In United States v. Hano, No. 18-10510 (Apr. 30,
2019) (William Pryor, Newsom, Rosenthal), the Court upheld the
defendants' Hobbs Act robbery convictions.
First, the Court rejected the defendant's argument that the
prosecution fell outside the statute of limitations because the statutory DNA testing
exception did not apply. Under that
exception, where DNA testing implicates a person in a felony, that event
re-starts the statute of limitations. The Court rejected the defendant's argument
that this exception applied only to cases where the default statute of
limitations has not yet expired at the time of the DNA testing.
Second, the Court rejected three evidentiary arguments. In an
extended discussion, the Court found no Bruton error in admitting the
statements of one of the co-defendants because those statements were
non-testimonial and thus fell outside of the Bruton doctrine. The Court also declined to extend Bruton
to non-testimonial statements as a matter of procedural due process. The Court also found no error in admitting
evidence under Rule 404(b)/403 that the defendant traveled to Cuba shortly after
the robbery for the purpose of showing that he fled with the proceeds. And the Court found that the defendant's
attempt to exclude DNA evidence from the getaway car was moot because the
government did not introduce that evidence in trial.
Third, the Court upheld the denial of the defendant's motion
to subpoena the federal DNA database unit.
The defendant sought to access the DNA profile of another person under
Brady because other DNA had been discovered on the ski mask at the crime
scene. The Court reasoned that the DNA
profile would have, at best, excluded the other person as a contributor of the
DNA but could not have proven that his DNA was on the mask. And, even if the defendant could prove that, it
would have shown only that this person came into contact with the items, but
would not undermine that the defendant had worn the mask.
Fourth, the Court found the evidence sufficient to support
the convictions for Hobbs Act robbery and Hobbs Act conspiracy.
Fifth, applying plain error, the Court concluded that the
government did not improperly comment during closing argument on one of the
defendant's decision not to testify. The
Court found that the prosecutor's comment was instead about defense counsel's
failure to rebut or explain evidence.
Lastly, the Court upheld a four-level enhancement under
2B3.1(b)(2)(D) for "otherwise using" a dangerous weapon in the
commission of the robbery. The defendant
did more than brandish the firearm because he pointed it at a specific person
in an effort to create fear and facilitate compliance with a demand. And he also implicitly threatened another
person who was present. It did no matter
whether the defendant used a toy gun and pointed it at someone who was in on
the plot.
