud conviction. The limitations period on the mail fraud conspiracy did not begin to run until the last overt act in furtherance of the conspiracy had occurred, United States v. Dolan, 120 F.3d 856, 864 (8th Cir.1997), which act was, of course, subsequent to March 16, 2005. The limitations period for the mail fraud charge itself, however, commenced on March 16, 2005, the date the last check was placed in the mail. United States v. Pemberton, 121 F.3d 1157, 1163 (8th Cir.1997). Since all of the charges at issue in this prosecution were initiated when the indictment was filed on March 17, 2010, the mail fraud charge must be dismissed as untimely.

 

The court contends that Bennett’s argument concerning the importance of the mailing date of the check “decontextualizes” this court’s reference to such happening in Pemberton. I disagree.

 

The district court, at the government’s urging, adopted the Sixth Circuit’s ambiguous reasoning in United States v. Crossley, 224 F.3d 847, 859 (6th Cir.2000), only barely acknowledging Pemberton which clearly states “[f]or mail fraud, the relevant date [for the statute of limitations] is the date of the mailing.” 121 F.3d at 1163. And, the Second, Third and Seventh Circuits each agree with this analysis. United States v. Eisen, 974 F.2d 246, 263 (2d Cir.1992); United States v. Hoffecker, 530 F.3d 137, 157–58 (3d Cir.2008); United States v. Dunn, 961 F.2d 648, 650 (7th Cir.1992). So, it seems, decontextualization, if any has occurred, runs in the direction of the Sixth Circuit and the district court and not the precedent established in Pemberton.

 

Accordingly, I would reverse the district court’s holding to the contrary and remand this matter for resentencing of Bennett without consideration of the mail fraud charge.

 

FN1. The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.

 

FN2. The partial dissent contends that this conclusion conflicts with the views of our sister circuits. We disagree. United States v. Hoffecker, 530 F.3d 137, 158 (3d Cir.2008), on which the partial dissent relies, concerned a situation in which the defendant’s charged conduct was sending, not receiving, a mailing and is therefore distinguishable. Moreover, the other cases cited by the partial dissent “are consistent with our holding because we do not believe that the ‘date of the mailing’ [as discussed in those cases] was intended to have a restrictive meaning, limited to the date on which the relevant matter actually was mailed.”   Crossley, 224 F.3d at 859 (discussing United States v. Eisen, 974 F.2d 246, 263 (2d Cir.1992), and United States v. Dunn, 961 F.2d 648, 650 (7th Cir.1992)).

 

FN3. Bennett also argues that the Government failed to present sufficient evidence to support his convictions for conspiracy to commit money laundering and conspiracy to commit mail fraud. First, he argues that his money-laundering-conspiracy conviction “hinges on finding that … [he] committed mail fraud.” Even if this assertion were correct, we reject Bennett’s argument because, as explained above, the Government presented ample evidence to support his mail-fraud conviction. With regard to his mail-fraud-conspiracy conviction, Bennett argues that the Government failed to prove an overt act in furtherance of the conspiracy because it failed to show that Bennett received the March 16 check. However, as explained above, the Government presented sufficient evidence to permit the jury to conclude that Bennett received the March 16 check, which constitutes an overt act in furtherance of the conspiracy. Thus, we also find Bennett’s sufficiency-of-the-evidence challenges to his conspiracy convictions to lack merit.