Masten v. United States

• Decision Date: 28 May 2014
• Docket Number: No. 12–3495.,12–3495.
• Parties: Deborah L. MASTEN, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

752 F.3d 1142

Deborah L. MASTEN, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 12–3495.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2014.

Filed: May 28, 2014.

Deborah Jean Westling, argue on behalf of the appellant, Saint Louis, MO.

Dean R. Hoag, Assistant United States Attorney, argue on behalf of the appellee, Saint Louis, MO.

Before LOKEN, MURPHY, and SMITH, Circuit Judges.

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 Fed.Appx. 640, 642 (8th Cir.2008). Masten then filed a motion for new trial followed by a motion to vacate the conviction, see28 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 court ¹ 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.

I.

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 Fed.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 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.

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 the Adair County Jail's reel-to-reel 1/2? VHS recorder to a single channel ... VHS tape from which the DVD copy video was made” During Dr. Edwards's testimony at the evidentiary hearing, when government counsel noted that the additional disclosures noted by Dr. Edwards were based on his enhancement, not the original VHS tape, the court observed, “You say the original VHS should have been produced, so let's look at that and let me compare that to the DVD that was actually used.” Counsel for Masten could not because Dr. Edwards had not brought the equipment he used to produce the enhancement. ATF Agent Ryan Zornes advised the court that the Adair County Sheriff's Department “have switched from a VHS-type system to a digital system.” The court then stated:

Now as far as the Brady violation is concerned, [Masten has] to prove that exculpatory evidence was withheld from her by the government and ... I can't decide whether the evidence is exculpatory because I can't see it but ... I'm going to assume that this VHS shows what Doctor Edwards says it shows.... [S]o assuming that this was exculpatory, the question is whether it was withheld by the government....

Again, I get back to the fact that everyone knew this original was there and didn't look at it.... So this wasn't buried evidence, it was out there, nobody looked at it so ... I'd be interested in knowing what [Masten's] evidence would be on this issue of the suppression of the evidence....

Masten then called Agent Zornes. He testified that, after investigators watched the original multi-camera video on the Adair County Sheriff's “multiplex system,” ATF seized the original video as evidence for trial. Zornes “was asked to try to get this VHS tape in a format that would be playable in court” without having to bring in the Adair County equipment. The objective, Zornes testified, “was to make the evidence easy to play at trial.”

Zornes testified that he took the original tape back to Adair County and, using their system, “selected the camera angles that were important for the investigation and then recorded those from the original multiplex, multi channel tape to the secondary VCR tape so that we had an individual tape with the specific camera angle that was needed for the case.” Zornes then took “those tapes that had the specific camera angles broken down” to a technician at the St. Charles County Sheriff's Department, who “uploaded them into this Avid [video] system and then he created digital DVD for me that contained each specific camera angle that was consistent with what I had given him on the VHS tapes.” Zornes watched the DVD copy after it was created. “I never saw anything different in my opinion from when I watched the VHS tape and then we watched the DVD.... [T]he thought never crossed my mind that [the] DVD was not an accurate representation of what the VHS tape depicted.” On cross examination, government counsel showed Zornes trial Exhibit 23:

Q This is the original VHS?

A Yes, it is.

Q And it was marked and—into evidence. Do you recall?

A It was presented in trial as an exhibit.

Q Not shown, but ... as an exhibit?

A —exhibit. Correct.

The district court then heard brief testimony by Masten's trial counsel. He admitted that he and...