            Case: 12-10248     Date Filed: 08/09/2012   Page: 1 of 7

                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                         ________________________

                               No. 12-10248
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:07-cr-20999-JAL-4


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus


FRANKLIN DURAN,

                                                            Defendant-Appellant.

                        __________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                              (August 9, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

     Franklin Duran appeals the district court’s denial of his motion for a new
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trial in which he alleged that the government proffered false testimony from its

key witness at trial, in violation of Giglio v. United States, 405 U.S. 150 (1972).

After a thorough review of the record, we affirm.

       Duran and four others were charged with conspiring to act, and acting, as

agents of Venezuela in the United States, in violation of 18 U.S.C. §§ 371 and 951

respectively. Duran was convicted in 2008 and sentenced to forty-eight months’

imprisonment.1 His conviction was affirmed on direct appeal. See United States

v. Duran, 596 F.3d 1283 (11th Cir. 2010).

       In October 2011, Duran filed a motion for a new trial under Federal Rule of

Criminal Procedure 33, alleging a Giglio error.2 According to the motion, Duran

had discovered that Carlos Kauffmann, his former business partner and a co-

conspirator who testified against him, had filed an application for asylum before

trial, and that the government knew of the application and failed to correct

Kauffmann’s trial testimony to the contrary. Specifically, Kauffmann testified at

trial that, as part of his plea agreement, the government had promised that

Kauffmann and his family would not be deported to Venezuela after Kauffmann

served his prison sentence, but that instead he would be deported to any other

       1
          A full recitation of the evidence at trial is presented in our prior opinion and we do not
recount them here except as relevant to the motion for a new trial.
       2
         Duran’s new trial motion is timely because it was filed within three years of his conviction.
Fed. R. Crim. P. 33(b)(1).

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country that would accept him. The plea agreement made no mention of

Kauffmann seeking asylum in the United States, and Kauffmann testified that no

other promises had been made in exchange for his testimony.3 But Kauffman did,

in fact, apply for asylum in the United States, and after Duran’s trial was over, the

prosecutors in Duran’s case supported Kauffmann’s asylum application.

       Along with his motion for a new trial, Duran filed a discovery motion,

requesting that the government produce Kauffmann’s asylum application, the

prosecutors’ files concerning Kauffmann’s asylum application, and any

communications between the prosecutors, the Department of Homeland Security,

and U.S. Immigration and Customs Enforcement officials regarding Kauffmann’s

application.

       The district court instructed the parties to submit affidavits related to



       3
         Kauffmann testified to various kickback schemes he and Duran engaged in during their
business dealings with the Venezuelan government. On cross-examination, defense counsel asked
Kauffmann, “And there is a provision in your plea agreement . . that calls for the Government to
recommend that you would not be deported from the United States. Correct?” The government
objected, asserting that the question misstated the terms of the plea agreement. Defense counsel
corrected the question and then asked Kauffmann if, based on this deal, he was free to say whatever
he wanted about the Venezuelan Government. Kauffmann replied that this was correct. In his
motion for a new trial, Duran contends that the government’s objection enabled Kauffmann’s false
testimony to stand and, had the government not interrupted, counsel would have shown the falsity
of Kauffmann’s testimony. But Duran is mistaken because counsel’s question actually misstated the
terms of the plea agreement. Thus, the government’s objection did nothing to allow the alleged
perjury.




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Duran’s allegations. Duran submitted an affidavit from the immigration attorney

who represented him in his deportation proceedings after his conviction.4 The

affidavit explained that Kauffmann could have been motivated to testify for the

government at Duran’s trial to support his asylum application.5

       The government submitted affidavits from the prosecutors, Kauffmann’s

attorneys, and the FBI agents involved in the case. The prosecutors and the FBI

agents confirmed that they had no knowledge of Kauffmann’s asylum application

at the time of trial. The prosecutors also stated that there was no agreement with

Kauffmann other than the plea agreement. Kauffmann’s attorneys stated that they

had not informed the prosecutors or FBI agents that Kauffmann had, or planned to,

file an asylum application.

       The district court denied the motion for a new trial, finding that there was

no evidence Kauffmann’s testimony was false and that Duran had not met his

burden to show any Giglio violation. The court also noted that, even if the


       4
         Duran submitted a second affidavit from another immigration attorney involved in his case.
This affidavit did not address Kauffmann’s testimony or asylum application.
       5
          According to the immigration attorney’s affidavit, the merits of Kauffmann’s asylum
application involved Kauffmann’s fear of the Venezuelan government, which was established and
supported by his testimony at Duran’s trial. Providing support for his asylum application would have
motivated Kauffmann to lie at Duran’s trial. The immigration attorney also stated that Kauffman
would have been ineligible for admission to the United States because he had committed fraud when
he entered the United States using false documents. Thus, Kauffmann’s only avenue to obtain
residency was a waiver of inadmissibility from the government, giving him an additional motive to
lie.

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testimony had been false, any error was harmless beyond a reasonable doubt in

light of the overwhelming evidence and recordings of Duran’s own conversations

admitted at trial.

      On appeal, Duran argues that the information about Kauffmann’s asylum

application would have substantially impeached Kauffmann’s credibility, and that

the government’s affidavits alone were insufficient to establish that the

prosecutors and investigators involved in Duran’s case lacked knowledge of

Kauffmann’s application. He asserts that the district court should have allowed

discovery and conducted an evidentiary hearing.

      We review the district court’s ruling on a motion for a new trial for abuse of

discretion. United States v. Isaac Marquez, 594 F.3d 855, 859-60 (11th Cir.

2010). Under Rule 33, a “court may vacate any judgment and grant a new trial if

the interest of justice so requires.” Fed.R.Crim.P. 33(a). When the resolution of a

motion for a new trial is clear, the district court is not required to hold an

evidentiary hearing. United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir.

2003). “[T]he acumen gained by a trial judge over the course of the proceedings”

makes the same court “well qualified” to rule on the motion without holding an

evidentiary hearing. United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997)

(internal quotations marks omitted). We have declined to order discovery based


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upon mere speculation as to whether material would contain exculpatory evidence.

United States v. Arias-Izquierdo, 449 F.3d 1168, 1189 (11th Cir. 2006).

      A Giglio error occurs when undisclosed evidence demonstrates that the

prosecution used perjured testimony and that the prosecution knew, or should have

known, of the perjury. Ford v. Hall, 546 F.3d 1326, 1331 (11th Cir. 2008). To

prevail on a motion for a new trial claim based on a Giglio claim, the defendant

“must establish that the prosecutor ‘knowingly used perjured testimony, or failed

to correct what he subsequently learned was false testimony,’ and that the

falsehood was material.” Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir.

1999). For the purposes of a Giglio claim, “the falsehood is deemed to be material

if there is any reasonable likelihood that the false testimony could have affected

the judgment of the jury.” Id. (internal quotation marks omitted).

      At issue here is whether the government knew, or should have known, of

Kauffmann’s asylum application at trial and failed to disclose it. Duran contends

that the government failed to disclose this information, which was material

because it would have shown the jury that Kauffmann had a motive to fabricate his

testimony against Duran. And because Kauffmann’s testimony was the “lynchpin”

of the government’s case, Duran argues, the failure to disclose the government’s

support for Kauffmann’s asylum application was not harmless.


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      We conclude that the district court properly denied the motion for a new

trial because Duran has not shown that the government knowingly used, or failed

to correct, false testimony. None of Kauffmann’s testimony at trial regarding his

plea agreement was false or unsupported by the agreement. Further, the

government’s affidavits and declarations submitted in response to the motion for a

new trial demonstrated that the prosecutors were unaware of Kauffmann’s asylum

application at the time of Duran’s trial. Duran has not offered any proof that

suggests otherwise, and Duran has given this court no reason to think they should

have known about the application. Because the evidence showed that the

prosecutors did not know about Kauffmann’s application, Duran has failed to

show that a Giglio violation occurred. Additionally, Duran has offered only

speculation about possible exculpatory evidence. Thus, the district court, which

had presided over Duran’s trial, properly denied his new trial motion without a

evidentiary hearing and discovery. See Arias-Izquierdo, 449 F.3d at 1189; Schlei,

122 F.3d at 994.

      AFFIRMED.




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