Plain-Error Prong Three Controls: Tenth Circuit Affirms and Reiterates § 922(g)(1)’s Validity Post‑Bruen in United States v. Redfoot

Court: U.S. Court of Appeals for the Tenth Circuit

Date: March 31, 2025

Disposition: Convictions and sentence affirmed

Panel: Hartz, Phillips, and Federico, Circuit Judges (opinion by Judge Federico)

Note: This is an unpublished Order and Judgment. It is not binding precedent except under law-of-the-case, res judicata, and collateral estoppel, though it may be cited for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Introduction

United States v. Redfoot arises from a 2018 shooting in Indian Country that resulted in the death of Julio Rodriguez. Following a 2023 jury trial in the District of Utah, Brandon Redfoot was convicted of: second-degree murder in Indian Country (18 U.S.C. §§ 1111(a), 1153(a)); assault with a dangerous weapon in Indian Country (18 U.S.C. §§ 113(a)(3), 1153(a)); being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); and two counts of discharging a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)). He received a 45-year sentence.

On appeal, Redfoot challenged two evidentiary rulings under the plain-error standard and asserted cumulative error. He also preserved a Second Amendment challenge to § 922(g)(1) under New York State Rifle & Pistol Association v. Bruen. The Tenth Circuit affirmed across the board.

Although unpublished, Redfoot is an instructive opinion on two fronts: first, it underscores the decisive role of the third prong of plain-error review—requiring a showing that any error affected the defendant’s substantial rights—particularly with respect to hearsay and Rule 403 evidentiary issues; second, it reiterates that in this Circuit 18 U.S.C. § 922(g)(1) remains constitutional post‑Bruen, per the court’s recent decision in Vincent v. Bondi.

Summary of the Opinion

Hearsay exclusion (Rule 803(3) theory on appeal; Rule 106 argued below): Even assuming error, any exclusion of cross-examination testimony that Redfoot said he was concerned about his son did not affect his substantial rights (plain-error prong three). The court emphasized the minimal relevance of motive for going to the house compared to the core self-defense question at the scene.
Prior act/gun-pointing testimony (Rule 403): Again assuming arguendo error, admission of testimony that Redfoot had previously pointed his gun at the same witness did not affect substantial rights, in light of overwhelming forensic and testimonial evidence refuting self-defense. The court reiterated the exceptional difficulty of establishing plain error on Rule 403 grounds.
Cumulative error: No relief. The alleged errors did not bear on the core issue—whether Redfoot was the first and only shooter—and thus had no cumulative effect sufficient to undermine confidence in the verdict.
Second Amendment challenge to § 922(g)(1): Foreclosed by binding Circuit precedent—Vincent v. Bondi—holding § 922(g)(1) constitutional post‑Bruen. Count Three stands.

Factual and Procedural Background

A confrontation began at a grocery store in Randlett, Utah, where words escalated into a fistfight between Redfoot and Rodriguez. Afterwards, the parties left in separate vehicles. According to witness Rachel Cornpeach, who had purchased the firearm used by Redfoot, he brandished the weapon in the truck, threatened her, and fired into the floorboard to compel a U-turn toward the house of Redfoot’s former partner, Tesha Gardner. Redfoot and a defense witness disputed this version, claiming he never fired inside the truck and that he turned back out of concern for his son.

At Gardner’s house, witnesses testified that only Redfoot fired shots, striking the house and a red truck in the driveway. Twenty-nine spent casings from Redfoot’s KelTec Sub2000 carbine were recovered; the only other round located was an old, previously spent casing. Rodriguez died from a ricochet bullet to the back of the head. After arrest, Redfoot made inculpatory statements including “it is all on me” and “I am the one that said go.”

At trial, the government also elicited testimony from Gardner that, about a week before the shooting, Redfoot had pointed the same type of gun at her. The defense did not object. The jury convicted on all counts, and the court imposed a 45-year sentence with five years’ supervised release.

Detailed Analysis

1) Precedents Cited and Their Role

United States v. Mendoza‑Salgado, 964 F.2d 993, 1008 (10th Cir. 1992): Establishes that when a party fails to make a timely and proper objection, or shifts the ground for reversal on appeal, plain-error review applies. Here, defense counsel argued “rule of completeness” (Rule 106) at trial but advanced a Rule 803(3) hearsay exception on appeal; thus plain error controlled.
United States v. Lacy, 904 F.3d 889, 893 (10th Cir. 2018): Sets out the four-prong plain-error test: (1) error; (2) that is plain; (3) affecting substantial rights; and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. The court resolved both evidentiary claims at prong three.
United States v. Harry, 816 F.3d 1268, 1283 (10th Cir. 2016): Defines the “substantial rights” standard: a reasonable probability of a different outcome but for the error.
United States v. Gonzalez‑Huerta, 403 F.3d 727, 733 (10th Cir. 2005): Places the burden on the defendant to show the error affected substantial rights.
United States v. Cerno, 529 F.3d 926, 933 (10th Cir. 2008): Provides the three-part framework for Rule 403 analysis—relevance, potential for unfair prejudice, and whether probative value is substantially outweighed by unfair prejudice. Although the court did not balance under Rule 403 (resolving at prong three), Cerno frames the issue.
United States v. Watson, 766 F.3d 1219, 1241 (10th Cir. 2014) (quoting United States v. MacKay, 715 F.3d 807, 839 (10th Cir. 2013)): Reiterates the “considerable discretion” afforded trial courts in Rule 403 decisions.
United States v. Herrera, 51 F.4th 1226, 1255 (10th Cir. 2022) (citing United States v. Ibarra‑Diaz, 805 F.3d 908, 929 (10th Cir. 2015)): Emphasizes the rarity of finding plain error in Rule 403 rulings, “even when we disagree with the court’s balancing.” The panel invoked this principle in a footnote to underscore the extraordinary nature of such relief.
United States v. Starks, 34 F.4th 1142, 1169 (10th Cir. 2022): Describes cumulative-error analysis—aggregating non-reversible errors to assess collective impact. The court concluded the alleged errors here remained cumulatively harmless.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Provides the modern Second Amendment methodology (text and history). Redfoot invoked Bruen to attack § 922(g)(1).
Vincent v. Bondi, 127 F.4th 1263, 1265 (10th Cir. 2025): Binding Tenth Circuit precedent reaffirming the constitutionality of § 922(g)(1) post‑Bruen. This foreclosed Redfoot’s Second Amendment challenge.

2) The Court’s Legal Reasoning

a) Exclusion of Cornpeach’s cross-examination statement (Rule 803(3) theory)

Issue presented: Whether the district court erred by sustaining a hearsay objection to a defense question asking if Redfoot had said he was concerned about his son when turning toward Gardner’s house. At trial the defense invoked the “rule of completeness” (Rule 106); on appeal, the defense argued the statement fit the hearsay exception for then‑existing state of mind (Rule 803(3)).

Standard of review: Plain error (Mendoza‑Salgado), because the trial objection and the appellate theory did not match.

Holding on prong three (substantial rights): Even assuming error that was plain, Redfoot did not demonstrate prejudice. The court gave two principal reasons:

Defendant’s own testimony undermined the proffer: Redfoot later testified he wanted to check on his son but admitted he did not say this out loud in the truck. Thus, by his account, Cornpeach could not have heard the statement the defense sought to elicit.
Marginal relevance to the dispositive issue: The focal question for the jury was self-defense at the scene—who fired first—not why Redfoot drove to the house. Whether he turned back out of concern for his child had negligible probative value on whether he was the initial and only shooter.

Accordingly, the court concluded that the exclusion—even if erroneous—did not create a reasonable probability of a different verdict (Harry), and thus did not affect substantial rights (Gonzalez‑Huerta).

b) Admission of Gardner’s prior-act testimony (Rule 403)

Issue presented: Whether allowing testimony that Redfoot had pointed a gun at Gardner about a week earlier was unfairly prejudicial under Rule 403, because jurors might take it as propensity evidence of violence.

Standard of review: Plain error, as no trial objection was lodged.

Holding on prong three: The court again assumed arguendo that admission might have been erroneous but found no effect on substantial rights. Independent evidence was overwhelming: witnesses described only Redfoot shooting; twenty-nine shell casings from his firearm were recovered; only an old, unrelated casing from any other gun was found; and Redfoot made inculpatory statements. Against this evidentiary backdrop, the brief prior-act reference did not meaningfully undermine the self-defense claim. The panel added a footnote emphasizing the “considerable discretion” trial courts have in Rule 403 decisions and the scarcity of plain-error reversals even where appellate judges might disagree with the balancing (Watson, MacKay, Herrera, Ibarra‑Diaz).

c) Cumulative error

Under Starks, the court aggregated the alleged errors and found no cumulative prejudice. The same reasons that defeated substantial-rights prejudice individually—distance from the core self-defense question and overwhelming contrary evidence—defeated the cumulative claim.

d) Second Amendment challenge to § 922(g)(1)

The court declined to revisit § 922(g)(1)’s constitutionality because Vincent v. Bondi controls in the Tenth Circuit, reaffirming that § 922(g)(1) remains valid post‑Bruen. Redfoot’s felon-in-possession conviction therefore stands.

3) Impact and Practical Significance

a) Plain-error practice: the decisive weight of prong three

Redfoot is a sober reminder that unresolved evidentiary disputes—as here, whether Rule 803(3) or Rule 403 would have barred or allowed the evidence—often will not matter on appeal absent a preserved objection and a concrete showing of prejudice. The Tenth Circuit was explicit that, even assuming error, there was no reasonable probability of a different verdict given the force of the record.

For defense counsel:
- Preserve the correct evidentiary theory at trial. A mismatch between trial objection and appellate argument triggers plain-error review, which is exceptionally difficult to satisfy.
- Make a clear offer of proof when evidence is excluded, to catalog what the jury would have heard and why it matters to the defense theory.
- If prior-act evidence surfaces unexpectedly, promptly object under Rules 403 and 404(b), and request a limiting instruction under Rule 105 to channel the jury’s use of the evidence to permissible purposes (e.g., identity or possession) rather than propensity.
For prosecutors:
- When eliciting prior-act evidence, be prepared to articulate a non-propensity purpose, and the probative link to a material issue (such as possession or identity), and to address Rule 403 balancing.
For trial judges:
- Although appellate reversal on Rule 403 is rare, contemporaneous articulation of reasoning—especially in close cases—can harden the record against later challenge and clarify the scope of any limiting instruction.

b) The post‑Bruen landscape for § 922(g)(1) in the Tenth Circuit

Redfoot confirms that in this Circuit, challenges to § 922(g)(1) remain foreclosed by Vincent v. Bondi. While other jurisdictions have explored as-applied challenges (e.g., involving non-violent felony convictions), practitioners in the Tenth Circuit must operate under Vincent’s reaffirmation of § 922(g)(1)’s constitutionality unless and until the Supreme Court says otherwise.

c) Substantive trial themes: motive versus conduct at the scene

The opinion draws a useful distinction between pre-incident motive (why the defendant went to the location) and conduct at the scene (who fired first and whether force used was reasonable in self-defense). Where the forensic and testimonial evidence powerfully resolves the latter, the former will carry little appellate weight in a prejudice analysis.

d) Rule 106 and the 2023 amendment

At trial, the defense invoked Rule 106’s “rule of completeness,” and the government responded that Rule 106 applied only to writings—a fair reading of the pre‑December 1, 2023 text. The Tenth Circuit did not resolve Rule 106. Practitioners should note that Rule 106 was amended in late 2023 to broaden its scope beyond writings and recordings, codifying a more flexible completeness principle for statements. While Redfoot does not decide any Rule 106 issue, counsel trying cases under the amended rule can and should leverage it when fairness requires the contemporaneous introduction of omitted, contextual portions of a statement—even if oral.

Complex Concepts Simplified

Plain error review: An appellate standard used when no proper objection was made at trial (or when the argument on appeal differs from the trial objection). To win, a defendant must show (1) error, (2) that is clear or obvious, (3) that affected substantial rights (i.e., likely changed the outcome), and (4) that seriously undermines the fairness, integrity, or public reputation of judicial proceedings. In practice, prong three is often where claims fail.
Hearsay and Rule 803(3): Hearsay is an out-of-court statement offered for the truth of the matter. Rule 803(3) allows statements about a declarant’s then‑existing state of mind (like motive or intent)—for example, “I am going to check on my son”—but not statements of memory or belief to prove past facts.
Rule 403 (unfair prejudice): Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (e.g., prompting a verdict based on emotion or character rather than facts). Appellate courts give trial judges wide latitude on this balancing, and reversing under plain error is rare.
Rule 404(b) (other acts): Evidence of prior acts cannot be used to prove a person’s character in order to show action in conformity (propensity), but it may be admissible for other purposes such as identity, knowledge, or absence of mistake—subject to Rule 403.
Cumulative error: Even if individual errors are harmless, courts consider whether, collectively, they undermined the trial’s fairness. Without multiple meaningful errors, cumulative error rarely yields reversal.
Bruen framework: Courts assess Second Amendment restrictions by reference to the text of the Amendment and the Nation’s historical tradition of firearm regulation. In the Tenth Circuit, § 922(g)(1)’s felon-in-possession prohibition remains constitutional under existing precedent.
Indian Country jurisdiction (18 U.S.C. § 1153): The Major Crimes Act gives federal courts jurisdiction over certain serious offenses committed in Indian Country; here, it provided the jurisdictional basis for the murder and assault counts.
Malice aforethought (18 U.S.C. § 1111): The mental state required for federal murder, which can be satisfied by intent to kill, intent to do serious bodily harm, or a depraved-heart recklessness causing death.
18 U.S.C. § 924(c): Enhances penalties for using or carrying a firearm “during and in relation to” a crime of violence; discharge triggers higher mandatory minimums.

Conclusion

United States v. Redfoot offers a clear, practice-oriented message: preservation matters, and prong three of plain-error review is often dispositive. The Tenth Circuit declined to decide whether the contested evidentiary rulings were wrong because, even if they were, neither exclusion of a purported motive statement nor admission of a brief prior act carried a reasonable probability of changing the verdict in the face of overwhelming evidence that Redfoot was the only shooter.

On the constitutional front, the opinion confirms that § 922(g)(1) remains valid in the Tenth Circuit after Bruen, by virtue of Vincent v. Bondi. Defense lawyers should continue to preserve Second Amendment arguments for potential higher-court review, but should not expect relief in this Circuit at present.

In the broader doctrinal landscape, Redfoot is a persuasive reminder (even if nonprecedential) of three enduring points: the centrality of prejudice in plain-error appeals, the deference owed to district courts on Rule 403 balancing, and the limited appellate traction of peripheral motive evidence where the decisive dispute concerns conduct at the scene. For trial practitioners, the case underscores the importance of precise, timely objections, clear offers of proof, and targeted limiting instructions to preserve meaningful appellate options.