United States v. Liban Hassan , 844 F.3d 723 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3828
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Liban Hassan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: October 25, 2016
Filed: December 21, 2016
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Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
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BEAM, Circuit Judge.
Liban Hassan appeals his conviction, following a jury trial, for robbery in
violation of 18 U.S.C. § 1951, after he and three others stole approximately $150 in
cash and several cartons of cigarettes from a convenience store gasoline station. We
affirm the district court.1
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.
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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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
showed two of these clips to the jury during the testimony of the clerk, Xasan, and
Hassan.
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 Federal Rule of Criminal Procedure 29. Hassan and
his sister testified during the defense portion of the trial. Hassan asserted that he did
not know his associates were going to rob the store and that is why he left
immediately after going in the store. He testified that he did not initially run away
because his cell phone was locked in the car, but when he later retrieved it, the phone
was dead. Nonetheless, Hassan's sister testified that Hassan called her early in the
morning, asked to stay at her house, and arrived there alone. Hassan again
unsuccessfully moved for judgment of acquittal at the close of his defense case.
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
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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 Federal Rule of Criminal
Procedure 33 for a new trial, as relevant, arguing that it was error for the government
to offer a different DVD at trial than the one counsel received during discovery, and
that there was insufficient evidence to support the conviction. The district court
denied the motion. Hassan appeals.
II. DISCUSSION
Under Rule 29, the court "must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a).
Rule 29(c) permits defendants to move the court to set aside a verdict and enter
judgment of acquittal after trial; however, a district court has very limited latitude to
do so and must not assess witness credibility or weigh evidence, and the evidence
must be viewed in a light most favorable to the government. United States v. Stacks,
821 F.3d 1038, 1043 (8th Cir. 2016). Federal Rule of Criminal Procedure 33(a) states
that "the court may vacate any judgment and grant a new trial if the interest of justice
so requires." As distinct from Rule 29, the court has broad discretion in deciding
motions for new trial, and its decision is subject to reversal only for a clear and
manifest abuse of discretion. United States v. Amaya, 731 F.3d 761, 764 (8th Cir.
2013). Also in contrast to Rule 29, in considering a motion for new trial, the court
need not view the evidence in the light most favorable to the verdict and it is
permitted to weigh the evidence and evaluate the credibility of the witnesses. United
States v. Knight, 800 F.3d 491, 504-05 (8th Cir. 2015). Nonetheless, motions for new
trials based on the weight of the evidence generally are disfavored, and the district
court's authority to grant a new trial should rarely be exercised. Id. at 504.
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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
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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 Rule 29
motion, Xasan's testimony is viewed in the light most favorable to the verdict, and we
find there was sufficient evidence to support the verdict. Although Xasan testified
on cross examination that there was no discussion of force or the use of a gun, a
reasonable jury could have concluded that because the object of the crime was cash
and cigarettes, use of force or threatened force would reasonably be necessary to
complete the crime. Even if the four did not specifically mention an intent to use
force (real or pretend) when discussing the crime, the object of the caper belies any
notion that force would not be necessary. Cash and cigarettes are not out in the open
on shelving like gum or candy. Any "grabbing" of cash or cigarettes would
necessarily involve the use or threat of force, unless the four somehow knew the store
employee would be complicit or completely uninterested in the crime. Finally, we
find nothing in the record to suggest that the interest of justice requires a new trial to
be granted under Rule 33.
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,
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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.
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