                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2984

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

W ILLIAM H AGLER,
                                              Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
                No. 10 CR 51—William C. Lee, Judge.



  A RGUED S EPTEMBER 5, 2012—D ECIDED N OVEMBER 21, 2012




 Before P OSNER, K ANNE, and SYKES, Circuit Judges.
  K ANNE, Circuit Judge. On August 15, 2000, two men
unsuccessfully tried to rob a bank in Woodburn, Indiana.
They fled before police could arrive, and, for years, they
remained at large. Then, in 2008, new DNA tests cracked
the case and tied defendant William Hagler to the
crime. Hagler was indicted for attempted bank robbery,
and a jury found him guilty. Hagler now appeals,
arguing that the government waited too long to indict
2                                           No. 11-2984

him, that the evidence was insufficient to convict him,
and that new DNA testing entitles him to a new trial.
We affirm.


                   I. B ACKGROUND
  On August 15, 2000, George Townsend awoke in the
morning and drove to work in Fort Wayne, Indiana—as
he did almost every morning. When he arrived, he parked
his white Pontiac Bonneville in a nearby lot and went
inside. When he came back out for lunch, the car was
gone. All that remained in its place was a pile of
broken glass.
  About fifteen miles away in Woodburn, Indiana,
George Townsend’s Pontiac slowly came to a stop next
to a branch of the National City Bank. Two armed men
stepped out. Wearing gloves, dark clothes, and Halloween
masks, they stormed inside the bank. “You know what
this is,” one of the men told the frightened customers
and employees. The other crossed the room and made
his way toward the vault. Their operation clearly had
been planned in advance. But the two would-be Dillingers
had a defect in their plan: they had no idea how to
open the bank’s vault. When this obvious oversight
dawned on them, their nerve failed; they fled without
taking a dime and made their getaway before police
could arrive.
  When police made it to the scene, they took statements
from the bank’s customers, the bank’s employees, and
several other witnesses who had watched the attempted
No. 11-2984                                                 3

robbery from outside the bank. Witnesses also provided
descriptions of the getaway car. Later that day, police
found George Townsend’s Pontiac idling in a trailer
park on the western edge of town. One of the back win-
dows had been smashed in, and its steering column
was broken open. Inside the automobile’s cabin, police
found Halloween masks, yellow-orange gloves, a fleece
jacket, and a gray sweatshirt. Townsend arrived later
and identified the car. He also confirmed that the
masks, gloves, and jackets did not belong to him. A
woman who witnessed the robbery also came to see the
Pontiac and identified it as the car used in the robbery.
  Police swept the car for forensic evidence. Investigators
recovered several latent prints from the automobile.
However, for reasons not disclosed in the record, the
fingerprints were not immediately analyzed. Investi-
gators also recovered a human hair from the gloves
found in the car and a DNA sample from one of the
masks. An analysis of the hair detected some DNA but not
enough for a full profile. The sample from the mask
showed a “mixed, ” partial profile, meaning the sample
contained incomplete DNA sequences from at least two
people. The profile was uploaded to Indiana’s DNA
database on May 25, 2001 and immediately started reg-
istering multiple “hits” (i.e., automatic reports of potential
matches) on unknown individuals. The profile remained
on the database until 2007, when it was removed for
collecting too many hits. The proceedings below did not
determine how many “hits” the DNA profile collected
before it was removed, but both sides represent, based
on evidence presented in a companion case involving
4                                              No. 11-2984

Hagler’s brother, that the number was about forty.
Without a definitive DNA identification, the case
went cold.
  Things heated up again in 2008, when the Indiana
State Police upgraded its equipment to allow for more
sensitive DNA testing and received grant funding to
revisit old cases. Investigators eventually worked their
way back to this case. A DNA analyst retested the hair
taken from the glove, and this time she was able to
extract a complete DNA profile. When she uploaded it,
the database “hit” on Hagler. Police picked him up
and collected a fresh DNA sample to confirm the initial
test. Hagler’s DNA indeed matched the DNA found in
the getaway car. Investigators also retested the sample
taken from the mask. This time, the test was able to
distinguish a “major contributor” from a “minor con-
tributor” in the mixed profile. The major contributor’s
DNA profile was uploaded to Indiana’s DNA database
and hit on William Hagler’s brother Shawn Hagler
(We will refer to William Hagler as “Hagler” and Shawn
Hagler as “Shawn” to avoid confusion). The minor con-
tributor’s profile contained insufficient genetic informa-
tion to allow for a match. Armed with this evidence,
police also reviewed the latent fingerprints lifted from
the stolen car. Of the seven recovered prints, only one
was of sufficient quality for analysis. It matched Hagler.
  Hagler and his brother Shawn were first indicted for
one count of attempted robbery (see 18 U.S.C. §§ 2 & 2113)
on October 28, 2009, but the district court later dismissed
the indictment without prejudice in light of Bloate v.
No. 11-2984                                               5

United States, 130 S. Ct. 1345 (2010). A second grand
jury indicted both men again on July 28, 2010, giving rise
to this case. Hagler moved to dismiss the indictment as
barred by the statute of limitations and unreasonable
delay, but the district court denied his motions. Because
Shawn was not arrested until November 11, 2010,
Hagler was tried first. Shawn’s case is still pending in
the district court.
  At Hagler’s trial, the government presented several
witnesses to the robbery. Although they disagreed on
some of the details, the witnesses generally identified
the perpetrators as two black males wearing dark clothing
and Halloween masks. Four witnesses also described
the getaway car as a white, four-door sedan consistent
with George Townsend’s Pontiac, and one specifically
identified Townsend’s car as the one used in the robbery.
A resident of the trailer park testified that, on the
morning of the attempted robbery, he saw two black
males drive into the trailer park in a dark car, transfer
some materials into a white car, and drive off. Stacy
Gray, a physical security consultant for the bank, testified
that the bank was FDIC insured at the time of the robbery.
The government also presented testimony from Connie
Evans Hanley, the mother of two children by Hagler.
Hanley testified that, around December 1998, she
and Hagler were talking in the Woodburn trailer park
together when Hagler mentioned how easy it would be
to rob a bank in Woodburn because the town was so
lightly policed. Finally, the government introduced
evidence that Hagler’s fingerprints were found on the
getaway car and that his DNA was found inside it.
6                                             No. 11-2984

Hagler elected not to present evidence of his own, and the
jury convicted him of one count of attempted bank rob-
bery. He now appeals, challenging the timeliness of his
prosecution, the sufficiency of the evidence against
him, and the district court’s decision not to grant him
a new trial in light of additional DNA testing.


                       II. A NALYSIS
A. Statute of Limitations
  Hagler’s first argument is that he was indicted after
the statute of limitations had run. The applicable statute
of limitations provides that, “[e]xcept as otherwise ex-
pressly provided by law, no person shall be prosecuted,
tried, or punished for any offense, not capital, unless
the indictment is found or the information is instituted
within five years next after such offense shall have
been committed.” 18 U.S.C. § 3282(a). Here, the aborted
robbery took place on August 15, 2000, and the opera-
tive indictment against Hagler did not issue until
July 28, 2010, nearly ten years later. Thus, Hagler
argues, his indictment was untimely, and his conviction
cannot stand.
   But, as both sides acknowledge, we cannot come to
this conclusion so easily. Section 3282(a) specifically
allows for exceptions to the general limitations period,
and the government argues that one of these exceptions
is in play here. Specifically, 18 U.S.C. § 3297 provides:
    In a case in which DNA testing implicates an
    identified person in the commission of a felony,
No. 11-2984                                                 7

      no statute of limitations that would otherwise
      preclude prosecution of the offense shall pre-
      clude such prosecution until a period of time
      following the implication of the person by
      DNA testing has elapsed that is equal to the other-
      wise applicable limitation period.
Id.
  The question, then, is when the limitations clock starts
ticking under § 3297. We defer to the district court’s
factual findings but ultimately decide the question de
novo. United States v. Hills, 618 F.3d 619, 634 (7th Cir.
2010). The government argues that the clock did not
start under § 3297 until a DNA test specifically identified
a single, individual person. Since Hagler’s DNA in this
case was not matched to the crime until 2008, the gov-
ernment reasons that the five-year clock did not start
ticking until 2008 and therefore Hagler’s 2010 indict-
ment was timely. Hagler, on the other hand, notes that
a limited, partial DNA profile was uploaded to the
DNA database at sometime in 2002. Once there, it started
collecting roughly forty “hits” to unknown individuals
before it was removed from the system in 2007. According
to Hagler, this means that about forty people were
“implicate[d]” in the crime beginning in 2002. As a
result, he concludes, the statute of limitations expired
in 2007, well before he was indicted.
  We think that the government has the better argument.
We begin with § 3297’s text, which, as discussed, pro-
vides that, where DNA testing “implicates an identified
person in the commission of a felony, no statute of limita-
8                                                No. 11-2984

tions that would otherwise preclude prosecution of the
offense shall preclude such prosecution until a period of
time following the implication of the person by DNA
testing has elapsed that is equal to the otherwise appli-
cable limitation period.” Hagler contends that the indefi-
nite article “an” in the phrase “implicates an identified
person” suggests that DNA evidence can implicate
more than one person under the statute. Thus, he
reasons, the multiple hits on the mixed DNA profile
starting in 2002 were all “implications” that triggered
§ 3297.
   We are not persuaded. It is true that the indefinite
article “an” generally implies the possibility of a larger
number than just one, see, e.g., United States v. Jain, 174
F.3d 892, 898 (7th Cir. 1999), but that alone does not
resolve the issue. The term “identified person” is singular,
suggesting one person. And the rest of the statute is
written using definite articles; it refers to “a” case and “a”
period of time following “the” implication of “the” person.
Taken together, these words all suggest that the DNA
evidence in question must be much more specific in
its identifications than Hagler’s reading allows.
  More importantly, to “implicate” someone of a crime
is to strongly tie that person to wrongdoing. To adopt
Hagler’s reading, we would have to hold that, when his
partial DNA profile hit on some forty different people,
every one of those people was “implicated” in the com-
mission of the a crime. That seems implausible to us. We
do not think that the other people on the list are fairly
described this way. Perhaps they comprised a list of
potential suspects, but they were not all “implicated” in
No. 11-2984                                                 9

the commission of a crime. Being implicated in a crime is
a serious thing. Surely it requires more than just a one-in-
forty chance.
   Of course, statutory interpretation also “depends
upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.” Dolan
v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). And we
think that § 3297’s evident purpose also supports
our reading. It should come as no surprise these days
that DNA evidence is special. “Modern DNA testing
can provide powerful new evidence unlike anything
known before.” Dist. Attorney’s Office for the Third
Judicial Dist. v. Osborne, 557 U.S. 52, 62 (2009). “DNA
is the most reliable evidence of identification—stronger
even than fingerprints or photographs,” Green v. Berge,
354 F.3d 675, 679 (7th Cir. 2004), and “there is no tech-
nology comparable to DNA testing for matching
tissues when such evidence is at issue,” Osborne, 557
U.S. at 62.
  This unique reliability explains why Congress enacted
§ 3297. Statutes of limitations exist, in part, to protect
people from having to defend against charges where
“the basic facts may have become obscured by the
passage of time.” Toussie v. United States, 397 U.S. 112, 114-
15 (1970); see also United States v. Daniels, 387 F.3d
636, 643 (7th Cir. 2004). But properly stored DNA
evidence, unlike most other kinds of evidence, can main-
tain its reliability for decades. See, e.g., Banks v. Workman,
692 F.3d 1133, 1137-38, 1151 (10th Cir. 2012) (affirming
10                                              No. 11-2984

denial of habeas corpus relief where petitioner was con-
victed using DNA testing performed “[n]early two de-
cades” after the crime). Thus, when DNA evidence is
available, the reasons for having a statute of limitations
are significantly attenuated. Or, put another way, § 3297
extends the limitations period in DNA cases because
DNA evidence is uniquely precise. It would be odd,
then, to apply § 3297 where DNA profile lacks this preci-
sion, as was the case with the first DNA test here. Indeed,
it turned out that this particular sample did not identify
Hagler at all; it later matched conclusively to his brother
Shawn. Given the high level of precision that § 3297 is
premised on, we think that, in the vast majority of cases,
DNA evidence will “implicate” someone only when, as
here, it matches to a single, identified person.
  At oral argument, the government urged us to adopt
an even brighter line: that DNA evidence “implicates”
someone under § 3297 only if it matches to a single, identi-
fied person. We sympathize with the government’s
desire for certainty. Nevertheless, we are apparently
the first appellate panel in the country to interpret § 3297,
and we decline to adopt such a broad holding. While
forty matches is surely too many to “implicate” someone,
we can still imagine unusual cases where DNA evidence
might be said to “implicate” more than one person.
Suppose, for example, the defendant had an identical
twin. In such a case, any DNA evidence would neces-
sarily match two people, but still might be said to “impli-
cate” them both. We expect that such exceptions will
occur rarely. But we do not want to rule out the possibility
No. 11-2984                                                11

of them ever occurring at all, particularly so early in
the game.
  One final point to address before moving on: Hagler
argues in the alternative that, even if we interpret § 3297
against him, we should still reverse his conviction
because § 3297 is void for vagueness. This argument
appears only in a footnote, and that fact alone would
justify declining to address it. See Long v. Teachers’ Ret.
Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009). In any event,
we do not think that § 3297 is vague. As our previous
discussion indicates, § 3297 is perfectly susceptible to
reasoned interpretation. Accordingly, we also reject
Hagler’s alternative argument.


B. Excessive Pretrial Delay
  Hagler next argues that the pre-indictment delay in
his case was unconstitutionally excessive. The district
court denied Hagler’s request to dismiss the case for
unreasonable pre-indictment delay, and we review
that decision for abuse of discretion. United States v.
McMutuary, 217 F.3d 477, 481 (7th Cir. 2000).
  The primary safeguard against unreasonable prosecuto-
rial delay is the statute of limitations, not the Constitu-
tion. Id. Nevertheless, “ ‘we have also noted that the
Fifth Amendment’s due process clause plays a limited
role in assuring that the government does not subject a
defendant to oppressive delay.’ ” Id. (quoting United States
v. Spears, 159 F.3d 1081, 1084 (7th Cir. 1998)). Hagler bears
the burden of demonstrating that the delay caused actual
12                                                No. 11-2984

and substantial prejudice to his right to a fair trial. See id.
at 481-82. This burden “is an exacting one; the showing
must rest upon more than mere speculative harm,” id. at
482, and Hagler must present “facts that are specific,
concrete, and supported by evidence.” United States v.
Henderson, 337 F.3d 914, 920 (7th Cir. 2003). If he were to
make this showing, the burden would shift to the gov-
ernment “to demonstrate that the ‘purpose of the delay
was not to gain a tactical advantage over the defendant
or for some other impermissible reason.’ ” Id. (quoting
McMutuary, 217 F.3d at 482). The court then balances
the government’s reasons and the defendant’s prejudice
to determine whether the defendant was denied due
process. Id.
  Hagler has not cleared the first hurdle. Hagler
identifies three general ways in which he believes the pre-
indictment delay prejudiced him, but we do not think
that any of them cause him any actual and substantial
disadvantage. First, Hagler notes that some of the
physical evidence had degraded by the time of trial;
specifically, one of the Halloween masks had “degraded
quite a bit” and become “brittle.” But Hagler does not
even suggest, much less demonstrate, how this im-
peded his ability to defend himself. Similarly, Hagler
complains that he was not able to present the jury with
the list of “hits” generated by his initial, mixed DNA
profile because the list was deleted in 2007. But another,
apparently more-accurate DNA test was later per-
formed on the same genetic material, and that test
matched the material to Shawn, not to Hagler. Given that
No. 11-2984                                              13

Hagler later received the results of a second, more-accurate
test, we do not believe that he was prejudiced by
missing out on the results of the first test.
  Third and more generally, Hagler argues that he was
prejudiced because the witnesses’ memories have faded
over time, and, as a result, they disagreed on various
details at trial. But the mere fact that memories have
faded is not enough to establish excessive delay. Id. at
920; see also United States v. Baker, 40 F.3d 154, 157 (7th
Cir. 1994) (statutes of limitations reflect “a legislative
judgment that so long as prosecutions are brought within
the designated timeframe, then, notwithstanding the
possible loss of crucial evidence or failure of memory, a
defendant will be able to adequately defend himself”);
United States v. Koller, 956 F.2d 1408, 1414 (7th Cir. 1992)
(rejecting defendant’s speedy trial claim because his
“general allegation that his witnesses’ memories faded
during the delay does not rise to the level of specificity
required to show actual prejudice”). Here, some of the
government’s witnesses failed to remember specific details
or contradicted each other on insignificant factual matters,
but all of the witnesses told the same basic story. More-
over, Hagler was able to bring all of these issues to the
jury’s attention through argument and cross-examination.
And, most importantly, none of the witnesses’ faded
recollections calls into question the significant DNA and
fingerprint evidence against him. Accordingly, Hagler has
not shown that the pre-indictment delay prejudiced him,
and the district court did not abuse its discretion by
declining to dismiss the case.
14                                              No. 11-2984

C. Sufficiency of the Evidence
  Hagler’s next claim is that the government did not
prove that National City Bank was federally protected
at the time of the attempted robbery. The federally pro-
tected status of the victim bank is an essential element
of bank robbery. 18 U.S.C. § 2113(a), (f); United States
v. Locklear, 97 F.3d 196, 199 (7th Cir. 1996). Here, the
government argued that the federal protection took the
form of FDIC insurance. Thus, the government had
to provide enough evidence such that a reasonable jury
could find that the bank was FDIC insured at the time
of the robbery. Locklear, 97 F.3d at 199; United States v.
Higgans, 507 F.2d 808, 813 (7th Cir. 1974). The govern-
ment did so with two pieces of evidence: (1) the
bank’s FDIC certificate; and (2) the testimony of one of
the bank’s employees.
  Hagler contends that this evidence is insufficient
because an FDIC certificate alone is not enough to
prove federal protection and because the employee’s
testimony was not supported with enough detail. We
disagree. True, we have previously held that an FDIC
certificate, taken alone, did not demonstrate that a
bank was FDIC insured because it did not establish that
the bank was insured at the time of the robbery. See
United States v. Shively, 715 F.2d 260, 265 (7th Cir. 1983).
But we have also held that an FDIC certificate, together
with a bank employee’s testimony based on personal
knowledge, are sufficient to support a conviction. See, e.g.,
United States v. Hampton, 464 F.3d 687, 688 (7th Cir. 2006)
(“The bank employees who testified about their banks’
No. 11-2984                                             15

insured status testified that the banks were currently
insured, and the jury was entitled to believe their testi-
mony.”); Higgans, 507 F.2d at 813 (testimony of bank
vice president and FDIC certificate sufficient to estab-
lish FDIC insurance); cf. United States v. Taylor, 728
F.2d 930, 933 (7th Cir. 1984) (holding that “uncon-
troverted” testimony by bank’s vice president, even
without FDIC certificate, was sufficient to establish
FDIC insurance). Here, Stacy Gray, a physical security
consultant for the bank, specifically testified that the
bank was FDIC insured on the day of the robbery
and that its FDIC certificate had been maintained in the
ordinary course of the bank’s business. Because a jury
could reasonably find that the bank was FDIC insured
based on this testimony, see Hampton, 464 F.3d at 688;
Taylor, 728 F.2d at 933; Higgans, 507 F.2d at 813, we
reject Hagler’s argument.


D. Declining to Grant Hagler’s Motion for a New Trial
   Finally, Hagler contends that the trial court abused
its discretion when it declined to grant his motion for
a new trial. Hagler notes that a gray sweatshirt and
a black jacket were found inside the getaway car.
Neither was DNA tested before Hagler’s trial. But, in
February 2011, both were tested in preparation for
Shawn’s trial. The testing report indicated that
the DNA obtained from the gray sweatshirt “demon-
strated the presence of a mixture from which at least
two individuals cannot be excluded as possible contribu-
tors.” However, the report also found that “[n]o conclu-
16                                             No. 11-2984

sion can be drawn as to whether William Hagler . . . or
Shawn Hagler . . . could be possible contributors to
the mixture.” As for the samples taken from the
black jacket, the report found that the samples “failed
to demonstrate a sufficient quality of DNA for further
analysis.”
  Hagler argues that these inconclusive tests would
have created grave doubt of his guilt had they been
introduced to the jury, but we are not persuaded.
Federal Rule of Criminal Procedure 33(a) gives district
courts the discretion to grant a new trial “if the interest
of justice so requires.” The rule is “reserved for only
the most extreme cases,” United States v. Linwood, 142
F.3d 418, 422 (7th Cir. 1998) (internal quotation marks
omitted), and we “approach such motions with great
caution and are wary of second-guessing the determina-
tions of both judge and jury,” United States v. McGee, 408
F.3d 966, 979 (7th Cir. 2005). To show that the interest of
justice requires a new trial, a defendant must provide
evidence that (1) came to his knowledge only after trial;
(2) could not have been discovered sooner through the
exercise of due diligence; (3) is material and not merely
impeaching or cumulative; and (4) would probably
lead to an acquittal in the event of a retrial. Id.
  We need not address all four requirements here; the
fourth will suffice. Hagler’s fingerprint was found out-
side the getaway car, and his DNA was found inside it.
Both of these facts were powerful evidence against
him. And, contrary to Hagler’s suggestion, the introduc-
tion of further, inconclusive DNA testing would not
No. 11-2984                                           17

have undermined this evidence. Suppose that instead of
DNA evidence, the government offered five eyewit-
nesses who all saw the perpetrator’s face during the
robbery and identified him at trial. Then suppose that,
after the jury found him guilty, it came to light that
two other witnesses saw the robbery, but neither could
identify the perpetrator because they did not get a good
look at his face. The testimony of those new witnesses
would not disprove the testimony of the trial witnesses;
it would simply fail to lend it further support. As such,
it would be evidence of innocence only in the most at-
tenuated sense. The absence of proof (or, more ac-
curately here, the absence of further proof) is not proof
of absence. Cf. Denson v. United States, 574 F.3d 1318,
1343 (11th Cir. 2009).
  Hagler’s DNA and fingerprints were strong proof of
his guilt. The mere fact that his DNA was not found in
greater abundance does little to undermine this proof.
Thus, we do not think that it would probably result in an
acquittal if presented to a jury, and we certainly do not
think that the district court abused its discretion in so
holding.


                   III. C ONCLUSION
 We A FFIRM Hagler’s conviction.




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