IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60095
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBIE LEWIS MAYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CR-124-ALL-WS
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September 5, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Bobbie Lewis Mayes appeals his conviction for carjacking.
Mayes contends that the district court erred: (1) in admitting
evidence of his two prior robbery convictions; (2) in admitting
evidence of the Capitol Medical Supply robbery; (3) in admitting
evidence of a witness’ identification of him in a physical
lineup; (4) in failing to grant a mistrial for prosecutorial
misconduct; and (5) by not granting his motion for a judgment of
acquittal.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 01-60095
-2-
The district court did not abuse its discretion in
determining that Mayes’ two prior robbery convictions were
admissible under Fed. R. Evid. 609(a)(1) because their probative
value outweighed their prejudicial effect. See United States v.
Cantu, 167 F.3d 198, 203 (5th Cir.), cert. denied, 528 U.S. 818
(1999); United States v. Preston, 608 F.2d 626, 639 (5th Cir.
1979). Moreover, since the district court gave an explicit
limiting instruction to the jury regarding the prior convictions,
any error in admitting the evidence was harmless. See United
States v. Hall, 152 F.3d 381, 402 (5th Cir. 1998), abrogated on
other grounds by United States v. Martinez-Salazar, 528 U.S. 304
(2000).
Neither did the district court abuse its discretion in
determining that the Capitol Medical Supply robbery was intrinsic
evidence of the carjacking and, therefore, admissible. See
Cantu, 167 F.3d at 203; United States v. Coleman, 78 F.3d 154,
155-57 (5th Cir. 1996). Furthermore, given the district court’s
limiting jury instruction regarding evidence of the robbery, any
error in admitting the evidence was harmless. See Hall, 152 F.3d
at 402.
The district court also did not abuse its discretion in
admitting evidence of the physical lineup, conducted without the
presence of defense counsel, at which the victim of the Capitol
Medical Supply robbery identified Mayes. See Cantu, 167 F.3d at
203. Although at the time of that lineup Mayes had already been
charged in state court with auto theft, Mayes was not entitled to
counsel with respect to the lineup because the Sixth Amendment
No. 01-60095
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right to counsel is offense-specific. See Texas v. Cobb, 121 S.
Ct. 1335, 1340-43 (2001). Because the Capitol Medical Supply
robbery and the car theft clearly did not constitute the same act
or transaction, and because robbery and car theft each require
proof of a fact that the other crime does not, see Miss. Code
Ann. §§ 97-3-73, 97-17-42, the two crimes are not considered the
same offense for purposes of the right to counsel. See Cobb, 121
S. Ct. at 1343; Blockburger v. United States, 284 U.S. 299, 303-
04 (1932).
The district court did not abuse its discretion in denying
Mayes’ motion for a mistrial based on prosecutorial misconduct in
the form of the Government’s eliciting of testimony regarding his
pre-trial incarceration. See United States v. Mitchell, 166 F.3d
748, 751 (5th Cir. 1999). Even assuming that the prosecutor’s
line of questioning was improper, Mayes has failed to demonstrate
that the questions prejudiced his substantial rights. See United
States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999), cert.
denied, 529 U.S. 1119 (2000).
Finally, the district court did not err in denying Mayes’
motion for judgment of acquittal. Mayes’ sole argument is that
there was insufficient identification evidence to allow any
rational person to conclude that he was the carjacker. Given
that both the carjacking victim and the Capitol Medical Supply
robbery victim identified Mayes and that he was admittedly in
possession of the carjacked vehicle one week after the crime,
No. 01-60095
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there was sufficient evidence for a reasonable juror to find that
Mayes was the carjacker. See United States v. Ortega Reyna, 148
F.3d 540, 543 (5th Cir. 1998).
In light of the foregoing, the district court’s judgment is
AFFIRMED.