U.S. v. Massey

• Decision Date: 12 July 1996
• Docket Number: No. 94-4341,94-4341
• Citation: 89 F.3d 1433
• Parties: 45 Fed. R. Evid. Serv. 52 UNITED STATES of America, Plaintiff-Appellee, v. Arthur MASSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1433

89 F.3d 1433

45 Fed. R. Evid. Serv. 52

UNITED STATES of America, Plaintiff-Appellee, v. Arthur MASSEY, Defendant-Appellant.

No. 94-4341.

United States Court of Appeals Eleventh Circuit.

July 12, 1996.

Sheryl Joyce Lowenthal, Coral Gables, FL, for appellant.

William A. Keefer, Jr., U.S. Atty., Anne Ruth Schultz, Asst. U.S. Atty., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

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 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 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 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.

                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 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, 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 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 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 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. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 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).

conviction because the government failed to present direct...