United States v. Alexander

Case: 21-30720 Document: 00517029575 Page: 1 Date Filed: 01/11/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

January 11, 2024

No. 21-30720

Lyle W. Cayce

____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Dwight Alexander,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CR-197-1

______________________________

Before Stewart, Dennis, and Wilson, Circuit Judges.

Per Curiam:*

Defendant-Appellant Dwight Alexander was convicted by a jury of

conspiracy to possess heroin and cocaine hydrochloride, distribution of

heroin, possessing a firearm as a felon, and structuring transactions to evade

federal reporting requirements. He now appeals, raising two issues: (1)

whether the district court abused its discretion by admitting evidence of

Alexander’s prior testimony; and (2) whether there is sufficient evidence

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 21-30720

against him for this court to uphold his drug conspiracy conviction. For the

following reasons, we AFFIRM.

I. Factual and Procedural Background

Alexander was originally charged in October 2016 by a one-count

complaint with possessing a firearm as a felon following a warranted search

of his house. During that search, the police found a firearm, large quantities

of chemicals frequently used as cutting agents for narcotics, and cash. After

the initial charge, Alexander met with investigators to discuss his options.

According to a November 3, 2016, e-mail memorializing plea negotiations,

the Government offered to not seek additional charges against Alexander if

he agreed to (1) plead guilty to a two-count bill of information charging him

with conspiring to distribute heroin and possessing a firearm as a convicted

felon; (2) not contest the forfeiture of certain assets; and (3) cooperate with

the Government. The e-mail also noted that if Alexander’s cooperation rose

to the level of “substantial assistance,” the Government would move the

district court for a downward departure from the U.S. Sentencing Guidelines

at the time of his sentence. Consistent with that e-mail, Alexander then filed

a document waiving his right to be charged by an indictment on November 8,

2016. The Government filed a bill of information the following day, charging

Alexander with two counts: conspiracy to distribute heroin and possessing a

firearm as a felon. On November 10, Alexander was arraigned before a

magistrate judge and entered a plea of not guilty to both counts. A couple of

weeks later, the Government sent Alexander a formal plea agreement and

factual basis consistent with their previous discussions. On December 14,

Alexander filed a motion to substitute counsel and continue the case, which

the court promptly granted.

After retaining new counsel, Alexander continued to cooperate with

investigators. As part of his cooperation, he assisted the Government with its

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investigation and prosecution of one of his co-conspirators, Cornell

Pendleton. During a proffer prior to Pendleton’s trial, while accompanied by

his new attorney, Alexander told government agents that while visiting a

barbershop frequented by drug dealers, he learned about a product called

superior mannitol, a cutting agent for narcotics. After doing some research

on the product, Alexander reportedly found that selling cutting agents to

drug dealers could be a lucrative enterprise, and he began buying, packaging,

and selling them in bulk. Specifically, he labeled his combination of cutting

agents as “Bonita,” which he sold for $1,000 per kilogram. Alexander also

informed investigators during that proffer that he could mix Bonita in two

colors: white for cutting cocaine and brown for cutting heroin.

On April 25, 2017, Alexander testified at Pendleton’s criminal trial as

a government witness. Alexander made multiple self-incriminating

statements during his testimony, including that he sold his Bonita to cocaine

and heroin dealers with the knowledge that they were using the product to

cut narcotics. He also admitted that he was guilty of conspiring to distribute

heroin and feloniously possessing a firearm. During his testimony, Alexander

acknowledged that he had yet to sign his plea agreement with the

Government, but “was trying to get everything in order to facilitate and

finalize everything.” He noted in his testimony that his plea agreement “goes

out the door” if he were to lie on the stand—due to the cooperation

requirement—and that he would be charged with perjury and serve “two

years extra time.” Alexander also stated that although he intended to sign the

plea agreement, he could still continue with his initial not guilty plea at that

time.

After the Pendleton trial, Alexander changed counsel again and began

to have second thoughts about his plea agreement, which he formally rejected

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during a Frye1 hearing on October 24, 2017. During the Frye hearing, the

district court discussed the terms of the proposed plea agreement. Alexander

confirmed that he understood that the Government was no longer bound by

it should he choose to go to trial and that the Government was likely to add

additional charges. Nevertheless, he rejected the plea agreement. On

December 8, 2017, the grand jury returned a superseding indictment,

charging Alexander with five total counts: the two counts contained in the

bill of information, as well as two counts of distributing heroin, and one count

of possession of a firearm in furtherance of a drug trafficking crime. That

same day, apparently proceeding pro se, Alexander filed a document

criticizing his current and former attorneys and accusing them of tricking him

into waiving the indictment. He also claimed for the first time that prior to

testifying in the Pendleton trial, a government attorney met with him,

rehearsed his testimony, and informed him he had immunity as a result of his

testimony.

On January 26, 2018, a grand jury returned another superseding

indictment, containing the five counts in the previous indictment and a sixth

count of structuring to avoid bank reporting requirements under 31 U.S.C. §

5234(a)(3), (d)(2). After again obtaining new counsel, Alexander filed a

motion in limine to exclude his Pendleton trial testimony. He argued that on

the day of the Pendleton trial, the U.S. Marshals brought him to the

courthouse, where he met with Assistant United States Attorney William

McSherry (AUSA) prior to testifying. The motion alleged that “McSherry

expressly promised Mr. Alexander that he need not be nervous about

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1

Missouri v. Frye, 566 U.S. 134, 142 (2012) (explaining that the hearing provides an

opportunity to establish on the record “the defendant’s understanding of the plea and its

consequences” and “affords . . . substantial protection against later claims that the plea was

the result of inadequate advice”).

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testifying because he would be granted immunity against further

prosecution.”

In response, the Government argued that no such promises were

made, submitting affidavits from both the AUSA and a U.S. Drug

Enforcement Administration case agent (who was also present during

meetings with Alexander) stating that they never promised immunity and

that Alexander was eager to testify in the hopes that the Government would

move for a downward departure during his sentencing.

The district court denied the motion in limine. It found that there was

not “an inkling of evidence showing that there was a meeting of the minds

regarding a grant of immunity.” Further, “[Alexander]’s testimony from the

Pendleton trial makes clear that [he] knew the government was offering a

favorable plea agreement in exchange for his testimony rather than any sort

of immunity.” Alexander’s case proceeded to trial.

At trial, Alexander proceeded under the theory that he was a

legitimate businessman selling a lawful substance and was not involved in a

drug conspiracy. In addition to the Pendleton trial testimony transcript, the

evidence against him included testimony of several drug dealers who bought

Bonita directly from Alexander, large quantities of Bonita and cash seized

from Alexander’s residence pursuant to a search warrant, and Alexander’s

own testimony that he knew drug dealers were buying Bonita. Alexander’s

counsel objected to the introduction of the Pendleton testimony again during

trial, which the district court overruled. Alexander also moved for acquittal

at the close of the Government’s case, which the court denied.

The jury found Alexander guilty of conspiracy to distribute heroin and

cocaine hydrochloride, two counts of distributing heroin, possession of a

firearm as a felon, and structuring transactions to evade federal reporting

requirements. It found him not guilty of possessing a firearm in furtherance

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of a drug trafficking crime. After the verdict, Alexander again moved for

acquittal, which the court again denied. The district court sentenced him to

136 months in prison for the drug conspiracy and concurrent 120-month

terms for the remaining counts. Alexander timely filed a notice of appeal.

II. STANDARDS OF REVIEW

Alexander preserved our review of the district court’s evidentiary

ruling by raising the issue in his motion in limine and renewing his objection

when the evidence was introduced at trial. See Fed. R. Evid. 103(a)(1).

Accordingly, we review the district court’s evidentiary ruling for abuse of

discretion. United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011). “[F]or

any of the evidentiary rulings to be reversible error, the admission of the

evidence in question must have substantially prejudiced [the defendant’s]

rights.” Id. (quoting United States v. Sanders, 343 F.3d 511, 519 (5th Cir.

2003)). We review the district court’s factual findings for clear error. United

States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001). “A factual finding is not

clearly erroneous if it is plausible in light of the record as a whole.” United

States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citation omitted).

Because Alexander moved for acquittal at the close of the

Government’s case and after the verdict, we review his challenge to the

sufficiency of the evidence de novo. See United States v. Oti, 872 F.3d 678,

686 (5th Cir. 2017). On de novo review, we determine whether, “after

viewing the evidence and all reasonable inferences in the light most favorable

to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Vargas-

Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (emphasis in original)

(citation omitted). Appellate review of a sufficiency-of-the-evidence claim is

highly deferential to the jury’s verdict. United States v. Chon, 713 F.3d 812,

818 (5th Cir. 2013) (citation omitted).

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III. DISCUSSION

A. Alexander’s Pendleton Trial Testimony

On appeal, Alexander argues that, based upon the plea agreement and

the AUSA’s alleged promise of immunity on the day of the Pendleton trial,

he could have reasonably believed that he had either equitable or informal

immunity from the use of his Pendleton trial testimony or from further

prosecution beyond the plea agreement. Thus, he contends, the district court

erred when it denied his motion in limine to exclude the Pendleton trial

testimony. We disagree for three reasons: (1) Alexander failed to establish

that the Government promised him immunity; (2) the Government’s offer

of a plea agreement did not confer any immunity; and (3) even if the

Government’s plea agreement offered some immunity, Alexander failed to

abide by the terms of the agreement.

As both parties acknowledge, the threshold question to determine

whether Alexander is entitled to any form of immunity—equitable, informal,

or otherwise—is whether the Government made him a promise of immunity.

To interpret the existence and scope of an immunity agreement, we apply

general principles of contract law. United States v. Cantu, 185 F.3d 298, 302

(5th Cir. 1999). “Applying contract law, the defendant bears the burden of

proving that there was a mutual manifestation of assent—either verbally, or

through conduct—to the agreement’s essential terms.” Jimenez, 256 F.3d at

347 (citation omitted). This analysis must include “both subjective and

objective factors in determining whether the defendant has carried his

burden.” Id. (citation omitted).

First, Alexander’s argument that this “mutual manifestation of

assent” is evidenced by his reasonable expectation of immunity from the

AUSA’s alleged promise just prior to the Pendleton trial is unavailing.

Alexander never challenged the district court’s finding that there was no

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evidence in the record “showing there was a meeting of the minds regarding

a grant of immunity for defendant in exchange for his testimony in the

Pendleton trial.” And he admits that he did not present “evidence to

contradict the position of the government or the trial court’s finding.”

Because he failed to identify any error in the district court’s finding, he

waived any argument demonstrating that there was a “mutual manifestation

of assent” on appeal. See Ramey v. Davis, 942 F.3d 241, 248 (5th Cir. 2019)

(finding that “[a] failure to identify error in the district court’s reasoning

constitutes waiver”) (citation omitted); United States v. McBride, 402 F.

App’x 909, 911 (5th Cir. 2010) (when reviewing for an abuse of discretion,

“where an appellant fails to identify error in the district court’s analysis, it is

the same as if he had not appealed that issue”) (citation omitted).

Second, Alexander’s argument that the unsigned plea agreement was

“sufficient to serve as an informal immunity agreement upon which [he]

could rely in continuing to debrief and in testifying” is belied by the record.

Alexander offers no support for his argument that an unsigned agreement

could serve as the basis of informal or equitable immunity. Due to inadequate

briefing, that argument is forfeited. Rollins v. Home Depot USA, 8 F.4th 393,

397 (5th Cir. 2021) (“A party forfeits an argument . . . by failing to adequately

brief the argument on appeal.”) (citation omitted).

Third, even if we were to accept the, thus far, unrecognized possibility

that an unsigned plea agreement could provide immunity, Alexander still

would not be entitled to that immunity. In other cases where courts have

found equitable immunity, the defendants have been able to show “that

[they] complied in good faith with the terms of the agreement.” See, e.g.,

Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir. 1982). But Alexander violated

the terms of the proposed plea agreement by failing to plead guilty, which he

even acknowledged during the Frye hearing. He cannot claim the benefits of

a bargain that he failed to uphold.

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All told, Alexander failed to satisfy his burden of showing a mutual

manifestation of assent to either the alleged agreement just before the

Pendleton trial or the unsigned plea agreement. See Jimenez, 256 F.3d at 347.

Alexander also failed to show that he complied in good faith with the terms

of the rejected plea agreement. Thus, we find that the district court did not

abuse its discretion when it denied Alexander’s motion in limine to exclude

his testimony during the Pendleton trial.

B. Sufficiency of the Evidence

Alexander also challenges the sufficiency of the evidence to support

the drug conspiracy alleged in count one. He argues that without the

testimony from the Pendleton trial, a rational jury could not have found that

he knowingly participated in a drug conspiracy. Because we find that

Alexander’s testimony from the Pendleton trial was properly admitted,

Alexander’s sufficiency of the evidence argument fails.

IV. CONCLUSION

For these reasons, the district court’s judgment is AFFIRMED.

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