United States Court of Appeals

for the Fifth Circuit

No. 19-30356

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Dwayne Winans, Jr.; Bryson Tuesno, 

Defendants—Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CR-175-1

Before Wiener, Southwick, and Duncan, Circuit Judges.

Per Curiam:*

Following a jury trial, Defendant-Appellant Dwayne Winans, Jr., was 

convicted of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), 

two counts of carjacking, in violation of 18 U.S.C. § 2119, and four counts of 

brandishing a firearm during and in relation to a crime of violence, in 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2021

Lyle W. Cayce

Clerk

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violation of 18 U.S.C. § 924(c). He was sentenced to 360 months of 

imprisonment, followed by a five-year term of supervised release. 

Codefendant-Appellant Bryson Tuesno was convicted of two counts of 

armed robbery and two counts of brandishing a firearm during and in relation 

to a crime of violence and was sentenced to 180 months and one day of 

imprisonment, followed by a three-year term of supervised release. They 

both appeal.

As his sole issue on appeal, Winans contends that the district court 

erred in denying his motion to dismiss his indictment, alleging a violation of 

his rights under the Speedy Trial Act. Although Winans’s indictment issued 

44 days after his arrest, 15 of those days were excludable, 10 for his transfer 

from another district, see 18 U.S.C. § 3161(h)(1)(F), and five for the pendency 

of the Government’s pretrial motion for detention, filed on Wednesday, 

August 24, 2016, and heard on Monday, August 29, 2016. See 

§ 3161(h)(1)(D); United States v. Gonzalez-Rodriguez, 621 F.3d 354, 368-69 

(5th Cir. 2010). 

Winans here renews his assertion that the delay in holding a hearing 

on the Government’s pretrial motion for detention violated the Bail Reform 

Act and, pursuant to that act, the Government was entitled to no more than 

three excludable days, including weekends. His argument is not well-taken. 

His reliance on United States v. Tinklenberg, 563 U.S. 647 (2011), is 

misplaced: That case did not involve the specified delays under the Bail 

Reform Act. That statute requires that weekends and legal holidays be

excluded from the relevant three-day period, see 18 U.S.C. § 3142(f)(2), so 

the district court correctly determined that there was no violation of the Bail 

Reform Act. Only 29 countable days of the speedy trial clock had lapsed at 

the time his indictment issued, so Winans fails to show a violation of the 

Speedy Trial Act. The district court did not err in denying his motion to 

dismiss the indictment. 

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Tuesno contends that the evidence was insufficient to support his 

convictions; specifically, that there was insufficient evidence to establish his 

identity as one of the two bank robbers. He complains about the lack of direct 

forensic or eyewitness evidence linking him to the crime scenes, but his 

complaint is without merit. See United States v. Royals, 777 F.2d 1089, 1091 

(5th Cir. 1985). When the circumstantial evidence is viewed in the light most 

favorable to the prosecution, it was sufficient for reasonable jurors to find that 

Tuesno was one of the two men who attempted to rob the Regions Bank and 

who robbed the Gulf Coast Bank on August 15, 2016. See Jackson v. Virginia, 

443 U.S. 307, 319 (1979); United States v. Percel, 553 F.3d 903, 910 (5th Cir. 

2008); United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001). 

Tuesno also contends that the Government impermissibly called 

Gabriel as a hostile witness to impeach her with her prior statements to Agent 

Plummer. Tuesno urges that, because the Government knew Gabriel would 

be hostile, its attempt to impeach her with her otherwise inadmissible hearsay 

statements to Agent Plummer amounts to reversible error. He relies on 

United States v. Hogan, 763 F.2d 697, 702 (5th Cir.), opinion withdrawn in part 

on other grounds, 771 F.2d 82 (5th Cir. 1985).

True, the Government “may not call a witness it knows to be hostile 

for the primary purpose of eliciting otherwise inadmissible impeachment 

testimony.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 760 (5th Cir. 

2008) (internal quotation marks and citation omitted). However, absent 

“something in the record to ground a finding that the Government’s 

‘primary purpose’ in calling [the witness] was to elicit otherwise 

impermissible evidence through impeachment,” we will not find error. Id.

Tuesno also asserts that the Government knew Gabriel would be 

hostile and announced to the jury at the outset that it was calling Gabriel as 

a hostile witness, intending to treat her as such. However, that assertion is 

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belied by the record, which, as the district court found, shows that the 

Government called Gabriel with the expectation that she would testify 

consistently with her prior statements. The instant case is thus 

distinguishable from Hogan. See 763 F.2d at 702. Moreover, despite 

Gabriel’s memory problems, the Government was able to confirm through 

her testimony that she had purchased the Chevrolet Monte Carlo in question 

jointly with Tuesno and that the car was registered in both of their names. 

There is thus no support in the record for the contention that the 

Government’s “primary purpose” in calling Gabriel was to impeach her. See

Cisneros-Gutierrez, 517 F.3d at 760.

The claim also fails because the district court found Agent Plummer’s 

testimony about Gabriel’s prior statements to be otherwise admissible under 

FED. R. EVID. 803(2) and FED. R. EVID. 801(d). See Cisneros-Gutierrez, 

517 F.3d at 760. Tuesno conclusionally states that this was error, but he briefs 

no argument and cites no authority in support and has thus abandoned any 

challenge to those rulings. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th 

Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 

(5th Cir. 1987); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).

For the foregoing reasons, the district court’s judgments are 

AFFIRMED.

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