United States v. Berry

In United States v. Berry, 624 F.3d 1031, 1039-43 (9th Cir. 2010), the defendant was accused of perpetrating a series of robberies and terroristic attacks that employed, among other weapons, pipe bombs filled with "buckshot," which are lead pellets traditionally used in shotgun shells. 624 F.3d at 1033-34. When Berry and his accomplices were apprehended, federal agents found in their vehicle a number of firearms, grenades, and ammunition, as well as incriminating letters. Id. at 1034-35. Agents later discovered more incriminating evidence at the suspects' residences, including fuses of the kind used in the attacks, propane canisters identical to one found in a failed incendiary device at one of the crime scenes, anti-government propaganda, and miscellaneous clothes and weapons matching eyewitness and video evidence of the attacks. Id. at 1035. The suspects were indicted and tried together in 1997, and the government used CBLA tests to compare buckshot used in one of the pipe bombs with buckshot found in Berry's auto shop. Id. at 1035-36. The Berry Court described the CBLA evidence, as follows: Kathleen Lundy, a forensic examiner formerly with the FBI, testified that the buckshot pellets found at the two locations were chemically "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 buckshot found in Berry's shop indicated that it came from Hornaday 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 composition 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, confirmed 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, Hanson testified that Hornaday was the only buckshot manufacturer 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, Washington, 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 Parenthood pipe bomb to thirty-two bags, two of which were in Berry's possession. (Id. at 1035-36.) On appeal from postconviction proceedings, Berry argued that the CBLA evidence used at his trial was so arbitrary as to render his trial fundamentally unfair. Id. at 1040. The Berry Court explained that due process is violated only when the evidence is so arbitrary that the factfinder and the adversary system were not competent to uncover, recognize, and take due account of its shortcomings. Id. After reviewing the criticisms of CBLA explained above, the Ninth Circuit held: While the CBLA evidence introduced against Berry may have been flawed, we do not find it so arbitrary as to render Berry's trial "fundamentally unfair." The criticisms of CBLA evidence that Berry relies on indicate that it is precisely the kind of evidence that the adversary system is designed to test. Vigorous cross-examination would have exposed its flaws to the jury. Id.