i'll go ahead and call the first case it's united states versus roche number seventeen dash two zero five we have please the court counsel my name is eric allison heimer i'm an assistant federal public defender in the district of new mexico i represent the appellant in this matter mr shane roche at the trial in this case mr roach was prevented from cross examining a key government witness on three areas on three topics that went to the heart of that witness credibility bias and motive to testify falsely i would like to address those those three topics address how they violated mr roach his rights under the confrontation clause and address a couple of the issues two of the issues that were raised in that being preservation and harmless error do you think you could start with preservation and tell us three lines of questioning first of all whether any of those were specifically raised in  pretrial motions i mean specifically i'm not talking about a generalized like to cross examine in the confrontation clause is important all that part about the that the three topics that we're dealing with now your honor they were not specifically raised in the pretrial briefing in this case the the first topic which is the cross examination on the benefits that the cooperating witness received that was i think i  don't want to say it was specifically raise it was the i think the right to cross examine on the dismissed charges was identified and were raised in a pretrial briefing the specific question that was that is the issue before the court was not specifically raised i would like to i think the reason that that particular issue was preserved first of all i think it's important to note that the pretrial briefing did contain i think it's safe to say a great deal of discussion about cross examination the right to cross examination in the context of the confrontation clause and that trial when that when trial counsel in this case raised the ask the question about what the cooperating witness received as a benefit that she was facing i think the language was a pretty lengthy sentence at b at the bench conference after the court and after the government lodged their objection that it would get into penalties the court recognized that that was not a set it was not appropriate vehicle to get the penalties the trial counsel then said i wasn't asking the question again the penalties i was raising it because it goes to the witnesses understanding and her motive to testify falsely and i think that that language is sufficient under tenth circuit law to preserve the issue on that specific line of questioning about the penalties that the cooperating witnesses facing  second u s b desoto and the third us we summers looking at those cases i think it's clear particularly with regard to the sabo case on this issue which is that there was an objection and the discussion did not mention specifically the right to confrontation but they did use language whether it's testimonial and they employed language about the i think at the time it was the ohio the roberts analytical framework the court found that that was sufficient to preserve the confrontation clause objection and that was in the case and then to look at the summer's cases of two thousand and three case well i thought we exercise discussion the court found that it was had been sufficiently identified so that it could be addressed by the court i think perhaps that's another way of phrasing a phrasing it but i think it certainly stands for the proposition that a discussion that identifies the analytical framework of the six amendment is sufficient for the court to review that on appeal on the no vote review on appeal the second case that i'd like to point out the u summers case that's a two thousand and three case it involves an objection i believe in it involves an objection to a particular line of direct examination the defendant objects and raises hearsay and the exceptions to the hearsay rule and whether or not they fit there's never a specific mention of the confrontation clause in footnote seven of that decision the court finds that that was because it had been strenuously objected that that was sufficient to preserve the issue for hinge on the fact that they had raised that in a motion for a new trial i read footnotes as identifying the proposition that the specific insistent insistence on the objection to that particular line of questioning was sufficient that even though the confrontation clause was not mentioned the court recognized that it had been preserved but i'd like to address the last case disorder case i believe is the one thousand nine hundred one case can i just ask  and maybe your discussion of that case might help in your response but this in terms of the preservation we're still on the first line of questioning that's right we're talking about the length of a potential sentence there to preserve the issue isn't it a matter of identifying really two things one is the topic for cross examination that would be the length of the sentence so that would be one thing and the other would be the ground for the objection the ground with in this instance the confrontation and in your discussion in response to just make you seem to be more focused on weather confrontation or the case involved with the ground for the second but we're we're dealing aren't we with whether you identified this particular topic to the cork as something you wanted to object to pretrial and i think that your argument is that by identifying the interest in cross examining on the arrangement or the dismissal of the charges your what you're saying is that that the length of the sentence is sort of underneath that umbrella is that is that what you're trying to say that's right and can i'd like to address that in and i if i'm not  let me address what i think your honor is asking i in trial trial counsel sought to ask the question and you were facing a pretty lengthy sentence that was objected to the witness to not answer and in the in the sidebar in the bench conference in response to the court's what the court ruled was i'm not going to allow you to go into that trial counsel identified what he wanted to go into i was asking this question because it goes to the witnesses understanding and her motive to testify falsely and i think that sufficient to identify what he was seeking to ask about he would see and again to be clear and just in terms of the confrontation clause analysis he was not asking about the specific penalties that the cooperating witness was facing he was asking about the quality of the of the benefit that she was receiving through our cooperation so he she wasn't asked he wasn't asking about the fifteen year mandatory minimum to a period of time that she avoided through her testimony he was merely asking for a characterization or something about the quality of that benefit i hope that answers your honest question and again that we can see that wasn't specifically raised in pretrial motions but i think that the repeated insistence on pre motions is sufficient to alert the court and i think it would be unrealistic to think that the trial judge wasn't aware that it was a confrontation clause issue that was being identified when trial counsel said he was asking for the understanding of the motive to testify falsely with regard to the two other i focused on the first because i think that's the most noteworthy in terms of the confrontation clause violation the inability to cross examine a witness about something that goes to the core of her testimony of her motive to testify falsely and her motive her bias and her interest in testifying is the core of the confrontation right and that's why it's so problematic in this case particularly when that witness was not an ancillary witness this was a witness that is that the core of the government's case and a witness that the government relied on significantly in their closing argument to shore up and to buttress the complaining witness  alleged victim in the case whose testimony had a number of internal contradictions and so i focused on that i could briefly identify address the other two areas of cross examination that mr roach was not able to go into first of the first of all was the issue with the pretrial the what we have a good faith basis to believe was a lie to the services office he raised that issue before it was in us on the second day of trial before the cross examination resumed of the cooperating witness and the court ruled that he could not go into that he asked to go into that the court ruled that he could not go into that i think that that particular line of cross examination was sufficiently preserved again he it that it was understood it was a confrontation yes you're all right and and that's why i think in our it's important to look at the pretrial motions and the repeated emphasis on the confrontation clause right with regard to a number of different lines of questioning a number of different issues but particularly with the court's ruling that we identified in our in our briefing in this case and the court's recognition that bias in motive are at the root of the right to cross examination under the confrontation clause i think it's reasonable to assume that the trial judge was sufficiently aware that it was a confrontation clause issue being raised and that same analysis applies to the third line of question which is about the attempted appeal we have not and the reason that we have not argued plain there is because i think if the court finds that we did not sufficiently raise the confrontation clause issue then i think that we least raise the of an injury issue and the analysis should be under an abuse of discretion standard  we there are three instances where the line of cross examination was pursued it was not allowed and i think that's at least sufficient to raise the issue but then it would be whether it's harmless if it were under that's hyde that's correct obviously under the abuse of discretion standard we have a more difficult harmless error analysis to overcome but just to address that again this is not a witness who was tangential to the government's case this is a witness that they relied on and just to turn the court's attention to the closing the government's closing argument not only did they start their closing argument referencing the statement about the soul catcher from the cooperating witness they that then went on to say that the jury c complaining witness because her testimony the complaining witness testimony and the cooperating witnesses testimony were so were so aligned and i think the and i'm paraphrasing but the prosecution the government's argument in closing used the cooperating with this is statement mr roach a statement that the cooperating witness relayed that she said mr up stated to say that it was mr rogers own words so the government relied on the cooperating witness in three pivotal parts of its closing argument and i think that under either harmless error analysis is sufficient to justify vacating mr rich's conviction and remanding this for a new trial i have a minute and thirty seconds left i'd like to reserve the remainder of my time thank you thank you may please the court good morning your honors my name is james braun and i'm going to says the united states attorney in albuquerque a district court has broad discretion in placing reasonable limits on cross examination even against  cooperating witness as in this case and that's exactly what the district court here did prior to trial the defendant had asked for permission to cross examine miss anthony on us about her dismissed sex trafficking charge the judge allowed that he was allowed to defend it was allowed to cross examine miss anthony on us about the fact that she had been charged with the same crime as the defendant that she had reached a deal with the government and that as part of that deal in exchange for her cooperation the charges against her were completely dismissed the court then placed a limit on that cross examination when the defendant tried to go into the penalties that miss anthony on his face and that was a reasonable limit on cross examination here where the judge was reasonably concerned about jury nullification if the you mean the question of whether the limit was proper not seems to assume that we've we've already crossed that bridge well the first the first part of the analysis of for plane air is whether the corps erred at all and we would argue the court did not air at all well they didn't they didn't even argue plane or wire if you waived the waiver of plain error they don't argue player you start arguing plain error by arguing point here aren't you saying that we should go ahead and review for review on appeal is the end of the road as to that argument now of means are not entitled they may not be entitled to you but don't we still have discretion to reach of especially if you are arguing that you certainly have discretion and we we have to argue it because if  court decides to exercise its discretion to engage in plainer review then of course we want to have fully briefed it that does not mean that we have waived the argument that this court should simply choose not to review it at all now  argue plain error in in a reply brief and this court could find that that's sufficient if the government has argued plain air in its answer brief in and the defend it then addresses it in the reply but that hasn't happened here i understand so we could we just go back  why wouldn't that encompass the potential length of sentence for the charges that were dismissed well it's interesting because in the other pretrial motions that the defendant references motions that related to cross examination of misandry on us as to other acts of prostitution she engaged in in arizona and texas he specifically raised confrontation clause he specifically open say ok you've had these charges dismissed and what was the benefit of that what what what kind of sentence did you avoid why isn't that all part of the same thing because the court and the district court has discretion to place reasonable limits on cross examination oh no i understand i understand i understand that part and you're saying that but but i think that assumes that that line of inquiry is relevant but the court still has discretion to cabinet because the court has discretion to limit cross examination i'm just talking about the preservation why hasn't that first issue been preserved right and so to follow that argument that the defendant has an obligation to put the court on notice if he objects to the limits placed on his cross examination as to what his argument is now here in his pretrial motion at the it's volume one of the supplemental record on appeal pages forty four through forty eight he does not mention the confrontation clause or the sixth amendment as to why he should be allowed to go into this area so the court allows him to go into that area places a reasonable limit on the question that he's asking in that regard if the defendant has an objection to that limit it's incumbent on him to state that objection he did not do that he did not mention the confrontation clause he didn't say that this would be a violation of the sixth amendment he accepted the judge's ruling that's why he didn't preserve it well with regard to this argument would be fair to say under judge mathis since two prong and now says that what you're saying is he preserved the topic but he didn't preserve a confrontation  objection that's right into argument he did not preserve that specific objection nor did he observe preserve the objections as to the other two topics whether miss ante on us had lied to pretrial services or whether she was planning to engage in some sort of fraud related to the used gift cards if he didn't preserve confrontation didn't he at least preserve an objection and piece of discretion objection or regular jackson that he made at trial we would argue that he did not with regard to this question because first topic because he explained why he wanted to ask about he once the judge ruled he did not object to that ruling similarly to in in the moments case where the defense attorney had asked a question  government objected the judge ruled against him and the defense attorney said fair enough judge moved on similarly here the defense attorney said thank you judge and accepted that limitation without further objection or argument and we would argue that under mullens that is a forfeiture that would be subject to plane air review if he had argument clarity what about lying to the probation officer would you say he at least preserved and abuse of discretion normal evidentiary objection on that one yes we would concede that ok well of course he has not argued although he said he stated the play are the abuse of discretion standard of review in that section of his brief he did not argue abuse of discretion in his in the body of his brief argued a confrontation clause violation is is the question of whether was lying is is that a question for the court to decide or the jury to decide in this case it was a question for the court to decide and why is that this case is different from the case that the defendant cites i believe in his reply brief wrote the question was whether the victim had had a sexual relationship with a third party during the time that that the alleged sexual assault took place and there was an actual witness who testified that she believed they they were in case in a sexual relationship the district court there found that witness not credible and made that finding that this court held was for the jury to make not for the judge the difference here is that there is no witness who testified or who would testify that misandry on a slide the record was simply that her attorney had filed a motion for her to be released to the third party custody of her grandparents were she would live as she had permission to live there and then when pretrial services followed up her grandparents said no she didn't have permission to live there we don't know how that came about the defendant is assuming that misandry honest must have lied to her attorney but there are other reasonable assumptions that could be made that it was a misunderstanding but isn't he entitle to let the jury draw their own inference about that i mean the district court said well we'll have to basically have a mini trial on this because other cross examine or cannot it's unclear whether the other party could bring in extra it's a governance to clear up any confusion but i think also there was a legitimate concern that just under rule one hundred four b in order for the district court to make that preliminary finding that there were sufficient facts to go to the jury that the judge might have needed to hear more he might have he might have needed to hear how how did this come about but the fact is he didn't need to hear that because as the judge said he had received reports from  pretrial services and so based on that based on his knowledge he concluded that it was a misunderstanding or that there was confusion there there is no fact in the record no wit no witness or no document that says miss santee on a slide it's inference and when there are competing inferences the judge has to make a finding of whether there is enough evidence for it to go to the jury in this case the judge rightly found that there was implicitly found that there wasn't sufficient evidence for it to go to the jury because based on what he knew it was based on confusion and not a lie that's how it's like he's making the decision of whether she was truthful but he's not making a credibility determination as in the potential case he's performing his role as a gatekeeper for the evidence that comes in and where there is no there is no clear evidence that miss anthony on a slide it would not be put it in those terms but i don't think that changes the analytical basis to say that it was clear there for the judge was all right to side it is clarity is for cross examination and for the jury but in order to go into this line of questioning about whether miss anthony on us had lied which is you know purely goes to impeachment there has to be some basis for it and here if the grandparents had said no she lied she never had permission to stay here then it would probably be improper for the district court to say i don't believe them i believe it was a misunderstanding but we don't have that here we just have the grandparents saying no she doesn't have permission as of now we don't know if she why she thought she had permission previously when the motion was filed now the district court said that he had received reports from pretrial services and based on that he believed it was just confusion and so in those circumstances the court acting as the gatekeeper for the evidence that comes in trying to avoid a mini trial or confusing the issues for the jury it was certainly within his discretion to exclude that evidence but even if there was error in that him counsel we're running out of time and i need to bring you back to this sort of back up abuse of discretion argument that the palance making and understand a little better abuse of discretion is the standard of review what are we reviewing for abuse of discretion and if there's an objection to the way evidence is handled we need a ground to review what are we what are we applying that standard of review to well in in this situation regarding the pretrial services topic it would be whether the court abused its discretion in not allowing cross examination under rule six zero eight the ok and we would argue the court did not abuse its discretion but even if it did that's that in your area that we would argue and you're conceding that that that that that issue was properly before us only with regard to two abuse of discretion review not with regard to six a minute confrontation and only as to that line of questioning or right what about the other line sweltered the third topic that relates to the give you are a gift cards in that case defense counsel specifically argue that he was trying to introduce that evidence to show essentially a pattern where miss anthony honest would well no sure just a roach about how to commit a crime ok but once again abuse of discretion this is do you agree that this issue is properly before us under the abuse discretion no because the only only that second issue in your opinion right because that's that third issue the defendant is making a completely different argument on appeal that he made in front of the district court in front of the district court he did not argue six away be he argued although for the right right  initially said it's for impeachment he agreed with the court when the court said is this for impeachment he said yes but then when he explained the reason he wanted to introduce it if i could finish my answer i sleep time what he said was he wanted to introduce it to show this this pattern essentially which the district court reasonably understood as a four or four b argument and properly excluded it under that theory now on appeal the defendant is arguing six a way b that was not preserved under harmless error or under a plain error otherwise if i could first return to the preservation issue and just address with a couple of topics without first of all the the basis of our argument that the present there is preservation of the constitution a constitutional issue with in the middle of trial when he mentions motivation understanding and motivation to testify falsely that is i believe sufficient to raise that issue and particularly with regard to the the ten circuits decision and desoto of desoto discuss es the core principle of cross examination being two to attack of witnesses bias and motive to testify falsely it doesn't this it doesn't mention the term confrontation clause it then goes on to address the confrontation clause issue that's just  don't know the backstory and i'm distraught over the case doesn't discuss preservation at all that's absolutely right but we don't know whether it has the full transcript of what was i mean because it just wasn't an issue language of confrontation clause is never mentioned but the specific words of motive and bias and it and credibility that's it's throughout that and in the he of trial when counsel is just seeking to in the  the heat of the moment make an objection per state something that the court for the basis for the line of questioning i think the language used by trial counsel in this case is sufficient to preserve that constitutional issue for purposes of the cross examination of