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United States Court of Appeals For The Seventh Circuit
United States Court of Appeals For The Seventh Circuit
No. 21-2714
In the
United States Court of Appeals
for the Seventh Circuit
BRETT C. KIMBERLIN,
Defendant-Appellant.
ZACHARY A. MYERS
United States Attorney
Brian Reitz
Assistant United States Attorney
TABLE OF CONTENTS
Page No.
ARGUMENT ........................................................................................................ 9
A. Standard of Review................................................................. 9
CONCLUSION ................................................................................................... 20
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TABLE OF AUTHORITIES
Kimberlin v. United States, No. 21-1691 (CA7 D. 10, 16) (briefs) .................. 19
Royce v. Michael R. Needle P.C., 950 F.3d 939 (7th Cir. 2020) ....................... 13
United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019) ................................ 6, 7
United States v. Christie, 624 F.3d 558 (3d Cir. 2010) .................................... 19
United States v. Cowley, 814 F.3d 691 (4th Cir. 2016) .................................... 16
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United States v. Fabricant, 623 F. App’x 364 (9th Cir. 2015) ......................... 16
United States v. Fasano, 577 F.3d 572 (5th Cir. 2009) ...................................... 9
United States v. Fattah, 858 F.3d 801 (3d Cir. 2017) ...................................... 19
United States v. Fields, 761 F.3d 443 (5th Cir. 2014) ........................................ 9
United States v. Jordan, 594 F.3d 1265 (10th Cir. 2010) ...................... 9, 15, 16
United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982) ................................. 5
United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985) ............................... 5
United States v. Kimberlin, 781 F.2d 1247 (7th Cir. 1985) ..................... 4, 5, 16
United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986) ................. 4, 5, 14, 15
United States v. Kimberlin, 898 F.2d 1262 (7th Cir. 1990) ............................. 14
United States v. Nance, 2006 WL 5845651 (W.D. Va. Jan. 10, 2006) . 13, 17, 18
United States v. Pitera, 675 F.3d 122 (2d Cir. 2012) ......................................... 9
United States v. Pugh, 426 F. App’x 876 (11th Cir. 2011) ......................... 12, 17
United States v. Roberts, 417 F. App’x 812 (10th Cir. 2011) ........................... 16
United States v. Stallworth, 656 F.3d 721 (7th Cir. 2011) .............................. 18
United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004) ................................. 18
United States v. Taylor, 627 F.3d 674 (7th Cir. 2010) ..................................... 13
United States v. Thomas, 597 F. App’x 882 (7th Cir. 2015) .....................passim
United States v. Watson, 792 F.3d 1174 (9th Cir. 2015) .................................. 16
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Statutes
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Rules
Other
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JURISDICTIONAL STATEMENT
The United States District Court for the Southern District of Indiana had
with offenses under 18 U.S.C. §§ 701, 713, 842, 844, 912, & 922; 26 U.S.C.
§ 3600. (R. 3.) The district court denied the motion on June 12, 2020. (R.
38.) Kimberlin filed a motion to reconsider on June 22, 2020. (R. 39.) The
district court denied the motion to reconsider on September 3, 2021. (R. 43.)
44.) This Court has jurisdiction over this appeal under 28 U.S.C. § 1291.
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DNA testing, when he was no longer in custody and otherwise could not meet
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Earlier this year, this Court affirmed the district court’s denial of Kimberlin’s
59399 (7th Cir. Jan. 6, 2022) (order). Here, Kimberlin appeals the denial of
Kimberlin v. White, 7 F.3d 527, 528 (6th Cir. 1993); (R. 31). That moniker
In the worst incident, Kimberlin placed one of his bombs in a gym bag
and left it in a parking lot outside Speedway High School. Id. Carl DeLong
was leaving a high school football game with his wife when he attempted to
pick up the bag and it exploded. Id. The blast tore off his lower right leg and
two fingers, and embedded bomb fragments in his wife’s leg. Id. He was
1Throughout this brief, the government will make the following references:
(R. = District Court Docket Number); (A. Br. = Appellant’s Brief); (T. = Trial
Transcript).
2See also The Indianapolis Star, Bizarre plots planned by Speedway bomber:
Kimberlin case a maze of murder, deceit, available at
https://web.archive.org/web/20120526093504/http:/www.indystar.com/assets/
pdf/BG164276919.PDF (last visited August 24, 2021).
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hospitalized for six weeks, during which he was forced to undergo nine
operations to complete the amputation of his leg, reattach two fingers, repair
damage to his inner ear, and remove bomb fragments from his stomach,
chest, and arm. Id. at 528–29. In February 1983, DeLong committed suicide.
Id. at 529.
United States v. Kimberlin, 805 F.2d 210, 215–16 (7th Cir. 1986); United
States v. Kimberlin, 781 F.2d 1247, 1248 (7th Cir. 1985). He was tried over
the course of three trials in 1980 and 1981. (R. 31.) At the two-month trial
circumstantial, support for the guilty verdict.” Kimberlin, 805 F.2d at 216,
221.
compared Kimberlin’s hair to hair found near the bombing scene. (T. 6795,
6949–54, 6961.) As to four hairs, Oliver testified he could not “say positively
they are or are not” Kimberlin’s only that they are “sufficiently similar that,
in [his] professional opinion, they are from the same origin.” (T. 6959.) On
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[H]e is not afraid of the truth. Brett Kimberlin wanted the hair
analyzed. The Government didn’t. They didn’t care. Brett wanted
that hair analyzed. Okay, the hair may not have proven much at
all. We know what the hair testimony was, but Brett wasn’t
afraid to look for it.
(T. 7230.)
United States v. Kimberlin, 776 F.2d 1344, 1348 (7th Cir. 1985) (noting the
States v. Kimberlin, 675 F.2d 866, 867 (7th Cir. 1982); Kimberlin, 7 F.3d at
529.
as follows:
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can be met.
hair found at the bombing scene tested. See United States v. Kimberlin, IP
79-cr-7-01 (S.D. Ind. July 8, 2005) (McKinney, C.J.); (R. 27). In 2005, the
district court denied the motion because Kimberlin was no longer in custody.
(Id.)
Thirteen years later, Kimberlin filed a second motion under § 3600. (R.
3.) The impetus behind this motion was a 2012 Department of Justice (DOJ)
review, where the DOJ “review[ed] cases in which the government had
testimony that exceeded the limits of science.” United States v. Ausby, 916
U.S.C. § 3600(a)(10). (R. 10.) The district court, now with Judge Tanya
the motion on the merits.” (R. 20.) The government responded that
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The district court denied Kimberlin’s motion. (R. 38.) The court
explained that § 3600 does not apply to Kimberlin because he is “no longer
(Id.) The court also denied Kimberlin’s claim that the evidence was destroyed
in bad faith:
(Id.)
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The district court correctly denied Kimberlin’s motion for DNA testing.
Under the statutory text and operative federal regulations, § 3600 applies
imprisoned for over two decades—does not fall within § 3600’s ambit.
Here, Kimberlin hardly grapples with § 3600. He, instead, attacks his
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ARGUMENT
A. Standard of Review
This Court reviews the denial of a motion for DNA testing de novo, with
Thomas, 597 F. App’x 882, 884 (7th Cir. 2015) (order) (citing United States v.
Pitera, 675 F.3d 122, 128 (2d Cir. 2012) (applying clear error review); United
States v. Fasano, 577 F.3d 572, 575 (5th Cir. 2009) (same)).
pursuant to a conviction for a Federal offense,” may petition for DNA testing.
Fields, 761 F.3d 443, 481 (5th Cir. 2014); Pitera, 675 F.3d at 127–28; United
States v. Jordan, 594 F.3d 1265, 1268 (10th Cir. 2010); Fasano, 577 F.3d at
575).
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***
***
solely upon the applicant’s own assertion of innocence and a denial would
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Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 63
“sentenced to imprisonment”).
***
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28 C.F.R. § 28.22(b)(3).
released from any sentence in 2001, well before § 3600(a) was enacted. See
§ 3600 does not apply to him. See Osborne, 557 U.S. at 63.
Kimberlin says that § 28.22(b)(3) conflicts with § 3600. (A. Br. 15.) But
destroyed” “after a conviction becomes final and the defendant has exhausted
the length of direct review, § 28.22(b)(3) does not meaningfully conflict with
§ 3600.
destruction of the hair postdates the enactment of § 3600 (and the 1999 DOJ
directive Kimberlin cites). (R. 38.) Thus, the government “was not bound by
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876, 877 (11th Cir. 2011); United States v. Nance, 2006 WL 5845651, at *1
(W.D. Va. Jan. 10, 2006), (§ 3600A “does not express a command that it apply
Cir. 2006).
But jurisdiction is not waivable. Royce v. Michael R. Needle P.C., 950 F.3d
939, 950 (7th Cir. 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009));
Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (custody requirement for federal
habeas statutes is jurisdictional). Even so, the government did not waive this
statutory requirements for DNA testing. The district court did not rest its
decision on these grounds, but this Court “may affirm the judgment of the
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showing (1) good cause or (2) that a manifest injustice would occur if his
hair analysis review was grounds for good cause, Kimberlin waited four years
to file his motion after that report. (R. 3.) Despite being extraordinarily
litigious, see United States v. Kimberlin, 898 F.2d 1262, 1264 (7th Cir. 1990),
“strong” evidence of his guilt. Kimberlin, 805 F.2d at 221. That evidence was
not based on the hair analysis—which the government did not introduce.
Thomas, 597 F. App’x at 885. And, per Kimberlin at trial, the “hair may not
have proven much at all.” (T. 7230.) No manifest injustice has occurred.
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Kimberlin also cannot show that a DNA test of the hair would
§ 3600(a)(6), (8).
“place[d] a paper sack into a trash can at the sight of explosion No. 1,” and
materials used to make explosives like those used in the bombings were
And the hair analysis was not part of the government’s case-in-chief.
(T. 7230); see Thomas, 597 F. App’x at 885; United States v. Jordan, 594 F.3d
1265, 1268 (10th Cir. 2010). “So if [Kimberlin’s] DNA is not detectable on the
[hair], as he hopes, it does not call into question the strength of the evidence
against him because” it was not used to support the government’s evidence.
[Kimberlin’s] DNA on the [hair] would not definitively show that he never
[entered the car] or wasn’t involved in [the bombings].” Id. In light of the
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other evidence, “science alone cannot prove [him] innocent.” Osborne, 557
So, even if Kimberlin is right that the hair near the scene did not
belong to him, “it does not call into question the strength of the evidence
against him.” Thomas, 597 F. App’x at 885; cf. United States v. Cowley, 814
F.3d 691, 700–01 (4th Cir. 2016); United States v. Fabricant, 623 F. App’x
364, 365 (9th Cir. 2015) (unpublished) (citing United States v. Watson, 792
F.3d 1174, 1177 (9th Cir. 2015)); United States v. Roberts, 417 F. App’x 812,
hair. § 3600(a)(4).
hair were fruitless. (See R. 27.) That is not surprising considering Kimberlin
was released from prison 21 years ago and no statutory obligation existed to
True, the best practice would have been for the government to include
an affidavit on this point below. (See R. 38, p. 3.) But, considering the age of
Kimberlin’s conviction, the district court did not clearly err when finding the
evidence was destroyed. (R. 38.) Kimberlin cannot satisfy this requirement
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matter [because] there is nothing to test.” Thomas, 597 F. App’x at 884; see
also Pugh, 426 F. App’x at 877 n.2 (11th Cir. 2011); Nance, 2006 WL 5845651,
at *1.
Finally, Kimberlin raises several claims that would convert § 3600 into
Perry, 764 F. App’x 442, 442 (5th Cir. 2019) (“A motion for DNA testing that
333, 337 (5th Cir. 2002)); Melton v. United States, 359 F.3d 855, 857 (7th Cir.
collateral attack “no matter what title the [litigant] plasters on the cover.”).
§ 3600(h)(3). Thus, “[n]othing in this section shall provide a basis for relief in
§ 3600A(g). The sole question under § 3600 is whether a prisoner can meet
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the 10 requirements for testing (if so, then potential remedies kick in).
So Kimberlin’s due process claims are not cognizable here. Despite his
claims that the destruction of evidence warrants vacating his conviction, (A.
Br. 11–14), § 3600 “confers no authority to the courts to grant relief for
§ 3600A(g).
government does not have “an undifferentiated and absolute duty to retain
destruction of evidence, he would have to show “‘(1) bad faith on the part of
the government; (2) that the exculpatory value of the evidence was apparent
before the evidence was destroyed; and (3) that the evidence was of such a
721, 731 (7th Cir. 2011) (quoting United States v. Stewart, 388 F.3d 1079,
government destroyed the evidence 35 years ago. (R. 38.) And the evidence
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had no exculpatory value, certainly none that was apparent. See supra Part
I.D.2. Thus, no plausible reason existed to retain the evidence longer. See
His claims fail for other reasons as well. He cannot relitigate his coram
nobis arguments about whether the hair testimony itself was false. (A. Br.
16–30); see Kimberlin v. United States, No. 21-1691 (CA7 D. 10, 16.) Nor do
internal DOJ policies create due process rights. (A. Br. 16–30); see, e.g.,
United States v. Fattah, 858 F.3d 801, 813–14 (3d Cir. 2017) (citing United
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CONCLUSION
For the reasons stated above, this Court should affirm the judgment of
Respectfully submitted,
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complies with the type volume limitations required under Circuit Rule 32(c)
in that there are not more than 14,000 words using monospaced type in the
brief, that there are 3,678 words typed in Microsoft Word word-processing
s/ Brian Reitz
Brian Reitz
Assistant United States Attorney
Office of the United States Attorney
10 West Market Street, Suite 2100
Indianapolis, Indiana 46204-3048
Telephone: (317) 229-2434
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CERTIFICATE OF SERVICE
with the Clerk of the Court for the United States Court of Appeals for the
I further certify that some of the participants in the case are not
participant:
Brett C. Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817
s/ Brian Reitz
Brian Reitz
Assistant United States Attorney
Office of the United States Attorney
10 West Market Street, Suite 2100
Indianapolis, Indiana 46204-3048
Telephone: (317) 229-2434
22