UNITED STATES of America, Plaintiff-Appellee v. Liban HASSAN, Defendant-Appellant
No. 15-3828
United States Court of Appeals, Eighth Circuit.
Submitted: October 25, 2016. Filed: December 21, 2016.
844 F.3d 723
III.
We affirm the district court‘s judgment in this matter.
Attorney Susan T. Lehr, AUSA of Omaha, NE, for appellee United States did appear and did present oral argument. In addition to Ms. Lehr, the following attorneys appeared on appellee‘s brief—Deborah R. Gilg, the United States Attorney for the District of Nebraska and Timothy R. Hook, AUSA both of Omaha, NE.
Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
BEAM, Circuit Judge.
Liban Hassan appeals his conviction, following a jury trial, for robbery in violation of
I. BACKGROUND
The evidence adduced at trial indicated that Hassan and three associates, Yusuf Xasan, Abdifatah Hashi, and Fuad Buraale, were driving around Omaha when they formulated a plan to rob a gas station convenience store for cash and cigarettes. The store clerk and Xasan testified for the government at trial. Xasan stated that as the four were proceeding west through Omaha, the four of them ended up near the targeted convenience store and began by breaking into and stealing from unlocked cars in the neighborhood. Xasan testified that Hassan said they should go into the convenience store and take cigarettes and cash, which Hassan alleged he had done with success when living in Minnesota. Xasan testified that he parked the car at the store so as to avoid the security camera sight lines. Xasan also left the car running for a fast getaway. All four entered the store, and Buraale indicated he had a gun (but apparently did not) and yelled, “where‘s the money?” Xasan grabbed the clerk at the counter from behind, put some object next to the clerk‘s neck, and forced the clerk to open both cash registers. Xasan and Buraale took approximately $150 in cash and cartons of cigarettes. After robbing the store, the four went to Hassan‘s residence (he was staying with his sister) and split the proceeds.
During the clerk‘s testimony at trial, the government offered Exhibit 1, a DVD with video recordings of the robbery. The exhibit was a series of video clips, rather than one continuous video. The government laid foundation for the video via questions to the clerk who verified that the video clips (which he had viewed prior to trial) were a fair and adequate description of what happened during the robbery. Prior to trial, during discovery, defense counsel was provided with a DVD that contained sixteen video angles of the robbery. However, at trial, the government only
Nonetheless, one of the video clips shown at trial indicated that Hassan walked out of the convenience store shortly after walking in, and stood outside the door of the store. This video clip arguably supported both Hassan‘s defense theory that he did not participate or know the robbery was going to happen, and also the government‘s theory that Hassan helped secure the inside, and then went back outside to be the lookout. According to the testimony elicited at trial, Hassan appears to be covering his face while on video. Hassan stated on cross examination that he was doing so out of disbelief of what was going on inside the convenience store.
At the close of the government‘s evidence, Hassan unsuccessfully moved for judgment of acquittal pursuant to
During closing argument, defense counsel, still not realizing that the jury would only be shown the two video clips shown during trial instead of the sixteen clips he received during discovery, told the jury they could view a recording with sixteen different angles of the robbery. At this point, the government objected. During a sidebar, defense counsel complained about the fact that the DVD being offered into evidence at trial was a truncated version of what he was given during discovery. The district court gave a limiting instruction and the jury was only given the DVD with the two video clips shown during trial. The jury deliberated and found Hassan guilty of interference with commerce by means of robbery as charged in Count 1 of the indictment. Hassan moved pursuant to
II. DISCUSSION
Under
Hassan argues that the government failed to establish the intent element of the crime of interference with commerce by means of robbery. Specifically, Hassan argues that the government failed to show that he knowingly robbed or aided and abetted in the robbery of the convenience store. Hassan makes two primary arguments; first, that he did not have the requisite mens rea for robbery (involving the use or threatened use of force or violence), as the only discussion in the car involved more of a shoplifting “grab and go” kind of crime. Second, Hassan makes a “mere presence” argument—that his being at the scene of the crime cannot establish that he knowingly robbed or aided and abetted in the robbery. See United States v. Reda, 765 F.2d 715, 719 (8th Cir.1985) (“[G]uilt cannot be inferred from ... mere presence at the scene of a crime or a mere association with members of a criminal conspiracy.“). In so doing, Hassan attacks Xasan‘s credibility. Hassan argues that Xasan‘s testimony does not establish that the discussion in the car included the possibility of either using or pretending to have a gun. Hassan also argues that Xasan was an especially un-credible witness because he was the actual perpetrator of the robbery and had motivation to lie to get a sentencing break. Hassan also points to several instances wherein Xasan arguably contradicted himself on direct examination and cross examination.
In evaluating a motion for judgment of acquittal, we cannot pass upon the credibility of witnesses or the weight to be given their testimony, as this is uniquely within the province of the trier of fact, and entitled to special deference. United States v. Goodale, 738 F.3d 917, 923 (8th Cir. 2013). Of course, in evaluating whether a new trial should be granted, we may evaluate the credibility of witnesses. Knight, 800 F.3d at 504.
Evidence in the record supports the jury‘s conclusion that Hassan had the requisite mens rea and intent for robbery and was not merely present at the scene. Xasan testified that Hassan came up with the idea to rob the convenience store. Video evidence indicated that Hassan entered the store with the three others, and then shortly thereafter waited outside the door. Xasan testified that Hassan left the location in the vehicle with the three others and that Hassan personally received some of the cash and cigarettes taken from the store. For the purposes of the
Hassan also makes reference to the dispute over the video clips in his statement of the case, alleging that “[b]ecause counsel for the government and defense counsel were on different pages in terms of what digital evidence was on the key Exhibit, and the Appellant was prejudiced as a result, the Appellant now seeks a judicial determination of the lingering issue of whether or not such an inadvertent suppression of evidence justifies a new trial.” There is no further mention of this argument in Hassan‘s briefing; however, because the issue was cursorily raised in the opening brief, we exercise our discretion to consider the arguments made to the district court on this issue in the post-trial motions.
The district court found that the government did not violate Brady v. Maryland, 373 U.S. 83 (1963), by virtue of its use of Exhibit 1 because the government had disclosed the entire video prior to trial. Brady covers the suppression of evidence, id. at 86, not the use of evidence at trial that is packaged differently than it was during pretrial disclosures, which is essentially what happened here. Prior to trial, defense counsel was given a DVD with all the camera angle video clips, and the government used only a portion of those clips at trial. Defense counsel alluded to a problem with the way the government described the exhibit it was going to use, leading defense counsel to believe that the entire DVD would be shown at trial. But that possibility does not present a Brady issue. There is no question that Exhibit 1 was correctly authenticated and that a proper foundation was laid for the exhibit. The district court found there was “no evidence” that the government misled the court or the witness or the defense team with regard to Exhibit 1, and we do not see anything in the record to refute that notion.
III. CONCLUSION
Accordingly, we affirm Hassan‘s conviction.