United States v. McGuire

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 21 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-3350
v.

JAMES S. McGUIRE,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 98-CR-40047-DES)

Marilyn M. Trubey, Assistant Federal Public Defender, (David J. Phillips, Federal
Public Defender, with her on the brief), of Topeka, Kansas, for Appellant.

Thomas G. Luedke, Assistant United States Attorney, (Jackie N. Williams, United
States Attorney, and Robin D. Fowler, Assistant United States Attorney, on the
brief), of Topeka, Kansas, for Appellee.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION
 Following a jury trial, James S. McGuire was convicted on charges of

taking a motor vehicle by force and violence (“carjacking”) in violation of

18 U.S.C. § 2119; he was sentenced to a term of imprisonment of 135 months. In

calculating McGuire’s sentence, the district court added four points to McGuire’s

offense level pursuant to United States Sentencing Guideline (“U.S.S.G.” or

“Sentencing Guidelines”) § 2B3.1(b)(3)(B) because the victim of the carjacking

suffered serious bodily injury. McGuire appeals his conviction and sentence,

asserting that the district court erred in the following four respects: (1) failing to

submit to the jury the question of whether the victim of the carjacking suffered

serious bodily injury; (2) refusing to instruct the jury that the crime of being an

accessory after the fact is a lesser included offense of carjacking; (3) refusing to

give the jury a requested cautionary instruction on the reliability of eyewitness

identifications; and (4) limiting McGuire’s cross-examination of a government

witness. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.

II. BACKGROUND

On April 13, 1998, sometime after 6:00 p.m., Michelle Jellison was at a

cemetery in Topeka, Kansas, visiting her father’s grave. As she was walking

through the cemetery, Jellison noticed two men sitting beside her car; one of the

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men was holding a bat. The man with the bat, later identified as McGuire,

approached Jellison and asked for a cigarette. Nervous that the man intended to

do her harm, Jellison started walking toward a group of people some distance

away in the cemetery. Unfortunately, they left before she reached them. McGuire

accompanied her as she walked across the cemetery.

Jellison eventually returned to her car. She told the two men she would

give them a ride, but wanted first to get a friend to accompany them. In response,

McGuire swung the bat at Jellison, who tripped and fell to the ground. McGuire

then hit her with the bat while she was on the ground, and even hit her several

more times after she gave him her car keys. Jellison testified that throughout this

incident, the other man, later identified as David Clovis, remained beside the

vehicle and did not say anything. Clovis testified, however, that he ran over,

picked up the car keys, yelled at McGuire, and attempted to pull McGuire away

from Jellison. McGuire and Clovis eventually left in Jellison’s car.

After the attack, Jellison summoned help from two people in the cemetery.

With their aid, Jellison first attempted to call her boyfriend because it was his car

that was stolen. When that attempt failed, she called the police. The first officer

arrived on the scene at 8:15 p.m. Based on statements made by Jellison at the

time, he testified that the incident occurred at 7:55 p.m. Jellison, on the other

hand, estimated that the incident occurred at approximately 7:00 p.m., as the sun

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was nearing the western horizon. During cross-examination on the question of

whether there was sufficient light at the time of the incident to allow her to

adequately view her assailant, Jellison acknowledged that there were no street

lights near where the incident occurred.

At trial, Jellison described the clothing of the man who beat her as being

dark khaki, black, or dark grey jeans and a dark khaki, dark grey, or black long

jacket. She further testified that the attacker was wearing two or three gold hoop

earrings. She had earlier told the police that the two men were of approximately

the same age and build and both had on dark jackets and pants. When Jellison

gave the police a description of her assailant, her main focus of identification was

the earrings worn by the person. She did not see the second person closely

enough to determine if he also wore earrings.

During Jellison’s direct testimony at trial, Clovis was brought into the

courtroom for the purpose of identification. Jellison stated unequivocally that it

was not Clovis who hit her with the bat. Furthermore, on the day after the attack,

Jellison had been shown a photographic lineup which contained McGuire’s photo.

At that point, she identified McGuire as being the assailant. Clovis’ picture was

not, however, included in that initial photographic lineup.

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 On April 14, 1998, at 1:00 am., McGuire and Clovis were arrested in

Manhattan, Kansas. At the time the police approached the defendants, McGuire

was seated in the passenger seat of the stolen vehicle. Clovis, who identified

himself as David Brian Jackson, jumped out of the car and made a telephone call

from a pay phone when he saw the police. Clovis gave the police several stories

regarding how he arrived in Manhattan and how he came to be in possession of

the vehicle. Clovis also told the police that he went to Manhattan to purchase

drugs.

Although Clovis was not wearing earrings at the time of his apprehension,

his left ear was double pierced. McGuire wore two silver hoop earrings in his left

ear. McGuire was wearing a black and blue nylon coat; Clovis wore a black

leather coat. Clovis had $150 in his possession; McGuire had $1.70. 1 Clovis

testified at trial that he spent $250 of Jellison’s money in an attempt to acquire

marijuana, but that he never received the marijuana.

Clovis, who was still thought to be David Brian Jackson, was eventually

transported from Manhattan to Topeka, Kansas. Based on their observation that

McGuire was wearing two earrings in his left ear and on Jellison’s selection of

McGuire’s picture from a photographic lineup, the officers told Clovis they

Jellison testified at trial that her “fanny pack” was in the stolen car and
1

that it contained approximately $500 in cash.

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believed he was a passive participant in the carjacking. En route back to Topeka,

Clovis directed the officers to two locations, where items from Jellison’s car and

the bat were recovered.

Clovis eventually pleaded guilty to being an accessory after the fact and

agreed to testify against McGuire. In exchange for the guilty plea and

cooperation, the government recommended that Clovis receive a sentence of

twelve months. At McGuire’s trial, Clovis acknowledged having been diagnosed

as being manic-depressive and suffering from bipolar disorder. Although he had

been placed on medication to control his behavior, Clovis acknowledged he was

not on such medication at the time of this incident.

McGuire’s defense theory was that Clovis was the actual attacker and that

he was, at best, a passive participant. In support of that theory, McGuire adduced

testimony tending to indicate, inter alia , that the attack might have taken place as

late as 7:55 p.m. when visibility might be reduced; Clovis and McGuire looked

alike and were similarly dressed on the evening of the attack; Jellison’s

perceptions might have been affected because she was distraught during the

entire episode; Clovis was driving the vehicle at the time they were caught; and

Clovis had $150 in large bills on him at the time he was arrested.

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 At the conclusion of the trial, McGuire was found guilty of carjacking in

violation of 18 U.S.C. §§ 2119 and sentenced to a term of imprisonment of 135

months.

III. ANALYSIS

A. Failure to Submit Question of Serious Bodily Harm to the Jury

In calculating McGuire’s sentence under the Sentencing Guidelines, the

district court increased McGuire’s offense level by four points because Jellison

suffered serious bodily injury as a result of the carjacking. See U.S.S.G. §

2B3.1(b)(3)(B). For the first time on appeal, McGuire asserts that the district

court erred in not submitting the question of the extent of Jellison’s injuries to

the jury. In so arguing, McGuire relies on the Supreme Court’s recent decision in

Jones v. United States , 119 S. Ct. 1215 (1999). 2

2
McGuire asserts that this court should review de novo the propriety of the
district court’s failure to submit the question of serious bodily injury to the jury
because the Supreme Court handed down its decision in Jones after his trial had
been completed. The Supreme Court recently rejected a similar argument,
holding that an appellate court should review an assertion of error which was not
raised at trial under Federal Rule of Criminal Procedure 52(b)’s plain-error rubric,
even when the failure to object at trial was based upon well-settled precedent.
See United States v. Johnson, 117 S. Ct. 1544, 1548 (1997); see also United
States v. Rogers, 118 F.3d 466, 471 (6th Cir. 1997) (collecting cases). Under the
plain-error rubric, before this court can correct an error not raised at trial there
must be (1) an error, (2) that is plain, and (3) that error must affect the
defendant’s substantial rights. Johnson, 117 S. Ct. at 1549. If all three of those
conditions precedent are met, this court can exercise its discretion to correct the

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 In Jones , the Supreme Court held that subsections (2) and (3) of 18 U.S.C.

§ 2119, respectively establishing increased penalties for carjackings which result

in serious bodily injury or death, 3
are not mere sentencing enhancements, but are,

instead, separate offenses “which must be charged by indictment, proven beyond

a reasonable doubt, and submitted to a jury for its verdict.” Jones , 119 S. Ct. at

1228. As noted by McGuire, this case shares several superficial procedural

similarities with Jones . For instance, both McGuire and the defendant in Jones

were indicted for carjacking in violation of 18 U.S.C. § 2119. See id. at 1218.

Neither the indictment here nor the indictment in Jones made any reference to

error only if the error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotations omitted). Because, as set out
below, the district court did not err in failing to submit the question of serious
bodily injury to the jury, this court need not address the remaining plain-error
factors.

Section 2119 provides as follows:
3

Whoever, with the intent to cause death or serious bodily harm
takes a motor vehicle that has been transported, shipped, or received
in interstate or foreign commerce from the person or presence of
another by force and violence or by intimidation, or attempts to do
so, shall–
(1) be fined under this title or imprisoned not
more than 15 years or both,
(2) if serious bodily injury . . . results, be fined
under this title or imprisoned not more than 25 years, or
both, and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.
18 U.S.C. § 2119.

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§ 2119’s numbered subsections and neither alleged that the victim was injured in

the carjacking. See id. Finally, as in this case, the jury instructions given in

Jones “defined the elements subject to the Government’s burden of proof by

reference solely to the first paragraph of § 2119, with no mention of serious

bodily injury.” Id.

At the post-verdict stage, however, this case diverged markedly from the

facts in Jones . As noted by the Supreme Court in discussing the procedural

history in Jones,

The case took a new turn . . . with the arrival of the
presentence report, which recommended that [Jones] be sentenced to
25 years for the carjacking because one of the victims had suffered
serious bodily injury. The report noted that [the victim] had
testified that [the carjackers’] gun caused profuse bleeding in [his]
ear, and that a physician had concluded that [he] had suffered a
perforated eardrum, with some numbness and permanent hearing
loss. Jones objected that the 25-year recommendation was out of
bounds, since serious bodily injury was an element of the offense
defined in part by § 2119(2), which had been neither pleaded in the
indictment nor proven before the jury. The District Court saw the
matter differently and, based on its finding that the serious bodily
injury allegation was supported by a preponderance of the evidence,
imposed a 25-year sentence on the carjacking count, together with a
consecutive 5-year sentence for the firearm offense.

Id. In stark contrast to the facts in Jones , McGuire’s presentence report

specifically noted that the maximum term of imprisonment under § 2119 was

fifteen years. In calculating the appropriate term within the zero to fifteen-year

window, the presentence report increased McGuire’s offense level by four points

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pursuant to U.S.S.G. § 2B3.1(b)(3)(B) because Jellison had suffered serious

bodily injury. Unlike in Jones , however, there was never any discussion of

increasing the statutory maximum penalty pursuant to § 2119(2) on that ground.

In fact, McGuire was ultimately sentenced to a term of imprisonment of 135

months, well below the 180-month maximum term provided for in § 2119(1).

Moreover, McGuire was provided with a copy of the presentence report well

before the sentencing hearing in accord with Federal Rule of Criminal Procedure

32(b)(6). Unlike the defendant in Jones , however, McGuire indicated that he had

no objections to the facts and calculations set forth therein. 4

In spite of these important procedural differences, McGuire claims that the

district court erred in failing to submit the question of Jellison’s injuries to the

jury. The Supreme Court’s decision in Jones , however, does not stand for the

incredibly broad proposition that anytime the question of bodily injury to a victim

arises in a federal prosecution, even in the application of the Sentencing

Guidelines, that question must be submitted to the jury. Instead, the Jones

decision is exceedingly narrow. It stands only for the limited proposition that

when the government seeks to invoke the heightened penalties set out in §§

2119(2) and (3), it must charge the aggravating facts of serious bodily injury or

As this procedural history reveals, McGuire’s assertion that he never had
4

notice that the injuries to Jellison would be relevant to his sentence, and,
therefore, no chance to litigate the extent of those injuries, is absolutely frivolous.

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death in the indictment, submit the question to the jury, and prove the existence

of the aggravating fact, as an element of the crime, beyond a reasonable doubt.

See Jones , 119 S. Ct. at 1227; see also United States v. Eads , 191 F.3d 1206,

1214 (10th Cir. 1999) (holding that the “more reasonable reading of Jones ” is

“one that anchors its holding to its facts, i.e. , the statutory provision involved”).

Because McGuire was not sentenced pursuant to the heightened penalties set out

in § 2119(2), Jones simply has no relevance to this case.

In this case, the question of serious bodily injury was considered as a

sentencing factor pursuant to § 2B3.1(b)(3)(B), rather than as an element of

aggravated carjacking pursuant to § 2119(2). Accordingly, the government was

obligated to prove that injury, at a post-verdict sentencing proceeding, by a mere

preponderance of the evidence. See United States v. Deninno , 29 F.3d 572, 580

(10th Cir. 1994). The facts set forth in the presentence report, to which McGuire

did not lodge an objection, are more than sufficient to satisfy that evidentiary

standard. See Fed. R. Crim. P. 32(b)(6)(D) (noting that the district court can

adopt as its own those facts set forth in the presentence report to which no

objection has been lodged).

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 B. Failure to Instruct Jury that Accessory After the Fact is a Lesser
Included Offense of Carjacking

At trial, McGuire proffered a jury instruction which (1) set forth the

elements of the crime of being an accessory after the fact; (2) would instruct the

jury that the crime of being an accessory after the fact was “necessarily” a lesser

included offense of the crime of carjacking; and (3) provided that should the jury

find McGuire not guilty of carjacking, it should move on to consider whether he

was guilty of being an accessory after the fact. The district court declined to give

the requested instruction. Under the standards set forth by this court in United

States v. Benally , 146 F.3d 1232, 1236 (10th Cir. 1998), McGuire contends that

the district court erred in refusing to give his proffered instruction.

To conclude that a district court erred in declining to give a lesser-

included-offense instruction, this court must find the existence of the following

four elements:

“(1) there was a proper request; (2) the lesser included offense
includes some but not all of the elements of the offense charged; (3)
the elements differentiating the two offenses are in dispute; and (4) a
jury could rationally convict the defendant of the lesser offense and
acquit him of the greater offense.”

Id. (quoting United States v. Moore , 108 F.3d 270, 272 (10th Cir. 1997)).

Whether an offense for which an instruction is sought qualifies as a lesser

included offense of the offense charged is a question of law which this court

reviews de novo ; a district court’s decision that the evidence is insufficient to

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justify the giving of a lesser-included-offense instruction is reviewed for an

abuse of discretion. See United States v. Duran , 127 F.3d 911, 914 (10th Cir.

1997).

Without any analysis or citation to authority, McGuire asserts that the first

three Benally elements are satisfied, i.e. , being an accessory after the fact is a

lesser included offense of carjacking. He further claims that the only remaining

question on appeal is whether the jury could rationally convict him of being an

accessory after the fact while acquitting him of carjacking. The United States

contests McGuire’s assertion that being an accessory after the fact is a lesser

included offense of carjacking. In particular, relying on the elements test set

forth by the Supreme Court in Schmuck v. United States , 489 U.S. 705, 716

(1989), the United States argues that being an accessory after the fact is never a

lesser included offense of carjacking because it requires proof of an element that

the underlying offense does not, i.e. , the defendant provided aid to the principal

after the commission of the crime in order to prevent the principal’s

apprehension, trial, or punishment. Id. (“Where the lesser offense requires an

element not required for the greater offense, no [lesser-included-offense]

instruction is to be given . . . .”).

This court agrees with the United States that being an accessory after the

fact is not a lesser included offense of carjacking. In so concluding, we find

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convincing a recent decision of the First Circuit in United States v. Rivera-

Figueroa , 149 F.3d 1 (1st Cir. 1998). In Rivera-Figueroa , a defendant raised the

exact argument advanced by McGuire in this appeal. See id. at 6. In rejecting

the claim that an accessory-after-the-fact charge is a lesser included offense of

carjacking, the First Circuit held as follows:

A defendant is ordinarily entitled to a lesser-included-offense
charge, if consistent with the evidence. [ Schmuck , 489 U.S. at 715-
16 & n.8; Fed. R. Crim. P. 31(c).] For obvious reasons, it is often to
the defendant’s advantage to request such a charge. But using the
“elements” test adopted by the Supreme Court in Schmuck , 489 U.S.
at 716, an accessory-after-the-fact offense is almost never going to
be a lesser include offense as to the principal crime.
The accessory-after-the-fact offense does have some elements
in common with the principal crime insofar as it requires proof of
the substantive offense by someone; and it is certainly a lesser
offense carrying a lesser penalty. 18 U.S.C. § 3. But the accessory
offense is not a lesser included offense because it requires proof that
the principal offense does not, namely, that the defendant assisted
after the principal crime was committed.

Id. at 6 & n.5.

This court agrees with the analysis set forth in Rivera-Figueroa and

concludes that being an accessory after the fact is not a lesser included offense of

carjacking because it requires proof of an element not necessary to prove

carjacking. Cf. United States v. Moore , No. 92-1351, 1994 WL 52640, at *6

(10th Cir. Feb. 17, 1994) (unpublished disposition cited as persuasive authority

pursuant to 10th Cir. R. 36.3) (applying elements test and holding that an

accessory-after-the-fact charge was not a lesser included offense of a possession

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of narcotics with intent to distribute charge because the accessory charge requires

proof of an element not required to prove the underlying drug charge).

Accordingly, this court concludes that the district court did not err in declining

McGuire’s proffered lesser-included-offense instruction. Cf. United States v.

McCoy , 721 F.2d 473, 475 ( 4th Cir. 1983) (holding that Double Jeopardy Clause

did not bar new trial and conviction on accessory-after-the-fact charges after

defendant had previously been acquitted of being an aider and abettor to the

underlying crime because the charges required proof of different elements).

McGuire obliquely references in a string citation the decision of the Eighth

Circuit in United States v. Brown , 33 F.3d 1002 ( 8th Cir. 1994). The court in

Brown held that it is reversible error to refuse to give an accessory-after-the-fact

instruction in conformity with a defendant’s theory of defense. See id. at 1004.

Brown involved a prosecution for bank robbery. See id. at 1003. The defendant

was caught several days after the robbery retrieving two duffle bags containing

the proceeds of the robbery. See id. At trial, the defendant took the stand and

testified that an acquaintance had paid him to retrieve the bags but that he did not

know what was inside. See id. The defendant then proffered a theory of the

defense instruction which set out the elements of being an accessory after the fact

and specifically informed the jury that if it found the defendant was a mere

accessory after the fact, rather than a principal, it must acquit him on the bank

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robbery charge. See id. at 1003, 1004. The Eighth Circuit concluded that the

district court had erred in refusing to give the proffered instruction, holding as

follows:

We hold the district court should have given the jury the
proffered accessory after the fact instructions. . . . [T]he proffered
instructions correctly stated the applicable law and correctly directed
the jury to acquit Brown if the jury found him not guilty of bank
robbery, but guilty as an accessory after the fact. In the present case,
the accessory after the fact theory functions as a defense. This is
because the government did not charge Brown as an accessory after
the fact. The government's theory of the case was that one person
had committed the bank robbery and that Brown was that person.
Brown did not dispute either that the bank had been robbed or that
he had attempted to retrieve the duffel bags; his theory of defense
was that he was, at most, an accessory after the fact.

Id. at 1004.

The situation in Brown is clearly distinguishable from the facts in this case.

In Brown , the defendant requested an accessory-after-the-fact instruction as his

theory of defense. That instruction specifically informed the jury what it meant

to be both a principal and an accessory after the fact and indicated that should the

jury conclude the defendant was merely an accessory after the fact, rather than a

principal, it must acquit. This was so because the armed bank robbery charge

was the only charge set forth in the indictment. See id. Such an instruction

presents the jury with a stark choice: it must acquit the defendant of the count

charged even though it concludes that the defendant did in fact commit the crime

of being an accessory after the fact.

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 McGuire’s proposed instruction was not a theory of defense instruction. It

was, as noted above, a lesser-included-offense instruction. Unlike the instruction

in Brown , which presented the alternative that if the defendant was “only” an

accessory after the fact he must be acquitted of the only charged crime,

McGuire’s proffered instruction would have had the jury first consider whether

the prosecution had satisfied each of the elements of the carjacking offense

actually charged in the indictment. The jury would have proceeded to the

question of whether McGuire was an accessory after the fact if, and only if, it

were to acquit McGuire of carjacking. As noted above, however, a charge of

being an accessory after the fact is not a lesser include offense of carjacking.

Given the important distinction between theory-of-defense instructions and

lesser- included-offense instructions, the analysis of the Eighth Circuit in Brown

simply does not apply to the circumstances of this case. 5
See Duran , 127 F.3d at

916 n.4 (noting that although defendant might have been entitled to theory-of-

defense instruction, he was not entitled to erroneous lesser-included-offense

instruction).

5
Because McGuire requested a lesser-included-offense instruction, rather
than a theory-of-defense instruction, this court has no occasion to opine on the
question of whether defendants in this Circuit are entitled to a instruction such as
the one approved by the Eighth Circuit in Brown. See United States v. Rivera-
Figueroa, 149 F.3d 1, 6 (1 st Cir. 1998) (surmising that “[t]he Eighth Circuit’s
approach [in Brown] appears . . . liable to mislead the jury”).

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 The district court did not err in declining McGuire’s proffered lesser-

included-offense instruction.

C. Failure to Provide Special Jury Instruction on Eye Witness
Identifications

At the close of the evidence, McGuire submitted a proposed cautionary

jury instruction noting special reliability concerns with eyewitness

identifications. Generally, McGuire’s proposed instruction provided that jurors

should view eyewitness identification testimony with caution if the testimony is

weakened by lack of opportunity on the part of the eyewitness to observe the

defendant, equivocation, prior inconsistent identifications, or prior failures to

identify. The district court declined McGuire’s requested instruction and decided

against providing the jury with any special instruction on eyewitness

identifications.

As recognized by McGuire, this court has rejected a rigid rule in favor of

giving a special eyewitness instruction in every case and, instead, has adopted a

flexible approach in determining whether the district court abused its discretion

in refusing to give such an instruction. See United States v. Thoma , 713 F.2d

604, 607-08 ( 10th Cir. 1983); United States v. Connor , 752 F.2d 504, 507-08

(10th Cir. 1985); United States v. McNeal , 865 F.2d 1167, 1171-72 ( 10th Cir.

1989); see also United States v. Brooks , 928 F.2d 1403, 1407-08 ( 4th Cir. 1991)

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(describing and adopting “flexible” approach set forth by this court in Thoma ).

Under Thoma ,

When a cautionary instruction on the possible infirmities of
eyewitness testimony is requested and not given, on appeal we will
focus on the facts of each case to determine whether the instruction
was required to fairly present the case to the jury. In particular, we
will consider whether identification was the sole or primary issue in
the case, whether the evidence consisted mainly of eyewitness
identification testimony, and whether that testimony was uncertain,
qualified, or suggested a serious question whether the witness had an
adequate opportunity to observe.

713 F.2d at 608.

A consideration of those factors set out in Thoma leads to the certain

conclusion that the district court did not err in refusing McGuire’s proffered

eyewitness instruction. Jellison’s in court identification of McGuire was clear

and unequivocal. Furthermore, Jellison testified that she had an unusually good

opportunity to observe her attacker. 6
Moreover, Jellison’s in-court identification

Jellison testified as follows about her opportunity to observe McGuire
6

during an exchange when McGuire asked Jellison for a cigarette:
Prosecutor: What happened [when McGuire first approached you in
the cemetery and asked for a cigarette?]
Jellison: I said, no, I didn’t have a cigarette. And I think it was
at that time that I noticed that he had a bat. And I–I
knew that something was a little strange. You know, he
had a bat, the two guys were sitting next to my car and,
you know, I was scared, so I–I knew that I needed to
make sure that I could identify this guy in case
something did happen, so I–
Prosecutor: Okay. Let me stop you right there. As the Defendant
asked you for a cigarette, how far away was he from

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of McGuire as her attacker is entirely consistent with her earlier identification of

McGuire from a photographic lineup. 7
Accordingly, there is very little in the

you?
Jellison: Oh, four feet or less.
Prosecutor: And the lighting conditions, could you see?
Jellison: Yes, it was still daylight.
Prosecutor: Now, you said you knew you needed to be able to
identify him. How did you know that?
Jellison: I’ve had self-defense training and I’ve even taught some
self-defense courses myself, and that’s one big thing
that’s really emphasized.
Prosecutor: So what did you do to try to make sure you could
identify the Defendant later?
Jellison: Well, when he asked me for the cigarette, you know, I
said no. And I made a point of saying, well, you’re not
old enough to smoke anyways, trying to see if I could
get his age or whatever, and it really allowed me to get a
real good look of his face when I said that, you know.
And he said yes he was old enough, I think he might
have said he was 20 years old. And again, when he said
that, that allowed me to again turn and look at his face
and get another good look at him and say, oh, you don’t
look 20. And I just–it gave me two real good chances to
really look at his face really close without
seeming–seeming like I was doing that on purpose.
7
McGuire seems to assert that this court should not consider Jellison’s
identification of him in the photographic line-up because that line-up was
suggestive. As noted by the United States, however, McGuire never challenged
the line-up on any grounds before the district court. Cf. Yapp v. Excel Corp., 186
F.3d 1222, 1230 (10th Cir. 1999) (“This court does not address issues that were
not properly raised before the district court.”). Furthermore, McGuire has
included only a passing reference to the supposedly suggestive line-up in his
appellate brief and has failed to include the photo array in the record on appeal.
Finally, the mere failure to include Clovis’ picture in the array does not render the
line-up suggestive. After Clovis and McGuire were detained by the officers in
Manhattan, McGuire provided officers with his real name and Clovis provided
officers with an alias. After the officers from Manhattan called the officers in

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record to indicate that Jellison’s identification of McGuire was uncertain or that

she did not have an adequate opportunity to observe McGuire at the time of the

attack. Id. Jellison’s identification of McGuire as her attacker did not stand

alone; it was corroborated by the following testimony at trial: Clovis clearly

identified McGuire as the principal of the carjacking offense; McGuire was

arrested in Jellison’s vehicle within a few hours of the carjacking; and, McGuire

was wearing two earrings in his left ear and wearing clothing which matched the

description given by Jellison to officers after the attack.

In light of the clear and unequivocal nature of Jellison’s identification and

the plethora of corroborative evidence supporting that identification, this court

concludes that the district court did not err in denying McGuire’s request for a

cautionary eyewitness instruction.

D. Restrictions on McGuire’s Cross-Examination of Clovis

At trial, McGuire sought to cross-examine Clovis as to each of the

following three matters: (1) Clovis’ three juvenile convictions for misdemeanor

theft; (2) an incident in which Clovis allegedly beat his former girlfriend; and (3)

Topeka and informed them of the names, the Topeka officers searched their files
and found a picture of McGuire. No file, and hence no photograph, existed under
the alias given by Clovis. Because McGuire’s photograph matched the
description provided by Jellison, officers included McGuire’s picture in a photo
array and presented the line-up to Jellison. Jellison immediately identified
McGuire as her assailant. There was nothing untoward or suggestive about this
procedure.

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whether Clovis was on probation at the time of the carjacking. The district court

wholly precluded McGuire from cross-examination concerning the juvenile theft

convictions and alleged beating of Clovis’ girlfriend. Although the district court

allowed McGuire to ask Clovis whether he was on probation at the time of the

carjacking, it refused to allow any follow-up questions after Clovis responded in

the negative. McGuire contends that these restrictions on cross-examination so

limited his ability to demonstrate any potential bias and prejudice on the part of

Clovis as to constitute a violation of the Sixth Amendment’s Confrontation

Clause.

This court reviews de novo whether cross-examination restrictions violated

a defendant’s Sixth Amendment right to confrontation. See United States v.

Gault , 141 F.3d 1399, 1403 (10th Cir. 1998). “Because a defendant’s right to

cross-examine witnesses is neither absolute nor unlimited, ‘[t]he trial court

retains broad discretion to limit cross-examination to prevent, among other

things, undue prejudice and confusion of the issues.’” United States v. Bindley ,

157 F.3d 1235, 1240 (10th Cir. 1998) (quoting Gault , 141 F.3d at 1403). In

reviewing a defendant’s challenge to limitations on cross-examination, this

court’s role is “to determine whether the jury had sufficient information to make

a discriminating appraisal of the witness’ motives and bias.” Id.

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 This court has reviewed Clovis’ testimony and concludes the jury had

sufficient information to properly appraise his credibility, motives, and any

possible bias. In contrast to McGuire’s assertions, the district court allowed him

to conduct an extensive and searching cross-examination of Clovis. McGuire

elicited the following testimony by cross-examination of Clovis, all of which

bears on Clovis’ credibility, motives, and biases: that Clovis initially lied to

police about his true name and his whereabouts and activities of the previous

twenty-four hours when he was first arrested by police in Manhattan, Kansas; that

Clovis did not “come clean” with the officers until Topeka detectives spoke with

him the next day and informed him that they thought that McGuire was the

primary attacker; that Clovis pleaded guilty to reduced federal charges and was to

receive a favorable sentencing recommendation; that his father had committed

him for a thirty-day stay at the Parkview Mental Hospital (“Parkview”) because

he “was lying to [his father] all the time”; that the doctors at Parkview concluded

Clovis was “totally out of control,” suffered from bipolar disorder, and was a

danger to himself and others; that Clovis told the staff at Parkview that he was

involved in gang activity, carried knives and guns, and had shot at people; that

sometime after his stay at Parkview, Clovis was placed at the Topeka Youth

Center, where the staff described him as “violent and aggressive”; and that he

was placed in a different psychiatric facility in January of 1994, again told

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facility staff that he was involved in gangs, sold drugs, and had killed people,

and was again diagnosed as suffering from bipolar disorder. The broad cross-

examination allowed was sufficient to attack Clovis’ credibility and to present

McGuire’s theory of the case, i.e. , that Clovis was the violent aggressor and, in

conformity with his history of violence, savagely beat Jellison and hijacked her

car.

Despite the extensive cross-examination detailed above, McGuire asserts

that the limitations imposed by the district court are inconsistent with the

Supreme Court’s decision in Davis v. Alaska , 415 U.S. 308 (1974). In Davis , the

Supreme Court found a violation of the Confrontation Clause when a criminal

defendant was precluded from cross-examining the state’s key witness about his

juvenile adjudications and probationary status. See id. at 317.

McGuire’s protestations to the contrary, “ Davis did not hold ‘that the

Constitution confers a right in every case to impeach the general credibility of a

witness through cross-examination about his past delinquency adjudications or

criminal convictions.’” United States v. Williams , 963 F.2d 1337, 1340 (10th Cir.

1992) (quoting Davis , 415 U.S. at 321 (Stewart, J., concurring)). In fact, this

case is distinguishable from Davis in several important respects. Unlike Davis ,

there is absolutely nothing in the record on appeal to support McGuire’s

speculation that Clovis was on probation at the time of the carjacking.

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Accordingly, the district court did not abuse its discretion in cutting off further

questions about Clovis’ criminal history, absent some indication that his

testimony as to his probationary status was false. See Bindley , 157 F.3d at 1240

(noting that trial courts retain broad discretion to limit cross-examination to

prevent undue prejudice and confusion of the issues). In addition, the witness in

Davis was the key witness. See Davis , 415 U.S. at 310 (describing witness as

“crucial”); Williams , 963 F.2d at 1340-41 (“ Davis involved the key witness for

the prosecution.”). Here, Jellison unequivocally identified McGuire as her

attacker and evidence adduced at trial strongly corroborated McGuire’s

involvement even absent the testimony of Clovis. Finally, as set out above,

McGuire effectively attacked Clovis’ credibility, bias, and motives without

reference to Clovis’ juvenile adjudications and alleged probationary status. See

Williams , 963 F.2d at 1341 (noting that in Davis , “the defense did not have

effective means, other than juvenile adjudications and probationary status, of

attacking the witnesses’ credibility or probing for bias”).

Finally, we easily conclude that the district court did not abuse its broad

discretion to control cross-examination when it precluded, on relevancy grounds,

a line of questions relating to Clovis’ allegedly abusive relationship with his ex-

girlfriend. McGuire never made an offer of proof as to the nature and extent of

Clovis’ alleged abuse of his girlfriend and never argued that the alleged abuse

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had a signature element similar to the attack on Jellison. Cf. Fed. R. Evid.

103(a)(1) (providing that error may not be predicated upon a ruling excluding

evidence unless “the substance of the evidence was made known to the court by

offer or was apparent from the context within which questions were asked”);

United States v. Tansley , 986 F.2d 880, 886 (5th Cir. 1993) (citing Rule 103 in

case involving confrontation challenge to cross-examination limitations). Absent

such a proffer, it is impossible to conclude that McGuire’s substantial rights were

affected by the limitation on cross-examination. Furthermore, as set out above,

McGuire was able to develop Clovis’ violent and lawless nature through other

avenues of

cross-examination.

IV. CONCLUSION

For all of the reasons set out above, the judgment of conviction entered

and sentence imposed by the United States District Court for the District of

Kansas is hereby AFFIRMED .

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