UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-7297

JEFFREY R. MACDONALD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
James C. Fox, District Judge.
(CR-75-26, CA-90-104-3-F)

Submitted: July 31, 1998

Decided: September 8, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Wade Marvin Smith, Melissa H. Hill, THARRINGTON, SMITH,
L.L.P., Raleigh, North Carolina; Roger C. Spaeder, Bonnie Ilene
Robin-Vergeer, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAY-
LOR & KOLKER, Washington, D.C.; Harvey A. Silverglate, Philip
George Cormier, Andrew Good, SILVERGLATE & GOOD, Boston,
Massachusetts; John J.E. Markham, II, MARKHAN & READ, Bos-
ton, Massachusetts, for Appellant. Brian M. Murtagh, John F. DePue,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jeffrey MacDonald appeals the district court's order denying his
motion to reopen his second habeas corpus petition, denied by the dis-
trict court in 1991 and affirmed by this Court in United States v.
MacDonald, 966 F.2d 854 (4th Cir. 1992). His motion is based on
newly discovered evidence purporting to demonstrate MacDonald's
innocence and that agent Michael Malone of the Federal Bureau of
Investigation perpetrated a fraud upon the district court and this Court
which led to the denial of MacDonald's 1990 petition for habeas cor-
pus relief. The district court denied the motion based on its finding
that MacDonald could not establish fraud upon the court, but con-
strued MacDonald's claims of innocence as another request for
habeas relief, requiring consideration by this Court under the succes-
sive habeas provisions of 28 U.S.C.A. § 2244 (West Supp. 1998). We
denied leave to file a successive habeas petition by order on Octo-
ber 17, 1997, but in the same order remanded to the district court for
the limited purpose of permitting MacDonald to conduct DNA test-
ing. See In re Jeffrey MacDonald, No. 97-713. Hence, this appeal is
limited to consideration of MacDonald's claim of fraud upon the
court.

We need not restate here the extensive facts and procedural history
of this case. Thus, we recount only that which is necessary to under-
stand the issues raised in this appeal. MacDonald has steadfastly con-
tended since the time of the murders that his family was killed by a
group of intruders that included a blond woman wearing a floppy hat.
The defense believes this blond woman to be Helena Stoekley, who

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on numerous occasions confessed to participating in the murders with
a group of men.

When the defense called Stoekley to the stand during MacDonald's
trial, she testified that, due to heavy drug use, she could not remember
her whereabouts during the hours the murders were committed. The
defense attempted to call witnesses to whom Stoekley had confessed
her participation in the murders to testify, but the district judge, after
conducting a voir dire examination of the proposed witnesses, would
not allow their testimony because of Stoekley's unreliability and the
absence of evidence corroborating her claims that she was in the Mac-
Donald home on the night of the murders.

In his 1990 petition, MacDonald alleged that the prosecution with-
held from the defense evidence which could have corroborated Stoek-
ley's presence in the MacDonald home at the relevant time, in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and Alcorta v.
Texas, 355 U.S. 28 (1957). MacDonald asserted, specifically, that the
Government withheld laboratory notes referencing the presence of
three blond synthetic hairs made of a substance called saran, found in
a clear handled hairbrush in the kitchen of the MacDonald home, as
well as unsourced black and green fibers found on the murder weapon
and the body of Collette MacDonald. See MacDonald, 966 F.2d at
856-57.

The district court denied the 1990 petition on the grounds that the
fiber evidence at issue was not material, that the Government violated
no duty to disclose exculpatory evidence, and because the petition
was barred under the abuse of the writ doctrine. See United States v.
MacDonald, 778 F. Supp. 1342 (E.D.N.C. 1991). We affirmed on
abuse of the writ grounds, agreeing with the district court's assess-
ment that MacDonald failed to establish cause for failing to raise his
claims earlier, and further agreeing with the district court that the hair
and fiber evidence at issue were insufficient to make a colorable
showing of factual innocence so as to place this case within the funda-
mental miscarriage of justice exception to procedural bar provided in
McCleskey v. Zant, 499 U.S. 467 (1991).

Both the district court's opinion and this court's opinion relating to
the 1990 petition reference affidavits submitted by agent Malone on

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behalf of the Government. In those affidavits, Malone cites to the var-
ious sources and factors he considered in arriving at his conclusion
that the blond fibers found in the hairbrush did not come from a cos-
metic wig, but likely came from a doll. In his motion to reopen, Mac-
Donald asserts that since the denial of his 1990 petition, he has
discovered new evidence that Malone's affidavits contained false
statements which misled the district court and this court about the
strength of his claims of innocence, which bear on the application of
the abuse of the writ doctrine. MacDonald avers that Malone's failure
to disclose this information constitutes a fraud upon the court, and
warrants reopening his 1990 petition under Fed.R.Civ.P. 60(b)(6).

The allegedly new evidence relevant to MacDonald's fraud claims
consists of two reference texts containing statements contrary to some
of Malone's statements about saran and documents reflecting inter-
views the Government and the defense team conducted with a manu-
facturer of synthetic fibers and two employees of Mattel Toys, Inc. In
denying MacDonald's motion to reopen, the district court found that
the new evidence was not material to the disposition of the 1990 peti-
tion, and that none of the facts asserted by MacDonald, viewed in a
light most favorable to him, established fraud upon the court by clear
and convincing evidence.

Initially, we reject MacDonald's assertion that the district court
should have applied a less demanding standard of proof. It is settled
that the clear and convincing standard applies in Rule 60(b)(3) cases
alleging fraud upon the court. See Shepherd v. American Broadcast-
ing Cos., Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995) (collecting cases);
Square Const. Co. v. Washington, 657 F.2d 68, 71 (4th Cir. 1981).
The policies underlying the application of that standard in Rule
60(b)(3) cases apply with as much, if not greater force, in cases alleg-
ing fraud under the savings clauses of Rule 60(b). See Booker v.
Dugger, 825 F.2d 281, 284 n.4 (11th Cir. 1987). We are also mindful
of MacDonald's belief that the district court could not find this stan-
dard satisfied without conducting an evidentiary hearing, which it did
not do. We find, however, that the district court could properly deny
the motion if, assuming the new facts MacDonald asserts to be true,
such facts could not establish fraud by clear and convincing evidence.
See Madonna v. United States, 878 F.2d 62, 64-65 (2d Cir. 1989).

                    4
We also reject, however, the Government's position that MacDon-
ald's motion alleging fraud upon the court is foreclosed under the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-032, 110 Stat. 1214 ("AEDPA"). The Government contends that
MacDonald is effectively attempting to circumvent the amended ver-
sions of 28 U.S.C.A. §§ 2244 and 2255, requiring leave from the
court of appeals before filing a successive petition, by proceeding
under Rule 60(b), in violation of the AEDPA's finality goals. As the
Government points out, however, courts recognized, even before the
AEDPA, that an aggrieved party may not circumvent the rules prohib-
iting successive habeas petition by simply labeling such a petition as
a Rule 60(b) motion. See Felker v. Turpin, 101 F.3d 657, 661 (11th
Cir. 1996). Nonetheless, this did not prevent a party who had previ-
ously filed a habeas petition from asserting that a prior petition had
been denied based on fraud, unless the grounds for fraud themselves
should have been raised in an earlier proceeding. See Booker, 825
F.2d 281 (11th Cir. 1987). The AEDPA does not alter these consider-
ations, and the Government cites no case, before or after the AEDPA,
in which a defendant's claims of fraud upon the court under Rule
60(b)(6) were found to be barred under the abuse of the writ doctrine.

The abuse of the writ doctrine bars new actions based on claims
that should have been raised earlier. Actions alleging fraud upon the
court, by contrast, attack the validity of a prior judgment, based on the
theory that "a decision produced by fraud on the court is not in
essence a decision at all and never becomes final." See 11 Wright and
Miller, Federal Practice and Procedure § 2870 at 409 (1995) (quoting
Kenner v. Commissioner of Internal Revenue, 387 F.2d 689, 691 (7th
Cir. 1968)). Hence, different finality considerations apply to these dis-
tinct actions. We therefore find that neither the abuse of the writ doc-
trine, nor any codification of that doctrine through the AEDPA, acts
as an absolute bar to a litigant's right to attempt to reopen a previ-
ously denied habeas petition on grounds that the court's decision was
the product of a fraud upon the court.

The precise elements of such a claim are somewhat nebulous. We
have said that fraud upon the court is "typically confined to the most
egregious cases, such as bribery of a judge or juror, or improper influ-
ence exerted on the court by an attorney, in which the integrity of the
court and its ability to function impartially is directly impinged."

                    5
Great Coastal Exp. v. International Broth., Etc., 675 F.2d 1349,
1355-56 (4th Cir. 1982). MacDonald contends that he need only show
that Malone acted with reckless disregard for the truth in order to pre-
vail in this case. While the Sixth Circuit's decision in Demanjuk v.
Petrovsky, 10 F.3d 338, 349 (6th Cir. 1993), supports this position,
that decision represents a minority view. See Robinson v. Audi
Aktiengesellschaft, 56 F.3d 1259, 1266-67 (10th Cir. 1995). More-
over, it is at odds with our decision in Great Coastal, where we
rejected a claim of fraud upon the court because"we cannot say that
the fraud in this case presents a deliberate scheme to directly subvert
the judicial process." Great Coastal Exp., 675 F.2d at 1356.

Our decision in Great Coastal Express requires that MacDonald at
least establish that the fraud was material and deliberate. Id. at 1353-
56. We agree with the district court's finding that MacDonald cannot
establish that evidence regarding the source of the saran fibers was
material to the district court's 1991 decision. Judge Dupree left no
doubt that even if evidence tending to corroborate MacDonald's
claims of intruders existed, it would not have changed his decision to
exclude Stoekley's out of court admissions, because the "primary rea-
son" for the exclusion was Stoekley's "utter unreliability" on the
stand. See United States v. MacDonald, 778 F.Supp. 1342, 1352
(E.D.N.C. 1991). We have also previously concluded that Stoekley's
pretrial and post trial statements would not have produced a different
result, and that such evidence was properly excluded at trial. See
United States v. MacDonald, 779 F.2nd 962, 964-65 (4th Cir. 1985).

Moreover, the evidence at issue is not truly exculpatory. It does not
directly bear on the question of innocence but rather provides some
evidence to support the theory that the hairs found in the hairbrush
came from a wig. The evidence, however, is not particularly compel-
ling on this point, as much of it is equivocal and contradictory regard-
ing the uses of saran, and the overall weight of the evidence still
suggests that the fibers most likely did not come from a human wig.
Even if it is accepted that the fibers came from a human wig, how-
ever, this fact does little more to prove MacDonald's claim of inno-
cence because it merely provides some support for yet another
theoretical possibility; that the wig fibers found in the hairbrush came
from an intruder.

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In our most recent decision in this case, we stated:

          The most that can be said about the evidence is that it raises
          speculation concerning its origins. Furthermore, the origins
          of the hair and fiber evidence have several likely explana-
          tions other than intruders. The evidence simply does not
          escalate the unease one feels with this case into a reasonable
          doubt.

United States v. MacDonald, 966 F.2d at 860.

At the time that we made this comment, MacDonald had already
alerted us to the previously mentioned Dembeck and Stout reference
texts, and the parties had addressed their significance at oral argument
and in written submissions to the court. Thus, it was already clear that
the defense might be able to adduce further evidence that saran could
be used to make human wigs. Because the evidence MacDonald relies
on to support his motion to reopen simply creates further speculation
about the origin of the saran fibers in the hairbrush, we find that such
evidence is not material to the question of his innocence, and there-
fore was not material to the outcome of his 1990 petition for habeas
corpus relief. We therefore hold that the district court properly denied
MacDonald's motion to reopen on materiality grounds.

We also conclude that the district court properly found that Mac-
Donald failed to present facts which could clearly establish that
Malone deliberately deceived the district court or this court. There is
no evidence that Malone ever consulted the Dembeck and Stout texts,
so it is irrelevant that those texts contain statements contrary to the
texts Malone consulted and cited to support the statements he made
in his affidavits. Although MacDonald avers that the Government
listed the Dembeck and Stout texts among the items it actually
reviewed in connection with his case in response to his request for
such documents under the Freedom of Information Act ("FOIA"), the
record discloses that MacDonald's FOIA requests were sufficiently
broad as to also request relevant information which was not reviewed
by the Government.

Information derived from Edward Oberhuas, an executive at
Kaneka America Corporation, which produces modacrylic fibers for

                    7
use in making wigs, provides even less support for MacDonald's case.
MacDonald's FOIA requests uncovered the FBI's interview summary
("Form 302") of its conversations with Oberhaus, reflecting that he
told investigators that he was familiar with the production and use of
saran fibers, presently and before 1969-70. He further stated that
saran could not be produced as a "tow" fiber (which is essential to the
wig-making process) but could only be made as a continuous filament
fiber unsuitable for the manufacturing of cosmetic wigs. He further
stated that to the best of his knowledge, saran has never been used to
make cosmetic wigs.

When, however, the FBI drafted an affidavit consistent with the
information in its 302 form, Oberhaus refused to sign it, because he
did not consider himself an expert on the uses of saran. Oberhaus then
drafted his own affidavit for the Government, stating that wigs made
from 1960 forward were "most often ... manufactured with human
hair, modacrylic fibers, other fibers or a combination of any of these
filaments." During the defense's conduction of its investigation to
support MacDonald's motion to reopen, Oberhaus told them that he
recalled telling the Government's investigators that saran fibers were
used in the doll industry, but that this did not mean that they were not
also used in the wig industry.

Neither the information in Oberhaus' form 302, nor the statements
made in the affidavit he personally prepared, contradict any statement
made by Malone. In fact, they are supportive of Malone's affidavits.
Moreover, the fact that Oberhaus refused to sign the Government's
affidavit does not mean that he retracted or recanted his prior beliefs.
There are a variety of possible motives for this decision, not the least
likely of which is Oberhaus' explanation that he did not consider him-
self sufficiently expert for the Government to rely on him. Finally,
Oberhaus' comment to the defense during its independent investiga-
tion lacks probative value.

For the most part, the statements of Schizas and Philips also do not
contradict Malone's affidavits. Both acknowledged that saran is pri-
marily used to make doll hair, rather than cosmetic wigs. And while
both did state that they were unaware of any doll made by Mattel hav-
ing hair of the length of the fibers found in the clear handled hair-
brush (22 and 24 inches), Schizas told investigators that it was

                    8
possible that a hair of such length could have come from a doll if the
hair was doubled over in the rooting process. She thought this to be
possible but not probable, however, because it would be difficult to
extract a hair of such length from a doll without breaking the fiber.
Because none of these statements directly contradict Malone's affida-
vits, we find them insufficient to even potentially establish fraud upon
the court.

As the district court noted, the only statement from either Schizas
or Philips which directly contradicts Malone's affidavits is Philips'
statement to the defense team that she recalls telling Government
investigators that saran could be manufactured in tow form. To con-
clude that this statement establishes fraud requires an enormous leap.
There is some question whether Philips in fact made this statement.
Her 302 form does not reflect it, and MacDonald has not alleged that
the Government falsified these forms. Moreover, her statement is
based on a recollection made many years after the fact.

Assuming, however, that Philips made the statement, it still could
not constitute clear and convincing evidence of fraud. There is no
indication that Philips was an expert on manufacturing techniques,
and both the manufacturing expert (Oberhaus) the Government con-
sulted as well as the six reference texts reviewed by Malone contra-
dicted this opinion. Viewed in the context of the other evidence
before him, Philips' comment is insufficient to support the conclusion
that Malone knew his statements regarding the uses of saran to be
false. Accordingly, we find insufficient evidence in this record to
even potentially establish that the Government, through agent
Malone, deliberately deceived the court.

We also conclude that under the circumstances of this case, Mac-
Donald must bear accountability for his failure to present his claims
of fraud in his previous petitions. Even actions under the savings
clauses of Rule 60(b) must be brought within a reasonable time under
the rule. Fed.R.Civ.P. 60, Advisory Note, Subdivision (b). While
there is authority stating that an action for fraud upon the court will
not be barred due to party dilatoriness if the evidence of injustice is
"practically conclusive," see Booker, 825 F.2d at 284, or where the
fraud at issue would cause injury to the public, see Hazel-Atlas Glass

                    9
Co. v. Hartford-Empire, 322 U.S. 238, 246 (1944), we find these
exceptions inapplicable to this case.

As we noted in our most recent decision in this case, lab notes
relating to the synthetic blond hairs at issue were seen and passed
over by counsel during MacDonald's first habeas appeal. We
observed that the defense team considered the significance of this evi-
dence at the time but deliberately bypassed the opportunity to use it.
United States v. MacDonald, 966 F.2d at 860. Also, this is not a case
where the Government's exclusive control of the evidence should
have prevented the defense from uncovering the alleged fraud. The
defense team apparently discovered the Dembeck and Stout texts in
a public library. And while MacDonald's lawyers could not be
expected to know of specific individuals the government interviewed
within the manufacturing and retail sectors of the wig and synthetic
fiber industries, access to persons with similar if not the same infor-
mation has always been just as available to the defense as it was to
the Government. Indeed, MacDonald's lawyers now attempt to sub-
mit such independently acquired evidence.

We are aware that the acquisition of merely contradictory evidence
would not necessarily constitute evidence of fraud. But the defense
team has been reviewing the Government's evidence through requests
under the Freedom of Information Act since 1982, see United States
v. MacDonald, 778 F.Supp. at 1347, and should have been able to
uncover, at least prior to MacDonald's second petition, not only evi-
dence which merely contradicted Malone's statements but also the
very same evidence now presented in support of the motion to reopen.
MacDonald's attorneys were obligated to investigate all reasonable
grounds for relief in connection with MacDonald's previous petitions.
See Booker, 825 F.2d at 285. Their failure to do so provides another
reason why the motion to reopen was properly denied.

We therefore affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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