USA v. Berry

Citation624 F.3d 1031
Decision Date22 October 2010
Docket NumberNo. 08-35002.,08-35002.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Sherman BERRY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

Thomas O. Rice, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Dan B. Johnson, Spokane, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. Nos. CV 07-0211 WFN, CR 96-0259 WFN.

Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

In 2007, almost ten years after he was convicted of two bank robberies, three bombings, and a number of related charges, Robert Berry filed a motion to vacate his conviction under 28 U.S.C. § 2255. Although purportedly brought under § 2255, Berry's motion largely sought the substantive relief of a motion for a new trial under Federal Rule of Criminal Procedure 33. Because Berry-who proceeded before the district court pro se-mislabeled his claims in this fashion, neither the government nor the district court noticed that the claims were barred by Rule 33's three-year limitation. See Fed.R.Crim.P. 33(b)(1). Instead, following our instruction in United States v. Jackson, 209 F.3d 1103 (9th Cir.2000), the district court treated Berry's mislabeled § 2255 motion “as a motion for a new trial,” id. at 1106, and proceeded to deny the motion on the merits.

Obviously, the end result of the district court proceedings made little sense: Berry was effectively allowed to bring a new trial motion despite the fact that the deadline for such a motion had expired seven years earlier. In light of this anomalous result, we take this opportunity to clarify our prior decision. Jackson allows a district court to treat a § 2255 motion as a motion for a new trial under Rule 33. Generally, the district court may do so only when the prisoner brings his § 2255 motion within the time period established by Rule 33. However, when the prisoner's § 2255 motion falls outside this time period, the district court may still treat it as a Rule 33 motion if the government waives any objection to Rule 33 timeliness.

Under this standard, Berry's motion was well out of time. Nevertheless, because the government failed to object to the timeliness of Berry's new trial claims, the district court properly reached the merits of those claims. On the merits, we conclude that the district court correctly rejected Berry's contention that he is entitled to a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Before his conviction, Berry was a resident of Sandpoint, a small town in northern Idaho. Sandpoint lies only thirty miles from Ruby Ridge, the site of an infamous FBI standoff in 1992. Berry, along with his codefendants Charles Barbee and Verne Merrell, were deeply affected by the tragic events at Ruby Ridge. Already distrustful of government, the three became increasingly extremist in their views. Professing their belief in the need for a citizen militia, they started stockpiling weapons, stopped paying taxes, and began cash-only subsistence lifestyles in an attempt to go “off the grid.”

None of the three, however, succeeded in staying off the grid for long. In 1996, the government indicted Berry, Barbee, and Merrell on charges stemming from three bombings and two bank robberies in Spokane, Washington, and an apparent attempt at a third bank robbery in Portland, Oregon. The three were eventually convicted of all charges against them.

Ten years later, Berry filed a motion under 28 U.S.C. § 2255, seeking to have his conviction overturned based on new information he learned about the forensic evidence the government used against him. The district court denied the motion, and we issued a certificate of appealability on the question whether the new evidence entitled Berry to a new trial.

A. The Bank Robberies

At approximately 2:30 p.m. on April 1, 1996, a pipe bomb went off outside the office of The Spokesman Review newspaper in Spokane. Shortly after the bombing, two masked men entered a U.S. Bank branch located a few blocks away. The men stole approximately $72,000 and detonated a second pipe bomb inside the bank before fleeing the scene.

At both The Spokesman Review and the U.S. Bank, the men left identical letters. The letters, written in a distinctive and archaic style, contained numerous religious references and were marked at the end with the symbol of the Phineas Priesthood. 1 The police later found a stolen van that they believed to have been used in both the bombing and the robbery, but were unable to determine who had committed the crimes.

Just over three months later, on July 12, 1996, another pipe bomb was set off in Spokane, this time outside the local office of Planned Parenthood. Shortly thereafter, three masked men entered the same U.S. Bank branch that had been robbed in April. This time, the men made off with $33,000.

At the Planned Parenthood bombing site, the police found a box of matches that contained religious markings similar to those found at the first bombing and bank robbery. The matchbox had handwritten citations to Psalms 139 and 127, a hand-drawn symbol of the Phineas Priesthood, and the words “Praise Yahweh.” As before, the police found a stolen van that was apparently used in the crime, but were unable to determine who committed the robbery.

After the second robbery, rewards ultimately totaling $130,000 were offered by U.S. Bank, The Spokesman Review, and the government for information leading to the arrest of the bank robbers. The reward prompted Christopher Davidson, a friend of Berry and owner of a military surplus business, to come forward. Davidson told the FBI that he believed Berry, Barbee, and Merrell were involved in the robberies. 2

Based on Davidson's information, the FBI placed the trio under surveillance. On October 7, 1996, they watched Berry travel with Barbee and Merrell from Sandpoint to Portland, Oregon. In Portland, the three parked near a U.S. Bank and waited for it to open. The bank, on alert from the FBI, remained closed. After waiting outside the bank for 20 to 30 minutes, the three men left and drove to Union Gap, Washington, where they were arrested when they stopped to refuel.

Each of the defendants had been driving a separate vehicle at the time they were arrested, two of which were stolen. Inside these vehicles the FBI found a number of firearms, grenades, and ammunition. The FBI also found copies of a letter addressed to “the USurer Bank,” written in the same style as the letters left behind in the other robberies. It was later learned that the defendants had mailed copies of this letter to The Spokesman Review, the Oregonian, and others.

Searches of the three defendants' residences revealed numerous other items that were potentially connected to the robberies. For example, Barbee's home contained Coleman propane canisters. Identical canisters had been found in a failed incendiary device left behind in the van used for the July 12 robbery. The FBI also found jeans in Barbee's bedroom that appeared to match jeans worn by one of the robbers in the April 1 robbery. And, in the headboard to Barbee's bed, they found a book entitled Vigilantes of Christendom: The Story of the Phineas Priesthood.

In Merrell's home, the FBI found a stun gun that matched one carried by one of the robbers in the July 12 robbery, as shown by a security video. They also found fuses in Merrell's van that were consistent with the fuses used in the pipe bombs. In addition, witnesses identified Merrell as the driver of the van in both the April 1 and July 12 robberies. Finally, files found on Merrell's home computer held contents substantially similar to the contents of letters left at U.S. Bank and outside The Spokesman Review office.

The FBI did not find any physical evidence in Berry's home that linked him to the robbery. They were, however, able to link him to the weapons used in the robberies. Photos from the robbery showed the robbers using what appeared to be a Benelli shotgun, a Winchester shotgun, and a Ruger Vaquero. Berry admitting to owning all three of these guns prior to the robberies, although he claimed to have sold them before the robberies occurred.

B. The Trial

Berry, Barbee, and Merrell were indicted and tried together in 1997. At their trial, in addition to the evidence summarized above, the government introduced the results of “compositional analysis of bullet lead” (“CABL”) tests. CABL is a forensic technique that uses the chemical composition of lead to match bullets used in crimes with unfired bullets found in the possession of a criminal defendant. See generally Comm. on Sci. Assessment of Bullet Lead Elemental Composition Comparison, Nat'l Res. Council, Forensic Analysis: Weighing Bullet Lead Evidence 1-2 (2004), available at http:// www. nap. edu/ catalog. php? record_ id= 10924# toc. Under the theory that the blocks of lead from which bullets are made are both unique in chemical composition and homogenous, 3 CABL purports to be able to determine if two bullets came from the same source. According to the government, if a bullet used in a crime is determined to have the same lead composition as an unfired bullet connected to a defendant, the defendant was more likely to have obtained both bullets from the same box of ammunition.

In Berry's case, the government used CABL tests to compare buckshot used in the Planned Parenthood pipe bomb with buckshot found in Berry's auto shop. Kathleen Lundy, a forensic examiner formerly with the FBI, testified that the buckshot pellets found at the two locations were chemically “indistinguishable,” suggesting that both sets of buckshot came from the same source.

Additional evidence greatly strengthened the connection between Berry's buckshot and the buckshot recovered from the pipe...

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