                   United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3495
                         ___________________________

                                 Deborah L. Masten

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 14, 2014
                               Filed: May 28, 2014
                                 ____________

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 F.
App’x 640, 642 (8th Cir. 2008). Masten then filed a motion for new trial followed
by a motion to vacate the conviction, see 28 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 (1963); and that trial
counsel provided ineffective assistance in failing to discover it. After an evidentiary
hearing, the district court1 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 F. App’x 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


      1
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

                                           -2-
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


                                         -3-
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.


                                          -4-
       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



                                          -5-
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 Masten went over the DVD copy repeatedly before trial “and
couldn’t make much out of it,” and that the original VHS copy as well as the DVD

                                          -6-
copy were admitted into evidence at trial. The court then denied Brady relief,
concluding that in the absence of evidence the government intended to mislead, “it
was sufficient for purposes of Brady for [the prosecutor] to disclose to the defense
that there was an original out there and having done that, arrangements could have
been made for the original to be viewed by [defense counsel] and Miss Masten.”

                                         II.

        The conviction of a person in custody2 will be vacated if it “was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).
Masten argues on appeal that the government violated its due process obligation
under Brady. To establish a Brady violation, Masten bears the burden of showing
that the government suppressed evidence, either willfully or inadvertently; that the
evidence was favorable to her, either because it was exculpatory or impeaching; and
that it was material to the outcome at trial. See Strickler v. Greene, 527 U.S. 263,
281-82 (1999); United States v. Walrath, 324 F.3d 966, 969 (8th Cir. 2003). Masten
argues the government suppressed exculpatory evidence shown on the original
videotape (as enhanced by Dr. Edwards) by representing that the DVD copy was a
fair and accurate copy of the original, and that the suppressed exculpatory evidence
was material because it would have discredited testimony by Trooper Berry that was
critical to the government’s proof that Masten “was the last one at Too Talls before
the fire.”

      We agree with the district court’s resolution of this issue. First, as the court
carefully explained, the record is clear that the government produced trial Exhibit
118, the DVD copy, a week before trial. “A [§ 2255 petitioner] fails to show the


      2
       Although Masten’s criminal case was later terminated, she was on supervised
release when the § 2255 motion was filed, satisfying the statute’s “custody”
requirement. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997).

                                         -7-
prosecution suppressed evidence when the defendant was aware of and had access to
the evidence.” Walrath, 324 F.3d at 969. Masten’s trial attorney testified that he and
Masten viewed the DVD’s poor quality images before trial, were aware the DVD disc
was copied from the original surveillance video, and made no attempt to view the
original. As in Walrath, “The [original] videotape was not suppressed. Before trial
[it] was acknowledged and made available . . . . [Masten] chose not to view it.” Id.;
see United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993).

       Second, ATF Agent Zornes had the DVD copy created for a legitimate purpose,
viewed the copy after it was created, and concluded that it accurately represented
what the original VHS tape depicted. “[T]he prosecutor’s absolute duty to disclose
under Brady is limited to evidence a reasonable prosecutor would perceive at the time
as being material and favorable to the defense.” Villasana v. Wilhoit, 368 F.3d 976,
979 (8th Cir. 2004), cert. denied, 543 U.S. 1153 (2005). In that case, test documents
underlying non-exculpatory [lab] reports “contained clues that led [defendant’s]
expert to conduct DNA testing the State elected not to perform. On their face,
however, the documents had neither exculpatory nor impeachment value, and ‘the
police do not have a constitutional duty to perform any particular tests.’” Id., quoting
Arizona v. Youngblood, 488 U.S. 51, 59 (1988). Similarly here, the government had
no constitutional duty to perform the enhancement later performed by Dr. Edwards
searching for “clues” the DVD copy failed to disclose. “‘To hold otherwise would
impose an insuperable burden on the Government to determine what facially non-
exculpatory evidence might possibly be favorable to the accused by inferential
reasoning.’” Villasana, 368 F.3d at 979; see Youngblood, 488 U.S. at 55; United
States v. Agurs, 427 U.S. 97, 109-10 (1976).

       Finally, we note that the VHS video was admitted at trial as Exhibit 23. Agent
Zornes was available at trial to explain, as he did at the post-conviction hearing, that
the original video was copied to make the surveillance evidence easy to present and
more understandable at trial, and the process by which the DVD copy was produced.

                                          -8-
It “never crossed my mind,” Zornes testified, “that [the] DVD was not an accurate
representation of what the VHS tape depicted.” Likewise, Officer Fleshman, after
viewing the DVD copy at trial, testified it was a “fair and accurate” copy of the
original video he saw the day after the fire. We find it hard to imagine a clearer case
of failure to prove that the government “suppressed” evidence in violation of Brady,
regardless of how exculpatory or material evidence only disclosed by the original
videotape might have been.

        We further note that Dr. Edwards’s opinion that the original tape contained
favorable information not disclosed on the DVD copy was based on his enhancement
of the VHS original. Masten totally failed to prove what additional information the
jury would have gained by viewing the unenhanced VHS original at trial. This is
fatal to a claim that “material” evidence was suppressed, which requires proof of “a
reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’” Strickler, 527 U.S. at 280.

       Beyond that, we find Masten’s claim of materiality unpersuasive. According
to Dr. Edwards, the original footage (as enhanced) casts doubt on Trooper Berry’s
testimony that he saw Masten at the corner, nearer the front door, rather than crossing
in the middle of the street as she likely would after exiting the back door. But at trial,
Masten confirmed Berry’s testimony that she waved to him, and he waved back, as
she walked to her car. Berry did not testify that he saw Masten come out of the front
door, so the original video would establish, at most, a minor mistake in the
recollection of a witness who was not central to the government’s case. The other
discrepancy allegedly established by Dr. Edwards’s enhancement was that Trooper
Berry drove past the front entrance of Too Talls after leaving the parking lot, instead
of turning west as he testified. But it is undisputed that Berry drove away before
anyone detected the fire, so impeaching him on this point seems hardly material to
whether Masten, the last employee to leave Too Talls, had motive and opportunity to
start the fire. Despite Masten’s argument to the contrary, we are unable to see a

                                           -9-
reasonable probability that this partial discrediting of Berry’s testimony would have
produced a different result. See Strickler, 527 U.S. at 291.

      The judgment of the district court is affirmed. We grant Masten’s motion to
supplement the appendix on appeal.
                     ______________________________




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