1The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2050

___________

Carl Morse, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Southern Union Company, a Delaware *

Corporation, *

*

Appellant. *

___________

Submitted: February 11, 1999

Filed: April 14, 1999

___________

Before BOWMAN, Chief Judge, FAGG, and HANSEN, Circuit Judges.

___________

BOWMAN, Chief Judge.

Southern Union Company appeals from the judgment of the District Court1

entered on a jury verdict returned in favor of Carl Morse on his age discrimination

claims. We affirm.
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I.

"'We recite the facts in the light most favorable to the jury verdict and the

district court's findings.'" Denesha v. Farmers Ins. Exch., 161 F.3d 491, 496 (8th Cir.

1998) (quoting Newhouse v. McCormick & Co., 110 F.3d 635, 637 (8th Cir. 1997)).

In 1964, Morse began working for Gas Service Company, which underwent several

ownership changes before being acquired by Southern Union in February 1994.

Southern Union formed a division called Missouri Gas Energy (MGE) to operate the

acquired company. Morse held a variety of positions during his thirty-two years with

the company and had a positive work history. He joined the plant accounting

department in 1967, becoming a supervisor in 1976 and a manager in 1980. In 1985,

when the accounting department was moved to Topeka, Kansas, Morse chose to take

a non-management position in the engineering department in Lee's Summit, Missouri,

instead of moving to Topeka. In March 1994, Stuart Harbour, MGE's Controller,

recruited Morse to join MGE's newly-created plant accounting department as its

supervisor.

In April 1995, Southern Union's top management, including President Peter

Kelley, held a series of "roundtable" meetings with all MGE supervisory-level

employees. During these meetings, according to the testimony of Morse and several

former MGE employees, Kelley expressed a preference for younger employees and

indicated that dramatic changes were on the way for MGE. He wanted young blood

and a young, fresh, new look. Kelley stated MGE was not a place people should

expect to retire from and people should not work anywhere for more than ten years.

Kelly also wanted younger supervisors because they accepted change better and had

more ambition. The supervisory-level employees in attendance were asked to recall

when they had last fired someone and were reminded that they possessed the

authority to fire employees within their supervision.
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Morse's supervisor, Stuart Harbour, attended one of these roundtable meetings,

and Harbour terminated Morse's employment approximately nine months after the

meeting. Morse presented evidence that Harbour had made various remarks to him

about his age, including repeated references to him as the "old man" in accounting.

At a celebration honoring Morse's thirty years of service, Harbour stated that it was

rare for people to work for one company as long as Morse had and noted that he was

only five or six years old when Morse began working for the company. Harbour also

had given Morse a drawing of a wrinkled older man with no hair or teeth that was

labeled "Typical Plant Accountant," which Harbour had brought back from Southern

Union's headquarters because it had reminded him of Morse. 

On January 22, 1996, Harbour terminated Morse's employment without

providing a reason for the termination. Morse was fifty-two years old. Morse had

received a good performance review from Harbour in November 1994, and he was

awarded a four percent merit-based salary increase in May 1995. A less favorable

review in November 1995 was, according to Harbour's testimony, the result of

Morse's alleged deficiencies in learning the operations of a new computer system and

his failure to draft an operating manual for the new system. The review, however, set

numerous goals for Morse in the upcoming year that would "greatly benefit MGE and

further develop [Morse's] abilities." Appellee's App. at 359. Only a few weeks after

this review, Harbour made the decision to fire Morse.

At trial, Southern Union argued Morse's position was eliminated on account

of efficiencies created by a new computer system which became operational on June

30, 1995. According to Southern Union, this new computer system allowed one

accountant to accomplish the tasks previously performed by four employees and

eliminated the functions of Morse's position with the exception of a thirty-minute

manual calculation per month. Harbour testified that Morse was displaced from his

position because of the computer-created efficiencies, and not for performance

reasons. Harbour and the personnel director testified that no positions were available
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within the company to which Morse could have transferred when his position was

eliminated and, consequently, that Morse's employment with Southern Union was

terminated. 

Morse sued Southern Union for age discrimination in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-634 (1994), and the

Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010-.137 (1994). The

jury returned a verdict for Morse, finding that Morse's age was a motivating and

determining factor in Southern Union's employment actions regarding Morse and that

Southern Union's violation of the ADEA was willful. The jury awarded Morse

$450,000 in compensatory damages for emotional distress, $6,250,000 in punitive

damages, and $29,073 in back pay. The District Court, on post-trial motions, reduced

the compensatory and punitive damages awards and entered final judgment awarding

Morse $70,000 in compensatory damages, $400,000 in punitive damages, $29,073

in back pay, $86,456 in front pay, and attorney fees and expenses. 

Southern Union appeals the District Court's denial of its motion for judgment

as a matter of law on the issues of liability, punitive damages, and willful violation

of the ADEA and the denial of its motion for a new trial on the basis of alleged

instructional errors. Southern Union also asserts that the remitted compensatory and

punitive damages awards are grossly excessive and that the District Court abused its

discretion in awarding front pay. For the reasons stated below, we affirm the

judgment of the District Court.

II.

In reviewing de novo the denial of a motion for judgment as a matter of law

(JAML), we must determine whether sufficient evidence supports the jury verdict.

See Denesha, 161 F.3d at 497. Our review of a jury verdict is extremely deferential

and we will not reverse for insufficient evidence unless "'after viewing the evidence
2Southern Union also asserts Harbour's age comments were stray remarks or

remarks unrelated to the employment decisions. Although these comments alone may

not be sufficient evidence to support the jury's verdict, the jury reasonably could have

considered the comments along with the other evidence of age animus in reaching its

verdict.

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in the light most favorable to the verdict, we conclude that no reasonable juror could

have returned a verdict for the non-moving party.'" Id. (quoting Ryther v. KARE 11,

108 F.3d 832, 836 (8th Cir. 1997), cert. denied, 117 S. Ct. 2510 (1997)). We must

consider the evidence in the light most favorable to Morse, assume all conflicts in the

evidence were resolved in Morse's favor, assume Morse proved all facts that his

evidence tended to prove, and give Morse the benefit of all favorable inferences that

reasonably may be drawn from the proven facts. See id. To prevail on its motion for

JAML, Southern Union has the difficult task of demonstrating that all the evidence

points in Southern Union's direction and is susceptible of no reasonable interpretation

sustaining Morse's position. See id. We apply the same analysis to Morse's ADEA

and MHRA claims. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156

(8th Cir. 1999).

A.

Southern Union argues insufficient evidence exists to support the jury's verdict

that it intentionally discriminated against Morse because of his age. Contending that

no evidence causally links Kelley's remarks to the termination of Morse because

Harbour was the sole decision-maker and did not consider Kelley's remarks in his

decision, Southern Union characterizes Kelley's remarks as either stray remarks or

statements by a non-decisionmaker and, thus, as insufficient evidence of intentional

discrimination.2 We disagree. 

"When a major company executive speaks, 'everybody listens' in the corporate

hierarchy, and when an executive's comments prove to be disadvantageous to a

company's subsequent litigation posture, it can not compartmentalize this executive
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as if he had nothing more to do with company policy than the janitor or watchman."

Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989), overruled on

other grounds, Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir. 1995);

see also Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) (finding

president's statement to personnel department that he did not want to hire older

workers was sufficient to show company used age as a determinative factor in

employment decisions generally); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,

449 (8th Cir. 1993) (stating that documents setting forth a company's overall direction

and demonstrating a preference for youth cannot be characterized as "stray remarks"

even when the documents are not directly related to the employment action). The

evidence reflects that Kelley expressed a strong preference for a younger workforce

and encouraged MGE's supervisors to use their firing powers to effectuate company

objectives. Although Southern Union strongly denies that a preference for younger

employees was stated, our review does not include an assessment of the credibility

of witnesses. See Curtis v. Electronics & Space Corp., 113 F.3d 1498, 1502 (8th Cir.

1997). The jury was free to credit or discredit testimony as it believed appropriate,

and it was for the jury to decide whose witnesses were telling the truth about Kelley's

comments at the roundtable meetings. See id. Although Harbour testified that he

never received an impression from Kelley that he should terminate older workers, an

admission to the contrary would be unlikely in a discrimination case, and it was the

jury's function to assess credibility and weigh the evidence. From the evidence

presented, the jury reasonably could have inferred that Kelley's stated preference for

younger employees motivated Harbour's decision to terminate Morse.

This inference that age motivated Harbour's decision to terminate Morse is

strengthened by the events occurring between Morse's November 1995 review and

his January 1996 termination. The November 1995 review outlining goals for the

following year suggests that Harbour intended Morse to remain in his position for at

least another year. Harbour's supervisor, Donald Kvapil, however, wrote on the

review that immediate action should be taken by Morse to produce the operating
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manual for the new computer system despite the explicit deadlines already set in the

review for producing an outline (January 31, 1996) and a partial draft (March 31,

1996) of the manual. Furthermore, Kelley testified that he personally reviewed the

performance evaluations of all supervisory-level employees. Shortly thereafter,

Harbour made the decision to discharge Morse. 

The weak showing made by Southern Union regarding its purported attempt

to transfer Morse to another position also lends support to the jury's finding of

intentional discrimination. Southern Union presented evidence that it tried to place

Morse into another position but that no positions were available. The testimony of

Harbour and the personnel director regarding the search for available positions was

conflicting, and Harbour's testimony that he spoke to Jerry Fast, the manager of

operations in Lee's Summit, regarding openings in Lee's Summit was directly

contradicted by Fast. In addition, Fast testified that a position may have been

available in Lee's Summit and there was also testimony that a lower-level position

was available in the accounting department. Given the other evidence we already

have discussed, the jury reasonably could have inferred that Southern Union

discharged Morse because of his age.

Southern Union introduced evidence that its shift to a new computer system

was initiated long before the roundtable meetings and that Morse's position was

eliminated as a result of efficiencies created by the new computer system. Southern

Union therefore asserted it had a non-discriminatory reason for its actions regarding

Morse. Morse countered by presenting evidence that his job functions were not

eliminated by the new system. He testified extensively about his job functions both

before and after the conversion to the new system and stated that he worked with the

new system every day. In addition, Morse testified that when he discussed Kelley's

comments with Harbour during the November 1995 review, Harbour said that

because of Morse's experience and knowledge in plant accounting he had nothing to

worry about.
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It was the jury's function to consider the competing evidence and the competing

views of that evidence. The jury afforded greater credit to Morse's view of the facts

in rendering its verdict and we cannot change the verdict simply because Southern

Union presents a different view of the facts. See Glover v. McDonnell Douglas

Corp., 981 F.2d 388, 392 (8th Cir. 1992), vacated on other grounds, 510 U.S. 802

(1993). Morse presented direct evidence of age animus and also presented evidence

discrediting Southern Union's stated reasons for eliminating his position and

terminating his employment. On this record, we cannot say the evidence is

insufficient to support the jury's verdict that Southern Union intentionally

discriminated against Morse because of his age. The District Court, therefore, did not

err in denying Southern Union's motion for JAML.

B.

Southern Union also argues insufficient evidence supports the jury's punitive

damages award. Under Missouri law, "'[p]unitive damages may be awarded for

conduct that is outrageous, because of the defendant's evil motive or reckless

indifference to the rights of others.'" Nelson v. Boatmen's Bancshares, Inc., 26 F.3d

796, 803 (8th Cir. 1994) (quoting Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo.

1989) (en banc)). The Missouri standard for punitive damages requires actual

outrageousness, which is not present in the willfulness standard of the ADEA's

liquidated damages provision, and can be satisfied by evidence that the defendant's

conduct shocks the conscience and causes outrage. See id. at 803-04.

This Court has sustained a punitive damages award under the Missouri

standard in a case with similar facts. In Denesha, the plaintiff's supervisor several

times stated that older employees' work was inferior to that of younger employees and

there was evidence that management held older employees to different standards than

younger employees. We found that the quantum of outrageousness necessary to

support a punitive damages award had been established because the actions of key
3Southern Union also argues the evidence was insufficient to support the jury's

verdict that it willfully violated the ADEA. The District Court did not award

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decision-makers permitted an inference of discriminatory animus on their part. See

Denesha, 161 F.3d at 503-04; see also Kimzey, 107 F.3d at 576 (upholding punitive

damages where supervisors harassed women and management repeatedly failed to

investigate complaints or discipline offenders); Kientzy v. McDonnell Douglas Corp.,

990 F.2d 1051, 1062 (8th Cir. 1993) (upholding punitive damages because

management disciplined female employee differently than male employees for

violating similar company rules, resulting in plaintiff's discharge); Finley v.

Empiregas, Inc., 975 F.2d 467, 472 (8th Cir. 1992) (upholding punitive damages

because employer had established policy of discriminating against women and knew

policy was unlawful). In support of its argument that its conduct did not rise to the

level of outrageousness necessary to support punitive damages, Southern Union cites

Nelson, 26 F.3d at 804, and Glover, 981 F.2d at 396. Each of these cases, however,

unlike the one before us, was a close case as to whether the plaintiff's evidence even

was sufficient to support the jury's verdict on intentional discrimination.

Morse's evidence, credited by the jury, establishes that Southern Union's top

management had stated a preference for a younger workforce and had reminded

supervisors of their authority to fire employees to achieve company objectives.

Consequently, the jury reasonably could have inferred that Harbour was carrying out

company policy when he terminated Morse's employment. From the jury's verdict,

it is obvious that the jury was outraged by Southern Union's actions, as was the

District Court, which stated that it is "hard to imagine a much more flagrant violation

of age protection laws." Morse v. Southern Union Co., No. 96-0719-CV-W-6, slip

op. at 7 (W.D. Mo. Mar. 3, 1998). On this record, we cannot conclude that the

evidence is insufficient to support the jury's finding that Southern Union's treatment

of Morse was shocking and outrageous. Accordingly, the jury's finding that Morse

is entitled to recover punitive damages must be sustained.3
liquidated damages under the ADEA and Morse has conceded that the "jury's finding

of a willful violation of the ADEA is therefore only relevant if the Court should rule

that punitive damages were not properly awarded." Appellee's Brief at 24 n.6.

Because this opinion upholds the award of punitive damages, we need not address

this issue. See supra, Part II.B., and infra, Part III.

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III.

The District Court remitted the $450,000 compensatory damages award to

$70,000 and the $6,250,000 punitive damages award to $400,000, yet Southern Union

asserts that the remitted compensatory and punitive damages awards still are grossly

excessive. We must consider whether the awards, as remitted by the District Court,

are "so grossly excessive as to shock the court's conscience." Kientzy, 990 F.2d at

1061 (internal quotation omitted). We review the remitted awards for a clear abuse

of discretion. See id. at 1062.

Southern Union cites cases approving compensatory awards for emotional

distress in the range of $2000 to $35,000. See Ramsey v. American Air Filter Co.,

772 F.2d 1303, 1313-14 (7th Cir. 1985); Carter v. Duncan-Huggins, Ltd., 727 F.2d

1225, 1238 (D.C. Cir. 1984); Block v. R.H. Macy & Co., 712 F.2d 1241, 1245 (8th

Cir. 1983). A review of recent employment discrimination cases from this Circuit,

however, reveals that we have upheld compensatory damages awards for emotional

distress that are larger than the $70,000 awarded Morse. See Kim v. Nash Finch Co.,

123 F.3d 1046, 1067 (8th Cir. 1997) ($100,000); Nelson, 26 F.3d at 802 ($74,811);

Kientzy, 990 F.2d at 1061-62 ($150,000); Wilmington v. J.I. Case Co., 793 F.2d 909,

922 (8th Cir. 1986) ($400,000); cf. Delph v. Dr. Pepper Bottling Co., 130 F.3d 349,

357-58 (8th Cir. 1997) (reducing $150,000 compensatory damages award to $50,000

because emotional complaints were vague, ill-defined, and not intense). An expert

in forensic psychology testified that in January 1997 he diagnosed Morse as suffering

from major depression as a result of losing his job with Southern Union. Morse and

his wife testified extensively about the emotional suffering Morse has endured since

his employment suddenly was terminated after thirty-two years with the company.
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In light of prior cases and Morse's evidence, we cannot say that $70,000 in

compensatory damages is grossly excessive, and, therefore, the District Court did not

abuse its discretion in remitting the compensatory damages award to $70,000.

Southern Union also argues that the punitive damages award is grossly

excessive and should be remitted further. Missouri does not have a set limit on

punitive awards, but requires both the trial court and the appellate court to review the

jury's punitive damages award to ensure that it is not an abuse of discretion. See

Kimzey, 107 F.3d at 576. Factors to consider in determining if the punitive damages

award is fair and reasonable include: "the degree of malice or outrageousness of the

defendant's conduct, aggravating and mitigating circumstances, the defendant's

financial status, the character of both parties, the injury suffered, the defendant's

standing or intelligence, and the relationship between the two parties." Id. (citing

Call v. Heard, 925 S.W.2d 840, 849 (Mo. 1996) (en banc), cert. denied, 519 U.S.

1093 (1997)). Morse's evidence, which the jury credited, shows that Southern

Union's top management expressed a preference for younger workers while

challenging its supervisors to exercise their firing powers to achieve company

objectives. Such age-based animus in top management likely may affect other

employees of the company. The award of $400,000 is less than one one-thousandth

of Southern Union's approximately $500,000,000 net worth and the ratio of punitive

to compensatory damages (not including the separate awards of back pay and front

pay) is less than 6:1, a ratio that in these circumstances does not set off any alarm

bells. We have approved large punitive damages awards in the past to deter

employment discrimination. See Denesha, 161 F.3d at 504 ($700,000); EEOC v.

HBE Corp., 135 F.3d 543, 556-57 (8th Cir. 1998) ($380,000 and $100,000); Kim,

123 F.3d at 1067 ( $300,000); Kimzey, 107 F.3d at 576-78 ($350,000); Kientzy, 990

F.2d at 1062 ($400,000). The punitive damages awarded here cannot be considered

so excessive as to shock the Court's conscience. We also do not find the remitted

punitive damages award to be unconstitutionally excessive so as to violate the Due

Process Clause of the Fourteenth Amendment. See BMW of N. Am., Inc. v. Gore,
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517 U.S. 559, 575 (1996) (standard). We cannot say the District Court abused its

discretion in remitting the punitive damages award to $400,000.

IV.

Southern Union argues that the District Court abused its discretion by denying

Southern Union's motion for a new trial based on several alleged instructional errors.

A district court has broad discretion in instructing the jury, and jury instructions "do

not need to be technically perfect or even a model of clarity." Cross v. Cleaver, 142

F.3d 1059, 1067 (8th Cir. 1998). When an instructional error has been properly

preserved for appeal, we review for abuse of discretion and we "must determine

simply 'whether the instructions, taken as a whole and viewed in light of the evidence

and applicable law, fairly and adequately submitted the issues in the case to the jury.'"

Kim, 123 F.3d at 1057 (quoting Karcher v. Emerson Elec. Co., 94 F.3d 502, 510 (8th

Cir. 1996), cert. denied, 520 U.S. 1210 (1997)).

To properly preserve a claim of instructional error, a party must make a

sufficiently precise objection before the district court and propose an alternate

instruction. See Nelson v. Ford Motor Co., 150 F.3d 905, 907 (8th Cir. 1998); Kehoe

v. Anheuser-Busch, Inc., 96 F.3d 1095, 1104 (8th Cir. 1996). If the instructional

error has not been preserved, the claim is waived and we review the district court's

instructions only for plain error. See Kehoe, 96 F.3d at 1104. Under plain error

review, we reverse "only if the error prejudices the substantial rights of a party and

would result in a miscarriage of justice if left uncorrected." Cross, 142 F.3d at 1068

(internal quotations omitted). Plain error review is "narrow and confined to the

exceptional case where error has seriously affected the fairness, integrity, or public

reputation of the judicial proceedings." Ryther, 108 F.3d at 847 (internal quotation

omitted).
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A.

The first claim of instructional error raised by Southern Union alleges the jury

was improperly instructed on the standard for awarding punitive damages under the

MHRA. The jury instruction stated that a preponderance of the evidence was

required. The Missouri Supreme Court has held that a plaintiff seeking punitive

damages under the common law must establish by clear and convincing evidence that

the defendant's conduct was outrageous. See Rodriguez v. Suzuki Motor Corp, 936

S.W.2d 104, 111 (Mo. 1996) (en banc). The parties, however, did not object to this

aspect of the submitted instruction. The claim therefore is waived and we review

only for plain error. 

Assuming, without deciding, that the jury instruction incorrectly stated the

legal standard for punitive damages under the MHRA, the error does not reach the

level required for reversal under plain error review. Because neither party objected

to the instruction, the error was invited by the parties. The District Court was

"positive that any instructional error was harmless, given the amount of the award and

the evidence of outrageous conduct." Morse, No. 96-0719-CV-W-6, slip op. at 8.

We agree. This error did not seriously affect the fairness of the trial, its integrity, or

its public reputation. See Baker v. Delo, 38 F.3d 1024, 1026 (8th Cir. 1994) (finding

no plain error when instruction stated incorrect legal standard); Turner v. White, 980

F.2d 1180, 1182 (8th Cir. 1992) (same). The error also did not prejudice the

substantial rights of Southern Union nor would a miscarriage of justice result if this

error were left uncorrected. We find no plain error in this jury instruction.

B.

For its second claim of instructional error, Southern Union argues that the

special verdict form improperly instructed the jury that it could find for Morse if it

disbelieved Southern Union's proffered reason for discharge, without any finding that
4After trial, Southern Union submitted the affidavit of one of its attorneys

stating that an objection was made to this instruction off the record. The District

Court was satisfied that the point was not expressed on or off the record. Even

assuming the argument was made, it was Southern Union's responsibility to make its

objection and propose an alternate instruction on the record.

5The parties stipulated that the present value of front pay until Morse reaches

age sixty-two is $86,456. Southern Union reserved the right to dispute its liability for

front pay.

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the real reason was age discrimination. Southern Union did not object to this portion

of the instructions nor did it offer an alternate instruction;4 therefore, we find

Southern Union did not properly preserve this issue for appeal and review only for

plain error. Having considered this issue, and having examined the entire instruction,

we conclude that any error in the instruction does not rise to the level of plain error

and thus does not amount to a reason for reversal. We are satisfied the jury was

adequately informed that in order to return a verdict for Morse it would have to find

from the evidence, not only that the defendant's stated reasons for its decision were

not the true reasons, but also that the real reason for the defendant's decision was

intentional discrimination on account of Morse's age. See Ryther, 108 F.3d at 837-

38; Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1334-37 (8th Cir. 1996).

C.

Southern Union's other claims of instructional error do not warrant discussion.

Having carefully considered them, we conclude they are entirely lacking in merit.

V.

Southern Union argues the District Court abused its discretion in awarding

front pay.5 Under the ADEA, the District Court had discretion to shape a remedy to

compensate Morse for what was lost on account of the age discrimination, but it

could not reject or contradict the jury's findings in doing so. See Curtis, 113 F.3d at
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1503-04. The District Court was required to presume Morse would have worked at

Southern Union until he retired, unless Southern Union provided evidence to the

contrary. See Neufeld v. Searle Lab., 884 F.2d 335, 341 (8th Cir. 1989). Southern

Union argues Morse could not have continued working at the company because his

position was eliminated for business reasons, but the jury specifically rejected this

argument. In addition, the jury's verdict awarding back pay establishes that Morse

would not have been discharged prior to the date of the verdict absent age

discrimination. See Curtis, 113 F.3d at 1504. The evidence shows that Morse had

performed numerous jobs with the company and was capable of working for the

company in other capacities if and when his plant accounting position was eliminated

for a nondiscriminatory reason. See id. at 1505. The somewhat conflicting testimony

of Harbour and the personnel director regarding the lack of available positions was

countered by the testimony of Jerry Fast that a position may have been available in

the Lee's Summit office and by evidence of an opening in the accounting department.

The District Court did not abuse its discretion in awarding front pay.

VI.

For the foregoing reasons, the judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.