United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-4157

___________

United States of America, * 

*

Appellee, *

*

v. * 

*

Carla Grace Engler, * 

* 

Appellant. *

___________

Appeals from the United States

No. 07-1104 District Court for the 

___________ Northern District of Iowa. 

United States of America, * 

*

Appellee, *

*

v. * 

*

Michael Thomas Gatena, * 

* 

Appellant. *

___________

Submitted: September 25, 2007

Filed: April 9, 2008 (corrected 4/15/08)

___________
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

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Before BYE, BENTON, and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.

Following the district court’s1

 denial of their motions to suppress evidence,

Carla Grace Engler and Michael Thomas Gatena were convicted by a jury. Engler

was convicted of: (1) conspiracy to manufacture 50 grams or more of pure

methamphetamine ending in June of 2005; (2) manufacture and attempted

manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a

school on December 30, 2004; (3) possession of red phosphorus with intent to

manufacture methamphetamine on January 30, 2005; (4) manufacture and attempted

manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a

school on June 5, 2005; and (5) failure to appear for trial on October 24, 2005. Gatena

was convicted of: (1) conspiracy to manufacture 50 grams or more of pure

methamphetamine within 1,000 feet of a school while on pretrial release, ending in

June of 2005, (2) manufacture and attempted manufacture of 50 grams or more of pure

methamphetamine on November 18, 2004, (3) manufacture and attempted

manufacture of 5 grams or more of pure methamphetamine within 1,000 feet of a

school on December 30, 2004, and (4) manufacture and attempted manufacture of 5

grams or more of methamphetamine within 1,000 feet of a school while on pretrial

release on June 5, 2005. Engler was sentenced to a stipulated term of 361 months

imprisonment. Gatena was sentenced to 470 months imprisonment. From their

convictions, Engler and Gatena appeal. Additionally, Gatena appeals his sentence.

The appeals are consolidated. We affirm the convictions and Gatena’s sentence.
2

Heet is the brand name of a fuel additive which is designed for use as a gas-line

antifreeze and water remover. It is also commonly used in the manufacture of

methamphetamine. 

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I.

We recite the facts in the light most favorable to the jury’s verdicts. United

States v. Honoarvar, 477 F.3d 999, 1000 (8th Cir. 2007). Engler and Gatena were

involved in the manufacture, attempted manufacture and conspiracy to manufacture

methamphetamine. At some time prior to meeting Engler, Gatena started making

methamphetamine. Engler joined him in the manufacture of methamphetamine in

2004. In 2004, Engler and Gatena were a couple living in the same residence. Gatena

was the “cook” who manufactured the methamphetamine and Engler’s role was to

organize the other participants and obtain the precursors for Gatena’s use in the

manufacture. They used the red phosphorus method of making methamphetamine.

For this method, some of the necessary supplies include: pseudoephedrine, which can

be obtained from over-the-counter sinus medications; red phosphorus, which can be

obtained by removing the striker plate from matchbooks that have been soaked in

Heet2

 or isopropyl alcohol; and iodine crystals, which can be made using hydrogen

peroxide, muriatic acid, and iodine. Engler and several other people visited numerous

grocery stores, discount stores and pharmacies to obtain products containing the

needed supplies. Once the supplies were obtained, Gatena would make the

methamphetamine while Engler and the others waited in another part of the residence.

Gatena’s children were present in the home while Gatena manufactured the

methamphetamine. The other people who helped them obtain the precursors would

be paid with a portion of the final product of the methamphetamine “cook”. 

Prior to their arrest, Engler and Gatena lived together at an apartment located

at Mud Lake on Rock Grove Court and later at a house located at 101 East 29th Street

in Dubuque, Iowa. Following their move to the 29th Street residence, Gatena
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continued to maintain his access to the apartment at Mud Lake on Rock Grove Court.

Gatena “cooked” the methamphetamine at both the 29th Street and Rock Grove Court

addresses. The evidence established that Gatena stored, manufactured, and sold

methamphetamine at each of the residences which he shared with Engler. 

After receiving information about the manufacture of methamphetamine by

Engler and Gatena, law enforcement officers obtained search warrants for the two

residences shared by Engler and Gatena on three different occasions. Engler and

Gatena were subsequently indicted and arrested. Following the denial of their motions

to suppress evidence, they were tried by a jury and convicted. 

II.

Engler argues that the district court erred in denying her motion to suppress

evidence obtained during the execution of three search warrants at the residence she

and Gatena shared at 101 East 29th Street, Dubuque, Iowa, as well as the January 30,

2005, warrantless search of her person and Gatena’s vehicle, which Engler was

driving. 

The search warrants on Engler’s residence were served on November 18, 2004;

December 30, 2004; and June 5, 2005. Engler argues that the search warrant of

November 18, 2004, was obtained based on a defective affidavit and that the district

court erred in denying her request for an evidentiary hearing under Franks v.

Delaware, 438 U.S. 385 (1978). Further, Engler alleges that the evidence obtained

as a result of the execution of the December 30, 2004, search warrant at her home

should have been suppressed due to errors in the application for search warrant.

Engler also argues that all evidence seized as a result of the execution of the

subsequent June 5, 2005 search warrant should have been suppressed as “fruit of the
3

Although they make the same legal argument with respect to Bell, only Engler

argues that the trial court improperly admitted oral statements of coconspirators, while

Engler and Gatena argue that the trial court improperly admitted photographic images

of text messages sent via cellular telephone.

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poisonous tree” because the basis for this search warrant was evidence and

information obtained as a result of the allegedly improper search warrants of

November 18, 2004, and December 30, 2004. Additionally, Engler contends that the

warrantless canine and inventory searches of the vehicle she was driving on January

30, 2005, were improper because the government failed to offer sufficient proof to

establish the existence of probable cause or an inventory exception to the general

prohibition against a search absent probable cause. Finally, Engler asserts that the

trial court erred by failing to follow the procedure established in United States v. Bell,

573 F.2d 1040 (8th Cir. 1978), with respect to out-of-court coconspirator statements.

Gatena raises three issues on appeal. Like Engler, Gatena asserts that the

district court erred in failing to comply with the procedures set forth in Bell.

3

Additionally, Gatena argues that there was insufficient evidence to establish that he

aided and abetted the manufacture of 50 grams or more of methamphetamine on

December 30, 2004. Lastly, Gatena avers that the district court erred when it

determined the drug quantity for which Gatena was held accountable for purposes of

determination of his offense level and sentence. 

III.

We find that the searches were supported by probable cause, and the district

court properly denied Engler’s motion to suppress as well as her request for a Franks

hearing. On appeal of a motion to suppress, we review the factual findings for clear

error, and the legal findings are reviewed de novo. United States v. Bell, 480 F.3d
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860, 863 (8th Cir. 2007). We review the denial of a Franks hearing for abuse of

discretion. United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008).

We first address Engler’s arguments concerning the November 18, 2004, search

of the 29th Street residence. To prevail in her request for a Franks hearing, Engler

must demonstrate that a law enforcement official either recklessly or deliberately

included a false statement in the affidavits in support of the search warrants or omitted

a truthful statement from the affidavits. United States v. Brown, 499 F.3d 817, 821

(8th Cir. 2007), cert. denied, No. 07-7292, 2008 WL 423700 (U.S. Feb. 19, 2008).

Further, Engler “must make a substantial preliminary showing of a false or reckless

statement or omission and must also show that the alleged false statement or omission

was necessary to the finding of probable cause.” United States v. Gabrio, 295 F.3d

880, 883 (8th Cir. 2002). Such a showing is not easily made. Id. Engler must show

that if the allegedly unsupported content in the warrant affidavit is ignored, the

remaining contents of the affidavit would not be enough to establish probable cause.

Brown, 499 F.3d at 821. We agree with the district court’s analysis that Engler cannot

establish the requisite preliminary showing of a false or reckless statement or omission

which was necessary to a finding of probable cause. Likewise, Engler failed to

establish that if the allegedly unsupported information is ignored the remainder of the

information presented in support of the search warrant would be insufficient to

establish probable cause. 

Engler challenges the denial of her request for a Franks hearing asserting that

law enforcement officers deliberately or recklessly: (1) failed to verify the information

provided by a confidential informant; (2) failed to attach information on one of the

two confidential informants; (3) used a confidential informant upon whose

information no prior arrests were based; (4) omitted addresses from paragraphs 2

through 8 of the affidavit; and (5) omitted statements indicating that Engler and

Gatena were no longer romantically linked. We cannot find that the district court

erred. Engler made these assertions without any supporting proof that they are
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accurate. She provided no evidence to establish that law enforcement officers

deliberately or recklessly omitted information in an attempt to mislead the issuing

judicial officer. Moreover, Engler did not provide an explanation for the absence of

such evidence. She failed to make a preliminary showing that a Franks hearing was

necessary and therefore the denial of the hearing was appropriate. If we were to

assume that Engler satisfied the first requirement for obtaining a Franks hearing, her

argument would still fail at the second step because the affidavits established probable

cause even absent the challenged information. 

Engler next asserts that because of the alleged omissions referenced above, the

November 18, 2004, search warrant was not supported by probable cause. Based

upon a thorough review of the affidavits in support of the search warrant application,

we find that the totality of the circumstances set forth in the application for the search

warrant of November 18, 2004, supported the finding of probable cause and

sufficiently established that the confidential informant was reliable. The attached

information sheet indicates that the confidential informant had supplied reliable

information in the past on multiple occasions, had not given false information in the

past and had no motive to falsify information in this case. Therefore, there was

sufficient proof of the informant’s reliability. See United States v. Sumpter, 669 F.2d

1215, 1220 (8th Cir. 1982). 

With regard to the December 30, 2004 search, Engler argues that the district

court erred in denying her motion to suppress evidence seized from her home during

that search because the search warrant was based on the allegedly impermissible

search of November 18, 2004. Engler also argues on appeal that because factual

errors appear in the Magistrate Judge’s report and recommendation, the affidavit for

search warrant must also have been confusing to the issuing judicial officer. Although
4

The Magistrate Judge's report and recommendation erroneously stated that the

complete red phosphorus lab was located at Gatena's Rock Grove Court address, when

in fact the complete red phosphorus lab was discovered at Engler’s 29th Street

residence. 

5

This confusion on the part of the Magistrate Judge may have been caused by

the fact that two independent search warrants were simultaneously executed at both

the 29th Street and Rock Grove Court addresses on November 18, 2004. 

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factual errors appear in the Magistrate Judge’s report and recommendation4

, the

affidavit for search warrant which was presented to and relied upon by the issuing

judicial officer, did not contain such errors5

. Accordingly, the affidavit before the

issuing judge was not clearly in error and provided sufficient probable cause to justify

the issuance of the search warrant for Engler’s residence.

Engler argues that the district court erred in denying her motion to suppress

evidence seized during the June 5, 2005 search of her residence because this warrant

was based on evidence or information obtained as a result of the prior allegedly

unconstitutional searches, and would therefore be “fruit of the poisonous tree.” We

have already found that Engler’s rights were not violated during the two previous

searches. However, if the information from those searches was removed from the

affidavit in support of the June 5, 2005 search warrant, there would still be more than

enough information remaining to establish probable cause for the issuance of the

search warrant. The additional evidence included in the affidavit, such as the June

2005 information regarding methamphetamine activity by Engler, pre-cursors found

in the mini-van outside her residence, and Engler’s trips between her home and the

mini-van immediately preceding police arrival, establish probable cause for the

issuance of that search warrant.

In sum, Engler has failed to establish that probable cause was lacking for the

issuance of any of the three search warrants or that there was evidence to warrant a

Franks hearing. She produced no evidence of intentional misconduct or misstatement,
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or any other evidence that directly controverts any of the information contained in the

three affidavits for search warrants.

We now turn to Engler’s attack on the search of the vehicle she was driving on

January 30, 2005. Law enforcement officers are required to have probable cause to

search a vehicle without a search warrant. United States v. Donnelly, 475 F.3d 946,

954 (8th Cir.), cert. denied, 127 S. Ct. 2954 (2007). Probable cause is not the requisite

evidence necessary to support a conviction. Id. Rather, probable cause is the “fair

probability that contraband or evidence of a crime will be found in a particular place.”

Id. (quoting Gates, 462 U.S. at 238). In order to determine if probable cause exists,

the totality of the circumstances must be assessed using a “common sense approach.”

United States v. Valle Cruz, 452 F.3d 698, 703 (8th Cir. 2006). 

We find that there was probable cause to search the vehicle Engler was driving

on January 30, 2005. Officers were aware that Engler’s license to drive was

suspended. Therefore, they legitimately arrested her after observing her operate a

motor vehicle. Thereafter, a canine sniff of the exterior of the vehicle was conducted

and the dog alerted giving the officers probable cause to search the vehicle. See

United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999)

(When a canine officer alerts on the exterior of a vehicle, the police officers then have

probable cause to search the vehicle without the necessity of obtaining a search

warrant). Further, at the request of the owner of the parking lot, the vehicle was towed

away following Engler’s arrest. Prior to the vehicle being towed, the officers

conducted an inventory search of the vehicle, as was required by the police

department policy. It is permissible for an officer to conduct an inventory search

pursuant to department policy prior to a vehicle being towed, protecting both the

vehicle owner and the officers. See United States v. Mayfield, 161 F.3d 1143, 1145

(8th Cir. 1998) (“The intrusion is justified by governmental interests in protecting the

owner’s property while it remains in police custody, in protecting the police against

claims or disputes over lost or stolen property, and in protecting the police from
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potential danger.”). Engler’s argument that there was insufficient evidence of the

police agency’s inventory policy is without merit. At the suppression hearing, Officer

Michael Kane testified that the Dubuque Police Department has a written policy for

inventory searches of vehicles subject to a private property tow. Officer Kane

identified the government’s exhibit 4 as the impound sheet from the private property

tow of Gatena’s truck following Engler’s arrest for driving on a suspended drivers

license. The impound sheet was prepared in compliance with the written department

policy and was admitted as evidence at the suppression hearing. An officer’s

testimony that the inventory search was performed within the police department’s

policy is sufficient. See United States v. Betterton, 417 F.3d 826, 830 (8th Cir. 2005)

(policy not required to be in writing and officer testimony as to policy is sufficient).

IV.

Engler challenges the district court’s admission into evidence of several out-ofcourt statements presented via the testimony of two witnesses. Nicole Leick testified

that, using money provided by Engler and Gatena, she obtained matches and

pseudoephedrine pills for Gatena’s use in the manufacture of methamphetamine and

that she saw Engler process the pills for subsequent use in methamphetamine

production. Leick testified that Gatena identified a room of the Mud Lake home as

“the cook room.” Engler’s hearsay objection to this statement was overruled without

analysis or explanation by the district court.

 Subsequently, Engler asserted hearsay objections to two other responses by

Leick. The first was her testimony that Gatena, carrying a container of ingredients

used in the manufacture of methamphetamine, stated that he was going home, and the

second was her denial that Gatena had told her what he did with the methamphetamine

that he had made. 
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Martin Junger testified that he has consumed methamphetamine manufactured

by Gatena, that Gatena has assisted him in the manufacture of the substance, and that

he had obtained precursors to the manufacture of methamphetamine with Engler.

Over Engler’s hearsay objection, Junger testified that Gatena told him that during the

search of November 18, 2004, authorities “found a cook going on at his house,” and

that he had been stopped by police with a bowl used to smoke methamphetamine and

a “full lab” in his vehicle, but that these items were not discovered.

The district court’s decision to admit evidence is reviewed on appeal under the

deferential abuse of discretion standard. United States v. McCracken, 110 F.3d 535,

542 (8th Cir. 1997). The district court’s decision will be affirmed unless there is a

“clear and prejudicial abuse of discretion.” Id. 

Here, Engler asserts that the district court abused its discretion in admitting the

testimony noted above as the statements are hearsay and fall beyond the parameters

of the coconspiratorhearsay exception of Federal Rule of Evidence 801(d)(2)(E), and

that the district court failed to follow the procedure outlined in Bell, 573 F.2d at 1043-

44 (setting forth the procedure to be follow with respect to the admission of

coconspiratorstatements under Federal Rule of Evidence 801(d)(2)(E)).

“Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a statement

of a co-conspirator is admissible if the trial court determines by a preponderance of

the evidence that ‘the statement was made during the course and in furtherance of a

conspiracy to which the declarant and the defendant were parties.’” McCracken, 110

F.3d at 542 (quoting United States v. Roulette, 75 F.3d 418, 425 (8th Cir. 1996)).

Pursuant to Bell, testimony as to an out-of-court statement of an alleged coconspirator

may be conditionally admitted as a coconspirator statement, provided that the district

court makes a determination at the end of the trial as to whether the government

demonstrated by a preponderance of the evidence that (1) a conspiracy existed; (2) the
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defendant and the declarant were members of the conspiracy; and (3) the declaration

was made during the course of and in furtherance of the conspiracy. Bell, 573 F.2d

at 1043. If the district court finds that the government has failed to satisfy all three

requirements, then the jury must be instructed to disregard the testimony, or a mistrial

may be granted; otherwise, the testimony is deemed admitted. Id., at 1044.

While the district court perhaps failed to follow with precision the Bell

requirements with respect to the cited testimony, we note that Engler did not ask the

court to do so, and, more importantly, Engler was not prejudiced as the record reveals

overwhelming evidence of the existence of a conspiracy which included Engler and

Gatena and that all of the challenged statements were in furtherance of that

conspiracy. United States v. Anderson, 243 F.3d 478, 483 (8th Cir. 2001) (Where the

district court did not follow (nor was it asked to follow) the Bell requirements, a

defendant suffers no prejudice where overwhelming evidence of the existence of a

conspiracy exists and the relevant statements were made in furtherance of that

conspiracy.). 

Engler and Gatena also argue that the district court erred in admitting into

evidence photographic images of text messages sent via cellular telephone to Engler

from an unknown person while law enforcement officers were about to execute a

search warrant on Engler’s residence. They assert that the government failed to show

that the unknown declarant who sent the text messages was a co-conspirator.

However, the very content of the text messages establishes by a preponderance of the

evidence that the sender was a coconspirator. See United States v. Beckman, 222 F.3d

512, 523 (8th Cir. 2000) (coconspirator’s statement may itself be used to determine

that a conspiracy existed). The text messages instruct Engler to quickly “clean” and

“flush” because the “cops [are] outside.” In advising Engler of the presence of

officers, the declarant goes on to specify there are “2 out front” and “1 at back door

around corner.” We find no abuse of discretion in the admission of this evidence.
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V.

Next, Gatena argues that the trial court erred in denying his motion for acquittal

because there was insufficient evidence to prove that he aided and abetted the attempt

to manufacture more than 50 grams of methamphetamine on December 30, 2004.

Specifically, Gatena argues that there was insufficient proof to establish that the

attempt to manufacture on that date would have produced more than 50 grams of

methamphetamine. We note, however, that the indictment alleges that the attempted

manufacture of December 30, 2004, was to produce more than 5 grams, not more than

50 grams, of methamphetamine. 

Federal Rule of Criminal Procedure 29 provides that a district court shall enter

a judgment of acquittal only if the evidence presented at trial was insufficient to

sustain a conviction. A district court must consider a motion for judgment of acquittal

with “very limited latitude” and must neither assess the witnesses’s credibility nor

weigh the evidence. United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007).

We must view the evidence in the light most favorable to the government, resolving

evidentiary conflicts in the government’s favor and accepting all reasonable inferences

drawn from the evidence supporting the jury’s verdicts -- if there is an interpretation

of the evidence that would allow a reasonable-minded jury to conclude guilt beyond

a reasonable doubt, then we must uphold the jury’s verdict. Id.

The record reflects there was more than enough evidence to support Gatena’s

conviction for the December 30, 2004, attempt to manufacture more than 5 grams of

methamphetamine. Gatena’s truck was parked in front of Engler’s residence. In plain

view, officers observed seven transparent trash bags in the back of his truck which

contained large quantities of trash common to a methamphetamine lab. Further, the

evidence revealed that: Gatena previously sold methamphetamine out of Engler’s

house; at some point, Gatena had resided with Engler in the residence to be searched;
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Gatena allowed Engler to use his truck on December 28, 2004; when Engler used

Gatena’s truck she purchased pre-cursors, such as matches and pseudoephedrine, at

a local grocery store and Walgreens pharmacy; mail and other items belonging to

Gatena were found inside the residence and the truck; evidence of the manufacture of

methamphetamine was found inside the residence; and the trash bags in the back of

Gatena’s truck contained hundreds of matchbooks and empty blister packs

representing 2,016 pseudoephedrine pills which could theoretically yield 55 grams of

methamphetamine. Additionally, the jury had the opportunity to weigh Gatena’s

credibility. While Gatena claimed that he and Engler were out of town from

December 28th through the 30th, and that he had no involvement in the lab or the

waste found in his truck or the house, the grocery store manager testified that he saw

Engler using Gatena’s truck when she bought the matches on December 28, 2004.

Finally, the trash contained a receipt for the purchase of the pseudoephedrine on

December 28, 2004, from the Walgreens Pharmacy located near the grocery store

where Engler purchased the matches on the same day. Viewing the evidence in the

light most favorable to the verdict, we cannot find that the trial court erred in denying

Gatena’s motion for acquittal as to this count.

VI.

Lastly, Gatena argues that the district court erred in determining the drug

quantity for which he should be held accountable because the government failed to

establish the amount by a preponderance of the evidence. Gatena argues that the

government presented evidence of only 0.97 grams of actual methamphetamine with

a marijuana equivalent of 19.40 kilograms, which would be a base offense level of 16

for Guidelines purposes, while the district court adopted the presentence report

calculation of 995.28 grams of pseudoephedrine which translates to a base offense

level of 36. Gatena argues that there is no corroborative evidence of that amount, and
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the government failed to meet its burden of proof. We will uphold a sentencing

court’s drug quantity calculation unless it is clearly erroneous. United States v.

Serrano-Lopez, 366 F.3d 628, 638 (8th Cir. 2004). 

Gatena has failed to establish that the district court’s finding as to the drug

quantity for sentencing purposes was clearly erroneous. Gatena was “well positioned

within the conspiracy to appreciate the scope of the conspiracy and the quantities

involved,” and the sentencing court properly found, by a preponderance of the

evidence, that his activity involving the drugs attributed to him was in furtherance of

the conspiracy and either known or reasonably foreseeable to him. See United States

v. Ramon-Rodriguez, 492 F.3d 930, 942 (8th Cir. 2007), cert. denied, 128 S.Ct. 938

(2008). The district court correctly held Gatena responsible for the precursors and

methamphetamine obtained, used and manufactured by his coconspirators. See United

States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998)(defendant responsible not only

for all acts and omissions committed, aided, abetted, counseled, commanded, induced,

procured and willfully caused by himself, but also for all reasonably foreseeable acts

and omissions of coconspirators in furtherance of the joint criminal activity). Gatena

was also properly held accountable for precursors his coconspirators obtained for his

use in manufacturing methamphetamine. See United States v. Voegtlin, 437 F.3d 741,

748-49 (8th Cir.) cert. denied, 127 S. Ct. 368 (2006) (“Under the guidelines, in a

jointly undertaken criminal activity, a defendant’s sentence is determined based on all

reasonably foreseeable acts of others taken in furtherance of the jointly undertaken

criminal activity.”). The evidence before the district court was that: (1) Engler and

Gatena purchased pseudoephedrine, Heet and matches “almost daily” at a local

convenience store in 2004; (2) coconspirators testified to making at least 25 trips to

Madison, Wisconsin in the summer and fall of 2004, where they obtained between

1000 to 3000 pseudoephedrine pills per trip, each of which was capable of producing

55 grams of methamphetamine per week; (3) 2,504 empty pill blister packs which

represents 93 grams of pseudoephedrine were seized at Gatena's home on November

18, 2004; (4) 2,016 empty pill blister packs, representing 60 grams of

pseudoephedrine, were seized from Gatena's truck on December 30, 2004; and, (5)
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over 1000 empty pill blister packs, representing 38.8 grams of pseudoephedrine, were

seized at Engler's home on June 5, 2005. Thus, we find that the district court did not

err in attributing Gatena with a drug quantity that translated to a base offense level of

36 under the Guidelines. 

VII.

Accordingly, we affirm the judgment of the district court.