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Pay Back: Can Former Co-Defendants’ Sexual Histories Be Used Against Them in the Courtroom?
United States v. Roach, 896 F.3d 1185
(10th Cir. 2018)

By: SARAH HAMILL

Shane Roach knew what kind of woman he would prey on—one who was vulnerable and discouraged, so she would be easier to control. Naturally, he looked on Backpage.com. In April 2015, he found D.G., who had been a prostitute for two years and was a heroin addict. He contacted her and took her out to eat. He told her he wanted to help her reach her full potential and would protect her. She agreed to these false promises.

The Terrible Reality: The Promise of Safety Turned into Coercion and Abuse

The next day, Roach picked up D.G. and took her to a motel where he made her take pictures for her ads. He confiscated the only money she had with her ($32), her I.D., and her cell phone. He handed her a prepaid cell phone and, with a gun on his lap, told her she could not leave the room. Roach made it clear that any money D.G. made from prostitution would be his.

Roach determined the rates D.G. charged for each “date” she had.  Clients called Angela Santillanes, Roach’s future co-defendant, and she informed Roach that a date was scheduled. Roach then called or texted D.G.’s prepaid phone with the information she needed for each date. This operation continued from May to June 2015. Each day during that time, D.G. saw three to six clients and made approximately $400-500, all of which Roach pocketed.

Roach beat D.G. numerous times. Once he beat her for falling asleep instead of packing for their hotel change. Later when Roach discovered that D.G. had been talking to people on Facebook, he drove her to the outskirts of Albuquerque, and with a gun on his lap, he expressed his disappointment. He slapped her face multiple times and warned that if she tried leaving, he would hurt her family. Roach disputed these incidents but admitted he once slapped D.G.’s face.

The Escape and Arrests

In June 2015, Roach commented about sending D.G. to Texas to show her the other side of pimping. In response, D.G. notified Life Link, an organization that helps human trafficking victims. Life Link alerted the police, and officers contacted D.G. She eventually disclosed her location and was safely removed from her motel room. The police located Roach’s car, found Roach and Santillanes inside, and arrested them both. Inside Roach’s residence, police found multiple guns and prepaid gift cards used to purchase advertisements on Backpage.com.

Defendant Convicted; Co-defendant’s Charges Dismissed

In July 2015, a grand jury indicted both Roach and Santillanes on one count of sex trafficking under 18 U.S.C. § 1591 (a)(1). However, the government made a deal with Santillanes: if she agreed to testify against Roach, the government would dismiss her charge. Santillanes agreed and cooperated with the government for the remainder of the case.

Roach filed numerous pre-trial motions, including three that sought to cross-examine Santillanes about her involvement in prostitution-related activities. Roach wanted to use this evidence to decrease Santillanes’s credibility as a witness. The district court denied all three of these motions. During her testimony at trial, Santillanes corroborated much of D.G.’s testimony. Given the strength of the evidence, Roach was convicted and sentenced to 15 years in prison.

Can Defendants Ask Witnesses Anything They Want?

Roach appealed his conviction, claiming the exclusion of evidence related to Santillanes violated his constitutional right to confrontation1 and was inappropriate under the Federal Rules of Evidence.

The Sixth Amendment’s Confrontation Clause guarantees defendants the right to confront witnesses against them, especially an opportunity to effectively cross-examine those witnesses.2 This clause gives defense counsel “wide latitude” to cross-examine a witness, especially regarding a witness’s credibility or bias.3

However, Federal Rule of Evidence 4124 limits the topics that can be brought up on cross-examination. Rule 412 says that evidence regarding a victim’s sexual history is not allowed in sexual offense cases unless exclusion would violate a defendant’s constitutional rights. Most circuits have held that victims’ prior prostitution offenses are irrelevant in sex trafficking charges under 18 U.S.C. § 1591 (a) and are properly excluded from evidence.5

Until this year, no circuit courts have addressed whether Rule 412 also applies to former co-defendants testifying against the defendant. Roach wanted to cross-examine Santillanes about her prior prostitution history in order to decrease her credibility, but the district court denied his motion to do so. On appeal, the Tenth Circuit found that Roach did not preserve his right to appeal regarding the Confrontation Clause and therefore did not discuss this Rule 412 question as it relates to a defendant’s constitutional rights.

The Tenth Circuit noted that in addition to Rule 412, Federal Rule of Evidence 608 also impedes Roach from engaging in this line of questioning.6 Rule 608 prevents a defendant from bringing in specific instances of a witness’s conduct to attack a witness’s character for truthfulness unless on cross-examination the court deems it probative of the witness’s truthfulness.7  This means a defendant cannot ask a witness about specific behavior of the witness, for example, that last month a witness was arrested for prostitution unless this information will help show the witness tends to be dishonest. The connection between prior prostitution-related conduct and a witness’s tendency for truthfulness is arguable, so it may be difficult for a defendant to bring in prostitution-related conduct of a witness, even if the witness is a former co-defendant.8

Unclear Future for Sexual Histories of Former Co-Defendants

In regard to Rules 412 and 608, the Tenth Circuit in Roach’s case did not decide if the district court abused its discretion in excluding the evidence. The Tenth Circuit assumed the district court abused its discretion, but that any abuse was harmless error because there was already sufficient evidence to discredit Santillanes’s truthfulness. In effect, the district court’s exclusion of this evidence did not impact the outcome of the case. Therefore, the Tenth Circuit’s ruling seems confined to the set of facts presented in the Roach case. It remains unclear whether the Tenth Circuit would extend Rule 412 to former co-defendants generally and if Rule 608 affirmatively excludes prostitution-related conduct of a witness.


  • 1 The Confrontation Clause of the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to…be confronted with the witnesses against him. U.S. Const. amend. VI.
  • 2 U.S. v. DeSoto, 950 F.2d 626, 629 (10th Cir. 1991)
  • 3 Id. (citations omitted)
  • 4 Rule 412 states, “The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.” With the exception that “[t]he court may admit . . . evidence whose exclusion would violate the defendant’s constitutional rights.” Fed. R. Evid. 412.
  • 5See United States v. Gemma, 818 F.3d 23, 34 (1st Cir. 2016); United States v. Williams, 666 Fed Appx 186 (3rd Cir. 2016); United States v. Lockhart, 844 F.3d 501, 510 (5th Cir. 2016); United States v. Rivera, 799 F.3d 180 (2d Cir. 2015); United States v. Mack, 808 F3d 1074 (6th Cir. 2015); United States v. Roy, 781 F3d 416 (8th Cir. 2015); United States v. Chin, 606 Fed Appx 538 (11th Cir. 2015); United States v. Valenzuela, 495 Fed Appx 817 (9th Cir. 2012).
  • 6Rule 608 (b) states, “Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.” Fed. R. Evid. 608.
  • 7Fed. R. Evid. 608.
  • 8See United States v. Chang Da Liu, 538 F.3d 1078, 1085–86 (9th Cir. 2008)

About the author

Sarah Hamill

Sarah Hamill

Sarah is a third-year law student at Pepperdine University School of Law. She grew up in San Diego, CA where she attended Point Loma Nazarene University, majoring in International Development Studies and minoring in Psychology. After graduating from Point Loma, Sarah spent the summer in Rwanda working for World Relief’s economic development program, specifically with savings groups around the country. During law school, Sarah participated in Pepperdine’s Global Justice Program in Uganda, serving as an extern for a justice on the Ugandan Court of Appeals and partnering with the Ugandan Judiciary to implement plea bargaining for prisoners in Western and Eastern Uganda. Sarah also helped coordinate an Anti-Trafficking in Persons Conference in Uganda in 2017. Following her second year of law school, Sarah worked at the California Attorney General’s Office in the Criminal Appeals Division. After graduation, she hopes to obtain a federal clerkship and later argue human trafficking cases at the appellate level.