                      IN THE UNITED STATES COURT OF APPEALS
                              FOR THE FIFTH CIRCUIT



                                           No. 98-60464



UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,

                                               versus


CLARENCE ERIC JACKSON a/k/a TUPAC,

                                                                      Defendant-Appellant.


                            Appeal from the United States District Court
                              for the Southern District of Mississippi
                                           (97-CR-17-1)


                                        December 17, 1999

Before JONES and WIENER, Circuit Judges, and WALTER, District Judge.*

Walter, District Judge:**

       Defendant-Appellee Clarence Eric Jackson, a/k/a/ Tupac (“Jackson”) raises numerous

points of error on appeal. Jackson asserts: (1) the district court imposed an improper sentence as

it unconstitutionally relied on information in his pre-trial psychiatric evaluation and improperly




       *
        District Judge of the Western District of Louisiana, sitting by designation.
       **
          Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
applied the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”);3 (2) the photo

array identification and in-court identification of him were constitutionally infirm and any evidence

concerning them should have been excluded; (3) the district court erred in permitting testimony by

his co-defendant Darrious Jackson (“Darrious”) and in restricting his impeachment of

Government witnesses; (4) the district court erred in admitting various items of evidence; (5) the

jury was improperly constituted, thus denying Jackson his Fifth and Sixth Amendment rights to a

fair trial by a fairly constituted jury; and (6) the carjacking charge against him was

unconstitutional. Finding no reversible error, we affirm the ruling of the district court.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       In December 1996 in Monticello, Mississippi, Darrious and another individual kidnapped

two fifteen-year-old cousins at gunpoint from a restaurant parking lot and carjacked their vehicle.

The girls were forced to accompany their abductors to New Orleans, Louisiana. Along the way,

Darrious pistol whipped one victim, and both victims were sexually assaulted multiple times. En

route, the abductors stopped for cigarettes at a Sun, Louisiana, convenience store where an

internal surveillance camera captured Darrious’ image. In New Orleans, the men locked the girls

in the trunk of the car and abandoned it. The girls escaped.

       On June 26, 1997, Jackson and his cousin Darrious were indicted on two counts of kidnaping

in violation of 18 U.S.C. § 1201(a)(1) and one count of carjacking in violation of 18 U.S.C. § 2119.

Darrious pleaded guilty to the kidnaping charges, and in exchange for naming Jackson as his

companion and testifying against him, the carjacking count was dismissed. He received a reduced

sentence for the kidnaping charges. Jackson pleaded not guilty at arraignment, but subsequently


       3
        United States Sentencing Commission Guidelines Manual (1997).

                                                   2
announced his intention to plead guilty. At the plea colloquy, Jackson revealed that he had been

hospitalized for paranoid schizophrenia in 1996. He responded to questions in a fashion that caused

the court to advise Jackson of the legal implications of mental conditions with respect to competence

and substantive guilt or innocence. Jackson terminated his guilty plea. The court ordered a

psychiatric examination to determine Jackson’s sanity on the date of the crime (on the request of

Jackson’s counsel) and to determine Jackson’s competency to stand trial (on the request of the

Government).

       In February 1998, the court found Jackson competent to stand trial. Jackson’s pre-trial

motion to suppress evidence of a photo identification and to prohibit an in-court identification of him

was overruled. The court also denied Jackson’s motion to dismiss the carjacking count on

constitutional grounds. In April 1998, a jury trial was held wherein Jackson was found guilty on all

counts. The chief factual issue was whether Darrious’ counterpart on the day of the crimes was

Jackson. Jackson adduced testimony from his mother, his brother, and an unrelated person that he

was in New Orleans at the time of the girls’ abduction, therefore, he could not have been Darrious’

counterpart. The court sentenced Jackson to life imprisonment on the kidnaping counts and to 300

months (the statutory maximum) on the carjacking co unt. In determining his sentence, the court

considered information in Jackson’s pre-trial psychiatric evaluation.

                                         II. DISCUSSION

Consideration of Pre-Trial Psychiatric Evaluation in Sentencing




                                                  3
          This court reviews a district court's application of the sentencing guidelines de novo and the

court’s findings of fact for clear error.4 In Estelle v. Smith,5 the Supreme Court held that where the

defendant had not introduced psychiatric evidence in his case, a psychiatrist who examined the

defendant pursuant to a court-ordered examination, without warning him that what he said could be

used against him in a capital sentencing proceeding, could not testify against him in such a

proceeding.6 “[D]iscern[ing] no basis to distinguish between the guilt and penalty phases of . . . [the]

trial so far as the protection of the Fifth Amendment privilege is concerned,” the Court held that

admission of the psychiatrist’s testimony violated the defendant’s Fifth Amendment rights.7 The

Court similarly concluded that the psychiatrist’s testimony violated the defendant’s Sixth Amendment

right to the assistance of counsel, as (1) defense counsel “were not notified in advance that the

psychiatric examination would encompass the issue of [the defendant’s] future dangerousness”; (2)

the defendant was denied the assistance of counsel in determining whether to submit to the

examination and “to what end the psychiatrist’s findings could be employed.”8 The Court noted that

“a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty

phase”9




          4
           United States v. Morrow, 177 F.3d 272, 300 (5th Cir. 1999).
          5
           451 U.S. 454 (1981).
          6
           Id. at 461-69, 471.
          7
           Id. at 462-63, 468.
          8
           Id. at 470-472.
          9
           Id. at 472.

                                                    4
       Jackson asserts the district court violated his constitutional rights, as recognized in Estelle and

its progeny,10 by sentencing him to life in prison on the basis of information obtained from a court-

ordered pre-trial psychiatric examination. He maintains the court’s chief basis for imposing a life

sentence was “future dangerousness” information contained in the psychiatrist’s report, specifically,

Jackson’s statements concerning his prior conduct and fantasies. He acknowledges that his counsel

requested the examination, but maintains he did not waive his rights, as he did not offer any

psychiatric evidence, did not put his mental state at issue, and did not request mitigation of his

sentence based on his mental state. Moreover, Jackson points out that his counsel requested the

examination for the limited purpose of ascertaining whether he could meet the substantive criteria for

the sanity defense suggested to him by the court, not to determine future dangerousness issues at

sentencing. Jackson submits that he was never Mirandized as mandated by Estelle. Jackson also

relies on Federal Rule of Criminal Procedure Rule 12.2(c), which prohibits the use of statements

made in a psychiatric examination “except on an issue respecting mental condition on which the

defendant has introduced testimony.”

       The Government contends the prohibition does not apply in formulating a just sentence. The

Government maintains an extension of the testimonial bar in Estelle and its progeny to the court’s

inherent authority to craft and pronounce a sentence is incorrect. The Government argues that

U.S.S.G. § 1B1.4, not Estelle, is the controlling factor in confecting a sentence. Section 1B1.4

provides, in pertinent part,


       10
         See e.g. Vanderbilt v. Collins, 994 F.2d 189, 198-99 (5th Cir. 1993) (holding that the
Government’s use of psychiatric evidence on the issue of future dangerousness during the penalty
phase violated the defendant’s Fifth and Sixth Amendment rights, in light of the failure to provide
the defendant with Miranda warnings before the examination and the failure to inform defense
counsel that the examination would encompass the issue of future dangerousness).

                                                   5
“[i]n determining the sentence to impose within the guideline range, or whether a departure from the

guidelines is warranted, the court may consider, without limitation, any information concerning the

background, character and conduct of the defendant, unless otherwise prohibited by law.”

The Commentary to 1B1.4 states that “Congress intended that no limitation would be placed on the

information that a court may consider in imposing an appropriate sentence under the future guideline

sentencing system.” Furthermore, “information that does not enter into the determination of the

applicable guideline sentencing range may be considered in determining whether and to what extent

to depart from the guidelines.” Title 18 U.S.C. § 3661 specifically states that “[n]o limitation shall

be placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for the purpose

of imposing an appropriate sentence.”

       The court was within its discretion in considering the information contained in Defendant’s

psychiatric report. Sentencing judges have considered a wide variety of information inadmissible at

trial, including hearsay,11 illegally obtained evidence12 and evidence of other offenses of which a

defendant has been acquitted.13 Accordingly, district courts enjoys wide latitude in the information

it may consider during sentencing. Here, the district court properly considered information in


       11
          See United States v. Beal, 960 F.2d 629, 634 (7th Cir. 1992) (holding that a sentencing
judge is free to consider a wide variety of information that would be inadmissible at trial, including
hearsay).
       12
         See United States v. McCrory, 930 F.2d 63, 68-69 (D.C. Cir. 1991) (holding that
evidence seized in a warrantless, illegal search could be used to calculate the defendant’s base
offense level under the Guidelines, without regard to the admissibility of that evidence at trial).
       13
         See United States v. Watts, 519 U.S. 148 (1997) (holding that the sentencing court may
consider conduct of which defendant has been acquitted, so long as that conduct has been proved
by preponderance of evidence).

                                                  6
Defendant’s psychiatric report in determining his sentence. Moreover, the district court stated that

it would have imposed the same sentence had it not considered the psychiatric evaluation.14

Application of the Sentencing Guidelines

        This Court “uphold[s] a sentence imposed pursuant to the guidelines unless it is imposed in

violation of law, is the result of incorrect application of the guidelines, or is an unreasonable departure

from the applicable guideline range.”15 “We review determinations of legal principles de novo and

factual findings for clear error.”16 A de novo standard of review applies to the district court’s finding

that prior convictions were not “related” for purposes of determining whether convictions can be

counted as prior convictions under the career offender provision of the Guidelines.17

        Application of the Guidelines by the district court resulted in a total offense level of 39 and

a criminal history category of IV, with an imprisonment range of 360 months to life. Finding it

necessary to protect society from Jackson, the court imposed a life sentence. To arrive at the total

offense level, the court applied U.S.S.G. § 2A4.1(b)(7) which provides that if a defendant kidnaps

a victim to facilitate commission of another offense, he can be sentenced under the guideline for the

other offense.18 Under U.S.S.G. § 2A3.1, a base offense level of 27 is assigned for criminal sexual


        14
          We have considered Mitchell v. United States, 526 U.S. 314 (1999), and find it
inapposite.
        15
             United States v. Anderson, 5 F.3d 795, 798 (5th Cir. 1993).
        16
             Id.
        17
             United States v. Garcia, 962 F.2d 479, 481 (5th Cir. 1992).
        18
          See U.S.S.G. § 2A4.1(b)(7). (“If the victim was kidnapped, abducted, or unlawfully
restrained during the commission of, or in connection with, another offense or escape therefrom,
or if another offense was committed during the kidnapping . . ., increase to -- (A) the offense level
from the Chapter Two offense guideline applicable to that other offense if such offense guideline

                                                    7
abuse. The district court then made the following offense level increases: 4 levels as the offense was

committed by means set forth in 18 U.S.C. § 2241(a) or (b) (including the use or display of a

dangerous weapon); 2 levels as the victims were not sixteen years old; 2 levels as the victims

sustained serious bodily injury;19 and by 4 levels as the victims were abducted.20 Ultimately, the court

calculated a total offense level of 37 for counts one and two.

        As to count three (carjacking), the court found that a base offense level of 20 applied pursuant

to U.S.S.G. § 2B3.1. Next, the court made the following increases: (1) because a firearm was

otherwise used,21 a 6-level increase; (2) because the victims sustained serious bodily injury, a 4-level

increase; (3) because the victims were physically restrained to facilitate the offense, a 4-level

increase;22 (4) because the offense involved carjacking, a 2-level increase. The adjusted offense level




includes an adjustment for kidnapping, abduction, or unlawful restraint, or otherwise takes such
conduct into account; or (B) 4 plus the offense level from the offense guideline applicable to that
other offense, but in no event greater than level 43, in any other case.”). See also United States v.
Jackson, 978 F.2d 903, 913 (5th Cir. 1992).
        19
          The Guidelines define “serious bodily injury” as “injury involving extreme physical pain
or the protracted impairment of a function of a bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery, hospitalization, or physical rehabilitation. In
addition, ‘serious bodily injury’ is deemed to have occurred if the offense involved conduct
constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under
state law.” U.S.S.G. § 1B1.1, Application Note 1(j).
        20
             See U.S.S.G. § 2A3.1(a), (b)(1)-(5).
        21
          The Guidelines define “otherwise used” as “conduct that did not amount to the discharge
of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous
weapon.” U.S.S.G. § 1B1.1, Application Note 1(g).
        22
         See U.S.S.G. § 2B3.1(b)(2)-(5). Although the court stated that it applied a 4-level
increase because the victims were physically restrained, it appears the court made that reference in
error and intended to apply the increase because the victims were abducted to facilitate the
offense. Only a 2-level increase is applied for physical restraint. See U.S.S.G. § 2B3.1(b)(4).

                                                    8
for the carjacking count was 36. The court grouped the counts together and determined a combined

offense level of 39.23

        Jackson contends the court misapplied the guidelines by: (1) using the sexual abuse guideline

under § 2A3.1 rather than the kidnapping guideline under § 2A4.1 to calculate the base and adjusted

offense levels; (2) applying the enhancement for otherwise using a firearm; (3) applying the

enhancement for serious bodily injury to the victims; (4) assigning eight criminal history points under

§ 4A1.2(d)(2)(B) and § 4A1.1(a)(2), resulting in an incorrect criminal history category of IV; and (5)

imposing a life sentence.

        Jackson proposes the kidnapping counts be assessed under the kidnapping guideline, U.S.S.G.

§ 2A4.1, which would have resulted in the carjacking guideline, U.S.S.G. § 2B3.1, being the main

guideline into which the kidnapping counts would have been grouped. This, he contends, would have

resulted in a total offense level of no more than 38. Jackson urges that his kidnapping conviction was

improperly sentenced under the sexual abuse guideline, as “the kidnapping/carjacking was undertaken

primarily to secure transportation to New Orleans” and “the sexual victimization of the [girls] was

the means to that end.” He urges that the sexual victimization was a crime of opportunity that could

be fully accounted for by including an enhancement for sexual abuse in the kidnapping guideline itself.



        Jackson contends the court erred in concluding he did anything more than brandish or display

his weapon during the crime.24 He insists he did nothing more than show the gun to the victims in


        23
             See U.S.S.G. §§ 3D1.2, 3D1.4.
        24
         The term “brandished” means “the weapon was pointed or waived about, or displayed in
a threatening manner.” U.S.S.G. § 1B1.1, Application Note 1(c). “Otherwise used” is defined as
“conduct that did not amount to the discharge of the firearm but was more than brandishing,

                                                  9
a threatening manner. Jackson asserts that the court erred in determining the physical injury to the

victims was “serious bodily injury.” Instead, Jackson argues the injuries were more in line with the

normal injuries resulting from a female’s first experience with sexual intercourse, making it simply

“bodily injury.” Finally, he contends the court erred in calculating his criminal history points. He

urges that the court should not have treated a “juvenile joyride” the same as a felony. Jackson further

contends the district court should not have treated two prior Louisiana convictions that were

consolidated for plea and sentencing purposes as separate offenses in terms of his federal sentencing.25



        The Government asserts the court properly applied the sexual abuse guideline, noting that

kidnaping may facilitate sexual abuse.26 It urges that “[t]o say that the facilitated crime was merely

for purposes of obtaining transportation . . . flies in the face of the Record” given the “five savage

rapes of [the girls] over a period of about 3 ½ hours.” As to the enhancement for “otherwise using”

a firearm, the Government insists the court properly applied this enhancement since the weapons were

used to facilitate the carjacking and rapes. The Government highlights that Jackson pointed a rifle

at the girls and threatened to “blow [one girl’s] guts out” as he and Darrious committed the subject



displaying, or possessing a firearm or other dangerous weapon.” Id. at Application Note 1(g).
        25
          See United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998) (“[W]hen factually
distinct offenses are charged in the same criminal information under the same docket number,
those offense have been ‘consolidated’ . . . and are therefore related. Sentences flowing from
such consolidated cases should not be counted separately under §§ 4A1.1-.2.”).
        26
          See United States v. Galloway, 963 F.2d 1388, 1391 (10th Cir. 1992) (holding that the
district court properly applied the guideline for sexual abuse rather than the more lenient guideline
for kidnaping in sentencing the defendant when the victim was kidnapped to facilitate sexual
abuse and that this result is not changed by the fact that the defendant also committed another
offense in connection with the kidnaping).

                                                  10
crimes. Darrious used a revolver to strike one girl in the face to subdue her for rape. The

Government correctly points out that both victims suffered serious bodily injury, making enhancement

for such injury entirely proper. The Guidelines plainly provide that serious bodily injury is deemed

to have occurred if the offense involved criminal sexual abuse conduct.27 Finally, the Government

asserts the court correctly assessed Jackson’s criminal history points.

        The district court properly declined to treat a juvenile adjudication for automobile theft and

flight from officers as a “joyride.” Further, the district court correctly refused to treat two prior,

unrelated convictions for criminal events occurring over six months apart, but that were consolidated

for sentencing, as separate.28 Under U.S.S.G. § 4A1.2, Application Note 3, “[p]rior sentences are

not considered related if they were for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior

sentences are considered related if they resulted from offenses that . . . were consolidated for trial or

sentencing.”




        27
          See U.S.S.G. § 1B1.1, Application Note 1(j). The Government points out that one
victim suffered a laceration to her posterior fourchette, two smaller tears to her hymenal tissue,
and swelling. The other victim suffered a small tear in her posterior fourchette, small abrasions
and first-degree lacerations on her labia majora, fresh blood, a hematoma, and bruising to her
hymenal ring.
        28
         On May 29, 1996, Jackson was charged with False Imprisonment with a Weapon;
Unauthorized Entry into a Dwelling; and Aggravated Assault. On February 4, 1997, Jackson was
charged with two counts of 1st Degree Armed Robbery. These charges did not involve common
victims or otherwise result from the same criminal transaction, nor were they consolidated for
trial. The Court does not treat factually distinct offenses as “related” simply because (1) the
sentences were issued on the same day, see United States v. Metcalf, 898 F.2d 43, 46 (5th Cir.
1990), or because (2) the court imposed concurrent sentences, see United States v. Flores, 875
F.2d 1110, 1114 (5th Cir. 1989). Accordingly, the district court did not err in treating the
offenses as non-related for purposes of sentencing.

                                                   11
       We hold there was no error in the district court’s application of the Guidelines. The court

properly applied the sexual abuse guideline under § 2A3.1.29 The court did not abuse its discretion

in finding that Jackson “otherwise used” a firearm in the commission of the offenses. As the record

indicates, Jackson and Darrious used firearms to facilitate the crimes at hand. Additionally, the court

properly enhanced the base offense level for serious bodily injury. The Guidelines make it clear that

such an enhancement is proper, especially considering the extent of the victims’ injuries. The court

did not err in calculating Jackson’s criminal history points. Finally, the court was also within its

discretion to impose a life sentence, the maximum sentence within the Guideline range. Photographic

and In-Court Identification

       Whether identification evidence is admissible at trial is a mixed question of law and fact

subject to de novo review, but the district court’s underlying factual findings are reviewed for clear

error.30 “[T]he Fifth Circuit views the evidence presented at a hearing on a motion to suppress in the

light most favorable to the prevailing party.”31

       “A conviction based upon an eyewit ness identification at trial following a pretrial

photographic identification must be set aside ‘only if the photographic identification procedure was

so impermissibly suggestive as to give rise to a very subst antial likelihood of irreparable

misidentification.’”32 The court considers two factors to determine the admissibility of identification


       29
         See Anderson, 5 F.3d at 798-99. (upholding the district court’s sentence wherein the
court applied the U.S.S.G. § 2A4.1(b)(7) kidnaping crossover reference which led it to apply the
U.S.S.G. § 2A3.1 sexual abuse guideline).
       30
            United States v. Fletcher, 121 F.3d 187, 194 (5th Cir. 1997).
       31
            United States v. Nichols, 142 F.3d 857, 865 (5th Cir. 1998).
       32
            Fletcher, 121 F.3d at 194.

                                                   12
evidence.33 First, whether the photographic array was impermissibly suggestive,34 and, if so, whether

“the display posed a very substantial likelihood of irreparable misidentification” based upon the

totality of the circumstances.35 In determining the reliability of the identification under the totality

of the circumstances standard, the court should consider:

       the opportunity of the witness to view the criminal at the time of the crime, the
       witness’ degree of attention, the accuracy of the witness’ prior description of the
       criminal, the level of certainty demonstrated by the witness at the confrontation, and
       the length of time between the crime and the confrontation.36

       One victim identified Jackson during a photo identification in March 1997, three months after

the incident in question. The court permitted the girl and an FBI agent to testify regarding this

identification and admitted the photo array into evidence. The girl reaffirmed her identification by

picking out Jackson’s photo from a spread, and she identified Jackson in the courtroom. Jackson

objected to all such identification testimony and to the introduction of the photo array.

       Jackson asserts the victim’s photo spread and in-court identification were constitutionally

infirm and that no evidence concerning them should have been admitted.               He contends the

photographic identification procedure was impermissibly suggestive, giving rise to a substantial

likelihood of irreparable misidentification. Thus, he maintains the photo identification and the in-

court identification should be excluded.




       33
            See id.
       34
            See id.
       35
            Id.
       36
            Id.

                                                  13
       Jackson points out that (1) he was t he only individual whose photograph had a distinctive

bright pink or red coloring to it; (2) although there were six people in the photo array, only two had

characteristics in conformity with the victims’ description of Darrious’ accomplice; (3) the victims

had little opportunity actually to view their assailants; (4) the victims were exposed to “wanted

posters” of Jackson between the time of the crime and the identification; and (5) due to the victims’

restricted social circle and lack of experience in the world, they would be particularly poor at

discerning subtle distinctions among facial characteristics of African-American men. Jackson further

contends that the victim’s recollection was improperly bolstered by a pre-trial “dress rehearsal

coaching session” in which she was again shown the photo array. Based on the foregoing, Jackson

insists that the Biggers factors37 were compromised, thereby shifting the burden of proof to the

Government to establish the identification was not suggestive, or if suggestive, did not irreparably

taint an in-court identification. Jackson contends the Government fell short of satisfying this burden.

       The Government insists there was no error; rather, Jackson’s contentions make unwarranted

leaps of faith in postulating that the victim was disqualified from making an in-court identification.

The Government maintains that (1) Defendant fails to suggest any way in which the photograph array

was impermissibly suggestive — i.e., in ways such as clothing, background, skin tones, facial features,

or facial hair (and Jackson did not object to a discordant background color in his photograph until

trial); (2) the only evidence of “wanted posters” was a composite drawing of Jackson published in

Lawrence County; (3) the victim never testified she had seen any such photographs or drawings (and

was in fact told by the FBI to avoid exposure to any such likeness of Jackson); and (4) the

Government’s alleged “coaching” of the victim was nothing more than standard witness preparation.


       37
            Neil v. Biggers, 409 U.S. 188, 199 (1972).

                                                  14
       Moreover, the Government points out that the court required a proffer setting forth the entire

identification process prior to permitting the in-court identification. It was proffered that: (1) the

victim met with the FBI and the prosecutor in Monticello on March 17, 1997; (2) the FBI agent did

not tell her that Jackson’s photo was contained in the spread; (3) no one told her that she should

identify anyone in the photos; (4) no reward or inducement was offered to her to identify anyone; and

(5) she identified Jackson from the photo spread. A similar proffer was made as to when she was

shown a series of photographs the day before trial. The court also undertook a series of questions,

eliciting much the same information. The Court established she had not noticed any pinkish cast in

any of the photographs, and thus was not influenced by that factor in her identification of Jackson.

The Government submits that in the presence of the jury, her answers were entirely consonant with

her testimony during the proffer. We adopt the arguments of the Government and find the district

court did not err in admitting the photo array identification into evidence or permitting the in-court

identification of Jackson.

Witness Testimony

       This Court reviews limitations on the scope of cross-examination for clear abuse of

discretion.38 “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive




       38
            United States v. Campbell, 49 F.3d 1079, 1085 (5th Cir. 1995).

                                                  15
or only marginally relevant.”39 As such, “[t]he relevant inquiry is whether the jury had sufficient

information to appraise the bias and motives of the witness.”40

       Jackson contends the court erred in permitting Darrious to testify41 and in restricting his cross-

examination of Government witnesses. Jackson sought to impeach Darrious’ testimony that Jackson

was his mentor in criminal activity by establishing that Darrious’ criminal companions were generally

persons other than Jackson. The court prohibited Jackson from questioning Darrious or Jerry Ray

McGee on this matter. Jackson also sought to establish bias and motive on the part of McGee based

on evidence that the FBI had reports that McGee had committed firearm offenses which it chose not

to investigate. The court prevented Jackson from adducing t his evidence from the FBI agent, the

witness who provided this information to the FBI, and McGee.

       The Government contends the court was correct in restricting both cross-examinations. As

to the alleged firearms violations, the Government asserts that Jackson “attempted to drag the jury

into a Stygian quagmire by claiming the existence of some deal struck by [it], the FBI, the prosecutor,

or some state agency, to forego prosecution of McGee, all in the face of no proof whatsoever.” The

Government maintains that no such deal was ever made. Furthermore, the Government points out




       39
            Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
       40
            United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993).
       41
           Jackson cites to United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), reversed en
banc, 165 F.3d 1297 (10th Cir. 1999) to argue that Darrious’ testimony was obtained in violation
of 18 U.S.C. § 201(c)(2) (bribery of public officials and witnesses). This has never been the law
in this circuit. See United States v. Haese, 162 F.3d 359, 366-67 (5th Cir. 1998) (upholding a
prosecutor’s grant of leniency to witnesses in exchange for their truthful testimony).

                                                  16
that failure to disclose any such deal would violate its obligations under Giglio v. United States.42

Additionally, the Government insists the cross-examinations were properly limited, as (1) extrinsic

evidence of specific instances of conduct could not be used to attack the witness’ credibility inasmuch

as none of the Rule 608 exceptions applied;43 and (2) the attempted cross-examinations were nothing

more than an effort to “dirty” the witnesses and confuse the issues which is prohibited under Rule

403.

        We find no error in the court’s limitation of Jackson’s cross examinations. There was no

evidence of any deal between McGee and the Government. As such, the court did not improperly

restrict cross examination on this matter.

Admission of Tangible Evidence

        This court reviews evidentiary rulings for abuse of discretion and will reverse a district court's

ruling only if it affects a substantial right of a party.44

        Jackso n contends the court abused its discretion in admitting the following items into

evidence: (1) a video surveillance tape taken the day of the crimes and a still photograph (made from


        42
          405 U.S. 150 (1972) (holding that if Assistant United States Attorney (“AUSA”), who
first dealt with key Government witness, promised witness that he would not be prosecuted if he
cooperated with the Government, such a promise was attributable to the Government, regardless
of whether attorney had authority to make it, and nondisclosure of promise, which was not
communicated to AUSA who tried the case, would constitute a violation of due process requiring
a new trial).
        43
          See FED. R. EVID. 608 (providing that specific instances of conduct, if probative of
truthfulness or untruthfulness, may be inquired into on cross-examination). See also United
States v. Clemons, 32 F.3d 1504 (11th Cir. 1994). The court held that an inquiry on cross-
examination regarding the witness’ previous use or sale of crack cocaine was inadmissable, as it
“was neither probative of his truthfulness or his capacity to testify nor relevant to discovering the
facts of this case.” Id. at 1511.
        44
             Caparotta v. Entergy Corp., 168 F.3d 754, 755-56 (5th Cir. 1999).

                                                     17
the video tape) depicting Darrious at a Sun, Louisiana, convenience store; (2) an audio tape and

transcript of two 911 calls made by the victims following their escape from the trunk of the car; and

(3) photographs from July 22, 1999, of one victim’s facial injury and the other victim’s blood-stained

jeans and panties. He asserts that the video tape and still photograph actually contradicted Darrious’

testimony, as the time stamp on the videotape placed him at the store twelve hours after the crime,

making it too remote in time from the events it was offered to prove. Therefore, the evidence was

not relevant, not authentic, and inadmissible. Even if “technical relevancy” were established, he

maintains the court still abused its discretion, as this evidence was unduly prejudicial and its probative

value was outweighed by the possibility that it would mislead the jury.45

        Jackson similarly argues that the 911 tapes and transcript were cumulative, prejudicial, and

“far more likely to inflame the jury’s sympathy for the victims and cloud its dispassionate assessment

of the real issue in this case — who the admitted perpetrator’s companion was — than to establish

the likelihood that [Jackson] was that companion.” Finally, Jackson contends the court erred in

admitting photographs of one victim’s facial injury and the other victim’s blood-stained garments.

This evidence, he maintains, was inflammatory and not necessary to prove any issue in dispute as

there was no factual disput e that one victim suffered facial injuries or that the abductors sexually

assaulted both victims.

        The Government maintains that the tape and transcript of the 911 calls, which were made

within seconds of the girls’ escape, were admissible exceptions to hearsay as (1) present sense




        45
             Id.

                                                   18
impressions under Rule 803(1), and (2) excited utterances under Rule 803(2).46 It insists the

statement was a contemporaneous present sense impression, as it was made within seconds of the

girls’ escape, and the subsequent physical and medical findings corroborate the declarant’s statement

that she and her cousin were kidnapped and raped.47 The Government also contends that the calls

were admissible as excited utterances made soon after the girls’ three-and-one-half-hour kidnaping

ordeal, which included an armed carjacking and multiple sexual assaults. Finally, the Government

submits that there was no error in allowing the jury to view the transcript simultaneously with the

playing of the 911 tape. In this circuit, “[t]ranscripts are admissible to aid the jury in understanding

a recording, including cases in which ‘the transcript may be helpful either to identify the speakers or

to understand portions which are difficult to hear.’”48

       The Government contends the convenience store video tape and still photograph placing

Darrious Jackson in Sun, Louisiana, on the day of the offense are relevant, properly authenticated,

admissible evidence, as (1) Darrious specifically identified himself as depicted; (2) the identification

is bolstered by the victim’s descriptions and Darrious’ testimony as to the date and time of the crime



       46
          For a statement to be admitted pursuant to the excited utterance exception to the hearsay
rule, there must (1) “be some occurrence or event sufficiently startling to render normal reflective
thought processes inoperative,” and (2) “the statement of the declarant must have been a
spontaneous reaction to the occurrence or event and not the result of reflective thought.” People
of Territory of Guam v. Cepeda, 69 F.3d 369, 372 (9th Cir. 1995).
       47
         See United States v. Hawkins, 59 F.3d 723, 729 (8th Cir. 1995) (holding that district
court did not abuse its discretion by admitting a tape of a 911 emergency telephone call from
defendant’s wife reporting that he displayed a gun to her during a domestic dispute did not require
exclusion as hearsay, as the tape constituted a present sense impression with sufficient
contemporaneity to the underlying events and reliability evidenced by the wife’s detailed
description of the gun), vacated on other grounds, 516 U.S. 1168 (1996).
       48
            United States v. Murray, 988 F.2d 518, 525 (5th Cir. 1993).

                                                  19
and of his and Jackson’s flight to Louisiana with the girls; and (3) he denied ever having been at the

store other than the instance when he appeared on the videotape. The Government asserts the

erroneous date stamp goes to the weight and not the admissibility of the evidence.

       As to the photographs and blood-stained clothing, the Government contends the probative

value of this evidence far outweighs any danger of unfair prejudice. The Government contends the

photograph shows facial injuries to one victim inflicted by Darrious, whose actions Jackson

facilitated, and the clothing reflects Jackson’s use of force and violence. The introduction of this

evidence, the Government advances, enabled it to prove the elements of the charged offenses. The

Government had to prove the carjacking was “by force and violence or by intimidation” and that

“serious bodily injury” resulted. 49 It also had to prove the kidnaping was for “ransom, reward, or




       49
         18 U.S.C. § 2119. That section provides that:
           [w]hoever, 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 (as defined in section 1365 of this title, including any
       conduct that, if the conduct occurred in the special maritime and territorial
       jurisdiction of the United States, would violate section 2241 or 2242 of this title)
       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.

                                                 20
otherwise.”50 Consequently, wrongful exclusion of this evidence would have entirely circumscribed

the Government’s ability to prove the elements of the charged offenses.51

       The court did not commit reversible error in admitting the above-described evidence. We

recognize that admission of the blood-stained clothing is a close call under Rule 403. Nevertheless,

it was not an abuse of discretion in view of the overwhelming evidence of guilt. Moreover, in light

of Jackson’s contention that the girls did not suffer “serious bodily injury,” the photographs and

blood-stained clothing certainly assisted the Government in establishing key elements of its case.

Challenges to the Jury

       To prevail on a claim that the court abused its discretion in denying challenges for cause to

excuse prospective jurors, Jackson must show that the court’s conclusion that the jurors in question

could perform their duties as jurors was manifest error.52

       A prospective juror may be excluded for cause when his views would prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions and oath.53


       50
         18 U.S.C. § 1201(A)(1). See e.g., United States v. Rivera, 83 F.3d 542, 546 (1st Cir.
1996) (holding that evidence of rape related to a critical element of the crime of carjacking —
possession of a firearm — thus was admissible and was not unduly prejudicial when defense was
based solely on theory that possession of firearm had not been proven beyond a reasonable
doubt). See also United States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977) (holding that
transportation of a kidnaping victim for the purpose of sexual gratification is sufficient to satisfy
the requirement of the federal kidnaping statute that the person be held for ransom or reward or
otherwise).
       51
         See Jones v. United States, 119 S.Ct. 1215 (1999) (holding that provisions of the
carjacking statute that establish higher penalties that may be imposed when the offense resulted in
serious bodily injury or death set forth additional elements of offense, not mere sentencing
considerations).
       52
            United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998).
       53
            Id.

                                                  21
Generally, it is error for the court to force a party to exhaust peremptory challenges on jurors who

should have been excused for cause. Such a situation impairs a Defendant’s right to exercise

peremptory challenges and is reversible error without a showing of prejudice.54 Under the Jury

Selection and Service Act (“Act”), a federal court litigant has the right to a jury “selected at random

from a fair cross section of the community.”55 “To establish a prima facie violation of the fair-cross-

section requirement, the defendant must show that: (1) the group alleged to be excluded is a

“distinctive” group in the community; (2) the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) this under-representation is due to systematic exclusion of the group in the jury selection

process.”56

       Jackson contends the jury was improperly constituted, thereby depriving him of his Fifth and

Sixth Amendment rights to a fair and impartial jury. Specifically, he complains that (1) the venire did

not include a fair cross-representation of the community — in particular, jurors of Jackson’s age; and

(2) the court erred in excusing or failing to excuse certain jurors for cause. Jackson’s argument as

to the construction of the venire must fail, as he cannot establish a prima facie violation of the Act.

Age is not a characteristic which can define a distinctive group in the community for purposes of the

fair-cross-section requirement.57


       54
            United States v. Hall, 152 F.3d 381, 408 (5th Cir. 1998).
       55
            28 U.S.C.§ 1861.
       56
            United States v. McKinney, 53 F.3d 664, 671 (5th Cir. 1995).
       57
         See Silagy v. Peters, 905 F.2d 986, 1010 (7th Cir. 1990) (holding that age is not a
characteristic which can define a distinctive group for purposes of the fair-cross-section
requirement) (citations omitted); Davis v. Greer, 675 F.2d 141, 146 (7th Cir. 1982) (holding that

                                                  22
       Jackson additionally claims the court excluded two prospective black jurors who should have

been allowed to serve and included a biased Caucasian male and female who should have been

excused for cause. These flaws, he contends, require reversal and remand for a new trial. The

Government contends there was no error in the court’s exercise of exclusions or in the peremptory

challenges. Jackson challenged juror fourteen because he had been a wrecker driver for law

enforcement and knew many of the officers, though none of these acquaintances were called to

testify. Following questions as to bias, the court declined to strike this juror for cause. Then, after

exhausting his peremptory challenges, Jackson objected to the jury pool and to the Government’s

peremptory strike of the only juror under age twenty-five, to which no contemporaneous objection

was made. Accordingly, Jackson has demonstrated no error in the jury selection process.

Constitutionality of 18 U.S.C. § 2119

       Jackson contends that his conviction must be entirely reversed due to the district court’s

failure to dismiss the carjacking count under United States v. Lopez.58 This circuit has firmly held

that the federal carjacking statute is a proper exercise of Congressional authority under the Commerce

Clause.59 Accordingly, Jackson fails to establish an Equal Protection claim.

                                          CONCLUSION

       For the foregoing reasons, the decision of the district court is AFFIRMED.




“[y]oung people between the ages of 18 and 21 . . . are not a cognizable group or class”)
(citations omitted).
       58
            514 U.S. 549 (1995).
       59
            See United States v. Coleman, 78 F.3d 154, 158 (5th Cir. 1996).

                                                  23
