United States v. Sitting Eagle: Limiting Simple Assault as a Lesser-Included Offense and Enforcing Waiver of Trial-Error Claims

I. Introduction

In United States v. Sitting Eagle, No. 24-8068 (10th Cir. Dec. 10, 2025), the Tenth Circuit affirmed the federal convictions of Kandace Sitting Eagle, an enrolled tribal member living on the Wind River Indian Reservation in Wyoming, for serious assaults and aggravated child abuse against her thirteen-year-old son (“MV”).

Although designated as an unpublished “Order and Judgment” (and thus non-binding except under law-of-the-case, res judicata, and collateral estoppel), the decision is important for at least two reasons:

1. It clarifies and substantially narrows when a defendant is entitled to a jury instruction on “simple assault” as a lesser-included offense of (a) assault resulting in serious bodily injury and (b) assault with a dangerous weapon under 18 U.S.C. § 113, especially where the evidence overwhelmingly shows assaults involving physical contact and serious injury.
2. It strongly reaffirms Tenth Circuit doctrine that appellate claims based on evidentiary rulings and prosecutorial misconduct are waived—not merely forfeited—when a defendant fails to:
   • make a sufficiently specific offer of proof in the district court; and/or
   • squarely argue “plain error” and develop supporting analysis on appeal.

The case thus sits at the intersection of substantive federal assault law in Indian country and strict rules of appellate preservation and briefing. It also illustrates the practical consequences of defense strategy: an “all-or-nothing” denial at trial, thin proffers on excluded evidence, and underdeveloped appellate arguments combined to leave the convictions intact.

II. Summary of the Opinion

Kandace Sitting Eagle was tried in federal court under the Major Crimes Act, 18 U.S.C. § 1153, and convicted of:

• Assault resulting in serious bodily injury, 18 U.S.C. §§ 1153, 113(a)(6), 3559(f)(3);
• Assault with a dangerous weapon, 18 U.S.C. §§ 1153, 113(a)(3); and
• Aggravated child abuse, 18 U.S.C. §§ 2, 1153, and Wyoming Stat. §§ 6‑2‑503(b), (c), 14‑3‑202(a)(i), (ii).

On appeal, she raised two principal issues:

1. The district court allegedly abused its discretion by refusing to instruct the jury on the lesser-included offense of simple assault for the federal assault counts (Counts Two and Four).
2. The cumulative effect of multiple alleged errors—an in limine ruling excluding MV’s prior bad acts, limits on her own testimony, and allegedly improper prosecution questions—denied her a fair trial under the Constitution.

The Tenth Circuit:

• Held the district court did not abuse its discretion in denying a simple-assault lesser-included instruction. The evidence and defense theory gave the jury an “all-or-nothing” choice on the greater offenses, with no rational basis for convicting only on simple assault.
• Found all of the trial-error and prosecutorial-misconduct claims effectively waived due to:
  • an inadequate offer of proof regarding MV’s alleged prior misconduct;
  • failure to develop arguments and standards of review in the opening brief; and
  • failure to argue and apply the plain-error standard where objections had not been properly preserved below.
• Consequently declined to engage in cumulative-error analysis, because the defendant had not shown even two harmless errors to “cumulate.”
• Dismissed as moot her motion to proceed in forma pauperis on appeal, noting that CJA-eligible defendants may appeal without prepayment under 18 U.S.C. § 3006A(d)(7).

III. Factual and Procedural Context

A. The underlying conduct and investigation

MV, then thirteen, lived with his mother (the defendant), his stepfather Truman Sitting Eagle, and five half-siblings in a double-wide trailer on the Wind River Indian Reservation. After a school suspension in October 2023, MV stopped attending school. A concerned school employee requested welfare checks.

On December 12, 2023, during a second welfare check, Officer Matt Lee discovered MV hiding under the trailer, emaciated, with two black eyes, a blackened forehead, obvious facial swelling, multiple bruises and lacerations, and severe difficulty walking and speaking. An ambulance transported MV for emergency medical care; he was ultimately taken to Primary Children’s Hospital in Salt Lake City.

MV testified that during approximately a month-long period:

• He was locked in his bedroom at night, with the window nailed shut after an escape attempt.
• He was often deprived of food and forced to urinate in a cup.
• Truman sometimes hog-tied or zip-tied him to a post in the closet.
• Both Truman and Kandace hit him with hands, belts, and “metal sticks” and a “regular stick.”
• Kandace kneed him in the groin, causing severe, ongoing pain until part of his testicle was surgically removed.
• Kandace instructed him to say neighborhood kids had beaten him if anyone asked about his injuries.

Dr. Margaret Russell, a child abuse pediatrics fellow, corroborated MV’s account medically. She testified to multiple lacerations, internal mouth injuries, bruises, spinal fractures, a nasal fracture, a ruptured testicle, and substantial weight loss. She ruled out any medical disease explanation and concluded the injuries were from inflicted trauma consistent with “intrafamilial child torture.”

B. The defense case

The defense strategy was essentially complete denial:

• Two defense witnesses—a grandmother and a friend—testified that during sporadic visits in November and early December they saw no injuries and no evidence that MV was locked in a room.
• Kandace Sitting Eagle testified that:
  • Truman had been abusive to her; she herself had tried to be a loving mother.
  • MV had behavioral problems, but she never locked him up, never deprived him of food, never hit him (with hands or objects), and never kneed him in the groin.
  • She believed MV was fabricating claims because he did not want to live with her.
  • She denied key portions of Officer Lee’s testimony about her statements and behavior during the December 12 stop.

Notably, the defense did not concede any lesser degree of assault (e.g., some hitting but not serious injury or not with weapons); it was an “all-or-nothing” theory shifting responsibility to Truman or to unexplained causes.

C. The indictment and charges

The indictment (after dismissal of a parental kidnapping count under 18 U.S.C. § 1201) charged:

• Count Two: Assault resulting in serious bodily injury, §§ 1153, 113(a)(6), 3559(f)(3).
• Count Four: Assault with a dangerous weapon, §§ 1153, 113(a)(3).
• Count Six: Aggravated child abuse, 18 U.S.C. §§ 2, 1153, and Wyoming child abuse and torture provisions.

A federal jury convicted Sitting Eagle on all remaining counts; she was sentenced to 121 months’ imprisonment and five years’ supervised release.

IV. Analysis of the Court’s Reasoning

A. Lesser-Included Offense Instruction for Simple Assault

1. Legal framework

The central doctrinal issue was when a district court must give a lesser-included offense instruction under Federal Rule of Criminal Procedure 31(c)(1), which allows a defendant to be found guilty of “an offense necessarily included in the offense charged.”

Relying on United States v. Pacheco, 884 F.3d 1031 (10th Cir. 2018), and United States v. Oldman, 979 F.3d 1234 (10th Cir. 2020), the panel applied the Tenth Circuit’s four-part test:

1. The defendant properly requested the instruction;
2. The elements of the lesser offense are included in the greater offense;
3. The elements differentiating the two offenses were in dispute at trial; and
4. A rational jury could acquit on the greater offense and convict on the lesser.

Key authorities shaping this analysis included:

• Beck v. Alabama, 447 U.S. 625 (1980): constitutional entitlement to a lesser-included instruction when evidence permits conviction of lesser but acquittal of greater.
• Schmuck v. United States, 489 U.S. 705 (1989): “elements” test—lesser offense must not include any element not required for the charged greater offense.
• United States v. Bruce, 458 F.3d 1157 (10th Cir. 2006): recognizing simple assault as a lesser-included offense of both assault with a dangerous weapon and assault resulting in serious bodily injury in the abstract.
• United States v. Wolfname, 835 F.3d 1214 (10th Cir. 2016): defining “simple assault” in § 113 context as an attempt or threat to injure without actual physical contact, a deadly weapon, bodily injury, or certain felonious intent.
• United States v. Brown, 287 F.3d 965 (10th Cir. 2002), and United States v. Yazzie, 188 F.3d 1178 (10th Cir. 1999): a court must give full credence to the defendant’s testimony and account for the possibility that a jury may accept parts of various witnesses’ accounts in fashioning its own factual narrative.

The panel reviewed the denial of the instruction for abuse of discretion, but stressed (via Humphrey, Pacheco, Abeyta) that discretion is sharply constrained: if all four elements are satisfied, the district court has “no discretion” to refuse the instruction.

2. Elements (1) and (2): Request and elements overlap

The parties agreed that:

• Sitting Eagle properly requested a simple-assault lesser-included instruction on Counts Two and Four; and
• As a matter of abstract statutory elements, “simple assault” under § 113(a)(5) is a lesser-included offense of both § 113(a)(3) (dangerous weapon) and § 113(a)(6) (serious bodily injury), consistent with Bruce and Poole, 545 F.3d 916 (10th Cir. 2008).

The real disputes lay in elements (3) and (4).

3. Element (3): Were the “differentiating elements” actually in dispute?

The “differentiating elements” between the charged offenses and simple assault were:

• For § 113(a)(6): whether the assault resulted in serious bodily injury (here, the ruptured testicle, spinal fractures, etc.).
• For § 113(a)(3): whether a “dangerous weapon” was used and whether it was used with the intent to do bodily harm.

The court emphasized that a lesser-included instruction is not automatically required merely because a defendant denies everything. The question is whether there was evidence putting the differentiating elements genuinely at issue.

The Government’s theory was quite specific:

• Sitting Eagle kneed MV in the groin hard enough to rupture his testicle (serious bodily injury count); and
• She struck him with metal rods and other implements (dangerous weapon count).

The defense, by contrast, did not argue that:

• MV’s injuries were not “serious” within the statutory meaning; or
• The implements used were not “dangerous weapons”; or
• The implements were used with only some lesser form of intent.

Instead, Sitting Eagle’s defense was categorical: she did not assault MV at all; she never kneed him in the groin; she never hit him with anything; Truman or others must be responsible.

On that record, the panel adopted the logic of United States v. Espinoza, 277 F. App’x 789 (10th Cir. 2008) (unpublished): where the only real dispute is whether the defendant was involved at all in the assault, and there is no evidence contesting the specific aggravating elements, lesser-included instructions are not warranted. Here, the evidence “only allowed the jury to decide that [Sitting Eagle] either did or did not participate in” the charged assaults; it did not reasonably permit a middle ground lacking serious injury or dangerous weapon use.

Thus, element (3) was not satisfied: the aggravating elements were not in genuine dispute at trial.

4. Element (4): Could a rational jury convict on simple assault and acquit on the greater offenses?

Even assuming arguendo that element (3) were satisfied, the panel held the fourth element was decisively lacking.

Under Brown and Yazzie, the court was required to:

• Give “full credence” to Sitting Eagle’s testimony; and
• Recognize that jurors may mix-and-match testimony, believing part of one witness and part of another.

At the same time, reversal is warranted only if the appellate court is convinced “a rational jury could convict on the lesser charge and acquit on the greater charge.” Oldman, 979 F.3d at 1244 (emphasis added).

Two constraints operated powerfully here:

1. Defendant’s testimony was entirely exculpatory. If a jury credited her story, it would necessarily acquit on both the greater and the lesser offenses; there was nothing in her testimony suggesting a reduced-level assault.
2. The remaining evidence could not rationally support a finding of only “simple assault” as the Tenth Circuit defines it.

The defense’s key argument was that MV testified that he had been hit with his parents’ “hands” as well as with sticks and rods. The defense suggested a jury could:

• Believe MV’s claim that his mother sometimes hit him with her hands; but
• Disbelieve his more specific claims about her using metal rods and kneeing him in the groin; and
• Combine that with portions of Sitting Eagle’s testimony to construct a scenario of only lesser, non-dangerous contact.

The panel rejected that theory on two grounds:

a. No rational basis for selectively believing only one narrow piece of MV’s account

There was no evidence undermining MV’s description of the kinds of objects used; Dr. Russell’s medical testimony corroborated a prolonged pattern of severe inflicted trauma. And the defense strategy at trial aimed to impeach MV wholesale, urging the jury to disbelieve him entirely. The panel concluded that a rational jury would have:

• either credited MV’s core account (which supported the aggravated offenses charged); or
• rejected it in favor of the defense’s total denial (which would lead to acquittal across the board).

Believing only his statement that his mother sometimes hit him with her hands—while rejecting his detailed testimony about the more serious assaults and all corroborating medical evidence—lacked any rational basis in the record.

b. Even if believed, hand-hitting is not “simple assault” under controlling Tenth Circuit doctrine

Relying on Wolfname, the panel emphasized that “simple assault” under § 113:

“does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit [certain felonies].”

MV’s allegation that his mother hit him with her hands involves actual physical contact. That moves the conduct, as a matter of statutory structure, into § 113(a)(4)—“assault by striking, beating, or wounding”—not § 113(a)(5) simple assault.

The panel then applied Schmuck’s elements test: because assault involving physical contact requires an element (contact) that is not required for either:

• assault resulting in serious bodily injury, § 113(a)(6); or
• assault with a dangerous weapon, § 113(a)(3),

it cannot be a lesser-included offense of those greater crimes. See Bruce, 458 F.3d at 1162 n.1.

Thus, even if a jury believed only that Sitting Eagle had hit MV with her hands, that evidence:

• would not support a legally proper conviction for § 113(a)(5) “simple assault” as the Tenth Circuit defines it; and
• would therefore not justify the requested lesser-included instruction on that basis.

Given all this, the panel concluded it was not convinced a rational jury could acquit Sitting Eagle of the greater assault counts yet convict her of simple assault. The fourth requirement for a lesser-included instruction failed.

5. Significance and future impact

Substantively, Sitting Eagle reinforces several important points for future federal assault prosecutions, particularly in Indian country:

• “Simple assault” is a very narrow category in the Tenth Circuit. In practical terms, it is limited to attempts or threats without physical contact, weapons, or injury. If the evidence shows any actual striking, beating, or wounding, the lesser-included candidate is more likely § 113(a)(4), not (a)(5), and (a)(4) is not necessarily a lesser-included offense of (a)(3) or (a)(6).
• All-or-nothing defenses can undercut eligibility for lesser-included instructions. When the defense theory denies any involvement and does not genuinely dispute aggravating elements (such as seriousness of injury or weapon use), it is difficult to satisfy the third and fourth elements of the Tenth Circuit’s test.
• Lesser-included instructions remain available in principle even with inconsistent defenses. The panel reaffirmed Pacheco’s holding that a defendant is not automatically barred from seeking lesser-included instructions simply because she denies the conduct; but there must be an evidentiary basis and a rational path to a middle-ground verdict. Mere theoretical possibilities are insufficient.

Practitioners in § 113 prosecutions should therefore be careful:

• to identify which specific lesser offense (simple assault vs. assault by striking, etc.) they are actually seeking; and
• to develop evidence (e.g., about the extent of injuries or nature of the instrument used) that genuinely puts aggravating elements in dispute if a lesser instruction is desired.

B. Cumulative Error and Strict Enforcement of Waiver

The second major part of the opinion addressed Sitting Eagle’s claim that numerous trial errors—individually and cumulatively—denied her a fair trial. The panel never reached the merits of most of these claims, due to preservation and briefing failures.

1. Motion in limine and the offer-of-proof requirement

Before trial, the Government moved in limine to exclude evidence of MV’s alleged prior bad acts and predisposition, including reports that he had engaged in sexual misconduct with other children in a foster home at a different time and place.

The Government relied on Fed. R. Evid. 401 (relevance), 403 (unfair prejudice, confusion), 404(a)–(b) (character evidence), 405 (methods of proving character), and 608 (character for truthfulness). It conceded that specific instances of conduct within the charged timeframe might be admissible to support a “reasonable corporal punishment” defense to the aggravated child abuse charge, but argued that remote, extraneous acts were inadmissible character evidence.

Defense counsel generally opposed the motion, indicating:

• She intended to use MV’s “history” as background for their relationship;
• She wished to ask MV about “the conduct that he did and what happened to him”; and
• There was “information” that MV had been “sexually abusive” towards foster siblings, said to be relevant to her theory that she was protecting her other children.

However, the defense did not:

• identify specific witnesses, documents, or precise instances of conduct;
• clarify the exact content of the evidence to be offered; or
• clearly articulate the legal grounds for admissibility in the face of Rules 404 and 403.

Quoting United States v. Adams, 271 F.3d 1236 (10th Cir. 2001), the panel reiterated what constitutes an adequate “offer of proof” under Fed. R. Evid. 103(a)(2):

• The proponent must describe the evidence and what it tends to show; and
• The proponent must identify the grounds for admitting the evidence.

This serves two functions:

1. Allowing the trial judge to make an informed evidentiary ruling; and
2. Creating a clear record for meaningful appellate review.

The court concluded that Sitting Eagle’s vague references fell well short of this standard:

• She never specified what the prior acts actually were;
• She did not tie those acts to a particular witness or document; and
• She did not clearly invoke any specific exception to the character rules (e.g., motive, intent, absence of mistake) beyond a general “background” rationale.

The district court granted the motion in limine but expressly left the door open for reconsideration at trial upon an adequate offer of proof. The defense never renewed the issue during trial.

As a result, the panel held:

• The claimed error was not preserved in the district court; therefore the correct standard of review would be plain error.
• However, Sitting Eagle’s briefs did not argue plain error at all, despite the Government highlighting the preservation defect on appeal.

Citing United States v. McBride, 94 F.4th 1036 (10th Cir. 2024), and Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011), the panel applied a stringent rule:

“[T]he failure to argue for plain error and its application on appeal—surely marks the end of the road for an argument for reversal not first presented to the district court.”

Accordingly, the in limine challenge was treated as waived and not reviewed further.

2. Objections to limitations on Sitting Eagle’s own testimony

Sitting Eagle next complained that the district court erroneously sustained multiple Government objections to her testimony, allegedly excluding non-hearsay evidence important to her defense. The panel refused to consider these claims because of inadequate briefing

Fed. R. App. P. 28(a)(8) requires:

• “Appellant’s contentions and the reasons for them,”
• “with citations to the authorities and parts of the record on which the appellant relies,” and
• “for each issue, a concise statement of the applicable standard of review.”

The opinion invoked United States v. Woodmore, 135 F.4th 861 (10th Cir. 2025), and United States v. Clay, 148 F.4th 1181 (10th Cir. 2025), among others, to reiterate that issues may be deemed waived where:

• They are mentioned only in passing;
• There are no record citations showing where the alleged error occurred;
• No standard of review is stated; and
• No substantive legal analysis or supporting authority is supplied.

Here, apart from a single record citation, Sitting Eagle offered only the bare assertion that excluded evidence was “not being introduced for the truth of the matter asserted and, thus, was not hearsay.” The panel characterized this as a “perfunctory” and “cursory” argument, quoting Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007), to deem the issue waived.

3. Claims of prosecutorial misconduct

a. Standards of review for allegedly improper prosecutor questions

The panel drew on United States v. Christy, 916 F.3d 814 (10th Cir. 2019), and United States v. Kepler, 74 F.4th 1292 (10th Cir. 2023), to explain that the standard of review for alleged prosecutorial misconduct depends on:

1. Whether the defendant objected;
2. Whether the district court sustained or overruled the objection; and
3. Whether the defendant objected to the adequacy of any curative measures (e.g., jury instructions).

Four scenarios emerge:

1. Objection overruled: de novo review.
2. Objection sustained and defendant challenges curative action: abuse of discretion.
3. Objection sustained and defendant does not challenge curative action: plain error.
4. No objection at all: plain error.

Both of Sitting Eagle’s categories of prosecutorial-misconduct claims fell under plain-error review.

b. “Were-they-lying” questions

On cross-examination, the prosecutor twice asked Sitting Eagle if she believed Officer Lee was “lying,” after she contradicted his testimony about her statements regarding MV’s whereabouts and her phone call to Truman during the December 12 stop.

Sitting Eagle did not object at trial. On appeal, she argued the questions were improper, but did not meaningfully articulate the controlling plain-error standard or apply its elements (—error, plainness, effect on substantial rights, and the fairness/reputation prong).

Citing United States v. Isabella, 918 F.3d 816 (10th Cir. 2019), and McBride, the panel held that simply labeling something “reversible plain error” does not suffice. A litigant must “attempt to run the gauntlet” of plain-error analysis; otherwise the claim is effectively waived. Accordingly, the court declined to review the “were-they-lying” question issue at all.

c. Question to defense witness about an FBI investigation

The prosecutor asked defense witness Darlynn Seminole whether she was “aware that there is an investigation by the FBI into whether your own children were victims of—” allegedly intending to show bias.

Defense counsel promptly objected on relevance grounds. The court sustained the objection after a sidebar, and the prosecutor did not pursue the line of questioning. Defense counsel did not ask for a mistrial, a curative instruction, or any other remedy; nor did she claim on the record that the sidebar or ruling was inaudible to the jury.

Once again, the applicable standard on appeal was plain error (objection sustained, no further challenge to curative measures). Once again, Sitting Eagle’s briefing did not identify or apply that standard. Under Richison and related cases, this failure resulted in waiver of the issue.

4. Cumulative error doctrine

The Tenth Circuit applies cumulative-error review only if the appellant has shown at least two harmless errors. See Christy, 916 F.3d at 827: “Anything less would leave nothing to cumulate.”

Because the panel treated each of Sitting Eagle’s claimed errors as waived—either through inadequate preservation below or inadequate plain-error and merits briefing on appeal—it found no errors to aggregate. Cumulative-error review was therefore unavailable, and the convictions were affirmed.

V. Simplifying the Key Legal Concepts

A. What is a “lesser-included offense”?

A “lesser-included offense” is a crime whose elements are entirely contained within a greater crime:

• Every time the greater crime is committed, the lesser is also committed; but
• The lesser may be committed without necessarily committing the greater.

For example, in many jurisdictions, simple battery is a lesser-included offense of aggravated battery: all aggravated batteries are batteries, but not all batteries are aggravated.

Under the Supreme Court’s Schmuck “elements” test, a lesser offense qualifies only if it does not contain any element that the greater offense does not require. If it adds an extra requirement (like “physical contact”), it is not lesser-included, even if factually “less serious.”

B. “Simple assault” vs. other federal assaults under 18 U.S.C. § 113

18 U.S.C. § 113 lists several different forms of assault committed in the special maritime and territorial jurisdiction of the United States, including Indian country when combined with § 1153 (the Major Crimes Act). These include:

• § 113(a)(3): Assault with a dangerous weapon, with intent to do bodily harm.
• § 113(a)(4): Assault by striking, beating, or wounding.
• § 113(a)(5): Simple assault.
• § 113(a)(6): Assault resulting in serious bodily injury.

The Tenth Circuit’s gloss in Wolfname and now Sitting Eagle makes “simple assault” a very minimal category: attempts or threats to inflict harm that do not involve actual contact, weapons, bodily injury, or certain felony-intent aggravators. Once the assailant actually strikes or wounds the victim, the offense is no longer “simple assault” under this case law.

C. Levels of appellate review: de novo, abuse of discretion, and plain error

• De novo review: The appellate court gives no deference to the district court’s decision; it asks whether the decision was legally correct from scratch. This usually applies to pure questions of law.
• Abuse of discretion review: Highly deferential. A decision will be reversed only if it is “arbitrary, capricious, whimsical, or manifestly unreasonable,” or if the court exceeded the bounds of permissible choice.
• Plain error review: Even more stringent, used when an issue was not properly preserved below. The appellant must show:
  1. There was an error;
  2. The error was “plain” (clear or obvious under current law);
  3. The error affected substantial rights (usually meaning it affected the outcome); and
  4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
  If the appellant does not even try to meet this four-part test, the Tenth Circuit treats the issue as effectively waived.

D. Waiver vs. forfeiture

• Forfeiture: The party failed to timely assert a right, often through oversight. Forfeited issues can still be reviewed for plain error.
• Waiver: The party intentionally relinquished or abandoned a known right, or—under Tenth Circuit practice—failed even to argue for plain-error review on appeal. Waived issues are not reviewed at all.

Sitting Eagle is particularly strong in applying the “end of the road” metaphor from Richison and McBride: when an issue is not preserved and the appellant does not make a genuine plain-error argument, it is treated as waived.

E. Cumulative error

The cumulative-error doctrine recognizes that multiple small errors, each harmless in isolation, can collectively deny a fair trial. However, the Tenth Circuit requires:

• At least two distinct errors must be identified; and
• Each must be harmless when considered alone.

If a defendant cannot establish even two errors, or if all claimed errors are waived, there is nothing to cumulate and no cumulative-error analysis is undertaken.

F. Motions in limine and offers of proof

A motion in limine asks the judge to decide in advance whether certain evidence will be allowed. If the court excludes evidence, the proponent must make an “offer of proof” to preserve the issue for appeal, usually by:

• Describing the evidence with specificity (e.g., what the witness would say, what the document shows); and
• Explaining why it is admissible under the rules of evidence.

A vague statement like “we will bring in some past conduct as background” is not enough to preserve a detailed evidentiary issue for review.

G. “Were-they-lying” questions

“Were-they-lying” questions ask one witness to opine on whether another witness was truthful (“Do you think Officer X was lying?”). Many courts disfavor such questions because:

• They intrude on the jury’s exclusive role in determining credibility;
• They may unfairly put the defendant in a rhetorical bind (appearing to accuse law enforcement of deliberate perjury); and
• They often add little probative value.

In Sitting Eagle, the panel did not squarely decide whether such questions were improper because the claim was waived, but the discussion underscores that any challenge to them must be properly preserved and fully argued under the applicable standard of review.

VI. Overall Significance and Takeaways

United States v. Sitting Eagle, though unpublished, will likely be cited for persuasive value in several recurring contexts:

1. Federal assault prosecutions and the narrow scope of “simple assault” as a lesser-included offense
   • Defendants seeking lesser-included instructions on § 113(a)(5) must grapple with Tenth Circuit case law limiting “simple assault” to non-contact attempts or threats.
   • Where the evidence of serious injury and weapon use is one-sided and the defense is “I did nothing,” courts are likely to reject simple-assault instructions as unsupported by the evidence and irrational as verdict options.
2. Appellate practice in the Tenth Circuit
   • The decision is a pointed reminder that:
     • Issues not properly preserved below require full-fledged plain-error argument on appeal; and
     • Perfunctory or skeletal briefing, without record citations or legal analysis, will result in waiver.
   • The “end of the road” language from Richison and McBride is prominently applied; counsel must treat it as a real and stringent constraint.
3. Trial practice in child abuse and assault cases
   • When attempting to introduce a child victim’s prior alleged misconduct—especially sexual misconduct—counsel must be precise in offers of proof and cognizant of Rules 404, 405, 608, and 403.
   • General “background” rationales and vague references to truthfulness will not suffice to preserve complex evidentiary questions for appeal.
4. Cumulative-error arguments
   • Cumulative error is not a fallback catch-all for underdeveloped individual claims; it operates only on properly identified, preserved, and argued errors.
   • Strategy at trial and thoroughness on appeal are crucial to even reaching cumulative-error review.

In the end, the panel’s decision leaves the serious convictions intact and underscores two broader themes: (1) the high bar defendants face in obtaining lesser-included simple-assault instructions when the evidence shows severe, contact-based abuse; and (2) the Tenth Circuit’s uncompromising enforcement of preservation and briefing rules, especially its insistence on meaningful plain-error analysis when trial objections have not been properly made.