United States Court of Appeals

For the Eighth Circuit

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No. 15-3828

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Liban Hassan

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: October 25, 2016

 Filed: December 21, 2016

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Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.

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BEAM, Circuit Judge.

Liban Hassan appeals his conviction, following a jury trial, for robbery in

violation of 18 U.S.C. § 1951, after he and three others stole approximately $150 in
cash and several cartons of cigarettes from a convenience store gasoline station. We

affirm the district court.1

I. BACKGROUND

The evidence adduced at trial indicated that Hassan and three associates, Yusuf

Xasan, Abdifatah Hashi, and Fuad Buraale, were driving around Omaha when they

formulated a plan to rob a gas station convenience store for cash and cigarettes. The

store clerk and Xasan testified for the government at trial. Xasan stated that as the

four were proceeding west through Omaha, the four of them ended up near the

targeted convenience store and began by breaking into and stealing from unlocked

cars in the neighborhood. Xasan testified that Hassan said they should go into the

convenience store and take cigarettes and cash, which Hassan alleged he had done

with success when living in Minnesota. Xasan testified that he parked the car at the

store so as to avoid the security camera sight lines. Xasan also left the car running

for a fast getaway. All four entered the store, and Buraale indicated he had a gun (but

apparently did not) and yelled, "where's the money?" Xasan grabbed the clerk at the

counter from behind, put some object next to the clerk's neck, and forced the clerk to

open both cash registers. Xasan and Buraale took approximately $150 in cash and

cartons of cigarettes. After robbing the store, the four went to Hassan'sresidence (he

was staying with his sister) and split the proceeds.

During the clerk's testimony at trial, the government offered Exhibit 1, a DVD

with video recordings of the robbery. The exhibit was a series of video clips, rather

than one continuous video. The government laid foundation for the video via

questions to the clerk who verified that the video clips (which he had viewed prior

to trial) were a fair and adequate description of what happened during the robbery.

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

1

for the District of Nebraska.

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Prior to trial, during discovery, defense counsel was provided with a DVD that

contained sixteen video angles ofthe robbery. However, at trial, the government only

showed two of these clips to the jury during the testimony of the clerk, Xasan, and

Hassan.

Nonetheless, one of the video clips shown at trial indicated that Hassan walked

out of the convenience store shortly after walking in, and stood outside the door of

the store. This video clip arguably supported both Hassan's defense theory that he did

not participate or know the robbery was going to happen, and also the government's

theory that Hassan helped secure the inside, and then went back outside to be the

lookout. According to the testimony elicited at trial, Hassan appears to be covering

his face while on video. Hassan stated on cross examination that he was doing so out

of disbelief of what was going on inside the convenience store.

At the close of the government's evidence, Hassan unsuccessfully moved for

judgment of acquittal pursuant to FederalRule ofCriminal Procedure 29. Hassan and

his sister testified during the defense portion of the trial. Hassan asserted that he did

not know his associates were going to rob the store and that is why he left

immediately after going in the store. He testified that he did not initially run away

because his cell phone was locked in the car, but when he later retrieved it, the phone

was dead. Nonetheless, Hassan's sister testified that Hassan called her early in the

morning, asked to stay at her house, and arrived there alone. Hassan again

unsuccessfully moved for judgment of acquittal at the close of his defense case.

During closing argument, defense counsel, still not realizing that the jury

would only be shown the two video clips shown during trial instead of the sixteen

clips he received during discovery, told the jury they could view a recording with

sixteen different angles of the robbery. At this point, the government objected. 

During a sidebar, defense counsel complained about the fact that the DVD being

offered into evidence at trial was a truncated version of what he was given during

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discovery. The district court gave a limiting instruction and the jury was only given

the DVD with the two video clips shown during trial. The jury deliberated and found

Hassan guilty of interference with commerce by means of robbery as charged in

Count 1 of the indictment. Hassan moved pursuant to Federal Rule of Criminal

Procedure 33 for a new trial, as relevant, arguing that it was error for the government

to offer a different DVD at trial than the one counsel received during discovery, and

that there was insufficient evidence to support the conviction. The district court

denied the motion. Hassan appeals.

II. DISCUSSION

Under Rule 29, the court "must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a).

Rule 29(c) permits defendants to move the court to set aside a verdict and enter

judgment of acquittal after trial; however, a district court has very limited latitude to

do so and must not assess witness credibility or weigh evidence, and the evidence

must be viewed in a light most favorable to the government. United States v. Stacks,

821 F.3d 1038, 1043 (8thCir. 2016). Federal Rule of Criminal Procedure 33(a) states

that "the court may vacate any judgment and grant a new trial if the interest of justice

so requires." As distinct from Rule 29, the court has broad discretion in deciding

motions for new trial, and its decision is subject to reversal only for a clear and

manifest abuse of discretion. United States v. Amaya, 731 F.3d 761, 764 (8th Cir.

2013). Also in contrast to Rule 29, in considering a motion for new trial, the court

need not view the evidence in the light most favorable to the verdict and it is

permitted to weigh the evidence and evaluate the credibility of the witnesses. United

States v. Knight, 800 F.3d 491, 504-05 (8th Cir. 2015). Nonetheless, motionsfor new

trials based on the weight of the evidence generally are disfavored, and the district

court's authority to grant a new trial should rarely be exercised. Id. at 504.

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Hassan argues that the government failed to establish the intent element of the

crime of interference with commerce by means of robbery. Specifically, Hassan

argues that the government failed to show that he knowingly robbed or aided and

abetted in the robbery of the convenience store. Hassan makes two primary

arguments; first, that he did not have the requisite mens rea for robbery (involving the

use or threatened use of force or violence), as the only discussion in the car involved

more of a shoplifting "grab and go" kind of crime. Second, Hassan makes a "mere

presence" argument–that his being at the scene of the crime cannot establish that he

knowingly robbed or aided and abetted in the robbery. See United States v. Reda,

765 F.2d 715, 719 (8th Cir.1985) ("[G]uilt cannot be inferred from . . . mere presence

at the scene of a crime or a mere association with members of a criminal

conspiracy."). In so doing, Hassan attacks Xasan's credibility. Hassan argues that

Xasan's testimony does not establish that the discussion in the car included the

possibility of either using or pretending to have a gun. Hassan also argues that Xasan

was an especially un-credible witness because he was the actual perpetrator of the

robbery and had motivation to lie to get a sentencing break. Hassan also points to

several instances wherein Xasan arguably contradicted himself on direct examination

and cross examination.

In evaluating a motion for judgment of acquittal, we cannot pass upon the

credibility of witnesses or the weight to be given their testimony, as this is uniquely

within the province of the trier of fact, and entitled to special deference. United

States v. Goodale, 738 F.3d 917, 923 (8th Cir. 2013). Of course, in evaluating

whether a new trial should be granted, we may evaluate the credibility of witnesses. 

Knight, 800 F.3d at 504.

Evidence in the record supports the jury's conclusion that Hassan had the

requisite mens rea and intent for robbery and was not merely present at the scene.

Xasan testified that Hassan came up with the idea to rob the convenience store. 

Video evidence indicated that Hassan entered the store with the three others, and then

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shortly thereafter waited outside the door. Xasan testified that Hassan left the

location in the vehicle with the three others and that Hassan personally received some

of the cash and cigarettes taken from the store. For the purposes of the Rule 29

motion, Xasan's testimony is viewed in the light most favorable to the verdict, and we

find there was sufficient evidence to support the verdict. Although Xasan testified

on cross examination that there was no discussion of force or the use of a gun, a

reasonable jury could have concluded that because the object of the crime was cash

and cigarettes, use of force or threatened force would reasonably be necessary to

complete the crime. Even if the four did not specifically mention an intent to use

force (real or pretend) when discussing the crime, the object of the caper belies any

notion that force would not be necessary. Cash and cigarettes are not out in the open

on shelving like gum or candy. Any "grabbing" of cash or cigarettes would

necessarily involve the use or threat of force, unlessthe foursomehow knew the store

employee would be complicit or completely uninterested in the crime. Finally, we

find nothing in the record to suggest that the interest of justice requires a new trial to

be granted under Rule 33.

Hassan also makesreference to the dispute over the video clips in his statement

of the case, alleging that "[b]ecause counsel for the government and defense counsel

were on different pages in terms of what digital evidence was on the key Exhibit, and

the Appellant was prejudiced as a result, the Appellant now seeks a judicial

determination ofthe lingering issue of whether or not such an inadvertentsuppression

of evidence justifies a new trial." There is no further mention of this argument in

Hassan's briefing; however, because the issue was cursorily raised in the opening

brief, we exercise our discretion to consider the arguments made to the district court

on this issue in the post-trial motions. 

The district court found that the government did not violate Brady v. Maryland,

373 U.S. 83 (1963), by virtue of its use of Exhibit 1 because the government had

disclosed the entire video prior to trial. Brady covers the suppression of evidence,

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id. at 86, not the use of evidence at trial that is packaged differently than it was during

pretrial disclosures, which is essentially what happened here. Prior to trial, defense

counsel was given a DVD with all the camera angle video clips, and the government

used only a portion of those clips at trial. Defense counsel alluded to a problem with

the way the government described the exhibit it was going to use, leading defense

counsel to believe that the entire DVD would be shown at trial. But that possibility

does not present a Brady issue. There is no question that Exhibit 1 was correctly

authenticated and that a proper foundation was laid for the exhibit. The district court

found there was "no evidence" that the government misled the court or the witness

or the defense team with regard to Exhibit 1, and we do not see anything in the record

to refute that notion.

III. CONCLUSION

Accordingly, we affirm Hassan's conviction.

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