United States v. Massey

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