UNITED STATES OF AMERICA v. JIMMY FELICIANO
No. 07-12082
United States Court of Appeals, Eleventh Circuit
November 25, 2008
D. C. Docket No. 06-20149-CR-JAL
Appeals from the United States District Court for the Southern District of Florida
(November 25, 2008)
Before HULL, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Jimmy Feliciano appeals from his conviction and 188-month sentence for conspiracy to possess with intent to distribute cocaine,
I.
We review the sufficiency of evidence to support a conviction de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury‘s verdict. United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir.), cert. denied, 128 S. Ct. 130 (2007). We review a district court‘s evidentiary rulings for abuse of discretion. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, 127 S. Ct. 2964 (2007). We evaluate a prosecutor‘s comments by asking: (1) whether the comments were improper, and (2) whether they prejudicially affected the
II.
The relevant facts drawn from the defendant‘s trial and the procedural history are as follows. In July 2005, a confidential source (“CS“) provided the Bureau of Alcohol Tobacco Firearms and Explosives (“ATF“) with information regаrding an individual named Omar Ortega, who purportedly was involved in multiple narcotics-related home invasion robberies. At the direction of law enforcement officers, the CS proposed committing an armed robbery to Ortega, and introduced Ortega to an undercover detective, Juan Sanchez, who was posing as a disgruntled drug courier employed by a large-scale narcotics organization. Detective Sanchez told Ortega that he wаnted to steal about 40 kilograms of cocaine that he was going to be delivering to a stash house in Miami for the organization. Ortega said he was willing to do the robbery and had the necessary
Ortega originally asked Joel Goenaga and three others to participate in the robbery -- planned for December 2005 -- but that robbery did not take place because not everyone was available. Ortega and Detective Sanchez rescheduled the robbery for February 2006, and Ortega asked the defendant, Jimmy Feliciano, to be a lookout, telling him that the plan was to steal cocaine and that Feliciano would receive one kilogram of cocaine for his participation. Feliciano, Goenaga, and three others (some of whom were new to the plan) agreed to participate.
On the morning of February 23, 2006, the planned date for the robbery, Ortega picked up his guns, and then attempted to buy police t-shirts for his men to wear, but could not find any. The same morning, seven calls were made between Ortega‘s and Feliciano‘s phones, two were made between Ortega‘s and Goenaga‘s phones, and two were made between Feliciano‘s and Goenaga‘s phones. Later thаt morning, Goenaga and Feliciano rode together to a pre-arranged meeting place. On the way there, Ortega called Goenaga and asked him if he had brought a gun. Goenaga responded, “no,” and “Listen, I didn‘t bring it.” When the phone call ended, Feliciano asked Goenaga, “What do you mean, you didn‘t bring the gun?”
Feliciano was charged with one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of
First, we conclude that the evidence presented at trial was more than sufficient to enable a jury to reasonably find beyond a reasonable doubt that Feliciano participated in a Hobbs Act conspiracy. A Hobbs Act conspiracy conviction requires the government to prove beyond a reasonable doubt that: (1) two or more persons agreed to commit a robbery encompassed within the Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal. United States v. To, 144 F.3d 737, 747-48 (11th Cir. 1998). A “robbery” under the Act is defined as:
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
As the record amply shows, Ortega testified that Feliciano agreed to participate in the armed robbery plan as a lookout while Ortega and others stole the cocaine. In addition, Goenaga testified that when he was in the car with Feliciano on the way to the meeting place, he had a phone conversation with Ortega, and told Ortega that he did not bring a gun. According to Goenaga, after this phone call,
Second, we find no merit tо Feliciano‘s claim that the district court abused its discretion in barring Feliciano from impeaching Omar Ortega on one issue -- at
whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.
Id. at 232-33 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
On this record, we cannot say that the district court‘s error, if indeed there was any, in barring the impeachment of Ortega on this one issue was harmful. On several occasions during a vigorous cross-examination, Ortega was impeached or admitted to lying, generally showing his untrustworthiness. In addition, Ortega was expressly questioned on the points that Feliciano wanted to prove by
Third, we are unpersuaded that the district court abused its discretion in allowing Detective Christie to testify about cell tower sites, which hindered Feliciano‘s argument that Manny Ortega, not Feliciano, was the sixth participant in the robbery.
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Here, the purpose of Detective Christie‘s cross-examination testimony concerning the location of cellular towers simply was to establish that Manny Ortega‘s cellular telephone‘s call to Ortega following Ortega‘s arrest did not originate at a point near the arrest location. Detective Christie did not express an exрert opinion based on scientific, technical, or other specialized knowledge, as
Fourth, we likewise are not convinced that the district court abused its discretion in failing to give to the jury a multiple-conspiracy instruction, which Feliciano requested in the hope that the jury would find that the robbery originally scheduled for December 2005 -- which he was not involved in -- was a separate conspiraсy from the robbery rescheduled for February 2006 -- which he was involved in. “Generally, a multiple conspiracy instruction is required where the indictment charges several defendants with one overall conspiracy, but the proof at trial indicates that a jury could reasonably conclude that some of the defendants
A single conspiracy is shown “[i]f a defendant‘s actions facilitated the endeavors of other co[-]conspirators or facilitated the venture as a whole.” United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007) (quotations omitted). “It is irrelevant that particular conspirators may not have known other conspirators or [may not] have partiсipated in every stage of the conspiracy; all that the government must prove . . . is an agreement or common purpose to violate the law and intentional joining in this goal by co[-]conspirators.” Id. (quotations omitted). “[T]he finding of a single conspiracy is permitted where a ‘key man’ directs and coordinates the activities and individual efforts of various combinations of people.”
Here, we cannot say that the record “sufficiently support[s] appellant‘s theory of multiple conspiracies to warrant the requested instruction.” Calderon, 127 F.3d at 1329. Rather, the evidence overwhelmingly points to a single, overarching conspiracy to rob coсaine from a drug organization through actual or threatened force and to possess the stolen cocaine with intent to distribute it, and in which Feliciano was a participant. See United States v. Richardson, 532 F.3d 1279, 1290 (11th Cir. 2008) (expressing “doubt” that “the requested charge, whose language seems to require an acquittal upon a finding of multiple conspiracies, is ever appropriate where there is sufficient evidence to establish a defendant‘s membership in at least оne conspiracy within the scope of the indictment“).
The trial testimony established that Ortega was the leader in the robbery conspiracy. All of the conspirators shared common goal of stealing the cocaine and each conspirator‘s actions facilitated the achievement of this goal: (1) three of the co-conspirators, including Ortega, were supposed to be the “jumpouts” who would take the cocaine by force from Detective Sanchez, and use the firearms against any
Fifth, we remain unconvinced that the prosecutor‘s comments in closing argument were improper or that they prejudiced Feliciano‘s substantial rights. A
The first comment Feliciano challenges -- that Feliciano was “surprised” that Goenaga did not bring a gun -- was based on Goenaga‘s recollection of Feliciano‘s question, “What do you mean, you didn‘t bring the gun?” Since the prosecutor‘s comment was plainly a “logical inference[] drawn from the evidence,” Parker v. Singletary, 974 F.2d 1562, 1579 (11th Cir. 1992), we cannot conclude that it was improper. The next comment -- that Manny Ortega‘s cell phone was 15 miles away from the scene when the crime was unfolding -- was likewise not improper because, as we have noted already, Detective Christie‘s testimony on this issue was properly admitted. And as for the last comment -- that Ortega and Goenaga were “bad guys” and would not be invited to the prosecutor‘s home, implying Feliciano‘s guilt by association -- we cannot say that this comment, even if improper, prejudicially impacted Feliciano‘s substantial rights. The record establishes that a jury found Feliciano guilty based on the ample evidence of his own involvement in the offenses, and there is no reasonable probability that, but
Finally, we reject Feliciano‘s claim that the district court erred in applying a two-level firearm enhancement to his sentence. For the enhancement found in
The evidence here plainly shows that the possession of firearms by Feliciano‘s co-conspirators was reasonably foreseeable to Feliciano. As discussed above, Goenaga‘s testimony suggested that Feliciano expected the use of firearms in the planned stash house robbery. Moreover, due to the nature of the crime -- a
AFFIRMED.
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