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United States v. Hano

United States District Court, M.D. Florida, Fort Myers Division

October 31, 2017

UNITED STATES OF AMERICA
v.
DIOSME FERNANDEZ HANO and REINALDO ARRASTIA-CARDOSO

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.

         This 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:

         BACKGROUND

         This 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).

         A. HANO'S FIRST MOTION IN LIMINE

         Hano 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.

         Hano 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).

         Hearsay 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).

         Turning 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.

         Next, 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).[2] The Court agrees.

         The 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.

         Here, 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 Borrego-Izquierdo.

         B. HANO'S SECOND MOTION IN LIMINE

         Hano 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. ...


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