[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-12082 NOV 25, 2008 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 06-20149-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY FELICIANO,
Defendant-Appellant.
________________________
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, 21 U.S.C. §§ 841 and 846;
attempt to possess with intent to distribute cocaine, 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2; and conspiracy to interfere with commerce by robbery, 18 U.S.C.
§ 1951 (the “Hobbs Act”). Feliciano argues on appeal that: (1) there was
insufficient evidence to support his Hobbs Act conspiracy conviction; (2) the
district court abused its discretion in barring the impeachment of a co-conspirator;
(3) the district court abused its discretion in allowing a detective to testify as an
expert; (4) the district court abused its discretion in failing to give a multiple-
conspiracy jury instruction; (5) the prosecutor made improper and prejudicial
comments in closing argument; and finally, (6) the district court erred in applying a
firearm enhancement to his sentence. After oral argument and careful review, we
affirm.
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
2 defendant’s substantive rights. United States v. Garate-Vergara, 942 F.2d 1543,
1551 (11th Cir. 1991). We review a district court’s refusal to give a requested
instruction in its charge to the jury for abuse of discretion. United States v.
Maduno, 40 F.3d 1212, 1215 (11th Cir. 1994). Finally, we review “the district
court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear error, and the
application of the Sentencing Guidelines to those facts de novo.” United States v.
Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (quotations omitted).
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
regarding 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 wanted 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
3 people and equipment, including police uniforms, badges, and a car that looked
like a police car.
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 that
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?”
4 Ortega and the five men he had enlisted arrived at the meeting place in three
cars. After a discussion between Ortega and the CS, the three cars followed the
CS’s car into a predetermined location, at which time all six men were arrested. A
search of one of the cars -- not Feliciano’s -- revealed a loaded Smith & Wesson
Model 66 .357 magnum revolver and a Kel-Tec 9mm semi-automatic pistol.
Feliciano was charged with one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and
846; one count of attempt to possess with intent to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. § 841 and 846, and 18 U.S.C. § 2; one
count of conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. §
1951; one count of attempt to commit a Hobbs Act robbery in violation of 18
U.S.C. §§ 1951 and 2; and one count of conspiracy to carry a firearm during a drug
trafficking crime or crime of violence in violation of 18 U.S.C. § 924. At
Feliciano’s first trial, the jury was hung and the district court granted a judgment of
acquittal as to the firearms count. At his retrial, Feliciano was found guilty by a
jury of all counts except for the attempted robbery count, and the district court
sentenced him to 188 months’ imprisonment, followed by five years’ supervised
release and a $300 assessment. This timely appeal followed.
5 III.
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.
18 U.S.C. § 1951(b)(1). Feliciano contests only whether sufficient evidence of
“actual or threatened force” was offered to prove the robbery element of the crime.
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,
6 Feliciano asked him, “What do you mean, you didn’t bring the gun?” The
testimony establishes that Feliciano expected the use of firearms in the planned
robbery of a drug stash house. See United States v. Tinoco, 304 F.3d 1088, 1122
(11th Cir. 2002) (recognizing that when we are assessing the sufficiency of the
evidence, we accept all reasonable inferences and credibility choices in favor of the
jury’s verdict). Moreover, the fact that Ortega’s plan was to rob the stash house
while impersonating police -- in order to reduce the amount of force necessary -- in
no way vitiates the actual or threatened use of force or violence. As is apparent
from United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001), the impersonation of
police does not eviscerate the threat to use force -- there, the appellants
impersonated police and nonetheless came at the victim with weapons drawn,
threw him to the ground, blindfolded him, handcuffed him, and then threw him
into the back of a car. Id. at 1098. What’s more, the conspirators here did not
actually end up impersonating police because Ortega could not find police t-shirts
for his men to wear to the robbery. Finally, as we have said before in another
Hobbs Act case, “[t]he fact that the intended victims and narcotics were fictional is
irrelevant.” United States v. Taylor, 480 F.3d 1025, 1027 (11th Cir. 2007).
Second, we find no merit to Feliciano’s claim that the district court abused
its discretion in barring Feliciano from impeaching Omar Ortega on one issue -- at
7 what point he informed police that Goenaga sold him a gun -- which Feliciano
hoped to use to show that Ortega had lied under oath in order to protect Goenaga
and others. The Sixth Amendment guarantees a criminal defendant the right “‘to
be confronted with the witnesses against him’” -- a right which includes “the right
to conduct reasonable cross-examination.” Olden v. Kentucky, 488 U.S. 227, 231
(1988) (per curiam) (quoting U.S. Const. amend. VI.). But even if the trial court
violated the defendant’s right to impeach a witness, we nonetheless must determine
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
8 impeachment -- i.e., when Ortega admitted that Goenaga sold him a gun, and
whether he was protecting Goenaga. Moreover, Feliciano was also able to
impeach Ortega’s testimony regarding when he implicated Goenaga by questioning
Detective Rob Christie, who testified that the first time he learned that Ortega had
obtained a firearm from Goenaga was during Ortega’s testimony in the first trial,
even though Ortega testified at the second trial that he had told the authorities
about that during earlier debriefings. Finally, the other evidence against Feliciano -
- including the testimony of Goenaga and the arresting officer, as well as cell
phone records -- was strong. In light of this ample record, the district court’s
refusal to allow Feliciano to impeach Ortega on the Goenaga issue was harmless, if
error at all, and did not amount to an abuse of discretion.
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. Federal Rule of Evidence 701 provides that:
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.
9 Fed. R. Evid. 701. “The line between the expert testimony under Fed. R. Evid. 702
. . . and lay opinion testimony under Fed. R. Evid. 701 . . . is not easy to draw.”
United States v. Colon-Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004). Thus, a law
enforcement officer may be qualified to provide both lay opinion and expert
testimony. Fed. R. Evid. 701 advisory committee’s note (citing United States v.
Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997)). In fact, we have recognized
that police officers can testify as lay witnesses “based upon their particularized
knowledge garnered from years of experience within the field.” Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir.
2003). Similarly, other courts have held that “[e]xperience-derived police
testimony concerning criminals’ typical modi operandi during a drug transaction
does not automatically constitute expert testimony, but . . . lay-witness testimony
admissible under Federal Rule of Evidence 701 . . . .” United States v. Page, 521
F.3d 101, 105 (1st Cir. 2008).
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
expert opinion based on scientific, technical, or other specialized knowledge, as
10 required under Fed. R. Evid. 702. Instead, he simply reviewed the cellular
telephone records and a summary of those calls, which identified cellular towers
for each call, and based on his personal knowledge concerning the locations of
certain cellular towers, testified that, at the time of the call, Manny Ortega’s
cellular telephone was nowhere near the arrest location.1 Thus, because the
testimony was properly admitted under Fed. R. Evid. 602 and Fed. R. Evid. 701,
and did not constitute expert testimony under Fed. R. Evid. 702, the district court
did not abuse its discretion in allowing Detective Christie to testify about the
cellular tower locations.
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
conspiracy 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
1 As a result, the circumstances here are unlike those found in United States v. Sepulveda, 115 F.3d 882, 884-85 (11th Cir. 1997), where the government used experts to explain scientific and technical issues pertaining to the “cloning” of cellular telephones.
11 were only involved in separate conspiracies unrelated to the overall conspiracy
charged in the indictment.” United States v. Calderon, 127 F.3d 1314, 1328 (11th
Cir. 1997) (quotations and emphases omitted). On appeal, we ask whether a
reasonable jury “could . . . have reasonably concluded from the evidence that
multiple conspiracies, rather than the single charged conspiracy, existed.” Id. at
1329. To succeed, the defendant must show that he was substantially prejudiced
by the district court’s refusal to give the instruction. Id. at 1330. To find prejudice,
we “would have to conclude that the evidence of multiple conspiracies was so
strong that the jury would probably have acquitted [the defendant] of the
conspiracy charges had it been given the tendered instruction.” Id.
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 participated 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.”
12 Id. at 1347 (quotations omitted). “A single conspiracy does not become many
simply because of the changing composition of the personnel comprising the
conspiracy or because some members performed only a single function.” United
States v. Meester, 762 F.2d 867, 880 (11th Cir. 1985).
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 cocaine 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 one 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
13 armed security personnel at the stash house; (2) three other co-conspirators,
including Goenaga and the defendant Feliciano, were lookouts who were supposed
to watch out for police and watch for activity at the stash house; and (3) Feliciano
and Gamez were responsible for driving the participants to and from the robbery
scene. In addition, all the participants expected to share in the fruits of the robbery
-- the 35 to 45 kilograms of purported cocaine -- in proportional share to their roles
in the robbery. Moreover, the fact that the robbery planned for December 2005
was aborted because some of the participants had backed out, and that Feliciano
and some of the other participants in the February 2006 planned robbery were not
participants in the earlier plan does not demonstrate that there were two separate
conspiracies. The plan always remained the same -- to rob the cocaine from
Detective Sanchez and the drug organization. As we have held, “[a] conspiracy is
presumed to continue until its objectives have been abandoned or accomplished.”
Id. at 1286. Quite simply, the district court did not abuse its discretion in failing to
give a multiple-conspiracy jury instruction.2
Fifth, we remain unconvinced that the prosecutor’s comments in closing
argument were improper or that they prejudiced Feliciano’s substantial rights. A
2 Moreover, Feliciano has failed to even argue that had the requested multiple conspiracy charge been given, he probably would have been acquitted. There is no doubt that Feliciano was an active participant in the charged February 2006 conspiracy; a multiple-conspiracy instruction would not have altered the jury’s guilty verdict.
14 defendant’s substantial rights are prejudicially affected when a reasonable
probability arises that, but for the prosecutor’s statements, the outcome of the trial
would have been different. See United States v. O’Keefe, 461 F.3d 1338, 1350
(11th Cir. 2006), cert. denied, 127 S. Ct. 1308 (2007).
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
15 for the prosecutor’s statements, the outcome of the trial would have been different.
O’Keefe, 461 F.3d at 1350.
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
U.S.S.G. § 2D1.1(b)(1) to be applied when a firearm is possessed by a
co-conspirator, the government must establish by a preponderance of the evidence
that “(1) the possessor of the firearm was a co-conspirator, (2) the possession was
in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy
at the time of possession, and (4) the co-conspirator possession was reasonably
foreseeable by the defendant.” Pham, 463 F.3d at 1245 (quotations omitted).
Regarding the fourth element -- the only element in dispute here -- we have held
that “protestations that [the defendants] were in fact unaware of the firearm
possession [of a co-conspirator] do[es] not upset the district court’s finding that the
possession of the firearm was reasonably foreseeable.” United States v. Pessefall,
27 F.3d 511, 515 (11th Cir. 1994) (quotations omitted).
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
16 drug stash house robbery involving approximately 45 kilograms of cocaine -- the
involvement of firearms would have been foreseeable. See United States v.
Freyre-Lazaro, 3 F.3d 1496, 1506 (11th Cir. 1993) (finding it foreseeable that co-
conspirator would be armed while transporting 13 kilograms of cocaine). And
finally, Feliciano’s argument that he did not know firearms would be involved, that
there was no evidence showing he used firearms in a previous marijuana grow
house robbery, that Ortega had never seen him with a gun, and that the guns in the
instant offense were not in his car, does not upset the district court’s unambiguous
finding that the possession of firearms by Feliciano’s co-conspirators was
altogether foreseeable to him. See Pessefall, 27 F.3d at 515. Accordingly, the
district court did not err in applying a two-level firearm enhancement to Feliciano’s
sentence.
AFFIRMED.