U.S. v. Sullivan

• Decision Date: 20 December 2005
• Docket Number: No. 03-6329.,03-6329.
• Citation: 431 F.3d 976
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory SULLIVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

431 F.3d 976

UNITED STATES of America, Plaintiff-Appellee, v. Gregory SULLIVAN, Defendant-Appellant.

No. 03-6329.

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2005.

Decided and Filed: December 20, 2005.

COPYRIGHT MATERIAL OMITTED

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.

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

OPINION

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. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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).

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 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 he wanted trial counsel to continue to represent him and that everything had been "straightened out."⁵ 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...