United States of America v. Bruce E. Alexander

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
____________
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’s1 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 not-
yet-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 common-
law 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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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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[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 cross-
examination 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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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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