Case Explained: United States v. MacLean

Court: United States Court of Appeals for the Tenth Circuit Filed: 2026-06-18 Docket: 2:23-CR-00153-DAK-1) The tenth-circuit affirmed the conviction of Robert MacLean for abusive sexual contact in violation of 18 U.S.C. §§ 2244(b), 2246(3), and 49 U.S.C. § 46506, arising from unwanted touching of a passenger’s breast on a commercial flight within the special aircraft jurisdiction of the United States. Regarding the district court’s ruling on cross-examination, the court applied de novo review to the Sixth Amendment confrontation claim and abuse of discretion review to evidentiary claims. The court held that there is no constitutional right to show a witness a prior inconsistent statement document for impeachment purposes when the document is not admitted into evidence. Furthermore, the court found that Federal Rule of Evidence 613 does not grant such a right, noting that subsection (a) explicitly states a party need not show the contents of a prior statement to a witness. Even assuming any error occurred, the court deemed it harmless because the defense was permitted to question the witness about the report’s contents and could have called the reporting officer as a witness, while other evidence also highlighted inconsistencies in the victim’s testimony. Regarding the refusal to provide a lesser-included-offense instruction for simple assault, the court applied the four-part test from *United States v. Waugh*. The court affirmed that no such instruction was warranted because the charged offense of abusive sexual contact is “granular,” meaning each distinct instance of touching constitutes a separate offense under 18 U.S.C. § 2246(3). Since the indictment alleged specific instances of breast touching and the evidence showed the knee-touching incident (the basis for the simple assault request) was a separate, temporally distinct event that did not involve sexual intent, the elements of simple assault were not subsumed within the specific charged conduct. Consequently, a jury could not rationally acquit on the abusive sexual contact charge while convicting on simple assault based on the evidence presented. The practical consequence is that MacLean’s fifteen-month prison sentence stands, and the judgment of the District Court for the District of Utah is affirmed without remand or retrial. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.