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United States v. Hano

United States Court of Appeals, Eleventh Circuit

April 30, 2019

DIOSME FERNANDEZ HANO, REINALDO ARRASTIA-CARDOSO, a.k.a. Reinaldo Arrastia, Defendants-Appellants.

          Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 2:15-cr-00101-SPC-CM-1

          Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, [*] District Judge.


         This appeal requires us to decide two questions of first impression for our Circuit: (1) whether a five-year statute of limitations for a defendant implicated by DNA testing, 18 U.S.C. § 3297, permits indictment within five years of that testing regardless of whether the limitation period otherwise applicable to the offense has already expired; and (2) whether the Confrontation Clause of the Sixth Amendment, see Bruton v. United States, 391 U.S. 123 (1968), or the Due Process Clause of the Fifth Amendment prohibits use of the nontestimonial statements of a nontestifying criminal defendant against his codefendant in a joint trial. Diosme Fernandez Hano and Reinaldo Arrastia-Cardoso were convicted of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), (b)(1), for the robbery of $1.7 million from an armored truck. Hano argues that his indictment was returned after the applicable limitation period expired and that the later discovery of his DNA could not revive the running of the limitation period. Arrastia-Cardoso contends that the district court should have prohibited Ruben Borrego Izquierdo, to whom Hano admitted his crimes, from testifying. Hano also challenges a few of the evidentiary rulings, argues that insufficient evidence supports his convictions, and challenges the enhancement of his sentence for "otherwise using" a dangerous weapon in the robbery. Arrastia-Cardoso also contends that the government improperly commented on his decision not to testify during closing arguments. All these arguments fail. We affirm.

         I. BACKGROUND

         On November 30, 2009, Hano and Arrastia-Cardoso robbed a Brink's armored truck outside of the Fifth Third Bank in Fort Myers, Florida. The operators of the truck that day were Jimmy Ortiz and Bernard Meaney. Ortiz served as the truck's messenger and Meaney was the driver.

         Both the driver and the messenger on a Brink's armored truck are armed with guns. The messenger's primary role is to get in and out of the truck to collect and deliver currency, but he also is in command of the operation and supervises the driver. The messenger uses a route guide-a confidential list that includes stops, arrival and departure times, and the number of pieces to pick up or deliver-but he has the authority to amend the guide and add stops, including food or restroom breaks.

         An armored wall with a bulletproof window partitions the driver's cabin from the back of the truck. The messenger sits with currency in a cabin in the back of the truck. The partition between the two cabins contains a gun port that allows the driver to shoot into the messenger's cabin in the event of a robbery.

         On the day of the robbery, Ortiz and Meaney picked up currency from several businesses, including a casino where the value of pickups ordinarily ranged between $1 million and $1.5 million. The Fifth Third Bank was the last scheduled stop of the day. Before reaching the bank, Ortiz decided that they should stop at a Burger King. Only Ortiz went inside. In spite of a zero-tolerance policy forbidding carrying cellphones on runs, Ortiz was carrying a cellphone. After spending six or seven minutes at Burger King, they continued to the Fifth Third Bank, which was roughly 30 minutes away.

         Immediately after they arrived at the bank and Ortiz stepped out of the truck, a man wearing a ski mask approached Ortiz from behind, put an arm around his neck, held a gun to his head, and forced him back into the truck. Meaney, who was watching through the window in the partition between the two cabins, reached for his gun, but Ortiz told him not to fire. Meaney was afraid for Ortiz's safety, so he obeyed and put his gun down. A second masked man entered the truck, grabbed bags of money, and exited. The man who had grabbed Ortiz struck his head with the butt of a gun.

         One of the masked men then entered a red Pontiac Grand Prix parked behind the Brink's truck. Another masked man loaded the trunk of the Pontiac with money and began to enter the car. Meaney saw the Pontiac behind him, shifted the truck in reverse, and rammed the car. He then drove the truck forward and rammed the Pontiac again. One of those collisions caused the masked man who had loaded the money into the trunk of the Pontiac to fall down, and his mask came off as he fell. That man rose and entered the car, which then sped away.

         Eyewitness accounts established that either two or three men carried out the robbery. A bank customer who witnessed the robbery said she saw two men of Hispanic or Caucasian appearance. She described the man whose mask came off as appearing to be in his twenties to early thirties, standing around 5 feet 6 inches, with a medium to somewhat heavy-set build, and short brown hair and no facial hair. Meaney said that, in addition to seeing the face of the man whose mask came off, he saw another man without a mask standing 20 to 30 feet from the red car. That man stood near the scene of the robbery waiting to be picked up and then got into the car. Meaney described that man as 5 feet 10 inches, 180 pounds, medium build, dark, and with a full head of hair and a mustache. Meaney said that the man who had held Ortiz at gunpoint appeared to be Hispanic based on his skin tone. Ortiz asserted that he saw only the man who had struck him with the butt of his gun, but that he did not see that man's face.

         Investigators found a ski mask and a plastic gun grip at the crime scene. The gun grip did not have screws used on real firearms and likely came from a fake gun. An analyst tested the ski mask and the gun grip for the presence of DNA. The analyst discovered a major profile on the outside of the mask and on the gun grip. A major profile exists when there is significantly more DNA from one contributor than any other in the mixture of DNA recovered and makes it possible to identify that contributor.

         On the night of the robbery, investigators found the red Pontiac abandoned in a parking lot at a business near the Fifth Third Bank. The vehicle identification number plate had been removed from the car and the vehicle identification number on another part of the car had been scratched out. Investigators later learned that a Tampa mechanic named Camilo Hernandez had sold the vehicle to Arrastia-Cardoso in the month when the robbery took place. Another person had driven Arrastia-Cardoso to buy the car, but Hernandez did not see who the driver was.

         The investigators initially suspected that Ortiz and a man named Mariano Duarte-Cardoso had been involved in the robbery. Duarte-Cardoso, who investigators later learned to be Arrastia-Cardoso's cousin and the spouse of Ortiz's sister, fled the country after a search of his home. At that time, the investigators were not focused on Hano or Arrastia-Cardoso.

         Five years later, in September 2014, Ruben Borrego Izquierdo, who was facing unrelated state charges, came to the Federal Bureau of Investigation with information. Borrego Izquierdo stated that he grew up in the same village in Cuba with Hano and had known him for decades. Hano had recently told Borrego Izquierdo that he had robbed an armored truck with a man named "Reinaldo Arrastia" in 2009. Hano said that the plot to rob the truck included one of the truck's guards, who was part of Arrastia's family, and included a cousin of Arrastia. Hano also described some of the key details of the robbery: that he had left the scene in a car he had purchased from Camilo Hernandez, that he had removed the vehicle identification number from the car, that he had taken the money from the robbery back to Cuba in a speedboat, and that he had spent the money on two houses and a car.

         Borrego Izquierdo's story included details about the crime that had not been made public. No law enforcement agency had made known, for example, that the getaway car had been purchased in Tampa or that the vehicle identification number of the car had been removed. And investigators were able to corroborate Borrego Izquierdo's assertion that Hano traveled to Cuba after the robbery through a sworn statement that Hano provided to a border officer. In the statement, Hano said that he moved to the United States in 2008, but that in January 2010-a little more than a month after the robbery-he traveled to Cuba on a boat that departed from Texas. Hano returned to the United States in 2014.

         After investigators heard Borrego Izquierdo's story, Arrastia-Cardoso and Hano became the primary suspects in the investigation. In 2015, federal investigators obtained DNA samples from them. Hano's DNA matched the major DNA profile from the ski mask. Arrastia-Cardoso's DNA matched the major profile on the gun grip. And the government's analyst determined that, for each major DNA profile, the probability that the profile would match the DNA of a random person (the "random-match probability") was less than one in 700 billion.

         On March 16, 2016, the United States indicted Hano and Arrastia-Cardoso for Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. The jury convicted both men on all charges. Hano's presentence investigation report recommended a five-level enhancement to his offense level because he brandished or otherwise possessed a firearm during the robbery, United States Sentencing Guidelines Manual § 2B3.1(b)(2)(C) (Nov. 2015), when the defendants apparently disarmed Ortiz and stole his gun. Hano objected to this enhancement on the ground that the evidence at trial established only that the defendants used a fake gun to effectuate the robbery. He conceded that the Guidelines treat a fake gun as a "dangerous weapon," but argued that he should instead receive only a three-level enhancement for brandishing a weapon in the course of the offense, id. § 2B3.1(b)(2)(E). The district court applied a four-level enhancement because a dangerous weapon had been "otherwise used" during the robbery, id. § 2B3.1(b)(2)(D). The district court sentenced Hano to serve 121 months of imprisonment and Arrastia-Cardoso to 120 months of imprisonment.


         This appeal is governed by three standards of review. First, we review de novo the interpretation and application of a statute of limitations. United States v. Farias, 836 F.3d 1315, 1323 (11th Cir. 2016). The same standard applies to alleged violations of Brady v. Maryland, 373 U.S. 83 (1963). United States v. Brester, 786 F.3d 1335, 1338 (11th Cir. 2015). We also review the denial of a motion for a judgment of acquittal for insufficiency of the evidence de novo. United States v. Flanders, 752 F.3d 1317, 1329 (11th Cir. 2014). And although we review a district court's factual findings in applying the Sentencing Guidelines for clear error, we review the application of the guidelines to those facts de novo. United States v. Bradley, 644 F.3d 1213, 1283 (11th Cir. 2011). Second, "[w]e review a district court's evidentiary rulings for an abuse of discretion." United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). And we review the denial of a motion for a new trial based on the weight of the evidence for "clear abuse" of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). Third, we review issues not raised in the district court for plain error. United States v. Taohim, 817 F.3d 1215, 1224 (11th Cir. 2013). "For there to be plain error, there must (1) be error, (2) that is plain, and (3) that affects the substantial rights of the party, and (4) that seriously affects the fairness, integrity, or public reputation of a judicial proceeding." Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir. 2002).


         We divide our discussion in six parts. First, we reject Hano's argument that the indictment against him was not returned within the applicable limitation period. Second, we explain that the evidentiary issues raised by Hano and Arrastia-Cardoso do not merit reversal. Third, we explain that Hano has failed to establish that the denial of his motion to obtain the DNA profile of Mariano Duarte-Cardoso resulted in any prejudice. Fourth, we reject Hano's argument that the government failed to produce sufficient evidence to support his convictions. Fifth, we conclude that the government did not improperly comment on Arrastia-Cardoso's decision not to testify. And sixth, we explain that Hano "otherwise used" a dangerous weapon in the commission of the robbery so the district court was warranted in applying the four-level enhancement to his sentence.

         A. The Indictment Was Returned Within the Applicable Limitation Period.

         Before trial, Hano moved to dismiss the indictment on the ground that it was not returned within the five-year limitation period ordinarily applicable to federal noncapital crimes, 18 U.S.C. § 3282(a). The district court denied the motion and ruled that the indictment fell within a statutory exception for cases in which DNA testing implicates a person in a felony, id. § 3297. Section 3297 provides that "[i]n a case in which DNA testing implicates an identified person in the commission of a felony, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period." The district court reasoned that this exception applied to Hano's indictment because DNA testing did not implicate him in the charged crimes until June 26, 2015, which left the government with five years to indict Hano after that date. Because the indictment was returned in March 2016, the district court concluded that the indictment was returned well within the limitations period of section 3297.

         Hano argues that this ruling was in error based on the following application note to section 3297: "The amendments made by this section shall apply to the prosecution of any offense committed before, on, or after the date of the enactment of this section if the applicable limitation period has not yet expired." Justice for All Act, Pub. L. No. 108-405, § 204(c), 118 Stat. 2260, 2271 (2004). Although the district court reasoned that section 3297 provided a new five-year limitation period that began when Hano was first implicated by DNA testing, Hano reads the application note-in particular, the conditional phrase "if the applicable limitation period has not yet expired"-to mean that the exception to the ordinary limitation period applies to the prosecution of any offense committed after the date of enactment only if the otherwise applicable limitation period ...

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