NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0439n.06
No. 11-1179
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. TI MOTHY DE NNI S O’REI L L Y, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BOG GS, SUHRHEI NRI CH, and COOK, Circuit Judges.

COOK, Circuit J udg e. A jury convicted Timothy O’Reilly o f o n e count of preme ditated murder and five robber

y -re lated counts stemming fr o m h i s participa tion in two armore d-truck robber ies. The g overnme nt soug ht the death penalt y o n the murder char g e but, afte r a two-we ek penalty phase, the jury

declined to impose the de ath pena lty . The dist rict court sentenc ed O’ Reilly to life imprisonment. O’Reilly now appe als, asser

ting a Brady violation and also c laiming that the district c ourt committed sever al evidentiar y err ors. For the following rea sons, w e reje ct O’Reilly ’s
arg uments and af

firm.

We turn first to O’Reilly ’s Brady challeng e. “A Brady violation includes three elements: (1) the evidenc e must be favor able to the acc used, either beca use it is exculpatory , or beca use it is
i m peac hing; (2) the evidenc e must have been suppressed by the State, either willful l y o rNos. 11-1179

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Reilly

i n ad v er t en tly ; and (3) prejudice must have ensued.” Doan v. Carter , 548 F.3d 449, 459 (6th Cir. 2008) (citing Strickler v. Gree ne , 527 U.S. 263, 281-82 (1999)) (interna l quotation marks omitted). O’Reilly ’s claim does not sa tisfy any of these three prong s. O’Reilly contends that the g overnme nt

ran afoul of Brady by failing to produce handwr itten notes taken by Ba rron Nix -B ey , a witness who testified ag ainst O’Reilly at trial. But O’Reilly does not spe cify how the missing notes would ha ve been exculpatory or i mpeac hin g bey ond his conclusory asser tion that he could have used the not es
to impeach Nix -B ey . He also fails to explain how t h e g overnme nt, which never possessed the disputed notes, could be char g ed with suppressing them. I ndeed, the g overnme nt produce d letters to the police and FB I 302s from Nix -B ey that incorporated information from the notes. As for whether prejudice ensued, O’Reilly maintains only that Nix -B ey “cha ng ed his story on sever al occa sions, and the notes could have been used to provide further impeachme nt materia l.” Given O’Reilly ’s acc ess
to Nix -B ey ’s 302s and police letters, it is unclea r what “impeac hment materia l” the notes might have
conta i n ed b ey ond that disclosed in the documents alre ady in O’Reilly ’s possession. We reje ct O’Reilly ’s Brady claim.

The invited-err or doctrine bars the rema inder of O’Reilly ’s challeng es. O’Reilly claims that the district court err ed when it allowed prosec utors to prese nt evidenc e rela ting to ot h er ro b b er ies involving O’Reilly and O’Reilly ’s murder- for- hire eff orts ag ainst prosec ution witnesses. But O’Reilly ’s own defe nse counsel’s opening statement informed the jury about both sets of events. He
pree mptively

downplay ed the se riousness of the murde r-f or-hire plot, say ing:

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You’re g oing to hear from a g uy by the name of Guidice Young , Dominic Young

. And I think it was in 2007 they ’re talking and y ou know, Tim [O’Reilly ] is talking Watson did this, Watson did that, I did this, I did that. Oh, and by the way , there ’s these people who are I nformants. I ’d sure like to have them killed. Sounds pretty bad. Mr. Young g oes to the FB I

. Hey , this g uy y ou know talks about killing witnesses and here ’s how seriously they took it. They did nothing. They didn’t move Tim to another cell. They didn’t move him to another jail. They didn’t take awa y his phone privileg es. The FB I didn’t have him char g ed with other crimes. They didn’t take awa y his visiti ng rig hts. They didn’t even te ll the Way

ne C ounty J ail wher e Tim was that this supposed plot had occurre d. They didn’t take it s eriously enoug h to do any

thing and they ’re g oing to ask y ou to kill hi m with it.

S i m i l ar l y , defe nse counsel ref err ed to O’Reilly ’s 2003 arr est and conviction on conce aled- wea po n char g es during his ope ning statement, explaining that the police discove red O ’Reilly in the back of a parked van wea

ring a bulletproof ve st and surrounded by three loaded firear ms. The arre st came afte r a night during which O’Reilly and his associate s robbed two “dope houses.” Her e too, counsel
soug ht to downplay

these e vents to the jury :

About 18 months later in 2003, we have the Comerica Ba nk robber y at Chicag o and Schafe r, and then of course y ou will lear n that some time afte rwa

rds Tim was arr ested on char g es of C ar ry i ng Concea led Weapons. The wea pons have nothing to do with this case . That case has very littl e -- has rea lly nothing to do with this case other than some of the sa me people w ere involved.

When the g overnme nt then announce d its intention to introduce additional evidenc e on these
matters in light of the opening statement, O’Reilly ’s attorney explained that he “alwa y s assumed” that evidenc e of the murder- for- hire plots “wa s coming in” and that t h e go v er nment would “allude to” O’Reilly ’s later 2003 arr est. O’Reilly may now reg ret his counsel’s decision to be first out of the g ate

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in addre ssing these disputed matters, but that reg ret does not war rant revie w. As this court explained in an ea rly case addre ssing the invited- err or doctrine :

There is no war

rant of course for r elieving the ac cused of the conse quence s of what appea rs to have b een a planned defe nse stratag em, by the device of condemning as ‘cle ar err or’ of the trial court a seeming ly calc u l at ed ri s k of defe nse counsel which happene d not to achieve the intended r esult with the jury

.
Edwards v

. United States , 265 F.2d 909, 910 (6th Cir. 1959)

. The ref ere nces to the disputed issues in O’Reilly ’s opening statement for eclose relief

. O’Reilly further asser

ts ineffe ctive assistance of counsel based on his attorney ’s fa ilure to object to the challeng ed evidenc e at trial. We g ener ally do not r eview ineffe ctive-a ssistance claims

on direc t appea l, pref

err ing instead that a defe ndant raise them “in a post-conviction proce eding under
28 U.S.C. § 2255 so that the parties c an deve lop an ade quate rec ord on the issue.” United States v. Thomas , 74 F.3d 701, 715 (6th Cir. 1996) (quoting United States v. Seym our , 38 F.3d 261, 263 (6th Cir. 1994)) (citation and quotation marks om i t t ed ). W e there fore decline to revie w his corollar y ineffe ctive-a ssistance c laim.

We affir m.

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