Petition for Writ of Certiorari — Bruce E. Alexander, Petitioner v. United States

No. 24A623

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IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________________

BRUCE ALEXANDER, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

_________________________________________

On Petition for Writ of Certiorari

to the U.S. Court of Appeals, Eighth Circuit

_________________________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

_________________________________________

Carlyle Parish LLC

Kathryn B. Parish*

3407 Jefferson, #128

Saint Louis, MO 63118

*Counsel of Record

ATTORNEY FOR PETITIONER

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 23-2280

___________________________

United States of America

Plaintiff - Appellee

v.

Bruce E. Alexander

Defendant - Appellant

____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

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Submitted: April 10, 2024

Filed: August 23, 2024

____________

Before SMITH, WOLLMAN, and SHEPHERD, Circuit Judges.

____________

SMITH, Circuit Judge.

Bruce Alexander and Terrence Gay were charged in a two-count indictment.

The first charge was conspiracy to distribute 400 grams or more of a mixture or

substance containing fentanyl, in violation of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(A). The second charge was possession with intent to distribute 400 grams

or more of a mixture or substance containing fentanyl, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A). Gay pleaded guilty to both charges. Alexander pleaded

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not guilty and proceeded to trial. A jury found Alexander guilty on both counts.

Alexander appeals the district court’s 1 decision to exclude an exculpatory statement

from Gay, the court’s handling of three government witnesses, and the court’s

comments made during the trial. Finding no reversible error, we affirm the district

court.

I. Background

In June 2021, Alexander and Gay were traveling in a rental SUV from

California to Ohio. In Missouri, State Highway Patrol Trooper Beau Ryun pulled

over the SUV for following another vehicle too closely. When stopped, Alexander

was driving the SUV while Gay occupied the front passenger seat. Trooper Ryun

asked Alexander to sit in the patrol car and provide answers for a report. While

seated next to Alexander, Trooper Ryun began asking questions about their trip,

including their place of origin. Alexander said that he was returning to Ohio from

Los Angeles, California. He also mentioned that he traveled to California to buy a

motorcycle but that the seller’s price was too high. Trooper Ryun asked for consent

to search the SUV. Alexander directed the trooper to Gay. Trooper Ryun spoke with

Gay, and while conversing with Trooper Ryun, Gay voluntarily handed the trooper

a bundle of marijuana cigarettes. After receiving the cigarettes, Trooper Ryun

ordered Gay out of the SUV. Trooper Ryun searched the SUV while the backup

officer, Trooper Brooks McGinnis, watched Gay and Alexander.

During the search, Trooper Ryun found contraband. While searching the trunk

area, he found upholstery tools and packages of edibles containing THC. Those

discoveries led the trooper to conduct an X-ray scan of the SUV. The scan revealed

brick-shaped packages. Trooper Ryun recovered the packages, which contained over

400 grams of fentanyl. Trooper McGinnis arrested Gay, and Trooper Ryun arrested

Alexander. During his arrest, Gay told Trooper McGinnis that Alexander did not

have anything to do with the drugs. Trooper McGinnis found about $8,000 in cash

1

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri.

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in Gay’s pocket. Alexander had about $2,000 in cash on his person and said that he

was unaware of the $8,000 in Gay’s pocket.

Soon after their arrest, Alexander and Gay were transported to a weigh station

where DEA officers interviewed them. DEA Officer Greg Primm interviewed

Alexander, and DEA Officer Martin Dye interviewed Gay. Gay told Officer Dye

that he made three prior trips to Los Angeles to pick up fentanyl and heroin for a

drug trafficking organization. Gay also said that Alexander had made no prior trips

with him and that Alexander did not know that Gay was transporting drugs.

Alexander told Officer Primm that he went to California to buy a motorcycle. When

Officer Primm further questioned Alexander about his time in Los Angeles,

Alexander could not remember where he stayed, what shops he went to, or how he

came to drive the SUV. Alexander also denied having any affiliation with the SUV.

After the indictment, Gay was released on bond and pleaded guilty without a

plea agreement to both counts via video conference. Gay never surrendered to the

U.S. Marshals and remains a fugitive from justice. Alexander pleaded not guilty and

proceeded to trial.

Alexander intended to introduce Gay’s exculpatory statements into evidence.

But before trial, the government moved to exclude Gay’s statements on hearsay

grounds in a motion in limine. The district court granted the government’s motion

and excluded Gay’s exculpatory statements from evidence under Federal Rule of

Evidence 804(b)(3).

The district court held a three-day jury trial. During witness examination, the

district court occasionally interjected. The government’s case included testimony

from Trooper Ryun, Trooper McGinnis, and Officer Primm who testified as expert

and fact witnesses. Alexander testified during his defense. He said that Gay planned

the entire trip and bought one-way plane tickets to Los Angeles for the two of them

about a week before the trip. Alexander also testified that he was surprised when he

discovered that they would have to drive back to Ohio. As for the motorcycle,

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Alexander testified that he made no prior arrangements for its transport to Ohio

before he flew to Los Angeles. Alexander reasoned that he would have secured

transport for the motorcycle following the purchase. The selling price of the type of

motorcycle he was looking at on Facebook and Craigslist was “about $1,500.” R.

Doc. 123, at 58. Officer Primm testified that when he looked at Alexander’s driver’s

license at the weigh station, it lacked a motorcycle endorsement. He also commented

that Silver Wing Scooters—the type of motorcycle Alexander sought to purchase—

are popular models and widely available.

The jury returned guilty verdicts on both counts. At sentencing, the court

calculated Alexander’s Guidelines range as 188 to 235 months’ imprisonment, and

it sentenced him to 216 months. Alexander appeals the district court’s evidentiary

findings and trial-management decisions.

II. Discussion

A. Gay’s Exculpatory Statements

Alexander first contends that the district court’s ruling that excluded Gay’s

exculpatory statements from evidence violated Rule 804(b)(3) and his Fifth

Amendment right to present a complete defense.

“Generally, preserved evidentiary challenges are reviewed under the

[deferential] abuse of discretion standard. If the challenge implicates a constitutional

right, our review is de novo.” United States v. Arias, 74 F.4th 544, 550 (8th Cir.

2023) (citation omitted). Therefore, we review the district court’s decision to

exclude Gay’s statement for an abuse of discretion, but we review that decision’s

effect on Alexander’s constitutional right de novo. See United States v. Wadena,

152 F.3d 831, 854 (8th Cir. 1998). “We will reverse, however, only if the error is

more than harmless. Thus, even when an evidentiary ruling is improper, we will

reverse a conviction on this basis only when the ruling affected substantial rights or

had more than a slight influence on the verdict.” United States v. White, 557 F.3d

855, 857–58 (8th Cir. 2009) (cleaned up). Under Rule 804(b)(3),

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a statement is not excluded as hearsay if the declarant is unavailable as

a witness and the statement was against the declarant’s penal interest.

To be admissible as a statement against penal interest, a three-prong

test must be satisfied: (1) the declarant must be unavailable as a witness,

(2) the statement must so far tend to subject the declarant to criminal

liability that a reasonable person in the declarant’s position would not

have made the statement unless he or she believed it to be true, and (3)

corroborating circumstances clearly indicate the trustworthiness of the

statement.

United States v. Honken, 541 F.3d 1146, 1161 (8th Cir. 2008) (cleaned up). The

parties agree that Gay was unavailable but disagree on the other two prongs.

As a preliminary matter, we reject Alexander’s tardy argument that the

corroboration prong of Rule 804(b)(3) is “required primarily to establish whether

the statement was actually made, not whether there is some possibility . . . that it

might not be true.” Appellant’s Reply Br. at 11. “As a general rule, we will not

consider arguments raised for the first time in a reply brief.” Barham v. Reliance

Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006). The two primary cases

Alexander relies on, United States v. Bagley, 537 F.2d 162 (5th Cir. 1976), and

United States v. Goodlow, 500 F.2d 954 (8th Cir. 1974), are not referenced in his

opening brief. But even if we view this argument as a supplementation of one in his

opening brief, we reject it. See Barham, 441 F.3d at 584 (“We are not precluded

from [addressing] . . . the argument raised in the reply brief [when it] supplements

an argument raised in a party’s initial brief.”).

Bagley is unpersuasive. In Bagley, the Fifth Circuit said that trustworthiness

has two elements: “the statement must actually have been made by the declarant,

and it must afford a basis for believing the truth of the matter asserted.” 537 F.2d at

167. Even if we adopt those two requirements here, it does not support Alexander’s

interpretation of Rule 804(b)(3)’s corroboration prong. Neither party contests

whether Gay’s statement was made. Rather, the focus is on its truthfulness. Thus,

even under Bagley, we would need to be sure that “the proffered statement here . . .

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affords a basis for belief in its truthfulness [because] it was, in fact, made.” Id.; see

also Honken, 541 F.3d at 1161 (third prong).

Alexander’s reliance on our decision in Goodlow is also unhelpful. He points

to Goodlow and argues that there “this Court correctly applied the [Bagley test by]

looking to the corroborating circumstances to determine not whether a statement

against interest was true, but rather whether it was made.” Appellant’s Reply Br. at

10 (internal quotation marks omitted). But Goodlow was decided before Rule

804(b)(3) was enacted. Goodlow, 500 F.2d at 957 (“[Rule 804(b)(3) was] not

controlling at the time of the defendants’ trial nor [is it] yet in effect.”); see also Act

of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926. Goodlow’s discussion of the notyet-effective Rule 804(b)(3)’s corroborating circumstances prong misses its mark.

We have not cited Goodlow as having a clarifying effect on the corroborating

circumstances prong in Rule 804(b)(3), and we decline to read that into the opinion

now.2

Moreover, Goodlow concerned whether the district court correctly excluded a

declarant’s statement under “the common law” “exception[] to the [hearsay] rule . . .

of declarations of third parties, made contrary to their own interest.” Donnelly v.

United States, 228 U.S. 243, 273 (1913); Goodlow, 500 F.2d at 957 (citing

Donnelly). In answering whether the district court correctly applied the commonlaw hearsay exception, we used proposed Rule 804(b)(3) as a tool for understanding

the common-law rule because “the proposed rule which recognizes the admissibility

of declarations against penal interest simply reflects the overwhelming weight of

authority on that question.” Goodlow, 500 F.2d at 957. Put simply, Goodlow

2

We have only cited Goodlow twice, and neither of those times did we cite it

for its interpretation of Rule 804. United States v. Hadley, 671 F.2d 1112, 1115 (8th

Cir. 1982) (citing Goodlow to show that “show-ups are inherently suggestive and

ordinarily cannot be condoned when a line-up procedure is readily available”);

United States v. Riley, 657 F.2d 1377, 1381 n.5 (8th Cir. 1981) (citing Goodlow

because its text contained the “proposed rules”).

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concerned the district court’s application of the common-law hearsay exception, not

Rule 804.

For this case, we rely on the text of Rule 804. Rule 804(b)(3) states that the

statement in question must be “supported by corroborating circumstances that

clearly indicate its trustworthiness.” Fed. R. Evid. 804(b)(3)(B) (emphasis added).

Assuming without deciding that Gay’s exculpatory statement opened him to criminal

liability, see Honken, 541 F.3d at 1161 (second prong), it nonetheless lacks sufficient

corroborating circumstances to indicate its trustworthiness.

In United States v. Rasmussen, we laid out the five factors we use to determine

“[t]he trustworthiness of a statement against the declarant’s penal interest.” 790 F.2d

55, 56 (8th Cir. 1986). Those factors are:

(1) whether there is any apparent motive for the out-of-court declarant

to misrepresent the matter, (2) the general character of the speaker, (3)

whether other people heard the out-of-court statement, (4) whether the

statement was made spontaneously, [and] (5) the timing of the

declaration and the relationship between the speaker and the witness.

Id.

Here, the district court analyzed the corroborating circumstances under the

Rasmussen factors. The district court explained:

Defendant and Gay are relatives, and thus Gay had motive to

misrepresent that Defendant was unaware of the fentanyl and not

involved in the drug trafficking organization. Further, Gay’s decision

to flee from justice after he pled guilty does not speak well of his

character. Finally, Gay’s statements exculpating Defendant do not

appear to have been made spontaneously. Gay changed his story three

times, stating first that he and Defendant had been on vacation, then

stating that Defendant was not involved, and finally attempting to

persuade Defendant to cooperate with law enforcement.

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R. Doc. 71, at 4.

The district court did not abuse its discretion. Gay’s close relationship with

Alexander supports the district court’s decision that Gay’s statement lacks sufficient

trustworthiness. Despite Gay and Alexander not being related, they were close

friends who called each other cousin. Their close friendship reduces the

trustworthiness of Gay’s statement. See United States v. Bobo, 994 F.2d 524, 528

(8th Cir. 1993) (“[C]lose relationships, such as the sibling relationship, have long

been recognized to diminish the trustworthiness of hearsay statements against the

declarant’s penal interest.”). But in addition to their close friendship, Gay’s failure

to surrender himself to the U.S. Marshals—and status as a fugitive from justice—

reflects poorly on his character and further reduces the trustworthiness of his

statement. Combining Gay and Alexander’s close friendship with Gay’s subsequent

absconder from the U.S. Marshals diminishes the trustworthiness of Gay’s statement

about Alexander’s involvement to such a degree that the district court did not err

excluding it from trial.

Alexander argues that two cases support his argument: United States v. One

Star, 979 F.2d 1319 (8th Cir. 1992), and United States v. Garcia, 986 F.2d 1135 (7th

Cir. 1993). In One Star, the defendant’s brother made inculpatory statements that

were against the brother’s penal interest, the statements were consistent with other

statements made spontaneously to officers, and the information in the inculpatory

statements was corroborated by the physical evidence. 979 F.2d at 1322–23. In

Garcia, the declarant and the defendant were not friends, the declarant made the

exculpatory statement voluntarily, the statement was not made to curry favor with

police, and the declarant repeated the exculpatory statements several times. 986 F.2d

at 1140.

This case differs from One Star and Garcia. In One Star, the physical

evidence corroborated the statements made by the defendant’s brother. But here,

Gay’s statement is not corroborated by any physical evidence. In Garcia, the

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declarant and defendant were not friends. But here, Alexander and Gay were close

friends and called each other cousin.

B. Alexander’s Fifth Amendment Right

Alexander also argues that not admitting Gay’s exculpatory statement violated

his Fifth Amendment right to present a complete defense. We have said:

The Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense. The Constitution does not,

however, guarantee that criminal defendants may call every witness

they choose. An accused does not have an unfettered right to offer

testimony that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence. State and federal rulemakers have

broad latitude under the Constitution to establish rules excluding

evidence from criminal trials. Such rules do not abridge an accused’s

right to present a defense so long as they are not arbitrary or

disproportionate to the purposes they are designed to serve.

Khaalid v. Bowersox, 259 F.3d 975, 978 (8th Cir. 2001) (cleaned up). Alexander

does not argue that Rule 804(b)(3) is “arbitrary or disproportionate to the purposes

[it is] designed to serve.” Id. (internal quotation marks omitted). Thus, Alexander’s

Fifth Amendment right to present a complete defense was not violated when the

district court excluded Gay’s statement from evidence. 3

3

Alexander also mentions, in a footnote, that Rule 807 would allow Gay’s

statements into evidence. We will not address this argument because “[a]llegations

of error not accompanied by convincing argument and citation to authority need not

be addressed on appeal.” Heuton v. Ford Motor Co., 930 F.3d 1015, 1023 (8th Cir.

2019) (internal quotation marks omitted); see also Ritchie Cap. Mgmt., L.L.C. v.

Jeffries, 653 F.3d 755, 763 n.4 (8th Cir. 2011) (“We likewise refuse to address the

merits of [the parties’] . . . argument mentioned in their brief only by way of a

footnote.”).

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C. Witness Testimony

Next, Alexander argues that the district court erred in its handling of three

government witnesses. First, he contends that Trooper Ryun exceeded his expertise

by testifying that staring and abdominal movements may indicate that criminal

activity is afoot. Second, Alexander argues that both Officer Primm and Trooper

Ryun crossed a line when they testified that they found Alexander to be deceptive

and evasive when they spoke with him. And finally, Alexander argues that the

district court did not mitigate the risks of having Trooper Ryun, Trooper McGinnis,

and Officer Primm testify as dual witnesses.

Because Alexander did not raise these arguments in the district court, we

review for plain error. “For plain error, [Alexander] must show there was an error,

the error is clear or obvious under current law, the error affected [his] substantial

rights, and the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Abarca, 61 F.4th 578, 580 (8th Cir. 2023)

(internal quotation marks omitted). “To establish [that] the error affected [his]

substantial rights, [Alexander] must show a reasonable probability that, but for the

error, the outcome of the proceeding would have been different.” United States v.

Patterson, 68 F.4th 402, 421 (8th Cir. 2023) (internal quotation marks omitted).

1. Trooper Ryun

Alexander argues that Trooper Ryun went outside of his area of expertise

when he opined that actions like staring or a person’s abdominal movements may

indicate criminal activity. We have said that “Federal Rule of Evidence 702 permits

a district court to allow the testimony of a witness whose knowledge, skill, training,

experience or education will assist a trier of fact in understanding an area involving

specialized subject matter.” United States v. Spotted Elk, 548 F.3d 641, 663 (8th Cir.

2008) (quoting United States v. Solorio–Tafolla, 324 F.3d 964, 966 (8th Cir. 2003)).

The district court did not plainly err by allowing Trooper Ryun to answer the

government’s question about what actions indicated criminal activity. Part of the

government’s notice of expert witnesses said that Trooper “Ryun can offer expert

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testimony related to . . . behaviors commonly encountered during traffic stops where

criminal activity is present.” R. Doc. 65, at 3. During trial, the government asked

Trooper Ryun: “What about the defendant’s appearance or expression or behavior

caused you to describe him as fearful?” R. Doc. 121, at 68. Trooper Ryun responded:

“The expression that he was displaying on his face was a very blank stare. . . . [J]ust

like a panicked, fearful expression of a very blank stare as we’re engaging with each

other.” Id. Later in the direct examination, the government asked: “During your

conversation with the defendant and your interaction with him, did you observe

anything noteworthy or significant about his demeanor?” Id. at 72. Trooper Ryun

responded: “I just noted he still had a blank stare and his abdomen was quivering as

we spoke.” Id. When asked to explain what he meant by saying Alexander’s

abdomen was quivering, Trooper Ryun said: “As I’m sitting in my driver’s seat and

I’m speaking with people, I oftentimes look at the abdomen around the belly-button

area; and oftentimes when people are under an extreme amount of stress, that area

of the stomach will move in and out, in like a quivering motion.” Id. This testimony

reasonably fell within his experience with “behaviors commonly encountered during

traffic stops where criminal activity is present.” R. Doc. 65, at 3; see United States

v. Nungaray, No. 96-50424, 1998 WL 339668, at *1 (9th Cir. Apr. 24, 1998) (“It is

permissible for an expert, however, to testify that a defendant’s innocent-appearing

behavior is consistent with or indicates illegal activity.” (citing United States v.

Alonso, 48 F.3d 1536, 1541 (9th Cir. 1995))).

2. Trooper Ryun and Officer Primm

Second, Alexander argues that the district court erred when it allowed Officer

Primm and Trooper Ryun to testify that they found Alexander deceptive and evasive

when they spoke with him. “To establish [that] the error affected [his] substantial

rights, [Alexander] must show a reasonable probability that, but for the error, the

outcome of the proceeding would have been different.” Patterson, 68 F.4th at 421

(internal quotation marks omitted).

Assuming without deciding that Trooper Ryun’s and Officer Primm’s

testimony about finding Alexander to be untrustworthy was erroneous, such error

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did not affect Alexander’s substantial rights. If Trooper Ryun’s and Officer Primm’s

statements were omitted, the remaining evidence would support the proceeding’s

outcome. This evidence showed that Alexander was driving the SUV, Alexander and

Gay were close friends, Gay admitted to trafficking drugs, Alexander and Gay

carried thousands of dollars in cash, Alexander said that he never noticed that Gay

had almost $8,000 in his pocket, and Alexander gave police an unusual story about

going to California to buy a $1,500 motorcycle. Given these facts, the removal of

Trooper Ryun’s and Officer Primm’s testimony would not have changed the

outcome of the proceeding.

Alexander argues that his case is like United States v. Azure, 801 F.2d 336

(8th Cir. 1986), and United States v. Hill, 749 F.3d 1250 (10th Cir. 2014). In Azure,

a pediatrician testified that a child’s story was believable. 801 F.2d at 339. We held

that the pediatrician’s testimony improperly “bolstered” the child’s credibility. Id. at

341. We also held that the pediatrician’s testimony was not a harmless error because

the child “was a key government witness in this case, and her credibility was a very

important issue.” Id. In Hill, an FBI special agent testified in a bank robbery case.

749 F.3d at 1255. The agent’s testimony included statements regarding the

credibility of the defendant. Id. 1255–56. The Tenth Circuit held that the agent’s

testimony was not admissible under Rule 702 and that the error affected the

defendant’s substantial rights because there was “a reasonable probability that but

for [the improper testimony], the result of [the defendant’s] trial would have been

different.” Id. at 1265.

This case is unlike Azure. Here, the testimony by Officer Primm and Trooper

Ryun did not have a “substantial influence” on the proceeding. See Azure, 801 F.2d

at 341. Officer Primm’s comment, for example, came in response to the

government’s question that asked: “[B]ased on your training and experience, when

[Alexander] had made statements to you like ‘I’m not affiliated to that vehicle,’ what

did that make you believe?” R. Doc. 122, at 203. Officer Primm responded: “I

believed he was attempting to conceal the information that he had and he was

omitting the truth.” Id. Before Officer Primm made that statement, he testified that

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he has been an officer with the Missouri State Highway Patrol for “[t]wenty-one

years” and received training in criminal interdiction. Id. at 170. He explained what

criminal interdiction is to the jury:

Criminal interdiction is the enforcement efforts that we take . . . during

the course of our traffic enforcement duties as a Missouri state trooper.

We attempt to identify people who may be using the highways to

further their criminal activity. And it really varies from human

trafficking to drug trafficking and all things in between.

Id. at 172. He further explained that his role as a task force officer with the DEA

provided him the opportunity to work on “large-scale drug trafficking organization

investigations, as well as conducting controlled deliveries of contraband, as well as

performing undercover work.” Id. at 173. Officer Primm’s testimony about

Alexander “was not elaborate and there was no evidence of any training or education

giving [Officer Primm] some great advantage over the jurors in divining truth.”

United States v. Roy, 843 F.2d 305, 309 (8th Cir. 1988) (emphasis added). Officer

Primm’s testimony “was not likely to sweep the jurors off their feet” and thus did

not have a substantial influence on the proceeding. Id.

This case is also unlike Hill. As discussed, there is not “a reasonable

probability that . . . the result of [Alexander]’s trial would have been different” if

Officer Primm’s comment is omitted from the trial record. Hill, 749 F.3d at 1265. A

jury trial is an engine for determining facts; we are satisfied that the jury decided

whom to believe.

3. Dual-Witness Testimony

Alexander also argues that the district court did not mitigate the effects of

having Trooper Ryun, Trooper McGinnis, and Officer Primm give dual-witness

testimony.

Investigating officers are sometimes in a position to provide [two]

forms of permissible opinion testimony. As lay witnesses, they may

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offer testimony that is rationally based on their perceptions during the

investigation. And as expert witnesses, they may offer opinion

testimony that is based on specialized knowledge gained from training

and experience. We have not categorically prohibited dual-role

testimony by case agents when the prosecution needs to make use of

the expertise of a case agent providing lay testimony. . . .

[But] district courts and counsel should take appropriate measures to

minimize the problems that may arise from dual-role testimony by a

case agent. One measure that is often appropriate is bifurcating the

questioning, but other measures may also be appropriate so long as the

questioning and jury instructions sufficiently guard against the risks

associated with dual-role testimony.

United States v. Overton, 971 F.3d 756, 762–63 (8th Cir. 2020) (cleaned up).4

Having reviewed the record, we conclude that the district court did not plainly

err permitting dual-witness testimony. Here, when Trooper Ryun, Trooper

McGinnis, and Officer Primm gave expert testimony it was often preceded by

4

We identified the risks associated with dual-witness testimony in United

States v. Moralez, 808 F.3d 362 (8th Cir. 2015). Those risks are that

(1) the witness’s aura of credibility as an expert may inflate the

credibility of her perception as a fact witness in the eyes of the jury; (2)

opposing counsel is limited in cross-examining the witness due to the

risk that an unsuccessful attempt to impeach her expertise will

collaterally bolster the credibility of her fact testimony; (3) the witness

may stray between roles, moving from the application of reliable

methodologies into sweeping conclusions, thus violating the strictures

of Daubert and Federal Rule of Evidence 702; (4) jurors may find it

difficult to segregate these roles when weighing testimony and

assessing the witness’s credibility; and (5) because experts may rely on

and disclose hearsay for the purpose of explaining the basis of an expert

opinion, there is a risk the witness may relay hearsay when switching

to fact testimony.

Id. at 365 (footnote omitted).

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phrases indicating that their opinion was based on their training and experience. See,

e.g., R. Doc. 121, at 64 (“[Trooper Ryun:] Through my training and experience,

when a passenger is overly concerned about getting stopped by law enforcement, it’s

been a good indicator that there may be other things going on inside the vehicle than

a simple traffic violation . . . .” (emphasis added)); R. Doc. 122, at 77 (“[Trooper

Ryun:] It’s my opinion that if you were going to purchase a motorcycle to drive it

back, you would come with the items that you already possessed to make that trip,

such as a motorcycle helmet or leather for riding in cold or inclement conditions.”

(emphasis added)); id. at 203 (“[Question to Officer Primm:] Q. Now, based on your

training and experience, when the defendant had made statements to you like ‘I’m

not affiliated to that vehicle,’ what did that make you believe? [Officer Primm:] A.

I believed he was attempting to conceal the information that he had and he was

omitting the truth.” (emphasis added) (spacing altered)); id. at 160 (“[Question to

Trooper McGinnis:] Q. And based on your training and experience, could you

explain to the jury where you’ve seen these markings before? [Trooper McGinnis:]

A. That is branding that cartels will often put on packaging to signify either who it

was coming from or where it’s going when it’s being shipped out.” (emphasis added)

(spacing altered)). Moreover, the court’s jury instructions told jurors that “[i]n

deciding what the facts are, you may have to decide what testimony you believe and

what testimony you do not believe. You may believe all of what a witness said, or

only part of it, or none of it.” R. Doc. 88, at 19. The prefatory phrases indicating

whether the testimony was based on the witness’s training and experience and the

court’s jury instructions “sufficiently guard[ed] against the risks associated with

dual-role testimony.” Overton, 971 F.3d 756, 763 (8th Cir. 2020) (internal quotation

marks omitted). Thus, the district court did not plainly err allowing the law

enforcement officers to give dual-witness testimony.

D. The Court’s Comments

Alexander’s last argument is that the district court made improper comments

during the trial. “This [c]ourt reviews the district court’s trial management for an

abuse of discretion.” United States v. Williams, 720 F.3d 674, 692 (8th Cir. 2013).

“Trial judges have wide latitude in conducting their trials . . . .” Harrington v. Iowa,

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Date Filed: 08/23/2024 Entry ID: 5427555

109 F.3d 1275, 1280 (8th Cir. 1997). “Reversal is warranted where ‘the court’s

comments throughout a trial are one-sided and interfere with a defendant’s case to

such an extent that the defendant is deprived of the right to a fair trial.’” Williams,

720 F.3d at 694 (quoting United States v. Warfield, 97 F.3d 1014, 1027 (8th Cir.

1996)).

The court did interject at multiple points in the trial, but those interjections

were aimed at improving the trial’s pace, clarifying witnesses’ answers, and stopping

redundant questions. See, e.g., R. Doc. 122, at 54–55 (“[District Court:] I think he

just said it was the totality of the circumstances. [Alexander’s counsel:] That he

thought it was implausible. [District Court:] Yeah. [Alexander’s counsel:] The

question I’m asking is whether or not he determined that it was false. [Witness

answers clarified question].” (spacing altered)); R. Doc. 123, at 31 (“[District Court

to Alexander:] Was that your testimony? That he was going to use tools to dismantle

an ATV? [Alexander answers question]”); id. at 44 (“[District Court to Alexander:]

Hold on. Listen closely to the questions. If you answer those questions, your attorney

will give you a chance to redirect or ask you follow-up questions. . . . Counsel, I’m

sorry, you were standing. Is there something else you’d like to say?”). The district

court did not abuse its “broad discretion to conduct the trial in an orderly and

efficient manner.” United States v. Webber, 255 F.3d 523, 526 (8th Cir. 2001).

Further, the court’s comments were not “one-sided” because some of the

comments helped Alexander. Williams, 720 F.3d at 694. First, the court allowed

Alexander to elaborate his answer to a question posed by the government during

cross-examination. R. Doc. 123, at 80 (“[District Court:] Hold on, hold on, hold on.

Stop. [Alexander] does get to answer—as your co-counsel has pointed out in my

rules of trial, he does get an answer beyond ‘yes.’”). Second, the court cut short the

government’s question about Alexander’s knowledge of the plane tickets to

California and who bought them. Alexander had already answered the question and

the court jumped in saying “[h]old on, hold on. Stop, stop. [Alexander] is speculating

. . . . Is that fair? [Gay] could have used miles; is that what you’re saying? . . .

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Date Filed: 08/23/2024 Entry ID: 5427555

[Alexander:] Correct . . . . [Gay] purchased the tickets. [District Court:] Let’s move

on. We’re kind of getting in a rabbit hole here.” Id. at 34.

At one point during the trial, the court spoke extensively with Alexander’s

counsel about why it kept interjecting. In the discussion, Alexander’s counsel

expressed concern that “to the extent that you ask [Trooper Ryun], ‘Is this what you

said,’ what the jury is doing is they’re hearing you talking to him during my crossexamination and I’m concerned that it’s giving them the impression that you aren’t

buying what I’m selling.” R. Doc. 122, at 61. The court responded, “Use appropriate

questions. If they’re eliciting information from this witness, you’re not going to hear

from me; if they misstate or tend to confuse anybody, you’re going to hear from me.

That’s our deal. That’s the best I can do. I hope I don’t have to interrupt you again.”

Id. at 62. Some of the district court’s interruptions cut in Alexander’s favor, and

others cut against him. We find no error in the district court’s interjections that were

aimed at improving the trial’s pace, clarifying the witnesses’ answers, and stopping

redundant questions.

Contrary to Alexander’s arguments, this case is unlike United States v. Singer,

710 F.2d 431 (8th Cir. 1983) (en banc), or United States v. Bland, 697 F.2d 262 (8th

Cir. 1983). In Singer, the district court’s comments were mostly helpful to the

government. Singer, 710 F.2d at 436. As discussed, here the district court’s

comments equally cut both ways. And in Bland, the court engaged in lengthy

questioning of the defendant. Bland, 697 F.2d at 264–65. But here, the district court

did not engage in lengthy questioning of Alexander. When the district court asked

questions, it did so “to clarify ambiguities” and not to “assume the mantle of an

advocate and take over [examination of a witness] for the government.” Id. at 265.

Here, the district court did not “assume a prosecutorial role in the trial, a role which

destroyed fair process for the accused.” Id. at 266.

Finally, the district court and Alexander’s counsel had another prolonged

discussion during which the court threatened to bar Alexander’s lead attorney from

giving the closing argument. This would have required Alexander’s other attorney

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Date Filed: 08/23/2024 Entry ID: 5427555

to give it instead. Before this discussion, Alexander’s lead counsel tried to ask a

witness a question about Gay’s exculpatory statement. The district court had already

decided that Gay’s statement could not be discussed during the trial in a ruling on a

motion in limine and in an earlier sidebar. During the discussion the court said:

That’s the exact question that we dealt with at a sidebar, and I thought

you said you were done with that question . . . then you came back and

asked the same exact question. I’m concerned about that . . . . There’s

been times when lawyers, I don’t feel like they’re following my

direction . . . . If you don’t follow the rules and you don’t live to what

you agreed to, [your co-counsel may be giving the closing argument].

R. Doc. 122, at 96–97. The district court did not err explaining the potential

consequences of counsel’s disregard for the court’s rulings.

III. Conclusion

The district court did not err in its evidentiary rulings nor in its trial

management. Accordingly, we affirm.

______________________________

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Appellate Case: 23-2280

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Date Filed: 08/23/2024 Entry ID: 5427555

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

BRUCE E. ALEXANDER,

Defendant.

)

)

)

)

)

)

)

)

)

Case No.: 4:20-cr-00181-HFS-02

ORDER RULING ON MOTION IN LIMINE

Defendant Bruce E. Alexander was charged—along with his co-defendant—in a two-count

indictment with conspiracy to distribute 400 grams or more of a mixture or substance containing

a detectable amount of fentanyl in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and

with possession with intent to distribute 400 grams or more of a mixture or substance containing

a detectable amount of fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

Indictment, ECF No. 1. Co-Defendant Terrence D. Gay (“Gay”) previously pled guilty to both

counts. Now before the Court is the Government’s motion in limine to exclude statements Gay

made to law enforcement and in his guilty plea, Mot., ECF No. 49. The motion is GRANTED.

On or about June 30, 2021, Defendant and Gay were both traveling in a rental car from

California to Ohio via I-70. Missouri State Highway Patrol Trooper B.M. Ryun pulled over

Defendant and Gay in Missouri. Trooper Ryun performed a search of the vehicle and recovered

over 400 grams of fentanyl concealed in the vehicle. Trooper Ryun arrested both Defendant and

Gay and transported them to a weigh station, where DEA Task Force Officer Martin Dye (“TFO

Dye”) mirandized them. Gay then agreed to speak with TFO Dye. Gay told Dye that he had made

three prior trips to Los Angeles to pick up fentanyl and heroin for a drug trafficking organization.

Case 4:20-cr-00181-DGK Document

19a 71 Filed 05/04/22 Page 1 of 4

Gay also stated that Defendant had never made the trip with him before and that Defendant did not

know that Gay was transporting drugs. Resp. at 1–2, ECF No. 51; Reply at 2–3, ECF No. 68.

Gay was released on bond, and ultimately pled guilty—via video conference—to both

counts without an agreement. Ex. 1, ECF No. 68-1. However, Gay did not surrender himself to

the United States Marshal’s Service and remains a fugitive from justice.

Defendant seeks to introduce Gay’s statements to law enforcement and Gay’s admission

of the factual basis of his guilty plea for the purpose of a general denial. The Government seeks

to exclude the statements made to Dye on hearsay grounds, and to exclude Gay’s guilty plea under

Rule 403.

Regarding Gay’s statements during his guilty plea, the statements’ probative nature is

substantially outweighed by the guilty plea’s tendency to mislead the jury or confuse the issues.

See Fed. R. Evid. 403. In reciting the factual basis for his guilty plea, Gay merely affirmed the

leading questions asked of him by his counsel. These were questions designed to establish a factual

basis for each element of the crimes to which Gay pled guilty, not to give a detailed account of the

crimes and of each participant thereof. See Gov. Ex. 1, ECF No. 68-1. The fact that Gay did not

mention Defendant in the plea colloquy is of little probative value to whether Defendant

participated in the conspiracy or possessed the fentanyl with intent to distribute.

Further,

introduction of Gay’s plea to the same charges as Defendant has the potential to both mislead the

jury that Defendant’s guilt has already been determined or that certain elements of the crimes have

already been established. See also United States v. Morris, 327 F.3d 760, 762 (8th Cir. 2003)

(noting that exclusion of a plea agreement under Rule 403 is a matter of discretion for the trial

court). The Government’s motion is GRANTED in regard to Gay’s guilty plea. The fact of Gay’s

guilty plea, as well as Gay’s statements made during the course of his plea are not admissible.

2

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20a 71 Filed 05/04/22 Page 2 of 4

Regarding Gay’s statement to law enforcement that Defendant did not know what was in

the vehicle and that Defendant did not know that Gay was transporting drugs, this statement may

not be asserted for its truth. See Fed. R. Evid. 802. “For a statement to qualify under the Rule

804(b)(3) hearsay exception, [1] the declarant must be unavailable, [2] the statement must so far

tend to subject the declarant to criminal liability that a reasonable person would not have made the

statement unless he or she believed it to be true, and [3] corroborating circumstances must clearly

indicate the trustworthiness of the statement.” United States v. Halk, 634 F.3d 482, 489 (8th Cir.

2011). While the first requirement is met: Gay is a fugitive from justice and therefore is

unavailable to testify at trial, United States v. Chapman, 345 F.3d 630, 632 (8th Cir. 2003), the

statement regarding Defendant’s culpability does not tend to subject Gay to criminal liability and

lacks corroborating circumstances. It therefore does not meet the requirements for admission under

Rule 804(b)(3).

The entirety of an unavailable declarant’s narrative is not admissible under 804(b)(3)

merely because “some portion of the narrative subjects the declarant to criminal liability.” United

States v. Hazelett, 32 F.3d 1313, 1317 (8th Cir. 1994) (citing Williamson v. United States, 512 U.S.

594 (1994)). Only the portions “which are not in and of themselves against the declarant’s penal

interest” are admissible under 804(b)(3). Id. While Gay’s statements admitting to his role as a

drug distributor and giving details of the drug trafficking organization are against his interest, his

statements exculpating Defendant were not against Gay’s own penal interest.

In addition, corroborating circumstances do not indicate the trustworthiness of Gay’s

statement. In determining the trustworthiness of a statement under Rule 804(b)(3), the Court

considers

(1) whether there is any apparent motive for the out-of-court declarant to

misrepresent the matter, (2) the general character of the speaker, (3) whether

3

Case 4:20-cr-00181-DGK Document

21a 71 Filed 05/04/22 Page 3 of 4

other people heard the out-of-court statement, (4) whether the statement was

made spontaneously, (5) the timing of the declaration and the relationship

between the speaker and the witness.

United States v. Rasmussen, 790 F.2d 55, 56 (8th Cir. 1986). Defendant and Gay are relatives,

and thus Gay had motive to misrepresent that Defendant was unaware of the fentanyl and not

involved in the drug trafficking organization. Further, Gay’s decision to flee from justice after he

pled guilty does not speak well of his character. Finally, Gay’s statements exculpating Defendant

do not appear to have been made spontaneously. Gay changed his story three times, stating first

that he and Defendant had been on vacation, then stating that Defendant was not involved, and

finally attempting to persuade Defendant to cooperate with law enforcement.

The Government’s motion is GRANTED.

IT IS SO ORDERED.

Date: May 4, 2022

/s/ Greg Kays

GREG KAYS, JUDGE

UNITED STATES DISTRICT COURT

4

Case 4:20-cr-00181-DGK Document

22a 71 Filed 05/04/22 Page 4 of 4

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-2280

United States of America

Appellee

v.

Bruce E. Alexander

Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Kansas City

(4:20-cr-00181-DGK-2)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

September 30, 2024

Order Entered at the Direction of the Court:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Maureen W. Gornik

23a

Appellate Case: 23-2280

Page: 1

Date Filed: 09/30/2024 Entry ID: 5440830

Rule 804. Exceptions to the Rule Against Hearsay--When the..., FRE Rule 804

United States Code Annotated

Federal Rules of Evidence (Refs & Annos)

Article VIII. Hearsay (Refs & Annos)

This section has been updated. Click here for the updated version.

Federal Rules of Evidence Rule 804, 28 U.S.C.A.

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

Effective: [See Text Amendments] to November 30, 2024

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege

applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental

illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means,

to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's

unavailability as a witness in order to prevent the declarant from attending or testifying.

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a

different one; and

24a U.S. Government Works.

© 2025 Thomson Reuters. No claim to original

1

Rule 804. Exceptions to the Rule Against Hearsay--When the..., FRE Rule 804

(B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and

similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the

declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when

made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the

declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case

as one that tends to expose the declarant to criminal liability.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or

marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal

knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood,

adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely

to be accurate.

(5) [Other Exceptions.] [Transferred to Rule 807.]

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered

against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and

did so intending that result.

CREDIT(S)

(Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1942; Pub.L. 94-149, § 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff.

Oct. 1, 1987; Pub.L. 100-690, Title VII, § 7075(b), Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28,

2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011.)

ADVISORY COMMITTEE NOTES

1972 Proposed Rules

25a U.S. Government Works.

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2

Rule 804. Exceptions to the Rule Against Hearsay--When the..., FRE Rule 804

United States Code Annotated

Federal Rules of Evidence (Refs & Annos)

Article VIII. Hearsay (Refs & Annos)

Federal Rules of Evidence Rule 804, 28 U.S.C.A.

Rule 804. Exceptions to the Rule Against Hearsay--When the Declarant Is Unavailable as a Witness

Effective: December 1, 2024

Currentness

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege

applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental

illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means,

to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's

unavailability as a witness in order to prevent the declarant from attending or testifying.

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a

different one; and

26a U.S. Government Works.

© 2025 Thomson Reuters. No claim to original

1

Rule 804. Exceptions to the Rule Against Hearsay--When the..., FRE Rule 804

(B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and

similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the

declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when

made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the

declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) if offered in a criminal case as one that tends to expose the declarant to criminal liability, is supported by corroborating

circumstances that clearly indicate its trustworthiness after considering the totality of circumstances under which it was

made and any evidence that supports or undermines it.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or

marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal

knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood,

adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely

to be accurate.

(5) [Other Exceptions.] [Transferred to Rule 807.]

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered

against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and

did so intending that result.

CREDIT(S)

(Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1942; Pub.L. 94-149, § 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff.

Oct. 1, 1987; Pub.L. 100-690, Title VII, § 7075(b), Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28,

2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 2, 2024, eff. Dec. 1, 2024.)

ADVISORY COMMITTEE NOTES

1972 Proposed Rules

27a U.S. Government Works.

© 2025 Thomson Reuters. No claim to original

2