IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40148
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO GIRALDI,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(B-93-CR-28-6)
_________________________________________________________________
February 4, 1998
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Antonio Giraldi was convicted and
sentenced on seventeen counts of money laundering, conspiracy,
bank fraud, and misapplication of bank funds. We affirmed his
judgment of conviction and sentence in a previous opinion. See
United States v. Giraldi, 86 F.3d 1368 (5th Cir. 1996). Giraldi
now appeals the district court’s subsequent denial of his motion
for a new trial based upon newly discovered evidence without
first conducting an evidentiary hearing. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-appellant Antonio Giraldi was an international
private banker with Bankers Trust Co. and American Express Bank
International with responsibility in the Mexican market. He
recruited and serviced deposits from wealthy Mexican individuals.
One of his clients was Ricardo Aguirre. Aguirre represented
himself as a wealthy businessman, but in actuality, he was
fronting for drug trafficker Juan Garcia Abrego. Giraldi’s
conviction is based upon his handling of the funds Aguirre
deposited in the bank through him. For a complete description of
the facts adduced at trial, see Giraldi, 86 F.3d 1368.
Giraldi was convicted of one count of conspiracy to commit
money laundering, ten counts of money laundering, two counts of
bank fraud, and four counts of misapplication of bank funds.
After his judgment of conviction and sentence and the denial of
his motion for a new trial were affirmed, Giraldi filed a second
motion for a new trial in the district court based upon newly
discovered evidence. At the district court, Giraldi put forward
four grounds for a motion for a new trial, but he only appeals
its denial in relation to two of the grounds: (1) false testimony
by a government witness and (2) the government’s knowing use of
false testimony of another witness.1
1
Accordingly, the two other grounds for a new trial argued
in the district court are deemed abandoned. United States v.
Rawls, 85 F.3d 240, 243 (5th Cir. 1996).
2
In relation to the first claim, Amy Elliot testified that it
is standard policy in international private banking to know one’s
client in order to be certain that the client’s funds are from
legitimate sources. She explained that she had trained Giraldi
in this vetting process when he worked at Citibank prior to his
departure for Bankers Trust. Elliott testified that this policy
was “inflexible.” She also testified that she did not have any
former Mexican politicians or their family members as clients.
Since the trial, it has come out in the press that Citibank
and Elliott handled the account of Raul Salinas de Gortari, the
brother of the then Mexican president. Press reports suggest
that Elliott may not have followed the policy of knowing one’s
client in dealing with Salinas. Salinas’s money likely was from
illegitimate sources and was handled by Elliott. Citibank’s
client list also included former Mexican politicians and their
family members.
In relation to the second claim, U.S. Customs Agent Ventura
Cerda testified that Giraldi’s father was a banker and owned a
Panamanian bank. The questions and answers suggested that this
was Giraldi’s father’s situation at the time of trial. The
questioning also went on to point out the difficulty the agent
had in getting information from Panama about any accounts there.
In reality, Giraldi’s father had never owned a Panamanian bank
except for two brief periods of ownership of stock, and at the
time of trial, he had not worked in the banking industry for
3
several years. According to Giraldi, the government was aware of
the falsity of Cerda’s statements from the deposition it took of
Giraldi’s father. In the deposition excerpt in the record,
Giraldi’s father was asked about his position at a Panamanian
bank, and it was evident that he was currently retired, but the
deposition excerpt does not include any questions about bank
ownership by Giraldi’s father.
II. STANDARD OF REVIEW
We review a district court’s denial of a motion for a new
trial for an abuse of discretion. See United States v. Dula, 989
F.2d 772, 778 (5th Cir. 1993). The district court’s decision not
to hold an evidentiary hearing is also reviewed for an abuse of
discretion. See United States v. Blackburn, 9 F.3d 353, 358 (5th
Cir. 1993). The familiarity with a case that a judge gains from
presiding over the trial makes motions for a new trial directed
to the same judge “‘particularly suitable for ruling without a
hearing.’” United States v. MMR Corp., 954 F.2d 1040, 1046 (5th
Cir. 1992) (quoting United States v. Hamilton, 559 F.2d 1370,
1373 (5th Cir. 1977)). Allegations of false testimony or
prosecutorial misconduct do not compel an evidentiary hearing.
Id.; see also United States v. Chagra, 735 F.2d 870, 874 (5th
Cir. 1984) (finding that a denial of an evidentiary hearing was
not an abuse of discretion where the prosecutor’s knowing use of
false testimony was alleged).
4
III. DISCUSSION
Giraldi argues that the newly discovered evidence revealing
Elliott’s false testimony and the government’s knowing
presentation of Cerda’s false testimony require that he be
granted a new trial or at least an evidentiary hearing on his
motion for a new trial to develop the evidence. He argues that
because we found that his was a “close case” when we affirmed his
conviction, the newly discovered evidence combined with the
closeness of the case requires that we grant him a new trial.2
We disagree.
A. False Testimony
Motions for a new trial based upon newly discovered evidence
are disfavored by the courts and should be viewed with great
caution. United States v. Mulderig, 120 F.3d 534, 545 (5th Cir.
1997), petition for cert. filed, 66 U.S.L.W. 3364 (U.S. Nov. 12,
1997) (No. 97-805). Newly discovered evidence requires the
granting of a motion for a new trial when
(1) the evidence was newly discovered and unknown to
the defendant at the time of trial; (2) failure to
detect the evidence was not a result of lack of due
diligence by the defendant; (3) the evidence is
material, not merely cumulative or impeaching; and (4)
2
Giraldi also argues that government misconduct in its
closing argument also supports granting a new trial. However,
the government misconduct of which he complains was addressed in
our prior opinion and was found not to have had the potential to
mislead the jury. See Giraldi, 86 F.3d at 1374-75 (discussing a
comment by the prosecutor that suggests a particular person did
not exist).
5
the evidence will probably produce an acquittal.
United States v. Ardoin, 19 F.3d 177, 181 (5th Cir. 1994).
Evidence that does not directly contradict the testimony of a
witness and is only relevant to the credibility of the witness is
merely impeaching. United States v. Time, 21 F.3d 635, 642 (5th
Cir. 1994).
Giraldi presents several news reports to show that Elliott
did not herself always follow the “inflexible” policy of knowing
one’s client about which she testified and that she did have the
relatives of current and former Mexican politicians as clients.
These news reports do bring into question whether Elliott
followed the vetting policy, but not what the policy required.
The government elicited testimony from Elliott on only the
Citibank policy and information that would show that Giraldi lied
to his superiors regarding the particulars of the credentials of
the person he claimed had referred Aguirre to him. The testimony
about Mexican politicians was elicited on cross-examination by
the defense.
Even assuming that Giraldi’s characterization of what the
news reports show is correct, the new evidence is not material
and some is merely impeaching. The new evidence only directly
contradicts Elliott’s testimony about the collateral issue of
having former Mexican politicians and their family members as
clients. Additionally, the questioning in relation to a specific
former Mexican politician on cross-examination suggests that
6
Giraldi’s counsel were on notice that Elliott may not have been
truthful, and their failure to follow up on this information
suggests a lack of due diligence. In relation to the vetting
policy, the new evidence is merely impeaching, and as the
district court noted, the critical issue was whether Bankers
Trust had such a policy when Giraldi took on Aguirre as a client.
Elliott was not the only witness to testify about industry
standards on knowing one’s clients, and the fact that Bankers
Trust had a similar policy as shown by other testimony makes the
at best marginal impeachment of Elliott’s testimony that would
have resulted from disclosing the alleged falsehood to the jury
unlikely to produce an acquittal.
Giraldi argues that our prior opinion noting the close
nature of the case makes his case stronger. However, this
court’s prior decision noted the closeness of this case on a
sufficiency of the evidence challenge in relation to the
circumstantial nature of all the evidence. Giraldi, 86 F.3d at
1374. The volume of the circumstantial evidence is
insignificantly diminished by drawing Elliott’s testimony into
question and does not make an acquittal any more probable.
B. Government’s Knowing Use of False Testimony
A motion for a new trial based upon newly discovered
evidence that the government knowingly used false testimony must
be granted “if there was any reasonable likelihood that the false
7
testimony affected the judgment of the jury.” MMR Corp., 954
F.2d at 1047. The defendant must still meet the first three
prongs of the newly discovered evidence test: (1) the evidence
was newly discovered and unknown to the defendant at the time of
trial; (2) the failure to detect the evidence was not a result of
lack of due diligence by the defendant; and (3) the evidence is
material, not merely cumulative or impeaching. Id.
Giraldi argues that the testimony by agent Cerda that his
father owned a bank and was currently a banker meets the above
requirements, mandating that he be granted a new trial, but
Giraldi’s claim fails on at least the first two prongs of the
newly discovered evidence test. First, newly discovered evidence
is evidence of which the defendant did not know before or at
trial. Giraldi never contends that he did not know that his
father was unemployed at the time of trial or that his father did
not own a Panamanian bank. Giraldi only contends that he did not
know what the government knew and therefore did not know the
magnitude of the government misconduct until after trial.
Second, if this evidence was critical, Giraldi, through the
exercise of minimal due diligence, could have chosen to contact
his father to determine the veracity of Cerda’s testimony. On
this record, there is no reason to think that Giraldi’s father
would not have been cooperative.
Because Giraldi cannot meet the first two prongs of the
newly discovered evidence test, whether the government knew that
8
the testimony was false does not change the result. The falsity
of Cerda’s testimony is not newly discovered evidence that could
not have been discovered through Giraldi’s exercise of due
diligence, and therefore, the district court did not abuse its
discretion in denying Giraldi’s motion for a new trial. Nor did
the district court abuse its discretion in ruling without an
evidentiary hearing because taking the facts as alleged by
Giraldi in either case does not require that he be granted
relief.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Giraldi’s motion for a new trial.
9