               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0136n.06

                                         No. 18-5615

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                     )                          FILED
 UNITED STATES OF AMERICA,                           )                    Mar 19, 2019
                                                     )                DEBORAH S. HUNT, Clerk
           Plaintiff-Appellee,                       )
                                                     )
 v.                                                  )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
 BRADLEY C. STARK,                                   )      COURT FOR THE EASTERN
                                                     )      DISTRICT OF KENTUCKY
           Defendant-Appellant.                      )
                                                     )



       BEFORE:       CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.*

       JANE B. STRANCH, Circuit Judge.             Bradley Stark is a prisoner at the Federal

Correctional Institution in Ashland, Kentucky.      A jury found him guilty of unauthorized

possession of a cell phone in violation of 18 U.S.C. § 1791(a)(2). He argues on appeal that the

Government suppressed exculpatory evidence at his trial. He never made that claim in the district

court and, regardless, he has failed to show that the Government withheld any exculpatory

evidence. We therefore AFFIRM.

                                   I.   BACKGROUND

       While making his rounds in the A-Wing of the G housing unit at the Federal Correctional

Institution in Ashland, Kentucky, Officer Travis Bishop found Stark with a black LG cell phone



       *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 18-5615, United States v. Stark


in his hand. He took the cell phone from Stark and passed it on to a lieutenant, who in turn gave

the phone to a special investigative technician. The technician logged the phone into evidence,

where it stayed until trial. Lieutenant Christopher Shelton, another member of the investigative

staff, was present when the technician received and logged the cell phone.

       The Government charged Stark with possession of a prohibited object in violation of 18

U.S.C. § 1791(a)(2). At trial, Stark testified that the device Bishop had recovered from him was

an MP3 player, not the cell phone entered into evidence. Two elements of Stark’s defense are

most relevant here. The first is his claim that two photos produced by the Government during

discovery, which purportedly showed the black LG cell phone taken from Stark, were actually

photos of two different phones. In his opening statement, Stark’s counsel told the jury, “[Y]ou’ll

hear the witnesses asked about this, there’s a picture of two different cell phones, and you’ll see

those photographs.” Stark’s counsel later cross-examined Bishop and Shelton about the apparent

differences between the phones in the two photos. Both officers admitted that the photos might be

of two different phones. Shelton testified that only one of the photos appeared to show the phone

entered into evidence, and he speculated that the prison’s investigative staff—which logs

approximately four cell phones per month at the facility—might have mistakenly downloaded a

photo of the wrong phone.

       The second defense raised by Stark at trial is that the cell phone’s chain-of-custody form

originally showed that the phone had been recovered from the A-Wing’s R housing unit, not the

G housing unit as reported by Bishop. The version of the form produced during discovery listed

only the R housing unit; but just before trial, Shelton crossed out the “R,” replaced it with a “G,”

and wrote his initials next to the change. At trial, he admitted to making the change and explained

that he had done so after confirming that the incident took place in the G housing unit.



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No. 18-5615, United States v. Stark


        The jury found Stark guilty. On appeal, he claims that the Government violated his due

process rights under Brady v. Maryland, 373 U.S. 83 (1963), by suppressing exculpatory evidence

at his trial. Liberally construed, his brief alleges that the Government withheld evidence showing

that (1) the photos presented at his trial were of two different phones, (2) the phone’s chain-of-

custody form had been altered, and (3) the cell phone at issue belonged to a different inmate.

                                        II.   ANALYSIS

        To raise a Brady claim, Stark “must show that (1) evidence favorable to [him] (2) was

suppressed by the government and (3) [he] suffered prejudice.” Henness v. Bagley, 644 F.3d 308,

324 (6th Cir. 2011). Ordinarily, we review the district court’s resolution of a Brady claim de novo.

United States v. Crayton, 357 F.3d 560, 568–69 (6th Cir. 2004). But in this case, none of Stark’s

Brady claims were raised in the district court. Where “defense counsel did not make a motion for

a mistrial or raise the question of a possible Brady violation to the district court, we review at most

for plain error.” Id. at 569.

        The district court committed no error, plain or otherwise. Stark’s first two Brady claims—

which concern (1) the two photos presented at trial and (2) the altered chain-of-custody form—

suffer from the same problem. A Brady violation occurs only when the Government suppresses

evidence. See Henness, 644 F.3d at 324. Neither the photos nor the altered form was suppressed.

In fact, both were key pieces of evidence at trial. Stark’s counsel heavily emphasized the

differences between the two photos and cross-examined Bishop and Shelton about the alteration

in the chain-of-custody form. The jury nevertheless found Stark guilty. On these facts, he cannot

show that the evidence was suppressed (because it was repeatedly discussed at trial) or that he

suffered prejudice (because the jury found him guilty despite this evidence).

        Stark rests his last Brady claim on the assertion that the cell phone entered into evidence

was actually found inside a different inmate’s locker. In support, he simply announces that,
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No. 18-5615, United States v. Stark


“[b]ased on information and belief,” he has “learned” that the cell phone belonged to a different

inmate. But he does not explain how he learned this fact, nor does he offer any evidence to suggest

that the cell phone was found in a different inmate’s locker. His bare assertion “on information

and belief” is not enough. See, e.g., United States v. Lucas, 841 F.3d 796, 809 (9th Cir. 2016)

(“[T]o challenge the government’s representation that it does not have Brady evidence, [the

defendant] must do more than speculate that Brady material exists.”).

                                   III.   CONCLUSION

       Stark has not shown that the Government failed to disclose exculpatory evidence. We

therefore AFFIRM.




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