Abusive Sexual Contact Is “Granular”: Lesser-Included Instructions Must Track the Same Touching, Not a Different Act

Case: United States v. MacLean (10th Cir. June 18, 2026) (Order and Judgment, nonprecedential)
Statutes: 18 U.S.C. §§ 2244(b), 2246(3); 49 U.S.C. § 46506; 18 U.S.C. § 113(a)(5)
Core holdings (persuasive): (1) No Sixth Amendment or Rule 613 entitlement to show a witness a police report when the proponent disclaims intent to admit it; any assumed error can be harmless if impeachment substance is otherwise presented. (2) For lesser-included analysis, abusive sexual contact is act-specific (“granular”); a simple-assault instruction cannot be predicated on a separate, temporally distinct touching not encompassed by the charged sexual-contact act.

I. Introduction

A federal jury convicted Robert Sutherland MacLean of abusive sexual contact occurring “in the special aircraft jurisdiction of the United States” after a first-class passenger, “W.J.,” testified that MacLean repeatedly groped her breasts during a commercial flight from Chicago to Salt Lake City. MacLean appealed, challenging (1) limits the district court placed on cross-examination when defense counsel attempted to use a Salt Lake City Police Department report to impeach W.J., and (2) the refusal to give a lesser-included-offense instruction for simple assault based on testimony that MacLean touched W.J.’s knee earlier in the flight.

The Tenth Circuit affirmed, using the case to underscore two practical trial principles: impeachment by “someone else’s” report is not automatically compelled by the Confrontation Clause or Rule 613, and lesser-included instructions must align with the same charged act—especially in abusive-sexual-contact prosecutions where each discrete touching can constitute its own offense.

II. Summary of the Opinion

• Cross-examination / police report: The court rejected MacLean’s Sixth Amendment claim that he had a right to show W.J. the police report to “complete” impeachment. Rule 613(b) was deemed irrelevant because MacLean disclaimed any intent to admit the report; Rule 613(a) also provides a party “need not show” the statement to the witness. Even assuming the district court’s fairness rationale was mistaken, any error was harmless because the defense could (and did) pursue impeachment through other means and could have called the officer who wrote the report.
• Lesser-included offense: Applying the test from United States v. Waugh, the panel held the requested simple-assault instruction failed because the “knee touch” was a different, earlier, temporally distinct act from the charged “touching … of the breast.” Relying on United States v. Aguilar’s recognition that abusive sexual contact is “granular” (each prohibited touching can be a separate offense), the court held simple assault based on the knee-touch was not a lesser-included offense of the indicted breast-touching offense.
• Disposition: Conviction affirmed.

III. Analysis

A. Precedents Cited

• United States v. Woodard, 699 F.3d 1188 (10th Cir. 2012): Supplied the standard of review—de novo—for Sixth Amendment confrontation challenges to cross-examination restrictions.
• United States v. Silva, 889 F.3d 704 (10th Cir. 2018): Supplied the abuse-of-discretion standard for nonconstitutional evidentiary rulings.
• United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): Used to characterize MacLean’s abandonment of an argument below (he disclaimed any intent to admit the report) as “waiver,” limiting appellate theories.
• United States v. Gould, 672 F.3d 930 (10th Cir. 2012): Central to the harmlessness analysis; even if evidence is excluded, there is no reversible error when “the substance of the excluded evidence” reaches the jury “through other means.”
• United States v. Waugh, 950 F.3d 665 (10th Cir. 2019): Provided the governing four-part test for lesser-included-offense instructions and the abuse-of-discretion review standard for the trial court’s decision.
• Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011): Supported affirmance on any basis supported by the record, even if different from the district court’s reasoning.
• United States v. Bayes, 210 F.3d 64 (1st Cir. 2000): Provided a working definition of federal “simple assault” (since § 113(a)(5) does not define it): deliberate offensive touching without justification or excuse.
• United States v. Aguilar, 168 F.4th 1319 (10th Cir. 2026): The pivotal structural precedent. The panel used Aguilar to frame abusive sexual contact as “granular,” permitting multiple charges for multiple touchings in the same incident and shaping what can qualify as a “lesser” offense of a particular charged touching.
• Barrett v. United States, 607 U.S. 128 (2026): Used to articulate the “classic” lesser-included relationship—“the very same conduct” violates both statutes and the lesser is fully subsumed within the greater.
• United States v. Benoit, 713 F.3d 1 (10th Cir. 2013): Cited by analogy to distinguish “same behavior” from “distinct sets of conduct” (in that context, multiplicity doctrine), reinforcing the court’s conduct-specific framing.
• United States v. Williams, 197 F.3d 1091 (11th Cir. 1999): Distinguished. The panel read Williams as treating a sequence of contacts as a single “episode” for lesser-included purposes, an approach the Tenth Circuit deemed inconsistent with its own “granular” framework and with how the government charged MacLean (breast-touching only).

B. Legal Reasoning

1. Cross-examination and the police report: Confrontation and Rule 613

The opinion separates three ideas that are often conflated in trial practice: (i) the right to cross-examine, (ii) the mechanics of using a prior statement for impeachment, and (iii) the admissibility of the document containing the statement.

• No constitutional entitlement to show the document: The panel held MacLean did not demonstrate a Sixth Amendment right to place a police report in front of a witness to force acknowledgment/denial when the jury would not see the report and when the witness disputes the report’s accuracy.
• Rule 613 cuts against any claimed “right to show”: The court treated Rule 613(b) as irrelevant because MacLean disclaimed the goal of admitting the report (waiver under United States v. Leffler). It further highlighted Rule 613(a): “a party need not show” the prior statement to the witness—undermining the premise that impeachment required displaying the report.
• Harmlessness as a backstop: Even acknowledging that credibility was central and that showing the report might have had “added impeachment value,” the panel emphasized the defense was not foreclosed from the substance of impeachment: counsel asked about inconsistencies, explored other reporting discrepancies, and could have called the officer who wrote the report. Under United States v. Gould, that was enough to deem any assumed error harmless.

2. Lesser-included instruction: “Granular” abusive sexual contact and “same-conduct” constraints

The court’s core move was to reframe what counts as the “greater offense” conduct in an abusive sexual contact prosecution. Rather than treating the entire flight as a single criminal “episode,” the panel treated each discrete prohibited touching as its own potentially chargeable unit.

• Applying the Waugh test: The panel focused on Waugh’s fourth element: whether a rational jury could acquit on the greater offense and convict on the lesser. The opinion concluded the jury could not do so because the proposed “lesser” (simple assault) was tied to a different act (knee-touching) than the charged greater act (breast-touching).
• Conduct-matching requirement (Barrett): By citing Barrett v. United States, the panel anchored the lesser-included concept in “the very same conduct.” A lesser-included instruction is not a vehicle to let a jury convict based on some other uncharged physical contact.
• Granularity (Aguilar) drives the result: The indictment charged a single count for touching W.J.’s breast. The knee-touch occurred earlier and was “temporally distinct.” Under United States v. Aguilar, those touchings are separable units; the knee-touch could have been separately charged, but it cannot be treated as “included” within the breast-touching charge.
• Distinguishing Williams: The court treated United States v. Williams as implicitly episode-based and thus “unhelpful” given the Tenth Circuit’s granular approach and the charging choice in MacLean.

C. Impact

• Charging and instruction strategy in § 2244 cases: Prosecutors may draft indictments more explicitly to identify the specific touching(s) that define the charged count(s). Defendants, in turn, will face tighter constraints when seeking lesser-included instructions based on other touchings not encompassed by the charged act.
• Limiting “compromise verdict” pathways: The decision reduces the availability of lesser-included instructions as a compromise option where the proposed lesser is tethered to a separate act in the narrative rather than a lesser mental state or lesser characterization of the same act.
• Impeachment practice with third-party reports: The opinion supports trial courts in requiring proper impeachment foundations (and, if necessary, calling the report’s author) rather than allowing counsel to “publish” non-admitted, third-party characterizations of a witness interview.

IV. Complex Concepts Simplified

• “Special aircraft jurisdiction of the United States” (49 U.S.C. § 46506): A federal jurisdiction hook that allows certain federal crimes (including sexual abuse offenses) to be prosecuted when committed on aircraft in specified circumstances.
• Abusive sexual contact (18 U.S.C. § 2246(3)): Intentional touching (even through clothing) of specified intimate areas (including the breast) with an intent such as to harass, degrade, or sexually arouse/gratify.
• Confrontation Clause: The Sixth Amendment right to confront adverse witnesses, typically protected through meaningful cross-examination. It does not necessarily guarantee any particular cross-examination technique (e.g., physically showing a document) in every circumstance.
• Rule 613 impeachment:
  • Rule 613(a): When questioning a witness about a prior statement, you generally do not have to show it to the witness.
  • Rule 613(b): If you want to admit extrinsic evidence of a prior inconsistent statement, the witness usually must have an opportunity to explain or deny it first.
• Waiver: If a party intentionally disclaims an argument (here, that the report was to be admitted), appellate courts typically treat the argument as surrendered and will not revive it on appeal.
• Harmless error: Even if a ruling was wrong, a conviction stands if the error likely did not affect the outcome—especially when the jury heard the same essential points through other testimony or impeachment avenues.
• Lesser-included offense: A “smaller” crime whose elements are fully contained within the “greater” crime, tied to the same conduct. It is not a mechanism to convict on a different act simply because it occurred in the same overall story.
• “Granular” offense theory: In this context, the law treats each distinct prohibited touching as separately chargeable conduct, rather than bundling multiple touchings into one undifferentiated episode.

V. Conclusion

United States v. MacLean reinforces two trial-facing rules in the Tenth Circuit’s sexual-contact jurisprudence. First, neither the Confrontation Clause nor Rule 613 generally guarantees a defendant the right to show a witness a police report—particularly where the report is not being offered into evidence and the defense can pursue the substance of impeachment through other means. Second, and more consequentially for future instruction disputes, the court extends the practical consequences of United States v. Aguilar’s “granular” view of abusive sexual contact: a lesser-included instruction must be anchored to the same charged touching, not a different physical contact earlier or later in the encounter.