FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-35002
Plaintiff-Appellee, D.C. Nos.
v. CV 07-0211 WFN
ROBERT SHERMAN BERRY, CR 96-0259 WFN
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
January 11, 2010—Seattle, Washington
Filed October 22, 2010
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tashima
17427
UNITED STATES v. BERRY 17431
COUNSEL
Thomas O. Rice, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.
Dan B. Johnson, Spokane, Washington, for the defendant-
appellant.
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 Pro-
cedure 33. Because Berry — who proceeded before the dis-
trict 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
17432 UNITED STATES v. BERRY
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 anoma-
lous result, we take this opportunity to clarify our prior deci-
sion. Jackson allows a district court to treat a § 2255 motion
as a motion for a new trial under Rule 33. Generally, the dis-
trict court may do so only when the prisoner brings his § 2255
motion within the time period established by Rule 33. How-
ever, 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 prop-
erly reached the merits of those claims. On the merits, we
conclude that the district court correctly rejected Berry’s con-
tention 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 subsis-
tence 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,
UNITED STATES v. BERRY 17433
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 newspa-
per 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 Priest-
hood.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
1
According to testimony at Berry’s trial, the Phineas Priesthood is not
an organization per se, but is a term used by individuals who are commit-
ted to an extreme view of “God’s Law.” Those who self-identify as mem-
bers of the Phineas Priesthood advocate the separation of people of
different races and religions and believe in a ban on usury. The symbol of
the Phineas Priesthood consists of a capital “P” merged with a cross.
17434 UNITED STATES v. BERRY
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 David-
son, a friend of Berry and owner of a military surplus busi-
ness, 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, Washing-
ton, where they were arrested when they stopped to refuel.
Each of the defendants had been driving a separate vehicle
2
At a separate trial, a fourth man was also convicted of participating in
the Planned Parenthood bombing and the July 12 bank robbery. His con-
viction was upheld on appeal along with the convictions of Berry, Barbee,
and Merrell. See United States v. Merrell, 182 F.3d 929 (table), 1999 WL
386651 (9th Cir. 1999).
UNITED STATES v. BERRY 17435
at the time they were arrested, two of which were stolen.
Inside these vehicles the FBI found a number of firearms, gre-
nades, 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 bed-
room 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 sub-
stantially 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.
17436 UNITED STATES v. BERRY
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 “composi-
tional 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 bul-
let used in a crime is determined to have the same lead com-
position 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 com-
pare 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
3
Bullets are created by placing large, cylindrical blocks of lead known
as billets into an extrusion press, forcing the lead into a thin wire that is
later cut into individual bullets. A bullet manufacturer can either purchase
lead from a supplier in billet form, or it can purchase blocks of lead that
it remelts into billets at its manufacturing plant. A key assumption of
CABL is that melting lead causes the impurities in the lead to become dis-
tributed evenly throughout the batch, making all bullets produced from
that melt chemically identical. CABL also assumes that each batch of
melted lead will have a unique combination of impurities, which can be
used as a sort of chemical fingerprint to identify bullets made from that
particular batch.
UNITED STATES v. BERRY 17437
“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 bomb. To begin with, the label on the bag of buck-
shot found in Berry’s shop indicated that it came from Horna-
day Manufacturing Company. In her research, Lundy learned
that Hornaday purchases its lead from a single supplier. Until
1996, that supplier had been Asarco. In early 1996, however,
Hornaday had started purchasing lead exclusively from Doe
Run. Because the chemical composition of the buckshot used
in the Planned Parenthood bomb did not match the composi-
tion of either Asarco or Doe Run lead, Lundy believed that
the buckshot had been created in 1996, during a time when
Hornaday was using lead from both suppliers in its products.
Gregory Hanson, Director of Sales for Hornaday, con-
firmed much of Lundy’s analysis. He testified that Hornaday
had created a batch of 436 bags of buckshot from a mixture
of Asarco and Doe Run lead in early 1996. In addition, Han-
son testified that Hornaday was the only buckshot manufac-
turer who used bullets that were 3 percent antimony, a metal
used to harden lead. Both the pipe-bomb buckshot and the
buckshot in Berry’s auto shop were 3 percent antimony,
strongly suggesting that both came from the batch of buckshot
that Hornaday manufactured in 1996. Of this batch, only
thirty-two bags were shipped to the area of Spokane, Wash-
ington, and Coeur d’Alene, Idaho.
The end result of the CABL evidence was compelling.
Between Lundy’s and Hanson’s testimony, the government
narrowed the likely source of the buckshot in the Planned Par-
enthood pipe bomb to thirty-two bags, two of which were in
Berry’s possession.
In response to the government’s evidence, Berry, Barbee,
and Merrell all claimed that they were being framed by
17438 UNITED STATES v. BERRY
Davidson. They testified that the Portland trip was a copycat
“media stunt” intended to draw publicity to what they saw as
violations of “God’s law.” As part of the media stunt, Berry
planned on running into the Portland bank in a trash bag,
hood, and goggles, saying, “You have been served,” deliver-
ing the letter found in the van, and leaving. Barbee’s role was
to hold the door for him, then set off a tear gas grenade. Mer-
rell would act as the getaway driver. The three also dis-
claimed any intention to use in their supposed media stunt the
firearms that they possessed at the time of their arrest. Instead,
they claimed that the weaponry was part of the militia gear
that they carried everywhere.
After trial, Berry, Barbee, and Merrell were convicted of
the bombings and the bank robberies. On appeal, we affirmed
their convictions. See Merrell, 1999 WL 386651.
C. The New Evidence
In 2006, Berry learned of two developments relating to the
CABL evidence used to obtain his conviction. First, Berry
learned that Lundy had later pleaded guilty to making a false
statement in a Daubert4 hearing in Kentucky state court in
2002. The facts of that matter, as set forth in Ragland v.
Commonwealth, 191 S.W.3d 569 (Ky. 2006), indicate that
Lundy was called upon to testify that the bullet used in a mur-
der was “analytically indistinguishable” from a bullet found
in the defendant’s possession. Id. at 574. According to her tes-
timony, both bullets likely came from the same source, which
she believed to be the Winchester Ammunition Company. Id.
Lundy’s opinion was made more significant because she
testified that the bullets came from lead that had been
remelted by Winchester, as opposed to lead purchased in “bil-
let” form, which can be directly converted into bullets without
remelting. Id. at 575, 580. Because billets are generally cre-
4
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
UNITED STATES v. BERRY 17439
ated from a single, very large batch of lead, the fact that Win-
chester remelted its lead would have “substantially reduce[d]
the number of possible bullets traceable to a particular ‘last
melt.’ ” Id. at 580.
At the Daubert hearing, Lundy testified that Winchester
remelted all the lead it obtained from its suppliers until 1996,
when she knew that as early as 1986 it did not remelt some
of its lead. Id. at 580-81. Because the murder had occurred in
1994, Lundy’s false statement made the CABL evidence pro-
vide a stronger link between the defendant and the murder.
Lundy eventually pled guilty to misdemeanor charges of false
swearing. Id. at 581.
Second, Berry learned that the FBI had discontinued the
use of CABL evidence at trials. Based on persistent criticism
of CABL evidence, the FBI commissioned the National
Research Council to evaluate the technique. The 2004 report
that followed was critical of some of the FBI’s practices. In
particular, the report noted that the FBI was overstating some
of the conclusions that could be drawn from CABL evidence.
See Nat’l Res. Council, supra, at 6-7. Based on the results of
the study, the FBI announced in 2005 that it would stop using
CABL evidence in prosecutions. Since that time, a number of
courts, including the Kentucky Supreme Court in Ragland,
have overturned convictions that were based upon CABL evi-
dence. See, e.g., Ragland, 191 S.W.3d at 581-82 (reversing
conviction because “[the expert’s] opinions based on CBLA
evidence [did] not satisfy the reliability requirements of
Daubert/Kumho”); see also Clemons v. State, 896 A.2d 1059,
1078 (Md. 2006) (“Based on the criticism of the processes
and assumptions underlying [CABL], we determine that the
trial court erred in admitting expert testimony based on
[CABL] because of the lack of general acceptance of the pro-
cess in the scientific community.”); State v. Behn, 868 A.2d
329, 345-46 (N.J. Super. Ct. App. Div. 2005) (reversing con-
viction based in part on CABL evidence); United States v.
Mikos, 2003 WL 22922197, at *6 (N.D. Ill. Dec. 9, 2003),
17440 UNITED STATES v. BERRY
(excluding CABL evidence because “[t]here is no body of
data to corroborate the government’s expert’s . . . opinion that
[analytically indistinguishable] bullets must or even likely
came from the same batch or melt”).
D. The Motion
Armed with these two new developments, Berry filed a pro
se motion under 28 U.S.C. § 2255 on July 2, 2007. He
claimed that Lundy’s perjury and the FBI’s disavowal of
CABL evidence warranted reversal of his conviction and a
new trial. In response, the government argued that Berry’s
motion was barred by the one-year limitations period set out
in 28 U.S.C. § 2255(f). On the merits, the government argued
that Berry’s motion should be treated as a motion for a new
trial and that it should be denied because the new evidence
was not “such that a new trial would probably produce an
acquittal.” See Jackson, 209 F.3d at 1106.
The district court found that Berry’s § 2255 motion was
timely and, treating it as a motion for a new trial, denied the
motion on the merits. We issued a certificate of appealability
to determine whether the new evidence warranted a new trial.
II. THE COGNIZABILITY OF BERRY’S CLAIMS
[1] Before turning to the merits of Berry’s appeal, we must
first address the cognizability of Berry’s claims. As noted
above, Berry brought his motion under 28 U.S.C. § 2255.
Congress enacted § 2255 to simplify the habeas process for
federal prisoners. The section provides “a remedy [in the sen-
tencing court] exactly commensurate with that which had pre-
viously been available by habeas corpus in the court of the
district where the prisoner was confined.” Hill v. United
States, 368 U.S. 424, 427 (1962). Because a § 2255 motion is
“commensurate” with habeas relief, it may only be used to
collaterally attack a conviction and sentence “upon the ground
that the sentence was imposed in violation of the Constitution
UNITED STATES v. BERRY 17441
or laws of the United States.” 28 U.S.C. § 2255; see also
United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981)
(“[Motions under § 2255 are limited to:] (1) constitutional
issues, (2) challenges to the district court’s jurisdiction to
impose the sentence, (3) challenges to the length of a sentence
imposed in excess of the statutory maximum, and (4) claims
that the sentence is otherwise subject to collateral attack.”).
[2] The Supreme Court has repeatedly stressed the limits
of a § 2255 motion. For example, the Court has cautioned that
§ 2255 may not be used as a chance at a second appeal. See,
e.g., United States v. Addonizio, 442 U.S. 178, 184 (1979)
(“When Congress enacted § 2255 in 1948, . . . it did not pur-
port to modify the basic distinction between direct review and
collateral review.”). Further, short of proof of actual innocence,5
claims solely based on new evidence are generally not cogni-
zable on habeas. See Conley v. United States, 323 F.3d 7, 14
(1st Cir. 2003) (en banc) (“Merely to claim that new evidence
casts doubt, even grave doubt, on the correctness of a convic-
tion is not a ground for relief on collateral attack.”). Rather,
a motion under § 2255 must be based upon an independent
constitutional violation. See Herrera v. Collins, 506 U.S. 390,
400 (1993) (“[N]ewly discovered evidence . . . alleged in a
habeas application . . . must bear upon the constitutionality of
the applicant’s detention; the existence merely of newly dis-
covered evidence relevant to the guilt of a state prisoner is
not a ground for relief on federal habeas corpus.” (emphasis
in original) (quoting Townsend v. Sain, 372 U.S. 293, 317
(1963))); Turner, 281 F.3d at 872 (rejecting habeas claim
based upon newly discovered evidence because the petitioner
“neither allege[d] an independent constitutional violation nor
present[ed] affirmative proof of his innocence”).
5
This circuit recognizes a claim of actual innocence that is cognizable
under § 2255. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)
(en banc) (holding that a prisoner’s freestanding innocence claim must
“affirmatively prove that he is probably innocent”); see also Turner v.
Calderon, 281 F.3d 851, 872-73 (9th Cir. 2002). Berry does not argue that
his new evidence meets this standard.
17442 UNITED STATES v. BERRY
[3] With one exception, Berry’s § 2255 motion did not
allege an independent constitutional violation. Instead, Berry
claimed that Lundy’s perjury conviction and the FBI’s discon-
tinuation of CABL evidence called into doubt the overall
weight of the evidence against him. Such an evidence-based
claim, however, is not cognizable under § 2255. 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). Rule
33 also requires that a prisoner bring such a motion within
three years of the date of his guilty verdict. Id.
Berry, proceeding pro se before the district court, did not
appreciate the distinction between these motions. Thus, he
filed his § 2255 motion ten years after his conviction, raising
claims that were long-since barred by Rule 33’s three-year
period of limitations. Neither the district court nor the govern-
ment noticed that Berry was attempting to revive evidence-
based claims that had long since expired.
[4] The confusion of the parties and the district court was
doubtless aided by a sentence from our opinion in Jackson.
There, we stated, without elaboration, that a motion under
§ 2255 that raises evidence-based claims should be treated as
a motion for a new trial. 209 F.3d at 1106 (“We treat Jack-
son’s motion under 28 U.S.C. § 2255 as a motion for a new
trial.”). What we did not explain, however, because there was
no occasion to do so, was that the § 2255 motion in that case
had been filed within the time period allowed for new trial
motions, at that time two years from the date the mandate
issued from this court.6 Thus, we were free to treat the § 2255
6
Under the version of Rule 33 that existed at the time of Jackson’s §
2255 motion, Jackson had two years from the date the mandate issued
from this court to file his motion for a new trial. See United States v. Cook,
705 F.2d 350, 351 (9th Cir. 1983) (finding that, for purposes of former
Rule 33, “final judgment” was the date on which the “appellate court
issues its mandate of affirmance”). Jackson’s direct appeal was dismissed
on July 25, 1995, and the mandate issued on December 26, 1995. Thus,
Jackson’s § 2255 motion, filed on April 22, 1997, was filed well before
the deadline for new-trial motions established by former Rule 33.
UNITED STATES v. BERRY 17443
motion as a motion for a new trial because such a motion
would have been timely. That is not the case here; Berry filed
his motion almost ten years after his original conviction and
was therefore well out of time. See Fed. R. Crim. P. 33(b)(1)
(imposing limitations period of three years from date of con-
viction for motion for a new trial based upon newly discov-
ered evidence).
[5] Given this confusion, we now take this opportunity to
clarify our holding in Jackson. A district court may treat a
§ 2255 motion as a Rule 33 motion for a new trial. See Jack-
son, 209 F.3d at 1106. To do so, the § 2255 motion must be
timely under the provisions of Rule 33. But the Rule 33 time
limitation is not jurisdictional and is thus waivable if the gov-
ernment does not object to an untimely motion. Eberhart v.
United States, 546 U.S. 12, 13 (2005) (per curiam). Accord-
ingly, when a prisoner files a § 2255 motion that is untimely
under Rule 33, the district court may still treat it as a Rule 33
motion if the government has waived any objection to Rule 33
timeliness. With this clarification, we now turn to the merits
of Berry’s claims.
III. THE MERITS OF BERRY’S CLAIMS
As noted above, Berry’s § 2255 motion raised two claims.
First, Berry asserted that the CABL evidence was so scientifi-
cally unsound that it rendered his trial “fundamentally unfair,”
in violation of his due process rights. Second, he argued that
Lundy’s perjury and the FBI’s discontinued use of CABL evi-
dence undermines confidence in his guilty verdict. We find
neither argument convincing.
A. Berry’s Due Process Claim
[6] Berry’s motion raised a single claim that is cognizable
under § 2255: that the CABL evidence used at his trial was so
arbitrary as to render his trial fundamentally unfair.7 See Jack-
7
In addition to the above argument, Berry claims on appeal that the gov-
ernment committed a Brady violation when it failed to disclose that
17444 UNITED STATES v. BERRY
son v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008) (“Even if
the state court admitted the evidence in error, we cannot dis-
turb the state trial court’s admission of [evidence] on due pro-
cess grounds in a habeas proceeding unless the admission . . .
rendered the trial fundamentally unfair.” (internal quotation
marks omitted) (alteration in original)). We review the district
court’s denial of this claim de novo. United States v. Day, 285
F.3d 1167, 1169 (9th Cir. 2002).
[7] In order for Berry to succeed on his due process claim,
it is not enough that the evidence introduced against him was
of low probative value or was of questionable reliability.
Rather, Berry must establish that the evidence was so arbi-
trary that “the factfinder and the adversary system [were] not
. . . competent to uncover, recognize, and take due account of
its shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899
(1983), superseded on other grounds by 28 U.S.C.
§ 2253(c)(2).
In Barefoot, for example, the Court rejected the argument
that a psychologist could not testify as to a defendant’s future
dangerousness, despite the fact that the American Psychologi-
cal Association had submitted an amicus brief against the
practice. Id. at 896-902. In reaching this conclusion, the Court
noted that a psychologist’s future-dangerousness prediction
was not “almost entirely unreliable,” id. at 899, and empha-
sized the ability of the adversary process to determine the
appropriate weight that a psychologist’s testimony should
receive, id. at 901 (“We are unconvinced, however, at least as
of now, that the adversary process cannot be trusted to sort
out the reliable from the unreliable evidence and opinion
Berry’s brother, Loren Berry, was compensated for the testimony he gave
at Berry’s trial. Berry raised this claim for the first time in his reply brief
before the district court; he did not identify the claim in either his motion
or in his initial supporting memorandum. Because the Brady claim was not
included in his § 2255 motion, it was not addressed by the district court
and falls outside the scope of our certificate of appealability.
UNITED STATES v. BERRY 17445
about future dangerousness, particularly when the convicted
felon has the opportunity to present his own side of the
case.”).
We have also rejected a collateral attack that was based on
the introduction of evidence of questionable probative value.
In Mancuso v. Olivarez, 292 F.3d 939 (9th Cir. 2002), we
rejected the petitioner’s argument that his constitutional rights
were violated by the introduction at trial of his post-hypnotic
statements, despite our concerns about their reliability. Id. at
956. While we acknowledged the questionable nature of the
evidence, we emphasized that it was sufficiently reliable to
warrant recourse to the normal adversary process to expose
any flaws in the science. Id.; see also Barefoot, 463 U.S. at
899.
[8] While the CABL evidence introduced against Berry
may have been flawed, we do not find it so arbitrary as to ren-
der Berry’s trial “fundamentally unfair.” The criticisms of
CABL evidence that Berry relies on indicate that it is pre-
cisely the kind of evidence that the adversary system is
designed to test. Vigorous cross-examination would have
exposed its flaws to the jury.
The National Research Council’s criticisms certainly fit
this description. For example, the National Research Council
report cautioned that “[v]ariations among and within lead bul-
let manufacturers make any modeling of the general manufac-
turing process unreliable and potentially misleading in CABL
comparisons.” Nat’l Res. Council, supra, at 112. The report’s
most serious caution concerned the extent of the conclusions
CABL analysis could support:
The available data do not support any statement that
a crime bullet came from, or is likely to have come
from, a particular box of ammunition, and references
to “boxes” of ammunition in any form are seriously
misleading under Federal Rule of Evidence 403.
17446 UNITED STATES v. BERRY
Testimony that the crime bullet came from the
defendant’s box or from a box manufactured at the
same time, is also objectionable because it may be
understood as implying a substantial probability that
the bullet came from defendant’s box.
Id. at 113. Both of these criticisms could easily have been
brought out on cross-examination.
Other studies have provided more significant critiques of
CABL evidence, challenging some of the basic assumptions
that underlie the forensic technique. They do not, however,
establish that the science was “almost entirely unreliable.” For
example, some studies have taken issue with CABL’s
assumption that a block of lead is homogenous. See Clemons,
896 A.2d at 1076-77 (describing studies and concluding that
“the assumption that an ingot or vat of lead is homogenous as
required for [CABL] to be valid is not generally accepted by
the scientific community”). If a block is not homogenous,
then two bullets produced from the same melt might have dif-
ferent chemical profiles. Other studies have opined that “ana-
lytically indistinguishable” bullets could easily come from
different blocks of lead, leading CABL to generate a false
positive result. Id. at 1077-78.
These are undoubtedly significant criticisms of CABL evi-
dence. Berry, however, has not explained why he was pre-
vented from presenting such criticisms to the jury, either
through vigorous cross-examination or by calling his own
expert witness.
[9] Thus, while the above studies may caution against
widespread usage of CABL evidence, we do not believe they
establish that CABL evidence is so fundamentally unreliable
that its introduction at Berry’s trial violated his due process
rights. Indeed, the National Research Council concludes that
CABL analysis is still reliable enough to be used at trial:
UNITED STATES v. BERRY 17447
It is the conclusion of the committee that, in many
cases, CABL is a reasonably accurate way of deter-
mining whether two bullets could have come from
the same compositionally indistinguishable volume
of lead. It may thus in appropriate cases provide
additional evidence that ties a suspect to a crime, or
in some cases evidence that tends to exonerate a sus-
pect. CABL does not, however, have the unique
specificity of techniques such as DNA typing to be
used as standalone evidence.
Nat’l Res. Council, supra, at 109; see also id. at 112 (“CABL
is sufficiently reliable to support testimony that bullets from
the same compositionally indistinguishable volume of lead
(CIVL) are more likely to be analytically indistinguishable
than bullets from different CIVLs. An examiner may also tes-
tify that having CABL evidence that two bullets are analyti-
cally indistinguishable increases the probability that two
bullets come from the same CIVL, versus no evidence of
match status.”).
[10] In any event, even if CABL evidence were generally
unreliable, we would still be inclined to reject Berry’s due
process challenge based upon the reliability of the specific
testimony in his case. Lundy’s testimony was not susceptible
to any of the criticisms identified in the National Research
Council report. In particular, Lundy did not testify that the
CABL tests definitively linked Berry to the Planned Parent-
hood pipe bomb. In fact, she repeatedly stated that she could
not determine whether the buckshot from the bomb came
from the bags found in Berry’s shop. Instead, she testified
only that the buckshot from the two sources had identical
chemical profiles.
Lundy’s analysis was also highly individualized to the
unique factual circumstances of Berry’s case. She investigated
the precise manner in which Hornaday lead was manufactured
and adjusted her conclusions based upon that firm’s manufac-
17448 UNITED STATES v. BERRY
turing processes. Cf. Nat’l Res. Council, supra, at 112 (cau-
tioning against use of generalization in bullet manufacturing
process). Further, the fact that the pipe bomb contained buck-
shot allowed Lundy to test multiple samples and to compare
their chemical consistency; Lundy testified that she tested 26
pellets from the pipe bomb and 15 from Berry’s autoshop.
Finally, Lundy’s determination that the pipe bomb buckshot
was 3 percent antimony — a feature unique to Hornaday
buckshot — linked Berry to the pipe bomb regardless of the
CABL tests.
The reliability of Lundy’s testimony was also buttressed by
Hanson, who confirmed Lundy’s major conclusions. Hanson,
for example, testified that Hornaday was to his knowledge the
only manufacturer that used lead with 3 percent antimony.
And it was Hanson’s testimony that Hornaday shipped only
thirty-two bags of buckshot to the Spokane area that provided
the strongest connection between Berry and the Planned Par-
enthood pipe bomb.
Thus, the CABL evidence used against Berry does not
appear to suffer from the flaws to which the science may oth-
erwise be susceptible. Simply put, given the circumstances of
this case, Lundy’s conclusions were not overstated and appear
to be quite reliable.
[11] Based on the above, the criticisms of Lundy’s CABL
analysis concern the proper weight of the evidence, not its
admissibility. It can hardly be said, therefore, that the adver-
sary system was not “competent to uncover, recognize, and
take due account of its shortcomings.” Barefoot, 463 U.S. at
899. Accordingly, we reject Berry’s due process claim.
B. Berry’s New Trial Claim
[12] The remainder of Berry’s § 2255 motion concerns the
effect that the new evidence would have had on his trial, and
therefore falls into the realm occupied by new trial motions
UNITED STATES v. BERRY 17449
under Rule 33. Ordinarily, we would find Berry’s new-trial
claims well out-of-time, because he filed his § 2255 motion
almost seven years after a Rule 33 motion was due. Given that
Berry proceeded pro se before the district court, however, and
that the government did not specifically object to Berry’s
new-trial claims below, we hold that the government waived
its objection to the timeliness of those claims. See Eberhart,
546 U.S. at 13 (finding’s Rule 33’s time limits to be waivable
and not jurisdictional).
[13] We therefore treat the district court’s denial of Berry’s
§ 2255 motion as the denial of a motion for a new trial, which
we review for abuse of discretion. United States v. Mack, 362
F.3d 597, 600 (9th Cir. 2004). We conclude that the district
court did not abuse its discretion in finding the new evidence
Berry produced insufficient to warrant a new trial.
[14] To qualify for a new trial, Berry must establish: “(1)
the evidence is newly discovered; (2) the defendant was dili-
gent in seeking the evidence; (3) the evidence is material to
the issues at trial; (4) the evidence is not (a) cumulative or (b)
merely impeaching; and (5) the evidence indicates the defen-
dant would probably be acquitted in a new trial.” United
States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en
banc). The district court denied Berry’s motion on the ground
that the new evidence was both “merely impeaching” and
unlikely to result in an acquittal on retrial. We agree.
[15] For the reasons discussed above, we conclude that the
National Research Council report and the FBI’s discontinued
use of CABL evidence were no more than impeaching evi-
dence of the CABL testimony introduced at Berry’s trial. We
also reject Berry’s contention that the evidence of Lundy’s
false statement was more than “merely impeaching.” The
false statement occurred almost five years after Berry’s trial
and related to a bullet-manufacturing process that was not at
issue in his case. Further, Lundy was not accused of fabricat-
ing the results of any tests in this case, and there is no evi-
17450 UNITED STATES v. BERRY
dence that she committed perjury at Berry’s trial. Thus, there
is little doubt that the new evidence would only serve to
impeach her credibility on retrial.
Berry relies on three cases — Mesarosh v. United States,
352 U.S. 1 (1956), Williams v. United States, 500 F.2d 105
(9th Cir. 1974), and United States v. Chisum, 436 F.2d 645
(9th Cir. 1971) — for his argument that he deserves a new
trial. We have limited application of those cases, however, to
those “rare” situations “where the credibility of a key govern-
ment witness has been ‘wholly discredited’ by the witness’
commission of perjury in other cases involving substantially
similar subject matter.” See United States v. Krasny, 607 F.2d
840, 845 (9th Cir. 1979); see also United States v. Stofsky,
527 F.2d 237, 246 (2d Cir. 1975) (“[T]his court has noted that
Mesarosh is a sui generis case, involving that rare situation
where a key witness . . . had been conceded by the govern-
ment to have testified . . . in such a bizarre fashion as to raise
the inference that he was either an inveterate perjurer or a dis-
ordered mind.” (internal citations and quotation marks omit-
ted)). Lundy’s false statement, limited to one date at one trial,
is a far cry from this high standard.
[16] Finally, the new evidence would not “probably” result
in an acquittal if a new trial were granted. As outlined above,
significant circumstantial evidence connected the defendants
to the robberies and bombings. In fact, even without the
CABL evidence, there was sufficient evidence to support
Berry’s conviction. The district court did not abuse its discre-
tion by finding that Berry’s new evidence would not have
made any difference in the outcome of his trial.
IV. CONCLUSION
For the foregoing reasons, we reject Berry’s constitutional
challenge to his conviction and his request for a new trial. The
district court’s denial of his § 2255 motion is therefore
AFFIRMED.