                    Case: 12-10370         Date Filed: 07/19/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10370
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:07-cr-20534-UU-5



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

VIVENS DELORME,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (July 19, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Vivens Delorme, proceeding pro se, appeals the district court’s denial of his

motion for a new trial or evidentiary hearing, following his convictions for using

and conspiring to use a facility of interstate commerce to commit the murder-for-

hire of Mahmoud Elchami. The government presented numerous

witnesses—including several co-conspirators—and corroborating exhibits to

support the theory that Delorme solicited the murder as revenge for Elchami’s

work as a confidential informant. Delorme presented his own theory that the

leader of the drug organization in which he was a member had orchestrated the

murder and then framed Delorme. The jury convicted Delorme as charged, and

the district court sentenced him to life imprisonment. Delorme appealed, and we

affirmed his convictions in 2011. United States v. Delorme, 432 F. App’x 886

(11th Cir.) (per curiam) (unpublished), cert. denied, 132 S. Ct. 535 (2011).

      Following his unsuccessful appeal, Delorme moved for a new trial or

evidentiary hearing based on the government’s supposed failure to disclose the

fact that the investigation into Elchami’s death remained open. Delorme argued

that this was grounds for a new trial under Federal Rule of Criminal Procedure 33

and was a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

The district court denied Delorme’s motion, concluding that this information, even

if previously undisclosed, was not sufficient to undermine the original conviction.

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      On appeal, Delorme argues that the district court erred in finding that the

government did not commit a Brady violation. Specifically, Delorme asserts that

the government gave the jury the impression at trial that everyone responsible for

Elchami’s death had been accounted for, but this was disproved by the evidence

that the government continued to investigate other suspects. For the first time on

appeal, he also points to evidence that he believes casts doubt on the government’s

position that he supplied the murder weapon.

      In support of his appeal, Delorme submits letters from the Miami-Dade

Police Department refusing to divulge information about the death of Elchami, on

the basis that the case “remains open and actively investigated by the United

States Attorney’s Office into additional individuals responsible for Mr. Elchami’s

death.”

      We review de novo a district court’s determination about whether a Brady

violation occurred. United States v. Schlei, 122 F.3d 944, 989 (11th Cir. 1997).

      The Supreme Court announced in Brady that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at

1196-97. In deciding if a new trial is warranted on account of a Brady violation, a

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defendant must show that: (1) the government possessed evidence favorable to

him; (2) he did not possess the evidence and could not have discovered it with

reasonable diligence; (3) the prosecution suppressed this evidence; and (4) had the

evidence been revealed to the defense, there is a reasonable probability that the

outcome of the proceedings would have been different. United States v. Newton,

44 F.3d 913, 918 (11th Cir. 1995). With respect to the materiality requirement, the

inquiry is whether the disclosed evidence undermines confidence in the outcome

of the trial. Id. The exculpatory value of the evidence must be supported by more

than the defendant’s “bare assertion” that it supports a particular theory. See

United States v. Kersey, 130 F.3d 1463, 1466 (11th Cir. 1997).

      Here, Delorme has not shown that he is entitled to a new trial or evidentiary

hearing. The letters that Delorme has presented state only that the case is still

open due to the investigation of additional individuals responsible for Elchami’s

death. Delorme was convicted of conspiracy and murder-for-hire, both of which

require the involvement of at least two individuals. Additionally, the

government’s theory at trial was that Elchami was murdered because he was

providing information to the government about Delorme’s and others’ drug deals.

Thus, the letters’ mere suggestion that other individuals might have been involved

in this conspiracy does not contradict the overwhelming evidence presented at trial

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showing that Delorme was the person who actually solicited and paid for

Elchami’s murder.

      Since it was not raised below, we review only for plain error Delorme’s

argument that the government failed to turn over evidence that purportedly

impeached Terlonge’s testimony. See United States v. Fontenot, 611 F.3d 734,

737 (11th Cir. 2010). The government had argued at trial that Delorme had

supplied the weapon to the man who actually killed Alchemi. Delorme contends

that the government should have turned over evidence showing that the weapon

used to kill Alchemi had also been used in other unsolved crimes. Delorme seems

to believe that these facts would somehow serve to exculpate him. We find no

error here because the jury was actually made aware of this evidence—whatever

its exculpatory value may have been—during the trial, when a government

firearms expert testified that the weapon had been used in two previous crimes.

See dkt. 385 at 396-400. Thus, Delorme has failed to put forward any evidence

that was actually “suppressed.”

      Because Delorme has not shown that his conviction is unworthy of

confidence, the district court correctly found that there was no Brady violation.

See Newton, 44 F.3d at 918.




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AFFIRMED.1




1
    Delorme’s request for oral argument is DENIED.

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