United States v. Feliciano-Francisco, 5:13cr32/RH/EMT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Docket Number5:18cv143/RH/EMT,5:13cr32/RH/EMT
Decision Date01 June 2021



Nos. 5:13cr32/RH/EMT, 5:18cv143/RH/EMT

United States District Court, N.D. Florida, Panama City Division

June 1, 2021



This matter is before the court on Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and memorandum of law in support (ECF Nos. 183, 190).[1] The Government responded in opposition to the motion, and Defendant filed a reply (ECF Nos. 199, 200).[2] The case was referred to the undersigned magistrate judge for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue requiring an evidentiary hearing and that the § 2255 motion, as supplemented, should be denied. See Rules 8(a) and (b), Rules Governing Section 2255 Proceedings.


Defendant Jacobo Feliciano-Francisco was charged in a five-count indictment with conspiracy to transport an individual in interstate commerce for the purpose of prostitution and four substantive offenses related to the conspiracy (ECF No. 18). Defendant was the lone defendant charged in the case. According to the indictment, a network of brothels and prostitution delivery services comprised of undocumented individuals from Spanish-speaking countries operated between 2006 and 2011 in Tennessee and Kentucky. Between 2009 and 2011, F.T., [3] an undocumented woman, was forced and coerced to work as a prostitute in an organization referred to as the Larusa Organization (Larusa). At some point, F.T. contacted law enforcement and cooperated with and assisted in the investigation and prosecution of individuals involved the Larusa sex trafficking network, resulting in thirteen convictions. In 2012, due to safety concerns, the Federal Bureau of Investigation (FBI) assisted F.T. and her family in relocating to Panama City Beach, Florida. The indictment stems from F.T.'s kidnapping from her home in Panama City Beach.

Count One charged a conspiracy to kidnap F.T. and transport her in interstate commerce with the intent that F.T. engage in prostitution, in retaliation for F.T. cooperating with law enforcement, in violation of 18 U.S.C. §§ 371 and 1201(c). In furtherance of the conspiracy, the conspirators agreed to force F.T. to work as a prostitute in Louisiana. The conspirators further agreed to transport F.T. from Florida to Mississippi, where another conspirator would pick F.T. up and transport her to Louisiana. To that end, Defendant and another conspirator kidnapped F.T. from her home by threatening her physical safety, as well as that of her family. Defendant sexually assaulted F.T. while transporting her from Florida to Mississippi and then held F.T. at a residence in Mississippi, where she was to remain until she was transported to Louisiana. Count Two charged Defendant with kidnapping F.T. and transporting her in interstate commerce in violation of 18 U.S.C. §§ 1201(a) and 2. Count Three charged Defendant with causing bodily injury to F.T. by sexual assault, in retaliation for F.T. having cooperated with law enforcement in violation of 18 U.S.C. §§ 1513(b)(2), 1515 and 2. Count Four charged Defendant with knowingly transporting F.T. in interstate commerce with the intent that F.T. engage in prostitution in violation of 18 U.S.C. §§ 2421 and 2. And Count Five charged Defendant with knowingly persuading, inducing, enticing, or coercing an individual to travel in interstate commerce to engage in prostitution in violation of 18 U.S.C. §§ 2422(a) and 2.

After a four-day trial at which Defendant was represented by court-appointed counsel, Maria Dykes, the jury returned a verdict of guilty on all counts (ECF No. 100). F.T. testified at trial; Defendant elected not testify.

The Presentence Investigation Report (PSR) includes additional details regarding the crimes. The PSR indicates that in June 2013, members of Larusa familiar with F.T.'s cooperation with law enforcement formed a plan to kidnap F.T. and force her back into prostitution in retaliation for F.T. cooperating with law enforcement (ECF No. 125, PSR ¶ 18). On June 27, 2013, Defendant and an unindicted and unidentified co-conspirator, referred to at trial as the “Bald Man, ” kidnapped F.T. from her home. Defendant drove the vehicle used in the kidnapping, and the “Bald Man” rode as a passenger. F.T. got into the car after the “Bald Man” placed his hands underneath his shirt as if he had a weapon and verbally threatened F.T.'s uncle, who was present, and other members of F.T.'s family. After the kidnapping, the “Bald Man” exited the vehicle not far from F.T.'s home. After the “Bald Man” departed, Defendant sexually assaulted F.T. by forcing her to perform oral sex on him and threatening to harm F.T. and her family if she did not comply. Defendant then drove F.T. from Panama City Beach to a residence in Hattiesburg, Mississippi, that was to be used as a brothel. F.T. escaped the residence through a small window in the bathroom and flagged down a bus driver who took her to a nearby police station where she relayed to officers the events that had transpired. Officers located the residence from which F.T. escaped and arrested Defendant the same day.

The defense argued at trial that Defendant was merely a driver who had been paid to pick F.T. up from Panama City Beach and drive her to Mississippi. Defendant denied kidnapping F.T. and claimed there was no “Bald Man” with him when he picked her up. Defendant also claimed that F.T. and her uncle fabricated the story of the kidnapping to somehow assist F.T.'s uncle with immigration issues.

The PSR separated the five offenses of conviction into two groups for guidelines calculation purposes. Group 1 (Counts 1, 2, and 3) had a base offense level of 32 (PSR ¶¶ 27-29). Defendant received a two-level upward adjustment for use of a dangerous weapon and a six-level upward adjustment for sexually exploiting the victim, resulting in a total adjusted offense level of 40 (PSR ¶¶ 30- 35). Group 2 (Counts 4 and 5) had a base offense level of 14 and a four-level upward adjustment because the offense involved coercion, resulting in a total adjusted offense level of 18 (PSR ¶¶ 36-41). The multiple count adjustment did not increase Defendant's total adjusted offense level (PSR ¶¶ 42-48). Defendant- an illegal immigrant-had no reported criminal history, so his criminal history category was I (PSR ¶¶ 49-52, 59). The applicable advisory guidelines imprisonment range was 292 to 365 months (PSR ¶ 71). The maximum statutory terms of imprisonment were life as to Counts 1 and 2, twenty years as to Counts 3 and 5, and ten years as to Count 4 (PSR ¶ 70).

At sentencing, Defendant objected to the upward adjustments for use of a dangerous weapon and sexual exploitation, although counsel conceded she had no legal argument in support of the latter objection (ECF No. 149 at 3-6). The court overruled both objections (id. at 16-17). The Government urged the court to impose an above-guidelines sentence because the guidelines did not take into account F.T.'s cooperation with law enforcement (id. at 19-22). The court sentenced Defendant to the statutory maximum terms of imprisonment on each count. Defendant thus was sentenced to life imprisonment on Counts 1 and 2, 240-months' imprisonment on Counts 3 and 5, and 120-months' imprisonment on Count 4, with the sentences on all counts to run concurrently (id. at 32; ECF Nos. 134, 135).

Defendant appealed, represented by Michael Robert Ufferman, and raised a number of alleged errors. First, Defendant argued the Government violated Fed. R. Crim. P. 16(a)(1)(F) in failing to disclose certain photographs prior to trial. Defendant also argued the district court erred by admitting the photographs into evidence (ECF No. 166 at 2-5). The appellate court found no discovery violation and, further, that even if there had been a violation, Defendant failed to show he was prejudiced as a result thereof.

Defendant's second assertion of error pertained to the Government's questioning of a defense witness (id. at 6-12). At trial, Defendant sought to present the testimony of a woman present at the house in Mississippi from which F.T. escaped, believing it would be exculpatory. The defense was aware the witness intended to invoke her Fifth Amendment privilege against self-incrimination in response to cross-examination on two subjects-her immigration status and a prior inconsistent statement provided to law enforcement. The Government objected to the witness's plan to invoke the Fifth Amendment and denied Defendant's request that it grant the witness use immunity. The court asked defense counsel if allowing the witness to testify subject to cross-examination was acceptable. After consulting with Defendant, counsel responded in the affirmative and called the woman as a witness, aware she would be subjected to full cross-examination by the Government.

On cross-examination, the witness invoked the Fifth Amendment in response to eight questions. Defendant argued on appeal that the district court erred by allowing the Government to ask “potentially incriminating questions solely for the purpose of allowing the jury to hear [the defense witness] invoke the Fifth Amendment” (id. at 7-8). Defendant also argued the Government should have offered the witness use immunity. The Eleventh Circuit disagreed and found Defendant “invited” the error in calling the witness to testify without immunity (id. at 8-9). The court also found neither party called the witness for the purpose of having the witness invoke the Fifth Amendment.


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