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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15341
________________________
D.C. Docket No. 8:11-cr-00249-EAK-TBM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO FELICIANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 3, 2014)
Before PRYOR and MARTIN, Circuit Judges, and GOLD, * District Judge.
MARTIN, Circuit Judge:
*
Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
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Francisco Feliciano was indicted in federal court for both an attempted bank
robbery on April 1, 2011 as well as a more successful bank robbery ten days later
in which over $10,000 was taken from the bank. Mr. Feliciano was also charged
with using a firearm during each of those robberies and for being a felon in
possession of a firearm. 1 The jury convicted Mr. Feliciano on all five Counts. The
District Court sentenced him to 110 months for both bank robberies and for being a
felon in possession; a consecutive term of 84 months on the gun charge associated
with the attempted bank robbery; and another consecutive term of 300 months for
the gun charge associated with the successful bank robbery. Mr. Feliciano asks
this Court to vacate all of his convictions associated with the bank robberies, but
concedes there was sufficient evidence to sustain his conviction for being a felon in
possession. We agree with Mr. Feliciano that the jury’s verdict on the gun charge
associated with the second bank robbery cannot stand and vacate that conviction.
We affirm his convictions on the remaining Counts.
I.
We first address Mr. Feliciano’s challenge to the sufficiency of the evidence
supporting his convictions. Central to the government’s case was the testimony of
1
Specifically, the charges against Feliciano were : (Count One) attempted bank robbery in
violation of 18 U.S.C. §§ 2113(a) and (d) and 2; (Count Two) use of a firearm during the
attempted bank robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; (Count Three) bank
robbery in violation of 18 U.S.C. §§ 2113(a) and 2; (Count Four) use of a firearm during the
bank robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; and (Count Five) being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g).
2
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the two people who were alleged to have participated in the April 1st and/or 11th
incidents with Feliciano: Steven Trubey and Christopher Quinn. Investigators
recovered no fingerprints, DNA, or other physical evidence at the banks or in the
getaway vehicle used on April 11th. The person the government alleged to be Mr.
Feliciano at the two incidents was hard to identify from bank surveillance of the
robberies, because the robber was wearing a mask, gloves, a hooded sweatshirt,
and long pants. Therefore, Messrs. Trubey and Quinn, who detailed what they
knew about the planning and execution of the April 1st and 11th incidents,
including Mr. Feliciano’s purported central role, were key.
According to Mr. Trubey, he and Mr. Feliciano planned the April 1st
incident in part by going to the target, First Bank, before the intended robbery to
decide how easy it would be to rob and to plan how they would get there and back.
Mr. Trubey told the following account. On April 1st, they came to First Bank
together in the afternoon, and Mr. Trubey went in to ask about opening a checking
account for the purpose of casing the bank. After Mr. Trubey returned to the car,
Mr. Feliciano—wearing his disguise—then entered the bank. Mr. Feliciano
eventually left First Bank without taking any money because the tellers
successfully hid from him. He then jumped in the car with Mr. Trubey. At that
point Mr. Trubey noticed that Mr. Feliciano had a gun, which they sold to a pawn
shop later that day. A few days later, Mr. Feliciano raised the idea with Mr.
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Trubey to try to rob a different bank. Mr. Feliciano suggested adding a third
person, Mr. Quinn.
According to Mr. Quinn’s testimony, Mr. Feliciano first asked him to steal a
car, but did not explain that it would serve as a getaway car for a robbery. Mr.
Quinn gave the following account. It was only later in planning for the April 11th
robbery that Mr. Feliciano asked Mr. Quinn to participate in robbing the second
target, the San Antonio Citizens Federal Credit Union, and Mr. Quinn agreed. On
April 10th Messrs. Feliciano and Trubey met to discuss plans for the Credit Union
robbery, including that Mr. Quinn would carry a fake bomb in an effort to ensure
compliance with their demands. The next morning the three men met at Mr.
Feliciano’s house and made the fake bomb for Mr. Quinn to hold. That afternoon
they went together to the Credit Union, and Messrs. Feliciano and Quinn went in
while Mr. Trubey waited in the car. Inside, Mr. Quinn saw Mr. Feliciano jump
over the counter, get money from the tellers’ cash drawers, and jump back. The
two then left the bank and drove away with Mr. Trubey.
Mr. Feliciano challenges the sufficiency of the evidence, primarily attacking
the credibility of Messrs. Trubey and Quinn. This Court reviews de novo a
challenge to the sufficiency of the evidence. United States v. Brown, 665 F.3d
1239, 1248 (11th Cir. 2011). “We take the evidence in the light most favorable to
the government and draw all reasonable inferences in favor of the jury’s verdict. A
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conviction must be upheld unless a rational fact-finder could not have found the
defendant guilty under any reasonable construction of the evidence.” Id.
(quotation marks and alterations omitted).
The jury has exclusive province over the credibility of witnesses, “and the
court of appeals may not revisit this question” unless it is “incredible as a matter of
law.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). “[F]or the
testimony to be considered incredible, it must be unbelievable on its face, i.e.,
testimony as to facts that the witness physically could not have possibly observed
or events that could not have occurred under the laws of nature.” United States v.
Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (quotation marks and alterations
omitted).
Although Messrs. Trubey and Quinn both admitted on the stand that they
had at times not told the truth, their credibility was for the jury to determine. On
appeal Mr. Feliciano points to several minor issues with their testimony, but those
issues have far too little impact on the broader narrative that both men told: Mr.
Feliciano’s planning, preparation, and participation in both the April 1st and April
11th incidents. For example, Mr. Feliciano refers to an exchange during Mr.
Trubey’s testimony as “bizarre” because Mr. Trubey answered “no” when asked if
he ever had a conversation with Mr. Feliciano about robbing a bank and then later
explained that he had. The jury may have thought Mr. Trubey understood the
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question at first to mean whether they had had such conversations in advance of
those that led to the April 1st incident, or may have thought he was nervous, or
may have thought he was lying. Whatever it thought, the jury heard the testimony
and could make its own determination.
One part of Mr. Trubey’s testimony was obviously wrong and Mr. Feliciano
rightly takes issue with it. Even so, it seems easily explained and in any event was
another issue of credibility for the jury. Mr. Trubey testified that on April 1st,
between casing the bank and Mr. Feliciano’s attempted robbery, the two men
drove to a court hearing and back in 41 minutes—something that would have
necessitated an average speed of approximately 200 miles per hour. One part of
the explanation, of which the jury was aware, was that Mr. Trubey had some
mental difficulties, and often had trouble remembering the order of events. More
fundamentally, Mr. Trubey seems to have simply mixed up the day of when he
took Mr. Feliciano to an appointment related to another of Mr. Feliciano’s cases.
Mr. Trubey testified it was April 1st, but others testified it was April 11th. Later
Mr. Trubey, apparently realizing his mistake, said, “If I got the dates mixed up, I’m
very sorry to the Court that I might have got the dates messed up.” It was for the
jury to determine the significance of this mistake, and it is not the province of this
Court to disturb that decision.
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Mr. Feliciano’s other sufficiency argument is that there was a considerable
discrepancy among eyewitness descriptions of the size of the masked man at the
April 1st and 11th incidents, and a further discrepancy between those descriptions
and Mr. Feliciano’s actual size. It appears Mr. Feliciano was 255 pounds when
arrested on April 21st. 2 Eyewitnesses described the masked man at the April 1st
and 11th incidents variously as “over 200 pounds”; “heavier set”; “[k]ind of
husky”; “a little stockier build, probably 230”; and “large.” One outlier witness
thought the masked man was “[m]aybe 180 pounds, 175 pounds.” But these size
estimates are not so inconsistent with Mr. Feliciano’s build as to upset the jury’s
verdict on a sufficiency challenge. See Brown, 665 F.3d at 1248.
During the trial, counsel for Mr. Feliciano was able to demonstrate that both
Messrs. Trubey and Quinn were not always truthful. Still, the jury chose to credit
their testimony regarding Mr. Feliciano’s role in the April 1st and 11th incidents.
And while there were slight differences in the description of the size of the masked
man at those incidents, they were mostly consistent with Mr. Feliciano’s
appearance. Therefore, Mr. Feliciano’s sufficiency challenge to the jury’s verdict
fails.
II.
2
One page of Defendant’s Exhibit 21C, a record from the Hillsborough County Sheriff’s Office,
stated Mr. Feliciano was 235 pounds. But that is contradicted by another record in 21C that
stated he was 255 pounds. We use 255 because that is the number Mr. Feliciano uses.
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We next address Mr. Feliciano’s argument that he was improperly denied
expert assistance that was crucial to his defense. Central to Mr. Feliciano’s
defense was the argument that he could not have been the masked robber on April
11th because that man vaulted back and forth over a teller counter which Mr.
Feliciano could not have done. He claimed he had a long-term back injury that
prevented him from such activity.
Before trial, counsel for Mr. Feliciano moved ex parte pursuant to 18 U.S.C.
§ 3006A(e)3 for an order authorizing an MRI for his client, along with a physical
examination and expert opinion. The motion stated that counsel had “medical
records . . . showing a history of treatment for significant back problems,”
including records from 2010 and 2011, but efforts to obtain an MRI Mr. Feliciano
had in 2002 “have been unsuccessful.” 4 Counsel requested $1,100 pursuant to the
Criminal Justice Act to pay for the MRI and an expert to read the MRI. The
magistrate judge denied the motion because “[t]here appears to be other less costly
means of establishing medical impairment available to the Defendant.”
3
“Counsel for a person who is financially unable to obtain investigative, expert, or other services
necessary for adequate representation may request them in an ex parte application. Upon
finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and
that the person is financially unable to obtain them, the court, or the United States magistrate
judge if the services are required in connection with a matter over which he has jurisdiction, shall
authorize counsel to obtain the services.” 18 U.S.C. § 3006A(e)(1).
4
It was determined later that Mr. Feliciano misremembered the date and the MRI was taken
around 2000. Counsel eventually located a report about the MRI and some related materials, but
the MRI itself had been destroyed in keeping with the record retention policy of the facility
where it was performed.
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Mr. Feliciano moved for reconsideration of the magistrate judge’s denial.
The District Court found that Mr. Feliciano “has not included any explanation for
the absence of . . . medical records” from 2002 to 2011, 5 and also that “an MRI
taken in 2012 is not necessarily probative of the Defendant’s physical impairment
from herniated discs in 2011.” The District Court concluded that Mr. Feliciano
“has established that an expert would be of assistance to the defense, but not that
the denial of expert assistance would result in a fundamentally unfair trial,” and
denied the motion without prejudice. Mr. Feliciano moved again for a review of
the magistrate judge’s denial, stating in part that the proposed expert could
“distinguish any recent back injury from any old, chronic injury to discs or other
conditions.” He also offered to cover all the costs. The magistrate judge denied
the motion, stating: “By my consideration, the fact of an old back injury is
unlikely to be relevant to any defense to be asserted in this case. Even assuming
that it is, there are other ways of the Defendant proving this condition as
demonstrated by his motion.” Mr. Feliciano appealed the magistrate judge’s denial
of his request, which the District Court again denied.
We review the denial of a motion for expert services under 18 U.S.C.
§ 3006A(e) for abuse of discretion. United States v. Rinchack, 820 F.2d 1557,
1563 (11th Cir. 1987). Here, Mr. Feliciano asked not only for expert assistance,
5
The District Court statement regarding the absence of medical records for that time period
appears to have been a mistake.
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but also transportation and an escort from prison to a medical facility in order to
receive the MRI. Because we conclude that the District Court did not abuse its
discretion in denying Mr. Feliciano this expert assistance, we need not decide
whether it erred in denying transportation to seek those services.
The standard used to determine whether a District Court should provide an
indigent defendant with help from an expert is set out in Moore v. Kemp, 809 F.2d
702 (11th Cir. 1987) (en banc). Moore noted that an expert can provide “essential”
help through such means as “conduct[ing] tests or examinations.” Id. at 709.
Although a District Court does not need to provide indigent defendants with “all
the assistance their wealthier counterparts might buy,” id., we stated in Moore that
“a defendant must show the trial court that there exists a reasonable probability
both that an expert would be of assistance to the defense and that denial of expert
assistance would result in a fundamentally unfair trial,” id. at 712. To successfully
argue a violation on this ground, a defendant must demonstrate three elements: (1)
he made a timely request for assistance; (2) the request was improperly denied; and
(3) “the denial rendered the defendant’s trial fundamentally unfair.” Id. at 710.
By requesting assistance well in advance of trial Mr. Feliciano easily
demonstrates element number one. Our precedent in Moore and Conklin v.
Schofield, 366 F.3d 1191 (11th Cir. 2004) supports a conclusion that he has
satisfied element number two, as well. In Moore we cautioned that granting all
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requests for expert assistance could be onerous because it would require either
“direct appointment or a grant of funds.” 809 F.2d at 712 n.8. But neither of those
concerns is present here. Mr. Feliciano was prepared to pay for the expert he
wanted. And in Conklin this Court held that when a District Court is aware that an
expert is essential to a defendant’s sole defense, that court acts unreasonably in
denying the defendant the necessary funds. 366 F.3d at 1208. Here Mr.
Feliciano’s physical condition was his sole defense to the April 11th robbery. Mr.
Feliciano’s argument is stronger than the one we accepted in Conklin, insofar as he
offered to pay the cost of his request. We conclude that the District Court
improperly denied Mr. Feliciano’s request for expert assistance.
We must next determine, then, whether the District Court’s denial of
assistance resulted in a fundamentally unfair trial. The facts of this case present a
closer question than we have seen in our precedent, so it is hard to fathom why the
District Court denied Mr. Feliciano’s request to get an MRI he was willing to pay
for. Still, we cannot say that the denial rendered Mr. Feliciano’s trial
fundamentally unfair.
Although Mr. Feliciano makes a compelling case that the District Court
needlessly stood in the way of his obtaining evidence for his expert, he does not
carry his burden of demonstrating fundamental unfairness. Mr. Feliciano told the
District Court in his requests for expert assistance that he did have some medical
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records covering a wide period of time. And ultimately Mr. Feliciano did get what
he wanted, albeit not in the exact form he wanted: he was examined and tested by
a doctor who then testified at trial that it was his opinion that Mr. Feliciano was not
physically capable of jumping over the teller window. In Rinchack, we found no
error when the District Court determined that additional psychiatric services were
not necessary, and stated that a defendant is entitled “to a certain level of expert
assistance where appropriate.” 820 F.2d at 1565. Mr. Feliciano had expert
assistance. That it was not in the most persuasive form does not render the trial
fundamentally unfair. The result here is similar to Conklin, where elements one
and two were met but we found that the denial of expert assistance did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
366 F.3d at 1209 (quotation marks omitted).
III.
Mr. Feliciano next claims the District Court erred by allowing a portion of a
phone call between him and his brother Elias Feliciano (Elias) to be played in the
government’s rebuttal case to impeach Elias. Mr. Feliciano argues that the call
was improper impeachment and that it was improperly used as substantive
evidence, both in violation of Federal Rule of Evidence 613(b). We generally
review evidentiary rulings for abuse of discretion. United States v. Utter, 97 F.3d
509, 513 (11th Cir. 1996).
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Elias was called to testify during both the government’s case in chief and the
defense’s case. He testified that he had not spoken to his brother on the phone
while Mr. Feliciano was in jail. He also said Mr. Feliciano came over to his
house—at the time he lived across the street—for a birthday party for their father
on April 1st around 2:30 or 3:00 p.m. But in the April 21, 2011 recording played
for the jury, Elias told his brother, then in jail, about a conversation he had with a
detective. Elias said to Mr. Feliciano:
And he asked me on April 1 where was your brother, and I said
that was the day of the birthday party and you was at the birthday
party. He said what time was that? We started about 6 o’clock in
the evening. He was like, where was he before that? You know,
like you always do; you were sleeping. I said my brother’s up all
night, and he—I normally see him coming home when I’m sending
my son to the bus.
At trial, the District Court allowed the recording of Elias to be played during
the government’s rebuttal case without Elias being recalled to the stand. Mr.
Feliciano unsuccessfully objected “to the entire process because Elias was on the
stand. And if this is a prior inconsistent statement, he should have had his attention
drawn to that statement.” The District Court told Mr. Feliciano he could put on
“an unusual defendant’s surrebuttal,” but that the surrebuttal could include “[n]o
other witnesses, no other comments.” Mr. Feliciano did not object to that ruling,
or specifically ask for Elias to be recalled to the stand. Therefore any argument of
error in Elias not being allowed to be recalled to the stand is waived. See
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Wilmington Trust Co. v. Mfrs. Life Ins. Co., 749 F.2d 694, 699 (11th Cir. 1985)
(finding the failure to request the impeached witness to testify in surrebuttal a
waiver of the issue).
The District Court committed no error in allowing the recording to be played
after Elias was on the stand. Rule 613(b) states: “Extrinsic evidence of a witness’s
prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it, or if justice so requires.” Although
Mr. Feliciano objected to the timing of the introduction of the call, our precedent
allows Elias’s recorded statement to be introduced after he testified. Wilmington
Trust Co. clarifies that Rule 613(b) provides “no specification of any particular
time or sequence for this foundation requirement.” 749 F.2d at 699. Elias was
asked about whether he ever spoke on the phone with his brother—not just about
the April 1st party but on any topic—and he denied it. The government therefore
could use the phone call to impeach him with respect to that issue.
Mr. Feliciano also argues that the District Court erred in allowing the phone
call to be used as substantive evidence, suggesting there should have been a
limiting instruction given to the jury. Ordinarily a prior inconsistent statement is
admissible only for the purpose of impeachment and not as substantive evidence.
See, e.g., United States v. Livingston, 816 F.2d 184, 191–92 (5th Cir. 1987)
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(instructing jury was proper at close of evidence to consider prior inconsistent
statement only for impeachment). Mr. Feliciano did not request a limiting
instruction at trial or object to any purported uses of the call as substantive
evidence. He raises the issue for the first time on appeal, so we review it for plain
error. United States v. Knowles, 66 F.3d 1146, 1157 (11th Cir. 1995). “Plain error
appears only when the impeaching testimony is extremely damaging, the need for
the instruction is obvious, and the failure to give it is so prejudicial as to affect the
substantial rights of the accused.” United States v. Billue, 994 F.2d 1562, 1567
(11th Cir. 1993) (quotation marks omitted).
We conclude that Mr. Feliciano failed to meet his burden in demonstrating
that the District Court committed plain error when it allowed introduction of the
phone call as substantive evidence. Mr. Feliciano argues that the call “was used to
prove the factual assertions that the father’s April 1st birthday party started at 6:00
[p.m.] and that Francisco Feliciano did not arrive until that time.” But Elias said
that Mr. Feliciano was at his home asleep, which is actually exculpatory. It is
therefore difficult to credit this as substantive evidence against Mr. Feliciano. In
addition, Elias was not the only one to testify that the party started at 6:00 p.m. but
that certain guests came over earlier to help set up. Although it may be best for
District Courts to routinely issue an instruction limiting the use of a prior
inconsistent statement admitted under Rule 613(b) to impeachment, the District
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Court’s failure to do so here did not constitute plain error that affected Mr.
Feliciano’s substantial rights. See Billue, 994 F.2d at 1567.
IV.
We now examine Mr. Feliciano’s argument that the errors he alleges, when
viewed together, resulted in an unfair trail. “We must consider the cumulative
effect of these incidents and determine whether, viewing the trial as a whole,
appellant[] received a fair trial as is [his] due under our Constitution.” United
States v. Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983). In addition to the issues
discussed above, Mr. Feliciano argues two additional problems plagued his trial.
Mr. Feliciano’s first additional issue for his cumulative error claim is
misstatements by the government in closing arguments. Prosecutorial misconduct
during closing arguments is established when improper remarks “prejudicially
affect the substantial rights of the defendant.” United States v. Lopez, 590 F.3d
1238, 1256 (11th Cir. 2009). This Court looks to four factors in deciding whether
prosecutorial misconduct has occurred: “(1) the degree to which the challenged
remarks have a tendency to mislead the jury and to prejudice the accused; (2)
whether they are isolated or extensive; (3) whether they were deliberately or
accidentally placed before the jury; and (4) the strength of the competent proof to
establish the guilt of the accused.” Id.
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Mr. Feliciano’s arguments about “significant misstatements of evidence”
during closing arguments fail to persuade. He argues that the government’s claim
that eyewitnesses generally agreed and provided descriptions of the masked man
consistent with that of Mr. Feliciano “is not supported by the eyewitness
testimony.” We have already considered this argument and rejected it above in
section I.
Mr. Feliciano also criticizes the closing arguments because of the
government’s references to the testimony given about his medical condition. For
example, the government dismissed the testimony because there was no recent
MRI, which is exactly what Mr. Feliciano had asked the District Court to permit
him to have. The government argued that the doctor who testified for Mr.
Feliciano “saw no MRIs more current than 11 years ago, 2000. He saw no x-rays
whatsoever, no films of recent vintage. . . . If the opinion or information is old or
incomplete, the opinion is going to be unreliable.” During oral argument before
this Court counsel for Mr. Feliciano acknowledged that he did not think it was
unfair for the government to make that comment because the “die had been cast”
already by the judge’s decision to allow counsel to attack on these points during
cross-examination. We have already concluded that the denial of expert services
did not result in a fundamentally unfair trial. Consistent with that conclusion, we
cannot say that this statement during closing prejudiced Mr. Feliciano’s substantial
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rights. At the same time we are troubled by what the government did here. The
government knew before it made its closing argument that Mr. Feliciano had
requested expert assistance in receiving a recent MRI. The government was also
aware that the court had denied Mr. Feliciano’s private request for a new MRI, but
still attacked him before the jury for not having one. This conduct does not meet
the standard we expect of United States prosecutors. Cf. Berger v. United States,
295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935) (“The United States Attorney is the
representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done.”).
Finally, Mr. Feliciano argues cumulative error due to the purported
withholding of exculpatory material in violation of Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963). A new trial is warranted for a Brady violation when the
government suppresses otherwise unavailable evidence favorable to the defendant
and “had the evidence been revealed to the defense, there is a reasonable
probability that the outcome of the proceedings would have been different.”
United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). Mr. Feliciano cannot
make the required showing here. For example, he argues that he learned at trial for
the first time that Mr. Trubey claimed he went to a court hearing with him between
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casing First Bank on April 1st and the attempted robbery. But the record indicates
that the government did disclose that information previously. For example,
counsel for Mr. Feliciano asked Mr. Trubey at trial: “I don’t know if you testified
about this, but isn’t it a fact that you told Special Agent Manning that on the day of
the attempted bank robbery that Mr. Feliciano had a court appearance [on April
1st]?” None of Mr. Feliciano’s other allegations of Brady violations have merit
either. Messrs. Trubey and Quinn did not give “starkly contradictory” statements
on what happened to the fake bomb, and Special Agent Manning’s investigation of
whether Mr. Feliciano had a probation meeting on April 11th could have easily
been duplicated by the defense.
Although we take exception to the District Court’s handling of the expert
assistance request, the alleged errors in the trial, when viewed individually and
cumulatively, did not result in a trial that “was fundamentally unfair and outside
the bounds of the Constitution.” See Conklin, 366 F.3d at 1210. Mr. Feliciano’s
cumulative error argument fails.
V.
Mr. Feliciano’s conviction of Count Four, the 18 U.S.C. § 924(c) charge for
using and brandishing a gun in the commission of the April 11th robbery, is
vacated. Mr. Quinn testified he never saw Mr. Feliciano with a gun on April 11th,
and Mr. Trubey testified he knew “for a fact” that Mr. Feliciano did not have one
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that day. None of the eyewitnesses on April 11th saw a gun. The government’s
evidence is plainly insufficient. See United States v. Powell, 469 U.S. 57, 67, 105
S. Ct. 471, 478 (1984); see also Rosemond v. United States, ___ U.S. ___, ___
S. Ct. ___, 2014 WL 839184 (Mar. 5, 2014).
The government’s decision to charge Count Four in this case raises concerns
beyond those we have expressed. The government clearly knew there were
problems with this charge before trial. At a hearing in the District Court on
January 30, 2012, the government told the court it would not be going forward
with its prosecution of Count Four. Contrary to that representation to the District
Court, it proceeded with the prosecution of Count Four anyway. When the
government filed its initial brief in this appeal, it argued that Mr. Quinn’s scant
testimony at trial was sufficient to support Count Four. But then the government
filed an amended brief, admitting that Mr. Quinn’s testimony was a far too
“slender reed” to support the Count Four conviction, and admitted the evidence
was insufficient. While it is good that the government eventually reached an
understanding of the inherent weakness in Count Four, they knew from interviews
with Messrs. Trubey and Quinn long before trial that no one saw a gun, and that
Mr. Trubey in particular said there definitely was no gun because Mr. Feliciano’s
one and only gun had been pawned on April 1st. Again in this regard, we expect
more from United States prosecutors.
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VI.
Mr. Feliciano concedes there was sufficient evidence on Count Five, the 18
U.S.C. § 922(g) felon-in-possession charge, but nonetheless asks for a new trial
because “it is difficult or impossible to retrospectively ascertain the impact of the
above-described cumulative errors on the fairness of that verdict.” We have
already rejected the cumulative error claim. Because the evidence for Count Five
is uncontroverted, this claim fails.
VII.
We REVERSE Count Four and AFFIRM Mr. Feliciano’s remaining
convictions.
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PRYOR, Circuit Judge, specially concurring:
I concur in the majority opinion in all respects except for the reprimand of
the prosecutor based on his comments in closing arguments about the reliability of
Feliciano’s expert witness. The majority faults the United States for discrediting
the expert’s opinion as based on the magnetic resonance imaging of Feliciano’s
back from 11 years earlier. Although the majority declares that “[t]his conduct
does not meet the standard we expect of United States prosecutors,” any
disadvantage suffered by Feliciano based on the prosecutor’s closing arguments
was not caused by the United States, but by the denial by the district court of
Feliciano’s ex parte request for expert assistance.
Like the majority, I do not understand why the district court denied
Feliciano’s request for a magnetic resonance imaging at his expense, but I would
not rebuke the United States for challenging the opinion of Feliciano’s expert as
based on stale information. The United States made the very argument that it
would have made had the district court granted Feliciano’s request for a new
magnetic resonance imaging and had Feliciano’s expert then relied only on older
medical information in testifying about his opinion. The majority assumes that a
more recent magnetic resonance imaging would support Feliciano’s theory that he
could not have leapt over the teller counter, but that assumption is unwarranted.
After all, Feliciano’s cohort, Christopher Quinn, testified that Feliciano leapt over
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the teller counter, as corroborated by surveillance images and the testimony of
credit union witnesses. And an updated magnetic resonance imaging might have
undermined the opinion of Feliciano’s expert, in which case the expert would not
have relied upon it and the United States could have discredited his opinion on
cross examination by asking the expert why he failed to account for it. The
prosecutor would have been entitled to highlight in his closing arguments the
deficiencies of the expert’s opinion, and the majority could not fault him for doing
so.
Worst of all, the majority creates this argument about improper prosecutorial
conduct out of thin air. Feliciano conceded at oral argument that it was not “unfair”
for the prosecutor to argue that the defense expert relied on stale medical reports
because “the die had been cast” when the district court allowed cross examination
of Feliciano’s expert about those reports. Feliciano did not even object to these
comments during closing arguments. And, on appeal, Feliciano complained instead
that, in closing, the prosecutor misstated the evidence about eyewitness
identifications and his physical appearance.
The majority also fails to explain why this conduct falls short of what we
expect of federal prosecutors. It is easy to nitpick a prosecutor’s closing arguments.
But, if we do so, we owe an explanation of why the comments were troubling and
a legal citation to support that explanation. The majority neglects to do both and, as
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a result, fails to provide an articulable standard for prosecutorial conduct going
forward. I reject the notion that, to undo any harm the district court caused by its
own error, prosecutors must refrain from making proper arguments. Unlike the
majority, I am not “troubled by what the government did here,” and I am baffled
by what the majority hopes to proscribe in the future.
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