United States v. Manuel A. Walcott , 431 F. App'x 860 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14836 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00167-RAL-MAP-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
MANUEL A. WALCOTT,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 22, 2011)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Following a jury trial, Manuel A. Walcott (“Walcott”) appeals his
convictions for enticing, and conspiring to entice, a minor to engage in a
commercial sex act, and enticing a minor to engage in sexually explicit conduct
for the purpose of producing visual depictions of such conduct. On appeal,
Walcott contends that the district court erred when it: (1) refused to give a
“missing witness” jury instruction regarding Walcott’s co-defendant Pasquale Holt
(“Holt”); (2) did not allow Walcott to comment more expansively at closing
argument on the government’s failure to call Holt; and (3) failed to require the
government to grant Holt use immunity or, in the alternative, to dismiss the
indictment. After review of the briefs and record, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
On April 21, 2010, the grand jury issued an indictment against Holt and
Walcott. Count One alleged that, in or about January 2009, Holt and Walcott
conspired to entice a minor (“M.S.”) to engage in a commercial sex act, in
violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c), 1594(c). Count Two alleged that,
in or about January 2009, Holt and Walcott enticed a minor to engage in a
commercial sex act, in violation of 18 U.S.C. §§ 2, 1591(a), (b)(2), (c). Finally,
Count Three alleged that, on or about January 26, 2009, Holt and Walcott enticed
a minor to engage in sexually explicit conduct for the purpose of producing visual
depictions of such conduct, in violation of 18 U.S.C. §§ 2, 2251(a), (e).1 Holt pled
1
There was a fourth count in the indictment charging Holt with possession of child
pornography. That count is not at issue here.
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guilty to Count Two pursuant to a plea agreement, while Walcott proceeded to
trial.
A. Pre-Trial Proceedings and Walcott’s Opening Statement
Before trial began, Walcott discovered that, while in prison, Holt made a
number of telephone calls that purportedly called into question Holt’s
trustworthiness. If the prosecutor called Holt as a witness, Walcott intended to use
these phone calls on cross-examination to impeach Holt’s credibility.
During his opening statement, Walcott’s counsel discussed Holt’s plea
agreement and noted that the government dismissed all but one charge. He told
the jury that “Pasquale Holt was the leader of this prostitution ring” and that Holt
would testify to that effect. Walcott’s counsel also said that “if the Government
chooses not to call Mr. Holt, I promise you I will, and I will ask him and he will
tell you that [he was the leader of the prostitution ring].” After this opening
statement, the government stated that it had not yet decided whether to call Holt as
a witness.
B. Government’s Evidence at Trial
The government’s first witness was M.S., the minor victim of the crimes.
M.S. testified that Holt introduced her to Walcott in a hotel room at the Days Inn
where Walcott’s girlfriend and another woman named Erica Licata (“Licata”) were
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present. The group smoked marijuana together. Then Holt and Walcott took nude
pictures of the women, with Holt using a cell phone and Walcott using a silver
digital camera. M.S. did not know what the pictures would be used for.
The group left the hotel, with M.S. thinking they were going to get food.
Instead, they drove to another hotel, which M.S. testified she thought was the
Marriott. When the group arrived at the new hotel, Holt asked M.S. to be a
prostitute, and Licata further discussed the idea with M.S. Holt and M.S. had not
previously discussed the idea of M.S. becoming a prostitute. M.S. and Licata met
a man who they thought was a client at the Marriott, and M.S. intended to rob him
rather than have sex with him. M.S. and Licata entered the man’s room and he
offered them $300 to perform a sex act. When the two accepted the money, the
man revealed himself as an undercover agent, and he and his colleagues arrested
them.
Licata testified next. Licata testified that she worked as a prostitute and met
Walcott and Holt in January 2009 through Walcott's girlfriend, Shontia Johnson
("Johnson”),who was also a prostitute. Licata testified that, as a prostitute, her
pimps posted pictures of her on the Internet, and that she did not know how to post
those pictures. After Licata met Walcott and Johnson, they agreed to help Licata
make money as a prostitute by putting ads on the Internet and answering the phone
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to take appointments for her. The night Licata met Holt and Walcott, Licata spent
the night with Holt at his apartment. The next day, Holt introduced her to
someone he called “Grumpy,” his nickname for M.S. Licata told Holt that she was
nervous about how young M.S. looked, and Holt told her that M.S. would be
eighteen in three months. Holt told Licata that she “would need to train [M.S.]
since [Licata] ha[d] experience and that, basically, [Licata] would have to teach
[M.S.] the ropes [of being a prostitute].” Licata thus took on the task of managing
M.S. for Holt.
Later that same day, Licata wound up in a hotel room with M.S., Johnson,
Walcott, and Holt. Holt and Walcott took pictures of M.S. and Licata in the hotel
room. A call came in from a client “for 300 [dollars] for two girls.” Walcott
drove M.S. and Licata to the hotel where this client was staying; Holt and
Johnson, among others, were also passengers. When the group arrived at the
hotel, M.S. and Licata went to the client’s room and the client paid them $300 to
perform a sex act. Once the client handed over the money, there was a knock on
the door, and the FBI came into the room.
After M.S. and Licata’s testimony, the government told the district court
that it did not plan to call Holt as a witness. Walcott told the district court that he
planned to call Holt. Walcott asserted that the government did not plan to call
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Holt because Holt’s testimony would present problems for the government’s case
and because the government wanted to prevent Walcott from bringing up
“extrinsic evidence of specific conduct on cross-examination,” namely details of
some of Holt’s prison phone calls.
Holt’s counsel, however, told the district court that Holt intended to invoke
his Fifth Amendment privilege against self-incrimination and that Holt would not
testify if called by Walcott. The district court allowed Walcott to comment on
Holt’s failure to testify during closing argument, but denied Walcott’s request to
force Holt to invoke the privilege in front of the jury.
Holt later took the stand outside the presence of the jury. Walcott indicated
that he wanted to ask Holt about, inter alia, the events on January 26, 2009, when
Holt acted as a pimp for Licata and M.S.; Holt’s calls from jail; Holt’s plea deal
with the government; and why Holt was not prosecuted for having sex with M.S.
Holt indicated that, if called by Walcott to testify, he would invoke his Fifth
Amendment privilege against self-incrimination. The district court declined, “in
[its] discretion,” to have Holt invoke his Fifth Amendment right on the stand in
front of the jury. Holt did state that, if called by the government, he would testify
“[i]n accordance with [his] plea agreement.”
C. Jury Instructions
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After both sides rested, the district court went over the jury instructions.
Walcott told the district court that, during his closing argument, he wanted to
comment to the jury about the government’s failure to call Holt. Walcott
explained that, during his opening statement, he made several “pretty bold”
statements about the evidence in the case, particularly about what Holt would say,
and that Holt would no longer be testifying.
In response, the government stated that it did not mention Holt during its
opening statement, and that it had not mentioned anything Holt said over the
course of the proceedings. The government asserted that any promises Walcott
made about Holt’s testimony were simply mistaken trial strategy. The district
court asked whether the fact that Holt would testify if called by the government,
but not by Walcott, was “a little bit fundamentally unfair?” The district court also
asked whether Holt was “under [the government’s] control,” and rejected the
government’s contention that Holt was not under its control.
Following this discussion, Walcott filed his proposed “missing witness”
jury instruction:
It was particularly within the power of the government to produce Pasquale
Holt as a witness who could have given material testimony on an issue in this
case. The Defendant Manuel Walcott cannot call Pasquale Holt as a witness.
The government’s failure to call Pasquale Holt as a witness may give rise to an
inference that his testimony would be unfavorable to the government.
7
Walcott argued that the instruction was appropriate because Holt was peculiarly
within the control of the government, in that he would testify if called by the
government, but would invoke his Fifth Amendment rights if called by Walcott.
According to Walcott, when a witness is peculiarly within the control of one
party and could give testimony that would elucidate the transaction, the fact that
the witness does not testify gives rise to the presumption that the testimony would
be unfavorable to the party in control of the witness. Walcott buttressed his claim
that Holt’s testimony would be unfavorable to the government by asserting that
Holt’s jail-cell telephone calls would undermine the government’s case and cast
doubt on Holt’s motives for cooperating. While Walcott conceded that he did not
know why the government failed to call Holt, he asserted that “the defense stated
unequivocally that it believed the testimony of Pasquale Holt would in fact be
favorable to its case and went to great measures to elicit this testimony.” Walcott
did not further explain why Holt’s testimony would help him.
In court the following morning, Walcott argued that Holt’s testimony would
add to the government’s case (i.e., that his testimony would not be cumulative)
because Holt was allegedly “present every step of the way and conspired with
[Walcott] to commit [the] crimes [at issue].” Walcott implied that the government
did not call Holt because of “the problems he has in terms of other issues that will
8
cast doubt on his credibility and his truth [sic] worthiness.” If Holt testified,
Walcott’s plan was to ask him about the substantive offenses, then to impeach
him. Walcott also argued again that Holt should be forced to invoke his Fifth
Amendment rights in front of the jury.
After considering these arguments, the district court did not revisit its ruling
that Holt would not have to invoke his Fifth Amendment privilege in front of the
jury. It also declined to give a “missing witness” jury instruction of the type
proposed by Walcott, but did allow Walcott, in closing argument, to ask the jury
why Holt was not called by the government. The district court, however, did not
allow Walcott to say that he was not allowed to call Holt.
The district court called Holt as its own witness to “put before this jury he’s
pled guilty based on a plea agreement with the Government” and thereby allow
Walcott to comment on the guilty plea and plea agreement in closing argument.
During closing arguments, Walcott asked the jury why Holt had not testified, and
called the jury’s attention to Holt’s plea agreement. In rebuttal, the government
addressed the issue of its failure to call Holt, suggesting that it did not need to call
Holt to prove its case. The government further implied that Holt would not
undermine its case because he would not testify that its other witnesses were lying
when they testified.
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Before the jury charge, Walcott requested his “missing witness” instruction
one final time, and the district court again declined to give it. The jury found
Walcott guilty on all charges.
II. DISCUSSION
A. Missing Witness Jury Instruction
We review the district court’s refusal to give the “missing witness” jury
instruction for abuse of discretion. See United States v. Link, 921 F.2d 1523,
1529 (11th Cir. 1991). “For the denial of a requested jury instruction to be
reversible error a defendant must show that the instruction: (1) was a correct
statement of the law; (2) was not adequately covered in the instructions given to
the jury; (3) concerned an issue so substantive that its omission impaired the
accused’s ability to present a defense; and (4) dealt with an issue properly before
the jury.” United States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006)
(quotation marks omitted).
This Court previously has addressed the “missing witness” jury instruction.
In United States v. Nahoom, 791 F.2d 841 (11th Cir. 1986), we stated that “[w]hen
a witness is peculiarly within the control of one party, and the witness’ testimony
would elucidate facts in issue, an instruction is appropriate regarding the
permissible inference which the jury may draw from the party’s failure to call the
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witness.” Id. at 846 Additionally, before the jury instruction can be given, the
party requesting it “must establish the potential witness’ unavailability in a
physical or practical sense” and “the potential testimony must be relevant and
noncumulative.” Jones v. Otis Elevator Co., 861 F.2d 655, 659 (11th Cir. 1988).
In Link, we clarified our “missing witness” instruction jurisprudence by ruling that
“[w]e are aware of no authority requiring the giving of a ‘missing witness’
instruction to the jury if the so-called missing witness would testify against the
interests of the defendant.” Link, 921 F.2d at 1529.
In this case, Walcott has not shown that Holt’s testimony would have been
favorable to him, and thus we conclude the district court did not abuse its
discretion in failing to present the “missing witness” instruction. See id. Walcott
argues that Holt’s testimony was “likely exculpatory” because “Holt, and only
Holt, could have testified as to whether he alone was responsible for posting the
ad on Craigslist, and whether he alone was in control of ‘M.S.’ as she was
indisputabl[y] one of ‘his girls’, and in no way under the control of or operating
under [Walcott].” While Walcott asserts that Holt was likely to testify that he was
in control of M.S. because M.S. testified that she had sex with Holt and worked as
a prostitute for him, these assertions in no way show that Holt would have testified
that Walcott was not involved or that Holt would have testified favorably to
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Walcott. As the government’s brief points out, Walcott at trial expected that Holt
would testify unfavorably, and anticipated using extrinsic evidence for
impeachment purposes. Indeed, most of Walcott’s arguments at trial focused on
Holt’s “credibility and truth [sic] worthiness,” not on any favorable testimony Holt
might provide Walcott. Both parties anticipated that Holt would inculpate
Walcott, and that Walcott wanted Holt to take the stand only so Walcott could
impeach him. Given the record before us, a “missing witness” instruction was not
required.
B. Limitation of Comment on Failure to Call Holt
We review the district court’s “broad discretion in the management of the
trial” for “a clear showing of abuse.” United States v. Hilliard, 752 F.2d 578, 582
(11th Cir. 1985); see also United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir.
1991) (“A trial court has broad discretion in handling a trial and an appellate court
will not intervene absent a clear showing of abuse.”). Thus, “the district court will
not be reversed for limiting summation as long as the defendant ha[d] the
opportunity to make all legally tenable arguments that are supported by the facts of
the case.” United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982).
Walcott argues that, in closing argument, he should have been allowed to
explicitly ask the jury to infer that Holt’s testimony would have been damaging to
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the government and favorable to the defense. What Walcott wanted to argue in
closing is the same as his proposed “missing witness” jury instruction. Because
there is no evidence in this record that Holt’s testimony would have been
damaging to the government or favorable to Walcott, the district court did not
abuse its discretion in limiting Walcott’s closing argument.
Moreover, Walcott was allowed to make the legal arguments supported by
the facts in the case. The district court allowed him to “argue to this jury where is
Mr. Holt, why wasn’t he called by the Government, and [the district court is] not
going to hear from the Government saying, well, why didn’t [Walcott] call [Holt].”
In addition, at numerous points in his closing argument, Walcott took the
opportunity to comment on the government’s failure to call Holt, for instance by
highlighting Holt’s plea agreement and explicitly asking, “So, why didn’t the
Government call Pasquale Holt to testify?” This question, among other arguments
Walcott advanced in his closing argument, allowed the jury to draw its own
negative inference against the government as to what Holt’s testimony might have
been. Thus, the district court’s limitations on closing argument did not prevent
Walcott from making “all legally tenable arguments,” and in fact allowed him to
repeatedly question why the government failed to call Holt to testify. Gaines, 690
F.2d at 858. We find no basis in the record to determine that the district court
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abused its discretion in limiting what Walcott could say in his closing argument
regarding Holt’s failure to testify.
C. Grant of Immunity to Holt
On appeal, Walcott contends that “[t]he district court erred when it failed to
dismiss the Indictment against [Walcott] as the government failed to immunize
Pasquale Holt as a defense witness.” We can find no instance where Walcott
made this argument in the trial record, or moved to dismiss the indictment on this
ground, so our review is for plain error. United States v. Vallejo, 297 F.3d 1154,
1164-65 (11th Cir. 2002) (stating that review is for plain error when a litigant has
failed to raise an issue in the district court).
To establish plain error, the appellant must show: “(1) error, (2) that is plain,
and (3) that affects substantial rights. If the preceding three conditions are met,
we may exercise discretion to correct a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010),
cert. denied, 131 S. Ct. 1600 (2011) (citations and quotation marks omitted).
“Before an error is subject to correction under the plain error rule, it must be plain
under controlling precedent . . . .” United States v. Lett, 483 F.3d 782, 790 (11th
Cir. 2007).
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As the government’s brief points out, the error Walcott necessarily alleges is
“the district court’s failure to sua sponte compel the United States to grant Holt
use immunity or to dismiss the indictment.” (underline added). Walcott cannot
demonstrate that this is error, much less plain error; he has provided no authority
from this Circuit or the Supreme Court showing that the district court must sua
sponte dismiss the indictment under these circumstances. Because Walcott has not
cited any controlling precedent contradicting the district court’s ruling, the error
he assigns to the district court is neither “obvious” nor “clear under current law.”
See United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (quotation
marks omitted).2
III. CONCLUSION
For all of these reasons, we affirm Walcott’s convictions.3
AFFIRMED.
2
Walcott relies primarily on the Second Circuit’s decision in United States v. Ebbers, 458
F.3d 110 (2d Cir. 2006), which addressed the issue of whether defendant-appellant Ebbers “was
deprived of a fair trial when the government refused to immunize certain witnesses.” Id. at 117.
However, Ebbers is distinguishable in one critical aspect and instructive in another. First,
nothing in Ebbers indicates that it was a plain error case. See id. at 118 (adopting an abuse of
discretion standard of review for district court’s refusal to force government to grant immunity to
defense witnesses). Second, the Second Circuit’s ruling in Ebbers went against the defendant-
appellant “because [he] has not shown that the absence of testimony by [the witnesses] affected
the total mix of evidence before the jury.” Id. at 120. Because Walcott has not shown that Holt’s
testimony would have been exculpatory, Holt’s testimony similarly would not have altered the
mix of evidence before the jury. See id. at 119-20.
3
On appeal, Walcott does not raise any sentencing issues.
15