                                                    [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                                                          FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                            No. 09-12062               MAY 30, 2012
                                                        JOHN LEY
                                                         CLERK
                 D. C. Docket No. 05-00059-CR-BAE-4

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                               versus

ALBERT L. TELLECHEA,

                                           Defendant-Appellant.


                            ___________

                            No. 09-12063
                            ___________

                 D.C. Docket No. 05-00059-CR-BAE-4

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee,

                               versus



MARTIN J. BRADLEY, III,
                                             Defendant-Appellant.


                             ____________

                             No. 09-12229
                             ____________

                      D.C. Docket No. 05-00059-CR-4


UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                 versus

MARTIN J. BRADLEY, JR.,

                                             Defendant-Appellant.


                             _____________

                              No. 09-12230
                             _____________

                      D.C. Docket No. 05-00059-CR-4

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                 versus

BIO-MED PLUS, INC.,


                                    2
                                                           Defendant-Appellant.



                     Appeals from the United States District Court
                         for the Southern District of Georgia


                                       (May 30, 2012)

Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and GOLDBERG,*
Judge.

PER CURIAM:

                                               I.

       Appellants, Martin J. Bradley, Jr. (“Bradley, Jr.”), Martin J. Bradley, III

(“Bradley, III”), Albert L. Tellechea (“Tellechea”) and Bio-Med Plus, Inc., (“Bio-

Med”), were indicted in a 286 count superseding indictment alleging numerous

fraud schemes involving the purchase and sale of blood derivatives and non-

controlled prescription medications. The indictment charged racketeering under

RICO, racketeering conspiracy, as well as wire fraud, money laundering,

conspiracy, and the failure to disclose foreign financial interests. Prior to trial,

Bradley, Jr. moved for a competency hearing. Based on the parties’ stipulation, a

magistrate judge and the district court determined Bradley, Jr.’s competency based


       *
        Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting
by designation.

                                               3
on all medical reports and without conducting an evidentiary hearing. After a six-

week jury trial, the defendants were convicted of most counts but acquitted on

others. On direct appeal, our court affirmed all of the appellants’ convictions, the

district court’s evidentiary rulings, and Bradley, III and Bio-Med’s sentences. We

also vacated Bradley, Jr. and Tellechea’s sentences and remanded their cases to

the district court for resentencing. See United States v. Bradley, 644 F.3d 1213

(11th Cir. 2011), petition for cert. filed, 80 BNA U.S.L.W. 3443 (Jan. 10, 2012)

(No. 11-862).

      Approximately one year after the Bio-Med trial, a federal grand jury in the

Southern District of Florida returned a twelve-count indictment (“Hernandez

indictment”) against 21 defendants, including Lawrence Pinkoff (“Pinkoff”), who

was one of the 86 witnesses to testify in the Bio-Med prosecution. The Hernandez

indictment alleged that the defendants unlawfully conspired to dispense diet pills

and weight loss medications through internet pharmacies. The Hernandez trial

ended in a mistrial. Prosecutors then moved for a dismissal with prejudice against

all defendants. The district court granted that motion.

      Bradley, III, Bradley, Jr., Bio-Med, and Tellechea then moved for a new

trial claiming they were denied additional impeachment evidence because the

government concealed that an alleged key government witness, Pinkoff, had been

                                          4
under investigation, since at least early 2002, by various federal and state agencies

for operating illegal internet pharmacies and related money laundering. The

government responded that appellants’ contention that Pinkoff was the

government’s star witness against the defendants was a total fabrication. The

district court denied the motion for a new trial and found that even if the Bradley

prosecution team had imputed or actual knowledge of the criminal investigation

against Pinkoff, the court would not find a Brady1 violation because there had

been no showing of a reasonable probability that this impeachment evidence

would have led to a different result at trial.

      Bradley, Jr. moved separately for a new trial based on newly discovered

evidence regarding his competency to stand trial. The district court denied this

motion, finding that it knew and considered this alleged new evidence at the time

it decided Bradley, Jr.’s original competency motion.

                                               II.

      The issues presented on appeal are (1) whether the district court abused its

discretion by denying the appellants’ joint motion for new trial based on an

alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), where

the district court ruled that the alleged new evidence did not undermine confidence

      1
          Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

                                                5
in the outcome of the trial; and (2) whether the district court abused its discretion

by denying Bradley, Jr.’s motion for new trial based upon new evidence relating to

his competence to stand trial.2

                                                 III.

       We review for abuse of discretion a district court’s refusal to grant a

defendant a new trial under Rule 33, Federal Rules of Criminal Procedure, and its

refusal to afford defendants a hearing on their motion. United States v.

Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998). We review for clear error a

district court’s determination that a defendant is competent to stand trial. United

States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993).

                                                 IV.

       To obtain a new trial based upon a Brady claim of newly discovered

evidence, a defendant must show that “(1) the government possessed favorable

evidence to the defendant; (2) the defendant does not possess the evidence and

could not obtain the evidence with any reasonable diligence; (3) the prosecution

suppressed the favorable evidence; and (4) had the evidence been disclosed to the



       2
        The appellants also raised in their brief and contended at oral argument that the district court
should have afforded appellants an evidentiary hearing on their motions for new trial. Because we
find no abuse of discretion in the district court’s denial of the motions, without an evidentiary
hearing, we conclude this argument is specious.

                                                   6
defendant, there is a reasonable probability that the outcome would have been

different.” United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002).

“Failure to meet any one of these elements will defeat a motion for a new trial.”

United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).

      In the context of newly discovered evidence under Brady, “[e]vidence

favorable to the accused includes impeachment evidence.” United States v.

Newton, 44 F.3d 913, 918 (11th Cir. 1994). The suppressed evidence must be

material to establish a constitutional violation. Id. Evidence is material if “there is

a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473

U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). “A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” Id. “The mere

possibility that an item of undisclosed information might have helped the defense

or might have affected the outcome of the trial does not establish ‘materiality’ in

the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-110, 96 S. Ct.

2392, 2400 (1976).

      After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we conclude that the district court did not abuse its

discretion in finding there is no reasonable probability that the cumulative

                                          7
impeachment evidence would have led to a different result. Accordingly, we hold

that the district court properly denied appellants’ joint motion for new trial based

on an alleged violation of Brady.

      We also conclude from the record that the district court did not abuse its

discretion in denying Bradley, Jr.’s motion for new trial based upon alleged new

evidence relating to his competency to stand trial.

      Prior to trial, Bradley, Jr. moved for a competency hearing under 18 U.S.C.

§ 4241, arguing that dementia rendered him unable to assist properly in his

defense. A magistrate judge ordered a mental evaluation and report from the

Federal Medical Center in Butner, North Carolina (“Butner report”). Bradley

stipulated to the introduction of the Butner report, which found him competent to

stand trial. The magistrate judge found Bradley competent, accepting the Butner

report over reports of independent expert witnesses retained by Bradley. Over

objections, the district court adopted the magistrate judge’s report and

recommendation.

      Bradley, Jr. alleges that the newly discovered name and rough notes of a

neurologist who consulted on the Butner report requires the district court to revisit

the issue of competency. In denying Bradley, Jr.’s motion, the district court found

that the substance of the neurologist’s findings was not new evidence, and the

                                          8
magistrate judge considered the substance of the findings in denying the motion

for new trial. Additionally, the district court found that the evidence did not

undermine the Butner report’s conclusion, nor did it have any effect on its

conclusion that Bradley was competent to stand trial. In our view, Bradley, Jr.’s

present evidentiary showing adds nothing of value either to the district court’s

pretrial consideration of the issue or to the review of the district court’s ruling now

pending before this court. Accordingly, we see no abuse of discretion in the

district court’s order denying Bradley, Jr.’s motion for new trial based on new

evidence relating to his competency to stand trial.

      For the aforementioned reasons, we affirm the district court’s orders

denying the motions for new trial.

      AFFIRMED.




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