island representing mr sullivan i would like to reserve five minutes for a bottle brady ensures that the jury and not the prosecutor is able to weigh the importance of evidence favorable to the defense if evidence to favorable to the defense and it could very well affect the jury's decision then it must be disclosed here the government failed to disclose precisely the sort of favorable evidence that it was the jury's province to w man for the district court to take a look at this issue in light of the additional evidence that was gathered after this case was already on appeal and for the district court to consider in the first instance the various issues raised by that evidence turning to the brady claim specifically the october twenty fifth p and c bank armed robbery there's been a lot of dispute between the parties about how to characterize what happened with mary in val's she was the only eyewitness to identify mr sullivan for this robbery and in fact the government said she was the key witness and she testified at length about how her abilities as a sketch artist made her particularly great at identifications what the defense did not know because it was not disclosed is that two weeks after the robbery in two thousand and two weeks she was shown a photo array and i would direct you to appendix page eight to thirty seven so rather than characterize it i'll just read it mary and it vised that it didn't appear to be any one of them mary and did advise that it looked like number five mr sullivan but skinnier that was a failed photo array she advised it did not appear to be any one of them that was not provided to the defense and edition of the government makes much of the fact that she said it looked like mr sullivan but skinnier the picture that she was looking at was only two days old of mr sullivan so the fact that she said the robber was skinn er is actually even more expose tory that is not all the government failed to disclose as part of a pattern of disclosing none of the f b i witness interviews except for one witness in this case her witness interview which she said that she did not see the robber as he left the bank she had her head down she couldn't see him at trial she testified that she was able to see him he ran across the intersection that was further impeaching evidence that was not all of which would have undermined the only eyewitness again that's not all the government failed to disclose an f b i report which in which case agent i think it's a case agent we have a good faith basis for believing that based on the initials d w concluded in november two thousand and one that the robber who committed the october twenty fifth robbery was not the same as the robber whose had had committed the two thousand and one robberies that were charged in this case that was not disclosed also not disclosed fingerprint evidence the government's case agent testified there was no fingerprint evidence in this case there were no fingerprints they were considered evidence except for the one inculpatory fingerprint that was the testimony in actuality there was a lot of fingerprint evidence that was thought to be the suspects that were fingerprints of value that did not match mr sullivan there were fingerprints from the october twenty fifth robbery that were of value they were sent to atheists they did not match their alternative suspects the fingerprints were compared to curtis martin the government says well you can't show the curtis martin was linked to the case well we have not had an opportunity to the precisely sort of thing that should be fleshed out in an evidentiary hearing or at least with an opportunity for further factual development and discovery because presumably the police don't just pick a name out of a hat to run fingerprints through so there should have violation if you are to get around the procedural default of the to the all the items i just just discussed only two are potentially subject to procedural default and that is the boone county report of the field photo array and the witness interviews statement of marion valves everything else was not available appellate counsel and therefore the brady violation itself under stick strictly re green and procedural default the inquiry is the same because the fact the government failed to disclose its cause and prejudice comes from the same reason key ones one was the issue that was not raised stronger than the ones that were raised that's clearly true here because appellate counsel direct appeal did bring a brady claim but he brought a brady claim on the basis of information of unknown value there were over twenty witnesses who testified or from other identification we know they filled out forms after the robbery and gave them to the local police or wherever those forms have never been disclosed we don't know what they say they could be expelled to tory we don't know that is what he made his brady claim based on a brady claim based on clearly exculpatory evidence such as a failed photo array is a stronger claim and at the very least could have been included more over this court looks as but the image issue significant and obvious this is very significant because this robbery alone subjected mr sullivan to a twenty five year mandatory minimum consecutive sentence and so it was significant it was obvious anyone who looks at this and says marion bell said it didn't appear to be any one of them would see how key the that impeaching value was for her eye witness identification at trial and especially given that she was the only eyewitness and the other two i witness i would submit we've shown enough at this point to establish a pretty violation we have shown and not to get an evidentiary hearing on the remainder of the counts for two reasons one the government's entire theory at trial was that all of these robberies there's one string there the same string one robert zero possibility that any you know the standard fall together and so by drawing taking one thread out that's going to significantly affect the jury's assessment of the whole case moreover there is a pattern of categories of evidence of exculpatory value that was not disclosed the first or the witness interviews with the exception of one statement that went to mr sullivan's codefendant every witness that went to mr solomon alone none of the f b i witness interviews were disclosed none of the fingerprint evidence was disclosed except for the one and coquetry piece of fingerprint evidence which of course we also argue the truck ounce was ineffective for failing to pursue and no evidence so there is material out there and given the pattern shown to be undisclosed that we believe there's good cause for evidentiary hearing at the least even if this court is not comfortable with ordering an evidentiary hearing the government itself has moved a motion that has not been withdrawn and this my colleagues tries it today to remain on this case and allow the district court to take a look at this evidence in the first instance and we agree not everything's the before the district court and we would at the very minimum like the opportunity to do that and the district court can take the time to go through the evidence consider it consider what further factual development is required and although we think the standard is met to order in evidence or hearings court can order every man short of that simply to allow the district court to make that decision in the first instance in addition the government has conceded that resenting is required the case has to go back for that reason as well and although we stand on the briefs with respect our ineffective assistance of counsel claim we would make the so to look again just october twenty fifth what's left of the government's case when you consider what the government failed to disclose are three eyewitnesses to who could make no identification one who identified mr sullivan two years after the robbery but could not identify and two weeks after the robbery there is the fact that he paid his child support bill the same day at an unknown time as the robbery but we are to know that he worked in cash and that he had cash on him or on the time there's a jailhouse informant who testif your position that's your position and if so what would you have the district court consider or remain your honor while it is true that we have not formally withdrawn that motion it is not our position that the remainder strictly necessary at this point i think at the time that motion was made in response to solvents motion to expand the certificate of appeal ability and he filed numerous additional documents that he would have as part of the record at that point the motion to supplement though that was filed you know post appeal is more limited it's about fifty or sixty pages of material that was attached as exhibit k to the motion to supplement and in light of that material and having taken a closer look at it against the balance of the evidence we feel that it is not material it is not exclusive to tori and that this court could resolve the issue if it chose to do so on its own without a rematch and so it so we do not feel that that's strictly necessary to me the benefit is that you would have a district court determination obviously of the merits of that claim that this court could then review the downside is that we'd be back up here on the peel should his  an interesting dilemma in connection as motions to supplement because presumably we have to look at the material that somebody wants to supplement so once having looked at it then why wouldn't we just simply consider it and i think that's what we're asking if you're ok with that we're perfectly fine with that in your absolutely right i mean the standard for the motion to supplement is would this additional proffered material resolve beyond any reasonable doubt the issues in the case that we don't think that it would but certainly you're going to have to look at it anyways so you would have us grant the motion to supplement or not at least go to object you wouldn't have us remain and unless we wanted the district court's separate and independent assessment of those additional matters raised in the motion to remain basically it right if there's additional evidence sherry if there un tie then from an evidentiary standpoint that are raised by the new supplemental documents then perhaps  as appropriate i don't think that there are but that would be that would be the only appropriate basis i think just stepping back here it's necessary to put the brady claims in their context in the context is this that this appeal represents in many respects the third by if the brady apple that solving this had most of the documents that are the basis for his current brady claims including the documents that were just discussed he had at the time of his direct appeal and he did not raise brady claims based on those records he had those same documents at the time that the magistrate judge denied his amended twenty to fifty five motion and he did not follow objections to that are in our and therefore he's procedur fault of those claims and he's waived the public review of those claims what he does now is take these supplemental records that are of little value and the weaves them together with records that he has had for eight nine ten years in order to resurrect the wave claims and and we think that's procedurally improper because he had an opportunity to address brady previously he didn't do so and that those those claims are beyond this courtroom view at this point with respect to the merits of those having put that in context and we can take the example that was discussed earlier about the october twenty fifth robbery it was not just marion vallas who provided testimony that was relevant caliber handgun off of the security guard he was the first witness that the jury heard on that particular robbery if you would this is what are the security guard gets up and testifies and says that the robber in question took a forty caliber handgun off course of the robbery now he could not identify sullivan as that robber but you have you have evidence in front of a jury that was persuasive you had the confession that was relayed by the jailhouse informant corroborated by the security guards testimony marion val's likewise i think the county investigative report that says that it looked like sullivan but skinnier is is not material given her testimony the defense counsel had at the time of the trial a composite sketch that was prepared based on her recollection of the robbers appearance and through that into evidence the jury was able to compare that composite sketch to her testimony compared to surveillance photographs compared to solve an appearance at trial and make a determination based on all that evidence of her credibility as a witness as well as his guilt i gather they never found the gun not the gun that he took from the not that i'm aware of your honor your argument is that the jailhouse snitch with whatever his other motivations might have been could not have known about the gun being taken in that robbery other told exactly exactly exactly the case agent's conclusion that sullivan was not linked to that robbery that was disclosed prior to trial there's a portion of the boone county investigative report two paragraphs of it that were produced to defense counsel prior to trial as brady material let's say the agent doug warner went to the jail talked to some of and concluded after that discussion that he did not commit the october twenty fifth robbery and that was disclosed so that was available to the defendant the fingerprints the fact that fingerprints didn't match solving or match anybody is not  from there were the think there were fingerprints taken from the side of the robbery in october twenty fifth of this p f c bank in union kentucky and those fingerprints were determined to be of no eviden value in that they didn't match any of the suspects in the case including sullivan and so information about the non match was not disclosed to solving this part of the pretrial disclosure because it was not exclusive to tory you don't think it should have been turned over even i understand your point about you know was material or exculpatory in the sense technical sense but don't criminal defense lawyers argue all the time they have fingerprints and so was but the fact that it didn't match him was i mean that was testimony at the trial we we did not it was undisputed that there were no fingerprints that match sullivans at any of the banks except for heritage bank the last bank in the string so that was that was known to him there was no evidence fingerprint evidence linking him to that robbery so what specifically is it that he's claiming wasn't disclosed with respect to the fingerprint there is a the fact that fingerprints were lifted from that scene that they were scanned in against a suspect by the name of curtis martin as well as a couple others and that they simply didn't match and the of those suspects but at trial there was evidence that  they lifted prints into the prints didn't match so with that you know your honor just to be clear that wasn't the evidence that there was no the evidence the doug warner testified to was that there was a match of a fingerprint belonging to solve and at the last bank but not none of the others there were there was not evidence however that they lifted fingerprints from p and c bag it's quite different than that and saying we don't have any fingerprints that match one thing would be good to know that you so you try to get and they didn't match that's a little stronger it may be i'm not saying that it's  hundred percent clear cut that it should not have been disclosed out of an abundance of caution i am saying that it's not material given the other evidence that was put into the record on this particular robbery and so you know this is their this is their best case right the october twenty fifth robbery the stuff that was not disclosed is not material and i don't think it warrants an evidentiary hearing or remain and with respect to all of the other eleven robberies the the evidence was compelling for the whole string i mean this case to come up on direct appeal the court found that the evidence was strong and sufficient with respect to three robberies in particular with respect to heritage bank a fourth one to describe the evidence is overwhelming  and that evidence still holds i don't think it's really contradicted by the additional materials that that solve in six to supplement the record with but you do agree is that you argue mainly their exception of one however for most of the witnesses who testified we did produce a pretty trial the there are handwritten notes and there robbery identification cards that they made immediately after the robbery but not material i mean minor discrepanc and again stepping back these are not documents that the district court considered or the magistrate judge considered the twenty to fifty five that this appeal addresses raised only one specific issue of brady and that was this three of two belonging to a witness by the name of debra canton otherwise made a very generalized argument that the government failed to disclose information and the magistrate judge addressed that deborah canton three o two in a footnote in that specific finding was never objected to and so you know the district court's attention was not focused on that issue and now the current brady claims are you know much much more expansive than what was ever raised below and i think that's the difficulty with this case is that you had specific issues that were specifically addressed and those aren't the issues that we're now talking about on appeal counsel below that connection in connection with procedural default that operates within a twenty to fifty five has he attempted to go back and present that additional evidence then to the district court or not there were there were some additional materials that were solving rather than objecting to that filed a motion to him and his previously amended twenty fifty five and he did present additional documents to the court at that time he obtained a fingerprint analysis by an expert you know a year before five years after the trial he presented that to the district court that type of thing so the the district court i'm not sure from history question but he did have additional records apolo if i understand right that some of these additional that he he did exhaust but you claim is now procedurally defaulted bringing bringing them up before our court because of the failure to object to the r and r and i'm gathering there are still other things then that have come up even subsequent to that that's correct and as you say have they ever been presented below no euro so that's what the motion to remain with correct ok in the motion to supplement sought to put most of those documents before the court trial counsel below was effective i think that the magistrate judge's findings on that point are more persuasive and appellate counsel was as well i think to get around the procedural default argument solving claims that presented different brady arguments but the brady arguments that were presented were good there was an allegation that the government agent had discarded hair and fiber samples taken from one of the robbery scenes and that was the basis of the brady motion that's not a bad argument and certainly not one that this court even you know even if it were to use hindsight which would show they could say was objective we deficient and that's what sullivan has to show here in order to get around the procedural d hurdle and so in short my time is almost up but we would ask that this court affirm the district court's denial of the twenty to fifty five with the exception of its ruling on assault weapons right to rip to be recent and we agree that he with the october twenty five robbery the context here is that the jury was instructed consistent with this court's criminal pattern instructions to view each count and you the evidence for that count separately and indeed this court and other courts of how brady materiality about robberies that never happened there were news reports and i apologize this is not in the record there were news reports talking about the october twenty five robbery so he may have obtained information about the robbery from th security guard saw mr sullivan in a show up not just a photo array could not identify him the other teller summon a photo array could not identify him yes mr sullivan's trial counsel was able to introduce mary ann bell's composite sketch that's a far cry from being able to stand up in front of marion bell's after she's discussed how great her identification ability is because she's a sketch artist and she looks at facial features and say but two weeks after the robbery miss val's you were unable to identify mr sullivan from a photo array isn't that true  ever able to make that point moreover on the fingerprint evidence defense counsel repeatedly asked witnesses did you see the robert touch surfaces he tried to draw out the fact that there should have been fingerprint evidence however when the government's witness got on the stand he said there's no fingerprint evidence are no fingerprints that are considered evidence he never testified that fingerprints of value been lifted from any of these scenes and moreover he went on to testify look it's very difficult to get prints from these scenes a lot of the time you don't get them that left the impression in the jury's mind of mourners having a little trouble figuring out how if the government says they don't have any fingerprint evidence that an exhibit that cooperates that they don't have any physical fingerprint evidence is is material even though there is that subtle difference of saying well we look we lifted some prints and we ran amok we couldn't match it with anybody how could that be anything other than harmless both course material it has evaluated cumulatively with respect to the count and we think that little addition does matter because what defense counsel typically asked were what were there any fingerprints and any of the other scenes the case agent said no no fingerprints and there's a dash dash that were considered evidence that does not say there were suspect prints that's how the f b i categorized the suspect prints lifted from the door handle the wrapper touched they were of value we ran all these comparisons a defense counsel's in a much better stronger position to make the precise claim he was trying to make when he was mentioning the fact that the robber touched all the surfaces and particularly in light of the government coming back in and suggesting oh well the reason why there's a fingerprint evidence is that fingerprints are really hard to lift from these but that's not all that the government is absolutely correct agent warner did at the time of the october twenty five robbery interview mr sullivan and decide he was not a suspect that was introduced before the jury what was not introduced was agent warner's opinion in november two thousand and one after five robberies in two thousand and one had occurred at the october twenty five robbery was committed by someone different in those two thousand and one robberies that goes directly to his testimony these in this trial that they're all one string all part you know we always consider them one string they're all similar no deviations turning to the procedural issues on objections if you look at a reply brief on page twenty one you'll see that mr sullivan although he captioned his pleading and again proceed pleadings ar to be construed liberally he captioned his pleading motion to amend and to recall the report recommendation but what it was was a memorandum of law responding directly to the magistrate judge a statement  that his claim that the government withheld over fifty three o two ports and other reports was without support in his response to the district court he provided that that support the district court considered it said i considered all of these things considered on the merits so that excuses were right there as this court said no we did not go back and present after the additional material came through the foyer at the top and let them explain when the thing at the time of the proceedings before the magistrate judge mr sullivan's appellate counsel had some of these files that mr solomon did not he subsequently got a copy of his file from appellate counsel and that's how he was able to supplement with what he gave to the district court then we got seven hundred pages from florida we did not go to the back to the district at that time because it was the case was already up here the district court had no jurisdiction and and mr sullivan pro se had already filed every reconsideration material of the motion available there was no vehicle to go back to the district court so in conclusion we have presented enough that at the least the district court should be the one to take another look at this particularly in light of the hundreds of pages that we haven't even seen yet and we