                                                                   [DO NOT PUBLISH]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.

                                               2
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

                                           3
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

                                           4
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

                                           5
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


                                           6
      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.


                                           9
      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


                                         10
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


                                          11
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


                                         12
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


                                         13
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).


                                            14
       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
