Petition for Writ of Certiorari — Shane Roach, Petitioner v. United States

APPENDIX A

United States v. Roach, 896 F.3d 1185 (2018)

14

To preserve an objection to the exclusion of

evidence for appeal, the proponent must make an

offer of proof at trial, first, describing the

evidence and what it tends to show and, second,

identifying the grounds for admitting the

evidence; this is so unless the nature of the

excluded evidence and the ground for admitting it

was apparent from the context. Fed. R. Evid.

103(a)(2).

896 F.3d 1185

United States Court of Appeals, Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

V.

Shane ROACH, Defendant-Appellant.

No. 17-2085

Filed July 24, 2018

Cases that cite this headnote

Synopsis

Background: Defendant was convicted in the United States

District Court for the District of New Mexico, No.

l:15-CR-02732-JAP- I, of sex trafficking by means of force,

threats, fraud, and coercion. Defendant appealed.

Criminal Law

-Exclusion of evidence

Unless the context in which evidence is offered

makes clear the reason for the proffer, error

cannot be assigned to the exclusion of evidence

without an offer of proof.

Holdings: The Court of Appeals, Matheson, Circuit Judge,

held that:

Cases that cite this headnote

[fl defendant forfeited Confrontation Clause challenge to

limitation of cross-examination of witness on appeal, and

UI

[J even assuming district court abused its discretion in

limiting cross-examination of witness, any errors were

harmless.

To preserve an objection to the exclusion of

evidence for appeal, a proponent may present the

offer of proof in his questioning and objections at

trial, motions in limine, or pretrial conferences.

Affirmed.

West lleadnotes(13)

LU

Criminal Law

'Exclusion of evidence

Cases that cite this headnote

Criminal Law

Exclusion of evidence

[J

• •;•

•••

•

.•.

•

Criminal Law

Witnesses

Criminal Law

• -Necessity of specific objection

Criminal Law

Adding to or changing grounds of objection

,•.••

United States v, Roach, 896 F3d 1185 (2018)

Defendant forfeited Confrontation Clause

challenge to limitation of cross-examination of

witness on appeal, in prosecution for sex

trafficking by means of force, threats, fraud, and

coercion, although defendant mentioned

Confrontation Clause in his second set of pretrial

motions; defendants Confrontation Clause

arguments concerned district courts refusal to

allow his lawyer to cross-examine witness about

length of her potential sentence, her alleged lie to

her pretrial services officer, and her possible

alleged scheme to use prepaid gift cards for fraud,

defendant failed to identify any of these topics for

cross-examination in his pretrial motions, and

when defendant did raise these issues at trial, he

failed to state Confrontation Clause ground on

which court should permit cross-examination.

U.S. Const. Amend. 6.

When a district court restricts cross-examination

at trial, the party seeking to cross-examine forfeits

a challenge on appeal by failing to state the

ground for objection, stating a different ground at

trial than on appeal, or by failing at trial to object

to the limitation at all.

Cases that cite this headnote

LJ

Criminal Law

Objections to evidence in general

An appellant who fails to preserve an evidentiary

objection below may argue and establish plain

error on appeal by showing that the district court

committed (1) error (2) that is clear or obvious

under current law, and which both (3) affected her

substantial rights and (4) undermined the fairness,

integrity, or public reputation of judicial

proceedings; failure to argue plain error on appeal

waives the argument.

Cases that cite this headnote

LU

Criminal Law

.Reception of evidence

Cases that cite this headnote

tI

Defendant waived on appeal argument that

district courts rulings limiting cross-examination

of witness violated Confrontation Clause, in

prosecution for sex trafficking by means of force,

threats, fraud, and coercion; defendant failed to

raise Confrontation Clause objection in district

court, and defendant failed to argue plain error on

appeal. U.S. Const. Amend. 6.

Criminal Law

11 Reception of evidence

Cases that cite this headnote

fJ

Criminal Law

—Rulings as to Evidence in General

Appellate court will not reverse a defendants

conviction on the basis of a district courts

erroneous admission or exclusion of evidence if

the error was harmless to the defendant.

Cases that cite this headnote

United States v. Roach, 896 F3d 1185 (2018)

£2.1

Criminal Law

Prejudice to rights of patty as ground of

review

A non-constitutional error is harmless unless it

had a substantial influence on the outcome or

leaves one in grave doubt as to whether it had

such effect.

Cases that cite this headnote

Even assuming district court abused its discretion

in limiting cross-examination of witness, any

errors were harmless, in prosecution for sex

trafficking by means of force, threats, fraud, and

coercion; limitations did not substantially

influence outcome of case, defendant challenged

witness's credibility throughout

cross-examination, defendant called two witnesses

to impeach witness's character for truthfulness,

and jury had ample evidence to convict defendant

without witness's testimony.

Cases that cite this headnote

JJJ

Criminal Law

-Review Dc Novo

Criminal Law

-Rulings as to Evidence in General

To determine whether erroneous admission or

exclusion of evidence was harmless, appellate

court reviews the entire record de novo,

examining the context, timing, and use of the

erroneously admitted or excluded evidence at trial

and how it compares to properly admitted

evidence.

fjJ Criminal Law

c—Grounds in general

For purposes of cumulative error, appellate court

aggregates all the errors that it has found to be

harmless and determines whethertheir cumulative

effect on the outcome of the trial mandates

reversal.

Cases that cite this headnote

Cases that cite this headnote

JJjJ Criminal Law

Presumption as to Effect of Error Burden

The government bears the burden to show that a

nonconstitutional error is harmless by a

preponderance of the evidence.

Cases that cite this headnote

Liii

Criminal Law

-Witnesses

* 1187 Appeal from the United States District Court for the

District of New Mexico (D.C. No. 1:15-CR-02732-JAP-1)

Attorneys and Law Firms

Aric G. Elsenheimer, Assistant Federal Public Defender,

Office of the Federal Public Defender for the District of New

Mexico, Albuquerque, New Mexico, for

Defendant—Appellant.

James R.W. Braun, Assistant United States Attorney (James

D. Tierney, Acting United States Attorney, on the brief) Office

of the United States Attorney for the District of New Mexico,

Albuquerque, New Mexico, for Plaintiff—Appellee.

Before MATHESON, MCKAY, and MCHUGH, Circuit

Judges.

Opinion

United States v. Roach, 896 F.3d 1185 (2018)

MATHESON, Circuit Judge.

A jury convicted Shane Roach of coercing D.G. into

prostitution in violation of 18 U.S.C. 5, I591(a)( 1). Mr. Roach

recruited D.G. and, with help from Angela Santillanes,

prostituted D.G. to clients. D.G. became scared and reached

out for help, leading to Mr. Roach's and Ms. Santillanes's

arrests.

The Government charged Mr. Roach and Ms. Santillanes

under 1591(a)( I), but after Ms. Santillanes agreed to testify

against Mr. Roach, it dropped her charge. At trial, Mr. Roach

attempted to cross-examine Ms. Santillanes about three topics.

The Government successfully objected.

On appeal, Mr. Roach argues that the district court's rulings

preventing cross-examination violated (I) the Confrontation

Clause and (2) the Federal Rules of Evidence, and because

these errors were not harmless, we must vacate his conviction

and remand for a new trial.

Exercisingjurisdiction under 28 U.S.C. § 1291, we affirm Mr.

Roach's conviction because (1) Mr. Roach waived his

Confrontation Clause arguments, and (2) any error in limiting

his cross-examination under the evidence rules was harmless.

From May to June 2015, Mr. Roach and Ms. Santillanes

managed the prostitution operation, advertising D.G.'s services

on Backpage and arranging for her to meet clients in motels

and hotels. Clients scheduled an appointment through

"Diamond"—Ms. Santi llanes's alias—who then would inform

Mr. Roach. He would then contact D.G. through a prepaid

TracFone he bought for her. The client would meet D.G. in

her room, and she would collect payment after the sex act. She

saw three to six clients a day. Mr. Roach would then collect

the money from her.

Mr. Roach controlled the enterprise and D.G.'s activities. He

chose her rates, selected her clients, and kept the proceeds.

D.G. testified that he controlled her contact with others, in part

by keeping her identification (e.g., driver's license) and her

personal celiphone. In his testimony, Mr. Roach disputed the

level of control he had outside of client matters.

2. The Arrests and Search

In June 2015, D.G. started to fear that Mr. Roach was going to

send her to another pimp. She notified Life Link, an

organization that offers "program[s] for victims of human

trafficking." ROA, Vol. III at 514. It contacted the

Albuquerque Police * 1188 Department.' Police then contacted

D.G., and she eventually disclosed her location. The police

removed her from her motel room and interviewed her. She

divulged Mr. Roach's first name, identified him in an online

photograph, and identified his car.

I. BACKGROUND

D.G. testified that she had also contacted the police, but

the testifying detective did not mention her call at trial.

A. Factual Background

After further investigation, officers obtained a warrant to track

and search Mr. Roach's car and to search his residence. After

tracking his car's location, they stopped it, discovered Mr.

Roach and Ms. Santillanes inside, and arrested them.

Executing the search warrant, law enforcement searched Mr.

Roach's Albuquerque apartment and found prepaid gift cards

that had been used to purchase advertisements on Backpage.

I. The Prostitution Operation

In April 2015, Mr. Roach found D.G.'s advertisement on

Backpage.com ("Backpage"), a website where prostitutes

solicit clients, and offered to be her pimp. On their second

in-person meeting, she agreed.

2

-

Officers also discovered heroin: a digital camera with

photos of D.G.'s identification and photos used for her

Backpage advertisement: and a .22 caliber firearm.

which D.G. identified as Mr. Roach's.

United States v. Roach, 896 F.3d 1185 (2018)

B. Procedural Background

We describe their testimony in greater detail in our

discussion of Mr. Roach's Confrontation Clause and

rules of evidence arguments.

5

-

First Indictment, Government Deal, and Superseding

Indictment

In July 2015, a grand jury indicted Mr. Roach and Ms.

Santillanes on one count of sex trafficking by means of force,

threats, fraud, and coercion in violation of 18 U.S.C.

]591(a)( I). The Government made a deal with Ms. Santillanes:

she agreed to testify against Mr. Roach in exchange for having

her charge dismissed. In April 2016, a superseding indictment

charged Mr. Roach alone with violating 1591(a)( I).'

D.G.

D.G. testified about her initial meeting with Mr. Roach,

day-to-day activities working for him, and her escape. She also

testified about specific instances when Mr. Roach was

controlling and violent, stating that he isolated her from the

outside world using violence, intimidation, and threats.

Ms. Santillanes

In the superseding indictment, the Government

originally charged Mr. Roach with two counts of sex

trafficking under * 1591(a)(1): trafficking (I) D.G.

between May 27. 2015 and June 11. 2015 and (2) Ms.

Santillanes between March 1, 2015 and June 11, 2015.

Before trial, the Government dismissed the second

count.

3

Pretrial Motions

Mr. Roach filed a pretrial motion to cross-examine Ms.

Santillanes regarding her dismissed charge. He also filed a set

of three pretrial motions to cross-examine Ms. Santillanes

about her prior and current involvement in prostitution. The

district court granted Mr. Roach's first motion and denied the

others.'

We describe these motions in greater detail in our

discussion of Mr. Roach's Confrontation Clause

arguments.

3. Trial Testimony

Mr. Roach's trial spanned four days. This appeal concerns the

testimony of three witnesses: D.G., Ms. Santillanes, and Mr.

Roach. We provide an overview of their testimony here.

Ms. Santillanes corroborated much of D.G.'s testimony. She

confirmed that Mr. Roach had been both controlling and

violent toward D.G. The district court limited defense

counsel's cross-examination on three lines of questioning: (1)

the length of Ms. Santillanes's potential sentence under *1189

18 U.S.C. 1591(a)( I). (2) lying to her pretrial services officer

about residing with her grandparents, and (3) her potential

fraud scheme with the prepaid gift cards discovered in Mr.

Roach's apartment. Mr. Roach contests these limitations on

appeal.

Mr. Roach

Mr. Roach confirmed that he, Ms. Santillanes, and D.G. had

engaged in a commercial prostitution enterprise, but he denied

controlling D.G through violence, intimidation, and threats.

He disputed D.G,'s testimony about specific instances of

violence and intimidation, but did admit that he hit her at least

once. He characterized their professional relationship as

consensual and supportive.

4. The Verdict and Sentence

The jury found Mr. Roach guilty. The district court imposed a

sentence of 180 months in prison. Roach filed this timely

appeal.

United States v. Roach, 896 F3d 1185 (2018)

II. DISCUSSION

a. Pretrial motions

On appeal, Mr. Roach argues that the district court improperly

barred his cross-examination of Ms. Santillanes on the three

topics identified above.

i. First pretrial motion

First, he argues the district court violated the Confrontation

Clause because it "limited [his] cross-examination of Ms.

Santillanes to such an extent that the jury did not receive

sufficient information to make a discriminating appraisal of

Ms. Santillanes'[s] motives and bias." Aplt. Br. at 36. We hold

that Mr. Roach waived his Confrontation Clause arguments

because he failed to raise them below and did not argue plain

error on appeal.

Second, he argues in the alternative that the court abused its

discretion under the Federal Rules of Evidence. See Aplt.

Reply Br. at 4. But even assuming a rules violation, we hold

any error was harmless.

We therefore affirm Mr. Roach's conviction.

6

-

Mr. Roach filed a "motion to allow cross-examination of D.G.

and [Ms. Santillanes] regarding outstanding dismissed without

prejudice charges." ROA, Supp. Vol. 1 at 44 (capitalization

omitted). He stated that Ms. Santillanes was "initially charged

as a codefendant ... regarding the charge of sex trafficking

involving D.G.," but the Government "moved to dismiss the

charge against [her]." Id. at 46. He argued that he should be

allowed to question Ms. Santillanes about her motivations for

testifying. Id. at 47. He made no mention of his Sixth

Amendment right to confrontation nor a relevant Federal Rule

of Evidence, but instead cited two cases. Id. (citing Hart v.

United Stales, 565 F.2d 360, 362 (5th Cir. 1978) and United

Slates v. Harris. 462 F.2d 1033, 1035 (10th Cir. 1972) ).

Neither case concerned allegations of a Confrontation Clause

violation. The district court granted the motion.

...

We address Mr. Roach's Confrontation Clause

arguments first and then turn to his evidence-rules

arguments. Mr. Roach primarily raises constitutional

arguments on appeal. Briefing on his nonconstitutional

arguments is sparse.

* 1190 ii. Other pretrial motions

A. Confrontation Clause

Mr. Roach also filed three motions in limine to cross-examine

Ms. Santillanes about (1) her promoting prostitution in the

present case and previously in the states of Arizona, New

Mexico, and Texas; (2) prostituting an individual in a related

case; (3) her conviction for prostitution in Arizona; (4)

prostituting herself while living with Mr. Roach; and (5)

answering phone calls for Mr. Roach about D.G.

Mr. Roach not only failed to make a Confrontation Clause

argument below, his failure to argue plain error here waives

this issue on appeal.

I. Additional Factual Background

We first provide additional background on (a) Mr. Roach's

pretrial motions and (b) defense counsels cross-examination

at trial.

In each motion, he argued that exclusion of the questioning

would violate his right to confrontation. Because, Mr. Roach

contended, the questioning would reveal Ms. Santillaness

biases, prejudices, and motives, he had a right under the

Confrontation Clause to cross-examine heron these five topics.

He also relied on Federal Rules of Evidence 404(b), 412, and

608. The district court denied the three motions.

United States v. Roach, 896 F.3d 1185 (2018)

b. Trial cross-examination

At trial, defense counsel attempted to cross-examine Ms.

Santillanes about the three aforementioned topics. The

Government objected, and the district court sustained the

objections.

Santillanes on lying to her pretrial services officer." Id. at 399.

The proposed cross-examination was based on her attorney's

having filed a pretrial motion stating her grandparents were

willing to serve as her third-party custodians after the

Government dropped her charges. Id. Defense counsel

contended that when the probation officers "went to go visit

[her grandparents, they] told them she had not stayed with

them, and furthermore that she would not have permission to

stay with them if she had asked." Id.

i. Length of sentence

After asking Ms. Santillanes about her dropped charge,

defense counsel cross-examined her about the length of her

potential sentence:

The Government objected to this request, arguing it would

elicit "improper impeachment evidence under any of the

rules." Id. The prosecutor stated that Ms. Santillanes "didn't

lie" and explained:

I Defense Counsel]: And that was quite a break, because before

that happened, you were facing a pretty lengthy prison

sentence, right?

[Government]: Objection. Ask that we approach.

The Court: Go ahead and state your objection.

[Government]: Were getting into punishment which I believe

is not permissible evidence.

The Court: That's correct. That's an incorrect form to inform

the jury that there is a severe punishment.

ROA, Vol. Ill at 407-08. Defense counsel agreed with the

court's statement and explained that he "wasn't attempting to

introduce anything about [Mr. Roach's] potential punishment,"

but rather "[his] question was aimed toward [Ms. Santillaness]

understanding, her motivation to testify falsely." Id. at 409.

The court instructed counsel to "avoid any questions about

punishment," Id., and informed the jury to disregard the

question, Id. at 410. Defense counsel did not pursue this matter

further. He did not mention the Confrontation Clause.

What happened is that her original plan was to

stay with those people, and when she got up

here, they told her that they wouldn't allow her

to stay with them, so she was staying with a

third party that *1191 she was not authorized

to be. But there isn't criminal conduct in any

way. And at best, it could be described as a

misunderstanding between the probation

officer and Ms. Santillanes.

Id. at 399-400.

The district court agreed with the Government and

stated that it was "familiar with what happened

because she was under pretrial supervision, and

reports were sent to me from pretrial services." Id. at

400. "[I]f that testimony were allowed, [Ms.

what

Santillanes] would probably try to explain

happened, and it might result in others having to be

called as witnesses to testify." Id. It "[did not] think

it [was] proper impeachment." Id. Defense counsel

said nothing further on the issue.

..

iii. Prepaid gift cards

ii. Statement to pretrial services officer

Finally, defense counsel questioned Ms. Santillanes

about her collection of used prepaid gift cards:

Before defense counsel resumed cross-examination of Ms.

Santillanes on the second day of trial and before the jury

returned to the courtroom, he requested "to cross-examine Ms.

[Defense Counsel]: And would you save all of those

credit cards' even after there was no money left on

them?

United States v. Roach, 896 F.3d 1185 (2018)

Ms. Santillanes]: Yes.

business. Id. It concluded that the evidence was

inadmissible "under the language of404(b)" and that

defense counsel should "stay away from it." Id.

Defense counsel did not argue further.

[Defense Counsel]: Why?

[Ms. Santillanes]: Because there may have been

something that myself and [Mr. Roach] were

interested in doing after the prostitution.

[Defense Counsel]: Well, this thing you were talking

about that you were interested in, [Mr. Roach] didn't

know anything about it, right?

[Ms. Santillanes]: No, but he showed a lot of interest

in it, so we started talking about it together, and what

we could do with it.

[Defense Counsel]: And you were essentially

instructing [Mr. Roach] on how to commit fraud,

right?

Id. at 414-15. At that point, the Government

objected as to relevance. Id. at 415. Defense counsel

explained that Ms. Santillanes "was interested in

perpetrating some sort of a fraud.... [s]o it goes to

her credibility." Id. The Government argued that the

deadline had passed for Rule 404(b) evidence and it

could not evaluate this line of inquiry without

adequate notice. Id. at 416.

2. Legal Background

We provide legal background on (a) offers of proof

to preserve an objection for appeal, (b) offers of

proof in the context of limitations on

cross-examination, and (c) waiver.

a. OfJrs of proof

JilTo preserve an objection to the exclusion of

evidence for appeal, the proponent must make an

offer of proof at trial, "first, describ[ing] the

evidence and what it tends to show and, second,

identify[ing] the grounds for admitting the

evidence." United Stales v. Adams, 271 F.3d 1236,

1241 (10th Cir. 2001); see also Fed. R. Evid.

103(a)(2). This is so unless the nature *1192 of the

excluded evidence and the ground for admitting it

was "apparent from the context." Adams, 271 F.3d

at 124! (quotations omitted); see also Fed. R. Evid.

103( a )(2).x "Unless the context in which evidence is

offered makes clear the reason for the proffer, error

cannot be assigned to the exclusion of evidence

without an offer of proof." United Slates v.

Mw-tine:, 776 F.2d 1481, 1485 (10th Cir. 1985).

f

Rule 103(a)(2) provides that 'if the ruling excludes

7

Counsel was referring to prepaid gift cards as credit

cards.

The district court then asked how this cross-examination would

impeach Ms. Santillanes's testimony because she would be

"talking about a crime that [had not been] committed." Id. at

417. Counsel responded:

[W]hat I was talking about, and this went

along testimony I was developing, that [Ms.

Santillanes] was the one that knew all about

the criminal activity, and she would teach [Mr.

Roach] about that.

Id. The court then said that counsel had already

developed that point because Ms. Santillanes had

testified to teaching Mr. Roach about the prostitution

8

-

evidence, a party informs the court of its substance by

an offer of proof, unless the substance was apparent

from the context." The provision does not mention, as

our Adams case does, that the offer of proof must not

only describe the evidence but also identify the grounds

for admitting it. The advisory committee notes to Rule

jQj) make clear, however, that "[rulings on evidence

cannot be assigned as error unless ( I ) a substantial right

is affected, and (2) the nature of the error was called to

the attention of the judge." Fed. R. Evid. 103(a)

advisory committee's note to 1972 proposed rules.

U.JThe proponent may present the offer in his questioning and

objections at trial, see Adams, 271 F.3d at 1241, motions in

limine, see United States v. Me/ia-Ala,'con, 995 F.2d 982, 988

n.3 (10th Cir. 1993), or pretrial conferences, see Frederick v.

Swift Transp. Co., 616 F.3d 1074, 1083 (10th Cir. 2010).

United States v, Roach, 896 F.3d 1185 (2018)

Limitations on cross-examination

An offer of proof is generally necessary to preserve an

excluded line of cross-examination questioning. "Federal Rule

103 does not carve out any exception for questions posed on

cross." McCormick on Evidence ch. 6, § 51, at n. 17 (Kenneth

S. Broun ed., 7th ed. 2016). In United States v. Martine:, we

determined the defendant failed to preserve his argument that

the district court improperly limited his cross-examination of

a government witness. 776 F.2d at 1485-86. On appeal, the

defendant asserted that the district court should have allowed

the cross-examination under Federal Rules of Evidence 404(b)

and 406,but "[no offer of proof was made, and the trial judge

was not given any indication of defendant's presently expressed

purpose for his inquiry." Id. at 1485. Because defense counsel

did not tell the judge the evidentiary ground nor "the reason for

the cross-examination," he failed to preserve his challenge for

appeal. Id. at 1485, 1486.

alWhen a district court restricts cross-examination at trial, the

party seeking to cross-examine forfeits a challenge on appeal

by failing to state the ground for objection, id.; stating a

different ground at trial than on appeal, United Slates v

Gramnajo. 565 F. App'x 723, 727 n.2 (10th Cir. 2014)

(unpublished) (cited for persuasive value under Fed. R. App.

P. 32. 1, 10th Cir. R. 32.1); Uniled States 1,. Famuki, 803 F.3d

847, 856 (7th Cir. 2015); United Stales v. Reaves. 649 F.3d

862, 865 (8th Cir. 2011); or by failing at trial to object to the

limitation at all, UnitedSlates v. Mu//ins, 613 F.3d 1273. 1283

(10th Cir. 2010).

Waiver

jJAn appellant who fails to preserve an evidentiary objection

below may argue and establish plain error on appeal, United

Stales v. LaHue, 261 F.3d 993, 1009 (10th Cir. 2001), by

showing that the "district court committed (I) error (2) that is

clear or obvious under current law, and which both (3) affected

her substantial rights and (4) undermined the fairness,

integrity, or public reputation of judicial proceedings,"

Alu//ins, 613 F.3d at 1283. Failure to argue plain error on

appeal waives the argument. United States v Solomon, 399

F.3d 1231, 1238 (10th Cir. 2005); United States v. MacKay,

715 F.3d 807. 831 (10th Cir. 2013).

*1193 3. Analysis

,.,

_,1I

a. Mr. Roach failed to raise a Confrontation Clause

objection below

[JMr. Roach failed to raise the Confrontation Clause issue

below for all three lines of questioning, either at trial or in his

pretrial motions. To preserve the issue, he needed to describe

(I) the evidence and (2) the ground to admit it. See Adams,

271 F.3d at 1241. He failed to do the former in his pretrial

motions and the latter at trial.

As previously explained, Mr. Roach's Confrontation Clause

arguments concern the district court's refusal to allow his

lawyer to cross-examine Ms. Santillanes about (1) the length

of her potential sentence under 18 U.S.C. 1591(a)( I), (2) her

alleged lie to her pretrial services officer, and (3) her possible

alleged scheme to use the prepaid gift cards for fraud. In his

pretrial motions, Mr. Roach failed to identify any of these three

topics for cross-examination.

In his first motion, he argued that he should be allowed to

question Ms. Santillanes about her deal with the Government.

But he did not mention the length of her potential sentence

under 18 U.S.C. 1591(a)( I) as a cross-examination topic. In

his other three motions, he argued that he should be able to

cross-examine Ms. Santillanes about her prior and current

participation in prostitution under his constitutional right to

confrontation, but he did not mention any of the three topics he

raises on appeal.

United States v. Roach, 896 F.3d 1185 (2018)

Moreover, he did not mention his right to confrontation

under the Sixth Amendment as a ground for

cross-examination about her deal.

Mr. Roach cites United Slates v. Szabo. 789 F.2d 1484

(10th Cir. 1986). to argue that he sufficiently preserved

the constitutional argument in his first pretrial motion,

is distinguishable. In Szabo. the defendant

but

had filed a motion in limine arguing that a government

witness's statements "hald] no indicia of reliability and

did] not provide the functional equivalent of

cross-examination." Id. at 1486.

We addressed his Confrontation Clause argument on

appeal because "the constitutional issue was at least

arguably raised at one time during the proceedings

below, by way of the motion in limine." Id. at 1487, in

that it contained the phrase "indicia of reliability." the

Confrontation Clause standard at the time for admitting

hearsay evidence for an unavailable declarant.

9

-

Here. Mr. Roach's motion in limine did not "arguably

raise[ a Confrontation Clause claim with respect to

the length of sentence. it not only failed to mention the

Confrontation Clause or its underlying standard, it also

did not mention the length of the sentence as a topic for

cross-examination.

"

10

As mentioned above, the three motions requested the

opportunity to cross-examine Ms. Santillanes about (I)

her promoting prostitution in the present case and

previously in the states of Arizona. New Mexico, and

Texas: (2) prostituting an individual in a related case:

(3) her conviction for prostitution in Arizona: (4)

prostituting herself white living with Mr. Roach; and

(5) answering phone calls for Mr. Roach about D.G.

Although Mr. Roach is correct that he need not "specifically

mentioni] the Confrontation Clause" when it is apparent from

the context, Aplt. Br. at 40; see Adams. 271 F.3d at 1241, he

must also assert the particular topic for cross-examination, see

United Slates v. Summers. 414 F.3d 1287, 1297 n.7 (10th Cir.

.

1005) (preserving the constitutional argument by demanding

cross-examination of co-defendant's hearsay statement at trial);

United States v. Szabo. 789 F.2d 1484, 1487 (10th Cir. 1986)

(preserving the constitutional argument by requesting

cross-examination of co-conspirator's hearsay statements in a

motion in limine). In his pretrial motions, Mr. Roach failed to

raise the length of Ms. Santillanes's potential sentence, the

alleged lies to her pretrial services officer, and the alleged

prepaid card scheme.

* 1194 When Mr. Roach did raise these issues at trial, he failed

to state a Confrontation Clause ground on which the court

should permit the cross-examination. Indeed, Mr. Roach

concedes that he "did not mention the Confrontation Clause at

trial," Aplt. Reply Br. at 3, but argues he sufficiently raised his

,VF S"LAW

constitutional arguments in his pretrial motions. He claims that

he "repeatedly stress[ed]

the constitutional basis for his

requests for cross-examination of Ms. Santillanes on various

topics," and that any restriction on such questioning "would

violate the Confrontation Clause." Aplt. Br. at 39-40. We

disagree. Although he mentioned the Confrontation Clause in

his second set of pretrial motions, he neglected to mention the

three topics for cross-examination in any of his pretrial

motions. It was therefore not "apparent" when he pursued

cross-examination on these topics at trial that he was relying on

1.11

the Confrontation Clause. Adams, 271 F.3d at

...

-

Mr. Roach also argues that "the combination of Mr.

Roach's frequent pretrial assertions of his constitutional

right to cross-examination, the district court's

recognition of that right and Mr. Roach's objections to

curtailing his cross-examination during trial preserved

the Confrontation Clause issues." Aplt. Br, at 41. But

because his pretrial motions failed to identify any of the

cross-examination topics he wished to pursue at trial

and now on appeal, and because he failed to object

based on confrontation regarding these topics at trial,

we do not discern an adequate contextual ground. and

certainly not a "clear" one, Martinez, 776 F.2d at 1485.

for Mr. Roach to overcome his forfeiture of his

Confrontation Clause arguments.

In sum, because Mr. Roach neither mentioned the three topics

in his pretrial motions nor the Confrontation Clause at trial, he

forfeited his arguments below.

b. Mr. Roach fails to argue plain error on appeal

[flMr. Roach fails to argue plain error on appeal. He therefore

has waived his Confrontation Clause arguments about the three

lines of questioning and we do not consider them further. See

Solomon, 399 F.3d at 1238; MacKay, 715 F.3d at 831.

B. Rules of Evidence

Mr. Roach argues "even assuming arguendo [he] did not

preserve the cross-examination restrictions as constitutional

issues, he preserved them for non-constitutional review under

the abuse-of-discretion standard." Aplt. Reply Br. at 4. He

contends the district court abused its discretion under the

Federal Rules of Evidence when it prevented him from

cross-examining Ms. Santillanes on the three topics.

United States v. Roach, 896 F.3d 1185 (2018)

Although we question whether Mr. Roach adequately

preserved his nonconstitutional objections, we need not

address that issue nor whether the district court abused its

discretion. Even assuming the district court abused its

discretion, any error was harmless.

Legal Background

exclude evidence

"A party may claim error in a ruling to

only if the error affects the substantial right of the party...."

Fed. R. Evid. 103(a). "The rule does not purport to change the

law with respect to harmless error." Fed. R. Evid. 103(a)

advisory committee's note to 1972 proposed rules.

12

-

...

L

81 [21 JJ,QJ [jjJ"We will not reverse a defendant's conviction

on the basis of a district court's erroneous admission [or

exclusion] of evidence if the error was harmless to the

defendant." United Stales v. Kupfer. 797 F.3d 1233. 1243

(10th Cir. 2015); see United States i /r'in.e, 665 F.3d 1184,

1209 00th Cir. 2011) (applying to excluded evidence). "A

non-constitutional error is *1195 harmless unless it had a

'substantial influence' on the outcome or leaves one in 'grave

doubt' as to whether it had such effect." United States v.

Rivera, 900 F.2d 1462. 1469 (10th Cir. 1990) (en banc)

(quoting Kotteakos v. United States, 328 U.S. 750, 765. 66

S.Ct. 239,90 LEd. 1557(1946)). "To make this assessment,

we review the entire record de novo, examining the context,

timing, and use of the erroneously admitted [or excluded]

evidence at trial and how it compares to properly admitted

evidence." Kupfer, 797 F.3d at 1243 (quotations omitted). The

government bears the burden to show that a nonconstitutional

error is harmless by a preponderance of the evidence. See

United States v. Jones, 818 F.3d 1091, 110100th Cir. 2016).

Analysis

[j.,J jUJMr. Roach argues the district court's limitations on

cross-examination had a "substantial influence on the verdict."

Aplt. Br. at 55. But for three reasons, the Government has

demonstrated that the limitations—individually or

—did not substantially influence the outcome of

cumulatively'

the case)'

13

To the extent Mr. Roach attempts to present a

cumulative error argument regarding the restrictions on

the three lines of questioning. "we aggregate all the

errors that we have found to be harmless and determine

whether their cumulative effect on the outcome of the

trial mandates reversal.' United 5wes v. Anava. 727

F.3d 1043. 1060-61 {lo(h Cir. 2013) (quotations

omitted). For the reasons presented above, we conclude

that any evidence-rules errors, considered individually

or together. did not substantially affect the outcome of

the trial. See Id. at 1061.

The Government primarily argues that any

constitutional error—as opposed to nonconstitutional

error—was harmless. As it recognizes, the standard for

a harmless constitutional error is whether we are "able

to declare a belief that it was harmless beyond a

reasonable doubt." Rivera, 900 F.2d at 1470 (quoting

Chapman v. California. 386 U.S. 18. 24. 87 S.Ct. 824.

17 L.Ed.2d 705 (1967)). This standard requires more

from the Government than showing a nonconstitutional

error was harmless.

First, Mr. Roach challenged Ms. Santillanes's credibility

throughout the cross-examination. Defense counsel questioned

her about her past methamphetamine use and how she was still

testing positive for drugs a year after charges had been brought

in this case. He also asked her about "not telling [Mr. Roach]

that you were actively prostituting" when she was romantically

involved with him, which "was a pretty big lie, right?" ROA,

vol. III at 403. Most important, he inquired about the deal she

made with the Government to testify. Although the district

court blocked questions about the length of the potential

sentence, counsel was able to ask about her charges being

dropped in return for her testimony.

Second, Mr. Roach called two witnesses to impeach Ms.

Santillanes's character for truthfulness. He questioned Vanessa

Baca, who "ha[s] children with [Mr. Roach's] cousin," Id. at

639, about her "opinion as to [Ms. Santillanes's] truthfulness,"

id. at 644. She responded that Ms. Santillanes was not truthful.

Similarly, he asked Christopher Baca, Mr. Roach's former

roommate, a similar question, and he gave the same answer.

See id. at 661-62.

Third, even assuming the blocked cross-examination would

have put Ms. Santillanes's credibility into further doubt, it

would not have substantially influenced the outcome of the

case. The jury had ample evidence to convict Mr. Roach

1591(a)( 1), the

without her testimony. Under 18 U.S.C.

Government needed to prove that Mr. Roach knowingly

"recruit[ed], entice[d], harbor[ed], transport[ed], provide[d],

obtain[ed], advertise[d], maintain[ed], patronize[d], or

4-

United States v. Roach, 896 F.3d 1185 (2018)

solicit[ed]" D.G., knowing that "means of force, threats of

force, fraud, [or] coercion" would be used to "cause [her] to

engage in a commercial sex act." *1196 18 U.S.C.

11591(a)(0. D.G. described incidents in which Mr. Roach

attacked or threatened her. For example, she testified that when

he learned she had been speaking with others on Facebook, he

drove her to the outskirts of Albuquerque. With a gun in his

lap, he told her that he was disappointed with her because she

was talking to "a bunch of people." ROA, Vol. Ill at 502-03.

Mr. Roach then slapped her face "multiple" times and warned

that, if she left him, he would hurt one of her family members.

Id. at 504-05. Mr. Roach disputed these episodes, but he did

testify to an occurrence when he hit D.G. He admitted to

"slapp[ing] her with an open hand once across her face," id. at

706-07, because he believed that she was "still doing side

dates," id, at 705. The evidence thus showed that Mr. Roach

used violence to coerce D.G. into prostitution.

14

-

Section 1591(a) reads in full:

(a) Whoever knowingly(1) in or affecting interstate or foreign commerce, or

within the special maritime and territorial jurisdiction

of the United States, recruits. entices, harbors,

transports, provides, obtains, advertises, maintains,

patronizes. or solicits by any means a person: or

(2) benefits. financially or by receiving anything of

value, from participation in a venture which has

engaged in an act described in violation of paragraph

M.

knowing, or, except where the act constituting the

violation of paragraph (I) is advertising, in reckless

disregard of the fact, that means of force, threats of

force. fraud, coercion described in subsection (e)(2), or

any combination of such means will be used to cause

the person to engage in a commercial sex act, or that the

person has not attained the age of 18 years and will be

caused to engage in a commercial sex act, shall be

punished as provided in subsection (b).

18 U.S.C.

1591(a).

Even if we "are not totally free from doubt about whether" the

limitations on cross-examination "may have had some

influence on the outcome of the case," "we do not have grave

doubt that the errors," alone or cumulatively, "had a

substantial effect on the outcome." United Slates v. Chancy,

189 F.3d 1251, 1270 n.29 (10th Cir. 1999) ("Grave doubt, by

definition, does not refer to every level of doubt, and

substantial influence, by definition, does not mean any or some

influence."). Assuming that the district court abused its

discretion in limiting cross-examination, any errors were

harmless because they did not have a substantial influence in

the outcome of the case.

III. CONCLUSION

Mr. Roach's challenge on appeal to the district court's

foreclosure of his three lines of cross-examination fails. He has

waived his Confrontation Clause arguments, and any error

under the rules of evidence was harmless. We uphold Mr.

Roach's conviction and affirm the district courts judgment.

All Citations

896 F.3d 1185

.-1.

APPENDIX B

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 1 of 7

AU 245 (Rev 11/16) Judgment in a Criminal Case

Sheet I

UNITED STATES DISTRICT COURT

District of New Mexico

UNITED STATES OF AMERICA

V.

Amended Judgment in a Criminal Case Reason:

-

Correction of Sentence for Clerical Mistake (Fed. R. Crim. P. 36)

(defendant found guilty after plea of not guilty to

indictment)

SHANE ROACH

Case Number: 1:15CR02732-OO1JAP

USM Number: 81540-051

Defendant's Attorney: David C. Serna

THE DEFENDANT:

El

pleaded guilty to count(s) Indictment.

El

pleaded nolo contendere to count(s) which was accepted by the court.

was found guilty on count(s) Indictment after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title and Section

Nature of Offense

18 U.S.C. Sec. 1591(a)

Sex Trafficking by Means of Force, Threats, Fraud, and

Coercion

.

Offense Ended

Count

06/11/2015

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984. The Court has considered the United States Sentencing Guidelines and, in arriving at the sentence for this

Defendant, has taken account of the Guidelines and their sentencing goals. Specifically, the Court has considered the sentencing range

determined by application of the Guidelines and believes that the sentence imposed fully reflects both the Guidelines and each of the

factors embodied in 18 U.S.C. Sec. 3553(a). The Court also believes the sentence is reasonable and provides just punishment for the

offense.,

0 The defendant has been found not guilty on count(s).

0 Count(s) dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay

restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

4/13/17

Date of Imposition of Judgment

Is! James A. Parker

Signature of Judge

Honorable James A. Parker

Senior United States District Judge

Name and Title of Judge

4/18/17

Date

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 2 of 7

'

AO 24,

113 (Rev 1/16) Judgment in a Criminal Case

Sheet 2 Imprisonment

Judgment Page 2 of 7

-

-

DEFENDANT: SHANE ROACH

CASE NUMBER: 1:15CR02732-001JAP

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 180

months.

The court makes the following recommendations to the Bureau of Prisons:

Safford Federal Correctional Institution, Safford, Arizona, if eligible

The Court recommends the defendant participate in the Bureau of Prisons 500 hour drug and alcohol treatment program.

The defendant is remanded to the custody of the United States Marshal.

D

The defendant shall surrender to the United States Marshal for this district:

o

El

0

aton.

as notified by the United States Marshal.

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

El

El

El

before 2 p.m. on.

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

to

Defendant delivered on

at

with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 3 of 7

AC 245 (Rev 11/16) Judgment in a Criminal Case

Sheet 3 -Supervised Release

Judgment Page 3 of 7

-

DEFENDANT: SHANE ROACH

CASE NUMBER: I:15CR02732-00IJAP

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of: 5years.

MANDATORY CONDITIONS OF SUPERVISION

You must not commit another federal, state, or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

The above drug testing condition is suspended, based on the court's determination that you pose a low risk of

future substance abuse. (Check, if applicable.)

S You must cooperate in the collection of DNA as directed by statute. (Check, if applicable)

0 You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state, local, or tribal sex offender registration agency in which you

reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

0 You must participate in an approved program for domestic violence prevention. (Check

o

if applicable)

You must make restitution in accordance with 18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664. (check if applicable)

You must pay the assessment imposed in accordance with 18 U.S.C. § 3013.

If this judgment imposes a fine, you must pay in accordance with the Schedule of Payments sheet of this judgment.

You must notify the court of any material change in your economic circumstances that might affect your ability to pay restitution, fines,

or special assessments.

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

I.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your release

from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when

you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying the

probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses you

from doing so. If you plan to change where you work or anything about your work (such as your position or your job responsibilities),

you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is

not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or

expected change.

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 4 of 7

You must not communicate or interactwith someone you know is engaged in criminal activity. If you know someone has been convicted

of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation

officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first

getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require

you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and

confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 5 of 7

AO 245k (Rev 11/16) Judgment in a Criminal Case

Sheet 5 Special Conditions

-

Judgment Page 5 of 7

-

DEFENDANT: SHANE ROACH

CASE NUMBER: 1:15CR02732-OOIJAP

SPECIAL CONDITIONS OF SUPERVISION

You must not use or possess alcohol.

You must not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive

substances (e.g., synthetic marijuana, bath salts, etc.) that impair your physical or mental functioning,

whether or not intended for human consumption.

You must not communicate, or otherwise interact, with the victim(s), either directly or through someone

else.

You must undergo a sex offense-specific assessment to determine the level of risk for sexual

dangerousness, recidivism, and amenability to treatment and formulate treatment recommendations if

treatment is necessary. You may be required to pay all, or a portion of the cost of the assessment.

You must cooperate and comply with the United States Probation Office's Computer Restriction and

Monitoring Program (CRMP).

You may, with the written approval of the probation officer, possess a computer(s) or a personal internet

capable device. You must identify your computer system, internet capable device, data storage device(s),

computer data storage media, or any other electronic equipment capable of storing retrieving and/or

accessing data that you possess or use. You will agree to only use the internet capable device(s) that are

authorized by the probation officer. You must disclose any username or identification(s) and password(s)

for all computer or internet capable devices. You must submit to the probation officer, on a monthly

basis any cellular or telephone/internet service provider billing records or receipts, to verify that you are

not utilizing services that are prohibited.

You must permit random unannounced examination of your computer system(s), (as defined in 18 U.S.C.

1030(e)(1)), data storage device(s), computer data storage media, internet capable device(s) or any other

electronic equipment capable of storing retrieving and/or accessing data under your control to ensure

compliance with the computer monitoring condition. These searches shall be conducted for the purpose

of determining whether the computer contains prohibited data prior to installation of monitoring

software; to determine whether the monitoring software is functioning effectively after installation, and

to determine whether there have been attempts to circumvent the monitoring software after installation.

You must inform any other users that said systems, devices, etc., may be subject to examination. Failure

to submit said devices to an examination may be grounds for revocation.

You must participate in an outpatient substance abuse treatment program and follow the rules and

regulations of that program. The probation officer will supervise your participation in the program

(provider, location, modality, duration, intensity, etc.). You may be required to pay all, or a portion, of

the costs of the program.

You must submit to substance abuse testing to determine if you have used a prohibited substance.

Testing may include urine testing, the wearing of a sweat patch, a remote alcohol testing system, an

Case 1:15-cr-02732-JAP Document 259 Filed 04/18/17 Page 6 of 7

alcohol monitoring technology program, and/or any form of prohibited substance screening or testing.

You must not attempt to obstruct or tamper with the testing methods. You may be required to pay all, or

a portion, of the costs of the testing.

You must submit to a search of your person, property, residence, vehicle, papers, computers (as defined

in 18 U.S.C. 1030(e)(1)), other electronic communications or data storage devices or media, or office

under your control. The probation officer may conduct a search under this condition only when

reasonable suspicion exists, in a reasonable manner and at a reasonable time, for the purpose of detecting

evidence related to sex trafficking, alcohol, controlled substances, firearms, ammunition, dangerous

weapons or other contraband You must inform any residents or occupants that the premises may be

subject to a search.

.

You must participate in and successfully complete a community-based program which provides

education and training in anger management.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this judgment

containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised Release Conditions,

available at: www.uscourts.gov.

Defendant's Signature

Date