United States v. Roach, 2018 WL 3543151 (10th Cir. July 24, 2018)(published): Roach was convicted of coercing another into prostitution in violation of 18 U.S.C. § 1591(a)(1). On appeal he argued the district court’s ruling restricting his cross-examination violated the Confrontation Clause and the Federal Rules of Evidence. The panel held Roach forfeited the Confrontation Clause argument because his pretrial motions did not mention the cross-examination topics he tried to pursue at trial and at trial he did not “state a Confrontation Clause ground on which the court should permit the cross-examination” on those topics. (The panel dismissed the evidentiary rules argument because even if there was error, it was harmless.) To preserve an objection to the exclusion of evidence (or an excluded line of cross-examination questioning), counsel must make an offer of proof at trial, (a) describing the evidence and what it tends to show - i.e. the particular topic for cross-examination - and (b) identifying the grounds for admitting the evidence - i.e. the legal basis for the cross-examination questions (Confrontation Clause and pertinent evidentiary rules). The offer of proof may be made during questions and objections at trial, in motions in limine or at pretrial conferences. Remember, on appeal one “forfeits” a challenge to the court restricting cross-examination if one uses a different ground to support the objection than one did at trial.
Roach filed a pretrial motion which argued that according to the Confrontation Clause, he should be allowed to question a cooperating co-defendant about her “deal with the Government.” The district court agreed and let him do so at trial. However, at trial he also wanted to ask her about the potential sentence she could receive if she did not cooperate. The court did not let him question her on this topic and on appeal Roach said that decision violated his Confrontation Clause rights. The panel disagreed.

United States v. McLinn, 2018 WL 3542978 (10th Cir. July 24, 2018)(published): According to 18 U.S.C. §922(g)(4), a person who has been adjudicated a mental defective, or who has been committed to a mental institution, is prohibited from possessing a firearm. McLinn was charged with violating this statute based on his prior temporary detention at a Kansas mental institution. He pleaded guilty conditionally and preserved for appeal the issue of whether it is a matter of fact or law if someone has been adjudicated a mental defective or has been committed to a mental institution as described § 922(g)(4). In the district court, he moved to dismiss the charge under Fed.R.Crim.P. 12(b)(3)(B)(v), claiming that, as a matter of law, this prior detention did not disqualify him from possessing a firearm under § 922(g)(4). The court found that the issue was one of fact, not law, and denied the motion without prejudice. The circuit panel agreed with McLinn. On remand, it said, the district court must decide as a matter of law: (1) whether a state court’s determination that there was “probable cause to believe that McLinn was suffering from a severe mental disorder, that he lacked the capacity to make an informed decision concerning treatment and was likely to cause harm to himself or others was a sufficient adjudication under the statute” and (2) whether McLinn was “‘involuntarily committed’ to a mental institution given that this term has been defined in 27 C.F.R. § 478.11 to exclude commitment ‘for observation.’”