Case: 18-10510 Date Filed: 04/30/2019 Page: 1 of 44 [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. Case: 18-10510 Date Filed: 04/30/2019 Page: 2 of 44 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 2 Case: 18-10510 Date Filed: 04/30/2019 Page: 3 of 44 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 ...
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