“Prove It or Lose It” – United States v. Hight and the Modern Standard for Trial Continuances & Waiver of Plain-Error Review

1. Introduction

On 18 August 2025 the United States Court of Appeals for the Tenth Circuit decided United States v. Hight, No. 24-3074, a non-precedential but highly instructive opinion that tightens two recurring trial-management problems:

1. Continuances sought to locate missing defence witnesses.
2. Attempts to revive unpreserved trial errors through plain-error review on appeal.

Theresa Rene Hight was convicted of four methamphetamine-related offences and sentenced to 240 months. On appeal she asserted: (i) denial of a continuance, (ii) limitations on cross-examination of an investigator, (iii) failure to give an adverse-inference instruction about destroyed pole-camera footage, and (iv) substantive unreasonableness of her sentence. The Tenth Circuit rejected every argument, producing a concise yet potent reiteration of the defendant’s burden to prove both need and prejudice when seeking trial accommodation, and to preserve objections with clarity if they expect appellate relief.

2. Summary of the Judgment

The panel (Chief Judge Holmes, and Circuit Judges Moritz & Rossman) affirmed Hight’s convictions and 240-month concurrent sentences. Key holdings:

• Continuance: No abuse of discretion; Hight failed to show that the missing witness would have supplied substantially favourable evidence or that the absence prejudiced her.
• Cross-Examination Limit: Defence forfeited and ultimately waived the argument by failing to articulate admissibility grounds or plain-error review; any assumed error was harmless.
• Pole-Camera Instruction: Complete waiver; appellant neither requested an instruction below nor argued plain error on appeal.
• Sentence: A 240-month concurrent term—well below the 360- to 960-month Guideline range—was presumed reasonable; disparity with cooperating co-defendants was explained by plea bargains.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The court anchored its reasoning in a line of Tenth-Circuit precedents that collectively emphasise diligence, prejudice and preservation:

3.2 Court’s Legal Reasoning

A. Continuance Request

• Diligence: Defence counsel subpoenaed witness Alliston and obtained a bench warrant—factor favoured Hight.
• Likelihood of Success: Court assumed a short continuance might secure the witness.
• Inconvenience: Neutral—trial already deep into evidence; continuance would disrupt sitting jurors.
• Need & Prejudice (decisive factor): No proffer or record copy of Alliston’s alleged exculpatory letter; content purely speculative. Therefore, no showing of “substantial favourable evidence,” and no showing her absence changed outcome.

B. Limits on Cross-Examination of Investigator Landry

The defence sought to impeach Landry with alleged grand-jury misstatements. The court found:

1. No preserved ground for admission: After a sidebar proffer counsel merely “renewed” the request without citing Rules 608, 613, 403, etc.
2. Forfeiture & Waiver: Failure to argue plain error on appeal converted forfeiture into waiver (Leffler).
3. Harmlessness: Even assuming error, overwhelming corroborated evidence (audio, video, co-conspirators) rendered exclusion harmless beyond a reasonable doubt.

C. Pole-Camera Destruction Instruction

The defence used the destruction argument to support a Rule 29 motion but never requested a jury instruction. Under Rule 30, objections to instructions must be raised before jury deliberation. No objection = review for plain error, but appellant wholly failed to brief plain error—again triggering Leffler waiver.

D. Substantive Reasonableness of Sentence

• Scope of Variance: Guideline range 360–960 months; statutory maxima 4 × 240 months; court imposed 240 months concurrent—clearly a downward variance.
• § 3553(a) Factors: Court considered age, addiction, role, need for deterrence; balanced against seriousness and quantity of methamphetamine.
• Comparative Disparities: Co-defendants received credit for acceptance of responsibility and 5K1.1 cooperation. This is a permissible, “obvious” basis for disparity.

3.3 Potential Impact of the Decision

Although designated “not binding precedent,” the opinion will nevertheless be cited under Fed. R. App. P. 32.1(a) for persuasive value, particularly on:

1. Continuance Strategy: Defence teams in the Tenth Circuit must build a clear record—in writing—of exactly what the elusive witness will say and why it is outcome-determinative, or risk denial.
2. Preservation & Plain Error: Hight reinforces a strict two-step approach:
     • raise & argue the specific evidentiary basis below;
     • if forfeited, expressly invoke FRAP 52(b) plain-error analysis on appeal.
   Absent those steps, issues are deemed waived, not merely forfeited.
3. Sentencing Advocacy: Defendants must articulate reasons why Guideline disparities with co-defendants are unwarranted despite cooperation discounts; simply noting lower sentences will not suffice.

4. Complex Concepts Simplified

• Continuance: A pause or postponement of trial proceedings. Courts grant it only when the requesting party shows diligence and a clear, non-speculative need.
• Rule 29 Motion: A request for judgment of acquittal because the prosecution’s evidence is legally insufficient.
• Waiver vs. Forfeiture: • Forfeiture = failing to assert a right in time; court may review for plain error. • Waiver = intentional relinquishment or failure to request plain-error review; appellate court will not review at all.
• Plain-Error Review: A four-prong test (error, clear/obvious, affects substantial rights, seriously affects fairness) applied only when an issue was forfeited but properly raised on appeal.
• Concurrent vs. Consecutive Sentences: Concurrent sentences run at the same time; consecutive run back-to-back. Total statutory exposure equals the sum of maxima when imposed consecutively.

5. Conclusion

United States v. Hight is a textbook demonstration that—after almost twenty years of post-Booker criminal procedure practice—the Tenth Circuit will not rescue litigants from undeveloped records or unasserted rights. Counsel must:

1. Provide specific, non-speculative offers of proof when seeking continuances;
2. Identify concrete evidentiary grounds when proffering impeachment material;
3. Request limiting/adverse-inference instructions contemporaneously;
4. Articulate plain-error arguments on appeal if preservation failed.

Failing to “prove it” at each procedural junction means “losing it” on appeal. The Hight doctrine—though non-precedential—will likely guide district courts and litigants whenever continuance requests, evidentiary limits, and plain-error waivers surface within the Tenth Circuit and beyond.