* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-60095

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BOBBIE LEWIS MAYES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:00-CR-124-ALL-WS

--------------------

September 5, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Bobbie Lewis Mayes appeals his conviction for carjacking. 

Mayes contends that the district court erred: (1) in admitting

evidence of his two prior robbery convictions; (2) in admitting

evidence of the Capitol Medical Supply robbery; (3) in admitting

evidence of a witness’ identification of him in a physical

lineup; (4) in failing to grant a mistrial for prosecutorial

misconduct; and (5) by not granting his motion for a judgment of

acquittal.
No. 01-60095 

-2-

The district court did not abuse its discretion in

determining that Mayes’ two prior robbery convictions were

admissible under Fed. R. Evid. 609(a)(1) because their probative

value outweighed their prejudicial effect. See United States v.

Cantu, 167 F.3d 198, 203 (5th Cir.), cert. denied, 528 U.S. 818

(1999); United States v. Preston, 608 F.2d 626, 639 (5th Cir.

1979). Moreover, since the district court gave an explicit

limiting instruction to the jury regarding the prior convictions,

any error in admitting the evidence was harmless. See United

States v. Hall, 152 F.3d 381, 402 (5th Cir. 1998), abrogated on

other grounds by United States v. Martinez-Salazar, 528 U.S. 304

(2000).

Neither did the district court abuse its discretion in

determining that the Capitol Medical Supply robbery was intrinsic

evidence of the carjacking and, therefore, admissible. See

Cantu, 167 F.3d at 203; United States v. Coleman, 78 F.3d 154,

155-57 (5th Cir. 1996). Furthermore, given the district court’s

limiting jury instruction regarding evidence of the robbery, any

error in admitting the evidence was harmless. See Hall, 152 F.3d

at 402. 

The district court also did not abuse its discretion in

admitting evidence of the physical lineup, conducted without the

presence of defense counsel, at which the victim of the Capitol

Medical Supply robbery identified Mayes. See Cantu, 167 F.3d at

203. Although at the time of that lineup Mayes had already been

charged in state court with auto theft, Mayes was not entitled to

counsel with respect to the lineup because the Sixth Amendment
No. 01-60095 

-3-

right to counsel is offense-specific. See Texas v. Cobb, 121 S.

Ct. 1335, 1340-43 (2001). Because the Capitol Medical Supply

robbery and the car theft clearly did not constitute the same act

or transaction, and because robbery and car theft each require

proof of a fact that the other crime does not, see Miss. Code

Ann. §§ 97-3-73, 97-17-42, the two crimes are not considered the

same offense for purposes of the right to counsel. See Cobb, 121

S. Ct. at 1343; Blockburger v. United States, 284 U.S. 299, 303-

04 (1932).

The district court did not abuse its discretion in denying

Mayes’ motion for a mistrial based on prosecutorial misconduct in

the form of the Government’s eliciting of testimony regarding his

pre-trial incarceration. See United States v. Mitchell, 166 F.3d

748, 751 (5th Cir. 1999). Even assuming that the prosecutor’s

line of questioning was improper, Mayes has failed to demonstrate

that the questions prejudiced his substantial rights. See United

States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999), cert.

denied, 529 U.S. 1119 (2000). 

Finally, the district court did not err in denying Mayes’

motion for judgment of acquittal. Mayes’ sole argument is that

there was insufficient identification evidence to allow any

rational person to conclude that he was the carjacker. Given

that both the carjacking victim and the Capitol Medical Supply

robbery victim identified Mayes and that he was admittedly in

possession of the carjacked vehicle one week after the crime, 
No. 01-60095 

-4-

there was sufficient evidence for a reasonable juror to find that

Mayes was the carjacker. See United States v. Ortega Reyna, 148

F.3d 540, 543 (5th Cir. 1998).

In light of the foregoing, the district court’s judgment is

AFFIRMED.