[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-11095

Non-Argument Calendar

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS PEREZ JACKSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(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 crossexamination.” 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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