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

Background

Feliciano-Francisco was convicted of conspiracy to kidnap for prostitution, kidnapping, witness retaliation, interstate transportation for prostitution, and coercion/enticing for prostitution arising from kidnapping a witness who had testified against a trafficking ring.
A rape-kit produced photographs of the victim’s scrapes/bruises; the government learned of them shortly before trial and provided copies to defense on the second day of trial.
The defense called an eyewitness who testified favorably on direct but—on government cross—invoked the Fifth Amendment on questions about immigration status and prior inconsistent statements; defense had requested, and was denied, use immunity for that witness.
At sentencing the court applied two guideline increases: +2 for use of a dangerous weapon (co-defendant gestured as if he had a pistol and threatened the victim’s family) and +6 for sexual exploitation (victim forced to perform oral sex), producing total offense level 40 and an advisory range of 292–365 months; the court imposed concurrent life sentences.
On appeal Feliciano-Francisco challenged (1) late disclosure and admission of the rape-kit photographs, (2) allowing the defense witness to testify while invoking the Fifth on cross, (3) the two guideline enhancements, and (4) the substantive reasonableness of the life sentence.

Issues

Issue	Government's Argument	Feliciano- Francisco's Argument	Held
Admission of rape-kit photographs / Rule 16 disclosure	Photographs were not in federal possession; once learned, government promptly obtained and produced them; photos were cumulative and nonprejudicial	Late disclosure violated Rule 16 and admission was prejudicial	Affirmed: no Rule 16 violation; photos cumulative and no prejudice shown
Defense witness invoking Fifth before jury	Witness was called by defense, government cross was proper impeachment; no obligation to grant use immunity; defendant accepted risk	Government elicited questions to prompt Fifth-invocation and should have granted use immunity; prejudicial to defendant	Affirmed: defendant invited any error by agreeing to call witness; government questions were proper impeachment
Sentencing enhancement: dangerous weapon under U.S.S.G. §2A4.1(b)(3)	Co-defendant’s gesture/shirt created appearance of pistol plus explicit threats = use of a dangerous weapon; co‑defendant’s conduct attributable to defendant	No one saw a gun; conduct was mere brandishing, not ‘‘use’’	Affirmed: objects appearing to be weapons treated as weapons; threats made it more than mere brandishing; enhancement proper
Sentencing enhancement: sexual exploitation under U.S.S.G. §2A4.1(b)(5) and substantive reasonableness of life term	Trial record and PSR show defendant forced oral sex; district court explained reasons for upward variance (cruelty, retaliation against witness, deterrence)	Guidelines already severe; age and deportation exposure weigh against life; court failed to make findings for sexual-exploitation increase	Affirmed: district court made necessary findings and life sentence was not substantively unreasonable under §3553(a)

Key Cases Cited

United States v. Chastain, 198 F.3d 1338 (11th Cir.) (Rule 16 reversal requires prejudice)
United States v. Brazel, 102 F.3d 1120 (11th Cir. 1997) (possession by local law enforcement normally not imputed to government for Rule 16)
United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997) (admission of cumulative evidence not prejudicial under Rule 16)
United States v. Lacouture, 495 F.2d 1237 (5th Cir. 1974) (improper to call a witness to elicit Fifth Amendment invocation for jury)
United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015) (co‑defendant’s conduct attributable to defendant for sentencing)
United States v. Miller, 206 F.3d 1051 (11th Cir. 2000) (objects that appear to be weapons treated as weapons for sentencing)
United States v. Croteau, 819 F.3d 1293 (11th Cir. 2016) (standard for substantive reasonableness review of sentence)