WM. FREMMING NIELSEN, Senior District Judge.
Before the Court is Mr. Barbee's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 363), to which the Government has responded (ECF No. 368), and Mr. Barbee has replied (ECF No. 369). The Court has reviewed the file, the trial transcript, the Court's trial notes, and the briefing on the Motion, as well as recalled its own memory of the trial. Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989) (reviewing judge may consider his own notes and memory of trial). For the reasons stated below, the Motion is denied.
Mr. Barbee was indicted on December 5, 1996 (ECF No. 22). Mr. Barbee and his co-Defendants were charged with twelve counts, including conspiracy to destroy a newspaper office and a Planned Parenthood office, two counts of bank robbery with the use of dangerous weapons, use and carrying of a destructive device during and in relation to crimes of violence, transportation of stolen vehicles across state lines, and possession of unregistered firearms in violation of 18 U.S.C. § 844(i), 924(c)(1), 2113(a) and (d), 2312 and 26 U.S.C. § 5861(d).
A first trial commenced on March 3, 1997. On April 4, 1997, Mr. Barbee was found guilty of Counts 1, 10, 11 and 12 and no decision was reached by the jury on Counts 2 through 9 (ECF No. 129). A mistrial was declared on April 8, 1997 on Counts 2 through 9 (ECF No. 132). A Superseding Indictment was filed April 9, 1997 (ECF No. 135).
A second trial commenced on June 19, 1997. The jury returned guilty verdicts on Counts 2 through 9 on July 23, 1997 (ECF No. 240). Mr. Barbee was sentenced to life imprisonment on November 4, 1997. See Judgment filed 11/5/1997 (ECF No. 286). During the proceedings, Mr. Barbee filed an interlocutory appeal of the Court's Order denying his Motion to Dismiss for violation of double jeopardy. See Order filed 6/5/1997, ECF No. 188. The Ninth Circuit affirmed in a Mandate filed February 2, 1998 (ECF No. 326). Mr. Barbee also appealed his conviction and sentence. The Ninth Circuit affirmed in a Mandate filed June 21, 1999 (ECF No. 336).
On December 4, 2006, Mr. Barbee filed a Motion Pursuant to Federal Rule of Civil Procedure 60(b)(4) (ECF No. 337). The Motion sought to vacate his criminal judgment as void. Despite Mr. Barbee's claim to the contrary, the Court did not recharacterize or construe his Rule 60(b)(4) Motion as a 28 U.S.C. § 2255 motion. Instead, the Court held that Mr. Barbee's exclusive remedy was a 28 U.S.C. § 2255 motion and denied the 60(b) Motion (ECF No. 341). On January 12, 2007, Mr. Barbee appealed the Court's denial of his Rule 60(b) Motion (ECF No. 343). The Ninth Circuit affirmed in a Mandate filed September 30, 2008.
Mr. Barbee filed his present Motion almost fifteen years after his convictions. In his Motion, Mr. Barbee presents 23 claims. Each claim stems from an allegedly "new discovery of facts" through a statement received from one of the trial witnesses who testified against him: Loren Berry, brother of co-Defendant Robert Berry (ECF No. 363 at 24). Mr. Barbee states that he received Loren Berry's statement sometime in late December of 2012. Mr. Barbee alleges that the Government conspired with witness Loren Berry to have him give false testimony against Mr. Barbee and his co-Defendants, that in return, the Government promised to intervene in Loren Berry's state criminal charges and secretly pay him. Mr. Barbee further alleges that the Government knowingly solicited and failed to correct false testimony, disguised witness benefits, committed prosecutorial misconduct, interfered with Mr. Barbee's right to interview and cross-examine Berry, breached ethical and constitutional obligations, and corrupted the trial's integrity. Mr. Barbee contends that the Government violated Brady, Agurs, Giglio, Napue, and Alcorta. Additionally, Mr. Barbee claims that his Motion is timely under § 2255(f)(2) or (4).
The Court begins by noting that the lynchpin of each of Mr. Barbee's 23 claims is the alleged newly discovered evidence derived from Loren Berry's affidavit. As the Government points out, and the Ninth Circuit has stated in Mr. Barbee's co-Defendant's appeal, new evidence-based claims are not cognizable under § 2255. Rather, "a motion under § 2255 that raises evidence-based claims should be treated as a motion for a new trial." United States v. Jackson, 209 F.3d 1103 (9th Cir. 2000). "The proper device for such a claim is Federal Rule of Criminal Procedure 33, which allows a prisoner to move for a new trial based on newly discovered evidence. Fed. R. Crim. P. 33(b)(1)." United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). However, Rule 33 has a three year time limit. In its response to the current Motion, the Government objects to the timeliness of Mr. Barbee's newly discovered evidence claims. In an abundance of caution, after objecting to the timeliness of Mr. Barbee's Motion pursuant to Rule 33, the Government performed a Rule 33 analysis of Mr. Barbee's claims pursuant to Jackson, and then a Brady analysis of Mr. Barbee's claims. The Court concludes that the Rule 33 analysis is clearly unnecessary given the untimeliness of Mr. Barbee's claims, the Government's objection on untimeliness grounds, and the Ninth Circuit's decision in Berry. Id. at 1039 ("A district court may treat a § 2255 motion as a Rule 33 motion for a new trial. To do so, the § 2255 motion must be timely under the provisions of Rule 33."). Given that Mr. Barbee's claims are new, evidence-based claims, objected to as untimely, and that they are beyond the three year time limit, the Court denies his Motion.
The Court also notes that Mr. Barbee attempts to cloak his newly discovered evidence claims in independent constitutional violations, assumably in order to escape the three-year limitation under Rule 33. As stated supra, Mr. Barbee claims that his Motion is timely under § 2255(f)(2) or (4). Assuming, arguendo, that Mr. Barbee has properly alleged § 2255 claims, they are untimely. A "§ 2255 motion is timely if it was filed within a year of when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012). In considering whether Mr. Barbee acted diligently, the following is significant: First, Loren Berry has made similar statements in the past. Specifically, Loren Berry signed an affidavit in 2005, in which he claimed that the Government promised him compensation after the verdict (CR-96-259-WFN, ECF No. 347). Second, co-Defendant Robert Berry filed the affidavit into the docket in 2007, claiming it was evidence of a Brady violation (CR-96-259-WFN, ECF No. 347). Third, in October of 2010, the Ninth Circuit noted Robert Berry's Brady claim that was derived from the Loren Berry affidavit in its published opinion.
Assuming, arguendo that Mr. Barbee was successful in cloaking his newly discovered evidence claims in independent constitutional violations and that he did so in a timely fashion, he still would not be entitled to relief pursuant to Brady or Napue.
United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009) (internal citations and quotations omitted). "A claim under Napue will succeed when (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material." Jackson v. Brown, 513 F.3d 1057, 1071-1072 (9th Cir. Cal. 2008) (internal citations and quotations omitted).
The materiality analysis proceeds differently for Brady and Napue claims. Whereas a Brady violation is material when there is a reasonable probability that the result of the proceeding would have been different, a Napue violation requires that the conviction be set aside whenever there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. We have gone so far as to say that if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic. Nonetheless, Napue does not create a per se rule of reversal.
Jackson v. Brown, 513 F.3d 1057, 1075-1076 (9th Cir. Cal. 2008) (internal quotations and citations omitted).
As the Government states, the crux of the analysis is whether Mr. Barbee's claims, if believed, would be material. The Government contends that Mr. Barbee's claims are immaterial because Mr. Barbee fails to establish that had the evidence been disclosed, there is a reasonable probability that the result of the trial would have been different. As the Government states, although it relied on "Loren Berry's testimony — the veracity of which was roundly attacked on cross examination — it was by no means exclusively, heavily, or significantly relied upon by the United States in proving the charges against [Mr. Barbee]" (ECF No. 368 at 12). The Government continues:
ECF No. 368 at 13. The Court notes that in addressing co-Defendant Robert Berry's post-conviction Motion, the Ninth Circuit addressed the evidence against Robert Berry, Mr. Barbee and their co-Defendant Verne Merrell, concluding that "significant circumstantial evidence connected the defendants to the robberies and bombings." Id. at 1043. The Ninth Circuit discussed some of the evidence in detail, including, in part:
Id. at 1034-5.
The Court has reviewed the trial transcript, its notes of the trial and recalled the testimony and exhibits received. As the Government points out, Loren Berry's testimony relating to Mr. Barbee was limited. He testified that he knew Mr. Barbee; that he found Mr. Barbee to be honest in his dealings; that he observed Mr. Barbee painting a telephone test handset; that he observed Mr. Barbee with angle irons and blackening out letters on a pair of ski goggles; that he didn't recall Mr. Barbee making any statements about his religious beliefs, though he did remember Mr. Barbee reading from a Bible during a camping trip; and that Mr. Barbee had pointed to a newspaper article about the bank robberies and bombing and said that Brian Ratigan, a fellow bombing participant, was a good guy, but slipped getting in or out of the van. It is also notable that the cross-examination of Loren Berry was potent. On cross, Loren Berry admitted that he had been regularly dishonest and was an alcoholic. The jury was also aware that there were criminal charges pending against Loren Berry and that he had been paid witness fees by the Government.
There was substantial evidence against Mr. Barbee and the other Defendants that did not stem from Loren Berry's testimony. Mr. Barbee's involvement in the charged conduct was supported by the testimony of many witnesses and exhibits, with the following evidence appearing particularly probative on the issue of guilt. First, as mentioned above, he was arrested with his two co-Defendants on October 8, 1996, as he returned from a round trip from Sandpoint, Idaho, to a U.S. Bank in Portland, Oregon. The three vehicles driven by the three co-defendants had survival gear, an M-16 gun, flack jackets, and grenades. The three men had disguises similar to those used in the prior two charged bank robberies that included goggles and latex gloves. Mr. Barbee admitted that one of the vehicles, the van, had been stolen. Stolen vans had also been used in the charged bank robberies. Defendants testified that the trip to the Portland bank was merely to leave letters and was a publicity stunt. Robert Berry testified that he was going to run into the bank and leave a letter while Mr. Barbee held the door and released a gas grenade, and Mr. Merrell created a diversion. The explanation was not credible given the distance they traveled and the significant preparation that they engaged in prior to the trip.
Second, co-Defendant Robert Berry possessed three types of weapons (Benelli shotgun, Ruger Vaquero revolver and Winchester pump shotgun) identified in the photographs of the bank robberies, according to the testimony of three witnesses besides Loren Berry: Chris Davidson (confidential witness), Donald Blaese (Robert Berry's landlord) and Brad Day (friend of Robert Berry's son). Mr. Davidson testified that Robert Berry gave him the Winchester to sell after the July 12, 1996, robbery. Robert Berry retrieved the gun and admitted at trial to telling his son to get rid of the Winchester while he was in jail. Just because the Benelli shotgun and Rugar Vaquero revolver were not found during the subsequent execution of the search warrants does not erase the fact that Robert Berry possessed weapons similar to those weapons identified in the bank robberies.
Third, parts of letters found on co-Defendant Merrell's computer were similar to letters left at the crime scenes. Also, the letter carried by the Defendants on October 8, 1996, was similar in content and was on Merrell's computer and could have been printed on Merrell's printer. A common thread throughout the trial testimony was the three co-Defendants' disdain for "usery," which was punishable by death; opposition to abortion, which was also a capital crime; their use of the name "Yahweh" for God, whose laws were superior to the laws of the United States; and reference to the Phineas priesthood. Many similar references appeared in the letters left at the crime scenes and mailed to the victims after the crimes. All three co-Defendants testified about their sense that the government was out of control after the events at Ruby Ridge and Waco and that they were waging a war against evil which justified stealing vehicles from corporations. All three were identified as being pictured in the "Ragged Edge" article published by The Spokesman Review. Robert Berry admitted he had stopped paying taxes, had obtained false identification and identified "safe houses."
Fourth, the testimony of Mr. Davidson implicated Mr. Barbee, Robert Berry and Mr. Merrell. Mr. Barbee and Robert Berry each made many statements to Davidson that revealed their interest in, and knowledge of, the charged conduct. A day or two before the July 12 bank robbery Mr. Barbee told Davidson to watch the news. After the July 12 bank robbery Robert Berry told Davidson that he had burned the ponchos that Davidson had sold them. Mr. Barbee and Robert Berry separately told Davidson that they had burned the M65 parkas that he had sold them. When viewing the surveillance photos of the bank robberies, Davidson recognized the ponchos and parkas worn by the bombers as the same style of ponchos and M65 parkas that he had sold the Defendants. Additionally, Robert Berry told Davidson about recon that was done on the US Bank in Oregon and how a small group of people could bring them to their knees. At trial, counsel for the co-Defendants attempted to impeach Davidson: Mr. Davidson dealt in military surplus which raised some questions and he was interested in the reward. Still, some details of his testimony were corroborated by other witnesses and even by the Defendants themselves, which enhanced Mr. Davidson's credibility.
Fifth, the height and weight of the teller robber during both bank robberies matched Robert Berry's height and weight, and the height and weight of the lobby robber during both robberies matched Mr. Barbee's height and weight. The physical descriptions were also consistent with the two individuals who placed the bomb at Planned Parenthood. Bank employees testified that the two robberies were very similar and the teller who was robbed twice was 99.99% sure that the teller robber was the same person with a similar black revolver used during both robberies. Co-Defendant Merrell was identified by several witnesses as the driver of the van when both The Spokesman Review and Planned Parenthood were bombed. He also met the description of the getaway driver after the first bank robbery.
Sixth, the April 1, 1996, bank robbery resulted in a loss of $72,000. All of the Defendants took trips in that timeframe: Mr. Merrell to Colorado on a road trip, Mr. Barbee and family to Florida by airline, and Robert Berry and family to Michigan, also on a road trip. Robert Berry gave his brother Loren $800 in cash in $20 bills during that Michigan trip. Robert Berry also moved his family out of his shop and into a $750 per month rental home when he returned from Michigan, paying his rent in cash. While there was no evidence of flagrant spending, it did appear that cash seemed in better supply than expected given the fact that in 1996 Robert Berry admitted he had lost interest in the repair shop business and did just enough to get by.
The co-Defendants also presented testimony from one person, Pat Thoren, who stated the stolen van used in the first bank robbery was observed on March 29, 1996, in Moses Lake with three people in it that did not match the physical description of the Defendants. Another witness, Andy Burson, at the drive-up window of the bank on July 12, 1996, saw the driver of the van for 5 to 10 seconds and thought he had a dark brown beard. Still, the evidence weighed heavily toward a finding of Defendants' guilt on the charged conduct.
Mr. Barbee's new Motion, under Rule 33, is untimely. Assuming, arguendo, his claims could be construed as § 2255 claims, they are still untimely. Assuming, arguendo, that his claims are timely § 2255 claims, they are immaterial under both a Napue and Brady materiality analysis. First, considering the alleged Napue violations collectively, the Court concludes that there is not any reasonable likelihood that the allegedly false testimony could have affected the judgment of the jury. Second, considering all of the alleged Napue and Brady violations collectively, the Court concludes there is not a reasonable probability that the result of the proceeding would have been different. Mr. Barbee received a trial that resulted in a verdict worthy of confidence.
An appeal of this Order may not be taken unless this Court or a Circuit Justice issues a certificate of appealability, finding that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires a showing that "reasonable jurists would find the district Court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a claim is dismissed on procedural grounds the Court must determine whether
Slack, 120 S. Ct. at 1604. A certificate of appealability should not be granted unless both components, one directed at the underlying constitutional claims, and the second directed at the court's procedural holding, are satisfied. Id. The Court may address either the constitutional or procedural issue first. Id. Based on the Court's preceding analysis, the Court concludes: (1) that the Movant has failed to make a substantial showing of a denial of a constitutional right, and (2) that jurists of reason would not find it debatable whether the Court was correct in any substantive or procedural ruling. Thus a certificate of appealability should not issue. Accordingly,
The District Court Executive is directed to:
