1 Giraldi adopted the issues and arguments contained in Reategui's brief. However, that brief

adds nothing of significance to Giraldi's appeal and we will not separately address the issues raised

by Reategui. United States Court of Appeals,

Fifth Circuit.

No. 94-60602.

UNITED STATES of America, Plaintiff-Appellee, Appellant-Cross-Appellant,

v.

Antonio GIRALDI, Defendant-Appellant, Appellee-Cross-Appellee.

June 19, 1996.

Appeals from the United States District Court for the Southern District of Texas.

Before BARKSDALE, DEMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant Antonio Giraldi ("Giraldi") was found guilty after a month long jury trial

of 18 counts of money laundering, bank fraud, misapplication o f funds and conspiracy. He was

sentenced to 120 months in prison, $850 special assessment and released on a $700,000 bond pending

appeal. Giraldi's co-defendant, Maria Lourdes Reategui, was convicted during t he same trial,

appealed, but dismissed her appeal after briefing. 1 We affirm.

FACTS

In 1989, Giraldi was an international private banker in the Mexico market with approximately

two years of experience who worked for Bankers Trust Co. ("BT") in New York as a "relationship

manager." His job was to recruit and service the bank accounts of wealthy Mexican individuals. He

was also responsible for screening potential clients to determine if their wealth was legitimate.

Giraldi recruited a $2 millio n deposit from a new client named Aguirre in June 1989, that grew

over the next several months to $21 million. There is no dispute that Aguirre was laundering drug

money. The central question at trial and on appeal is whether Giraldi knew it was drug money.

Giraldi accepted Aguirre as a client without meeting him. A relat io nship manager could

accept a client that he did not know and had not met if the potential client had a very strong2 The body of the Benet memo reads:

FOR YOUR INFORMATION WE ARE ESTABLISHING A NEW

RELATIONSHIP WITH MR. RICARDO AGUIRRE FROM MONTERREY.

MR. AGUIRRE WAS REFERRED TO ME BY ALBERTO BENET,

DIRECTOR OF ABSA DIVISAS CASA DE CAMBIO AND ACCIONES

BURSATILES CASA DE BOLSA. I HAVE KNOWN ALBERTO FOR MANY

YEARS AS HE AND HIS FAMILY HAVE BEEN TIER 1 CLIENTS OF

CITIBANK FOR OVER 20 YEARS.

MR. AGUIRRE IS A RANCHER/FARMER, OWNS SEVERAL BUSINESSES

SUCH AS TWO FORD DEALERSHIPS (VERA CRUZ/OAXACA) AND

SEVERAL GAS STATIONS. ALBERTO BENET HAD TOLD HIM ABOUT

US AND SPECIFICALLY, BTAG. THEREFORE, MR. AGUIRRE HAS

DECIDED TO ESTABLISH A $2,000,000 U.S.$ ACCOUNT WITH US.

I ASKED MR. AGUIRRE TO COME AND MEET LOUIS AND ME NEXT

WEEK IN THE D.F. TO DISCUSS INVESTMENT STRATEGY AND SET UP

A DINNER FOR TUES. EVENING AT 8:30 P.M. HE ALSO SAID THAT HE

WOULD LIKE TO REFER OTHER POTENTIAL CLIENTS TO US.

I SPOKE TO HIM ABOUT A TRUST/COMPANY AND HE SAID HE WAS

VERY INTERESTED AND WE WOULD DISCUSS IT FURTHER NEXT

WEEK.

INSTRUCTIONS TO TRANSFER THE $2MM WERE GIVEN TODAY AND

WE SHOULD BE RECEIVING THE FUNDS BY THE END OF THE DAY.

LAURA MACHUCA FROM ABSA DIVISAS HAS RECEIVED ALL THE

DOCUMENTATION WHICH IS BEING SIGNED THIS WEEK. WE HAVE

ALREADY RECEIVED A FAX OF THE SIG. CARDS AND I HAVE ALSO

REQUESTED A LETTER OF REFERRAL FROM ABSA DIVISAS.

I WILL KEEP YOU POSTED ON ANY DEVELOPMENTS WITH THIS NEW

CLIENT.

REGARDS, TONY recommendation from a known, reputable source. Giraldi circulated an interoffice memorandum

("the Benet memo") at BT that stated that Aguirre had been referred by Alberto Benet, whose family

had been "Tier I clients" of Citibank for over 20 years. 2 Giraldi was acquainted with Alberto Benet,

a wealthy Mexican businessman and general director of ABSA, a Mexican financial services company,

by virtue of having handled the Benet accounts at Citibank, Giraldi's former employer. In order to

generate business, Giraldi had given Benet BT promotional literature and his (Giraldi's) business card.

Benet testified that he had not, in fact, referred Aguirre to BT. There was evidence that the referral

may have come from another ABSA employee, Laura Machuca, who had received Giraldi's literaturefrom Benet. Further, the statement in the Benet Memo that Benet and his family had been Tier I

clients (that is a client who had at least $10 millio n deposited with the bank) at Citibank for over 20

years was false. The Benet family had an account with Citibank from 1983 that was worth $3 million,

and was never designated a Tier I client during 1983-1987. Because Giraldi handled Benet's Citibank

account, he would have known that the information in his memo was false.

The signature card signed by the three account holders on Aguirre's account and Giraldi was

dated 6-27-89 in New York. Giraldi's records showed that he was in Mexico City that day and could

not have witnessed the signatures of the account holders.

Eight months after Aguirre opened his BT accounts, Giraldi was asked to resign from BT.

He went to work for American Express Bank International (AEBI) and Aguirre moved his accounts

to AEBI shortly thereafter.

The government also introduced evidence that Aguirre had no legitimate source of wealth,

which Giraldi would have discovered had he investigated his background. Aguirre worked as a gas

stati on manager in Mexico, was unsophisticated abo ut financial matters, and had no banking

references that showed wealth prior to 1989. Giraldi put on the bank forms that Aguirre's wealth was

derived from the sale of Mexican ranch land, as well as interest in a car dealership, ranching, and a

gas station. Later Aguirre purchased and ran a meat packing plant with part of the money from the

accounts at issue in this case. The government introduced information from training seminars

attended by Giraldi that described typical money laundering schemes that paralleled the techniques

used to manage Aguirre's accounts, although these techniques were not per se illegal.

Other evidence showed that Giraldi and a myriad of other employees from both banks met

with Aguirre over a two year period, and no one ever questioned his legitimacy. Aguirre was

reported dead following a car wreck in March 1992. The Government implies that he did not die but

went into hiding to avoid the legal consequences of his drug business.

SUFFICIENCY OF THE EVIDENCE

A. Standard of review

Giraldi challenges the sufficiency of evidence to sustain the convictions on all counts. ThisCourt must view the evidence in the light most favorable to the jury verdict and affirm if a rational

trier of fact could find that the government proved all essential elements beyond a reasonable doubt.

U nited States v. Mackay, 33 F.3d 489 (5th Cir.1994). If the evidence viewed in the light mo st

favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt

and a theory of innocence, the conviction should be reversed. I d. at 493. In reviewing for sufficiency

of the evidence, we consider the countervailing evidence a s well as the evidence that supports the

verdict. United States v. Wright, 24 F.3d 732 (5th Cir.1994).

B. Proof of Giraldi's knowledge of illegal nature of funds

Each count of conviction required the government to prove that Giraldi knew that Aguirre's

funds were the proceeds of some form of unlawful activity. The money laundering conspiracy alleged

in Count 1 and the substantive money laundering offenses in Counts 2 through 11, under 18 U.S.C.

§ 1956, require proof that,

Whoever, knowing that the property involved in a fi n ancial transaction represents the

proceeds of some form of unlawful activity ...

Section 1956 also requires proof that the defendan t knew the transaction was designed in

whole o r in part to conceal or disguise the nature, the location, the source, the ownership, or the

control of the proceeds of specified unlawful activity. Absent sufficient proof of these elements, the

convictions on Counts 1 through 11 are invalid.

The bank fraud allegations charged in Counts 13 and 14 require proof that Giraldi:

... knowingly executed or attempted to execute a scheme or artifice

1) to defraud a financial institution; or

2 ) to obtain any of the monies, funds, credits, assets, securities or other proper t y

owned by, or under the custody or control of, a financial institution, by means of false

or fraudulent pretenses, representations or promises ...

The "scheme or artifice" alleged in the bank fraud counts of the indictment describes the introduction

of drug proceeds into the banking system in a manner designed to provide drug dealers access to

loans, which is the same illegal activity alleged in each of the money laundering counts. Therefore,

in order to sustain the bank fraud convictions, there must be sufficient evidence th a t Giraldi

knowingly and willfully introduced the drug proceeds into the banks.Counts 15 through 18 alleged violation of 12 U.S .C. § 630, by misapplying bank funds

knowingly and willfully, with the intent to injure and defraud the bank, based on false and fraudulent

pretenses and representations. The bank's money was allegedly misapplied by loaning it to the drug

dealers, who used their drug proceeds on deposit as collateral for the loans. The alleged false and

fraudulent pretenses and representations were Giraldi's statements concerning the source of Aguirre's

wealth. It is well established that the government must prove that Giraldi knowingly participated in

the deceptive or fraudulent transaction. S ee United States v. Shaid, 916 F.2d 984 (5th Cir.1990) cert.

denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992).

Giraldi contends that the evidence was insufficient to establish that he knew Aguirre's funds

were t he proceeds of unlawful activity. There is no direct evidence of Giraldi's knowledge that

Aguirre's funds were derived from illegal drug sales. Giraldi contends that he made a mistake by not

discovering the illegal source of Aguirre's funds, and t hat the government's proof that he was

negligent or that he "should have known" is not sufficient for conviction.

The government answers that the circumstanti al evidence was sufficient for the jury to

conclude that Giraldi did in fact know or was willfully blind to the source of Aguirre's funds. This

argument is supported by the evidence that Giraldi was specifically charged with investigating and

knowing his client, was dishonest about the fact that he had not followed the prescribed procedures

prior to taking the init

ial deposit, failed to properly "paper" various transactions during his

relationship with Aguirre and took several actions to control the damage once the authorities began

to investigate Aguirre's holdings.

After a careful review of

t he record, we have concluded that the evidence is sufficient to

sustain Giraldi's conviction.

In addition to the falsehoods contained in the "Benet memo," Giraldi either personally made

or approved false statements in banking records concerning the source of funds coming into and the

use of funds flowing out of the Aguirre account. The evidence revealed that Giraldi stated that

Aguirre was "invested 100 percent in deposits with Texas banks" prior to opening his BT accounts.

The evidence of wire transfers that tracked the source of the money Aguirre deposited showed thatit came from cash deposits into and temporary placement with currency exchange houses rather than

deposits wit h Texas banks. Likewise, the statements concerning the use to which funds from

Aguirre's loans and letters of credit were put were false.

In addition to the false s t at ement s in the bank records, Giraldi made false statements to a

go v ernment agent named Iglio who was investigating irregularities in one of Aguirre's accounts

shortly after Aguirre's reported death. At that time, the government had seized Green Mountain, an

AEBI account for which Giraldi served as account representative, pursuant to a criminal investigation

of Rogelio Rodriguez. Aguirre, Aguirre's wife and daughter each o wned an interest in Green

Mountain and Rodriguez was listed as the fourth owner. This conversation was recorded without

Giraldi's knowledge and the recording and transcript were admitted into evidence at trial. During that

conversation, Iglio asked Giraldi how he got hooked up with Aguirre. Giraldi lied to Iglio, saying

that Aguirre was a client of Banker's Trust where he worked earlier, and had been referred by

Banker's Trust. Iglio also asked Giraldi about the relationship between Rogelio Rodriguez and

Aguirre. Giraldi claimed that Aguirre had only recently met Rodriguez, who had "never had anything

to do with Green Mountain," except that Aguirre had guaranteed a $1.5 million letter of credit for

him with Green Mountain's assets, because Aguirre was a generous, naive person. In fact, Giraldi's

records, admitted into evidence at trial, showed that Aguirre and Rodriguez were partners in various

enterprises and that overlapping ownership by Green Mountain, Aguirre, Rodriguez and seven other

trust accounts and businesses formed a complex web of financial relationships that G iraldi's taped

statements omitted or denied.

In addition to the false s t at ement s in bank records and on the Iglio tape, evidence was

introduced concerning Giraldi's extensive background and experience in international banking. He

had attended banker training seminars that outlined typical money laundering schemes that were very

similar to the banking practices that Giraldi used on behalf of Aguirre. He had been trained and even

served as a trainer in know-your-client practices that, had they been employed, would have exposed

Aguirre's wealth as illegitimate.

Further evidence sho wed that the wife of the drug lord Abrego was named on the originalAguirre Swiss bank account wit hout proper documentation. When proper documentation was

requested, she withdrew from ownership rather than provide it. The government o ffered t his as

circumstantial evidence that Giraldi knew that the money in the Aguirre accounts was not legitimate.

A lt ho ugh there is no requirement that the Government provide a motive for the charged

offense, there was evidence that the motive for Giraldi's crime wa s the pressure on international

bankers to recruit new clients and the concomitant professional and monetary success that comes to

those who are able to produce.

Giraldi offers alternate explanations for the evidence at trial. He claims that the Benet memo

was partly true, in that the referral came through Benet's colleague Laura Machuca, and that there

was no proof that Giraldi believed anything in the memo was false when he made out the memo. The

problem with this explanation is that even if the jury were willing to assume Giraldi made a mistake

about the original referral, he did not correct it once he talked to Benet and discovered the mistake

and even repeated the information in subsequent banking documents. Further, inaccurate information

about the size of Benet's deposits and the length of his relationship with Citibank was clearly within

Giraldi's knowledge at the time the memo was written and was never corrected.

Giraldi variously describes away the evidence as memory lapses, misstatements, sloppiness,

carelessness, failure of Giraldi to be aware of the falsity of statements, both oral and written, and that

certain practices, such as vague purpose statements on loan applications, were "standard procedure"

in international banking.

This is a close case. However, it is not especially remarkable given that mental state is almost

always proved by circumstantial evidence from which the jury must infer guilt beyond a reasonable

doubt. Viewed in the light most favo rable t o the prosecution, the evidence is sufficient to sustain

Giraldi's convictions. A rational jury could have found it incredible t hat carelessness and honest

mistakes could account for the complexity of financial g errymandering required to give Aguirre's

transactions the appearance of legitimacy.

Giraldi's additional challenges to the sufficiency of th e evidence on the bank fraud and

misapplication counts are without merit.GIRALDI'S MOTION FOR NEW TRIAL

A. Standard of review

The standard of review for the denial of a new trial is abuse of discretion. United States v.

Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991). This Court must affirm the conviction if a

rational jury could have found the elements of the crimes beyond a reasonable doubt. U nited States

v. Dula, 989 F.2d 772, 778 (5th Cir.), cert. denied,

--- U

. S.

----, 114 S.Ct. 172, 126 L.Ed.2d 131

(1993). Review does not encompass weighing the evidence or judging the credibility of witnesses.

Id.

B. Verdict contrary to the evidence

Giraldi moved for a new trial arguing that the verdict on all counts was contrary to the great

weight of the evidence. Giraldi advances no additional arguments in this ground of error but asks the

Court to perform the sufficiency review under this additional standard and reverse "in the interest of

justice." For the reasons stated above, we conclude that a rational jury could have found all of the

elements of the crimes beyond a reasonable doubt. Therefore, the district court did not abuse its

discretion in denying Giraldi's motion for new trial.

C. Government misconduct during closing argument

The motion for mistrial also complained of government misconduct during closing argument.

Throughout the trial, the government emphasized the false statement, contained in the Benet

memo, that Benet referred Aguirre to the bank. The defense's t heo ry was that the referral came

indirectly from Benet, through his co-employee Laura Machuca. During the rebuttal portion of final

argument the government attorney said:

Let's go back to this memorandum. Let's talk about Laura Machuca.... They asked why

Laura Machuca is not here. You know why? Because the government alleges that this whole

thing is false.

Did you see a letter of referral from anyone in this case? We showed you every document.

There is no letter of referral here. Do you think that there was a—there is a Laura Machuca?

Do you think if Laura Machuca had anything to do with t his t hat there would have been a

letter of referral in that file? You're doggone right because that would have helped in terms

of covering up who Mr. Aguirre is. But you didn't see a letter of referral, that's because this

isn't true either.

According to Giraldi, the government's argument amounted to a claim that Laura Machucahad nothing to do with referring Aguirre to Giraldi and that Machuca did not even exist. Such a

claim, if made, was false and misleading. The government had taken Laura Machuca's deposition.

In that deposition, Machuca testified that Benet gave Giraldi's telephone number to Machuca, who

in turn gave it to Aguirre in response to Aguirre's request for information about foreign investments.

This deposition testimony was not admitted into evidence, and Machuca, a Mexican citizen, was not

available under the court's subpoena power.

The government responds that 1) the prosecutor was not challenging the exi stence of

Machuca, but was instead challenging the existence of a letter of referral from Machuca; 2) t he

prosecutor was responding to defense counsel's argument, taking the position that Machuca did not

do t he t hings attributed to her by the defense and, if she did, the defense would have presented

docu ment ary evidence in the form of a letter of referral; and 3) if the comment is construed as

challenging the existence of Machuca, it was a rhetorical question suggesting that she could not

testify to the facts the defense implied she would, rebutting the defense insinuation that the

government had withheld her exculpatory evidence.

The prosecutor's comment clearly implies that Machuca did not exist. However, there was

no danger that the jury was misled concerning her existence, given Benet's extensive testimony about

her. The prosecutor's other point, that Machuca did not provide a letter of referral for Aguirre, is a

sound inference from the evidence. Giraldi's argument is based on the fact that Machuca provided

Aguirre with Giraldi's name, bank name and business number. The "let ter of referral" which the

p rosecutor pointed out was missing was a statement that Machuca personally knew that Aguirre ' s

wealth was legitimate. There is no evidence that Machuca had any personal knowledge of the source

of Aguirre's wealth.

Given the context within which the comment was made, the district court's denial of Giraldi's

motion for new trial was not an abuse of discretion.

ADMISSION OF EVIDENCE CONCERNING EXTRINSIC MATTERS

We review questions concerning the admissibilit y of evidence for abuse of discretion. U nited

States v. Hays, 872 F.2d 582 (5th Cir.1989).The district court admitted evidence regarding Giraldi's banking relationship with Jose

"Chucho" Castellanos. Giraldi managed Castellanos's deposits at BT, which grew in 1988-89 from

$750,000 to $8 millio n. When Giraldi moved from BT to AEBI, Castellanos eventually transferred

his account to AEBI. Giraldi's successor at BT became suspicious of Castellanos because he could

be reached only with pagers and codes. In 1991, when BT asked Castellanos for identification, such

as a valid passport or driver's license, he closed out the remainder of his BT account. At AEBI,

Castellanos's and Aguirre's accounts were cross collateralized. Shortly after the execution of search

warrants for records pertaining to Aguirre's accounts, Giraldi took steps to remove the link between

the two depositors. Also, there was a document that stated that Castellanos had been referred by a

"former Citibank

client." The government argued that statement implied that Benet provided the

referral, which he did not.

Giraldi argues that there was no evidence that 1) Castellanos was a drug dealer or that his

wealth was i llegitimate; or 2) that Castellanos had any connection to the alleged conspiracy to

launder drug proceeds with Aguirre. He asks this Court t o conclude that there was no rational

connection between Castellanos and the charged offense, and that the evidence should not have been

ad mit t ed. Giraldi relies on U nited States v. Hays, 872 F.2d 582 (5th Cir.1989), where this Court

rever sed a conviction based on the admission of irrelevant, highly prejudicial evidence. He also

argues that improper admission of evidence may constitute a violation of due process under the Fifth

Amendment, citing Hills v. Henderson, 529 F.2d 397 (5th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct.

139, 50 L.Ed.2d 124 (1976).

The similarit

ies in the histories of the two depositors, their cross collateralized accounts and

Giraldi's reaction to the search warrant all support the trial court's conclusion that the Castellanos's

evidence was admissible as part of the conspiracy. Because it was neither irrelevant nor improper,

Giraldi's arguments are without merit.

JURY INSTRUCTIONS

Giraldi contends that the district court erred in refusing his requested jur y instructions

concer ning: a) good faith defense; b) "misapplication" means more than maladministration; c)violation of civil statute or regulation does not necessarily constitute criminal offense; and d) loan

approval for debtor who transfers loan proceeds to third party.

The standard of review on appeal from the denial of a requested jury instruction is whether

the district court abused its discretion. U nited States v. Pennington, 20 F.3d 593, 600 (5th Cir.1994).

This court must view the evidence in the light mo st favorable to Giraldi in determining if there is

sufficient evidentiary foundation for a requested instruction. U nited States v. Lewis, 592 F.2d 1282,

1286 (5th Cir.1979). The dist rict court abuses its discretion in denying a requested instruction if:

1) the requested instruction is substantively correct; (2) the requested instruction is not substantially

covered in the charge given to the jury; and (3) the omission of the instruction would seriously impair

t he defendant's ability to present his defense. U nited States v. Storm, 36 F.3d 1289, 1294 (5th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1798, 131 L.Ed.2d 725 (1995).

A. Good faith defense

Giraldi's requested instruction stated that good faith is a complete defense, inconsistent with

knowingly and willfully committing the offenses alleged in the indictment. The district court stated

t hat its charge would incorporate in a general sense everything that both sides had requested and

would "make each count subject to the requirement that the term "knowingly' and "willfully' be

proven." The charge given defined t he term "knowingly" as "the act was done voluntarily and

intentionally" and "not by accident or mistake." The term "willfully" was defined as "the act was

committed voluntarily and intentionally, that you did it because you wanted to do it and with a

specific intent to do something that the law forbids." Also, the jury was instructed that to convict on

the bank fraud and misapplication counts they had to find that Giraldi acted with intent to injure or

defraud.

Giraldi cites a Tenth Circuit case which held that the refusal to give the requested good faith

instruction is reversible error if the evidence supported such an instruction. U nited States v.

Haddock, 956 F.2d 1534, 1547 (10th Cir.), cert. denied, 506 U.S. 828, 113 S.Ct. 88, 121 L.Ed.2d

50 (1992). Clear precedent in the Tenth Circuit holds that instructions that do no more than define

"willfulness" and "intent to injure or defraud" do not adequately convey a good faith defense to thejury. Id.

The Fifth Circuit has taken a different road on this issue. Here, a district court may refuse

to submit an instruction regarding good faith if the defense of good faith is substantially covered by

the charge given and the defendant has had the opportuni ty to argue good faith to the jury. United

States v. Storm, 36 F.3d at 1294. The charge given here, (omitting specific good faith instruction,

but detailing specific intent, and defining "willfully" and "knowingly") was not an abuse of discretion

under Fifth Circuit law. See United States v. Rochester, 898 F.2d 971, 978-979 (5th Cir.1990).

B. "Misapplication" means more than maladministration

Giraldi requested the following instruction in connection with the misapplication counts.

Willful misapplication

... means more than maladministration. The acts with which [Giraldi

is] accused ... are prohibited misapplications if made in bad faith, not in the honest exercise

of official discretion. When actions are performed in good faith and without fraud, for the

actual or supposed advantage of the bank, there is no criminal responsibility on the part of the

bank officer, although the transaction may be injudicious and unsafe, and even though the

transaction results is a loss or damage to the bank. The statute does not punish mere acts of

maladministration or negligent use of bank funds.

The district court denied this request. The jury was instructed that, in order to convict on the

misapplication counts, it had to find that Giraldi knowingly m isapplied funds belonging to the

institution and that he acted with the intent to injure or defraud the bank. The following definitions

were then given:

To willfully misapply a bank's money or property means an intentional conversion of such

money or property to one's own use and ben efit , or for the use and benefit of another,

knowing that one had no right to do so.

To act with the intent to defraud means to act with the intent to deceive or cheat someone,

ordinarily for the purpose of causin g some finance [sic] loss to another or bringing about

some financial gain to oneself.

Giraldi presented evidence and argument t hat t he errors on Giraldi's paperwork were the

result of carelessness that did not satisfy the mens rea necessary for a misapplication conviction.

In United States v. Southers, 583 F.2d 1302, 1306-1307 (5th Cir.1978) this Court found that

it was not error for the district court to refuse a requeste d instruction that specified that

m aladministration and bad judgment were not crimes, where the court's instruction on intent was

comprehensive and a correct statement of the law. Here, as in S outh ers, t he jury could not havefound Giraldi guilty on the basis of the instructions given merely because he committed unintentional

or negligent acts of maladministration. We find no abuse of discretion in the district court's denial

of Giraldi's requested misapplication instruction.

C. Violation of civil statute or regulation does not necessarily constitute criminal offense

The district court denied the following jury instruction requested by Giraldi:

You have heard testimony that t here is a civil banking regulation requiring financial

institutions to retain a record of each extension of credit in excess of $10,000 which identifies

the nature or purpose of the extension of credit. A violation of a civil statute or regulation

is not a criminal offense. Such a violation would merely subject an institution or, in some

cases, an individual, to civil penalties which is not the same thing as a crime.

You must not consider any evidence concerning civil recording regulations in deciding if the

defendant committed the acts charged in the indictment. The only reason that this evidence

was admitted is for the purpose of determining, if it does aid your determination, whether or

not the defendants had the intent an d purpose of violating the law, as charged in the

indictment. Before you may consider such evidence, you must first be convinced beyond a

reasonabl e do ubt from other evidence in the case that the defendant violated the law as

charged in the indictment. If you are so convinced, then this evidence may be considered by

you, if you believe it he lpful, in determining whether or not the defendant had a motive or

intent to commit the crimes alleged in the indictment.

Giraldi complains that the go vernment "constantly" introduced evidence and argument

co ncerning violation of civil regulations, and the requested instruction was an attempt to dispel

prejudice created thereby. He also claims that the instruction is a proper statement of the law, based

on United States v. Cordell, 912 F.2d 769, 776 (5th Cir.1990).

The government points out that Giraldi did not object to the evidence or argument of which

he now complains. U

nited States v. Christo, 614 F.2d 486, 492 (5th Cir.1980), forbids introducing

evidence of civil banking statute violations solely for the purpose of proving criminal misapplication;

howe ver, it does not hold that such evidence can never be introduced in a misapplication case.

United States v. Ste

fan, 784 F.2d 1093, 1098 (11th Cir.) (cited with approval in U nited States v.

Saks, 964 F.2d 1514, 1523 (5th Cir.1992)), cert. denied, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d

706 (1986). References to banking regulations are appropriate in a criminal trial to explain the role

of federal regulators, the rules by which the bank is governed, and the stakes in a bank fraud case.

While ob vio usly, each case depends upon its own facts, if the regulations are given too much

emphasis, the trial may be impermissibly infected. S aks, 964 F.2d a t 1523. The governm ent al socontends that the porti on of the requested instructions that states that the jury "may not consider" the

evidence in determining whether the charged acts occurred is not a correct statem ent of the l aw.

Even if the requested instructions were correct, the government contends that the court did not abuse

its discretion in denying the request because the evidence was properly admitted and used at trial, and

this was not a case where over-emphasis required corrective instruction. We find that the denial of

this requested instruction was not an abuse of discretion.

D. Loan approval for debtor who transfers loan proceeds to third party

The district court refused Giraldi's requested jury instruction that, "You are instructed that

you must acquit [Giraldi] of violation of 12 U.S.C. § 630, if the person who signed the note knew

that he was expected to pay it and was able to do so." Giraldi argues that the requested instruction

is a correct statement of the law under United States v. Gens, 493 F.2d 216 (1st Cir.1974).

In United States v. Parekh, 926 F.2d 402, 407 n. 8 (5th Cir.1991), this Court explained that

Gens stood for the proposition that "[a] debtor's financial ability to repay the note is thus necessary

but not sufficient to render a loan legitimate." Although the debtor's knowledge and ability to repay

t he loan are relevant to the issue of the required intent, they are not dispositive of the issue.

Therefore the requested instruction is not a correct statement of the law and the district court did not

abuse its discretion by denying the request.

CUMULATIVE EFFECT OF ERRORS

Giraldi contends that the cumulative effect of the errors requires reversal of his convictions.

He presents no new information or argument to support this ground of error. Seei ng no error to

cumulate, we reject this argument.

GOVERNMENT'S CROSS APPEAL: SENTENCING GUIDELINES

The Government cont ends that the district court misapplied the sentencing guidelines by

giving Giraldi a 4-level reduction for his role in the offense.

The standard of review for a reduction for ro le in t he o ffense is the clearly erroneous

standard. See United States v. Watson, 988 F.2d 544, 550 (5th Cir.1993).

U.S.S.G. § 3B1.2 states that a defendant may receive a downward adjustment of four levelsif he was a minimal participant in the criminal activity. Giraldi's Presentence Report (PSR) did not

recommend that he was entitled to these four points and Giraldi objected. The district court awarded

him the four po int s, saying, "It shouldn't be, but I will give it to him ... and I will tell you why it

shouldn't be. Simply because of the nature of his role, but I can see the scheme of things. That is all

right. I will give you those four points."

A downward adjustment under § 3B1.2 is appropriate where a defendant was substantially

less culpable than the average participant. U nited States v. Gadison, 8 F.3d 186, 197 (5th Cir.1993).

The government contends that th e district court's statements on the record amount to an

acknowledgment that there wa s no evidentiary basis under the guidelines for the downward

adjustments and that therefore the district court did not correctly apply the guideline. Further, the

government contends that the record does not support a finding that Giraldi was entitled to a

downward adjustment because he played an integral role in the money laundering conspiracy.

Giraldi reads the district court's comments as finding that there was a basis for the downward

adjustment and argues that the record supports that finding. Given that there was no evidence that

Giraldi and co-defendant Reategui benefitted financially from the scheme except in the sense that they

enhanced their careers at the bank by bringing in a large client, while the other co-defendants

laundered large quantities of money and then withdrew it for their personal use, minimal participant

status is supported by the record.

RELEASE PENDING APPEAL

The Government contends that the district court erred in ordering Giraldi's release pending

appeal without finding that he had demonstrated a substantial question of law or fact likely to result

in reversal or a reduced sentence.

The government's position is that the district court did not make the requisite finding and that

there was no basis on which the court could have made such a finding.

Giraldi responds that the district court did make the requisite finding, quoting from the record:

THE COURT: I don't find that [Giraldi] is a flight risk.

ATTORNEY: Referring to the next section. The statue [sic] specifically says the Court must

also find there are no issues that could possibly result in reversal of the trial.THE COURT: I don't find so.

The issues raised by Giraldi on appeal are not frivolous so as to call into question that finding.

CONCLUSION

For the foregoing reasons, we affirm Giraldi's conviction and sentence, as well as the order

for his release pending appeal. AFFIRMED.