U.S. v. Ryan, 97-3970

• Decision Date: 21 September 1998
• Docket Number: No. 97-3970,97-3970
• Parties: UNITED STATES of America, Appellee, v. Dale Lynn RYAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 708

153 F.3d 708

UNITED STATES of America, Appellee, v. Dale Lynn RYAN, Appellant.

No. 97-3970.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1998.

Decided Aug. 20, 1998.

Rehearing Denied Sept. 21, 1998.

Thomas Dean Hanson, Des Moines, IA, argued (William W. Graham and Lu Ann White, on the brief), for Appellant.

Robert Dopf, Des Moines, IA, argued (Don C. Nickerson, U.S.Atty., on the brief), for Appellee.

Before WOLLMAN, BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Dale Lynn Ryan appeals from the district court's ¹ denial of his motion for a new trial. We affirm.

I.

On January 1, 1990, the Ryan Fun and Fitness Center (the Center) in West Burlington, Iowa, was destroyed in a fire. Two members of the West Burlington Volunteer Fire Department were killed while fighting the fire. After an extensive investigation by federal, state, and local authorities, Ryan, who was the manager of the Center, was charged with arson. See 18 U.S.C. § 844(i). After a lengthy jury trial, he was convicted and sentenced to a 328 month term of imprisonment. Ryan appealed, and a divided panel of this court affirmed his conviction. See United States v. Ryan, 9 F.3d 660, 662 (8th Cir.1993) (Ryan I ). We granted rehearing en banc and vacated the panel opinion. Upon rehearing, we affirmed Ryan's conviction and reinstated the panel opinion as to the other issues that were not considered en banc. See United States v. Ryan, 41 F.3d 361, 362 (8th Cir.1994) (Ryan II).

On October 30, 1996, Ryan filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure based on newly discovered evidence. He raised three arguments in the motion: (1) that the government had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that newly discovered scientific evidence warranted a new trial; and (3) that his conviction was the product of perjured or false testimony. For a detailed summary of the facts underlying Ryan's conviction and a description of the government's case, see Ryan I, 9 F.3d at 662-64. We will limit our discussion to the facts relevant to this appeal.

On January 2, 1990, the morning after the fire, Carl Svenson and Richard Ward, special agents for the Iowa Fire Marshal's Office, began their investigation. The investigation eventually grew to include numerous local and federal agencies. Early on, Svenson and Ward formed the opinion that arson was the probable cause of the fire. They suspected that a flammable liquid, or liquid accelerant, had been used to start the fire at various points in the building. This conclusion was based on a variety of factors, including the presence of several deep, charred burn patterns at various locations on the Center's hardwood floors.

In March of 1990, while the ruins were being razed, Svenson removed a large sample of undamaged flooring from one of the Center's racquetball courts and took it to the West Burlington fire station. In January of 1991, Ryan's attorneys and fire analysis expert were shown physical evidence that had been gathered and stored in West Burlington, including this flooring sample.

As its investigation continued, the government became aware that Ryan's planned defense was that the fire had been accidental and that its rapid spread throughout the building was the product of what is known as a "flashover." A flashover occurs when a fire in an area produces sufficient heat to explosively ignite all of the combustible material within the area. The government also discovered that the defense was planning to prove that the deep charring patterns were caused by burning materials falling from overhead structures, an occurrence known as "drop-down."

In July of 1991, approximately two months before Ryan's trial, Svenson took the floor samples to a firefighter training session at a state training facility in Independence, Iowa. Svenson invited Chris Van Fleet, the lead agent in the federal government's investigation, and Donald Peterson, a photographer, to witness tests he had planned for the floor samples. ² At the session, Svenson unsuccessfully tested the defense's flashover theory. After he was unable to induce a flashover, he poured alcohol on the sample and ignited it. The fuel burned off, but left no deep charring in the sample. Svenson then put alcohol and other combustible materials, including pieces of a wall, on a piece of the floor sample and ignited it. This test resulted in deep charring similar to the patterns found at the fire scene. The government had no knowledge of these tests, and thus neither the fact nor the results of the tests were revealed to the defense before the trial.

One of the government's expert witnesses, John Dehaan, a criminalist for the California Department of Justice, testified at trial that the fire had multiple origins and that an accelerant had been used. Before the trial, however, he had expressed some disagreement with Svenson and Ward's theory regarding the cause of the deep charring on the hardwood floors. While Svenson and Ward theorized that the patterns resulted from a poured flammable liquid, Dehaan was of the opinion that not all of the patterns could be attributed exclusively to a flammable liquid. He identified the defense's drop-down theory as a possible cause for some of the patterns. His difference of opinion with Svenson and Ward was not disclosed to the defense.

The government's case focused on evidence suggesting that the fire originated in as many as seven areas of the building. One of those areas, the Center's sauna, contained a large wooden floor grate. This grate's post-fire condition revealed that although it had been badly charred on its topside, the underside of the grate was only slightly charred. Although defense counsel did not view the grate prior to the trial, they knew that it had survived the fire and that they could have examined it upon request.

On August 23, 1991, Ryan filed a "Production/Brady Request" seeking production of, inter alia, tests, reports, evidence regarding burn patterns, and any differing opinions of government experts. Ryan contends that the government's failure to disclose the burn tests, Dehaan's full opinion, the sauna grate, and other fire debris were covered by this request.

II.

We review a district court's denial of a motion for new trial based on newly discovered evidence for abuse of discretion. See United States v. Hiveley, 61 F.3d 1358, 1361 (8th Cir.1995) (per curiam); United States v. Costanzo, 4 F.3d 658, 667 (8th Cir.1993). This standard also applies where, as here, a defendant seeks a new trial premised upon a Brady claim. See United States v. Stuart, 150 F.3d 935, slip op. at 3 (8th Cir.1998); United States v. Kern, 12 F.3d 122, 126 (8th Cir.1993); United States v. Williams, 81 F.3d 1434, 1437 (7th Cir.1996). This deferential standard of review is especially appropriate in the context of a lengthy, hard-fought, highly charged case like the present one. As the Seventh Circuit observed in Williams:

Having watched the jury as they listened to the testimony, having listened to the testimony and the arguments himself, having his finger as it were on the pulse of the trial--a trial that occupied 28 days scattered over four months--the district judge was in a better position than we to weigh the imponderables involved in a judgment of prejudice.

81 F.3d at 1440.

A.

In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. To establish a Brady violation, Ryan must demonstrate that the government suppressed evidence, that the evidence was exculpatory, and that the evidence was material either to guilt or punishment. See United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995). Evidence is material under Brady " 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Clemmons v. Delo, 124 F.3d 944, 949 (8th Cir.1997) (citing Bagley, 473 U.S. at 682, 105 S.Ct. 3375). However, materiality is not established through the mere possibility that the suppressed evidence might have influenced the jury. See Knox v. Iowa, 131 F.3d 1278, 1283 (8th Cir.1997).

The district court concluded, and the government appears to concede, that both the burn tests and Dehaan's disagreement with other government experts were both exculpatory and unavailable to Ryan. The question becomes, then, whether the evidence was material under Bagley and Kyles. It is important to remember that a materiality determination is not a sufficiency of evidence test. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555. It follows that once a constitutional error is found, we need not continue with a harmless-error review. See id. at 435, 115 S.Ct. 1555. These principles, however, do not restrict our consideration of the untainted evidence that was presented to the jury. "Although it is not enough that the untainted evidence be sufficient for conviction, that evidence must not be ignored in the making of the determination whether there is a reasonable likelihood that the outcome would have been different had the government not misbehaved." Williams, 81 F.3d at 1438 (citations omitted). In other words, we must consider what the government's case would have looked like if the defense had had access to the burn tests and had been aware of Dehaan's disagreement with...