United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 14-3412
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

           Derek Edward Benedict

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 15-1014
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

            Lyle Robert Carpenter

   lllllllllllllllllllll Defendant - Appellant
                   ____________

 Appeals from United States District Court
  for the District of Minnesota - St. Paul
              ____________
                              Submitted: March 29, 2017
                                 Filed: May 1, 2017
                                   ____________

Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

       Appellants Derek Benedict and Lyle Carpenter were convicted by a jury of
conspiracy and burglarizing various drug stores in Minnesota and Iowa where they
stole pharmaceutical products and cash from safes, registers, and ATMs. They now
appeal their convictions and their sentences imposed by the district court.1 We affirm.

                                           I.
                                           A.

        From 2009 to 2012, Derek Benedict and Lyle Carpenter were involved in a series
of commercial burglaries, conspiring at various times with six other people: Jason
Mussehl, Julia Julien, Tim Kielb, Cher Mayotte, Jennifer Stanley, and Jonathan Quast.
Jason Mussehl was involved in burglaries for over 25 years, which were his primary
source of income. He knew Benedict from elementary school and met Carpenter in
2009. Mussehl's half brother was Jonathan Quast, and Mussehl dated both Julia Julien
and Jennifer Stanley. Additional members of the conspiracy were Tim Kielb and his
girlfriend, Cher Mayotte.

      The group’s burglaries focused on the theft of money and pharmaceuticals from
businesses they investigated as potential targets, where they would first look for motion
sensors and locate any alarm systems. They would then return at night to break into a


      1
        The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

                                          -2-
targeted building, often cutting a hole in the roof near an alarm which they proceeded to
disarm. At other times they entered a building by knocking down an exterior wall or by
prying open the front door and disabling any alarm before a signal could be sent. Once
an alarm was disabled, the burglars would leave the location for a half hour or more to
ensure that they had not been detected. One of the group was tasked with waiting outside
in the vicinity of a targeted business to watch for any law enforcement personnel. After
being satisfied that they had not been detected, the burglars would reenter the store, drill
open safes and ATMs, and carry away their contents. The burglars working inside a
store would communicate by two way radio with their confederate remaining outside.
Carpenter specialized in drilling into safes and ATM machines, a task at which he
excelled. Benedict served as driver and kept watch outside for any approaching police.

       On October 4, 2009, Carpenter, Mussehl, Tim Kielb and Jennifer Stanley
burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house
of a friend. After breaking into the machine and obtaining its contents, the burglars
disposed of the machine in the Mississippi River. Later that month, Benedict, Carpenter,
Mussehl, and Stanley burglarized a Walgreens store in Robbinsdale, Minnesota. Then
the same four burglars broke into a Golden Valley Walgreens in November and a South
Minneapolis Walgreens in December.

       Carpenter went to prison after he was convicted of a different crime, but Mussehl
continued to burglarize Walgreens stores. Benedict wanted to participate in these
burglaries, but Mussehl turned him down. When Carpenter was released from prison in
2012, he again joined in burglaries with Benedict and Mussehl. On July 15, 2012,
Benedict and Carpenter, together with Mussehl, Kielb, Cher Mayotte, and Julia Julien,
burglarized a pharmacy in Bloomington, Minnesota (Bloomington Drug). The burglars
took both money and pharmaceuticals. Carpenter, Mussehl, Kielb, and Mayotte next
committed a burglary at a gas station in Prior Lake, Minnesota on August 19, 2012.
They removed an ATM belonging to South Metro Federal Credit Union and transported
it in Mussehl's truck to a friend's garage, where they broke into it. Four days later,



                                            -3-
Carpenter, Mussehl, Kielb and Quast burglarized a Walgreens store in Circle Pines,
Minnesota.

      On September 9, 2012, Benedict, Carpenter, Mussehl and Julien burglarized a
Walgreens store in Des Moines, Iowa. Benedict again kept watch outside the store, and
Carpenter and Mussehl entered the building. Later that day, Benedict bought an Infiniti
using his share of the proceeds from the burglary.

       By early 2013, coconspirator Tim Kielb had been arrested and began to cooperate
with law enforcement agents. He used a recording device to capture several discussions
with Benedict and Carpenter about burglaries. In February of that year, police found a
glove at the site of an Aldi Foods store in Blaine, Minnesota, which had been burglarized
by entering through the roof. A DNA swab of the Aldi glove linked to a predominate
profile that matched to Lyle Carpenter. On June 9, 2013, Carpenter was arrested while
burglarizing a Super America gas station. He was apprehended along with a crowbar,
sledgehammer, mask and two way radio.

                                           B.

       Benedict and Carpenter were jointly charged with conspiracy to commit bank
burglary, bank larceny, and interstate transportation of stolen property, conspiracy to
steal controlled substances, bank larceny, burglary involving controlled substances, and
interstate transportation of stolen property. The ten count indictment also charged
Carpenter on additional substantive charges of bank burglary, bank larceny, credit union
burglary, and burglary involving controlled substances. Benedict and Carpenter were the
only two defendants to proceed to trial; each of the other coconspirators pled guilty. In
addition to testimony from numerous law enforcement officials and others, the
government called coconspirators Mussehl, Julien, Kielb, Stanley, and Mayotte to testify
and describe their own roles in the conspiracy, as well those of Benedict and Carpenter.
Coconspirator Jonathan Quast was additionally called to testify about the burglary he
committed with Carpenter in Circle Pines, Minnesota.


                                          -4-
        Benedict moved to sever, but severance was denied. He also sought to have an
expert witness testify to the subject of the untrustworthiness of coconspirator testimony,
but his request was untimely and rejected by the district court. Both men were convicted
of all charged crimes. At sentencing the district court concluded that both Benedict and
Carpenter were career offenders. They were sentenced accordingly: Carpenter to 210
months with $272,561 ordered in restitution, and Benedict to 150 months with $199,007
ordered in restitution. The two defendants now appeal their convictions and sentences.

                                           II.

      Benedict makes three claims relevant only to his case: that he was improperly
denied a severance, that he should have been permitted to present expert testimony,
and that the evidence was insufficient to convict him of the charged offenses.

       Benedict moved for a severance. Federal law favors joint trial for individuals
charged in the same indictment, and there is a "strong" presumption against severing
properly joined cases. United States v. Delpit, 

, 1143 (8th Cir. 1996).
A denial of a motion to sever is only reversed when a defendant has shown an abuse
of discretion resulting in severe prejudice. United States v. Young, 

,
1238 (8th Cir. 2012). To prevail on such a claim a defendant must show prejudice to
a specific trial right or that a joint trial would not enable the jury to make "a reliable
judgment about guilt or innocence." United States v. Dierling, 

, 734 (8th
Cir. 1997) (internal quotation marks omitted). Varying strength in the evidence
against each defendant does not require a severance. 

Carpenter were indicted together for their participation in the same
conspiracy, and their cases were properly joined. See 

. Benedict
argues however that some of the evidence focused solely on Carpenter, including a video
of Carpenter being arrested while burglarizing a Super America store and evidence about
a glove matching Carpenter's DNA profile which had been found outside a burglarized

                                           -5-
Aldi Foods store. This evidence is not sufficient to show that the jury could not have
made a reliable judgment about Benedict's guilt or innocence because of the district
court's limiting jury instructions that each defendant "is entitled to have his case decided
solely on the evidence which applies to him," and that the jury "must give separate
consideration to the evidence about each individual Defendant." This trial was not the
"unusual case" in which the efficiency of joinder would have been outweighed by
difficulty for the jury to analyze separately the evidence against each individual
defendant. See United States v. Martin, 

, 995 (8th Cir. 2015).

       Benedict next claims that the district court erred by rejecting his request to permit
expert testimony from Dr. Jeffrey Neuschatz. While Benedict contends this amounted
to the denial of his right to defend himself and therefore is subject to de novo review, a
court's exclusion of expert testimony is appropriately reviewed for abuse of discretion.
United States v. Martin, 

, 954 (8th Cir. 2004). The district court's decision
was based on Benedict's failure to make disclosures required under Federal Rule of
Criminal Procedure 16(b)(1)(C). That rule requires a defendant, upon the government's
request, to provide a summary of proposed testimony describing "the witness's opinions,
the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim.
P. 16(b)(1)(C). Five days before trial was to begin, Benedict first indicated his intention
to call Dr. Neuschatz. The district court permitted the disclosures to be made at that
time, but they were not. Then on December 11, the court prohibited its introduction
under Rule 16(d)(2)(C), and Benedict offers no argument on appeal about the disclosure
issue. We conclude the district court did not abuse its discretion by excluding evidence
for that reason. See United States v. Holmes, 

, 599 (4th Cir. 2012)
(concluding district court did not abuse its discretion in excluding expert testimony after
required Rule 16(b)(1)(C) disclosures were not made).

       The district court also concluded that the subject of the proffered expert testimony
was improper. Dr. Neuschatz, the proffered expert, had authored an article entitled The
Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32
Law & Hum. Behav. 137 (2008). His article warned that mock jurors provide "undue


                                            -6-
weight to confession evidence when rendering guilt decisions." 

In his
affidavit filed in the district court, Dr. Neuschatz claimed that "[w]ithout expert
assistance, jurors' abilities to assess the veracity of a witness's testimony are extremely
limited." Benedict argues on appeal that the testimony would have been proper and
necessary to demonstrate the unconscious impact of live testimony and "the substantial
bias of testimonial evidence from any source on a listener." It is however "plain error to
admit testimony that is a thinly veiled comment on a witness' credibility." Nichols v.
Am. Nat'l Ins. Co., 

, 884 (8th Cir. 1998). Moreover, "[w]eighing evidence
and determining credibility are tasks exclusive to the jury." 

The district court
did not abuse its discretion by declining to admit Dr. Neuschatz's testimony.

       Benedict also challenges the sufficiency of the evidence. He argues that there was
not corroborated evidence to show he acted with a purpose in common with the other
members of the conspiracy. We review such a challenge de novo, examining the
evidence in the light most favorable to the government, resolving evidentiary conflicts
in the government's favor, and granting all reasonable inferences which support the
verdict. United States v. Casteel, 

, 644 (8th Cir. 2013). Benedict's
coconspirators testified that he had participated in a conspiracy to commit burglary and
the other charged offenses. The testimony of coconspirators alone is sufficient to support
a conviction for conspiracy unless it is "incredible or insubstantial on its face." United
States v. Thompson, 

, 970 (8th Cir. 2008) (internal quotation marks
omitted). The coconspirator testimony introduced in this case was credible and
supported by other evidence. Contrary to Benedict's complaint that there was not
sufficient corroborating evidence, much of the coconspirator testimony was corroborated.
Jason Mussehl for example testified that Benedict told him that he purchased an Infiniti
with the proceeds of their burglary of a Walgreens store in Des Moines. The government
then introduced the title to the particular car.

      Benedict also relies upon Mussehl's testimony that for a period of time Benedict
unsuccessfully sought to participate in burglaries with Mussehl. Benedict claims this
shows he was not part of a single conspiracy. Mussel's full testimony, however, shows


                                            -7-
that Benedict engaged in numerous burglaries with the group of coconspirators.
Benedict's claim that the evidence does not show his participation in a conspiracy is flatly
contradicted by the trial record. We conclude that the evidence was sufficient to sustain
his convictions.

                                            III.

       Carpenter makes one claim relevant only to his case, arguing that restitution was
wrongly imposed under the Mandatory Victim Restitution Act (MVRA). We review
such questions of law de novo. United States v. Senty-Haugen, 

, 865 (8th
Cir. 2006). Carpenter maintains that corporations are not victims under the Mandatory
Victims Restitution Act because they are not "persons" within the meaning of the statute.
The MVRA requires that a district court shall order a defendant to make restitution in
cases "in which an identifiable victim or victims has suffered a physical injury or
pecuniary loss." 18 U.S.C. § 3663A(c)(1)(B). "Victim" is defined in the statute to mean
"a person directly and proximately harmed as a result of the commission of an offense
for which restitution may be ordered." 

       Although "person" is not defined in the MVRA, the Dictionary Act defines
"person" to include corporations "unless the context indicates otherwise." 1 U.S.C. § 1.
Carpenter does not dispute that the corporations here were harmed as a result of his
conduct, but claims that the context here shows corporations do not fit within the
statutory definition of person since "it would have been easy" to provide in the text of the
MVRA that "'persons' includes corporations." This argument overlooks the statutory
scheme and the Dictionary Act itself. See 1 U.S.C. § 1.

       The government adds that the context within the MVRA itself indicates that
corporations are eligible to be considered victims within the meaning of the act. Section
3663A(c)(1)(A)(ii) extends the MVRA to crimes such as bank fraud under 18 U.S.C.
§ 1344, which covers defrauding "a financial institution." 

Such an
inclusion would make no sense if the MVRA were intended to exclude corporations from


                                            -8-
its definition of victim. Carpenter's limited definition is inconsistent with our prior
MVRA decisions which have not applied the statute only to natural persons. See Senty-

(concluding that "the IRS is an eligible victim under the
MVRA"); see also United States v. Engelmann, 

, 1014 (8th Cir. 2013)
(rejecting the argument that bad actions by financial institutions made them ineligible
for victim status under the MVRA).

        Carpenter claims that the district court erred in ordering $53,729 in restitution to
the targeted stores for sums of money taken from safes and cash registers during the
burglaries, as opposed to money taken from ATMs. He claims these sums represent
money taken during the commission of state law crimes for which restitution is not
appropriate. We look to the "scope of the indictment to determine whether an award" is
eligible to be included in a restitution order. United States v. Ramirez, 

, 900
(8th Cir. 1999) (internal quotation marks omitted). A district court also has "discretion
to order restitution for all the victims" of a criminal scheme, whether or not the particular
losses are "specifically named in the indictment." 

Carpenter's argument rests
in part on his claim that "no [f]ederally-charged conspiracy existed here to steal the
store's own property and money," an assertion which is contradicted by the record.
Carpenter was indicted and convicted of Interstate Transportation of Stolen Property, 18
U.S.C. § 2314, which requires transportation of money worth $5,000 or more, knowing
it to have been stolen, and conspiracy to commit the same. Moreover, the indictment in
this case specifically charged the taking of money from Walgreens safes and transporting
it from Iowa to Minnesota.

      Even if the conspiracy charged in the indictment had not included the stolen
property charge, the restitution order for payments to the burglarized stores was proper
under the plain language of the MVRA. That act requires that restitution be made to
every victim. 18 U.S.C. § 3663A(a)(2). A victim is defined as:

       a person directly and proximately harmed as a result of the commission of
       an offense for which restitution may be ordered including, in the case of an


                                            -9-
      offense that involves as an element a scheme, conspiracy, or pattern of
      criminal activity, any person directly harmed by the defendant's criminal
      conduct in the course of the scheme, conspiracy, or pattern.

were clearly victims, because they were harmed as "a result of the
commission of an offense for which restitution may be ordered," 

to commit bank burglary, bank larceny, and interstate transportation of stolen property,
as well as conspiracy to steal controlled substances. The taking of money from the safes
was also specific "criminal conduct" which Carpenter and his coconspirators undertook
"in the course of the scheme, conspiracy, or pattern." 

that the district
court did not err in its imposition of restitution for the victim stores.

                                          IV.

                                           A.

        Both defendants challenge an evidentiary stipulation which established
jurisdictional elements of the charged offenses, including the stipulation that certain
Walgreens stores which had been burglarized were used in part as a bank, that certain
ATMs were owned by a bank insured by the FDIC or by a credit union insured by the
National Credit Union Administration, that Bloomington Drug was registered with the
FDA, and that the stolen drugs contained FDA controlled substances. Benedict and
Carpenter now claim they did not knowingly and voluntarily agree to the admission of
their stipulation. Our review is for plain error because the defendants did not object to
the stipulation before the district court. 

.

      We recently rejected a very similar argument in Martin. There, as here, the
defendants did not object to an evidentiary stipulation in district court, yet claimed on
appeal that it had not been knowingly 

. We noted there that a
defendant is ordinarily bound by an agreed upon stipulation "[u]nless the defendant
indicates objection at the time the stipulation is made." 

marks

                                          -10-
omitted). Martin also reaffirmed our circuit rules that 1) an inquiry as thorough as that
provided for in Federal Rule of Criminal Procedure 11 is not required when
stipulating to an element of an offense, and 2) a stipulation is knowingly and
voluntarily made when signed by the defendant and "entered in open court in the
presence of the defendant." 

marks omitted).

       Appellants now emphasize what they see as the sole difference between Martin
and their case: in Martin the stipulation was signed by the defendant, while here the
stipulation was signed only by defense counsel. This argument fails. The stipulation
was read verbatim in open court in the presence of appellants and defense counsel
represented that they did not object to its admission. Appellants are bound by their
stipulation, and it was not plain error for the district court to accept it. 

.

                                           B.

      At sentencing both Benedict and Carpenter received enhancements under the
sentencing guidelines for being career offenders as defined in U.S.S.G. § 4B1.1
(2014).2 A defendant is a career offender under U.S.S.G. § 4B1.1(a) (2014) if:

      (1) the defendant was at least eighteen years old at the time the defendant
      committed the instant offense of conviction; (2) the instant offense of
      conviction is a felony that is either a crime of violence or a controlled
      substance offense; and (3) the defendant has at least two prior felony
      convictions of either a crime of violence or a controlled substance
      offense.


      2
       Since Benedict was sentenced in October 2014 and Carpenter was sentenced
in December 2014, we look to the 2014 version of the guidelines. See United States
v. Lawin, 

, 781 (8th Cir. 2015) (per curiam).

                                          -11-
A "crime of violence" includes any offense punishable by imprisonment for more than
one year that "is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another." U.S.S.G. § 4B1.2(a)(2) (2014). The "or otherwise" clause
is referred to as the residual clause. See United States v. Jordan, 

, 1185
(8th Cir. 2016). A career offender's offense level is determined in part by referencing
the statutory maximum penalty of the crime of violence conviction in the instant case.
U.S.S.G. § 4B1.1(b) (2014).

      Before turning to defendants' arguments, we note that in 2015 the Supreme
Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States,

(2015). The residual clause in that statute is identical to the residual
clause in U.S.S.G. § 4B1.2(a)(2) (2014). Nevertheless, the Court recently held that
the residual clause in the guidelines is not unconstitutionally vague because the
guidelines are not subject to vagueness challenges. Beckles v. United States, 137 S.
Ct. 886 (2017). Although the Sentencing Commission removed the residual clause
from U.S.S.G. § 4B1.2(a)(2) in 2016, see U.S.S.G. app. C, amend. 798, we apply it
here because both of these defendants were sentenced in 2014. See 

.

       Carpenter argues that he is not a career offender because none of his "instant
offense[s] of conviction" qualify as crimes of violence. The relevant elements of
Carpenter's conviction for burglary involving controlled substances are "without
authority, enter[ing] or attempt[ing] to enter, or remain[ing] in, the business premises
or property of a person . . . with the intent to steal." 18 U.S.C. § 2118(b). These
elements closely track those of generic burglary, which are "unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime."
Taylor v. United States, 

, 599 (1990). We have concluded "that any
generic burglary is a crime of violence under the 'otherwise involves' residual

                                         -12-
provision in U.S.S.G. § 4B1.2(a)(2)." United States v. Stymiest, 

, 768
(8th Cir. 2009). We need not decide the question of whether burglary involving
controlled substances qualifies as a generic burglary in this case because Carpenter's
"offense was clearly a 'crime of violence' under the" residual clause itself. See United
States v. Cantrell, 

, 695 (8th Cir. 2008).

       To determine whether an offense qualifies as a crime of violence under the
residual clause, we use the "categorical approach," which requires us to "consider
whether the elements of the offense are of the type that would justify its inclusion
within the residual provision, without inquiring into the specific conduct of this
particular offender." James v. United States, 

, 202 (2007), overruled by

.3 A prior conviction qualifies as a crime of violence under
the residual clause if it "(1) 'present[s] a serious potential risk of physical injury to
another,' and (2) [is] 'roughly similar, in kind as well as degree of risk posed,' to the
offenses listed in § 4B1.2(a)(2)." United States v. Watson, 

, 1092 (8th
Cir. 2011) (quoting United States v. Boyce, 

, 711 (8th Cir. 2011)).

       We first analyze whether the risk posed by burglary involving controlled
substances is "roughly similar, in kind as well as degree of risk posed," by its closest
enumerated offense analog—here, burglary. See 

(quoting

). The main risk posed by burglary arises "from the possibility
of a face-to-face confrontation between the burglar and a third party—whether an
occupant, a police officer, or a bystander—who comes to investigate." 

(quoting 

). That risk applies equally here because
to be convicted of burglary involving controlled substances, a person must enter "the


      3
        Although James analyzes the ACCA, not the guidelines, "[t]he definition of
'crime of violence' in U.S.S.G. § 4B1.2(a) is nearly identical to the definition of
'violent felony' in 18 U.S.C. § 924(e)(2)(B)," and we see no reason to treat them
differently here. United States v. Craig, 

, 723 (8th Cir. 2011) (alteration
in original) (quoting United States v. Clinkscale, 

, 817 (8th Cir. 2009)).

                                          -13-
business premises or property of a person . . . with the intent to steal." See 18 U.S.C.
§ 2118(b).

       Having determined that the risk of burglary involving controlled substances is
"roughly similar, in kind as well as degree of risk posed," to generic burglary, we next
analyze whether it "present[s] a serious potential risk of physical injury to another."
See 

(quoting 

). We conclude that
the answer to that question is affirmative because any violation of the statute creates
a risk of a violent confrontation between the burglar "and the occupant, the police, or
another third party." See 

. We thus affirm Carpenter's
classification as a career offender because his conviction for burglary involving
controlled substances qualifies as a crime of violence under the residual clause of
U.S.S.G. § 4B1.2(a)(2) (2014).

        Benedict argues that he is not a career offender because his two prior
convictions for third degree burglary, Minn. Stat. § 609.582, subd. 3 (1995), and for
aiding and abetting third degree burglary, 

not crimes of violence. A
person commits third degree burglary in Minnesota if he "enters a building without
consent and with intent to steal or commit any felony or gross misdemeanor while in
the building, or enters a building without consent and steals or commits a felony or
gross misdemeanor while in the building." Minn. Stat. § 609.582, subd. 3 (1995);
accord 

have concluded that Minnesota's third degree burglary statute
is not a violent felony under the enumerated clause of the ACCA because its definition
is broader than generic burglary. United States v. McArthur, 

, 937–40
(8th Cir. 2017). Benedict's prior conviction for third degree burglary qualifies as a
crime of violence under the residual clause of the guidelines, however, for the same
reason that Carpenter's instant conviction qualifies. A person who commits third
degree burglary creates a risk of a violent confrontation between himself "and the
occupant, the police, or another third party." See 

.
Benedict's conviction for aiding and abetting third degree burglary also qualifies as

                                         -14-
a crime of violence under the residual clause because application note 1 to U.S.S.G.
§ 4B1.2 (2014) provides that "[f]or purposes of this guideline—‘Crime of violence'
. . . include[s] the offense[] of aiding and abetting." We thus affirm Benedict's
classification as a career offender because his prior convictions for third degree
burglary qualify as crimes of violence under the residual clause of U.S.S.G.
§ 4B1.2(a)(2) (2014).

                                           V.

        The district court did not err by holding a joint trial for these coconspirators,
accepting an evidentiary stipulation, or excluding expert witness testimony. Nor did
the trial court err by requiring restitution. The evidence was also more than sufficient
to convict Benedict. Because appellants' burglary convictions qualify as crimes of
violence under the residual clause of the guidelines, we affirm their career offender
status and sentences. The judgments of the district court are affirmed.
                          ______________________________




                                          -15-