United States v. Jacobo Feliciano-Francisco , 701 F. App'x 808 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15038
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cr-00032-RS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JACOBO FELICIANO-FRANCISCO,
a.k.a. Uriel Castillo-Ochoa,
a.k.a. KiKo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 10, 2017)
Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Defendant Jacobo Feliciano-Francisco appeals his convictions and sentences
for (1) conspiring to kidnap and transport an individual to engage in prostitution,
(2) kidnapping, (3) retaliating against a witness, (4) transporting an individual in
interstate commerce for prostitution, and (5) coercing or enticing an individual to
engage in prostitution. After review of the record and the parties’ briefs, we
affirm.
Defendant Feliciano-Francisco’s convictions arose from his kidnapping of a
woman who had escaped from, and testified against, members of a sex-trafficking
ring that smuggled women from other countries into the United States and then
forced them into prostitution to pay off their smuggling debt. As the parties are
fully familiar with the factual background of this case, much of which is under seal
in order to protect the victim, we need not recount it. Instead, we proceed directly
to the issues raised by the defendant on appeal.
I. TRIAL EVIDENCE
A. The Photographs
During trial, the government sought to admit certain photographs that it had
recently discovered. The relevant photographs came from a rape kit examination
performed on the victim the day after defendant Feliciano-Francisco kidnapped
her. The photographs depict only scrapes and bruises the victim suffered while
climbing out a bathroom window to escape Feliciano-Francisco.
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Defendant Feliciano-Francisco argues (1) that the government violated the
Federal Rules of Criminal Procedure by not disclosing the photographs until during
the trial and (2) that the district court erred by admitting the photographs.
Because the defendant had admitted to the sexual activity with the victim,
the rape kit was never processed and remained in the possession of the Hattiesburg,
Mississippi Police Department. On the Saturday before trial, the prosecutors first
learned of the existence of the rape kit photographs from the victim. The FBI
subsequently obtained the rape kit, including the photographs, and the defendant
received copies of the photographs on Tuesday—the second day of trial.
At that time, defendant Feliciano-Francisco’s counsel objected to the
admission of the photographs, but, after a recess and opportunity to review the case
law, his counsel conceded (1) that the government complied with its discovery
obligations and (2) that the photographs constituted cumulative proof and thus
were not prejudicial. Feliciano-Francisco’s counsel stated that he “still object[ed]”
to the photographs but offered no other basis for excluding them. The district court
overruled the objection, and the photographs were admitted into evidence during
the victim’s testimony.
Federal Rule of Criminal Procedure 16(a)(1)(F) requires the government to
permit inspection of photographs of any physical examination if (1) the
government has possession of the photographs, (2) the government’s attorney
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knows, or through due diligence should know, that the photographs exist, and
(3) the government intends to use the photographs at trial or the photographs are
material to preparing the defense. Fed. R. Crim. P. 16(a)(1)(F). This Court will
only reverse a conviction because of a Rule 16 violation if the violation prejudices
the defendant’s substantial rights. United States v. Chastain, 198 F.3d 1338, 1348
(11th Cir. 1999). Additionally, we review a district court’s evidentiary rulings for
abuse of discretion. United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir.
1992).
Because defendant Feliciano-Francisco’s counsel conceded the bases for his
objection, the admission of the photographs appears to be reviewable for plain
error, if not as invited error. In any event, even under de novo review, we find no
Rule 16 violation because the photographs were not in the government’s
possession but in the possession of local law enforcement. See United States v.
Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997) (noting that possession of the
“government” does not normally extend to local law enforcement offices). When
the government learned that the photographs existed and that it did not have them,
the government obtained the photographs and soon thereafter gave them to defense
counsel, thereby complying with the obligations of Rule 16. See id.
Even if a discovery violation occurred, defendant Feliciano-Francisco has
not shown prejudice. As the district court noted and the record demonstrates, the
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photographs are “not particularly graphic.” Several witnesses, including the victim
herself, testified about the injuries she suffered, which the photographs depicted.
Two of those witnesses testified before the photographs even became an issue.
The photographs were thus cumulative of other evidence presented at trial. See
United States v. Quinn, 123 F.3d 1415, 1423 (11th Cir. 1997) (finding that
admission of cumulative testimony did not prejudice substantial rights even if there
was a discovery violation).
Defendant Feliciano-Francisco also has not shown that the photographs had
any effect on his trial strategy. Feliciano-Francisco has not so much as suggested
any way in which he would, or even could, have changed his trial strategy if he had
received the photographs earlier. See United States v. Noe, 821 F.2d 604, 607
(11th Cir. 1987) (explaining that this Court determines the prejudice resulting from
a discovery violation “by considering how the violation affected the defendant’s
ability to present a defense”). Feliciano-Francisco failed to demonstrate that he
suffered prejudice from either the government’s late-hour discovery of the
photographs or the district court’s decision to admit them. We thus find no Rule
16 violation and affirm the district court’s decision to admit the photographs.
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B. The Defense Witness
At trial, defendant Feliciano-Francisco sought to present a defense witness
whom he believed would provide exculpatory testimony. This eyewitness was
present at the house from which the victim escaped.
Defendant Feliciano-Francisco’s counsel believed this witness’s testimony
would provide exculpatory evidence demonstrating that Feliciano-Francisco did
not kidnap the victim. This defense witness, however, intended (on the advice of
her counsel) to invoke the Fifth Amendment privilege against self-incrimination in
response to any questions by the government on cross-examination about her
immigration status and about a previous inconsistent statement she gave to law
enforcement. The government objected because the witness’s plan to invoke the
Fifth Amendment prevented effective cross-examination. The district court
initially indicated that it was inclined to exclude the witness’s testimony.
After a proffer of the witness’s direct examination and cross-examination
testimony, defendant Feliciano-Francisco asked the government to grant the
witness use immunity for her testimony, so that she could testify and be cross-
examined without invoking the Fifth Amendment privilege. The government
declined that request.
Thereafter, defendant Feliciano-Francisco agreed to a compromise offered
by the government, whereby Feliciano-Francisco would call the witness to testify
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on direct but the witness would still be subject to a full cross-examination by the
government, at which time she could invoke the Fifth Amendment in front of the
jury. Feliciano-Francisco made this agreement despite the district court’s warnings
about the witness’s potential vulnerabilities on cross-examination and with the
knowledge that the witness would be subject to full cross-examination by the
government about her immigration status and prior inconsistent statement.
With this compromise agreement in place, the witness testified that the
victim came to the house with defendant Feliciano-Francisco and, soon after
arriving, used Feliciano-Francisco’s telephone to make a call. The witness also
testified that Feliciano-Francisco then went into his room, leaving the victim
behind and unrestrained and did nothing to prevent her from leaving the house.
According to the defense witness, the victim then began acting nervous and
desperate and then went outside and came back inside three times before locking
herself in the bathroom. The witness testified that she did not see the victim again,
but the police soon arrived, and during this whole time Feliciano-Francisco
remained in his room. On cross-examination, the defense eyewitness answered
numerous questions about the facts of the case but invoked her Fifth Amendment
right in response to eight questions.
On appeal, defendant Feliciano-Francisco argues that the district court erred
by allowing the government to ask “potentially incriminating questions solely for
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the purpose of allowing the jury to hear [the defense witness] invoke the Fifth
Amendment.” Feliciano-Francisco contends that if the government wanted to ask
these questions, the government should have offered the witness use immunity.
Generally, it is improper to put a witness on the stand for the purpose of
having the witness invoke her Fifth Amendment privilege against self-
incrimination before the jury because doing so would invite the jury to draw an
improper inference. See United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.
1974)1; Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970).
Defendant Feliciano-Francisco, however, agreed to allow the defense
witness to testify, knowing the witness would invoke the Fifth Amendment
privilege and allowing the jury potentially to draw an unfavorable inference against
him. The district court otherwise likely would have excluded the witness from
testifying at all. Feliciano-Francisco chose to accept those risks in order to have
the jury hear the witness’s more favorable testimony about how the victim was
unrestricted in the house and able to leave.
The district court asked defense counsel if allowing the defense witness to
testify, and be subject to full cross-examination, was acceptable. Defense counsel
consulted with defendant Feliciano-Francisco and then approved that plan. The
1
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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defense thus invited any error and review is precluded. See United States v.
Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000).
More specifically, the invited error doctrine precludes a criminal defendant
from making “an affirmative, apparently strategic decision at trial and then
complain[ing] on appeal that the result of that decision constitutes reversible
error.” United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003).
Defendant Feliciano-Francisco agreed to the government’s proposal, accepted that
the witness would be allowed to invoke the Fifth Amendment, and called the
witness to testify. Feliciano-Francisco, knowing the risks, made the strategic
decision to do so because of the value he placed on the witness’s exculpatory
testimony about the victim being unrestrained and free to come and go. The
invited error doctrine thus precludes us from reviewing the district court’s decision
to allow the witness to testify and to invoke her Fifth Amendment privilege in
response to portions of the government’s cross-examination.
We do not have to rely solely on invited error, however, to affirm defendant
Feliciano-Francisco’s conviction. Feliciano-Francisco also still has not shown that
the district court committed any reversible error by allowing this defense witness
to invoke the Fifth Amendment privilege against self-incrimination in front of the
jury.
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Generally, it is improper for either the government or the defense to call a
witness for the purpose of having the witness invoke the Fifth Amendment
privilege. See Lacouture, 495 F.2d at 1240. Such testimony has “dubious
probative value and high potential for prejudice,” and the district court has
discretion to exclude it. Id. Indeed, “once the trial court has satisfied itself as to
the validity of the witness’s Fifth Amendment claim, it may, in its discretion,
decline to place the witness on the stand for the purpose of eliciting a claim of
privilege.” United States v. Bowman, 636 F.2d 1003, 1013 (5th Cir. Unit A Feb.
1981).
Here, neither the government nor the defense called the witness with the
purpose of eliciting a claim of privilege. The defense called the witness, and the
witness did not invoke the Fifth Amendment during her direct testimony. Instead,
during the government’s cross-examination, this defense witness invoked the Fifth
Amendment in response to questions about her immigration status and prior
statements to law enforcement. The government did not call the witness to the
stand in order to have her invoke the Fifth Amendment.
Furthermore, the district court did not have to allow this defense witness to
testify at all. The district court, however, gave defendant Feliciano-Francisco what
he wanted—the opportunity to present the witness’s testimony on direct. This is
not an instance in which the government built its case based on impermissible
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inferences from a witness who invoked the Fifth Amendment, but one where the
government sought only to impeach a defense witness.
Defendant Feliciano- Francisco also has not demonstrated undue prejudice
from the district court’s decision to allow this defense witness to testify on direct
and to allow the government to cross-examine this witness on matters that caused
her to invoke the Fifth Amendment. Feliciano-Francisco was allowed a full direct
examination, while the government had the opportunity to try to undermine the
witness’s credibility on subject matters related to her direct testimony. The
government asked about matters relevant to the testimony on direct and the
witness’s credibility about those subjects. The government’s questions were
proper impeachment questions. See United States v. Pilcher, 672 F.2d 875, 877
(11th Cir. 1982); Fed. R. Evid. 611(b).
Additionally, “defendants have no general constitutional right to demand
immunity for their witnesses.” United States v. Barham, 625 F.2d 1221, 1226 (5th
Cir. 1980). The government was not required to request use immunity for this
witness’s testimony on cross-examination, and the district court could have
declined to allow the witness to testify at all.
In a case “when, as here, defense counsel not only failed to object on behalf
of the defendant, but in many instances actually acquiesced in the procedure” we
are reluctant to find the government acted improperly. Namet v. United States,
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373 U.S. 179, 189, 83 S. Ct. 1151, 1156 (1963). Moreover, defendant Feliciano-
Francisco suffered no undue prejudice because the jury heard the exculpatory
evidence that he wanted to present to the jury and because there was overwhelming
evidence to allow the jury to disbelieve the defense witness, even without the
defense witness invoking the Fifth Amendment. Feliciano-Francisco has thus
failed to demonstrate any reversible error in the district court’s decision to allow
this defense witness to testify and invoke the Fifth Amendment in front of the jury,
and any error would be invited error anyways.
II. SENTENCING
On October 15, 2014, the district court sentenced defendant Feliciano-
Francisco to a total sentence of life in prison. 2 Feliciano-Francisco had a base
offense level of 32 (for Counts 1, 2, and 3 grouped together). He also received
(1) a two-level increase under U.S.S.G. § 2A4.1(b)(3) for use of a dangerous
weapon and (2) a six-level increase under U.S.S.G. § 2A4.1(b)(5) for sexual
exploitation of the victim. This resulted in a total offense level of 40. Feliciano-
Francisco’s total offense level of 40 and criminal history category of I yielded a
guidelines imprisonment range of 292 to 365 months.
2
The district court imposed life sentences for Counts 1 and 2, a 240-month sentence for
Counts 3 and 5, the statutory maximum, and a 120-month sentence for Count 4, also the statutory
maximum, with all terms of imprisonment running concurrently.
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A. The Offense Level Calculation
Defendant Feliciano-Francisco argues that the district court erred in its
offense level calculations by applying the dangerous weapon and the sexual
exploitation increases. 3
When defendant Feliciano-Francisco and another, unknown man kidnapped
the victim, the unidentified accomplice held his hands under his shirt and gestured
as if he had a pistol. This second man also threatened to harm the victim’s family
if she did not obey his commands.
Section 2A4.1(b)(3) of the Sentencing Guidelines provides for a two-level
increase to the offense level “[i]f a dangerous weapon was used” during a
kidnapping. U.S.S.G. § 2A4.1(b)(3) (2014). To be “used,” a firearm must be
either “discharged” or “otherwise used,” which means that the conduct “was more
than brandishing, displaying, or possessing a firearm.” U.S.S.G. §§ 2A4.1(b)(3),
cmt. 2; 1B1.1, cmt. 1(I) (2014). A “dangerous weapon” includes an object used in
a manner to create the impression the object was a dangerous weapon, such as
“wrapp[ing] a hand in a towel during a bank robbery to create the appearance of a
gun.” U.S.S.G. § 1B1.1, cmt. 1(D) (2014) (emphasis added).
3
We review the district court’s legal interpretation of the Sentencing Guidelines de novo
and the district court’s factual findings for clear error. United States v. Cubero, 754 F.3d 888,
892 (11th Cir. 2014). We also review de novo the district court’s application of the Sentencing
Guidelines to the facts. Id.
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Defendant Feliciano-Francisco argues that no witness ever saw a gun and
thus no conduct constituted more than brandishing or displaying a gun. This
Court, however, has “recognized that objects which appear to be dangerous
weapons should be treated for sentencing purposes as if they actually were
dangerous weapons.” United States v. Miller, 206 F.3d 1051, 1052 (11th Cir.
2000). In addition, pointing or waving a weapon becomes more than brandishing
or displaying the weapon when combined with an explicit threat. Id. at 1054; see
also United States v. Gordon, 19 F.3d 1387, 1388 (11th Cir. 1994) (“When a
dangerous weapon is pointed at specific persons in order to intimidate those
persons into following specific orders, such activity is more than mere
‘brandishing’ and constitutes use of the weapon for purposes of U.S.S.G.
§ 2A4.1(b)(3).”).
Here, defendant Feliciano-Francisco’s unidentified partner-in-crime used his
hand and shirt to create the impression that he had a pistol pointed at the victim.
Feliciano-Francisco’s partner-in-crime also threatened to harm the victim’s family
if she did not comply with his instructions. Under our clear precedent, this action
constitutes using a dangerous weapon during a kidnapping under § 2A4.1(b)(3).
The actions of this unidentified co-criminal are attributable to Feliciano-
Francisco for sentencing purposes. See United States v. Maddox, 803 F.3d 1215,
1220-22 (11th Cir. 2015) (per curiam) (concluding that a defendant could receive a
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five-level increase for brandishing a weapon during a robbery when a co-defendant
did the brandishing), cert. denied, 136 S. Ct. 852 (2016). The district court thus
correctly applied § 2A4.1(b)(3) to increase Feliciano-Francisco’s offense level.
Defendant Feliciano-Francisco also challenges the application of
§ 2A4.1(b)(5) of the Sentencing Guidelines to him. Section 2A4.1(b)(5) provides
for a six-level increase to the offense level if the victim was sexually exploited
during a kidnapping. U.S.S.G. § 2A4.1(b)(5) (2014). At the sentencing hearing,
Feliciano-Francisco objected to the application of this guideline without providing
any basis for doing so. He now argues that his sentence should be vacated because
the district court did not set out findings supporting the application of the sexual
exploitation increase. This argument is without merit.
The district court overruled the objection stating, about the sexual
exploitation, that “there was evidence about that very terrifying aspect of this
whole thing, so I think that’s properly included.” The district court also
determined that the presentence report was accurate and incorporated its findings
of fact, which included the finding that defendant Feliciano-Francisco forced the
victim to perform oral sex on him. The district court set forth all of the necessary
findings, and the trial evidence unquestionably demonstrated that Feliciano-
Francisco sexually exploited the victim. Application of this six-level increase was
thus proper.
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B. The Substantive Reasonableness of the Sentence
Defendant Feliciano-Francisco contends that the district court’s above-
guidelines total sentence of life in prison is substantively unreasonable. We
determine whether the imposed sentence was substantively unreasonable in light of
the totality of the circumstances. United States v. Croteau, 819 F.3d 1293, 1309
(11th Cir. 2016), cert. denied, 137 S. Ct. 254 (2016). Feliciano-Francisco bears the
burden of showing that the district court imposed an unreasonable sentence in light
of the record and the factors set forth in 18 U.S.C. § 3553(a). Id. “[T]he district
court must impose a sentence sufficient, but not greater than necessary, to comply
with the purposes” of § 3553(a).4 Id. The district court has discretion to weigh the
various factors and to apply a variance, and we must give “due deference” to the
district court’s decision that the § 3553(a) factors justify the variance. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Defendant Feliciano-Francisco argues that his advisory guidelines range
already took into account all of the relevant factors. In support of his position, he
points to the long length of his guidelines range, his age, and the fact that he would
be subject to deportation or supervised release upon the end of his prison term.
4
The relevant factors for sentencing include “the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public.” Croteau, 819 F.3d at 1309. “The district court must also
consider the nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities,
and the need to provide restitution to victims.” Id.
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At the sentencing hearing, the district court explained the reasoning for its
above-guidelines sentence, as follows: (1) it “considers the cruelty, the seriousness,
[and] the abject ill will toward another human” by defendant Feliciano-Francisco;
(2) the guidelines range does not account for the “abject cruelty” with which the
defendant acted in “his standard operating mode”; (3) a guidelines sentence would
send the wrong message to others; (4) even a maximum guidelines sentence would
release the defendant at a young enough age for him to repeat his crime; and
(5) the guidelines do not address how the defendant “terrorize[d]” the victim over
an extended period of time. The district court also noted that the facts of this case
were “as terrifying as anything I have seen in terms of what humans are capable of
doing to their fellow humans.”
The government on appeal also points out a number of aggravating factors in
this case for which the Sentencing Guidelines do not fully account: (1) defendant
Feliciano-Francisco’s crimes were in retaliation for the victim serving as a federal
witness, who aided in obtaining the convictions of other members of Feliciano-
Francisco’s prostitution-ring; (2) the threats against the victim in the two weeks
preceding her kidnapping; (3) although he had a criminal history category of I,
Feliciano-Francisco was part of a larger organization that forced vulnerable women
into prostitution; (4) Feliciano-Francisco presented no mitigation except for his
low criminal history category; and (5) deterrence was especially important because
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at least two other people involved in kidnapping the victim remained at large, and
Feliciano-Francisco’s organization, of which there were likely other members,
could again attempt to retaliate against this victim or other potential witnesses.
Based on the reasons set forth by the district court and the government, we
cannot say that the district court’s sentence was substantively unreasonable. The
imposed life sentence properly took into account the § 3553(a) factors, including
the need for deterrence, the desire to protect federal witnesses, and the severe
cruelty of the offenses.
III. CONCLUSION
Based on the foregoing reasons, we affirm defendant Feliciano-Francisco’s
convictions and sentences.
AFFIRMED.
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