IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-31113
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LARRY S. BANKSTON
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(No. 96-CR-207)
_________________________________________________________________
December 28, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PER CURIAM:*
Defendant Larry S. Bankston appeals the district court’s
denial of his motion for a new trial based on newly discovered
evidence. Defendant also appeals the district court’s denial of
*
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that this opinion should not be published and is not precedent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.
his requests for further discovery and for an evidentiary
hearing. For the following reasons, we AFFIRM.
I. Factual and Procedural History
On June 27, 1997, following a lengthy trial in federal
district court, former Louisiana state senator Larry S. Bankston
was found guilty of two counts of racketeering in violation of 18
U.S.C. § 1952.1 Bankston’s conviction was affirmed by this court
in United States v. Bankston, 182 F.3d 296 (5th Cir. 1999),
reversed as to one defendant, Cleveland v. United States, 531
U.S. 12 (2000).2 On June 26, 2000, Bankston timely filed in the
district court a motion for a new trial based on newly discovered
evidence under Federal Rule of Criminal Procedure 33. FED. R.
CRIM. P. 33.3 Specifically, Bankston’s motion alleged Sixth
1
Bankston’s offenses involved using interstate
communications to aid in bribery transactions relating to
Louisiana’s video poker industry.
2
Bankston did not file a petition for certiorari with the
Supreme Court, and thus his case was not part of the Supreme
Court case.
3
Rule 33 provides in relevant part:
On a defendant’s motion, the court may grant
a new trial to that defendant if the
interests of justice so require. . . . A
motion for new trial based on newly
discovered evidence may be made only within
three years after the verdict or finding of
guilty. . . . A motion for a new trial based
on any other grounds may be made only within
7 days after the verdict or finding of guilty
or within such further time as the court may
fix during the 7-day period.
2
Amendment and attorney-client privilege violations based upon
newly discovered evidence regarding government surveillance of
conversations between Bankston’s attorneys and third parties.
Before Bankston’s trial and pursuant to a separate
investigation, the government began electronic surveillance of
the law offices of former Louisiana governor Edwin Edwards and
his son Stephen Edwards. Bankston’s attorneys, Karl Koch and
Lewis Unglesby, communicated with Stephen and Edwin Edwards in
the wiretapped offices concerning trial strategy and tactics in
Bankston’s case.4 Bankston learned of the wiretapping before his
trial and filed a motion for appropriate relief on May 6, 1997 in
light of the possibility that his trial strategy had been
revealed to the prosecution team. The Government responded that
“at no time was [any] special agent, witness, or government
prosecutor, exposed to any arguably privileged conversations,
information, strategies, or documents which relate in any way to
the defense in the instant case.” To determine whether this
representation was true, the district court twice conducted ex
parte and in camera meetings with an assistant U.S. Attorney who
was not involved in either the Bankston or the Edwards
prosecution. After these meetings, the district court concluded
FED. R. CRIM. P. 33.
4
Bankston’s attorneys had previously represented both
Stephen and Edwin Edwards and had acted as co-counsel with
Stephen Edwards in other legal matters. Furthermore, Edwin
Edwards testified as a defense witness in Bankston’s case.
3
that “no special agents, witnesses, or government prosecutors in
this case have been exposed to any conversation, information,
strategies, or documents which relate in any way to the defense
in the instant case.”5
In his motion for a new trial, Bankston reasserts that the
Government recorded privileged conversations that revealed his
trial strategy to the team prosecuting his case. In support of
this motion, Bankston offers an affidavit by his former counsel
Koch, stating that Koch uncovered new evidence indicating that
Government case agents in Bankston’s case, Larry Jones and Susan
Phillips, had been wiretap monitors in the Edwardses’ case.
Koch’s affidavit further indicates that Jones monitored at least
a portion of a conversation in which Koch consulted with Stephen
Edwards about “critical matters dealing with the Bankston
defense.” The district court held a hearing to consider the
motion. At the hearing, Bankston argued for further discovery
and an evidentiary hearing to determine whether agents working on
his case overheard or were informed of communications by his
attorneys and concerning trial strategy in his case. The
district court denied Bankston’s motion for a new trial and his
requests for further discovery and an evidentiary hearing.
5
This statement appears in the district court’s denial of
Bankston’s motion for reconsideration of the court’s denial of
his motion for appropriate relief. This minute entry was filed
under seal on May 8, 1997.
4
II. Bankston’s Motion for a New Trial
“Motions for a new trial based on newly discovered evidence
are disfavored and reviewed with great caution.” United States
v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001). To be entitled to
a new trial, Bankston must demonstrate (1) that the evidence is
newly discovered and was unknown to him at the time of trial, (2)
that the failure to detect the evidence was not due to a lack of
diligence by Bankston, (3) that the evidence is material and not
merely cumulative or impeaching, and (4) that the evidence
introduced at a new trial would probably produce an acquittal.
Id. Unless Bankston establishes all four factors, his motion for
a new trial should be denied. Id. This strict standard “gives
great weight to society’s interest in the finality of criminal
convictions.” United States v. Ugalde, 861 F.2d 802, 808 (5th
Cir. 1988). We review the district court’s denial of Bankston’s
motion for a new trial based on newly discovered evidence for an
abuse of discretion only. Bowler, 252 F.3d at 747.
Since neither party suggests otherwise, we assume for
purposes of this appeal that a Rule 33 motion for a new trial
based upon newly discovered evidence is the proper vehicle for
Bankston’s claims.6 As a threshold matter, to properly assert a
6
Generally, a Rule 33 motion for a new trial based upon
newly discovered evidence is “most suited to cases in which ‘the
proffered evidence goes directly to proof of guilt or
innocence.’” Ugalde, 861 F.2d at 807-08 (quoting United States
v. Jones, 597 F.2d 485, 488 (5th Cir. 1979)). This court has
held that “raising an [ineffective-assistance-of-counsel] claim
5
Rule 33 motion filed more than seven days after the verdict,
Bankston must present “newly discovered evidence.” Prior to his
trial, Bankston knew that the Government had wiretapped the
Edwardses’ offices and that conversations between the Edwardses
and his attorneys may have been intercepted by Government agents.
Thus, the only arguably new evidence presented by Bankston in his
motion for a new trial is that Jones and Phillips, Government
agents involved in the investigation of Bankston, were also
involved in the surveillance of the Edwardses and thus possibly
overheard conversations regarding the trial strategy to be used
in Bankston’s case. The district court questioned whether this
evidence qualifies as “newly discovered” but assumed that it did
for the purposes of Bankston’s motion for a new trial. United
States v. Bankston, No. CRIM.A.96-207, 2000 WL 1252582, at *2
(E.D. La. Sept. 1, 2000). After making this assumption, the
district court denied Bankston’s motion for a new trial because
through the mechanism of a new trial motion based on newly
discovered evidence is wholly impermissible.” United States v.
Medina, 118 F.3d 371, 373 (5th Cir. 1997).
In light of Medina, Bankston’s Rule 33 motion may be an
impermissible vehicle for asserting his Sixth Amendment claims.
But see United States v. Van Deveer, 577 F.2d 1016 (5th Cir.
1978) (addressing the defendants’ motion for a new trial based on
newly discovered evidence even though the motion was based on
evidence of the intrusion of a government informer into the
“defense-camp” and implicated the defendants’ Fifth and Sixth
Amendment rights). Rather than decide the issue, we assume, as
the parties and the district court have implicitly assumed, that
a Rule 33 motion for a new trial based upon newly discovered
evidence is the proper vehicle for Bankston’s Sixth Amendment
claims.
6
it found that the attorney-client privilege and Bankston’s Sixth
Amendment rights were not violated.
For purposes of this appeal, we assume, as the district
court assumed, that the evidence presented by Bankston qualifies
as “newly discovered.” We also assume that the failure to detect
the evidence prior to conviction was not due to a lack of
diligence by Bankston. Finally, we assume that the new evidence
is material to his conviction. We find it unnecessary, however,
to consider the underlying merits of Bankston’s claims. Even if
Bankston establishes violations of the attorney-client privilege
and the Sixth Amendment, Bankston is not entitled to a new trial
because he fails to establish that the new evidence would
probably produce an acquittal if presented at a new trial.
Bankston makes vague and unsupported claims that the
overheard information allowed the prosecution team to “structure
[its] questioning of witnesses,” particularly the cross-
examination of Edwin Edwards, and that Bankston’s confidence in
his attorneys was “severely shaken” as a result. The new
evidence presented by Bankston is unlikely to produce an
acquittal. In the context of a motion for new trial based on
newly discovered evidence, this court has previously explained
that in order to justify a new trial:
“[T]he likelihood of changing a jury’s
decision as a result of newly discovered
evidence must rise considerably above the
level of speculation. Otherwise, finality
7
would be a vanishing element from all
judgments of conviction in criminal cases.”
United States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977)
(quoting Ross v. Texas, 474 F.2d 1150, 1153 (5th Cir. 1973)
(habeas case)). Bankston does not present any concrete evidence
that the prosecution team had information from the overheard
conversations or used any such information to secure his
conviction.7 If the prosecution team had no knowledge of the
content of the conversations, the conversations had no effect on
Bankston’s trial or conviction. Therefore, the jury’s guilty
verdict is untainted, and Bankston cannot establish that a new
trial would probably produce an acquittal. The district court
did not abuse its discretion in denying Bankston’s motion for a
new trial.
III. Further Discovery and an Evidentiary Hearing
A. Further Discovery
In his motion for a new trial Bankston requested:
[A]n order directed to the Government to
produce audio/video recordings, logs, log
summaries or reports, 10 day reports, motions
and/or internal request (sic) to seal any
potentially privileged conversations,
interpretive reports, all interdepartmental
communications, instructions to monitoring
agents, formal or informal writings related
7
Jones and Phillips, the agents involved in both the
Edwards and the Bankston investigations, were not members of the
Bankston prosecution team.
8
to the alleged “Chinese Wall,” and any other
document which might related (sic) to the
Bankston investigation and/or trial. Further
defendant request (sic) that the court
authorize counsel for Stephen & Edwin Edwards
to provide to Bankston’s counsel any evidence
found during their investigation that might
relate to the Bankston trial and/or
investigation.
Bankston asserts that this additional discovery would allow him
to further develop support for his motion for a new trial. The
district court denied Bankston’s request for further discovery as
“a fishing expedition . . . seeking to substantiate mere
speculations in the absence of any evidence.” Bankston, 2000 WL
1252582, at *5.
We agree with the district court. The Government asserts
that is has produced all of the relevant evidence in this case.
Although Bankston cannot specifically describe the evidence he
seeks, he requests further discovery “to independently confirm
the full extent of the intrusion” into the attorney-client
relationship. Bankston is not entitled to discovery when his
request is supported only by speculation as to what he might
find. See Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000)
(habeas case) (stating that allegations supporting a need for
discovery “must be specific, as opposed to merely speculative or
conclusory”); see also United States v. Zarzour, 432 F.2d 1, 4
(5th Cir. 1970) (stating, in the context of a motion for new
trial based on newly discovered evidence, that “the defendant was
entitled to see a transcript of his own conversations and nothing
9
else. He had no right to rummage in government files” in order
to support his claim of Sixth Amendment violations) (emphasis in
original). Accordingly, the district court’s denial of
Bankston’s request for further discovery was correct.
B. An Evidentiary Hearing
In addition to further discovery, Bankston requested an
evidentiary hearing in his motion for a new trial “in which the
government would be required to disclosure (sic) relevant
portions of the Title III wiretap material relating to Edwin and
Stephen Edwards.” Because it found that an evidentiary hearing
would be unnecessary, the district court denied Bankston’s
request.
The decision to hold an evidentiary hearing “rests within
the sound discretion of the trial court.” United States v.
Blackburn, 9 F.3d 353, 358 (5th Cir. 1993). Furthermore, “[a]
motion for a new trial can ordinarily be ruled upon without
conducting an evidentiary hearing.” United States v. Simmons,
714 F.2d 29, 30 (5th Cir. 1983). As we have noted, “the acumen
gained by the trial judge in presiding over the course of the
trial makes Rule 33 motions 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)).
Bankston requests an evidentiary hearing for the same reason
that he requests further discovery – to search for evidence
10
supporting the speculative claims in his motion for a new trial.
The Government asserts, however, that it has already produced all
of the relevant evidence in this case. Under these
circumstances, because of its familiarity with the evidence and
the parties, we defer to the district court’s determination that
an evidentiary hearing is unnecessary.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Bankston’s motion for a new trial and his requests for
further discovery and an evidentiary hearing.
11