                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                 FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         FEBRUARY 4, 2008
                                     No. 07-12499                        THOMAS K. KAHN
                               ________________________                      CLERK


                       D. C. Docket No. 06-00329-CR-CLS-HGD

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

PHILLIP CURTIS GRACE,

                                                                       Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                     (February 4, 2008)

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and MARTINEZ,*
District Judge.

PER CURIAM:


       *
         Honorable Jose E. Martinez, United States District Judge for the Southern District of
Florida, sitting by designation.
      Phillip Curtis Grace was charged in a three-count indictment with two

counts of intentional obstruction of a criminal investigation by an officer of a

financial institution in violation of 18 U.S.C. § 1510(b)(1) and one count of

making false statements to an agent of the Federal Bureau of Investigation in

violation of 18 U.S.C. § 1001. These charges resulted after Grace disclosed to a

bank customer, Winston Hayes, that the customer’s financial records and the

financial records of his company had been subpoenaed. After a jury trial, Grace

was acquitted of the charge of making false statements in Count Three. He was

convicted of a violation of 18 U.S.C. § 1510(b)(2), a lesser included offense of the

violation of section 1510(b)(1) charged in Count One and convicted of a violation

of section 1510(b)(1) as charged in Count Two. Grace appeals these convictions.

For the reasons set forth below, we affirm.

      Grace argues that his convictions should be overturned and that this case

should be remanded for a new trial because (1) the evidence was insufficient to

support his convictions; (2) the district court erred in allowing the Government to

withhold exculpatory evidence from him; (3) the district court erred in allowing

transcripts of tape recorded conversations to be retained as exhibits by the jury

during deliberations; (4) his trial counsel was ineffective because he failed to

object to the sufficiency of the indictment; and (5) the district court erred in failing



                                            2
to define the term “obstruct” in the jury instructions. After careful consideration,

we find that none of these issues warrant a reversal of Grace’s convictions.

        We will briefly address all five issues; however, because at oral argument

Grace focused only on the first and fourth issues, these will be the issues we

primarily address. First, Grace argues that the evidence at trial was insufficient to

support his convictions because the evidence presented to the district court failed

to prove that Grace intentionally obstructed the grand jury’s subpoenas and

because it failed to prove that the subpoenas related to any of the required predicate

offenses.1 We disagree, finding there is sufficient evidence in the record to prove

both elements.

       The Court reviews “de novo a defendant’s claim that the evidence was

insufficient to convict him, viewing the evidence and all reasonable inferences and

credibility choices in the light most favorable to the government.” United States v.

Anderson, 289 F.3d 1321, 1325 (11th Cir. 2002). There is sufficient evidence in

the record that Grace acted intentionally including the evidence that he was a bank

officer, evidence that Hayes was one of the bank’s best customers, evidence that

after providing Hayes with a copy of the first subpoena he told him he would do

anything to help him, and evidence of the furtive manner in which Grace disclosed


       1
        The predicate offenses are listed in 18 U.S.C. § 1510(b)(3), which defines “subpoena for
records,” the term used in section 1510(b)(1).

                                               3
and discussed the subpoenas with Hayes. In addition to this evidence, Grace chose

to testify in this case, and, as we have previously stated, “a statement by a

defendant, if disbelieved by the jury, may be considered as substantive evidence of

a defendant's guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). In

other words, “when a defendant chooses to testify, he runs the risk that if

disbelieved ‘the jury might conclude the opposite of his testimony is true.’” Id.

(quoting Atkins v. Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992)).2

         There is also sufficient evidence in the record that the criminal investigation

at issue related to one of the predicate offenses. Two of the listed predicate

offenses are violations of 18 U.S.C. §§ 1956 and 1957, which are statutes

prohibiting money laundering. The testimony of James Kiel, special agent with the

Alabama Attorney General’s Office, offers sufficient evidence to establish that the

criminal investigation related to money laundering. Thus, we will affirm on this

issue.

         Next, Grace argues that the district court erred in allowing the Government

to withhold exculpatory evidence from him in violation of Brady v. Maryland, 373

U.S. 83 (1963). “An alleged Brady violation presents a mixed question of law and



         2
         Moreover, with regard to Count One, the issue of intent is moot as Grace was convicted
of the lesser included offense in 18 U.S.C. § 1510(b)(2), which does not require a finding of
intent.

                                               4
fact, which this court reviews de novo.” Wright v. Hopper, 169 F.3d 695, 701

(11th Cir. 1999). Grace argues that the Government possessed exculpatory

evidence because certain grand jury materials would list the specific statutory

offenses at issue in the criminal investigation and such offenses are not those

enumerated in section 1510(b)(3).

           In order to demonstrate a Brady violation, Grace must prove the following:

       (1) that the Government possessed evidence favorable to the
       defendant (including impeachment evidence); (2) that the defendant
       does not possess the evidence nor could he obtain it himself with any
       reasonable diligence; (3) that the prosecution suppressed the favorable
       evidence; and (4) that had the evidence been disclosed to the defense,
       a reasonable probability exists that the outcome of the proceedings
       would have been different.

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989) (per curiam)

(citations omitted). Grace has failed to meet this burden as he has not established

that even if the grand jury material had been disclosed a reasonable probability

existed that he would not have been convicted. Here, even if the grand jury

materials did not list a violation of one of the enumerated statutes, there is

sufficient evidence in the record that the criminal investigation related to money

laundering, which demonstrates a violation of the charged offense.3 In addition,

Grace also failed to meet his burden to demonstrate a “particularized need” for


       3
       In this case, the Government conceded before trial that the grand jury materials would
demonstrate that the listed offense under investigation was a violation of 18 U.S.C. § 666.

                                               5
these materials as required when a party seeks the disclosure of grand jury

materials. See United States v. Cole, 755 F.2d 748, 758-59 (11th Cir. 1985).

Therefore, we will also affirm on this issue.

       Grace also argues that the district court erred in allowing the jury to retain

transcripts of tape recorded conversations during their deliberation. Grace argues

that the jury should not have been permitted to access the transcripts during their

deliberation because such transcripts were excerpts that only highlighted particular

portions of the conversations.4 “Absent a showing that the transcripts were

inaccurate or that specific prejudice occurred, there is no error in allowing

transcripts to go to the jury room.” United States v. Williford, 764 F.2d 1493, 1503

(11th Cir. 1985). Grace has not made this showing.

       In his fourth claim, Grace argues that his trial counsel was ineffective

because he failed to object to the sufficiency of the indictment. The Court

generally does not consider ineffective assistance of counsel claims on direct

appeal “where [as in this case,] the district court did not entertain the claim nor

develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.


       4
         Grace did not object on this ground at the time the transcripts were admitted into
evidence. After the jury had been charged and had begun their deliberations, Grace objected to
the transcripts going back to the jury. The district court overruled this objection noting that it
had instructed the jury multiple times that the transcripts were secondary evidence admitted for
limited purposes and that the transcripts were admitted evidence in the trial and it was
appropriate for the jury to have access to them during their deliberations.

                                                 6
2002). “If the record is sufficiently developed, however, this court will consider an

ineffective assistance of counsel claim on direct appeal.” Id. Grace argues that the

indictment was insufficient with regard to Counts One and Two because it did not

describe how Grace notified Hayes of the two subpoenas, nor did it disclose the

specific enumerated statute to which the underlying criminal investigation related.

Here, we find that the record is sufficiently developed as to these issues and thus,

we will address this claim on direct appeal.

      “Whether a criminal defendant’s trial counsel was ineffective is a mixed

question of law and fact, subject to de novo review.” Nixon v. Newsome, 888 F.2d

112, 115 (11th Cir. 1989). To demonstrate ineffective assistance of counsel, a

defendant must show “both that counsel’s performance was deficient and that the

deficient performance prejudiced the defense.” Maharaj v. Sec’y for Dep’t of

Corr., 432 F.3d 1292, 1318 (11th Cir. 2005). In deciding this issue, the Court must

determine whether the indictment was sufficient. An indictment is sufficient where

it:

      (1) presents the essential elements of the charged offense, (2) notifies
      the accused of the charges to be defended against, and (3) enables the
      accused to rely upon a judgment under the indictment as a bar against
      double jeopardy for any subsequent prosecution for the same offense.

United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998). After considering

these requirements, it is clear that the indictment did not have to state exactly how

                                           7
Grace notified Hayes of the subpoenas in order for it to be sufficient. In addition,

with regard to Grace’s argument that the indictment did not indicate the specific

offense to which the underlying criminal investigation related, “[p]redicate felonies

do not need to be listed in the indictment so long as the defendant has actual notice

of the charge.” United States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001). The

record establishes that Grace’s counsel had actual notice of the underlying offense,

money laundering, well before trial began in this case.5 Thus, this argument does

not warrant reversal.

       Finally, Grace argues that the district court erred in failing to define the term

“obstruct” in the jury instructions. Where, as in this case, a party challenges a jury

instruction for the first time on appeal, the Court reviews the instruction for plain

error. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). An

instruction is plainly erroneous where “‘the instruction will mislead the jury or

leave the jury to speculate as to an essential point of law . . . .’” Id. at 1271

(quoting Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999)). Here, after



       5
         The indictment was filed on August 1, 2006. The Government filed a trial brief on
September 29, 2006 which indicated that money laundering was the predicate offense to which
the investigation related. On October 10, 2006, the Government filed a response to Grace’s
motion to dismiss which unequivocally stated that “[t]he evidence will prove that the
investigation from which the Grand Jury subpoenas disclosed by the defendant arose involved,
from its inception, several potential violations of federal law, including money laundering in
violation of 18 U.S.C. §§ 1956 and 1957.” The jury trial then began several months later on
January 30, 2007.

                                               8
review of the instructions and especially the offense instructions, which follow the

statutory language of the charged offenses, we cannot say that the absence of this

definition would “‘mislead the jury or leave the jury to speculate as to an essential

point of law. . . .’” Id.

       Accordingly, we affirm Grace's convictions.

       AFFIRMED.




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