Intrinsic Evidence and VICAR Motive: The Tenth Circuit’s DeLeon Decision Clarifies Preservation Duties, Admissibility of Gang-Violence Context, and Reviewability of Rule 37 Denials

Intrinsic Evidence and VICAR Motive: The Tenth Circuit’s DeLeon Decision Clarifies Preservation Duties, Admissibility of Gang-Violence Context, and Reviewability of Rule 37 Denials

Introduction

In United States v. DeLeon (10th Cir. Oct. 1, 2025), the Tenth Circuit affirmed a VICAR conviction arising from the Sindicato de Nuevo Mexico (SNM) prison gang’s violent activities, most notably the 2001 murder of Frank Castillo. Former SNM member Angel DeLeon challenged his conviction on three fronts: (1) evidentiary objections to “other-act” proof under Rules 404(b) and 403, including the admissibility of prior gang violence and murders by other SNM members; (2) the adequacy and timing of the government’s Rule 404(b) notice; and (3) denial of an indicative ruling (and embedded Rule 33 new trial motion) based on newly discovered evidence of DNA cross-contamination and alleged Brady violations.

Although issued as a non-precedential “Order and Judgment,” the decision supplies persuasive guidance on recurring issues in complex racketeering and gang prosecutions. Chief among them: when and why prior gang violence by the defendant is “intrinsic” to VICAR motive (and thus outside Rule 404(b)); how Rule 403 applies to enterprise-violence evidence even after a defendant stipulates to enterprise elements; the preservation trap created by tentative in limine rulings under Rule 103; and the appealability and merits of Rule 37 indicative-ruling denials premised on DNA-lab cross-contamination.

Summary of the Opinion

  • Preservation and waiver: Because the district court’s pretrial evidentiary rulings were not definitive, DeLeon had to renew objections when “yard security” and “validation” evidence was offered. He did not, so those arguments were forfeited; without a plain-error argument on appeal, they were deemed waived and not reviewed.
  • Rule 404(b) intrinsic evidence: Evidence that DeLeon previously assaulted a rival gang member on SNM orders was intrinsic to the VICAR charge—specifically, to motive to maintain/increase position in the enterprise—so Rule 404(b) (including its notice requirement) did not apply.
  • Rule 403 and enterprise-violence evidence: The district court did not abuse its discretion by admitting evidence of other murders and violent acts by SNM, even though DeLeon stipulated to enterprise elements. Following United States v. Martinez (10th Cir. 2024), such evidence had high probative value on the contested motive element and its probative value exceeded any unfair prejudice.
  • Law of the case: The district court’s earlier “soft” limitation (to “three or four” prior murders) was an interlocutory ruling the court could revisit. The law-of-the-case doctrine did not bar admission of additional enterprise-violence evidence.
  • Rule 37 indicative ruling and Rule 33 new trial: The denial of DeLeon’s motion for an indicative ruling (with embedded Rule 33 motion) was treated as a final, appealable decision under 28 U.S.C. § 1291. The government waived any timeliness challenge to the notice of appeal. On the merits, the alleged new DNA cross-contamination evidence was not “new,” was largely impeaching and cumulative, and was not material under Brady; a new trial was unwarranted.
  • Cumulative error: Rejected because no individual error was found.

Analysis

Precedents Cited and Their Role in the Decision

  • Intrinsic vs. extrinsic other-act evidence:
    • United States v. Irving, 665 F.3d 1184 (10th Cir. 2011): Rule 404(b) governs only extrinsic acts.
    • United States v. Parker, 553 F.3d 1309 (10th Cir. 2009): Intrinsic evidence includes acts directly connected to the crime, providing necessary context.
    • United States v. Kupfer, 797 F.3d 1233 (10th Cir. 2015): Factors for intrinsic evidence include acts “inextricably intertwined,” background necessary to understand relationships and motives.
  • Rule 404(b) and notice:
    • Huddleston v. United States, 485 U.S. 681 (1988): Four-part test for extrinsic-act admissibility.
    • Fed. R. Evid. 404(b)(3) (2020 amendment): Prosecutor must provide meaningful written notice and articulate the permitted purpose and supporting reasoning.
    • United States v. Lopez-Gutierrez, 83 F.3d 1235 (10th Cir. 1996): Noncompliance may render evidence inadmissible, but district courts have discretion to excuse for good cause.
  • Preservation and Rule 103:
    • Fed. R. Evid. 103(a)-(b): Requires timely, specific objections; no need to renew only if a definitive ruling is made.
    • United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir. 1993); United States v. Fonseca, 744 F.3d 674 (10th Cir. 2014): Absent a definitive ruling, counsel must object when evidence comes in; even with a favorable definitive ruling, counsel must object if the court later departs from it.
    • United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019): Failure to argue plain error on appeal generally waives review.
  • Rule 403 balancing:
    • United States v. Silva, 889 F.3d 704 (10th Cir. 2018); United States v. Cerno, 529 F.3d 926 (10th Cir. 2008): Define unfair prejudice and the deference owed to district courts.
    • United States v. Tan, 254 F.3d 1204 (10th Cir. 2001): Exclusion under Rule 403 is an “extraordinary remedy.”
    • United States v. Martinez, 92 F.4th 1213 (10th Cir. 2024): In a parallel SNM prosecution, the Tenth Circuit endorsed admission of other SNM murders to prove VICAR motive even after the defendant conceded enterprise status.
  • Law of the case:
    • Pepper v. United States, 562 U.S. 476 (2011); Arizona v. California, 460 U.S. 605 (1983): Basic contours of the doctrine.
    • Been v. O.K. Industries, 495 F.3d 1217 (10th Cir. 2007): District courts may revisit interlocutory rulings; law-of-the-case primarily constrains later stages and mandates from higher courts.
    • Harris v. City Cycle Sales, Inc., 112 F.4th 1272 (10th Cir. 2024); Rocky Mountain Wild v. Dallas, 98 F.4th 1263 (10th Cir. 2024): Horizontal and vertical dimensions of the doctrine.
  • Rule 37 indicative rulings and Rule 33 new-trial standards:
    • Fed. R. Crim. P. 37: Mechanism for district courts to indicate how they would rule on a motion they cannot grant while an appeal is pending.
    • United States v. McCullough, 457 F.3d 1150 (10th Cir. 2006); United States v. Chatman, 994 F.2d 1510 (10th Cir. 1993): New trials disfavored; abuse-of-discretion review.
    • United States v. Jackson, 579 F.2d 553 (10th Cir. 1978); United States v. Sinclair, 109 F.3d 1527 (10th Cir. 1997): Five-part test for newly discovered evidence.
    • Brady v. Maryland, 373 U.S. 83 (1963); United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011); United States v. Quintanilla, 193 F.3d 1139 (10th Cir. 1999): Suppression, favorability, and materiality standards for Brady claims.
  • Appealability and claim-processing:
    • Catlin v. United States, 324 U.S. 229 (1945); Rekstad v. First Bank Sys., Inc., 238 F.3d 1259 (10th Cir. 2001): Final decisions under § 1291.
    • United States v. Garduno, 506 F.3d 1287 (10th Cir. 2007): In criminal cases, the notice-of-appeal time limit is a claim-processing rule subject to waiver.
    • Wood v. Milyard, 566 U.S. 463 (2012): Courts may accept a party’s deliberate waiver of time-bar defenses.
    • United States v. Vázquez Rijos, 119 F.4th 94 (1st Cir. 2024): Suggests denial of Rule 37 relief can be treated as final and appealable when it resolves the merits of the underlying motion.
  • Cumulative error:
    • United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022): Requires multiple errors; none found here.

Legal Reasoning

1) Rule 404(b) and the Intrinsic Evidence Pathway in VICAR Cases

The court framed the core 404(b) question correctly: Rule 404(b) governs only extrinsic acts. It therefore began by asking whether DeLeon’s prior assault of a rival gang member was intrinsic. In VICAR prosecutions, the government must prove not only the underlying violent act (here, murder) but also that the defendant acted to maintain or increase position in the racketeering enterprise. The panel held the assault evidence was intrinsic for two reasons:

  • It supplied essential background on what SNM required of its members to demonstrate loyalty and maintain rank.
  • It contextualized DeLeon’s motive for the Castillo murder—an element he did not concede—by illustrating the violent expectations and the pathway to advancement inside SNM (tracking the reasoning in Martinez).

Because the assault evidence was intrinsic, it fell outside Rule 404(b)’s prohibition and its notice regime (including the 2020 amendments). The district court did not abuse its discretion in admitting it.

2) Preservation Lessons: Renew the Objection When There Is No Definitive Ruling

DeLeon objected generally at the start of trial to two other categories of “other-act” items: testimony that he performed “yard security” by holding knives for SNM and evidence that he was “validated” as a gang member by prison officials. But the district court’s in limine responses were expressly tentative—“soft” and “under advisement”—and the court instructed counsel to object “as it comes in.”

Under Rule 103 and Tenth Circuit precedent, counsel must renew objections at the time the evidence is introduced unless the court has issued a definitive ruling. Because DeLeon did not lodge contemporaneous objections when the “yard security” and “validation” evidence was offered, those arguments were forfeited. And because he did not seek plain-error review on appeal, they were deemed waived and not considered.

3) Rule 403: Enterprise-Violence Evidence Remains Highly Probative Even After an Enterprise Stipulation

DeLeon argued that his stipulation to enterprise elements should have foreclosed the government’s broader presentation of SNM’s violent acts and murders committed by others. The court rejected that view, as it did in Martinez:

  • Probative value: Enterprise-violence evidence is central to proving VICAR motive and the internal logic of the enterprise—how violence maintains respect and loyalty, and why a member would kill to maintain or elevate status.
  • Unfair prejudice: While inherently grim, the violent context is tied to contested elements and does not primarily invite conviction by emotion or guilt by association. The district court’s balancing, to which appellate courts defer, was within the permissible range.

Nor did the law-of-the-case doctrine bar the district court from expanding beyond a pretrial “three or four murders” limitation, because that was an interlocutory evidentiary posture the court could revisit during trial.

4) Rule 37 Indicative Ruling and Rule 33 New Trial: Appealability and Merits

Appealability. The panel accepted jurisdiction to review the district court’s denial of an indicative ruling, reasoning that the denial resolved the merits of the Rule 33 motion and left nothing to be done—qualifying as a final decision under § 1291. Although DeLeon did not file a separate notice of appeal from that denial, the government expressly waived any timeliness objection. Because criminal notice-of-appeal timing is a claim-processing rule (not jurisdictional), the court accepted the waiver and proceeded to the merits.

Merits. Applying the five-factor Jackson test for new trials based on newly discovered evidence, and Brady’s suppression/favorability/materiality framework, the court affirmed the denial:

  • Not truly “new”: Defense had argued possible cross-contamination at trial. Post-trial lab investigation confirmed recurring issues, but this largely buttressed an already-presented theme.
  • Impeaching and cumulative: The new material primarily served to impeach the DNA evidence and analyst, and overlapped with trial arguments.
  • Materiality and probability of acquittal: Significant non-DNA evidence tied DeLeon to the murder (including cooperator testimony and DeLeon’s own admissions about Castillo’s death). There was no reasonable probability of a different outcome.
  • Brady: No suppression by the prosecution was shown—the post-trial investigation was reportedly triggered by the defense expert’s complaint. And even assuming some nondisclosure, materiality was lacking.

Impact

The decision carries practical consequences for VICAR and RICO-adjacent prosecutions, and for trial practice generally:

  • VICAR motive and “intrinsic” proof:
    • Prosecutors may present prior, non-charged acts by the defendant that illuminate status, expectations, and discipline within the enterprise to prove VICAR motive as intrinsic evidence. This bypasses Rule 404(b), including its notice requirement.
    • Defense stipulations to enterprise existence do not foreclose enterprise-violence context when motive or membership status remain in dispute.
  • Preservation rigor:
    • Defense counsel must renew evidentiary objections at the moment evidence is offered if the court’s prior ruling was tentative or “soft.” Failure to object contemporaneously risks forfeiture; failure to argue plain error on appeal risks waiver.
    • Trial judges should make clear on the record whether their in limine rulings are definitive; doing so clarifies preservation obligations.
  • Rule 37 and post-judgment DNA issues:
    • When a district court denies an indicative ruling on the merits, that denial is treated as final and appealable in the Tenth Circuit’s view.
    • Government waiver can cure timeliness defects in criminal notices of appeal. Counsel should still file a separate notice from the Rule 37 denial to avoid disputes.
    • New DNA-lab irregularity evidence must be more than impeaching and must likely change the outcome; where non-DNA evidence is strong, Rule 33 relief is unlikely.

Complex Concepts Simplified

  • VICAR (18 U.S.C. § 1959):
    • It is not enough to prove the defendant committed a violent act; the government must show it was done to maintain or increase standing in a racketeering enterprise.
  • Intrinsic vs. extrinsic evidence:
    • Intrinsic evidence directly explains the charged crime’s context (e.g., why a gang member would commit a murder). It is not governed by Rule 404(b).
    • Extrinsic evidence is separate from the charged conduct; it can be admissible under Rule 404(b) for specific, non-propensity purposes, but notice and strict relevance/prejudice rules apply.
  • Rule 103 preservation:
    • If the court’s ruling is not definitive (e.g., “under advisement” or a “soft” ruling), you must object again when the evidence is offered to preserve the issue for appeal.
  • Rule 403 balancing:
    • Courts weigh probative value against risks like unfair prejudice. In VICAR trials, violent enterprise context can be highly probative of motive and not unduly prejudicial if tightly connected to disputed elements.
  • Rule 37 indicative rulings:
    • When an appeal is pending, the district court cannot grant a new trial, but can indicate whether it would grant it or whether a substantial issue exists. A denial that resolves the merits is treated as a final decision in the Tenth Circuit.
  • Rule 33 new trials on new evidence:
    • Defendant must show the evidence is truly new, not discoverable with diligence, more than impeaching, material, and likely to produce an acquittal.
  • Brady:
    • Defendant must show suppression by the government, favorability, and materiality (a reasonable probability of a different result).
  • Claim-processing vs. jurisdictional rules:
    • In criminal appeals, the notice-of-appeal deadline is a claim-processing rule that the government may waive; it is not jurisdictional.

Conclusion

United States v. DeLeon reinforces and extends the Tenth Circuit’s approach in Martinez to the proof structure of VICAR prosecutions: prior gang violence by a defendant can be intrinsic to the motive element and therefore admissible without traversing Rule 404(b). It also underscores two critical procedural points. First, counsel must vigilantly preserve objections—tentative in limine rulings will not carry preservation forward unless they are definitive. Second, the court treats the denial of a Rule 37 indicative ruling that reaches the merits as final and appealable, and the government’s waiver can cure notice-of-appeal timing defects in criminal cases.

On the DNA front, the decision signals skepticism that post-trial lab cross-contamination revelations—especially when trial counsel already pursued contamination themes—will clear Rule 33’s demanding standards or Brady’s materiality threshold when other evidence of guilt is strong. Overall, DeLeon offers a comprehensive roadmap for trying, defending, and reviewing VICAR cases involving gangs and racketeering enterprises, and it refines preservation and appellate practice in the Tenth Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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