Feliciano: Credibility is for the jury to decide

In U.S. v. Feliciano, No. 12-15341 (April 3, 2014), the Court agreed with the government’s concession that the evidence was insufficient to support a conviction for using a firearm during a bank robbery, in view of the lack of evidence that Feliciano possessed a firearm during the robbery – but affirmed convictions on all other counts. The Court rejected Feliciano’s challenge to the credibility of the cooperating witnesses who testified against him. Though noting that there was a valid basis for these credibility challenges, the Court concluded that the issue of credibility was ultimately for the jury to decide. The Court agreed with Feliciano that the district court improperly denied him his request for expert assistance in interpreting an MRI and establishing that his back injury made it impossible for him to have been the bank robber who jumped over a teller window. But the Court found that the denial of this assistance did not have a substantial and injurious effect on the jury’s verdict, pointing out that a doctor testified at trial that Feliciano was not physically capable of jumping over the teller window. The Court rejected Feliciano’s claim that the district court erred in allowing a portion of a phone call between him and his brother to be played during the government’s rebuttal case, without the brother being on the stand, after the brother had testified at trial. Feliciano argued that the call should not have been admitted as substantive evidence, and without the brother being present. The Court noted that Rule 613(b) does not specify a particular sequence for the admission of a prior inconsistent statement. Further, the statement was actually exculpatory, so was not substantive evidence against Feliciano. The Court found no reversible error in the prosecutor’s statement in closing argument that the jury had not seen recent MRIs – knowing that the district court had denied Feliciano’s request for expert assistance in receiving a recent MRI. The Court noted, however, that “[t]his conduct does not meet the standard we expect of United States prosecutors.” [Dissenting from this portion of the decision, Judge Pryor faulted the majority for “nitpick[ing]” the prosecutor’s closing argument.