               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0517n.06
                            Filed: July 25, 2006

                                          No. 05-3833

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
RYAN LEE,                                       )   SOUTHERN DISTRICT OF OHIO
                                                )
                                                )
       Defendant-Appellant.                     )



       Before: GILMAN and SUTTON, Circuit Judges; WISEMAN, District Judge.*


       SUTTON, Circuit Judge. Ryan Lee principally challenges the district court’s denial of his

claim that the government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963).

Because Brady does not require a new trial when the defendant originally supplied the “non-

disclosed” evidence to the government and because his other arguments lack merit, we affirm.


                                               I.


       On January 16, 1997, in Columbus, Ohio, Ryan Lee and two accomplices stopped an

armored truck at gunpoint and stole $16,000 from the truck. After learning from news reports that



       *
         The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.
No. 05-3833
United States v. Lee

his car was spotted leaving the scene of the crime, Lee left his accomplices, drove to the parking lot

of an Odd Lots store and called 911. When the police arrived, Lee reported that he had been sitting

in his car in a parking garage reviewing resumes when three masked men, two of them armed,

ordered him into his trunk. The men eventually abandoned his car, Lee explained, after which he

escaped from the trunk.


       As more evidence came to light, the police began to suspect that Lee had taken part in the

robbery. On January 10, 2001, Lee was indicted for the crime.


       On April 12, 2002, a jury convicted Lee of conspiracy to commit robbery, see 18 U.S.C.

§ 1951, convicted him of making a false statement to law-enforcement officers, see id. § 1001, and

acquitted him of carrying a firearm during a crime of violence, see id. § 924. The verdict was short-

lived, however. After determining that the government had suppressed material exculpatory

evidence—methods of escaping from the kind of car Lee was driving (a Lexus)—the district court

granted Lee’s motion for a new trial.


       Lee represented himself at the second trial with the assistance of standby counsel. During

the trial, Lee cross-examined FBI Agent Harry Trombitas about Trombitas’s testimony that he had

called the Ohio Department of Youth Services to check Lee’s claim that Lee had been planning to

apply for a job position there. In doing so, Lee learned that Trombitas had spoken with someone

at the Department who “knew who you [Lee] were,” JA 287, a person whose name Lee had provided

to Trombitas, see JA 289 (Trombitas trial testimony) (“I think you [Lee] gave me a name of



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No. 05-3833
United States v. Lee

someone that knew you over there.”); id. (Lee questioning Trombitas) (“Didn’t I give you the name

of the person that I interviewed with . . . . Agent Trombitas?”).


       On November 24, 2003, the jury convicted Lee of conspiring to commit a bank robbery and

making a false statement to federal officers, the same two counts on which he had been convicted

before. One month later, Lee returned to the Brady well, arguing that he should receive a third trial

because the government had suppressed evidence of “the name of an alibi witness employed at the

Department of Youth Services.” JA 99. The district court denied the motion, observing that “Brady

is concerned only with cases in which the government possesses information which the defendant

does not.” D. Ct. Op. at 11 (quoting Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000)). “If, as

indicated by Mr. Lee’s questioning, . . . he gave Agent Trombitas the name of the [Department]

employee he saw on the morning of the robbery, that name was obviously known to Mr. Lee,”

defeating the suggestion that the government suppressed the information. Id. at 11–12.


       The court also reasoned that the evidence would not have been favorable to Lee. “[T]here

is absolutely no evidence in the record to support Mr. Lee’s claim that he went to [the Department]

on the morning of January 16, 1997,” and thus no alibi for this evidence to corroborate. Id. at 10.

Even if there had been an alibi, the court observed, “there is no evidence that this individual could

verify that Mr. Lee was at [the Department] on the morning of January 16, 1997.” Id.


       Finally, the court concluded that Lee had not shown prejudice. Although “very strong

evidence” established Lee’s guilt, the court considered of even “greater importance” the fact that,



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No. 05-3833
United States v. Lee

“even if Mr. Lee did drop a resume at [the Department] on the morning of January 16, 1997—an act

that would have taken no more than a few minutes of his time since the agency is located across

from the parking garage—this would not provide Mr. Lee with a strong alibi for the conspiracy

charge.” Id. at 16.


                                                II.


       “To establish a violation of Brady, the petitioner has the burden of establishing [1] that the

prosecutor suppressed evidence; [2] that such evidence was favorable to the defense; and [3] that

the suppressed evidence was material.” Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000).

According to Lee, the prosecution did not disclose evidence “concerning [Lee’s] contact at the

Department of Youth Services.” Lee Br. at 12. That evidence, says Lee, would have shown that

Agent Trombitas had spoken on the phone with someone at the Department who “knew who [Lee

was],” and that knowledge would have supported an alibi defense that he was at the Department on

the morning of the robbery. JA 287.


       As the district court ably demonstrated, this contention contains a number of shortfalls, only

one of which bears repeating. Most conspicuously, the government did not hide this evidence from

the defendant. According to statements by Lee and Trombitas, Lee gave this evidence to the police.

See, e.g., JA 99, 289, 355. Evidence known (or even knowable) to the defendant does not constitute

suppressed evidence under Brady. “There is no Brady violation where a defendant knew or should

have known the essential facts permitting him to take advantage of any exculpatory information, or



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No. 05-3833
United States v. Lee

where the evidence is available . . . from another source, because in such cases there is really nothing

for the government to disclose.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (internal quotation

marks omitted); see also Carter, 218 F.3d at 601 (“This Court has recognized that ‘Brady is

concerned only with cases in which the government possesses information which the defendant does

not.’”) (quoting United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994)); United States v.

Clark, 928 F.2d 733, 738 (6th Cir. 1991) (“No Brady violation exists . . . where the evidence is

available to [a] defendant from another source.”). The government does not suppress—indeed it

cannot suppress—evidence of “people that [the defendant] identified during his statements to the

police, and to whom he had as much access as the police.” Coe, 161 F.3d at 344.


       Lee responds that “the time between the actual robbery and when the government brought

the indictment against him [four years] . . . caused him to forget certain facts of the case.” Lee Br.

at 11. Why that should make a difference, however, is never explained. The fact remains that Lee

supplied the name to the government, giving the government no reason to think that it needed to

convey this evidence to the defendant. Brady, to be sure, requires the government in certain

circumstances to supply defendants with evidence that supports an alibi. But it does not require the

government to develop the alibi itself.


       Lee also alleges that Trombitas committed perjury during the trial. But the allegedly

contradictory statements on which he relies are not even inconsistent, much less irreconcilably so.

First, he points to Trombitas’s testimony that he “called the Department of [Youth] Services,” JA

286, and his testimony that he did not record the name of the person who had heard of Lee “because

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United States v. Lee

it was not a significant matter at that point,” JA 289. Had Trombitas gone to the trouble of

contacting the Department, Lee claims, “it cannot also be true that he believed the evidence to be

also insignificant.” Lee Br. at 22. Not so. Trombitas already knew that Lee had had contact with

someone at the Department; the question was whether that person had any information bearing on

the investigation. When that person did not reveal anything material to the investigation, it thus was

unnecessary to record the person’s name.


       Lee next points out that although Trombitas testified that he thought Lee “would have some

connection” at the Department of Youth Services, JA 286, he also testified, “I don’t know what the

relationship was” between Lee and the contact. JA 289. But Lee offers no explanation how these

two statements are inconsistent, and they are not. The first statement simply shows that Trombitas

thought Lee would have a connection to the Department (because someone knew him there); the

second confirms how little information Trombitas had (because he did not know what the

relationship between Lee and this contact was).


                                                 III.


       For these reasons, we affirm.




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