United States v. Diosme Fernandez Hano, 922 F.3d 1272

Background

In 2009 Hano and Arrastia-Cardoso robbed a Brink’s armored truck; investigators recovered a ski mask and a plastic gun grip that yielded major DNA profiles. Five years later a tipster (Borrego Izquierdo) reported Hano’s confession and details; subsequent DNA testing in 2015 matched Hano to the mask and Arrastia-Cardoso to the gun grip.
The defendants were indicted in March 2016 for Hobbs Act robbery and conspiracy; both were convicted and sentenced (Hano 121 months; Arrastia-Cardoso 120 months).
Pretrial and trial disputes included: timeliness of the indictment under 18 U.S.C. §3297 (DNA-implication extension), admissibility of Borrego’s testimony relaying Hano’s out-of-court confession, admission of travel/immigration evidence showing Hano left for Cuba after the robbery, and DNA disclosure issues (a nonparty database profile and destroyed car evidence).
Hano challenged sufficiency of the evidence and the sentencing enhancement for “otherwise using” a dangerous weapon; Arrastia-Cardoso argued Bruton/Confrontation Clause and prosecutorial comment on his silence.
The district court admitted Borrego’s nontestimonial statements against Hano (and against Arrastia-Cardoso), admitted limited travel/immigration evidence as probative, denied production of a third-party DNA profile, and applied a four-level weapon enhancement; the Eleventh Circuit affirmed on all counts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 18 U.S.C. §3297 allows indictment within five years after DNA implicates a suspect even if original statute of limitations expired	Hano: §3297 applies only if the original limitation period "has not yet expired" at time of DNA implication; thus indictment was time-barred	Government: §3297 creates a fresh period running from DNA implication; application note refers to time of enactment, not time of implication	Court: Affirmed government—§3297 runs a limitation period from DNA implication regardless of prior expiration; application note refers to enactment and avoids ex post facto problems
Admissibility of Hano’s out-of-court confession through Borrego; Bruton/Confrontation Clause challenge by Arrastia-Cardoso	Arrastia-Cardoso: Hano’s confession implicating him should have been barred under Bruton and Confrontation Clause	Government: Statements were nontestimonial, so Crawford/Bruton do not apply; alternatively no due process violation	Court: Statements were nontestimonial (social/friendly context, no primary purpose of creating evidence), Bruton not triggered; due-process extension rejected
Brady/Rule 16 request for nonparty DNA profile of Mariano Duarte-Cardoso	Hano: Duarte’s profile could exculpate Hano and was material; failure to produce violated Brady and Rule 16	Government: Privacy limits and profile would not have created a reasonable probability of a different outcome; Hano’s major DNA profile remained dispositive	Court: No Brady/Rule 16 prejudice shown—Duarte could not have undermined core DNA attribution to Hano
Sentencing: whether pointing a fake gun constitutes "otherwise using" a dangerous weapon under U.S.S.G. §2B3.1(b)(2)(D)	Hano: conduct was at most brandishing; gun was fake and threats were a charade; only a three-level brandishing enhancement applies	Government: Pointing an apparent firearm at Ortiz to coerce compliance amounted to "otherwise using" a weapon (implicit/explicit threat to specific person)	Court: Affirmed four-level enhancement—pointing apparent gun at a specific person to induce compliance qualifies as "otherwise use"

Key Cases Cited

Bruton v. United States, 391 U.S. 123 (1968) (Confrontation Clause prohibits use of a nontestifying defendant’s confession that directly inculpates a codefendant in a joint trial)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial statements by unavailable witnesses absent prior opportunity for cross-examination)
Stogner v. California, 539 U.S. 607 (2003) (retroactive revival of expired limitations period violates the Ex Post Facto Clause)
Williamson v. United States, 512 U.S. 594 (1994) (statement against penal interest rule does not permit admission of non-self-inculpatory statements embedded within a broader narrative)
Trombetta v. California, 467 U.S. 479 (1984) (due process concerns when government destroys evidence with exculpatory value)
United States v. Verbitskaya, 406 F.3d 1324 (11th Cir. 2005) (pointing a firearm at a person to coerce compliance constitutes "otherwise use" of a weapon)
United States v. Miller, 206 F.3d 1051 (11th Cir. 2000) (apparent weapons can trigger the Guidelines enhancement for "otherwise use")