United States v. Winans ( 2021 )

Case: 19-30356 Document: 00515772580 Page: 1 Date Filed: 03/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 9, 2021
No. 19-30356 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Dwayne Winans, Jr.; Bryson Tuesno,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CR-175-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Following a jury trial, Defendant-Appellant Dwayne Winans, Jr., was
convicted of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a),
two counts of carjacking, in violation of 18 U.S.C. § 2119, and four counts of
brandishing a firearm during and in relation to a crime of violence, in
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-30356
violation of 18 U.S.C. § 924(c). He was sentenced to 360 months of
imprisonment, followed by a five-year term of supervised release.
Codefendant-Appellant Bryson Tuesno was convicted of two counts of
armed robbery and two counts of brandishing a firearm during and in relation
to a crime of violence and was sentenced to 180 months and one day of
imprisonment, followed by a three-year term of supervised release. They
both appeal.
As his sole issue on appeal, Winans contends that the district court
erred in denying his motion to dismiss his indictment, alleging a violation of
his rights under the Speedy Trial Act. Although Winans’s indictment issued
44 days after his arrest, 15 of those days were excludable, 10 for his transfer
from another district, see 18 U.S.C. § 3161(h)(1)(F), and five for the pendency
of the Government’s pretrial motion for detention, filed on Wednesday,
August 24, 2016, and heard on Monday, August 29, 2016. See
§ 3161(h)(1)(D); United States v. Gonzalez-Rodriguez, 621 F.3d 354, 368-69
(5th Cir. 2010).
Winans here renews his assertion that the delay in holding a hearing
on the Government’s pretrial motion for detention violated the Bail Reform
Act and, pursuant to that act, the Government was entitled to no more than
three excludable days, including weekends. His argument is not well-taken.
His reliance on United States v. Tinklenberg, 563 U.S. 647 (2011), is
misplaced: That case did not involve the specified delays under the Bail
Reform Act. That statute requires that weekends and legal holidays be
excluded from the relevant three-day period, see 18 U.S.C. § 3142(f)(2), so
the district court correctly determined that there was no violation of the Bail
Reform Act. Only 29 countable days of the speedy trial clock had lapsed at
the time his indictment issued, so Winans fails to show a violation of the
Speedy Trial Act. The district court did not err in denying his motion to
dismiss the indictment.
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Tuesno contends that the evidence was insufficient to support his
convictions; specifically, that there was insufficient evidence to establish his
identity as one of the two bank robbers. He complains about the lack of direct
forensic or eyewitness evidence linking him to the crime scenes, but his
complaint is without merit. See United States v. Royals, 777 F.2d 1089, 1091
(5th Cir. 1985). When the circumstantial evidence is viewed in the light most
favorable to the prosecution, it was sufficient for reasonable jurors to find that
Tuesno was one of the two men who attempted to rob the Regions Bank and
who robbed the Gulf Coast Bank on August 15, 2016. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Percel, 553 F.3d 903, 910 (5th Cir.
2008); United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).
Tuesno also contends that the Government impermissibly called
Gabriel as a hostile witness to impeach her with her prior statements to Agent
Plummer. Tuesno urges that, because the Government knew Gabriel would
be hostile, its attempt to impeach her with her otherwise inadmissible hearsay
statements to Agent Plummer amounts to reversible error. He relies on
United States v. Hogan, 763 F.2d 697, 702 (5th Cir.), opinion withdrawn in part
on other grounds, 771 F.2d 82 (5th Cir. 1985).
True, the Government “may not call a witness it knows to be hostile
for the primary purpose of eliciting otherwise inadmissible impeachment
testimony.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 760 (5th Cir.
2008) (internal quotation marks and citation omitted). However, absent
“something in the record to ground a finding that the Government’s
‘primary purpose’ in calling [the witness] was to elicit otherwise
impermissible evidence through impeachment,” we will not find error. Id.Tuesno also asserts that the Government knew Gabriel would be
hostile and announced to the jury at the outset that it was calling Gabriel as
a hostile witness, intending to treat her as such. However, that assertion is
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belied by the record, which, as the district court found, shows that the
Government called Gabriel with the expectation that she would testify
consistently with her prior statements. The instant case is thus
distinguishable from Hogan. See 763 F.2d at 702. Moreover, despite
Gabriel’s memory problems, the Government was able to confirm through
her testimony that she had purchased the Chevrolet Monte Carlo in question
jointly with Tuesno and that the car was registered in both of their names.
There is thus no support in the record for the contention that the
Government’s “primary purpose” in calling Gabriel was to impeach her. See
Cisneros-Gutierrez, 517 F.3d at 760.
The claim also fails because the district court found Agent Plummer’s
testimony about Gabriel’s prior statements to be otherwise admissible under
FED. R. EVID. 803(2) and FED. R. EVID. 801(d). See Cisneros-Gutierrez,
517 F.3d at 760. Tuesno conclusionally states that this was error, but he briefs
no argument and cites no authority in support and has thus abandoned any
challenge to those rulings. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
For the foregoing reasons, the district court’s judgments are
AFFIRMED.
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