United States v. Feliciano: In Revised Opinion, Judge Martin is Forced to Remove Negative Comments About U.S. Attorney

United States v. Feliciano, No. 12-15341, from MDFla

Circuit Judge Martin, joined by Circuit Judge Pryor, and Senior District Judge Gold (SDFla)

Summary: This opinion is very interesting because it sheds a small crack of light on some of the inner workings of the Eleventh Circuit, and especially on the personalities of some of its judges.

 

This panel opinion grants a petition for rehearing and vacates a prior panel opinion.  The result does not change, but, as the panel itself notes, “[w]e have modified certain language from our previous opinion in this case,” specifically related to comments about prosecutorial misconduct.

To briefly summarize the revised opinion, the defendant was convicted of attempted bank robbery, using a firearm during those robberies, and being a felon in possession of a firearm.  The panel rejected a challenge to the sufficiency of the evidence.  It then held that the district court did not abuse its discretion in denying the defendant’s request for an expert examination and MRI (even though it was hard to fathom) because the defendant sought not only the costs for a medical expert, but also transportation and escort from prison to the expert’s facility.

Next, it rejected the defendant’s evidentiary challenge to a phone call between the defendant and his brother that the government played to impeach the brother. The defendant argued that the recording should have been addressed when the brother was on the stand, but the panel concluded he had waived any error.  Furthermore, Eleventh Circuit precedent allows a recorded impeaching statement to be introduced after a witness testifies—there is no particular time or sequence required for Rule 613(b)’s foundation requirement.

The panel also rejected any cumulative error claims premised on prosecutorial misconduct.  The defendant specifically complained about the government’s references to testimony given about his medical condition and the fact that the government dismissed the testimony because there was no recent MRI—which is exactly what the defendant had asked the district court to permit him to have.

The panel did credit and accept the defendant’s argument that the evidence was insufficient to support a conviction for using and brandishing a firearm in the commission of a robbery, and that conviction was vacated. The panel noted that it was concerned about the government’s decision to prosecute this charge because the evidence showed that the only gun the defendant owned was sold prior to the robbery, stating that “[w]e expect more from United States prosecutors.”

Accordingly, the panel affirmed all of the defendant’s convictions other than his conviction for using and brandishing a firearm in the commission of a robbery which was reversed.

The interesting stuff: The original panel opinion was different in one very important respect and in one minor respect.  With respect to the prosecutorial misconduct charge based on statements about the lack of a recent MRI, the panel stated only that the defendant conceded at oral argument that this was not unfair since the district court did not abuse its discretion in denying expert services, and that the statement did not prejudice the defendant.

The original panel opinion was far more critical of the prosecution on this point stating that:

[W]e cannot say that this statement during closing prejudiced Mr. Feliciano’s substantial 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 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation is to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).

This paragraph drew a special concurrence by Judge Pryor, stating that the prosecutor should not have been faulted for asking perfectly legitimate questions and asserting that the majority failed to explain why the conduct at issue fell short of what is expected of federal prosecutors.

All of this language, as well as Judge Pryor's concurrence, is gone in the new opinion.  So Judge Pryor's position won the day. Why? Probably because one or more judges (in addition to Judge Pryor) felt that the language in the majority opinion was improper and, when the opinion was circulated prior to the issuance of the mandate, asked that this language be removed.  This is not the first time that Judge Martin has provoked strong negative reactions from her colleagues.  It should also be noted that she is a former federal prosecutor herself.

The other minor change to the opinion was related to a change in the language characterizing the district court’s decision to deny the expert MRI from stating that “the District Court needlessly stood in the way of his obtaining evidence for his expert” to “it is hard to fathom why the District Court denied Mr. Feliciano’s request to get an MRI he was willing to pay for” (it’s unclear to me though that Mr. Feliciano was willing to pay for the MRI, since he was requesting funds to do just that?!). Perhaps this language was removed because other judges felt it to be needlessly insulting to the district court?