Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, April 30, 2019

Hano: DNA Testing Exception to Statute of Limitations Applied, and Bruton Does not Apply to Non-Testimonial Statements

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.