United States v. Massey , 89 F.3d 1433 ( 1996 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 94-434l
________________________________
D.C. Docket No. 9l-708-CR-JAG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR MASSEY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________________________________
(July 12, 1996)
Before HATCHETT and BARKETT, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
In this "Operation Court Broom" case, we affirm the
appellant's convictions and sentences.
In the late l980s, federal and state law enforcement
agencies set-up a sting operation called "Operation Court Broom"
to investigate allegations of corruption in the Circuit Court of
Dade County, Florida. "Operation Court Broom" resulted in a 106-
count superseding indictment against three judges and six lawyers
for RICO conspiracy and related charges.
FACTS
On several occasions in or around l987, Arthur Massey, a
lawyer licensed in Florida, sought Miami bail bondsman and
private investigator Albert Tiseo's assistance in obtaining court
appointments as a special assistant public defender (SAPD).1 In
return for Tiseo's efforts, Massey promised to have Tiseo
appointed as an investigator on the cases he received. In late
1988, Massey told Tiseo that a couple of thousand dollars could
"open some doors" with Circuit Judge Alfonso C. Sepe. Two weeks
after Massey's conversation with Tiseo, Tiseo met Sepe, gave him
approximately $2,500 in cash, and requested that Sepe begin
appointing Massey as SAPD. Sepe accepted the money and began
appointing Massey as SAPD.2 Approximately a month later, Sepe
hosted a Christmas luncheon for his employees and coworkers at
Art Brun's Executive Club (the Club). Sepe charged the cost of
the luncheon to Massey's account at the Club. Sepe also began
1
Circuit court judges appoint lawyers as SAPDs when the
Public Defender's Office cannot represent indigent defendants
because of a conflict of interest. The appointing judge also
determines reasonable attorney's fees for SAPDs.
2
Tiseo also received some appointments from Sepe on
Massey's court-appointed cases.
2
charging his luncheon bills at Buccione's Restaurant (Buccione)
to Massey. At that time, Sepe had lunch at Buccione's four to
five times a week. At the conclusion of Sepe's meals, Buccione's
employees would hold the guest checks for Massey, occasionally
writing Sepe's name at the top of the guest check. Thereafter,
Massey periodically would pay Sepe's billings with a personal
check or credit card.
In January l989, Tiseo approached Circuit Judge Roy T.
Gelber to request SAPD appointments for Massey. Gelber told
Tiseo that he did not feel obligated to appoint Massey as SAPD
because Massey did not give him money during his judicial
campaign. One week after this conversation, Sepe asked Gelber to
appoint Massey as SAPD on some of his cases, assuring Gelber that
he would settle Gelber's dispute with Massey. Gelber agreed and
appointed Massey as SAPD to two cases. Shortly thereafter,
Massey appeared at Gelber's chambers and gave him an envelope
containing $l,000 in cash. After Massey's visit, Gelber told
Sepe that he was reluctant to appoint Massey to any other cases
because no one had advised him of the conditions of their
arrangement. Sepe again assured Gelber that he would handle
Gelber's concerns. Gelber appointed Massey to two more cases,
but never received payment for those appointments. Later that
year, Sepe hosted another Christmas luncheon at the Club and
charged the cost of the luncheon to Massey. Massey paid neither
the bill for this luncheon nor for the Christmas luncheon given a
3
year earlier at the Club. Massey, however, continued to pay
Sepe's personal luncheon bills at Buccione.
In December of l990, Raymond Takiff, a private lawyer
cooperating with law enforcement, approached Gelber about
"fixing" two narcotics cases assigned to Sepe. Gelber asked Sepe
to fix the two cases and Sepe agreed. Gelber requested that
Massey receive the bribe money on their behalf. Sepe stated that
Massey "would be fine" for the job. Two weeks later, in a
conversation between Gelber and Sepe, Sepe stated that he did not
want to deal with Massey and that he was going to talk to David
Goodhart, a lawyer, about handling the bribe money. Sepe stopped
appointing Massey as SAPD.
Prior to Sepe's conflict with Massey, from November l988
through January l99l Massey paid approximately $l,700 of Sepe's
luncheon bills at Buccione. During this same period of time,
Massey received court appointments from Sepe resulting in
approximately $9l,400 in fees.
PROCEDURAL HISTORY
On May 27, l992, a grand jury in the Southern District of
Florida returned a l06-count superseding indictment against
Massey and seven codefendants.3 Count l charged them with
conspiring to violate the Racketeer Influence and Corrupt
3
The grand jury also indicted Judge Harvey N. Shenberg,
Judge Alfonso C. Sepe, Judge Phillip S. Davis, David Goodhart,
William Castro, Arthur Luongo, Harry Boehme, and Nancy Lechtner.
Judge Roy T. Gelber, an unindicted coconspirator, pleaded guilty
to RICO conspiracy and testified for the government against
Massey and the codefendants.
4
Organization Act (RICO), in violation of l8 U.S.C. § l962(d);
Count 2 charged Massey and four codefendants with violation of
RICO provisions l8 U.S.C. §§ l962(c) and l963(a); Counts 5, 85,
and 86 charged Massey with bribery in violation of l8 U.S.C. §
666(a)(2); and Counts 61 through 80 charged Massey with mail
fraud in violation of l8 U.S.C. §§ l34l, l346, and 2. The
indictment also sought the forfeiture of $35,000 in Massey's
possession.
The district court scheduled Massey and the codefendants'
trial for August 3l, l992. On July l6, l992, Massey filed a
motion for relief from prejudicial misjoinder and continuance.
In support of this motion, Massey filed an affidavit waiving his
right to a speedy trial and his right to challenge the location
of the trial. On May 13, 1993, the district court severed
Massey's trial from the trial of the remaining codefendants and
scheduled Massey's trial for September 7, 1993, in Fort
Lauderdale, Florida. Prior to trial, Massey filed a motion to
conduct the trial in Miami and a motion for continuance
requesting thirty days to review exhibits filed in his
codefendants' cases. The court denied the motions, but granted
Massey a seven-day continuance.
On September l3, l993, Massey's trial commenced. Massey
moved for a judgment of acquittal at the close of the
government's case and at the close of his case. The court denied
both motions. On September 30, l993, the jury convicted Massey
of RICO, RICO conspiracy, one count of bribery, and twenty counts
5
of mail fraud. After finding Massey guilty of these charges, the
jury heard the evidence on the government's forfeiture claim and
returned a verdict in the amount of $35,000. Massey filed post-
trial motions for judgment of acquittal and for new trial based
on an allegation of newly discovered evidence. The district
court denied Massey's motions. The district court sentenced
Massey to concurrent terms of thirty months imprisonment and two
years supervised release.
CONTENTIONS
Massey contends that insufficient evidence supports his
convictions and that the district court abused its discretion in
allowing the government to use summary charts, admitting records
of restaurant guest checks, and providing the redacted indictment
to the jury. Massey further contends that the district court
committed plain error when it provided the jury with a tape
recording of the jury instructions. Finally, Massey contends
that the district court erred in denying his motion for new trial
without an evidentiary hearing based on a claim that the
government suppressed evidence favorable to his defense.4 The
government contends that all of Massey's claims lack merit and do
not require reversal of his conviction.
ISSUES
4
Massey raises two other contentions on appeal: (l) the
government engaged in misconduct during closing arguments that
violated his Sixth Amendment rights; and (2) the district court's
denial of his motion to conduct the trial in Miami and his motion
to continue the trial for thirty days constitutes reversible
error. We find that these claims lack merit and do not warrant
discussion.
6
We discuss the following issues: (l) whether sufficient
evidence supports Massey's convictions; (2) whether the
government's use of summary charts substantially prejudiced
Massey's case; (3) whether the district court abused its
discretion in admitting restaurant guest checks at trial; (4)
whether the district court properly provided a redacted
indictment to the jury; and (5) whether the district court
properly denied Massey's claim that the government suppressed
favorable evidence without an evidentiary hearing.
DISCUSSION
A. Sufficiency of the Evidence
Whether sufficient evidence supports a conviction is a
question of law we review de novo. United States v. Mieres-
Borges, 9l9 F.2d 652, 656 (llth Cir. l990), cert. denied, 499
U.S. 980 (l99l). In reviewing the sufficiency of the evidence
presented at trial, we examine the evidence in the light most
favorable to the government and resolve all reasonable inferences
and credibility evaluations in favor of the jury's verdict.
United States v. Gilbert, 47 F.3d lll6, lll8 (llth Cir. l995);
United States v. Camargo-Vergara, 57 F.3d 993, 997 (llth Cir.
l995). If a reasonable person could find that the evidence
establishes guilt beyond a reasonable doubt, the jury's verdict
must be upheld. United States v. Jones, 933 F.2d l54l, l546
(llth Cir. l99l).
Massey challenges the sufficiency of the evidence supporting
his convictions on several grounds. First, Massey contends that
7
insufficient evidence supports his bribery conviction because the
government failed to present direct evidence that he agreed to
purchase meals for Sepe in exchange for court appointments.
Second, Massey contends that insufficient evidence supports the
predicate acts supporting his RICO convictions, and therefore
argues that his RICO conviction fails. Third, Massey contends
that the alleged infirmities of the predicate acts supporting the
substantive RICO conviction also necessitate the finding that
insufficient evidence supports his RICO conspiracy conviction.5
In reviewing the sufficiency of the evidence supporting
Massey's bribery conviction, we first note that Massey bases his
challenge on the incorrect assumption that the government must
produce direct evidence of a verbal or written agreement in order
for this court to sustain the bribery conviction. "'[D]irect
evidence of an agreement [, however,] is unnecessary: proof of
such an agreement may rest upon inferences drawn from relevant
and competent circumstantial evidence.'" United States v.
Carter, 721 F.2d 1514, l532 (11th Cir. 1984) (quoting United
States v. Elliot, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439
U.S. 953 (1978)). To hold otherwise "would allow [defendants] to
escape liability . . . with winks and nods, even when the
evidence as a whole proves that there has been a meeting of the
5
In support of his sufficiency of the evidence argument,
Massey notes that a jury acquitted Sepe on counts on which this
jury convicted. Because the acquittals of a defendant's alleged
coconspirators in a trial before a different jury does not
preclude a defendant's conviction for having conspired with them,
we find that Sepe's acquittal is irrelevant. See United States
v. Irvan, 787 F.2d l506, l5l2-l3 (llth Cir. l986).
8
minds to exchange official action for money." United States v.
Carpenter, 961 F.2d 824, 827 (9th Cir.), cert. denied, 506 U.S.
9l9 (l992).
The jury convicted Massey of one count of bribery in
violation of 18 U.S.C. § 666(a)(2) finding that Massey purchased
Sepe's lunches at Buccione in exchange for court appointments.
Section 666(a)(2) provides:
Whoever . . . corruptly gives, offers, or agrees to
give anything of value to any person, with intent to
influence or reward an agent of . . . a state, . . . in
connection with any business, transaction, or series of
transactions of such . . . government involving
anything of value of $5,000 or more . . . shall be
fined under this title, imprisoned not more than ten
years, or both.
l8 U.S.C. § 666(a)(2). At trial, Tiseo testified that Massey
told him that a couple of thousand dollars could "open some
doors" with Sepe. Tiseo also testified that after Massey's
statement he gave money to Sepe and asked Sepe to appoint Massey
as an SAPD. Tiseo further testified that Sepe kept the money and
subsequently began appointing Massey as SAPD. The owner of
Buccione, Pietro Venezia, testified that Massey began paying
Sepe's restaurant bills in November l989 during the same period
of time that Massey received appointments. Venezia further
testified that Sepe knew that Massey was paying these bills.
Venezia also testified that Massey ceased paying Sepe's bills in
January 199l during the same period Sepe discontinued appointing
Massey to cases. Based on this evidence, we conclude that
sufficient evidence supports the jury's finding that Massey
9
agreed to pay Sepe's lunch bills at Buccione in exchange for
court appointments in violation of l8 U.S.C. § 666(a)(2).
Next, we address whether sufficient evidence supports
Massey's RICO conviction. Count 2, the substantive RICO count,
charged Massey with participating in the conduct of the affairs
of an enterprise through a pattern of racketeering activity in
violation of 18 U.S.C. §§ 1962(c) and 1963(a).6 The jury
convicted Massey on Count 2 of the indictment finding that Massey
corruptly utilized the Circuit Court of Dade County for profit.
In convicting Massey, the jury specifically found that Massey
committed two predicate acts of bribery in violation of section
838.0l6(l) of Florida Statutes: racketeering act 2 involving the
payment of Sepe's bills at Buccione and racketeering act 5
involving the assignment of Sepe's Christmas lunch bills to
Massey's account at the Club. Massey, on appeal, argues that
insufficient evidence supports the jury's finding that he
committed racketeering act 5 because the government presented no
6
In order to establish violation of 18 U.S.C. §§ 1962(c)
and 1963(a),
the government must prove: (1) the existence of an
enterprise; (2) that the enterprise affected interstate
commerce; (3) that the defendants were employed by or
associated with the enterprise; (4) that the defendants
participated, either directly or indirectly, in the
conduct of the affairs of the enterprise; and (5) that
the defendants participated through a pattern of
racketeering activity.
United States v. Starrett, 55 F.3d 1525, 1541 (11th Cir. 1995)
(footnote omitted).
10
evidence that (1) Massey paid for Sepe's Christmas luncheon or
(2) that the Club sought payment from Massey for these bills.7
To sustain Massey's substantive RICO conviction, the
evidence presented at trial must show that Massey participated in
the corruption of the Circuit Court of Dade County--a legitimate
enterprise--through a pattern of racketeering activity. A
"'pattern of racketeering activity' requires at least two acts of
racketeering activity." 18 U.S.C. § 1961(5). Section 838.0l6(l)
only required the jury, in finding that Massey committed act 5,
to conclude that Massey agreed to pay for Sepe's Christmas
parties in exchange for court appointments, not that Massey
actually paid these bills. Section 838.0l6(l) provides:
It is unlawful for any person corruptly to give, offer,
or promise to any public servant, . . . any pecuniary
or other benefit not authorized by law, for the past,
present, or future performance, nonperformance, or
violation of any act or omission which the person
believes to have been, or the public servant represents
as having been, either within the official discretion
of the public servant, in violation of a public duty,
or in performance of a public duty.
Fla. Stat. Ann. § 838.0l6(l) (West l994). At trial, the
government presented evidence that Massey's friend of twenty
years owned the Club, that Massey frequently dined at the Club,
that Sepe only dined at the Club on the two occasions he hosted
the Christmas luncheon, and that on both occasions Sepe charged
the luncheon to Massey's account at the Club. We conclude that
7
Massey also contends that the $35,000 forfeiture judgment
entered against him must be set aside arguing that insufficient
evidence supports his RICO conviction. We reject this contention
because we find that sufficient evidence supports Massey's RICO
conviction.
11
this evidence sufficiently supports the jury's finding that
Massey agreed to pay for Sepe's Christmas luncheons at the Club
in exchange for court appointments.
Similarly, we reject Massey's argument that insufficient
evidence supports his RICO conspiracy conviction (Count l)
because the alleged infirmities of predicate act 5 do not warrant
the reversal of Massey's RICO conspiracy conviction.8 It is well
settled in this circuit that the government can prove an
agreement to participate in a RICO conspiracy in either of two
ways: (1) showing an agreement on the overall objective; or (2)
showing that a defendant agreed personally to commit two
predicate acts thereby agreeing to participate in a "single
objective." United States v. Church, 955 F.2d 688, 694 (11th
Cir.), cert. denied, 506 U.S. 88l (1992); Starrett, 55 F.3d at
l544. Even assuming that insufficient evidence supports Massey's
substantive RICO conviction, the evidence in this case supports
the finding that Massey agreed to the overall objective of the
enterprise--i.e., to corruptly utilize the circuit court system
for profit. "The government can prove an agreement on an overall
objective 'by circumstantial evidence showing that each defendant
must necessarily have known that the others were also conspiring
to participate in the same enterprise through a pattern of
8
The government contends that Count 1, the RICO conspiracy
count, did not incorporate the racketeering acts detailed in
Count 2, the substantive RICO count. It therefore argues that
sufficient evidence supports Massey's RICO conspiracy conviction
even assuming that his substantive RICO conviction fails. We
agree for the reasons stated above.
12
racketeering.'" Starrett, 55 F.3d at 1544 (quoting United States
v. Gonzalez, 921 F.2d 1530, 1540 (11th Cir.), cert. denied, 502
U.S. 860 (1991)). We find that the evidence in this case also
supports the finding that Massey knew that others were also
conspiring to corruptly use the circuit court system for profit.
Accordingly, we hold that sufficient evidence supports Massey's
conviction for RICO, RICO conspiracy, bribery, and mail fraud.
B. Evidentiary Matters at Trial
In examining the district court's evidentiary rulings, we
review for abuse of discretion. United States v. Norton, 867
F.2d l354, l362 (llth Cir.), cert. denied, 49l U.S. 907 (l989).
Where a defendant fails to object at trial to a ruling complained
of on appeal, the district court's ruling only warrants reversal
upon a showing of plain error. Fed. R. Crim. P. 52(b). An error
constitutes "[p]lain error, when examined in the context of the
entire case, [it] is so obvious that failure to notice it would
seriously affect the fairness, integrity and public reputation of
judicial proceedings." United States v. Walther, 867 F.2d l334,
l343-44 (llth Cir.), cert. denied, 493 U.S. 848 (l989).
1. Use of Summary Chart
Without objection from defense counsel, the government used
summary charts as demonstrative evidence during the trial. On
appeal, Massey contends that the government's use of a summary
chart purporting to show the relationship between Massey's
payment of Sepe's luncheon bills and Sepe's appointments of
Massey as SAPD substantially prejudiced his case because the
13
chart alleged that he paid $l0,000 rather than the $l,700 the
government proved at trial.9 We find that Massey has failed to
show actual prejudice.
Rule l006 of the Federal Rules of Evidence provides that
"[t]he contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation." Fed.
R. Evid. 1006. In this case, the illustrative charts complained
of merely summarize the evidence presented at trial. The
government introduced numerous guest checks and receipts as well
as testimonial evidence that Massey made approximately $l0,000
worth of payments for Sepe's meals. Massey's counsel conducted
voir dire on each of the charts prior to the court's ruling on
its admissibility. Defense counsel also conducted a thorough
cross-examination of the witnesses concerning the disputed
matters. In fact, Massey submitted his own summary charts during
his defense. Moreover, the district court instructed the jury to
disregard any charts or summaries which "do not correctly reflect
facts or figures shown by the evidence in the case." In light of
9
For sentencing purposes, the government must establish the
amount of Massey's payments by a preponderance of the evidence.
United States v. Taffe, 36 F.3d l047, l050 (llth Cir. l994). The
district court at Massey's sentencing hearing determined that the
government only proved that Massey paid $l,700 of the $l0,000 the
government alleged. This finding, however, does not transform
the district court's decision to allow the use of the
government's illustrative charts to an abuse of discretion
because rule l006 does not require the fact finder to accept the
information present on the summary charts as true. See Fed. R.
Evid. 1006.
14
these circumstances, we find that the district court did not
abuse its discretion in admitting the summary charts.
2. Admission of Restaurant Receipts
Next, Massey contends that the district court abused its
discretion in admitting Buccione Restaurant guest checks. The
government presented evidence at trial that when Sepe had lunch
at Buccione the employees held the guest check for Massey,
occasionally writing Sepe's name at the top of the guest checks
before setting the guest checks aside. At trial, defense
counsel objected to the admission of Buccione's guest checks
containing Sepe's name arguing that the records did not
constitute records kept in the regular course of business. The
district court overruled defense counsel's objections finding
that the persons who wrote Sepe's name on the challenged
documents did so in the regular course of business.
"The business-records exception . . . provides that a
record, 'if kept in the course of a regularly conducted business
activity,' and if 'it was the practice of the business activity
to make the . . . record,' is admissible unless circumstances
'indicate lack of trustworthiness.'" United States v. Metallo,
908 F.2d 795, 799 (llth Cir. l990) (quoting Fed. R. Evid.
803(6)), cert. denied, 503 U.S. 940 (1992). Prior to admitting
the restaurant guest checks and receipts into evidence, the
district court permitted defense counsel to voir dire the witness
as to each document. Venezia, the owner of Buccione, identified
his handwriting as well as the handwriting of his employees on
15
the restaurant guest checks. Three Buccione employees also
testified as to their handwriting on the guest checks and
knowledge of the facts contained in the document. This testimony
supports the district court's finding that Buccione employees
wrote Sepe's name on the restaurant guest checks in the regular
course of business. We, therefore, hold that the district court
did not abuse its discretion in admitting the guest checks as
admissible hearsay under Federal Rule of Evidence 803(6).
C. Submissions to the jury
l. Redacted Indictment
In this case, the district court provided a redacted
indictment to the jury containing only the counts the grand jury
charged against Massey. The RICO conspiracy count of the
indictment, however, included racketeering acts of both Massey
and the codefendants. Massey contends that the district court
erred in submitting this redacted indictment, arguing that the
inclusion of codefendants' acts of case-fixing unfairly
prejudiced his case. We review the district court's submission
of the indictment for abuse of discretion. See United States v.
Polowichak, 783 F.2d 4l0, 4l3 (4th Cir. l986) (finding no error
where district court submitted indictment to a jury and gave
cautionary instruction).
Our review of the record persuades us that the inclusion of
codefendants' racketeering acts in the indictment merely aided
the jury in "explaining the context, motive and set-up" of the
RICO conspiracy. United States v. Williford, 764 F.2d l493, l499
16
(llth Cir. l985). Count l of the indictment charged Massey and
the codefendants with conspiring to corruptly utilize the circuit
court for profit. Each of the racketeering acts in the
indictment clearly identified which defendants committed the
alleged acts. The district court, prior to providing the
indictment, instructed the jury that the indictment did not
constitute evidence. Massey, moreover, has not shown that the
jury used the codefendants' racketeering acts for an
impermissible purpose. Even assuming prejudice, sufficient
evidence existed to support Massey's conviction independent of
any impermissible inferences the jury might have obtained from
the codefendants' racketeering acts. Because the district court
provided the indictment to aid the jury in following the court's
instructions, and properly instructed the jury that the
indictment did not constitute evidence, we conclude that the
district court did not abuse its discretion in providing the
redacted indictment.
2. Tape Recording of Jury Instructions
The "[s]ubmission of written instructions is within the
sound discretion of the [district] court." United States v.
Holman, 680 F.2d 1340, 1354 (11th Cir. 1982).
Massey contends that the district court erred in providing
the jury with only a tape recording of the jury instructions.10
10
The jury requested twelve copies of written jury
instructions on the first day of deliberations. The district
court, after noting that the court reporter had not transcribed
the jury charge, asked the parties if they objected to sending
the tape-recorded instructions to the jury. Neither the
17
Massey failed to timely object to the form of the jury
instructions; therefore, we review for plain error.
Specifically, Massey argues that the district court's actions
require reversal because the tape recording permitted the jury to
improperly focus on jury instructions relating to the RICO and
mail fraud counts without considering all the instructions. We
reject Massey's argument for three reasons. First, the tape
recording contained the entire jury charge. Second, the district
court instructed the jury to follow the instructions "as a whole"
and not to disregard any of the instructions. Third, no evidence
exists to suggest that the tape recording impaired the jury's
ability to follow the district court's instructions. Thus, we
conclude that Massey has failed to show that the tape recording
was so cumbersome that the taped instructions seriously affected
the fairness of his trial and the integrity of the jury's
verdict. Accordingly, we find no reversible error.
D. Brady Evidentiary Hearing
Finally, Massey contends that the district court erred in
denying without an evidentiary hearing his motion for new trial
government nor Massey objected to the submission of the tape.
The court subsequently sent the jury the tape along with the
message that no written instructions were available at that time.
At the end of the day, Massey's counsel requested that the court
also provide the jury with written instructions the following
morning. The court agreed. The jury, however, reached a verdict
that evening before the court reporter transcribed the
instructions. The next morning, the court informed the parties
that the jury had reached a verdict. At that time, Massey did
not object to the jury rendering a verdict without the benefit of
written instructions.
18
based on an allegation that the government failed to disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83 (l963). We review the district court's denial of an
evidentiary hearing for abuse of discretion. United States v.
Slocum, 708 F.2d 587, 600 (llth Cir. l983).
To establish a Brady violation, a defendant must show that
"(l) the prosecution suppressed evidence, (2) the evidence
suppressed was favorable to the defense or exculpatory, and (3)
the evidence suppressed was material." Starrett, 55 F.3d at
l555. "'[F]avorable evidence is material and constitutional
error results from its suppression by the government, if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.'" Starrett, 55 F.3d at l555 (quoting Kyles v.
Whitley, ll5 S. Ct. l555, l565 (l995)). Massey alleges that the
government failed to disclose the following testimony before the
grand jury that (l) Becky Ramos testified that Tiseo told her
that Massey was not involved in the circuit court corruption; and
(2) Frank DiRocco testified that Tiseo told him that he was a
"bag man" and that DiRocco saw Tiseo talking privately with Sepe
and Gelber. We find that Massey's allegations lack merit;
therefore, they do not warrant a Brady evidentiary hearing. In
fact, none of the affidavits Massey filed in support of his
motion for an evidentiary hearing contained exculpatory
19
evidence.11 Similarly, Massey's allegations that the government
suppressed favorable impeachment evidence also lacks merit;
therefore, we find it unnecessary to address these arguments.
Accordingly, we hold that the district court did not abuse its
discretion in denying Massey's Brady claim without an evidentiary
hearing.
CONCLUSION
For the foregoing reasons we affirm the appellant's
convictions and sentences.
AFFIRMED
11
Contrary to Massey's assertions, Ramos did not testify
that Tiseo told her that Massey had no involvement in the circuit
court corruption. Rather, in her affidavit supporting Massey's
motion for new trial, she states: "I had no knowledge that
Arthur Massey had anything to do with the corruption of the
Eleventh Judicial Circuit."
20