United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon review of Defendant Diosme
Fernandez Hano's Motions in Limine (Doc. 179) filed on
October 10, 2017. The Government filed its Response in
Opposition on October 13, 2017. (Doc. 185). The Court held a
final pretrial conference on October 19, 2017. The trial
commenced October 23, 2017. For the reasons stated on the
record, as well as those stated herein, the Court rules on
the motions in limine as follows:
case centers on the robbery of a Brink's Armored Vehicle
on November 30, 2009, where multiple individuals absconded
with over $1, 700, 000.00, leaving behind multiple pieces of
DNA-based evidence. (Docs. 3 at ¶¶ 8-9; 179 at 11;
185 at 5). One of the Defendants, Hano, then departed the
United States for Cuba via a private boat on or about January
13, 2010. (Doc. 185 at 6). In April 2014, Hano attempted to
re-enter the United States from Mexico through the Gateway to
the Americas Bridge in Laredo, Texas. (Doc. 185 at 6). In the
process, he submitted a sworn statement detailing the means
and manner of his travel between the United States, Cuba, and
Mexico. (Doc. 185 at 6). Subsequently, Hano and Co-Defendant
Reinaldo Arrastia-Cardoso were indicted. (Doc. 49).
HANO'S FIRST MOTION IN LIMINE
initially moves the Court to preclude the Government from
introducing testimony from the Government's expected
witness, Ruben Borrego-Izquierdo, about Hano's purported
spending in Cuba because (1) it is hearsay and (2) its
probative value is substantially outweighed by the danger of
unfair prejudice under Federal Rule of Evidence 403. This
testimony can be broken into two distinct categories. The
first category consists of statements made by Hano to
Borrego-Izquierdo, wherein Hano discussed his activities in
Cuba and allegedly incriminated himself in the robbery in
this case. The second category consists of
Borrego-Izquierdo's recollection of statements made by
Hano's relatives and various people in Cuba that Hano
came to Cuba with a great deal of money in 2010, and that he
spent lavishly on the island.
argues that the Government should be precluded from
introducing both categories of statements because they are
hearsay. In response, the Government argues that the
statements Hano made to Borrego-Izquierdo are not hearsay
because they are statements of a party opponent. The
Government also argues that Borrego-Izquierdo's
statements recounting what he had heard from Hano's
relatives and individuals in Cuba should be admissible
because they will not be introduced for the truth of the
matter asserted, but rather that the statements will be
introduced to add context to the conversation between
Borrego-Izquierdo and Hano, and to show the effect on Hano
when Borrego-Izquierdo told him what he had heard about
Hano's spending habits and inquired about where he had
received the money to finance the same. (Doc. 185 at 2-3).
is an out of court statement offered to prove the truth of
the matter asserted. Fed.R.Evid. 801(c)(1)-(2). A statement
is an oral or written assertion, or nonverbal conduct if the
actor intended it as an assertion. Fed.R.Evid. 801(a).
Hearsay within hearsay, or double hearsay, exists when there
is a hearsay statement that contains another hearsay
statement within it. See Zaben v. Air Products
& Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir.
1997). Double hearsay “is admissible only if each part
of the combined statements conforms with an exception to the
hearsay rule.” United States v. Robinson, 239
F. App'x 507, 508 (11th Cir. 2007). Notably, statements
made by a party and subsequently offered against that party
are not hearsay. Fed.R.Evid. 801(d)(2). By the same token,
“an out-of-court statement admitted to show its effect
on the hearer is not hearsay.” United States v.
Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015). This is
true because it is offered as a basis for inferring something
other than the matter asserted. See
United States v. Cruz, 805 F.2d 1464, 1478 (11th
Cir. 1986); see also United States v.
Manati, 2017 WL 2570005, No. 14-15294, at *3 (11th Cir.
June 14, 2017) (finding that a statement is not hearsay when
it was offered not to prove the truth of the matter asserted,
but instead to explain a subsequent course of conduct).
back to the matter at hand, Hano's comments to
Borrego-Izquierdo constitute statements of a party opponent
and are admissible as non-hearsay. That said, the
admissibility of the statements that Borrego-Izquierdo made
regarding what he heard from Hano's relatives or “a
lot of people” in Cuba is hearsay and inadmissible.
Hano argues that the testimony about his purported spending
in Cuba would foment class prejudice within the jury, and
thus should be excluded under Federal Rule of Evidence 403.
The Government counters that the evidence it intends to offer
will be highly probative and is admissible to prove a sudden
acquisition and use of wealth following an alleged robbery,
even if the source of that wealth has not yet been verified.
See United States v. White, 589 F.2d 1283,
1286 n. 7 (5th Cir. 1979). The Court agrees.
Eleventh Circuit has held that “a court's
determination of whether wealth evidence is relevant under
Rule 401, Fed. R. Evid., and whether the evidence's
probative value is substantially outweighed by its unfair
prejudice under Rule 403, Fed. R. Evid., must turn on the
specific facts of the case.” United States v.
Hope, 608 Fed.Appx. 831, 838 (11th Cir. 2015). Pursuant
to Rule 401, evidence is relevant if it has any tendency to
make a fact more or less probable than it would be without
the evidence and the fact is of consequence in determining
the action. Fed.R.Evid. 401(a)-(b). Pursuant to Rule 403,
“[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of .
. . unfair prejudice . . . .” Fed.R.Evid. 403.
the robbery occurred on November 30, 2009, and Hano allegedly
fled to Cuba on or about January 13, 2010 on a private boat.
Given that the testimony will allegedly touch on Hano's
purported spending in Cuba, which occurred subsequent to and
in close temporal proximity to the robbery, such evidence
will have a decided tendency to make his participation in the
robbery more likely, and will be of consequence in this
action. Similarly, it is plain that the probative nature of
this information outweighs any threat of unfair prejudice. As
such, the Court will allow statements made by Hano to
HANO'S SECOND MOTION IN LIMINE
moves to preclude the Government from introducing testimony
regarding his character and criminal history on the grounds
that it is both hearsay and improper character evidence based
on alleged prior bad acts. But the Government states that it
does not intend to introduce any such evidence unless Hano
were to take the stand and put his character in issue.