USA v. Riedel-Byler et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DARREN K. BYLER,
Defendant.
Case No. 3:15-cr-00008-SLG
ORDER REGARDING 28 U.S.C. § 2255 MOTION (CLAIM 2)
Before the Court at Docket 292 is Defendant Darren K. Byler’s Amended
Motion to Vacate Pursuant to 28 U.S.C. § 2255. The government responded in
opposition at Docket 303. Mr. Byler replied at Docket 306. Mr. Byler raises two
claims. This order addresses only Claim 2.1
I. Procedural background
In February 2015, Mr. Byler was indicted on one count of violating the
Refuse Act and one count of making False Statements.2 In December 2015,
after nine days of testimony, a jury convicted Mr. Byler of both counts.3 Mr. Byler
was represented by attorney Michael Dieni at trial. After trial but before
sentencing, Mr. Byler obtained new counsel and filed two motions for a new trial,
1 The Court will address Claim 1 in a separate order.
2 Docket 2 at 5.
3 Docket 129.
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which were both denied.4 Mr. Byer was sentenced to five years of probation.5
Mr. Byler appealed his convictions; the Ninth Circuit Court of Appeals affirmed
the convictions on June 20, 2018.6 Mr. Byler filed a timely 28 U.S.C. § 2255
motion, followed by an amended motion. The amended motion asserts two
grounds for relief. The claim addressed in this order, Claim 2, asserts that
“defense counsel’s failure to fully investigate potential witnesses regarding
events at Pier 2 deprived Mr. Byler [of] his Sixth Amendment right to effective
assistance of counsel.”7
II. Legal standards
Claim 2 is based on the alleged ineffective assistance of counsel. In order
to succeed on an ineffective assistance of counsel claim, Mr. Byler must satisfy
the two-pronged test set forth in Strickland v. Washington, which requires him to
show both deficient performance of counsel and resulting prejudice.8 Deficient
performance requires a showing that trial counsel’s representation “fell below an
objective standard of reasonableness” as measured by prevailing professional
4 Docket 172; Docket 191; Docket 196; Docket 204.
5 Docket 217 (judgment).
6 Docket 269; United States v. Byler, 727 Fed. Appx. 409 (9th Cir. 2018).
7 Docket 292 at 21 (capitalization altered).
8 466 U.S. 668, 687 (1984).
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norms.9 There is a “strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance.”10 To show prejudice, Mr.
Byler must prove by a reasonable degree of probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.11
Mr. Byler carries the burden of proving he is entitled to relief.12
III. Counsel was not ineffective for failing to identify and locate potential
witness Todd Hammett.
The background relevant to Claim 2 is straightforward: Mr. Byler owned
the Wild Alaskan, a boat used as floating bar and strip club near Kodiak, Alaska.
The Indictment charged Mr. Byler with unlawfully discharging raw sewage from
the Wild Alaskan directly into the waters of Kodiak Harbor without a permit and
with making materially false statements when he documented and reported that
he had instead properly disposed of the raw sewage at Pier 2 of a harbor in
Kodiak on July 30, 2014.13
A. Defendant’s assertions about the original investigation
Claim 2 alleges that “trial counsel failed to find, interview, and call to testify,
the only individual (Todd Hammett) who directly observed Mr. Byler dispose of
9 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
10 Strickland, 466 U.S. at 689.
11 Id. at 694.
12 See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
13 Docket 2 at 4, 6.
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sewage at Pier 2 on July 30, 2014.”14 Specifically, Mr. Byler contends that when
he docked the Wild Alaskan at Pier 2 on July 30, 2014, the vessel Arctic Ram
was also docked there, and an employee of the Arctic Ram—identified as Mr.
Hammett—“observed him discharging sewage [from the Wild Alaskan] at Pier 2
on July 30, 2014.”15 Mr. Byler maintains that he told defense counsel about the
potential witness from the Arctic Ram and “strongly encouraged defense counsel
to locate and interview that individual.”16
In support of this claim, Mr. Byler has filed declarations of himself and of
his wife.17 The declarations aver that several weeks before trial, Mr. Byler told
his counsel and the defense investigator about the potential witness from the
Arctic Ram and gave them the name and telephone number for “Todd Hammett,
Boat Watchman” so they could contact Mr. Hammett and find the person who Mr.
Byler had seen smoking aboard the Arctic Ram when Mr. Byler was discharging
sewage at Pier 2 on July 30, 2014.18
14 Docket 292 at 22.
15 Docket 292 at 22.
16 Docket 292 at 22.
17 Docket 292-1.
18 Docket 292-1 at 2–3, ¶¶ 3, 6; Docket 292-1 at 7, ¶ 4.
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B. The investigator’s assertions about the original investigation
The first investigator has filed a declaration stating that in the summer of
2015 Mr. Byler provided her with the name of the vessel Arctic Ram, a phone
number for the vessel, and a physical description of the person he saw aboard
the Arctic Ram, but not with the name “Todd Hammett” because he said he did
not know the name of person on the Arctic Ram.19 She then obtained the name
of the captain of the Arctic Ram from the harbormaster. When she called and
spoke with the captain, the captain was cooperative but told her that none of the
Arctic Ram crew members matched the physical description provided by Mr.
Byler and that none of the crew members smoked.20 The investigator averred
that the Arctic Ram captain was “certain” and “adamant” and “did not waver” in
his answers about his crew members.21 The investigator notified Mr. Byler of the
outcome of her conversation with the Arctic Ram captain and “Mr. Byler did not
offer [her] any additional information or facts to follow up with in response to the
potential witness at the Arctic Ram.”22
19 Docket 303-1 at 2, ¶¶ 9, 12, 13, 14.
20 Docket 303-1 at 2, ¶¶ 10, 15, 16, 17.
21 Docket 303-1 at 3, ¶¶ 18, 19.
22 Docket 303-1 at 3, ¶¶ 24, 25.
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C. The post-trial investigation and interview of Mr. Hammett
After Mr. Byler’s trial was concluded, in May 2016, Mr. Byler obtained new
counsel. In August 2016, new counsel filed a motion for a new trial, which did
not mention a witness from the Arctic Ram or Mr. Hammett.23 Sometime after
October 18, 2016, ten months after trial, new counsel had a different investigator
try and identify and locate Mr. Hammett. In October 2016, the new defense
investigator contacted Mr. Hammett and shortly thereafter interviewed him.24
Mr. Hammett told the investigator that “on a day in late July 2014,” he was
aboard the Arctic Ram and observed a boat docked at Pier 2.25 Mr. Hammett
stated that he saw the operator of the boat appear to begin to offload sewage
into the receptacle at Pier 2.26 Mr. Hammett agreed this likely occurred on July
30, 2014, based on the harbor log showing that the Arctic Ram was at Pier 2 on
that date.27 Mr. Hammett stated that trial counsel and the first defense
investigator had never contacted him.28 A few weeks later, Mr. Hammett did a
23 Docket 172 (first Motion for a New Trial).
24 Docket 196 at 2 (second Motion for a New Trial); Docket 196-2 at 1, ¶ 2 (Aff. of investigator
Andy Klamser).
25 Docket 196-2 at 1, ¶¶ 3, 4.
26 Docket 196-2 at 2, ¶¶ 5, 6.
27 Docket 196-2 at 2, ¶ 5; see also Docket 196-1 (harbor log).
28 Docket 196-2 at 2, ¶ 8.
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recorded telephone interview with the government’s case agent in which he
conveyed substantially the same information.29
D. The government’s position
The government does not contest that trial counsel and the defense
investigator knew of a potential witness from the Arctic Ram. Instead, the
government responds that trial counsel, through his investigator, “fully
investigated all information [they] had regarding Todd Hammett, but [they] were
unable to establish his existence or identity.”30
E. An evidentiary hearing is not warranted.
Mr. Byler requested an evidentiary hearing so that the Court can make
factual findings “as to the nature and extent of trial counsel’s investigation,”31 but
the Court finds that an evidentiary hearing is not necessary as to Claim 2 because
“the files and records of the case conclusively show that the [defendant] is entitled
to no relief.”32 Here, the declarations of Mr. Byler and of the investigator differ in
one material way: Mr. Byler avers that he gave the investigator the specific name
and telephone number of Todd Hammett; the investigator avers that Mr. Byler
gave her the name and number to the Arctic Ram, which led to a dead end.33
29 Docket 292-2 (transcript of interview).
30 Docket 303 at 27.
31 Docket 306 at 8.
32 28 U.S.C. § 2255(b).
33 The affidavits also differ somewhat in that Mr. Byler and his wife aver that he gave the
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The Court recognizes that “[w]hen the issue is one of credibility, resolution on the
basis of affidavits can rarely be conclusive.”34 However, in some rare instances,
“credibility may be determined without an evidentiary hearing where it is possible
to ‘conclusively’ decide the credibility question based on ‘documentary testimony
and evidence in the record.’”35
The Court conclusively resolves the credibility issue in favor of the
investigator for the following reasons: First and most importantly, Mr. Byler has
previously asserted to this Court—when it would have aided his second motion
for a new trial—that “Mr. Hammett’s identity as a possible witness in this case
was not known at trial.”36 Second, it is unlikely that the first investigator would
have contacted the harbormaster and then the Arctic Ram captain to try and
identify the crew member if she already had the specific name and contact
number for Mr. Hammett. Finally, Mr. Byler’s counsel who represented him in his
motions for a new trial and at sentencing stated that he learned of the existence
of Mr. Hammett “[o]n October 18, 2016,”37 despite representing Mr. Byler since
investigator the information “weeks before trial in this case” (trial occurred in December 2015).
Docket 292-1 at 3, 7. The investigator avers that Mr. Byler gave her the information in the
summer of 2015. Docket 303-1 at 2, ¶ 9.
34 Blackledge v. Allison, 431 U.S. 63, 82 n. 25 (1977).
35 Earp v. Ornoski, 431 F.3d 1158, 1169–70 (9th Cir. 2005) (quoting Watts v. United States,
841 F.2d 275, 277 (9th Cir. 1988)).
36 Docket 196 at 11.
37 Docket 196 at 2 (Second Motion for a New Trial).
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at least May 11, 2016.38 It is not credible to believe that Mr. Byler would withhold
from his new attorney for five months the existence of an eyewitness, particularly
if he actually knew the name and telephone number for the witness and believed
he was as crucial as Mr. Byler asserts Mr. Hammett to have been. It is even
more incredible to believe in light of the fact that Mr. Byler and his new counsel
had already filed one motion for a new trial before Mr. Byler told his new counsel
about the existence of Mr. Hammett.39 Because the record is inconsistent with
Mr. Byler’s recent sworn statements in his declaration, the Court finds them to be
conclusively less credible than those of the investigator.
F. Analysis
Mr. Byler contends that “[g]iven the ease upon which Todd Hammett was
contacted by [the new defense investigator], there is no excuse for trial counsel’s
failure to contact and interview him [such that it] falls below the standard of
reasonable investigation by defense counsel.”40 Although Mr. Byler describes
locating Mr. Hammett as a “simple” task,41 the fact that an investigator was able
to do so ten months after trial does not necessitate the conclusion that trial
counsel’s inability to locate Mr. Hammett the previous year constituted ineffective
38 Docket 164 (Entry of Appearance).
39 See Docket 172 (first Motion for New Trial, filed August 22, 2016).
40 Docket 292 at 23.
41 Docket 306 at 7.
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assistance.42 Notably, Mr. Byler has not explained how the second defense
investigator was able to identify or locate Mr. Hammett—the second investigator
outlined the substance of his conversation with Mr. Hammett but did not provide
any investigative background about how much time it took to identify and contact
Mr. Hammett or how he did so.43 Accordingly, Mr. Byler has not shown how
locating Mr. Hammett was a “simple” task that could have been done by trial
counsel.
Trial counsel used an experienced investigator—who herself had
previously been a defense attorney44—to attempt to identify and locate Mr.
Hammett. “Where [the Ninth Circuit] has found a failure to locate potential
witnesses to constitute incompetent lawyering, the attorney refused to perform
any investigation into leads directly related and of potentially great benefit to the
defense.”45 Although the investigator was unsuccessful, nothing in the record
indicates that trial counsel refused to investigate the lead or otherwise rendered
ineffective assistance related to the investigation. Viewed in light of all the
circumstances, trial counsel’s decision not to expend further investigator
42 Cf. Palazzolo v. Burt, 778 F. Supp. 2d 805, 813 (E.D. Mich. 2011) (“The fact that [a private
investigator] was able to contact [potential witnesses] within a month or less speaks to trial
counsel’s failure to investigate.”).
43 Docket 196-2 (Aff. of Andy Klamser).
44 Docket 256 at 20 (Trial testimony of Barbara Brink).
45 Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).
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resources to identify or locate Mr. Hammett was well within the wide range of
professionally competent assistance.46
Notably, the procedural posture of this case has resulted in the parties
greatly altering their positions on the issue at hand. In his second motion for a
new trial—when he was represented by new counsel—Mr. Byler asserted that
“[t]rial counsel exercised its due diligence in locating all possible witnesses who
could corroborate Mr. Byler’s version of the events. Trial counsel could not
establish the identity of Mr. Hammett, however, despite its best efforts. Its
inability to locate Mr. Hammett was not due to a lack of due diligence.”47 In its
opposition to the second motion for a new trial, the government asserted that
“assuming [Mr. Byler’s] interaction with Mr. Hammett occurred, the record
demonstrates that the defendant was both aware of Mr. Hammett’s existence
and his identity for more than two years prior to the filing of his second motion for
a new trial.”48 In its order denying the motion for a new trial, the Court found that
46 See Abdul-Latif v. United States, Case No. C13-1715JLR, 2014 WL 358422, at *4 (W.D.
Wash. Jan. 30, 2014) (The defendant failed to establish ineffective assistance of counsel
because he “provided his attorneys only a name and a description that the witness was a
‘DOC volunteer’ who lived in Everett, Washington, and had a son ‘serving time in state
custody.’ With nothing more to go on, it is not unreasonable that defense counsel was unable
to locate the purportedly favorable witness.”).
47 Docket 196 at 11. Mr. Byler now asserts that the second motion for a new trial was incorrect
in stating that trial counsel acted diligently. Docket 292 at 23.
48 Docket 198 at 8–9.
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“Mr. Byler has failed to show that Mr. Hammett’s statements constitute newly
discovered evidence, or that he was diligent in locating this evidence.”49
The Court’s findings in the order denying a new trial are not inconsistent
with its findings herein. First, the Court reviews motions for a new trial and § 2255
motions under different standards. In reviewing Mr. Byler’s § 2255 motion, the
Court “must scrutinize counsel's performance deferentially: ‘[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’”50 Mr. Byler has
not overcome the strong presumption that his trial counsel performed effectively.
Second, when considering the motion for a new trial, the Court did not have the
benefit of all the information and exhibits that have been submitted in this § 2255
action—specifically, the Court did not have a declaration from the original
investigator discussing her efforts to identify and locate Mr. Hammett.51
IV. Defendant has not demonstrated prejudice
Even if trial counsel’s performance had fallen below an objective standard
of reasonableness, Mr. Byler has not shown prejudice, i.e., that there is a
reasonable degree of probability that, but for counsel’s unprofessional errors,
49 Docket 204 at 3.
50 Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Strickland, 466
U.S. at 690).
51 See Docket 204 at 2–3 (Order Re Second Motion for a New Trial) (“And there has been no
showing made of . . . the efforts that were made to locate [Mr. Hammett]” by trial counsel.).
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the result of the trial would have been different. Mr. Byler has not provided the
Court with any sworn statement of Mr. Hammett, but the Court assumes for the
purposes of this order that Mr. Hammett would have testified consistently with
the statements he made to the defense investigator and the government’s case
agent. As the Court has previously found, it “is not persuaded that ‘a new trial’
[this time with Mr. Hammett’s testimony] would probably result in an acquittal”:
Mr. Byler presented considerable evidence at trial in support of his
sewage disposal practices. And in December 2014 he told the
Coast Guard that he had not been successful using Pier 2 because
he did not have the necessary compatible equipment—statements
at direct odds with Mr. Hammett’s statements. The Court finds that
had Mr. Hammett testified consistent with his recent statements, the
outcome at trial would not have probably resulted in Mr. Byler’s
acquittal.52
Specifically, Mr. Hammett’s presumed testimony would not have helped the
defense at trial because it contradicts Mr. Byler’s statements that were admitted
at trial: Mr. Byler told Coast Guard investigators that he was unable to properly
dispose of sewage at Pier 2 because he had the wrong equipment. He and Mr.
Hammett now contend that Mr. Hammett watched him successfully dispose of
sewage at Pier 2.53 Moreover, the government would have been able to impeach
or contradict a number of details provided by Mr. Hammett about Mr. Byler’s
52 Docket 204 at 3 (Order Re Second Motion for a New Trial).
53 Docket 292-1 at 3 (Decl. of Darren Byler); Docket 292-2 at 5–6 (transcript of case agent
interview with Todd Hammett); Docket 196-2 at 2, ¶¶ 5, 6 (Aff. of Andy Klamser).
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actions on July 30, 2014.54 Mr. Byler has not shown by a reasonable degree of
probability that, but for counsel’s alleged ineffectiveness, the result of the trial
would have been different.55
CONCLUSION
For the foregoing reasons, the Court finds that Mr. Byler is not entitled to
relief based on ineffective assistance of counsel as to Claim 2. Therefore, IT IS
ORDERED that Claim 2 of the motion at Docket 292 is DENIED. With respect to
Claim 2, the Court further finds that Mr. Byler has not made the requisite
substantial showing of the denial of a constitutional right, and therefore a
certificate of appealability will not be issued by this Court.56 After a final judgment
is entered in this case on all claims, Mr. Byler may request a certificate of
appealability from the Ninth Circuit Court of Appeals.
DATED this 25th day of August, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
54 See Docket 198 at 10–15.
55 See Strickland, 466 U.S. at 694.
56 28 U.S.C. §§ 2255(d), 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(Certificate of appealability may be granted only if applicant made a “substantial showing of
the denial of a constitutional right,” i.e., a showing that “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further” (internal quotations
and citations omitted)).
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