752 F.3d 1142 (8th Cir. 2014), 12-3495, Masten v. United States

Docket Nº:12-3495
Citation:752 F.3d 1142
Opinion Judge:LOKEN, Circuit Judge.
Party Name:Deborah L. Masten, Petitioner - Appellant v. United States of America, Respondent - Appellee
Attorney:For Deborah L. Masten, Petitioner - Appellant: George Brad Crowell, Columbia, MO; Deborah Jean Westling, GUILFOIL & PETZALL, Saint Louis, MO. Deborah L. Masten, Petitioner - Appellant, Pro se, Queen City, MO. For United States, Respondent - Appellee: Dean R. Hoag, Assistant U.S. Attorney, U.S. AT...
Judge Panel:Before LOKEN, MURPHY, and SMITH, Circuit Judges.
Case Date:May 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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752 F.3d 1142 (8th Cir. 2014)

Deborah L. Masten, Petitioner - Appellant


United States of America, Respondent - Appellee

No. 12-3495

United States Court of Appeals, Eighth Circuit

May 28, 2014

Submitted: January 14, 2014.

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Deborah L. Masten, Petitioner - Appellant: George Brad Crowell, Columbia, MO; Deborah Jean Westling, GUILFOIL & PETZALL, Saint Louis, MO.

Deborah L. Masten, Petitioner - Appellant, Pro se, Queen City, MO.

For United States, Respondent - Appellee: Dean R. Hoag, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO.

Before LOKEN, MURPHY, and SMITH, Circuit Judges.


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LOKEN, Circuit Judge.

A jury convicted Deborah L. Masten of starting a fire that heavily damaged her failing tavern, Too Talls Two Eatery and Spirits (" Too Talls" ), in violation of 18 U.S.C. § 844(i). We affirmed the conviction, rejecting Masten's claim of insufficient evidence. " While the evidence showed that Masten left the bar shortly after the last two employees," we explained, " the Government presented evidence . . . that Masten could have set the fire in that short period of time." United States v. Masten, 281 F.Appx. 640, 642 (8th Cir. 2008). Masten then filed a motion for new trial followed by a motion to vacate the conviction, see 28 U.S.C. § 2255, arguing that newly discovered evidence discredited critical testimony by government witnesses regarding the timing of events on the night in question; that the government suppressed this evidence in violation of Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and that trial counsel provided ineffective assistance in failing to discover it. After an evidentiary hearing, the district court1 denied a new trial and § 2255 relief. Masten appeals, arguing that the district court erred in denying relief under Brady. We granted a certificate of appealability on that issue and now affirm.


The fire started shortly after employees and then Masten left Too Talls after the bar closed on New Year's Eve, January 1, 2005. The government presented extensive evidence that the fire was intentionally started using an accelerant and that Too Talls was then in dire financial straits, sufficient for the jury to infer that Masten, the bar's owner, had motive and opportunity to commit the crime. These were the principal issues on direct appeal. See Masten, 281 F.Appx. at 642.

Regarding the timing of events, a Too Talls bartender testified that, when he left after the bar closed, the building was intact and only Masten remained inside. Two employees of the Adair County detention center, located in the same block as Too Talls, testified that while taking a break just after 2:00 a.m., they saw Too Talls employees leaving from a parking lot across from the center and that Masten's red BMW was the last to depart. Highway patrolman Nicholas Berry testified that, at approximately 2:20 a.m., after leaving a DUI suspect at the detention center, he parked his patrol car in the parking lot to complete an Incarceration Report. Berry saw two other vehicles leave the parking lot and then saw Masten at the corner walking toward a red car. She waved to Berry; he waved back and soon drove away. Masten later testified that

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the other employees left Too Talls and drove away before she did, and that she waved at a highway patrolman before getting into her vehicle and driving home. A 911 operator logged a call reporting the Too Talls fire at 2:23 a.m.; emergency personnel were dispatched one minute later.

The government introduced portions of the detention center's surveillance videos to corroborate this testimony. The trial exhibit was a DVD copy of relevant footage from two of the surveillance cameras. The government provided Masten with a copy of the DVD disc seven to ten days before trial, describing it as an accurate but poor quality copy. At trial, the government introduced the disc during the direct examination of Police Officer Douglas Fleshman. After Fleshman testified that he viewed the original video from the detention center's multi-camera surveillance system at the detention center the day after the fire, he was handed Exhibit 118, the DVD copy, and asked:

Q All right. And while viewing that video, what if anything did you observe from the video?

[Defense counsel]: I'll object. The best evidence is the video, Judge. [The prosecutor]: I'll play the video. [Defense counsel]: He [Fleshman] isn't qualified.

Fleshman testified he had not viewed the DVD copy. Government counsel offered to provide testimony by the ATF agent and the technician responsible for transferring the detention center video " into a DVD form so we could play it for the Court." Defense counsel replied, " I don't want Tiebout [the technician]. What I am saying is if [Fleshman] can say that this is in fact . . . what he viewed, that's fine." After a recess during which Fleshman viewed the DVD copy, he was asked:

Q Did it fairly and accurately depict . . . the video that you viewed on the 1st of January, 2005?

A Yes.

The court then admitted Exhibit 118, the DVD copy, and Exhibit 23, described as " the videotape that was recovered from the . . . Adair Country Sheriff," without objection. Exhibit 23 was not played for the jury.

Exhibit 118 showed several cars departing the parking lot near Too Talls and the detention center at the time in question. Masten's red sports car was last, leaving the parking lot a few seconds after Trooper Berry's patrol car. Approximately seven minutes after Masten drove away, the angle of one camera swung around to focus directly at Too Talls. A detention center employee testified that he made that camera adjustment when he heard the alert on the fire-police-ambulance radio frequency, tending to confirm other evidence of when the fast-developing fire was detected.

Masten's post-conviction motions were based upon a study of the surveillance images by Dr. Thomas Edwards, her retained expert. Edwards obtained and enhanced (" resolution adjusted" ) the original detention center video, which the government had retained in the ATF evidence file. In a pre-hearing affidavit, Dr. Edwards opined that the enhanced original video showed (i) Masten crossing the street to the parking lot from an alley near the back door of Too Talls, consistent with her trial testimony and contrary to Trooper Berry's testimony that he saw Masten at the street corner near the front entrance, closer to where the fire started; and (ii) Trooper Berry's patrol car driving south past the front entrance of Too Talls after leaving the parking lot, contrary to his testimony that he immediately turned right and headed west.

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In his pre-hearing affidavit, Dr. Edwards explained that Exhibit 118, the DVD copy, was " doubly degraded" because it had been " created by the transfer of the original multichannel (multicamera) video data from...

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