It's All in the Dna—how United States v. Hano Extends the Statute of Limitations for the Eleventh Circuit

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 71 No. 4

It's All In The DNA—How United States v. Hano Extends the Statute Of Limitations for the Eleventh Circuit

Caroline Walker

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It's All In The DNA—How United States v. Hano Extends the Statute Of Limitations for the Eleventh Circuit^*

I. Introduction

It is likely that most professionals in all industries would agree that technology is rapidly evolving, most considering that assertion as a major understatement and some struggling to balance the variety of changes. In the legal realm, the DNA revolution has impacted both criminal prosecution and defense, specifically wrongful convictions, exonerations, proof of guilt at trial, and the reopening of cold cases. For example, since the first DNA exoneration in 1989, there have been 367 DNA exonerees in thirty-seven states to date.¹ Forty-four percent of the exonerations involved misapplication of forensic science.² Other law enforcement tools, such as rape kits or fingerprinting, have also benefited significantly as a result of the DNA revolution. But how will DNA technology continue to make its mark?

The decision from the united States court of Appeals for the Eleventh Circuit in United States v. Hano³ signifies how much DNA technology and scientific advances are affecting the law, cases, and society. Theoretically, the holding in Hano enables prosecutors to reopen cases closed due to the lack of sufficient DNA tools and evidence that were necessary to proceed. In criminal cases, the statute of

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limitations normally and routinely commences at the time of the crime, however, with the Hano decision, the statute of limitations will now commence at the time that the testing of DNA implicates the alleged criminal.⁴ This shift in the initiation of statute of limitations significantly alters previous and future criminal proceedings.

Hano involves a couple of matters of first impression for the Eleventh Circuit, one including the DNA evidence and its effect on statute of limitations.⁵ On the first issue, the court of appeals held that the indictment was returned within the applicable limitation period due to 18 U.S.C. § 3297⁶ and the implications of the DNA testing from the defendant.⁷

II. Factual Background

Diosme Fernandez Hano and Reinaldo Arrastia-Cardoso were convicted of robbery and conspiracy to commit robbery under the Hobbs Act⁸ , for the robbery of $1.7 million from an armored truck.⁹

"On November 30, 2009, Hano and Arrastia-Cardoso robbed a Brink's armored truck" on duty in Fort Myers, Florida. While the truck operators, Jimmy Ortiz and Bernard Meaney, were at Fifth Third Bank, a man in a ski mask held Ortiz at gunpoint and forced Ortiz back into the truck. A second masked man "entered the truck, grabbed bags of money, and exited." Once Meaney saw the Pontiac getaway car behind the Brink's truck, he reversed and rammed the car with the Brink's truck. One of these collisions caused one of the robbers to leave behind his ski mask as the masked man fled the scene.¹⁰

Investigators and a DNA analyst tested the ski mask and gun grip that were left behind at the scene and found a "major profile on the outside of" the items. A major profile is created "when there is significantly more DNA from one contributor than any other in the

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mixture of DNA recovered and makes it possible to identify that contributor."¹¹

Originally, Hano and Arrastia-Cardoso were not listed as primary suspects in the case until September 2014, when Ruben Borrego Izquierdo (facing unrelated charges) shared information with the Federal Bureau of Investigation regarding the armed robbery in question. Izquierdo stated that Hano, who grew up in the same Cuban village as Izquierdo, told Izquierdo that Hano robbed an armored truck with Arrastia-Cardoso in 2009. Hano included the detailed facts of Ortiz, the purchase of the car, the vehicle identification number, and what Hano purchased with the stolen money.¹²

In 2015, Hano and Arrastia-Cardoso became prime suspects in the investigation and investigators received both of their DNA samples. "Hano's DNA [sample] matched the major DNA profile from the ski mask," and Arrastia-Cardoso's "matched the major profile on the gun grip." Regarding the probability factors of the DNA samples, the government analyst determined less than one in 700 billion chance that the suspects' DNA profiles would match a random person's DNA profile.¹³

In 2016, Hano and Arrastia-Cardoso were indicted and convicted for Hobbs Act robbery and conspiracy to commit Hobbs Act robbery.¹⁴

The present case was first heard in the United States District Court for the Middle District of Florida in 2016 and in 2017.¹⁵ There, Hano made a substantial effort to emphasize his claim that since the car was destroyed, he did not have the same opportunity to examine the evidence recovered from the getaway car, and therefore his Due Process and Fifth Amendment rights had been violated.¹⁶ Hano also contended that the DNA evidence found on the vehicle should not be admissible or reliable because the profile on the car "had a match frequency of one in twenty people."¹⁷ However, Judge Chappell for the district court, quoted the Supreme Court of the United States from Arizona v. Youngblood,¹⁸stating "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not

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constitute a denial of due process of law."¹⁹ In conclusion, the district court denied Hano's motion in limine in regards to the DNA implication in Hano's effort to preclude the government from introducing the DNA profile into evidence.²⁰

III. Legal Background

A. Length of Limitations Period

According to Criminal Resource Manual 650,²¹ "federal law contains a single statute prescribing a general period of limitations, as well as several statutes that provide longer periods for specific offenses."²² The length of the statute of limitations will vary on whether or not the crime committed was a capital offense, non-capital offense, terrorism offense, financial institution offense, violations of nationality, conspiracy to violate such laws, and more.²³ For example, Section 3282 of Title 18 of the United States Code²⁴ contains the general application of statute of limitations for various offenses.²⁵ To give an idea of the wide variety of length, § 3282 "states that, '(e)xcept as otherwise expressly provided by law,' a prosecution for a non-capital offense shall be instituted within five years after the offense was committed," while 18 U.S.C. § 3281²⁶ applies to capital offenses that may be "punishable by death" and "may be filed at any time."²⁷ Section 3286 "provides for an eight (8) year statute of limitations for the non-capital offenses under certain terrorism offenses," including aircraft destruction, airport violence, violent crimes against Congresspersons or Cabinet officers, willful injury to government property, and more.²⁸ Section 3293 of Title 18 "provides for a ten (10) year statute of limitations for" offenses regarding certain financial institutions "which involve violations of, or

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conspiracy to violate."²⁹ While it may seem as though the standard period for statute of limitations may be five years, it is clear that those timeframes vary greatly depending on the different crime or offense that may have been committed.

B. Theories Surrounding Statute of Limitations

In Toussie v. United States,³⁰ the Supreme Court described statutes of limitations, its justifications and, its purpose for the criminal justice system for various cases.³¹ Statutes of limitations serve "to limit exposure to criminal prosecution to a certain fixed period of time" in an effort "to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past."³² The Court continued by stating Congress's intent and policy-based reason "that the statute of limitations should not be extended 'except as otherwise expressly provided by law'" according to 18 U.S.C. § 3282.³³ More than fifty years later, in relying on the Toussie decision, the Supreme Court once again evaluated statute of limitations and stated that such a "defense does not call the criminality of the defendant's conduct into question, but rather reflects a policy judgment by the legislature that the lapse of time may render criminal acts ill suited for prosecution" in Smith v. United States.³⁴

C. The Roadmap to Congress's Enactment of 18 U.S.C. § 3297³⁵

On October 30, 2004, Congress enacted 18 U.S.C. § 3297. This statute was originally enacted to protect the reliability of evidence like DNA testing in criminal cases.³⁶ The enactment of 18 U.S.C. § 3297 "extends the limitations period in DNA cases because DNA evidence is uniquely precise."³⁷ By enacting protection of DNA evidence, cases that have been deemed "cold cases" or have lost ground due to inadequate evidence or proof, now have the ability to be reopened for further

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investigation and progress.³⁸ However, there was a significant Supreme Court decision that led to the enactment of 18 U.S.C. § 3297.³⁹ Only one year prior to Congress's enactment of § 3297, the Supreme Court held in Stogner v. California⁴⁰ "that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution."⁴¹

In Stogner, the Supreme Court assessed ex post facto clauses⁴² and their constitutionality in a criminal case.⁴³ The issue in question presented before the Court centered around a new California statute authorizing criminal prosecutions where the passage of time had been barred and "was enacted after prior limitations periods for Stogner's alleged offenses had expired."⁴⁴ In the Court's opinion and analysis, Justice Breyer first stated that the California statute results in the...