Filed: Jul. 12, 1996
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-4341. UNITED STATES of America, Plaintiff-Appellee, v. Arthur MASSEY, Defendant-Appellant. July 12, 1996. Appeal from the United States District Court for the Southern District of Florida. (No. 91-708-CR-JAG), Jose A. Gonzalez, Jr., Judge. 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
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-4341. UNITED STATES of America, Plaintiff-Appellee, v. Arthur MASSEY, Defendant-Appellant. July 12, 1996. Appeal from the United States District Court for the Southern District of Florida. (No. 91-708-CR-JAG), Jose A. Gonzalez, Jr., Judge. 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 l..
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United States Court of Appeals,
Eleventh Circuit.
No. 94-4341.
UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur MASSEY, Defendant-Appellant.
July 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-708-CR-JAG), Jose A. Gonzalez, Jr.,
Judge.
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 1980s, 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 1987, 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
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.
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 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 1989, 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
2
Tiseo also received some appointments from Sepe on Massey's
court-appointed cases.
two cases. Shortly thereafter, Massey appeared at Gelber's
chambers and gave him an envelope containing $1,000 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 year earlier at the Club. Massey, however, continued to
pay Sepe's personal luncheon bills at Buccione.
In December of 1990, 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 1988
through January 1991 Massey paid approximately $1,700 of Sepe's
luncheon bills at Buccione. During this same period of time,
Massey received court appointments from Sepe resulting in
approximately $91,400 in fees.
PROCEDURAL HISTORY
On May 27, 1992, a grand jury in the Southern District of
Florida returned a 106-count superseding indictment against Massey
and seven codefendants.3 Count 1 charged them with conspiring to
violate the Racketeer Influence and Corrupt Organization Act
(RICO), in violation of 18 U.S.C. § 1962(d); Count 2 charged
Massey and four codefendants with violation of RICO provisions 18
U.S.C. §§ 1962(c) and 1963(a); Counts 5, 85, and 86 charged Massey
with bribery in violation of 18 U.S.C. § 666(a)(2); and Counts 61
through 80 charged Massey with mail fraud in violation of 18 U.S.C.
§§ 1341, 1346, 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 31, 1992. On July 16, 1992, 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,
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.
but granted Massey a seven-day continuance.
On September 13, 1993, 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, 1993, the jury convicted Massey of RICO, RICO
conspiracy, one count of bribery, and twenty counts 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
4
Massey raises two other contentions on appeal: (1) 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
contends that all of Massey's claims lack merit and do not require
reversal of his conviction.
ISSUES
We discuss the following issues: (1) 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,
919 F.2d 652, 656 (11th Cir.1990), cert. denied,
499 U.S. 980,
111
S. Ct. 1633,
113 L. Ed. 2d 728 (1991). 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 1116, 1118 (11th
Cir.1995); United States v. Camargo-Vergara,
57 F.3d 993, 997
(11th Cir.1995). If a reasonable person could find that the
evidence establishes guilt beyond a reasonable doubt, the jury's
reversible error. We find that these claims lack merit and do
not warrant discussion.
verdict must be upheld. United States v. Jones,
933 F.2d 1541,
1546 (11th Cir.1991).
Massey challenges the sufficiency of the evidence supporting
his convictions on several grounds. First, Massey contends that
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, 1532 (11th Cir.1984) (quoting United States v. Elliot,
571 F.2d 880, 903 (5th Cir.), cert. denied,
439 U.S. 953,
99 S. Ct.
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 1506, 1512-13 (11th Cir.1986).
349,
58 L. Ed. 2d 344 (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
minds to exchange official action for money." United States v.
Carpenter,
961 F.2d 824, 827 (9th Cir.), cert. denied,
506 U.S.
919,
113 S. Ct. 332,
121 L. Ed. 2d 250 (1992).
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.
18 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 1989 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 1991 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 agreed to pay Sepe's lunch bills at Buccione in
exchange for court appointments in violation of 18 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
838.016(1) 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 evidence
that (1) Massey paid for Sepe's Christmas luncheon or (2) that the
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).
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 838.016(1)
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 838.016(1) 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. § 838.016(1) (West 1994). 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 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
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.
appointments.
Similarly, we reject Massey's argument that insufficient
evidence supports his RICO conspiracy conviction (Count 1) because
the alleged infirmities of predicate act 5 do not warrant the
8
reversal of Massey's RICO conspiracy conviction. 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. 881,
113 S. Ct. 233,
121 L. Ed. 2d 169 (1992);
Starrett, 55 F.3d at 1544.
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
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,
112 S. Ct. 178,
116 L. Ed. 2d 140 (1991)). We find that the
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.
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
1354, 1362 (11th Cir.), cert. denied,
491 U.S. 907,
109 S. Ct. 3192,
105 L. Ed. 2d 701 (1989). 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 1334, 1343-44 (11th Cir.), cert. denied,
493 U.S.
848,
110 S. Ct. 144,
107 L. Ed. 2d 103 (1989).
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 chart alleged that he
paid $10,000 rather than the $1,700 the government proved at
trial.9 We find that Massey has failed to show actual prejudice.
Rule 1006 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 $10,000 worth
of payments for Sepe's meals. Massey's counsel conductedvoir 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
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
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 1047, 1050 (11th Cir.1994). The
district court at Massey's sentencing hearing determined that the
government only proved that Massey paid $1,700 of the $10,000 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 1006 does not require the fact finder to accept the
information present on the summary charts as true. See
Fed.R.Evid. 1006.
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
(11th Cir.1990) (quoting Fed.R.Evid. 803(6)), cert. denied,
503
U.S. 940,
112 S. Ct. 1483,
117 L. Ed. 2d 625 (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 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
1. 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 410, 413
(4th Cir.1986) (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 1493, 1499 (11th
Cir.1985). Count 1 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
10
the jury with only a tape recording of the jury instructions.
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
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
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.
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
based on an allegation that the government failed to disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963). We review the district
court's denial of an evidentiary hearing for abuse of discretion.
United States v. Slocum,
708 F.2d 587, 600 (11th Cir.1983).
To establish a Brady violation, a defendant must show that
"(1) 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 1555. "
"[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 1555 (quoting Kyles v. Whitley, --- U.S. ----,
----,
115 S. Ct. 1555, 1565,
131 L. Ed. 2d 490 (1995)). Massey
alleges that the government failed to disclose the following
testimony before the grand jury that (1) 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
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."
