The Honorable Harold D. Vietor, United States District Judge for the Southern 1 District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3970

___________
United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Dale Lynn Ryan, * * Appellant. *

___________ Submitted: April 16, 1998 Filed: August 20, 1998

___________ Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Dale Lynn Ryan appeals from the district court’s denial of his motion for a new 1 trial. We affirm.-2- I.

On J anuary 1, 1990, the Ryan Fun and Fitness Center (the Center) in Wes t Bu rlington, Iowa, was destroyed in a fire. Two members of the West Burlingto n Volunteer Fire Department were killed while fighting the fire. After an extensiv e investigation by federal, state, an d local authorities, Ryan, who was the manager of the Center, was charged wit

h arson. See 18 U.S.C. § 844(i). After a lengthy jury trial, he
was conv icted and sentenced to a 328 month term of imprisonment. Ryan appealed , and a divided panel of this court affirmed his conviction. See United States v. Ryan , 9 F.3d 660, 662 (8th Cir. 1993) ( Ryan I ). We granted rehearing en banc and vacated the panel opinion. Upon rehearing, we affirmed Ryan’s c onviction and reinstated the panel opinionas to the other issues that were not considered en banc. See United States v. Ryan , 41 F.3d 361, 362 (8th Cir. 1995) ( Ryan II)

. On October 30, 1996, Ryan file d a motion for a new trial pursuant to Rule 33 of the Fe deral Rules of Criminal Procedure based on newly discovered evidence. H e raised three arguments in the motion: ( 1) that the government had withheld exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963); (2) that newl y discovered scientific evidence warranted a new trial; a nd (3) that his conviction was the product of perjured or

false testimony. For a detailed summary of the facts underlying Ryan’s conviction and a description of the government’s case, see Ryan I , 9 F.3d a t 662-64. We will limit our discussion to the facts relevant to this appeal. On January 2, 1990, the morning a fter the fire, Carl Svenson and Richard Ward, special a gents for the Iowa Fire Marshal’s Office, began their investigation. Th e investigation eventually grew to include numerous local and federal agencies. Early on, Svenson and Ward formed the opinion that arson was the probable cause of the fire

. They suspected that a flamma ble liquid, or liquid accelerant, had been used to start the fire at various points in the building. This conc lusion was based on a variety of factors,Although the government characteriz es the tests as an “ad hoc” experiment run 2 during a firefighter traini ng session, we attach more significance to the demonstration. Svenson, with knowledge of the defense’s theory, invited a federal investigator and a photo grapher

to accompany him to a site that was more than 120 miles from Wes t Burlington. We agree with the district court that the tests were conducted, at least in part, because of the Ryan investigation. -3- including the presence of several deep, charred burn p atterns at various locations on the Center’s hardwood floors.

In March of 1990, while the ruins were being razed, Svenson removed a larg e sample of undamaged flooring from one of the Center’s racquetball courts and took it to the West Burlington fire station. In January of 1991, Ryan’s attorneys and fir e analysis expert were shown physical evidence that had been gathered and stored i n West Burlington, including this flooring sample. As its investigation continued, the government became aware that Ryan’s p lanned def ense was that the fire had been accidental and that its rapid spread throughout th e build ing was the product of what is known as a “flashover.” A flashover occurs when
a fire in an area produces sufficient heat to explosively ignite all of the combustibl e material within the area. The government also discovered that th e defense was planning to prove t hat the deep charring patterns were caused by burning materials falling from overhead structures, an occurrence known as “drop-down.” In July of 1991, approximately two months before Ry an’s trial, Svenson took the floor samples to a firefighter training session at a state training facility in Independence, Iowa. Sven son invited Chris Van Fleet, the lead agent in the federal government’ s investigation, and Donald Peterson, a photographer, to witness tests he had planned for the floo r samples. At the session, Svenson unsuccessfully tested the defense’ s 2 flashover theory. After he was unable to induce a flashover, he poured alcohol on the sample and ignited it. The fuel burned off, but left no deep charring in the sample.-4-

Svenson then put alcohol and other combustible materials, including pieces of a wall, on a piece of the floor sample a nd ignited it. This test resulted in deep charring similar to the patterns found at the fire scene. The government had no knowledge of these tests, and thus neither the fact nor the results of the tests were revealed to the defense before the trial.

One of the government’s expert witnesses, John Dehaan, a criminalist for th e California Department of Justice, testified at trial that the fire had multiple origins and that an accelerant had been used. Before the trial, however, he had expressed som e disagreement with Svenson and Ward’s theory regarding the cause of the deep charring on the hardwood floors. While Svenson and Ward theorized that the patterns resulted from a poured flammable liquid, Dehaan was of the opinion that not all of the patterns could be attributed exclusively to a flammableliquid. He identified the defense’s dropdown theory as a possible cause for some of the patterns. His difference o f opinion with Svenson and Ward was not disclosed to the defense.

The government’s case focused on evidence suggesting that the fire originate d in as many a s seven areas of the building. One of those areas, the Center’s sauna , co ntaineda large wooden floor grate. This grate’s post-fire condition revealed tha t althoughit had been badly charred on its topside, the underside of the grate was only slightly charred. Although defense counsel did not view the grate prior to the trial, they knew that it had survived the fire and that they could have examined it upon request.

On Augus t 23, 1991, Ryan filed a “Production/Brady Request” seekin g pro duction of, inter alia , tests, reports, evidence regarding burn patterns, and an y differing opinions of government ex perts. Ryan contends that the government’s failure to disclose the burn tests, Dehaan’s full opinion, the sauna grate, and other fire debris were covered by this request.-5- II.

We review a district court’s denial of a motion for new trial based on newl y discovered evidence for abuse of discretion. See United States v. Hiveley , 61 F.3 d 135 8, 1361 (8th Cir. 1995) (per curiam); United States v. Costanzo , 4 F.3d 658, 66 7 (8th Cir. 1993). This standard also applies where, as here, a defend ant seeks a new trial premised upon a Brady claim. See United States v. Stuart , No. 97-1671, slip op. at 3 (8t h Cir. July 31, 1998); United States v. Kern , 12 F.3d 122, 126 (8th Cir. 1993) ; United St ates v. Williams , 81 F.3d 1434, 1437 (7th Cir. 1996). This deferentia l standard o f review is especially appropriate in the context of a lengthy, hard-fought , highly charged case like the present one . As the Seventh Circuit observed in Williams : Having watched the jury as the y listened to the testimony, having listened to the testimony and the arguments himself, h aving his finger as it were on the pulse of the trial--a trial that occupied 28 days scattered over fou r mont hs--the district judge was in a better position than we to weigh th e imponderables involved in a judgment of prejudice.

81 F.3d at 1440.

A.

In Brady , the Supreme Court held that “the suppression by the prosecution o f evidence favorable to the accused upon request violates due proces s where the evidence is material either to guilt or topunishment, irrespective of the good faith or bad faith of the prosec ution.” 373 U.S. at 87. To establish a Brady violation, Ryan mus t demonstr ate that the government suppressed evidence, that the evidence wa s exculpatory, and that the evidence was material either to guilt or punishment. Se e UnitedStates v. Duke , 50 F.3d 571, 577 (8th Cir. 1995). Evidence is material under Brady“‘if there is a reasonable proba bility that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles v. Whitley ,-6-

514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley , 473 U.S. 667, 68 2 (1985) (opinion of Blackmun, J.)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Clemmons v. Delo , 124 F.3d 944, 9949 (8th Cir. 1 997) (citing Bagley , 473 U.S. at 682). However, materiality is not establishe d through the mere possibility that the suppressed evidence might have influenced th e jury. See Knox v. Iowa , 131 F.3d 1278, 1283 (8th Cir. 1997).

The dis trict court concluded, and the government appears to concede, that both the burn t ests and Dehaan’s disagreement with other government experts were both
excu lpatory and unavailable to Ryan. The question becomes, then, whether th e evidence was material under Bagley and Kyles . It is important to remember that a materi ality determination is not a sufficiency of evidence test. See Kyles , 514 U.S. at 434. It follows that once a constitutional error is found, we need not continue with a harmless-error

review. See id. at 435. These principles, however, do not restrict our consideration of

the untainted evidence that was presented to the jury. “Although it is not enough that the untainted evidence be sufficient for conviction, that evidence must not be ignor ed in the making of the determination whether there is a reasonabl e likelihood that the outcome would have been different had the government no t misbehaved.” Williams , 81 F.3d at 1438 (citations omitted). In other words, we must consider what the government’s case would have looked like if the defense had ha d
acce ss to the burn tests and had been aware of Dehaan’s disagreement with Svenso n and Ward.
Ryan co ntends that the cause of the floor burn patterns was vital to th e government’ s case: “Without multiple pools of liquid accelerant, as posited by th e Government at trial , there was no evidence of multiple or separate, simultaneous fires. The only way the government tried to prove these multiple pools of accelerants was the floor burn patterns.” Reply Brief for Appellant at 6. Our review of the record reveals
a diff erent depiction of the government’s case. In order to convict Ryan, th e government had to prov e beyond a reasonable doubt that he “maliciously [damaged orWe also observe that although Ryan strenuously asserts that the floor bur n 3 patterns were a key ingre dient to the government’s case, he undertook no burn testing of his own. -7- destroyed] . . . by means of fire or an explosive, any building, vehicle or other real or person al property used in interstate or foreign commerce or in any activity affectin g interstate or foreign commerce.” 18 U.S.C. § 844(i). We conclude that the presence of the floor burn patterns was merely a small part of the government’s effort to meet this burden. Some of the government’s strongest evidence came from several firefighters who tes tified about their experiences battling the flames. They recounted observing tw o distinct and separate glowi ng areas on the roof approximately 50 feet apart, low bluish flames in one room that would rekindle when doused with water, fires that require d inordinate amounts of water to extinguish, only to reignite, and an isolated interior fire withinthe Center’s sauna. The firefighters’ testimony contained no references to th e har dwood floor burn marks. Moreover, government experts testified regardin g nu merous clues that pointed to arson, including post-fire observations of several ho t spots, burn patterns on walls that appeared to burn in a downward direction, carpe t burns that were consistent with the use of a flammable liquid, and a post-fire analysis of the Ce nter’s structure that suggested a multiple-origin fire. The presence of th e hardwood fl oor burn patterns, then, was only a small part of the government’s well

supported theory that the fire was intentionally set. 3

We a lso note the limited exculpatory value of both the burn tests and Dehaan’s disagreement with other government experts. From the standpoint of controlled testing conditio ns, Svenson’s burn tests were performed under less-than-ideal circumstances. Addition ally, Svenson was unable to produce a flashover, the defense’s theory for the rapid spread of fire. Likewise, Dehaan’s initial misgivings about the cause of the burn patterns were adequately presented at trial. During vigorous cross-examination by-8-

Ryan’s couns el, Dehaan, although adhering to his opinion that an accelerant was used to start the fire, admitted th at some of the burn patterns could have resulted from dropdown. In light of the foregoing record, we conclude that the Brady evidence would have had a negligible impact on the jury’s decision. Thus, it is not reasonably probable that the evidence would have changed the outcome had it been disclosed. The district court therefore did not abuse its discretion in denying a new trial on this issue. See Kern , 12 F.3d at 126.
Ryan also argues that the government suppressed exculpatory evidence b y inadequately informing him that the sauna grate and other fire debris samples were in the government’s possession. We disagree. The record fully supports the distric t court’s fin ding that the sauna floor grate and the fire debris samples were no t suppressed. The defense was notified of their existence and that the items wer e available for inspection and testing. Ryan’s remaining Brady arguments lack merit and do not warrant furthe r discu ssion. Accordingly, we hold that the district court did not abuse its discretio n when it refused to grant Ryan a new trial based on the alleged Brady violations.

B. Ryan asserts that the district court erroneously denied his motion for a new trial based on new scientific evidence . His proffered scientific evidence, purportedly based upon new scientific principles, techniques, and technology, included burn tests an d computer model ing performed by his retained experts, as well as burn tests performed by government fire protection agencies.-9-

There ar e five prerequisites to the grant of a new trial on the ground of newl y discovered evidence: (1) the evidence must have be en discovered after the trial; (2) the failure to disc over must not be attributable to a lack of due diligence on the part of the movant; (3) the evidence must not be merely cumulative or impeaching; (4 ) the evidence must be material; and (5) the evidence must be likely to produce an acquittal if a new trial is granted. See United States v. Duke , 50 F.3d 571, 576-77 (8th Cir. 1995).
Ryan contends that the burn tests, which he maintains are based on ne w technol ogy, disprove the government’s theories of arson. We are not convinced , however, that the tests satisfy t he first prong of the newly discovered evidence inquiry. Ryan, who was afforded an adequate opportunity to conduct these types of tests prior to his trial, now seeks to retry his case in his motion for a new trial. His motion i s premised, not on the existence of newly discovered evidence, but on the possibility that such evidence wo uld have been revealed had he undertaken similar testing prior to his trial. This is an inadequate basis for the grant of a new trial.
Ryan a lso argues that computer modeling of the fire, technology purportedl y unavailable at the time of tria l, is newly discovered evidence that would likely produce an acquitta

l. We find his argument to be unpersuasive for a number of reasons. First, itis un likely that sophisticated computer modeling was unavailable in 1991. At th e hea ring on the motion for new trial, Fred Fisher, Ryan’s fire expert, testified that only throu gh recent advances in personal computer capabilities has this type of modelin g been made available. On cross-examination, however, Fisher admitted that modeling may have been possible on larger computers at the time of trial. Second, compute r modeling is only as reliable as the raw data that are entered into the modeling program. The government’s cross-examinati on of Fisher exposed a number of weaknesses in the assumptions he made prior to modeling the fire. Finally, we conclude that the record before us does not warrant characterizing a computer fire model as newly discovered evidence. Both the raw data and the controlling scientific principles of the fire were-10-

availab le before trial. Absent a more detailed explanation of technological issue s involved, we are unwilling to conclude that the processing of the data via a computer algorithm constitutes newly discovered evidence. The c omputer technology is not itself newly discovered evidence, but rather creates a method to present evidence -- evidence that was available prior to Ryan’s trial. Accordingly, we hold that the district court did not abuse its discretion in denying Ryan’s motion for a new trial based on newl y discovered evidence.

C. Finally, Ryan argues that his conviction was t he product of the government’s use of perjured testimony. We conclude that his arguments lack merit and warrant littl e discussion

. Although Ryan asserts that the trial testimony of Larry Garmoe, a Wes t Burlingt onpolice officer who assisted in the investigation of the case, was false, w e have no b asis upon which to conclude that Garmoe’s testimony, though inconsisten t with the reco llections of a number of his fellow investigators, rose to the level o f perj ury. See United States v. Martin , 59 F.3d 767, 770 (8th Cir. 1995) (“A challenge to ev idence through another witness or prior inconsistent statements is insufficient t o establish prosecuto rial use of false testimony”); United States v. White , 724 F.2d 714, 717 (8th Cir. 1984) (per curiam). Similarly, we conclude that Ryan’s remaining falsetestimony arguments fail to demonstrate perjury on the part of government witnesses. The judgment is affirmed. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.