            Case: 14-11095   Date Filed: 01/26/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11095
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:06-cr-00010-CAR-CHW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARCUS PEREZ JACKSON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (January 26, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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        Pursuant to 18 U.S.C. § 3583(e)(3), the district court revoked Marcus

Jackson’s supervised release for committing sexual battery and attempted rape

against Christina Mitchell, with whom Jackson had a prior romantic relationship

and had fathered twins. On appeal, Jackson argues that, at the revocation hearing,

the district court plainly erred and infringed on his due process right to

confrontation by limiting his cross-examination of Mitchell about her boyfriend at

the time of the incident. After review, we affirm. 1

                               I.      BACKGROUND FACTS

        At Jackson’s revocation hearing, Mitchell testified that she ended her

romantic relationship with Jackson six months after the September 2011 birth of

their twins. Even after the relationship ended, however, Jackson sent Mitchell

sexually explicit text messages. In the days leading up to the assault, Jackson sent

several text messages making sexual advances, which Mitchell rejected. On the

night of June 18, 2013, Jackson visited Mitchell’s home to help with various tasks,

but later attacked her when he made a sexual advance that she refused.




        1
         We ordinarily review constitutional claims de novo, but we review only for plain error
where, as here, the defendant failed to raise the pertinent constitutional objection in the district
court. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). Under plain-error review,
the defendant must first demonstrate that (1) an error occurred, (2) the error was plain, and
(3) the error affected substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005). If those conditions are met, we may choose to exercise our discretion to correct the
forfeited error only if the error seriously affects the fairness, integrity, or reputation of judicial
proceedings. Id.
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      Jackson’s defense was that his sexual contact with Mitchell was consensual.

On cross-examination, Jackson’s counsel asked Mitchell numerous questions about

her actions both before and after the incident to try to show that she and Jackson

were on more intimate terms than she claimed. For example, defense counsel

elicited from Mitchell that she had asked Jackson over to cut their children’s hair

and install a new television, and that she also fixed dinner for him and allowed him

to give the children a bath and put them to bed. Then, while Jackson watched a

basketball game on television in the living room, Mitchell took a shower and went

to bed. Jackson’s counsel also got Mitchell to admit that she became upset with

Jackson after she learned that Jackson had fathered another woman’s child while

they were living together, that she met with Jackson three months after the attack

to tell him she did not hate him and also that she had reservations about testifying

and was at the hearing pursuant to a subpoena.

      Jackson’s counsel also asked Mitchell about one of Jackson’s text messages

on her cell phone referring to another man in Mitchell’s life. Mitchell explained

that the person was her boyfriend at the time of the text message, but that the two

did not date after the June 18, 2013 incident.

      After the government objected to the relevance of this line of questioning,

defense counsel explained that her questions were designed to elicit a motive to

fabricate the rape story to hide Mitchell’s consensual relations with Jackson from


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her boyfriend. The district court sustained the objection. Defense counsel,

however, was permitted to ask Mitchell about a person named Payton, who was

listed on a government exhibit as someone who had called Mitchell’s cell phone.

Mitchell clarified that Payton was the name of her then-boyfriend and that she did

not call him, or anyone, after Jackson attacked her.

      At the conclusion of the hearing, the district court credited Mitchell’s

testimony and found that Jackson committed aggravated sexual assault and

attempted rape, in violation of state law. Accordingly, the district court revoked

Jackson’s supervised release and imposed a 46-month sentence.

                                II.    DISCUSSION

      A defendant in supervised release revocation proceedings is entitled to

minimal due process protections, including the right to confront and cross-examine

witnesses. United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994); Fed. R.

Crim. P. 32.1(b)(2)(C). This Court has not addressed in a published opinion the

extent to which a district court may limit cross-examination of a witness in a

revocation hearing. In the trial context, however, we have concluded that so long

as a defendant is able to elicit sufficient information from which the factfinder can

assess a witness’s possible motive or bias, the right of confrontation is satisfied.

United States v. Barrington, 648 F.3d 1178, 1188 (11th Cir. 2011). The test is

whether the factfinder “would have received a significantly different impression of


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the witness’ credibility had counsel pursued the proposed line of cross-

examination.” Id. (quotation marks omitted).

      Here, Jackson cannot show that the district court committed error when it

limited his cross-examination of Mitchell about her ex-boyfriend. Although

Jackson was not allowed to question Mitchell as much as he would have liked, he

was able to develop sufficient facts from which to argue that Mitchell was not

credible. Specifically, Jackson was able to establish that: (1) Mitchell was upset

with Jackson for fathering another woman’s child; (2) she was in another

relationship with someone named Payton before the attack, but remained friendly

with Jackson; (3) she invited Jackson into her home, prepared him dinner, and

allowed him to remain even after she and her children had gone to bed; (4) she did

not call Payton after the attack and her relationship with Payton ended immediately

after the incident; (5) three months after the incident, she told Jackson she did not

hate him; and (6) she testified at the revocation hearing under subpoena.

      In short, while Jackson’s exploration of Mitchell’s relationship with Payton

was somewhat truncated, Jackson was given ample latitude to inquire into a variety

of topics relating to Mitchell’s credibility and possible motives to lie. See United

States v. Pacchioli, 718 F.3d 1294, 1304-05 (11th Cir. 2013) (explaining that

where a particular line of questioning is truncated, but the defendant otherwise is

given “ample latitude to attack the witness’s credibility,” there is no denial of the


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right of confrontation). Under these circumstances, Jackson’s due process right to

confront Mitchell was satisfied.

      In any event, even if Jackson could show error, he could not show that the

error was plain. Neither this Court nor the Supreme Court has squarely held that

the kind of limitation of cross-examination imposed by the district court in

Jackson’s case is a due process violation. See United States v. Dortch, 696 F.3d

1104, 1112 (11th Cir. 2012) (explaining that an error is not clear and obvious for

plain error purposes unless there is controlling authority from the Supreme Court

or this Court that squarely supports the defendant’s argument).

      Finally, even assuming there was plain error, Jackson cannot show that the

decision to disallow further questioning about Mitchell’s ex-boyfriend affected

Jackson’s substantial rights. Even after Jackson’s extensive cross-examination and

various arguments as to why Mitchell should not be believed, the district court

found Mitchell’s testimony to be “very credible.” Jackson did not explain how

further questioning about Mitchell’s ex-boyfriend would have elicited testimony

that would have led the district court to a different conclusion.

      Further, the district court did not rely solely on Mitchell’s hearing testimony

to find Jackson committed the sexual assault. The district court heard testimony

from the investigating police officer, and considered Mitchell’s recorded statement




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given to the officer and photographs of the physical evidence the officer collected

at the scene, including from Mitchell’s cell phone.

      The undisputed text messages between Mitchell and Jackson showed that

Jackson repeatedly made sexual advances toward Mitchell and that Mitchell

clearly and consistently rejected them. The government’s DNA evidence proved

that a sexual encounter took place, and the district court found that the

circumstances surrounding the incident supported Mitchell’s testimony that it was

without her consent. Given the totality of the evidence before the district court,

Jackson has not shown that the district court’s limitation of his cross-examination

of Mitchell affected the outcome of the revocation proceedings. See United States

v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (explaining that the prejudice

prong of the plain error test requires the defendant to show a reasonable probability

of a different outcome).

      AFFIRMED.




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