United States v. Sullivan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0478p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 03-6329

v.

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GREGORY SULLIVAN, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 02-00045—Jennifer B. Coffman, District Judge.

Argued: April 28, 2005

Decided and Filed: December 20, 2005

Before: SUHRHEINRICH, BATCHELDER, and GIBSON, Circuit Judges.*

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COUNSEL

ARGUED: William K. Fulmer II, Florence, Kentucky, for Appellant. Laura K. Voorhees,

ASSISTANT UNITED STATES ATTORNEY, Covington, Kentucky, for Appellee. ON BRIEF:

William K. Fulmer II, Florence, Kentucky, for Appellant. Laura K. Voorhees, ASSISTANT

UNITED STATES ATTORNEY, Covington, Kentucky, Charles P. Wisdom, Jr., ASSISTANT

UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.

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OPINION

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JOHN R. GIBSON, Circuit Judge. Gregory Sullivan appeals his convictions on two counts

of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), two counts of use of a firearm

during and in relation to a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A)(ii), and ten

counts of bank robbery in violation of 18 U.S.C. § 2113(a). Sullivan argues that the district court

erred by denying his motion to appoint substitute counsel, failing to direct a verdict in his favor on

three of the robbery counts, and denying his motion to suppress eyewitness identification evidence

obtained through an unduly suggestive photo lineup. He further argues that the Government failed

to disclose exculpatory evidence in violation of its obligation under Brady v. Maryland, 373 U.S.

*

The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,

sitting by designation.

1

No. 03-6329 United States v. Sullivan Page 2

83 (1963), and he seeks relief for alleged ineffective assistance of counsel. We affirm the district

court1 in all respects.

In 2002 Sullivan was indicted in connection with a string of twelve bank and credit union

robberies in northern Kentucky resulting in losses totaling $107,425. Although the first robbery had

occurred on October 11, 2000 at the Columbia Federal Savings Bank in Florence, Kentucky, it was

the robbery of the Heritage Bank in Fort Wright, Kentucky on June 11, 2002, that first implicated

Sullivan as a suspect in the robberies. According to eyewitnesses and bank surveillance video

photographs, the robber entered the Heritage Bank, announced the robbery, ordered the male

employees to sit on the floor, and demanded money from the female tellers. After receiving

approximately $11,000, the robber ordered the tellers to the ground and fled.

Investigators collected an array of evidence linking Sullivan to the Heritage Bank robbery.

First, the bank manager, Christopher Caddell, testified that he saw the robber fleeing in a 1990 to

1995 turquoise or aqua-green Chevrolet Camaro Z-28, and later identified a photograph of the blue

1995 Chevrolet Camaro Z-28 owned by Sullivan’s current wife as the car used in the getaway.

Second, a fingerprint left by the robber matched Sullivan’s. Third, bait money taken during the

robbery came back to the bank through deposits suggesting Sullivan’s involvement in the robbery.

Last, bank surveillance video photographs and eyewitness accounts depicted the suspect wearing

a burgundy or maroon baseball hat with a gold letter “B” like that found on the uniform hat for the

Bluegrass Baseball Club, which had issued Sullivan’s son a uniform.

During the course of investigating the Heritage Bank robbery, detectives learned that several

northern Kentucky banks and credit unions had been robbed by suspects with similar descriptions

to that of the Heritage Bank robber.2 During interviews with eyewitnesses to these robberies, fifteen

individuals identified Sullivan as the robber from a photographic array.3 Based upon this

information, officers executed a warrant to search the blue Camaro Z-28 registered to Sullivan’s

wife, which uncovered caps, sunglasses, a scarf/bandana, various shirts, jackets, carpet fiber,

financial records, and currency. Following the search, Sullivan was placed under arrest and later

indicted by a federal grand jury on two counts of armed bank robbery in violation of 18 U.S.C.

§ 2113(a) and (d), two counts of use of a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924 (c)(1)(A)(ii), and ten counts of bank robbery in violation of 18 U.S.C.

§ 2113(a).

1

The Honorable Jennifer B. Coffman, District Judge, Eastern District of Kentucky at Covington.

2

The robberies were charged as follows:

Count 1, 12/17/99, Columbia Federal Savings Bank, Florence, KY, $9,679.00

Count 3, 10/11/00, Columbia Federal Savings Bank, Florence, KY, $4, 216.00

Count 4, 10/25/00, PNC Bank, Union, KY, $9,343.00

Count 6, 2/27/01, First Security Bank, Edgewood, KY, $1,949.00

Count 7, 3/14/01, Provident Bank, Cold Springs, KY, $5,209.00

Count 8, 5/11/01, C & O United Credit Union, Edgewood, KY, $ 21,430.00

Count 9, 8/31/01, PNC Bank, Taylor Mill, KY, $12,426.00

Count 10, 10/26/01, C & O United Credit Union, Edgewood, KY, $14,613.00

Count 11, 12/6/01, Park Federal Credit Union, Florence, KY, $5,275.00

Count 12, 1/25/02, PNC Bank, Edgewood, KY, $7,535.00

Count 13, 5/17/02, Firstar Bank, Fort Wright, KY, $3,932.00

Count 14, 6/11/02, Heritage Bank, Fort Wright, KY, $11,819.00.

3

In addition to identifying Sullivan as the robber in the photographic array, a number of eyewitness identified

him as the robber at trial.

No. 03-6329 United States v. Sullivan Page 3

Sullivan, represented by appointed counsel, pled not guilty to the second superseding

indictment. Counsel filed a number of pre-trial motions, including a motion to suppress the out-of-

court eyewitness identifications, which the district court denied following an evidentiary hearing.

At trial, the jury convicted Sullivan on all fourteen counts of the superseding indictment. Sullivan

was sentenced to 572 months in prison and ordered to pay $107,425 in restitution. This appeal

followed.

I.

Sullivan contends that the district court erred by denying his motion to substitute counsel

filed pro se on the fifth day of his trial. The decision as to whether to appoint new counsel at the

defendant’s request is committed to the sound discretion of the district court. United States v.

Trujillo, 376 F.3d 593, 606 (6th Cir. 2004). The denial of a motion to substitute counsel will be

reversed only upon an abuse of that discretion. United States v. Williams, 176 F.3d 301, 314 (6th

Cir. 1999).

“An essential element of the Sixth Amendment’s protection of the right to assistance of

counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own

choosing.” Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981) (internal quotations and citation

omitted). However, the right to counsel of one's choosing is not absolute. United States v. Iles, 906

F.2d 1122, 1130 (6th Cir. 1990). “When an accused seeks substitution of counsel mid-trial, he must

show good cause such as a conflict of interest, a complete breakdown in communication or an

irreconcilable conflict with his attorney in order to warrant substitution.” Wilson v. Mintzes, 761

F.2d 275, 280 (6th Cir. 1985). In reviewing the district court's denial of a motion to substitute

counsel we generally consider:

(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the

matter, (3) the extent of the conflict between the attorney and client and whether it

was so great that it resulted in a total lack of communication preventing an adequate

defense, and (4) the balancing of these factors with the public’s interest in the prompt

and efficient administration of justice.

United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); see also Iles, 906 F.2d at 1130 n. 8.

In this case, we conclude that the district court was well within its discretion as to each of

the four factors. First, and most significantly, Sullivan’s motion was untimely. He filed his pro se

motion on the fifth day of his trial, after the Government had presented the testimony of forty-two

witnesses and had rested its case, and after the district court had denied Sullivan's motion for

judgment of acquittal. In the absence of a showing of good cause for the substitution, we have found

motions to substitute counsel filed far earlier than this to be untimely. See, e.g., Trujillo, 376 F.3d

at 606-607 (motion to substitute three days before scheduled start of trial untimely); Williams, 176

F.3d at 314 (motion to substitute made two weeks before trial untimely); United States v. Jennings,

83 F.3d 145, 148 (6th Cir. 1996) (motion to substitute counsel made the day before trial untimely).

Much of Sullivan's contention that the district court’s refusal to appoint substitute counsel

was an abuse of discretion rests on the second factor—the adequacy of the court's inquiry into his

reason for seeking new counsel. Sullivan's pro se motion to dismiss counsel recited that “current

counsel is causing the Defendant to not be properly represented in this case” and that “Defendant

can no longer work with [trial counsel] on this case.” However, the motion failed to indicate any

particular reason for Sullivan's dissatisfaction. Finding no grounds for appointing substitute counsel

No. 03-6329 United States v. Sullivan Page 4

at such an advanced stage of the proceedings, the district court denied the motion.4 Relying on

United States v. Iles, Sullivan argues that the district court failed to discharge its affirmative duty

to determine the reasons why Sullivan desired new counsel. 906 F.2d at 1130 (“[W]hen an indigent

defendant makes a timely and good faith motion requesting that appointed counsel be discharged

and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for

defendant's dissatisfaction with current counsel.”) (citation omitted).

When viewed in the overall context of the trial, we conclude that the district court adequately

discharged its duty to conduct an inquiry under Iles in that “[t]he need for an inquiry will not be

recognized . . . where the defendant has not evidenced his dissatisfaction or wish to remove his

appointed counsel.” Id. at 1131; see also Mack, 258 F.3d at 556. Trial counsel filed his own motion

to withdraw on the Friday before the trial was to commence on Monday. During a hearing on the

motion to withdraw on Monday morning, Sullivan unequivocally indicated to the court that he5

wanted trial counsel to continue to represent him and that everything had been “straightened out.”

Accordingly, counsel withdrew his motion and the trial proceeded. Sullivan’s pro se motion to

dismiss counsel set forth no grounds for why new counsel should be appointed, which prompted the

district court to deny it in light of the late stage of the trial and in reliance upon what appeared to

have been a resolution of their differences four days earlier. We conclude that the district court's

inquiry into Sullivan’s dissatisfaction with counsel was not so deficient as to make its denial of

Sullivan's motion an abuse of discretion.

As to the third factor, the extent of the conflict between Sullivan and trial counsel, we

conclude that the district court did not abuse its discretion by failing to find a total lack of

communication between Sullivan and his attorney. To be sure, the record clearly demonstrates “that

there was some lack of understanding or lack of confidence” between Sullivan and his lawyer.

Williams, 176 F.3d at 314. As discussed above, trial counsel had moved to withdraw on the eve of

4

The colloquy between the district court and trial counsel on the motion was as follows:

THE COURT: I have received a copy of a – what is called a motion to dismiss defense counsel filed by Gregory

Sullivan, pro se. Mr. Neff, were you aware this motion was filed?

MR. NEFF: Your Honor, last night after court my client presented it to me and asked me to file it with the

Court.

THE COURT: All right.

MR. NEFF: So pursuant to his directions, I have done that.

THE COURT: All right. The motion is denied. We addressed this once earlier. I asked the defendant directly

whether – whether you have resolved your differences. He said yes. The trial has proceeded. I see no grounds for the

motion, and so I'm denying your motion.

5

The discussion between the court, trial counsel, and Sullivan was as follows:

THE COURT: . . . Mr. Sullivan, were you aware that Mr. Neff had filed a motion to withdraw as your counsel

on Friday?

DEFENDANT GREGORY SULLIVAN: Yes, I was, Your Honor.

THE COURT: Do you wish for him to withdraw?

DEFENDANT GREGORY SULLIVAN: No, Your Honor.

THE COURT: You don't?

DEFENDANT GREGORY SULLIVAN: No, Your Honor.

THE COURT: Okay.

DEFENDANT GREGORY SULLIVAN: We have got that straightened out.

THE COURT: You have gotten that straightened out?

DEFENDANT GREGORY SULLIVAN: Yes, ma'am.

THE COURT: All right. Mr. Neff, do you agree? You may sit down, Mr. Sullivan.

DEFENDANT GREGORY SULLIVAN: Okay.

THE COURT: Mr. Neff, do you agree, and accordingly do you withdraw your motion to withdraw?

MR. NEFF: Your Honor, I do agree, and I will withdraw my motion to withdraw.

THE COURT: The motion is withdrawn then.

No. 03-6329 United States v. Sullivan Page 5

trial, and Sullivan filed his own motion five days into the trial. Moreover, following the denial of

his motion to substitute counsel, Sullivan moved to conduct his own closing arguments on the

grounds that he “d[id] not wish his legal counsel to present closing arguments on his behalf.”

However, the record does not reveal that the disagreements between attorney and client in this case

rose to the level of a conflict sufficient to justify substitution of counsel mid-trial. Sullivan was

required to make “a showing of more than communication with counsel which the defendant feels

is unsatisfactory.” Jennings, 83 F.3d at 149. Sullivan needed to demonstrate that the attorney-client

relationship had so deteriorated that it “resulted in a total lack of communication preventing an

adequate defense.” Id. The record indicates that Sullivan and his counsel continued to

communicate. They conferred regarding Sullivan’s decision to testify on his own behalf. While

Sullivan was still considering that decision, he directed trial counsel to move for a continuance in

order for Sullivan to compose himself to testify and have an opportunity to interview more

witnesses. Because the record indicates that there was not a “complete breakdown in

communication” between Sullivan and trial counsel, the district court did not abuse its discretion

in denying Sullivan's motion for substitute counsel.

Finally, the district court did not abuse its discretion in denying Sullivan’s motion to

substitute counsel because “the public’s interest in the prompt and efficient administration of

justice” weighed strongly in favor of its decision. First, the sheer untimeliness of Sullivan’s motion

for substitution would have frustrated the prompt and efficient administration of justice in the

absence of good cause to support the substitution. Second, Sullivan’s continued representation by

trial counsel actually promoted the prompt and efficient administration of justice in light of trial

counsel's background and work on the case thus far. Finally, the record does not reflect that the

prompt and efficient administration of justice would have been served by the substitution of counsel

and the attendant continuance such a substitution would have required in light of the costs and effort

related to the jury trial, which included forty-two government witnesses. As each of the four

relevant factors weighed in favor of Sullivan’s continued representation by trial counsel, we find no

abuse of discretion and affirm the district court's denial of Sullivan's motion.

II.

Sullivan contends that there was insufficient evidence from which a reasonable juror could

have found him guilty on Counts 8 through 10 of the indictment. These counts charged Sullivan

with three unarmed bank or credit union robberies in violation of 18 U.S.C. § 2113(a): the May 11,

2001, robbery of the C & O United Credit Union in Edgewood, Kentucky; a second robbery of the

C & O United Credit Union on October 26, 2001; and the August 31, 2001, robbery of the PNC

Bank in Taylor Mill, Kentucky. To sustain a conviction under 18 U.S.C. § 2113(a), the jury was

required to find that Sullivan intentionally took money from another person, that the money was then

in possession of a federally insured bank or credit union, and that Sullivan took the money by force,

violence, or intimidation. The crux of Sullivan's argument is that the government failed to present

sufficient evidence from which a reasonable juror could conclude that Sullivan, as opposed to

someone else, committed these robberies.

At the outset, we note that Sullivan bears a heavy burden to establish that there was

insufficient evidence to support his convictions. United States v. Maliszewski, 161 F.3d 992, 1005

(6th Cir. 1998); United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000). “[T]he relevant question

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly,

204 F.3d at 656 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). In undertaking this

analysis, we neither independently weigh the evidence, nor judge the credibility of witnesses who

testified at trial. United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999). We examine the

evidence in the light most favorable to the convictions and draw all inferences in the government's

favor. Maliszewski, 161 F.3d at 1005.

No. 03-6329 United States v. Sullivan Page 6

Viewed in the light most favorable to the government, the evidence at trial supporting the

jury's guilty verdict on Counts 8 through 10 was as follows. Teller Bonnie Pittman was present

during the robbery and testified as to the accuracy of the surveillance photos taken at the time.

During the robbery she was able to get a good look at the robber's profile, the shape of his head, and

his body structure. She described the robber as a man who was slouched over, wearing a striped

shirt and a dark baseball cap, with his hand in his shirt and with a mask over his face. Although at

trial Pittman could not identify Sullivan as the robber, she testified that she had picked Sullivan out

of a photo lineup during the investigation.

Paula Hopkins, a credit union customer present during the robbery, also testified at trial. The

robber ordered her to the ground and, after receiving money from the tellers, ordered her and the

tellers into a back room. She observed the robber during the entire robbery, was able to make eye

contact with him twice, and was able to see his eyes and his hair. Hopkins identified Sullivan as the

robber at trial and testified that she had identified Sullivan as the robber from a photo lineup at the

suppression hearing.

Teller Emily Roth was present during both robberies of the C & O United Credit Union.

Like Pittman, she described the May 11, 2001, robber as a man wearing a dark colored hat and

whose face was partially covered by a bandana. She similarly described the October 26, 2001,

robber as a man wearing a dark hat and a bandana who was hunched over to disguise his height. On

both occasions she was able to see the robber’s eyes to the top of his nose and the side of his face.

Although during the investigation Roth had been able to identify Sullivan from out of a photo spread

as the robber on both occasions, she was unable to identify him as the robber at trial. However, she

did testify that the same individual had committed both robberies because on both occasions the

robber wore a baseball hat and bandana, his voice was the same, he acted the same and he “handled”

both robberies in the same way in that “he wanted all the same type of money, [and] he wanted us

to get in the back room, but then he changed his mind.”

Two employees testified about the robbery of the PNC Bank in Taylor Mill, Kentucky.

Teller Kara Fields testified that she was running a transaction on the day of the robbery when she

looked up from the teller counter and saw the robber standing in front of her. He demanded all of

her cash and told her that he had a gun. During the robbery, the robber was standing about two feet

away from her teller window and she got a good opportunity to see his face from the nose upwards.

She described the robber as a man with what appeared to be a shirt pulled up over his mouth and

wearing a green and light brown plaid shirt.6 At trial, Fields identified Sullivan as the robber and

testified as to the accuracy of the surveillance photos taken during the robbery. Judie Lea, manager

of the PNC Bank, testified that the robber covered his face with a shirt and was wearing a plaid shirt.

She observed the robbery’s progress as best she could from her position on the floor where the

robber had ordered her to lie.

Sullivan contends that this eyewitness testimony is insufficient to support his convictions

because some of the eyewitnesses either did not get a “decent look” at the robber, gave conflicting

descriptions of the robber’s eye and hair color, or were unable to identify Sullivan as the robber in

the courtroom. However, the record reveals that Sullivan's counsel conducted thorough cross-

examinations of each of these eyewitnesses with the apparent intention of highlighting these

inconsistencies and deficiencies. The cross-examination was a legitimate attempt to undermine the

credibility of these witnesses in front of the jury. While that exercise was appropriate at trial, we

decline Sullivan’s invitation to substitute our judgment for that of the jury in weighing the credibility

of these witnesses. See Talley, 164 F.3d at 996. After reviewing the evidence in the light most

6

A green and brown plaid shirt taken from Sullivan's ex-wife's house that Sullivan admitted was his was

introduced into evidence at trial. (App. 437-438, 907).

No. 03-6329 United States v. Sullivan Page 7

favorable to the prosecution, we conclude that a rational trier of fact could conclude beyond a

reasonable doubt that it was Sullivan, as opposed to someone else, who committed the robberies

charged in Counts 8 through 10. Accordingly, we affirm the district court's denial of Sullivan's

motion for a directed verdict on those counts.

III.

Sullivan contends that the district court's denial of his motion to suppress the government’s

eyewitness identification evidence violated his due process rights. He asserts that the out-of-court

identifications were unduly suggestive and the in-court identifications were the fruit of the tainted

and unreliable procedures. A magistrate judge conducted an evidentiary hearing on Sullivan’s

motion to suppress on November 6, 2002, and issued a twenty-page Report and Recommendation

eight days later. Recommending the denial of Sullivan's motion, the magistrate judge put the parties

on notice that a failure to file objections within ten days would result in a waiver of the right to

appeal the judgment of the district court on this issue. Despite this warning, Sullivan filed no

objections and on December 6, 2002, the district court entered an order adopting the magistrate

judge's Report and Recommendation.

Sullivan’s failure to object to the magistrate judge's Report and Recommendation constitutes

a waiver of his right to appeal the admission of the identification evidence. Sullivan had ten days

within which to file written objections, if any, to the magistrate's report. 28 U.S.C. § 636(b). This

court has repeatedly held that a defendant must file such objections in order to preserve the issue for

appeal. United States v. Campbell, 261 F.3d 628, 631-632 (6th Cir. 2001); Thomas v. Arn, 728 F.2d

813, 814-15 (6th Cir. 1984); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). A

failure to do so results in a waiver of that issue. Campbell, 261 F.3d at 631-32; United States v. Real

Property Located at 1184 Drycreek Road, Granville, Ohio 43023, 174 F.3d 720, 725 (6th Cir.

1999); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (upholding 6th Circuit practice against due

process challenge). Here, Sullivan failed to file objections to the magistrate judge's findings with

the district court and, as a result, has waived any challenge to the district court's denial of his motion

to suppress the identification evidence.

Recognizing that the waiver rule is not absolute, this court has excused default “where the

district court’s error is so egregious that failure to permit appellate review would work a miscarriage

of justice.” Real Property, 174 F.3d at 725-26. However, our review of the record and of the

magistrate judge's exhaustive report convinces us that the admission of the identification testimony

against Sullivan did not work a miscarriage of justice. A district court's admission of identification

testimony only violates due process when the identification procedure is “so impermissibly

suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” United

States v. Meyer, 359 F.3d 820, 824 (6th Cir. 2004) (quoting Simmons v. United States, 390 U.S. 377,

384 (1968)). This court has prescribed a two-step analysis for determining the admissibility of

identification testimony. First, the defendant must show that the identification procedure was unduly

suggestive. If the defendant meets this burden, then the court must evaluate the reliability of the

identification in the totality of the circumstances. Ledbetter v. Edwards, 35 F.3d 1062, 1071-72 (6th

Cir.1994).

The magistrate judge concluded that Sullivan failed to demonstrate that the photographic

arrays or the procedures used to present them to the eyewitnesses were unduly suggestive. Sullivan

argued that his picture was emphasized in the photographic array in that he was the only suspect in

lineup with noticeably blue eyes and a majority of the witnesses described the robber as having blue

eyes. Looking at the quality of the photographs and at the characteristics of the individuals in them,

the magistrate judge concluded that the array did not improperly single out the defendant; indeed,

the magistrate judge noted that “the eye color is not easily ascertained by looking at either array.”

The district court reviewed the record, giving deference to the magistrate judge's factual findings

No. 03-6329 United States v. Sullivan Page 8

in light of Sullivan’s failure to object, and we conclude that the lower courts committed no egregious

error that would warrant our review. Sullivan has waived his appeal of a due process challenge to

the admissibility of the out-of-court and in-court identifications arising out of the photographic

arrays because he failed to file objections to the magistrate judge’s Report and Recommendations.

IV.

Finally, Sullivan contends that the Government deprived him of due process by suppressing

certain exculpatory evidence in contravention of its obligation under Brady v. Maryland, 373 U.S.

83 (1963). The evidence Sullivan argues that the Government was required to disclose under Brady

consists of discarded fiber and hair samples taken from a bandana believed to have been worn by

the robber of the Heritage Bank, as well as copies of some of the suspect description forms

completed by eyewitnesses shortly after the robberies.

The Supreme Court recognized in Brady that “the suppression by the prosecution of evidence

favorable to the accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87. Underlying the Brady decision was the notion that “it is fundamentally unfair for the

government to achieve a conviction through the concealment of evidence which undermines the

strength of the government's case against the defendant.” United States v. Presser, 844 F.2d 1275,

1282-83 (6th Cir. 1988). To establish a due process violation under Brady “[t]he evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). It is the defendant’s burden

to demonstrate that “‘there is a reasonable probability’ that the result of the trial would have been

different if the suppressed documents had been disclosed to the defense.” Id. at 289. “A reasonable

probability is one ‘sufficient to undermine confidence in the outcome.’” United States v. Phillip,

948 F.2d 241, 249 (6th Cir. 1991) (citation omitted). Thus, “[t]he question is not whether the

defendant would more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Strickler, 527 U.S. at 289-90.

Sullivan has failed to make out a Brady violation with respect to the fiber and hair samples.

Sullivan has not demonstrated that the samples were favorable to his defense. According to a letter

from the Assistant United States Attorney who tried the case, she learned of the existence of the

samples after the trial had concluded and was told by the investigating FBI agent that there was no

root bulb on the hair sample, thereby making DNA identification impossible. Moreover, the agent

had determined that in light of the contamination at the scene, a testing of the samples would have

yielded nothing relevant to the case and he discarded them. Even assuming that the samples would

have been favorable to Sullivan’s defense, he has failed to demonstrate that he was prejudiced by

their absence. We conclude that Sullivan’s trial resulted in a verdict worthy of confidence in light

of the overwhelming evidence connecting him to the Heritage Bank robbery, including his

fingerprint, identifications by four eyewitness, bait money linked to him, video surveillance

capturing the robber wearing a baseball cap identical to Sullivan’s son’s cap, and accounts of the

robber's escape in a car that was virtually identical to the one owned by Sullivan’s wife.

Likewise, Sullivan has failed to make out a Brady violation with respect to the eyewitness

identification forms because he has presented no evidence from which we could conclude that

information in the missing forms would be favorable to his defense. Sullivan fails to identify which

of the twenty-eight eyewitnesses' description forms are missing, nor does he describe how the

information contained in the forms could have been exculpatory. It is Sullivan’s burden to

demonstrate that he failed to receive a fair trial in the absence of this evidence and Sullivan has

failed to discharge this burden.

No. 03-6329 United States v. Sullivan Page 9

V.

On this direct appeal Sullivan also argues that we should reverse his conviction because the

district court's refusal to appoint substitute counsel caused him to receive ineffective assistance of

counsel. Specifically, Sullivan contends that counsel was ineffective due to counsel's purported

conflict of interest and his failure to call two available alibi witnesses. The usual rule is that a

defendant may not raise claims for ineffective assistance of counsel on direct appeal. United States

v. Williams, 176 F.3d 301, 312 (6th Cir. 1999). Rather, “‘[t]he more preferable route for raising an

ineffective assistance of counsel claim is in a post-conviction proceeding under 28 U.S.C. § 2255,’

whereby the parties can develop an adequate record.” United States v. Barrow, 118 F.3d 482, 494

(6th Cir. 1997) (quoting United States v. Carr, 5 F.3d 986, 993 (6th Cir. 1993)). On occasion this

court has departed from the usual rule to address the merits of an ineffective assistance of counsel

claim on direct appeal, but only when the record is adequate to address the claim. See, e.g., Williams,

176 F.3d at 312; United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995).

Here, the record is inadequate to address Sullivan's ineffective assistance of counsel claim.

Without an explanation from trial counsel as to why he failed to call the alibi witness we have no

basis to determine whether this decision was the result of inadequate representation or reasonable

trial strategy. Likewise, although Sullivan identifies the alleged conflict of interest as between trial

counsel’s desire to avoid presenting perjured testimony and Sullivan's desire to testify on his own

behalf, we cannot properly resolve the issue on the current record. In the absence of an adequate

record, we decline to depart from the usual rule that a post-conviction proceeding under 28 U.S.C.

§ 2255 is the proper vehicle for a claim of ineffective assistance of counsel.

VI.

The judgment of the district court is affirmed.