United States v. Massey

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."