UNITED STATES OF AMERICA v. DIOSME FERNANDEZ HANO, REINALDO ARRASTIA-CARDOSO, a.k.a. Reinaldo Arrastia
No. 18-10510
United States Court of Appeals for the Eleventh Circuit
April 30, 2019
D.C. Docket No. 2:15-cr-00101-SPC-CM-1
[PUBLISH]
Appeals from the United States District Court for the Middle District of Florida
(April 30, 2019)
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,
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
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
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,
II. STANDARD OF REVIEW
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).
III. DISCUSSION
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,
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
The government contends that no error occurred based on the text of section 3297. And it argues that the application note only clarifies that section 3297 applies retroactively to any offense so long as the limitation period applicable to an offense by default had not yet expired at the time of enactment. We agree with the government.
Hano‘s argument would require us to disregard the plain meaning of section 3297, which provides that “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.” This language makes clear that a period of time “equal to the otherwise applicable limitation period” will run from “the implication of the person by DNA testing” regardless of whether the implication occurred within the ordinarily applicable limitation period. If Hano were right about the import of the application note, the codified text of section 3297 would instead say that no statute of limitations will preclude prosecution until a period of time has elapsed that is equal to the otherwise applicable limitation period if the person is implicated by DNA testing while the otherwise applicable limitation period continues to run. But that is not what the statute says, and “our constitutional structure” does not permit us “to ‘rewrite the statute that Congress has enacted.‘” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1949 (2016) (quoting Dodd v. United States, 545 U.S. 353, 359 (2005)).
Hano misreads the application note. The competing interpretations of the application note turn on the implicit temporal reference of the expression “has not yet expired,” a verbal phrase in the present-perfect tense. The present perfect “denotes an act, state, or condition that is now completed or continues up to the present.” Bryan A. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 97 (2016). In the application note, the condition that “continues up to the present” is that the normal limitation period for an offense has not yet expired. And the most natural reading of the note is that the time up to which the limitation period‘s failure to expire continues is the time of enactment. After all, the conditional phrase directly follows a reference to “the date of the enactment of this section.”
Indeed, the text of the application note does not provide any other plausible temporal anchor for the conditional clause. The note refers directly to three events: the “commi[ssion]” of “an[] offense,” “the prosecution of [the] offense,” and “the enactment of this section.” Of the options in the text of the application note, only “the date of the enactment” makes sense as a
Hano does not argue that either the time of the prosecution or the time of the commission of the offense frames the conditional clause, but his preferred candidate—the time the defendant is implicated by DNA testing—is no more attractive. That event is described in section 3297, not the application note, so it would be unusual if it supplied the temporal reference point for the present-perfect verb in the application note. Such a reading might make sense if the application note incorporated section 3297 by reference in a way that also incorporated its temporal framework. But the application note does not do so. To be sure, the application note defines the circumstances in which section 3297 “shall apply.” But the point is that the application note is a distinct sentence and stands on its own temporal ground. Nothing in the text or context of the application note provides any reason to think that the “present” to which the present-perfect phrase “has not yet expired” refers is any time other than that contemporaneous with the enactment of the text by Congress.
Our interpretation of section 3297 and the application note is also supported by persuasive authority. Hano cites no authority in support of his reading, and as the government points out, our sister circuits have consistently applied section 3297 even when the otherwise applicable limitation period has already expired. See United States v. Lopez, 860 F.3d 201, 206–07 (4th Cir. 2017) (applying section 3297 when crime occurred in February 2007 and DNA match occurred over five years later in June 2012); United States v. Sylla, 790 F.3d 772, 772–73 (7th Cir. 2015) (involving 2003 crime and 2010 DNA match); United States v. Hagler, 700 F.3d 1091, 1094 (7th Cir. 2012) (involving 2000 crime and 2008 DNA match).
Hano argues that our interpretation of the note threatens to read the word “after” out of the note in violation of the surplusage canon, which instructs us to give effect to every word in a provision if possible and to refrain from assigning an interpretation to a provision that causes a word “to have no consequence.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at 174 (2012). The note says that section 3297 shall apply to the prosecution of an offense “committed before, on, or after the date of the enactment” of the section “if the applicable limitation period has not yet expired.” And Hano points out that obviously no limitations period for an offense committed after the enactment of the statute could have already expired at the time when the statute was enacted.
Hano‘s argument misses the mark. The word “after” in the application note is not devoid of legal effect. If the application note provided only that section 3297 “shall apply to the prosecution of any offense before or on the date of the enactment of this section if the applicable limitation period has not yet expired,” the note would create the impression that section 3297 does not apply to offenses committed after the date of enactment. The inclusion of the word “after” in the note eliminates this misleading impression. True, the conditional clause of the note, which says that section 3297 applies “if the applicable limitation
Consider too the legal context of the enactment of section 3297 and its application note. Section 3297 was enacted in 2004, only one year after the Supreme Court held in Stogner v. California, 539 U.S. 607 (2003), that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.” Id. at 632–33. Stogner explicitly distinguished a law that revives a prosecution that was previously precluded by the applicable statutory-limitation period from a statute that merely “extend[s] time limits for the prosecution of future offenses, or for prosecutions not yet time barred.” Id. at 632. The language of the application note covers both categories of prosecutions while clarifying that section 3297 does not purport to revive prosecutions for offenses with limitation periods that had already expired when the statute was enacted. Instead of permanently limiting the operation of section 3297 to the extension of limitation periods still running when DNA testing implicates a suspect, the application note appears tailor-made to avoid the constitutional problem that would have resulted under Stogner if Congress had sought to apply section 3297 retroactively to renew limitation periods that had elapsed before the time of enactment. As a result, we conclude that the district court did not err in ruling that the indictment was returned within the limitation period applicable under section 3297.
B. The Evidentiary Issues Raised by Hano and Arrastia-Cardoso Do Not Merit Reversal.
Hano and Arrastia-Cardoso challenge three evidentiary rulings. First, they argue, on different grounds, that the district court erred in permitting Borrego Izquierdo to testify about his conversation with Hano who revealed that he participated in the robbery and that Arrastia-Cardoso was one of his coconspirators. Second, Hano contends that the district court should not have permitted the government to introduce evidence that he traveled to Cuba shortly after the robbery. Third, Hano argues that the district court erred in ruling that the government could introduce DNA evidence obtained from the getaway vehicle even though the government ultimately decided not to introduce that evidence at trial. None of their arguments have merit.
1. The District Court Did Not Err in Permitting Borrego Izquierdo to Testify.
Arrastia-Cardoso contends that the admission of Hano‘s statements to Borrego Izquierdo violated his rights under Bruton, but Hano‘s statements were nontestimonial, which means they are beyond the scope of the Bruton doctrine. Bruton held that the Confrontation Clause prohibits the use of the confession of a nontestifying criminal defendant in a joint trial if the statement directly inculpates a codefendant, although it may be otherwise admissible against the confessing defendant. 391 U.S. at 126. And Crawford v. Washington, 541 U.S. 36 (2004), held that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination.” Id. at 53-54. The Supreme Court has since clarified that the Confrontation Clause prohibits only the introduction of testimonial hearsay statements. See Whorton v. Bockting, 549 U.S. 406, 419–20 (2007) (“Under Crawford, ... the Confrontation Clause has no application to [out-of-court nontestimonial statements] and therefore permits their admission even if they lack indicia of reliability.“); Davis v. Washington, 547 U.S. 813, 823–24 (2006) (same).
We have yet to hold in a published opinion that Bruton applies only to testimonial statements, but every one of our sister circuits to consider the issue has so held, see Lucero v. Holland, 902 F.3d 979, 987–88 (9th Cir. 2018); United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013); United States v. Berrios, 676 F.3d 118, 128-29 (3d Cir. 2012); United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009); United States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009), and for good reason. The Bruton rule “presupposes that the aggrieved co-defendant has a Sixth Amendment right to confront the declarant in the first place.” Figueroa-Cartagena, 612 F.3d at 85. If no co-defendant “has a constitutional right to confront the declarant, none can complain that his right has been denied.” Id. So the same principles that govern whether the admission of testimony violated the Confrontation Clause control whether the admission of the statements of a nontestifying codefendant against a defendant at a joint trial violate Bruton. As a result, “[t]he threshold question in every case” raising a Bruton issue “is whether the challenged statement is testimonial.” Id. If it is not, the Confrontation Clause does not apply. So the admission of Hano‘s statements through Borrego Izquierdo could have violated the rule of Bruton only if those statements were testimonial.
Hano‘s statements as related by Borrego Izquierdo were plainly nontestimonial. Statements made in the course of an out-of-court conversation are “testimonial” if “in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.‘” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). When Hano spoke with Borrego Izquierdo, no future prosecution was on the horizon. Hano was not presently under investigation and had no reason to believe that his statements to Borrego Izquierdo would ever be used in court. Borrego Izquierdo likewise had no ground to suspect that he would ever testify against Hano. What transpired between them was a friendly and informal exchange in which Hano happened to reveal evidence that would ultimately be critical to the government‘s case when Borrego Izquierdo decided to come forward years after the robbery.
In the alternative, Arrastia-Cardoso argues that we should adopt a rule that would extend the rule of Bruton to nontestimonial statements on procedural-due-process grounds. The government responds by arguing that plain-error review applies to Arrastia-Cardoso‘s alternative argument because he objected to Borrego Izquierdo‘s testimony on the basis of the Confrontation Clause, not the Due
Process Clause. And the government argues that Arrastia-Cardoso‘s proposed rule is not
We conclude that there was no due-process error—plain or otherwise—in the admission of Borrego Izquierdo‘s testimony. In the substantive-due-process context, the Supreme Court has explained that where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (alteration adopted) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)); see also Graham v. Connor, 490 U.S. 386, 395 (1989); Echols v. Lawton, 913 F.3d 1313, 1326 (11th Cir. 2019). We see no reason why the same logic would not apply to procedural-due-process claims.
Under Arrastia-Cardoso‘s theory, the Due Process Clause would provide defendants with a right to confront witnesses more expansive than the right secured by the Confrontation Clause itself, reducing the Confrontation Clause to surplusage. In the Bill of Rights, the Framers sought to restrict the exercise of arbitrary authority by the [g]overnment in particular situations. Albright, 510 U.S. at 273 (plurality opinion). If the Due Process Clause contained all the protections of the Confrontation Clause and more, the Framers’ decision to include that Clause in the Sixth Amendment would be mysterious. And needless to say, there is no reason to believe that the drafters of the Sixth Amendment included the Confrontation Clause out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach. Scalia & Garner, supra, at § 26, at 177. As a result, [w]e must analyze the claim under the standard appropriate to that specific provision, not under the rubric of procedural due process. Echols, 913 F.3d at 1326 (alterations adopted) (citation and internal quotation marks omitted). And as we have explained, Arrastia-Cardoso‘s argument under the Confrontation Clause fails.
Arrastia-Cardoso‘s due-process theory would also render meaningless the limitation of Crawford and its progeny of the confrontation right to testimonial statements of a witness who was unavailable to testify where the defendant did not have a prior opportunity for cross-examination. 541 U.S. at 53-54. On Arrastia-Cardoso‘s view, the bare fact that a defendant cannot ordinarily subject his codefendant‘s out-of-court statement to the rigors of cross-examination in a joint trial renders the statement inadmissible at trial, regardless of whether the statement was testimonial. But the apparent rationale for this proposed rule—that the admission of an out-of-court statement inherently deprives a defendant of a fair trial if he had no opportunity to cross-examine the declarant—applies with equal force to statements of unavailable witnesses who are not codefendants at a joint trial. So Arrastia-Cardoso‘s theory—taken to its logical conclusion—would mean that the Due Process Clause prevents the introduction of any and all out-of-court statements at a criminal trial if the defendant did not have a prior opportunity for cross-examination. Id. This theory would allow a defendant to avoid Crawford‘s limitation of the confrontation right to testimonial statements by the simple expedient of labeling their claims under the Confrontation
Arrastia-Cardoso also contends, albeit very briefly, that Hano‘s statement should have been excluded as inadmissible hearsay, but he is mistaken. The district court overruled Arrastia-Cardoso‘s objection to the admission of this statement on hearsay grounds and concluded that Hano‘s statement was admissible as a statement against interest under
For his part, Hano offers a third challenge to Borrego Izquierdo‘s testimony, arguing that it should have been excluded as prejudicial under
Hano also asserts that Borrego Izquierdo‘s testimony that Hano purchased two houses and a car in Cuba after the robbery should have been excluded because it was uncorroborated and appealed to class prejudice, but we disagree.
2. The District Court Did Not Err in Admitting Evidence that Hano Left the United States for Cuba After the Robbery.
Before trial, Hano filed a motion in limine to exclude any evidence of his travel between the United States and Cuba, including his immigration file and the statement he made to a border officer in which he explained that he left for Cuba on a boat that departed from Texas in January 2010. Hano argued that the evidence should be excluded as prejudicial under
Hano‘s only argument for the existence of prejudice relies on a state-court opinion asserting that [q]uestions regarding a defendant‘s immigration status are . . . irrelevant and designed to appeal to the trier of fact‘s passion and prejudice and are thus generally improper areas of inquiry, Washington v. Avendano-Lopez, 904 P.2d 324, 331 (Wash. Ct. App. 1995), but the government never suggested that Hano was illegally present in the United States. Indeed, the border officer testified that Hano legally entered the United States when he moved to this country in 2008 and in 2014 when he returned from his sojourn in Cuba. The government never invited the jury to find Hano guilty on the basis of immigration status. The import of the evidence about his travel was clear: it established that Hano was indeed in Cuba after the robbery, as Borrego Izquierdo testified, and that he had traveled there on a private person‘s boat that sailed from Texas—an unusual means of international travel that might be appealing if one were carrying hundreds of thousands of dollars obtained by a robbery.
Hano‘s argument under
3. The Question Whether the District Court Abused its Discretion in Denying Hano‘s Motion to Prohibit DNA Evidence from the Getaway Car Is Moot.
Before trial, Hano moved to exclude DNA evidence obtained from the getaway car that purportedly established that he was a possible contributor to the DNA sample obtained from the car. Hano argued that the introduction of this evidence would violate his rights under California v. Trombetta, 467 U.S. 479 (1984), because the government had destroyed the car and Hano would have no capacity to test the vehicle. The district court denied this motion because local investigators destroyed the car before Hano became a suspect, the evidence had no exculpatory value at the time of its destruction, and Hano had failed to prove that the local investigators acted in bad faith in destroying the car. Nevertheless, the government never offered this evidence at trial.
Hano reiterates his challenge to this ruling on appeal, but the issue is now moot. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979) (Since the Government did not introduce these items into evidence, the issue is moot.). As a result, we have no authority to examine the merits of this ruling. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (Any decision on the merits of a moot case or issue would be an impermissible advisory opinion. (citation and internal quotation marks omitted)).
Hano argues that the officer who examined the getaway car mentioned in her trial testimony that she looked for and attempted to collect DNA samples from the vehicle, but the officer gave no indication of the result of the analysis of the samples or suggested that the samples implicated Hano in the robbery in any way. Instead, she stated only that she look[ed] for touch DNA samples and that [t]ouch DNA swabs were collected off of the exterior and interior of the vehicle. These incidental references did not introduce the DNA analysis challenged by Hano in his pretrial motion.
C. The District Court Correctly Denied Hano‘s Motion to Obtain the DNA Profile of Mariano Duarte-Cardoso.
Hano filed a pretrial motion for the district court to issue a nonparty subpoena to the Federal DNA Database Unit for the DNA profile of Mariano Duarte-Cardoso—Arrastia-Cardoso‘s cousin and the spouse of Ortiz‘s sister. Duarte-Cardoso‘s DNA profile was in the database because of an earlier unrelated conviction. Hano argued that he had a right to access Duarte-Cardoso‘s profile under Brady, because
As the government argues, even if Hano had Duarte-Cardoso‘s profile, he would be unable to prove that Duarte-Cardoso‘s DNA was on the ski mask. The evidence established that Hano was the source of the only major DNA profile on the mask. At most, Hano could have attempted to prove that Duarte-Cardoso was a possible contributor to a mixture of DNA found on the mask, but as the government‘s expert explained, the frequency of the occurrence of the mixed DNA profile obtained from the mask in the general population of unrelated individuals was such that approximately one in six individuals would have a DNA profile that could be included in that mixture. So although a comparison of Duarte-Cardoso‘s profile with the mixed profile derived from the mask could have excluded Duarte-Cardoso as a contributor of DNA to the mask, it could not have proved that his DNA was present on the mask.
More importantly, even if Hano were somehow able to prove that Duarte-Cardoso‘s DNA was on any of the evidence obtained from the crime scene, the most it would have proved was that Duarte-Cardoso had also come into contact with those items. This conclusion would do nothing to undermine the principal value of the DNA evidence, which was to prove that Hano had worn the mask. If anything, the presence of Duarte-Cardoso‘s DNA on the mask would have corroborated Hano‘s admission to Borrego Izquierdo that Arrastia-Cardoso‘s cousin had been involved in the conspiracy. So Hano has failed to establish the existence of a reasonable probability that the suppressed evidence would have produced a different verdict. Strickler v. Greene, 527 U.S. 263, 281 (1999).
Hano also argues for the first time on appeal that the government violated
D. The District Court Did Not Err in Denying Hano‘s Motions for a Judgment of Acquittal and for a New Trial.
Hano argues that the district court erred in denying his motions for a judgment of acquittal and for a new trial. When conducting the review of the record to determine [w]hether the record contains sufficient evidence to support the jury‘s verdict, we view ‘the evidence in the light most favorable to the government and resolve all reasonable inferences and credibility evaluations in favor of the jury‘s verdict.’ United States v. To, 144 F.3d 737, 743 (11th Cir. 1998) (quoting United States v. High, 117 F.3d 464, 467 (11th Cir. 1997)). We must uphold the jury‘s verdict whenever a reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt. Id. at 743-44.
Hano contends that there was insufficient evidence that he was one of the robbers, but the evidence amply supports the jury‘s finding. Hano admitted to committing the crime with Arrastia-Cardoso to Borrego Izquierdo. Hano‘s DNA matched the only major DNA profile on the ski mask recovered from the crime scene. Shortly after the robbery, Hano traveled to Cuba under suspicious circumstances. And the evidence that independently implicated Arrastia-Cardoso in the robbery—for example, that his DNA was on the gun grip found at the scene of the robbery and that he purchased the getaway car from Camilo Hernandez— also tended to establish Hano‘s guilt because it corroborated his admission to Borrego Izquierdo that he had robbed the armored truck with Arrastia-Cardoso.
Hano responds that the three eyewitnesses to the robbery were unable to say with certainty that he was one of the robbers, but the failure of the witnesses to conclusively identify someone they had only seen for a brief moment years earlier hardly suffices to undermine the jury‘s inference of guilt. One of the witnesses, Ortiz, said that he never saw the face of the robber who held an apparent gun to his head because he was wearing a mask, so it is unsurprising that he could not identify Hano at trial. The second witness who saw one of the robbers—a bank customer—disclaimed any ability to conclusively identify the man she saw because it had been a very long time. But she did describe the robber as a Caucasian male or light Hispanic male who was a little heavy set and had short brown hair and no facial hair, and this description appears to match Hano well.
True, the third witness who saw the robber, Meaney, gave a different description. He said that the robber was dark, had a full head of hair, and a mustache, but this discrepancy does not undermine the jury‘s verdict. Meaney saw the robber from 20 to 30 feet away and was in the midst of a stressful encounter with apparently armed robbers—and he had, after all, just rammed the getaway car and was winded . . . because of the impact. It is also entirely possible that the robber Meaney described was not Hano, but instead one of the other robbers. After all, he testified that there were probably three different robbers. And in any case, in the light of the DNA evidence, Borrego Izquierdo‘s testimony, and one apparently positive witness identification, the jury could have reasonably found that Hano was one of the robbers even if it discounted Meaney‘s identification.
Third, Hano argues that the evidence was insufficient to support his conviction for conspiracy to commit Hobbs Act robbery because, in his view, the government failed to introduce any evidence that he had ever met, spoke[n], or otherwise communicated with Arrastia-Cardoso, but this argument fails. To prove a Hobbs Act conspiracy, the government must establish that: (1) two or more persons agreed to commit a robbery encompassed within the Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal. To, 144 F.3d at 747-48. [D]irect evidence of an agreement is unnecessary to prove conspiracy. United States v. McNair, 605 F.3d 1152, 1195 (11th Cir. 2010). Indeed, because the crime of conspiracy is predominantly
E. The Government Did Not Improperly Comment During Closing Argument on Arrastia-Cardoso‘s Decision Not to Testify.
Arrastia-Cardoso contends that the government impermissibly commented on his decision not to testify when, during closing arguments, the prosecutor mentioned that while the burden of proof is not on the defendants to prove anything, there was actually no evidence introduced during the trial explaining an alternative reason why the DNA was on the items recovered from the scene of the robbery. Arrastia-Cardoso did not object to this remark at trial, so we review for plain error. United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007). We conclude that Arrastia-Cardoso has failed to identify any error, plain or otherwise, resulting from this remark during closing arguments.
Because the government in a criminal proceeding has the burden of proving every element of the charged offense beyond a reasonable doubt, prosecutors must refrain from making arguments that improperly shift the burden of proof to the defendant. United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017). Nor may the prosecution comment on the defendant‘s failure to testify. United States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010). A prosecutor impermissibly comments on a defendant‘s right to remain silent where: (1) the statement was manifestly intended to be a comment on the defendant‘s failure to testify; or (2) the statement was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. United States v. McGarity, 669 F.3d 1218, 1241 (11th Cir. 2012) (citation and internal quotation marks omitted). [T]he question is not whether the jury possibly or even probably would review the remark in this manner, but whether the jury necessarily would have done so. Id. (citation and internal quotation marks omitted). A prosecutor‘s statements to the jury constitute misconduct only if: (1) the remarks were improper, and (2) the remarks prejudicially affected the substantial rights of the defendant. Taohim, 817 F.3d at 1224. To warrant a new trial, there must be a reasonable probability that ‘but for the remarks, the outcome would be different.’ Id. (citation omitted).
The government did not impermissibly comment on Arrastia-Cardoso‘s decision not to testify. It instead argued that the jury should infer that the most reasonable explanation of the presence of the defendants’ DNA on the mask and gun grip recovered from the scene of the robbery was that the defendants used these items in committing the robbery because no evidence presented at trial undermined that explanation. A prosecutor is entitled to comment on the failure by defense counsel, as opposed to the defendant, to
F. The District Court Did Not Err in Increasing Hano‘s Offense Level for Otherwise Using a Firearm During the Commission of the Robbery.
Hano argues that the district court erred in enhancing his offense level by four levels because he otherwise used a dangerous weapon in the commission of the robbery,
Hano argues that his conduct did not amount to anything more than brandishing a dangerous weapon because neither he nor his coconspirators ever actually threatened anyone with a weapon when they committed the robbery. According to Hano, because Ortiz was actually an inside individual who was in on the plot, when Ortiz pointed an apparent firearm at his head and struck him with it, that conduct was nothing more than an elaborate charade. Hano also argues that the weapon was only a toy gun and that he did not directly threaten anyone other than Ortiz. And although Meaney witnessed the whole sequence of events, Hano suggests that Meaney was only a spectator to a performance in which Ortiz was acting as though he had been struck in order to assist in the robbery and avoid suspicion.
We conclude that Hano otherwise used a dangerous weapon in the commission of the robbery. Whether Hano used a toy gun is of no moment, as we have held that defendants who otherwise use an object which appears to be a dangerous weapon will be subject to a four-level enhancement under the relevant guideline,
The key consideration in applying the rule that pointing a weapon at a person and issuing a threat or order to
That said, Hano also implicitly threatened Meaney. An explicit threat to one person may constitute an implicit threat to others present if they reasonably believe in that circumstance that the same threat extends to them and that the perpetrator intends to secure their compliance with his demands through the use of the explicit threat against the third-party. Cf. United States v. Douglas, 489 F.3d 1117, 1129 (11th Cir. 2007) (holding that kidnapper‘s explicit threat to harm a child‘s mother was an implicit threat to the child because he was unable to act independently of [her] and [she] believed that they were both in danger of physical harm). The same rule should apply even if the explicit threat was only a mock threat. In either case, the perpetrator‘s conduct is calculated to induce compliance on the part of those who were not explicitly threatened through the use of an apparent threat that communicates that those who fail to comply with his demands will be harmed. And under this rule, Hano‘s conduct amounted to otherwise using a dangerous weapon because his threat on Ortiz‘s life was calculated to induce Meaney‘s compliance by demonstrating that weapons would be used against any member of the crew of the truck who refused to comply with his demands. The district court committed no error when it enhanced Hano‘s offense level by four levels because he otherwise used a dangerous weapon in the robbery.
IV. CONCLUSION
We AFFIRM the convictions and sentences of Hano and Arrastia-Cardoso.