United States v. Diosme Hano and Reinaldo Arrastia-Cardoso (11th Cir. April 2019)

The Federal Docket

May 7, 2019

Statute of Limitations/DNA Evidence – 18 U.S.C. § 3297 revives an offense after the applicable statute of limitations has expired and imposes a new limitation period upon DNA testing implicating a defendant in the underlying offense.

Sixth Amendment/Confrontation Clause – A non-testifying co-defendant’s hearsay statements implicating another defendant in a crime are only precluded by Bruton if they are “testimonial” statements that are made with the primary purpose of creating “an out-of-court substitute for trial testimony.”

Fifth Amendment/Brady ViolationBrady was not implicated when the district court refused the defendant access to another suspect’s DNA profile since the defendant’s DNA was the only major DNA profile found on the relevant evidence.

Sentencing Guidelines/U.S.S.G. §2B3.1 – A defendant “otherwise uses” a dangerous weapon, as opposed to merely brandishing or possessing it, when he uses it to threaten or coerce a specific person in order to facilitate a robbery.

Diosme Hano and Reinaldo Arrastia-Cardoso were convicted of Hobbs Act Robbery after robbing an armored truck. On appeal, the defendants argued that: 1) the statute of limitations precluded prosecuting Hano, notwithstanding the later testing of his DNA, 2) the court erred on several evidentiary issues at trial, including admitting Hano’s hearsay statements implicating Arrastia-Cardoso, 3) Hano’s motion to obtain DNA of another suspect should have been granted, 4) there was insufficient evidence to convict Hano, 5) the Government improperly commented on Arrastia-Cardoso’s decision not to testify, and 6) the court improperly enhanced Hano’s sentence for using a weapon during the robbery.

In 2009, Hano and Arrastia-Cardoso robbed a Brinks armored truck, during which Hano held up the truck’s guard with a fake gun in order to coerce the driver into dropping his weapon and submitting to the robbery. The Government’s initial suspects, however, were a man named Mariano Duerte-Cardoso and the guard, who they suspected acted as an “inside man.” Duerte-Cardoso left the country after law enforcement searched his home.

Five years later, Ruben Izquierdo, facing unrelated state criminal charges, informed the FBI that Hano had recently told him that Hano had robbed an armored truck with Arrastia-Cardoso back in 2009. Izquierdo recounted that Hano told him that one of the truck’s guards was part of the scheme and described other details of the robber. Shortly thereafter, investigators obtained DNA samples of Arrastia-Cardoso and Hano, and the two were indicted in March 2016.

The Eleventh Circuit affirmed both of their convictions and sentences.

DNA Evidence and Statute of Limitations

First, the Court held that Hano’s indictment was not precluded by the five-year statute of limitations, since 18 U.S.C. § 3297 revives the statute of limitations for an offense if DNA testing implicates the defendant in the commission of the offense. The Court rejected Hano’s argument that the statute only resets the limitation period for offenses in cases where DNA evidence is discovered while the applicable period is still running, holding that the language in the application notes making § 3297 applicable to offenses where “the applicable limitation period has not yet expired” referred to offenses whose limitation period had yet not expired at the time of § 3297’s enactment.

Evidentiary Rulings

The Court then held that the evidentiary errors enumerated by Hano and Arrastia-Cardoso did not merit reversal. First, the Court rejected Arrastia-Cardoso’s argument that his Sixth Amendment right to Confrontation were violated when the trial court let Izquierdo testify as to Hano’s confession, in which Hano implicated Arrastia-Cardoso.

The Court held for the first time in a published opinion that Bruton does not preclude “non-testimonial” hearsay statements from a non-testifying co-defendant, as a defendant has no Sixth Amendment right to confront a declarant if the declarant is not giving testimonial statements. Here, Hano’s statements were “plainly non-testimonial” since the “primary purpose” of his conversation with Izquierdo was not “to create an out-of-court substitute for trial testimony.” The Court noted that, at the time Hano made the statements, there was “no future prosecution on the horizon,” he was not under investigation, and he had no reason to believe his statements might “ever be used in court.” The Court concluded that Hano’s statements, even though directly probative of Hano and Arrastia-Cardoso’s participation in a crime, was merely part of a “friendly and informal exchange.”

The Court also rejected Hano’s arguments that the trial court should have excluded evidence that Hano traveled to Cuba shortly after the robbery under FRE 403 or 404(b). The evidence did not impermissibly address Hano’s immigration status and was not used to show his propensity to violate the law. The Court also held that Hano’s argument regarding his lack of access to DNA evidence recovered from the crime scene was moot since the evidence was not introduced at trial.

DNA Evidence and Brady Violation

The Court also affirmed the district court’s denial of Hano’s motion to obtain the DNA profile of Mariano Duerte-Cardoso, who was one of the initial suspects, pursuant to Brady. The Court held that there was no Brady violation since Hano’s DNA was the only “major DNA profile on the mask” and therefore obtaining Duerte-Cardoso’s DNA would have been unlikely to produce a different verdict.

Sufficiency of the Evidence

The Court held there was sufficient evidence to convict Hano, citing his confession to Izquierdo, his DNA matching the DNA profile on a ski mask recovered from the crime scene, his travel to Cuba after the robbery, and other evidence. The court held that this was sufficient despite conflicting accounts from eyewitnesses describing the robbers and the lack of corroboration for Izquierdo’s testimony. There was also sufficient evidence that Hano took property “by means of actual or threatened injury” under the Hobbs Act. Despite the fact that he only pointed the gun at the truck guard acting as an “inside man,” this conduct implicitly threatened the non-participant driver with serious or deadly injury.

Prosecutorial Misconduct

The Court rejected Arrastia-Cardoso’s claim that the Government impermissibly commented on his decision not to testify. During closing arguments, the Government argued that, while the defendant did not have a burden of produce any evidence, “there was actually no evidence introduced during the trial explaining an alternative reason” for the DNA’s presence at the crime scene.

Under plain-error analysis, the Court found there was no error since the statement was not “manifestly intended” to be a comment on the defendant’s failure to testify. According to the Court, the Government was simply arguing that the jury should infer “the most reasonable explanation” for the presence of the DNA and that a prosecutor “is entitled to comment on the failure by defense counsel, as opposed to the defendant, to counter or explain evidence.”

Sentencing Guidelines

Hano also challenged the application of the five-level enhancement under USSG § 2B3.1(b)(2)(C) for “otherwise using” a dangerous weapon, arguing that he should only receive the enhancement for “brandishing or possessing” a dangerous weapon, which in this case was a fake gun that he only pointed at the guard who was actually covert participant in the robbery.

The Court affirmed the enhancement, noting that “otherwise using” a weapon includes any conduct that doesn’t amount to discharging a firearm but is “more than brandishing, displaying, or possessing a firearm or other dangerous weapon.” Here, Hano had threatened the guard with the gun specifically to coerce the truck driver into submitting to the robbery. The Court added that Hano’s use of the firearm in this capacity also implicitly threatened the driver.

Appeal from the Middle District of Florida

Opinion by W. Pryor, joined by Newsom and Rosenthal (by designation from S.D. Texas)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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