UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ARTHUR MASSEY, DEFENDANT-APPELLANT
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).
In return for Ti-seo’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.
Approximately a month later, Sepe hosted a Christmas luncheon for his employees and coworkers at Art Bran’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 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 eases 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.
Count1 charged them with conspiring to violate the Racketeer Influence and Corrupt Organization Act (RICO), in violation of18 U.S.C. § 1962(d); Count2 charged Massey and four codefend-ants with violation of RICO provisions18 U.S.C. §§ 1962(c) and 1963(a); Counts 5, 85, and 86 charged Massey with bribery in violation of18 U.S.C. § 666(a)(2); and Counts 61 through 80 charged Massey with mail fraud in violation of18 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 eon-tends that the district court erred in denying his motion for new trial without an evidentia-ry hearing based on a claim that the government suppressed evidence favorable to his defense.
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.
MieresBorges, 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.
Gilbert, 47 F. 3d 1116, 1118 (11th Cir.1995); 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.
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.
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.’ ” Carter, 721 F. 2d 1514, 1532 (11th Cir.1984) (quoting 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.”
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 of18 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.
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 of18 U.S.C. § 666(a)(2).
Next, we address whether sufficient evidence supports Massey’s RICO conviction.
Count2, 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 of18 U.S.C. §§ 1962(c) and 1963(a).
The jury convicted Massey on Count2 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 act2 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 Club sought payment from Massey for these bills.
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 appointments.
Similarly, we reject Massey’s argument that insufficient evidence supports his RICO conspiracy conviction (Count1) because the alleged infirmities of predicate act 5 do not warrant the 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.”
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 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 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.
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.”
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.
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 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 these circumstances, we find that the district court did not abuse its discretion in admitting the summary charts.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (25 total)
-
United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997)…challenges to sufficiency of the evidence de novo, but “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. Massey, 89 F. 3d 1433, 1438 (11th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 983, 136 L.Ed.2d 865 (1997). “To prove mail fraud, the government must show that the defendant (1) intentionally participated in a scheme to defraud and (2) used the mails to execute the fraud…
-
United States v. Garcia, 405 F.3d 1260 (11th Cir. 2005)…ants guilty beyond a reasonable doubt. United States v. Camargo-Vergara, 57 F. 3d 993, 997 (11th Cir.1995). All reasonable inferences and credibility choices must be made in favor of the government and the jury’s verdict. United States v. Massey, 89 F. 3d 1433, 1438 (11th Cir.1996). 1. Challenges to Conspiracy Count After a twelve day trial, the jury found the appellants guilty of participating in a conspiracy to manufacture and possess with the intent to distribute marijuana, in violation of 21 U.S.C. §…
-
United States v. Meier Jason Brown, 441 F.3d 1330 (11th Cir. 2006)…y may consider mitigating factors (as opposed to telling them they had to consider mitigating factors). Brown did not object to these questions during voir dire, and we therefore review this issue only for plain error. See United States v. Massey, 89 F. 3d 1433, 1442 (11th Cir.1996) (failure to object to jury instructions reviewed for plain error). Under plain error review, we may not correct an error the defendant failed to raise in the district court unless there is: “(1) error, (2) that is plain, and…1 / 2
Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (37 total)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963)
- Kyles v. Whitley, 514 U.S. 419 (U.S. 1995)
- United States v. Elliott, 571 F.2d 880 (5th Cir. 1978)
- Richman v. Shevin, 439 U.S. 953 (U.S. 1978)
- Keener v. Kansas, 439 U.S. 953 (U.S. 1978)
- United States v. Norton, 867 F.2d 1354 (11th Cir. 1989)
- United States v. Carter, 721 F.2d 1514 (11th Cir. 1984)
- United States v. Williford, 764 F.2d 1493 (11th Cir. 1985)
- United States v. Starrett, 55 F.3d 1525 (11th Cir. 1995)
- United States v. Frank Church, 955 F.2d 688 (11th Cir. 1992)