Intrinsic “Res Gestae” Evidence Includes Immediately Preceding Uncharged Homicides When Needed to Complete the Carjacking Narrative (and Due Process Claims Are Waived Without Plain-Error Development)

Case: United States v. Briscoe (No. 25-2017)
Court: U.S. Court of Appeals for the Tenth Circuit
Date: February 5, 2026
Disposition: Affirmed (unpublished “Order and Judgment”; persuasive value only)

I. Introduction

The appeal in United States v. Briscoe arose from a violent sequence on September 7, 2020 in Albuquerque, New Mexico. According to the Government’s evidence, Dakota Don Briscoe allegedly shot and killed two men inside a Chevy Equinox, set the vehicle on fire, and fled on foot. In the ensuing minutes, he allegedly attempted two carjackings, then successfully carjacked a third victim after breaking into a home, firing a shot, and stealing keys.

A federal jury convicted Mr. Briscoe of one count of carjacking (18 U.S.C. § 2119(1)), two counts of attempted carjacking (18 U.S.C. § 2119(1)), and one count of using/carrying and discharging a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii)).

The appeal presented two related issues:

• Evidentiary: Whether evidence of the uncharged double homicide and arson was admissible as “res gestae” (intrinsic evidence outside Rule 404(b)) and, even if intrinsic, whether Rule 403 required exclusion as unfairly prejudicial.
• Constitutional: Whether admission of that evidence violated due process by rendering the trial fundamentally unfair.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held:

• The double-homicide evidence was admissible as res gestae/intrinsic because it was “directly connected” to the charged carjackings, supplied motive and context, and “complete[d] the story.”
• The district court did not abuse its “considerable discretion” under Rule 403, particularly given the trial court’s significant limiting measures (severance of unrelated counts, exclusion of inflammatory photos and details, and a limiting instruction).
• The due process argument was effectively waived because Mr. Briscoe did not preserve it and did not properly brief plain error on appeal.

III. Analysis

A. Precedents Cited (and Their Role)

1. Standards of review and appellate posture

• United States v. Pursley — Used for the appellate lens on sufficiency-of-evidence narratives: facts are recounted “in the light most favorable to the government.” This framing supported treating the homicide-to-carjacking sequence as tightly linked in time and place.
• Vincent v. Nelson — Anchored the abuse-of-discretion standard for evidentiary rulings.
• United States v. Joseph — Supplied the Tenth Circuit’s articulation of “abuse of discretion” (“arbitrary, capricious, whimsical, or manifestly unreasonable”), reinforcing that reversal requires a firm conviction of clear error of judgment.

2. Intrinsic evidence (“res gestae”) versus Rule 404(b)

• United States v. Ford — Provided the operative definition: an uncharged act is admissible as res gestae (intrinsic, not subject to Rule 404(b)) if “inextricably intertwined” such that testimony would be “confusing and incomplete” without it.
• United States v. Irving — Served as the opinion’s central doctrinal anchor on intrinsic evidence, emphasizing that intrinsic acts are “directly connected to the factual circumstances” and provide “contextual or background information.” It also supplied two key guardrails:
  • Intrinsic evidence need not prove an element of the charged offense (answering Briscoe’s “no element” argument).
  • Even intrinsic evidence remains subject to Rule 403 balancing.
• United States v. Kimball — Reinforced the “complete the story” rationale for contextual evidence, supporting admission where the homicide explains why the defendant was frantically seeking a getaway car.

3. Rule 403 balancing and “unfair prejudice”

• United States v. Caraway — Distinguished “damaging” evidence from “unfairly prejudicial” evidence; unfair prejudice requires an “undue tendency” to prompt an improper (often emotional) decision.
• United States v. Rodriguez — Clarified that evidence is unfairly prejudicial if it makes conviction more likely by provoking emotion or affecting the jury’s attitude “wholly apart” from guilt of the charged offense.
• United States v. Tenorio — Justified deference to district courts on Rule 403 because trial judges have “front-row seats” and experience weighing prejudice and probative value.
• United States v. Butler — Emphasized Rule 403 exclusion as an “extraordinary remedy,” and directed courts to give evidence “maximum reasonable probative force” and “minimum reasonable prejudicial value.” This favored admission, especially given the district court’s “sanitization.”
• United States v. Tan — Restated that even when prejudice exists, it must “substantially outweigh” probative value to require exclusion.
• United States v. Ruby — Used to reject reliance on sentencing-hearing reactions to show trial unfairness, noting sentencing allows broader information than a trial governed by the Rules of Evidence.

4. Plain error, waiver, and constitutional claims

• United States v. Leffler — Established that an unpreserved constitutional claim is reviewed only for plain error.
• United States v. Isabella — Provided the “run the gauntlet” formulation: appellants must affirmatively satisfy the rigorous plain-error framework.
• United States v. McBride — Did most of the work: when an appellant neither preserves an issue nor makes a plain-error argument on appeal, the court treats the issue as waived and declines review; conclusory assertions are insufficient.
• United States v. Johnson — Acknowledged plain-error review can be applied “less rigidly” for constitutional challenges, but not so loosely as to eliminate the appellant’s burden to argue the elements.
• United States v. MacKay — Confirmed the court will not build a plain-error argument for the appellant; the burden is the appellant’s alone.

B. Legal Reasoning

1. Why the double-homicide evidence qualified as intrinsic (res gestae)

The court treated the homicide-and-arson episode not as separate “bad acts” evidence offered to show propensity, but as the immediate precursor that explained the charged carjacking spree. Several features drove the intrinsic classification:

• Temporal and geographic proximity: the double homicide occurred immediately before the carjacking attempts and in the same vicinity.
• Narrative necessity: without it, the jury would hear that Mr. Briscoe abruptly appeared “panicked,” demanding vehicles and brandishing/firing a gun, with no coherent explanation for the urgency or willingness to inflict harm.
• Motive/context rather than element-proof: invoking United States v. Irving, the panel rejected the argument that intrinsic evidence must prove an element; it is enough that it directly connects to the charged events and supplies background.

The court also underscored that the district court had earlier severed unrelated counts partly because the homicide evidence would be admissible only as to the September 7 counts—foreshadowing that the “story completion” role was central to the government’s proof of that episode.

2. Why Rule 403 did not require exclusion

The Tenth Circuit’s Rule 403 analysis is best understood as an endorsement of managed admissibility—admit what is probative of context/motive, while removing what is primarily inflammatory.

Probative value: The evidence explained why Mr. Briscoe “needed a getaway car” and why he was willing to threaten or use deadly force to obtain one. That context was closely tied to the carjacking mens rea question (intent to cause death or serious bodily harm if necessary), even if not framed as element-proof.

Prejudice mitigation: The district court took multiple steps that the panel treated as decisive:

• Severance of other counts that could be tainted by homicide evidence.
• Exclusion of the most inflammatory material (notably, a photograph of burned bodies) and other graphic/details (e.g., shot-in-the-head specifics, autopsy photos, certain emotionally evocative recordings).
• Sanitized testimony to avoid graphic description while still clarifying (i) there were gunshot wounds and (ii) the victims were not burned to death—facts the court viewed as preventing juror confusion and speculation.
• Limiting instruction directing the jury to consider homicide/arson evidence only for motive and clarifying the defendant was “not on trial” for uncharged conduct—an instruction the panel credited as counterbalancing prejudice (citing United States v. Irving).

The panel further rejected Mr. Briscoe’s attempt to prove unfair prejudice by citing emotional reactions discussed at sentencing, treating that as a category error under United States v. Ruby.

3. Due process: waiver through failure to brief plain error

The due process claim failed on appellate procedure, not merits. Because the constitutional theory was not raised below, the appellant had to establish plain error. The panel held that merely stating the trial was “inflammatory” without analyzing the plain-error elements did not suffice. Under United States v. McBride, that omission results in waiver and no review—despite the slight flexibility for constitutional claims recognized in United States v. Johnson.

C. Impact

1. Practical guidance for “intrinsic evidence” disputes in violent-spree cases

Although unpublished, Briscoe provides a clear template for admitting immediately preceding violent conduct as intrinsic where it explains a defendant’s urgency, flight, and willingness to use force during a charged crime. It reinforces that the Tenth Circuit will treat “complete the story” and “context” as legitimate intrinsic-evidence rationales when the uncharged act is tightly interwoven with the charged episode.

2. Emphasis on Rule 403 “sanitization” and limiting instructions

The decision’s most durable lesson is institutional: when the uncharged act is a homicide, courts can avoid reversible error by admitting only the minimum necessary facts (e.g., that bodies were found and had gunshot wounds) while excluding shocking imagery and gratuitous detail—and pairing that with a direct limiting instruction that cabins the evidence to motive/context.

3. Appellate consequence: constitutional arguments require plain-error development

Briscoe is also a warning: even potentially serious “fundamental fairness” claims can be lost if not preserved and then properly framed under plain-error review. The court’s reliance on United States v. McBride underscores that failure to argue the plain-error elements is not a minor briefing defect; it is case-dispositive.

IV. Complex Concepts Simplified

• Res gestae / intrinsic evidence: Evidence of acts not charged in the indictment that are so closely tied to the charged events that the jury would be confused or left with an incomplete story without them. If intrinsic, it is not analyzed under Rule 404(b)’s “other acts” framework.
• Rule 404(b): Restricts use of “other acts” to prove character/propensity. It does not apply if the evidence is intrinsic to the charged crime (as emphasized by United States v. Irving).
• Rule 403: Even relevant evidence can be excluded if its probative value is substantially outweighed by dangers like unfair prejudice. “Unfair prejudice” is not “this hurts my case”; it means the evidence tempts a verdict on emotion or improper grounds.
• Limiting instruction: A direction from the judge explaining the narrow purpose for which the jury may consider certain evidence. Appellate courts often presume juries follow these instructions, and they can reduce the risk of unfair prejudice.
• Plain error & waiver: If an issue wasn’t raised in the trial court, the appellant must satisfy the four-part plain-error test on appeal. If the appellant does not even attempt that analysis, the appellate court may treat the issue as waived and refuse to review it at all.

V. Conclusion

United States v. Briscoe affirms a disciplined approach to intrinsic evidence in a violent chain-of-events prosecution: uncharged acts—including a double homicide—may be admitted as res gestae when they immediately precede and contextualize the charged crimes, particularly to explain motive and urgency, so long as trial courts rigorously manage Rule 403 risks through severance, exclusion of inflammatory specifics, and careful limiting instructions. The decision also illustrates a procedural endgame: constitutional “fundamental fairness” arguments can be forfeited in the strongest sense—waived—when appellants fail to develop a plain-error showing.