United States v. Diosme Fernandez Hano , 922 F.3d 1272 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10510
________________________
D.C. Docket No. 2:15-cr-00101-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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
_______________________
(April 30, 2019)
Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *
District Judge.
*
The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District
of Texas, sitting by designation.
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WILLIAM PRYOR, Circuit 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
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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
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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
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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
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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
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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
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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.
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.
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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).
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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, 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
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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 “has not yet expired”
at the time the defendant is implicated by DNA testing. So on Hano’s reading, the
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implication of a defendant by DNA testing only extends a not-yet-elapsed
limitation period.
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
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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 temporal point of reference for the
conditional clause. It makes no sense to say that section 3297 would apply unless
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the limitation period expired the very same moment the offense was committed.
And if the conditional clause were linked in time to the prosecution of the offense,
then the application note would mean that section 3297 would apply only when a
defendant was prosecuted within the original limitation period—a situation in
which the extended period of section 3297 would have no work to do.
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.
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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.
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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 period has
not yet expired,” is necessarily satisfied when an offense was committed after the
date of enactment. But that consequence does not render the word “after” or the
conditional clause superfluous. The conditional clause—in conjunction with the
word “before”—clarifies that section 3297 applies retroactively to offenses
committed before the date of enactment if the otherwise applicable limitation
period has yet to expire. The word “after” makes plain that section 3297 has
prospective application. Both the word “after” and the conditional clause are
necessary to clarify the full scope of application of section 3297.
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
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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
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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
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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
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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
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Process Clause. And the government argues that Arrastia-Cardoso’s proposed rule
is not clearly established as the law of this Circuit. United States v. Hesser, 800
F.3d 1310, 1325 (11th Cir. 2015) (“‘Plain’ error means that the legal rule is clearly
established at the time the case is reviewed on direct appeal.”).
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.
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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
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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 Clause as claims under
the Due Process Clause. We will not adopt a rule that would permit defendants to
make an end run around the strictures recognized by the Supreme Court’s
Confrontation Clause jurisprudence.
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 Federal Rule of Evidence 804(b)(3). On appeal,
Arrastia-Cardoso concedes that “Hano’s confession to his role in the robbery was
against his own penal interest,” but argues that “the balance of the statement
remains hearsay inadmissible in accordance with [Federal Rule of Evidence] 802.”
In support of this contention, he relies on the principle that Rule 804(b)(3) “does
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not allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory.” Williamson v. United
States, 512 U.S. 594, 600–01 (1994). But Arrastia-Cardoso does not even attempt
to identify any portion of Hano’s statement that was not self-inculpatory, nor does
he attempt to prove that the introduction of portions of Hano’s statement that were
not self-inculpatory prejudiced him, so we cannot reverse on this basis. See United
States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (“No reversal will result if
sufficient evidence uninfected by any error supports the verdict, and the error did
not have a substantial influence on the outcome of the case.” (citation and internal
quotation marks omitted)).
For his part, Hano offers a third challenge to Borrego Izquierdo’s testimony,
arguing that it should have been excluded as prejudicial under Federal Rule of
Evidence 403, but his argument fails as well. Under Rule 403, a district court has
the discretion to “exclude relevant evidence if its probative value is substantially
outweighed by a danger” of “unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
According to Hano, the district court should have prohibited Borrego Izquierdo
from testifying altogether because he was not credible. But “Rule 403 does not
permit exclusion of evidence because the judge does not find it credible.” United
States v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980) (rejecting the argument that
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Rule 403 gave the district court the authority to “protect” the jury from a witness’s
“contradictory testimony”). Credibility determinations are the “exclusive province”
of the jury “and the court of appeals may not revisit this question unless it is
incredible as a matter of law.” United States v. Feliciano, 761 F.3d 1202, 1206
(11th Cir. 2014) (citation and internal quotation marks omitted). Testimony is
incredible as a matter of law if and only if it is “unbelievable on its face, i.e.,
testimony as to facts the witness physically could not have possibly observed or
events that could not have occurred under the laws of nature.” Id. (citation and
internal quotation marks omitted). Nothing of the kind could be fairly said of
Borrego Izquierdo’s testimony.
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. Rule 403
does not license exclusion of evidence for want of corroboration, and “evidence of
wealth or extravagant spending may be admissible when relevant to the issues in
the case and where other evidence supports a finding of guilt.” Bradley, 644 F.3d
at 1271. The evidence of Hano’s expenditures was relevant because it buttressed
the inference that Hano had recently come into a large sum of money when he set
sail for Cuba. The evidence was not admitted for the purpose of enticing the jury to
convict Hano based on his wealth or socioeconomic status, and the government
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never attempted to suggest anything along those lines. So Hano’s argument fails to
establish that the district court erred in permitting Borrego Izquierdo to testify.
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 Rule 403 and excluded under Rule 404(b)
on the theory that “testimony regarding the details of [Hano’s] immigration to and
from the United States and Cuba may be considered a ‘bad act.’” The district court
denied the motion in part and granted it in part. It ruled that Rule 404(b) did not
apply because Hano failed to establish that his entry into the United States was
wrong or related to his character and that Hano’s statement to the border officer
concerning the timing and means of his exodus to Cuba had significant probative
value that was not outweighed by the danger of unfair prejudice. The district court
excluded all portions of Hano’s immigration file that lacked clear probative value.
At trial, the government introduced a redacted copy of Hano’s immigration file and
offered testimony from the border officer regarding Hano’s statement about his
travel to Cuba.
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Hano argues that this evidence should have been excluded under Rule 403
because the evidence transformed a “case about a robbery and conspiracy” into “a
case about immigration,” but he is wrong. As the district court correctly concluded,
“the timing of Hano’s departure to Cuba, which was little more than a month after
the robbery, as well as his description of the means and method of that departure”
was probative of his “motivation to move between countries in the immediate
aftermath of a crime” and “the potential avenue” by which he transported his “ill-
gotten gains.”
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
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international travel that might be appealing if one were carrying hundreds of
thousands of dollars obtained by a robbery.
Hano’s argument under Rule 404(b) fares no better. Rule 404(b)(1) provides
that “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Rule 404(b)(2) clarifies that such evidence “may
be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
We have explained that Rule 404(b) is a rule “of inclusion which allows extrinsic
evidence unless it tends to prove only criminal propensity.” United States v.
Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012). And the government made no
attempt to use the evidence of Hano’s travel to Cuba to prove that he had a
propensity to cross the border unlawfully or otherwise violate the law. The purpose
of the evidence was to show that, on a particular occasion, Hano fled the United
States with the proceeds of the robbery. The district court acted well within its
discretion in denying Hano’s motion to exclude the evidence of when and by what
means he traveled to Cuba.
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
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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
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“[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 the DNA of other “potential donors” had been discovered on
the ski mask recovered from the crime scene, and in Hano’s view, the profile
“could potentially exculpate [him] . . . by further inculpating [Duarte-]Cardoso.”
The government opposed the motion on the ground that federal privacy protections
prohibited the disclosure of Duarte-Cardoso’s DNA profile and that his profile was
not exculpatory because even if his DNA was on the ski mask, it would do nothing
to explain away the presence of Hano’s DNA on the mask. The district court held a
hearing on the motion in which a supervisor of the Federal DNA Database Unit
testified. The district court denied Hano’s motion because even if Duarte-
Cardoso’s DNA were found on the ski mask, it “could not conceivably impact a
trial.”
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On appeal, Hano reiterates his argument that the government’s failure to
produce Duarte-Cardoso’s DNA profile violated Brady, but the district court was
right to reject it. “To establish a Brady violation,” a defendant must “prove that the
prosecution withheld favorable evidence and that he was prejudiced as a result.”
Brester, 786 F.3d at 1339. To establish prejudice, a defendant must “prove that
there is ‘a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.” Id.
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Hano cannot prove
prejudice.
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
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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
Federal Rule of Criminal Procedure 16, which requires the government to disclose
items that are “material to preparing the defense” if they are “within the
government’s possession, custody, or control,” Fed. R. Crim. P. 16(E)(i), but this
argument fails for the same reasons as Hano’s argument based on Brady. As we
have explained, a defendant must prove “prejudice to substantial rights” to
establish that a violation of Rule 16 warrants reversal. United States v. Mosquera,
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886 F.3d 1032, 1045 (11th Cir. 2018). For the reasons discussed above, Hano
cannot establish that the failure to produce the profile was prejudicial.
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—
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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
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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.
Hano also argues that Borrego Izquierdo’s testimony did not provide a
reasonable basis for the jury to reach any finding regarding his involvement in the
robbery because that testimony was “resoundingly impeached” on cross-
examination, but this argument fails. The “uncorroborated testimony of an
accomplice is sufficient to support a conviction in the Federal Courts if it is not on
its face incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d
1554, 1562 (11th Cir. 1991) (citation and internal quotation marks omitted).
Borrego Izquierdo’s testimony was not incredible on its face and was supported by
powerful corroborating evidence, so the jury was entitled to render its own
assessment of Borrego Izquierdo’s credibility. As we have explained, “[t]o the
extent that” a defendant’s “argument depends upon challenges to the credibility of
witnesses, the jury has exclusive province over that determination and the court of
appeals may not revisit this question.” United States v. Kelley, 412 F.3d 1240,
1247 (11th Cir. 2005) (citation and internal quotation marks omitted).
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Hano also contends that the evidence was insufficient to support his
conviction for Hobbs Act robbery because it failed to establish that he took
property “by means of actual or threatened injury,” but we are not persuaded. “The
two required elements for a substantive Hobbs Act conviction are robbery and an
effect on interstate commerce.” United States v. Taylor, 480 F.3d 1025, 1026–27
(11th Cir. 2007) (alteration adopted) (citation and internal quotation marks
omitted). Robbery is defined as including “the unlawful taking or obtaining of
personal property from the person or in the presence of another, against his will”
through “actual or threatened force, or violence, or fear of injury, immediate or
future, to his person or property, or property in his custody or possession, or the
person or property . . . of anyone in his company at the time of the taking or
obtaining.” 18 U.S.C. § 1951(b)(1). As Hano sees it, the government failed to
present sufficient evidence for the jury to infer that Hano seized the cash through
“actual or threatened force, or violence, or fear of injury” because Ortiz was an
inside man who was never actually threatened with violence and Meaney “was
located behind a glass division” and “testified to the jury that he was only
concerned for Ortiz’s safety.” Although Meaney is apparently a brave man—he did
ram the getaway car repeatedly in an effort to disable it—it is a stretch to say that
the robbers did not at least implicitly threaten his safety by apparently threatening
Ortiz’s life, and this threat enabled the robbers to effectuate their crime without
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interference by deterring Meaney from leaving the cabin or using his weapon
against them. And, in any event, so long as Meaney reasonably believed that
Ortiz’s personal safety was threatened, it does not matter whether Ortiz was really
in danger or not.
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 mental in composition, it is frequently necessary to
resort to circumstantial evidence to prove its elements.” United States v. Garcia,
405 F.3d 1260, 1270 (11th Cir. 2005) (citation and internal quotation marks
omitted). And circumstantial evidence supported an inference that Hano committed
a robbery in cooperation with Arrastia-Cardoso and perhaps other accomplices,
and that the robbery required advance planning, including the purchase of guns,
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masks, and a getaway car. These facts alone are sufficient to infer an agreement
between Hano and Arrastia-Cardoso. And Hano’s own statements, as related
through Borrego Izquierdo, confirmed that he had planned and executed the
robbery in conjunction with Arrastia-Cardoso and likely others. It follows that the
evidence was sufficient to support both of Hano’s convictions.
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
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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
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by defense counsel, as opposed to the defendant, to counter or explain evidence.’”
Bernal-Benitez, 594 F.3d at 1315 (quoting United States v. Hernandez, 145 F.3d
1433, 1439 (11th Cir. 1998)). And even if the jury might have “possibly” inferred
that the government was arguing that Arrastia-Cardoso should have taken the stand
himself and explained why his DNA was found on items recovered from the scene
of the robbery, we cannot say that the jury “necessarily” would have interpreted
the remark that way. McGarity, 669 F.3d at 1241. Arrastia-Cardoso’s argument
fails because the government’s “comment[] in closing arguments [was] made in the
context of the prosecutor’s accurate reminder to the jury about the burden of proof”
and so “cannot establish plain error.” Foley, 508 F.3d at 638.
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, U.S.S.G. § 2B3.1(b)(2)(D). The Sentencing Guidelines provide that
“if a dangerous weapon was otherwise used” in the commission of a robbery
offense, the defendant’s offense level increases by four levels. Id. If a dangerous
weapon was only “brandished or possessed,” the offense level increases by three
levels. Id. § 2B3.1(b)(2)(E). Under the definitions provided in the application notes
for the Guidelines, a defendant “brandished” a dangerous weapon if “all or part of
the weapon was displayed, or the presence of the weapon was otherwise made
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known to another person, in order to intimidate that person, regardless of whether
the weapon was directly visible to that person.” Id. § 1B1.1 cmt. n.1(C). A
defendant “otherwise used” a dangerous weapon if the “conduct did not amount to
the discharge of a firearm but was more than brandishing, displaying, or possessing
a firearm or other dangerous weapon.” Id. § 1B1.1 cmt. n.1(I).
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
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guideline, id. § 2B3.1(b)(2)(D). United States v. Miller, 206 F.3d 1051, 1053 (11th
Cir. 2000). The residual question is whether Hano’s conduct amounted to more
than “brandishing” a dangerous weapon, and the answer must be “yes.” Our
precedent establishes that the “use of a firearm to make an explicit or implicit
threat against a specific person constitutes ‘otherwise use’ of the firearm.” United
States v. Verbitskaya, 406 F.3d 1324, 1339 (11th Cir. 2005).
The “key consideration” in applying the rule that pointing a weapon at a
person and issuing a threat or order to facilitate the commission of an offense
constitutes “otherwise using” a dangerous weapon is “whether a gun (or other
weapon) was pointed at a specific person in an effort to create fear so as to
facilitate compliance with a demand, and ultimately to facilitate the commission of
the crime.” United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir. 1999). The
answer to this question does not depend on whether “the gun was pointed at the
same person in whom fear was sought to be instilled, or even that the person
sought to be coerced was the victim of the crime, as opposed to a third party whose
complicity the perpetrator sought to ensure.” Id. A perpetrator who points a gun at
a person to coerce another into compliance with a criminal scheme has done more
than merely “display[]” a weapon “to another person, in order to intimidate that
person, regardless of whether the weapon was directly visible to that person.”
U.S.S.G. § 1B1.1 cmt. n.1(C).
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Regardless of whether Hano actually intended to harm Ortiz when he put
what appeared to be a gun to his head, Hano pointed what qualifies as a
“dangerous weapon” under our precedent at a specific person, namely Ortiz, with
the intent to cause Meaney to fear that Ortiz’s safety would be endangered if
Meaney failed to comply with Hano’s demands. Hano’s conduct amounted to
“otherwise using” a dangerous weapon in the commission of the robbery,
regardless of whether Ortiz or Meaney were actually in danger. Cf. Yelverton, 197
F.3d at 534 n.2 (explaining that threatening to “shoot one person in order to extort
action from another” qualifies as otherwise using a dangerous weapon).
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
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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.
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