[Copyrighted Material Omitted]
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:11-cr-00249-EAK-TBM-2.
For United States of America, Plaintiff - Appellee: Karin Bethany Hoppmann, Yvette Rhodes, I. Randall Gold, Jay Lawrence Hoffer, James A. Muench, Colleen D. Murphy-Davis, Robert E. O'Neill, Josephine W. Thomas, U.S. Attorney's Office, Tampa, FL.
For Francisco Feliciano, Defendant - Appellant: Christophir A. Kerr, Christopher A. Kerr, Esq., Seminole, FL.
Before PRYOR and MARTIN, Circuit Judges, and GOLD,[*] District Judge.
ON PETITION FOR REHEARING
MARTIN, Circuit Judge.
The Petition for Rehearing filed by Francisco Feliciano is granted. We have modified certain language from our previous opinion in this case, United States v Feliciano, 747 F.3d 1284 (11th Cir. 2014). Our earlier opinion is vacated and withdrawn, and the revised opinion we issue here is substituted in its stead.
Francisco Feliciano was indicted in federal court for both an attempted bank robbery on April 1, 2011 as well as a more successful bank robbery ten days later in which over $10,000 was taken from the bank. Mr. Feliciano was also charged with using a firearm during each of those robberies and for being a felon in possession of a firearm. The jury convicted Mr. Feliciano on all five Counts. The District Court sentenced him to 110 months for both bank robberies and for being a felon in possession; a consecutive term of 84 months on the gun charge associated with the attempted bank robbery; and another consecutive term of 300 months for the gun charge associated with the successful bank robbery. Mr. Feliciano asks this Court to vacate all of his convictions associated with the bank robberies, but concedes there was sufficient evidence to sustain his conviction for being a felon in possession. We agree with Mr. Feliciano that the jury's verdict on the gun charge associated with the second bank robbery cannot stand and vacate that conviction. We affirm his convictions on the remaining Counts.
We first address Mr. Feliciano's challenge to the sufficiency of the evidence supporting his convictions. Central to the government's case was the testimony of the two people who were alleged to have participated in the April 1st and/or 11th incidents with Feliciano: Steven Trubey and Christopher Quinn. Investigators recovered no fingerprints, DNA, or other physical evidence at the banks or in the getaway vehicle used on April 11th. The person the government alleged to be Mr. Feliciano at the two incidents was hard to identify from bank surveillance of the robberies, because the robber was wearing a mask, gloves, a hooded sweatshirt, and long pants. Therefore, Messrs. Trubey and Quinn, who detailed what they knew about the planning and execution of the April 1st and 11th incidents, including Mr. Feliciano's purported central role, were key.
According to Mr. Trubey, he and Mr. Feliciano planned the April 1st incident in part
by going to the target, First Bank, before the intended robbery to decide how easy it would be to rob and to plan how they would get there and back. Mr. Trubey told the following account. On April 1st, they came to First Bank together in the afternoon, and Mr. Trubey went in to ask about opening a checking account for the purpose of casing the bank. After Mr. Trubey returned to the car, Mr. Feliciano--wearing his disguise--then entered the bank. Mr. Feliciano eventually left First Bank without taking any money because the tellers successfully hid from him. He then jumped in the car with Mr. Trubey. At that point Mr. Trubey noticed that Mr. Feliciano had a gun, which they sold to a pawn shop later that day. A few days later, Mr. Feliciano raised the idea with Mr. Trubey to try to rob a different bank. Mr. Feliciano suggested adding a third person, Mr. Quinn.
According to Mr. Quinn's testimony, Mr. Feliciano first asked him to steal a car, but did not explain that it would serve as a getaway car for a robbery. Mr. Quinn gave the following account. It was only later in planning for the April 11th robbery that Mr. Feliciano asked Mr. Quinn to participate in robbing the second target, the San Antonio Citizens Federal Credit Union, and Mr. Quinn agreed. On April 10th Messrs. Feliciano and Trubey met to discuss plans for the Credit Union robbery, including that Mr. Quinn would carry a fake bomb in an effort to ensure compliance with their demands. The next morning the three men met at Mr. Feliciano's house and made the fake bomb for Mr. Quinn to hold. That afternoon they went together to the Credit Union, and Messrs. Feliciano and Quinn went in while Mr. Trubey waited in the car. Inside, Mr. Quinn saw Mr. Feliciano jump over the counter, get money from the tellers' cash drawers, and jump back. The two then left the bank and drove away with Mr. Trubey.
Mr. Feliciano challenges the sufficiency of the evidence, primarily attacking the credibility of Messrs. Trubey and Quinn. This Court reviews de novo a challenge to the sufficiency of the evidence. United States v. Brown, 665 F.3d 1239, 1248 (11th Cir. 2011). " We take the evidence in the light most favorable to the government and draw all reasonable inferences in favor of the jury's verdict. A conviction must be upheld unless a rational fact-finder could not have found the defendant guilty under any reasonable construction of the evidence." Id. (quotation marks and alterations omitted).
The jury has exclusive province over the credibility of witnesses, " and the court of appeals may not revisit this question" unless it is " incredible as a matter of law." United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). " [F]or the testimony to be considered incredible, it must be unbelievable on its face, i.e., testimony as to facts that the witness physically could not have possibly observed or events that could not have occurred under the laws of nature." United ...