Plain-Error Review’s “Substantial Rights” Gatekeeper and the Post‑Bruen Status of § 922(g)(1): United States v. Redfoot (10th Cir. 2025)

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

Date: March 31, 2025

Panel: Judges Hartz, Phillips, and Federico

Disposition: Convictions and sentence affirmed

Precedential Status: Order and judgment; not binding precedent except under law-of-the-case, res judicata, and collateral estoppel; citable for persuasive value under Fed.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 culminated in a jury’s 2023 verdict finding Brandon Redfoot guilty of second-degree murder, assault with a dangerous weapon, two counts of discharging a firearm during a crime of violence, and being a felon in possession of a firearm. On appeal, Redfoot pursued three principal theories: (1) two evidentiary rulings were plainly erroneous and individually or cumulatively required reversal (save for the felon-in-possession count, which he separately challenged under the Second Amendment); (2) even if not independently reversible, the rulings’ cumulative effect demanded a new trial; and (3) under New York State Rifle & Pistol Ass’n v. Bruen, § 922(g)(1) is unconstitutional.

The Tenth Circuit affirmed on all issues. The court resolved both evidentiary challenges at the third prong of plain-error review, holding any assumed errors did not affect substantial rights. It rejected the cumulative error claim for similar reasons. And it confirmed that, in this circuit, challenges to § 922(g)(1) are foreclosed by binding circuit precedent decided after Bruen.

Summary of the Opinion

Hearsay exclusion (Rule 803(3)): Even assuming error in excluding cross-examination testimony that Redfoot said he was concerned for his son, the court held there was no reasonable probability of a different outcome. The statement bore on why he went to the house, not the core issue—whether he acted in self-defense at the scene.
Prior conduct testimony and Rule 403: Testimony that Redfoot had pointed the same gun at his former partner about a week earlier did not affect substantial rights under plain-error review. Overwhelming physical, testimonial, and inculpatory evidence established he was the sole shooter; any prejudice from the prior act was “beside the point.”
Cumulative error: Aggregating the alleged errors did not change the outcome because neither alleged error touched the case’s central question—self-defense. No reasonable probability of a different verdict.
Second Amendment (Bruen): Redfoot’s challenge to 18 U.S.C. § 922(g)(1) is foreclosed by the Tenth Circuit’s decision in Vincent v. Bondi, which reaffirmed the statute’s validity post-Bruen.

Analysis

Precedents Cited and Their Role

United States v. Mendoza-Salgado, 964 F.2d 993 (10th Cir. 1992): Establishes that when a party fails to make a timely and proper objection, or changes the ground for reversal on appeal, plain-error review governs. Here, defense counsel argued Rule 106 (completeness) at trial but argued Rule 803(3) (state-of-mind hearsay exception) on appeal, triggering plain-error review.
United States v. Lacy, 904 F.3d 889 (10th Cir. 2018): Recites the four prerequisites for relief under plain error: (1) error; (2) that is plain; (3) affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Young, 470 U.S. 1 (1985): Emphasizes that plain error is a narrow exception invoked sparingly to avoid miscarriages of justice—underscoring the high threshold an appellant faces absent a preserved objection.
United States v. Harry, 816 F.3d 1268 (10th Cir. 2016): Defines the substantial-rights prong: an error is prejudicial only if there is a reasonable probability that, but for the error, the result would have been different.
United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005): Places the burden squarely on the appellant to show the error affected substantial rights.
United States v. Cerno, 529 F.3d 926 (10th Cir. 2008): Provides the Rule 403 framework: relevance, potential for unfair prejudice, and whether prejudice substantially outweighs probative value.
United States v. Watson, 766 F.3d 1219 (10th Cir. 2014) and United States v. MacKay, 715 F.3d 807 (10th Cir. 2013): Recognize the trial court’s “considerable discretion” in Rule 403 balancing—critical to understanding why plain-error reversal on 403 grounds is exceptional.
United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022) and United States v. Ibarra-Diaz, 805 F.3d 908 (10th Cir. 2015): The Tenth Circuit has declined to find plain error in admitting evidence under Rule 403 even when it disagreed with the district court’s balancing—reinforcing the deference and the difficulty of prong-three and prong-four showings.
United States v. Starks, 34 F.4th 1142 (10th Cir. 2022): Sets out cumulative-error analysis: aggregate assumed non-reversible errors and ask if their combined effect undermines confidence in the verdict.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): The organizing framework for modern Second Amendment analysis, invoked by Redfoot to challenge § 922(g)(1).
Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025): Binding circuit authority reaffirming § 922(g)(1)’s constitutionality post-Bruen; it forecloses Redfoot’s challenge.

Legal Reasoning: How the Court Reached Its Decision

1) The hearsay exclusion (Rule 803(3) vs. Rule 106) and prong-three plain error

At trial, when defense counsel sought to elicit from Ms. Cornpeach that Redfoot said he was concerned about his son, the government objected on hearsay grounds. Defense counsel invoked the rule of completeness (Rule 106). The district court sustained the objection, and counsel moved on. On appeal, however, Redfoot reframed the argument under Rule 803(3)—the hearsay exception for then-existing state of mind.

Because the argument on appeal differed from the argument at trial, the panel reviewed only for plain error. The court did not resolve whether excluding the statement was erroneous (or plainly erroneous). Instead, it assumed arguendo that Redfoot could establish the first two prongs and held the claim failed on prong three: no effect on substantial rights.

The court’s reasons were threefold:

Peripheral to the core issue: Whether Redfoot said he was worried about his son went to why he went to the house, not to what happened in the shooting itself. The dispositive question was whether he acted in self-defense. The alleged hearsay was “a minor point.”
Redfoot’s own testimony already conveyed the motive: He testified he went to check on his son—mitigating any incremental value from the excluded statement.
Internal inconsistency: Redfoot also testified he did not say his motive aloud in the truck, undercutting the premise that Cornpeach could truthfully corroborate an out-of-court statement he now claimed to have never uttered.

Against this backdrop, Redfoot could not show a reasonable probability that admission of the statement would have changed the verdict.

2) Prior conduct testimony (Rule 403) and prong-three plain error

Gardner testified on direct that she had seen Redfoot with a gun before—“when he had pointed the gun at me”—and later, the prosecutor asked Redfoot, “What did you tell [Gardner] when you put [the gun] to her head?” Defense counsel did not object. On appeal, Redfoot claimed the testimony should have been excluded under Rule 403 because the unfair prejudice (a propensity inference) substantially outweighed any probative value.

Again proceeding on plain-error review, the panel resolved the claim at prong three. The court emphasized that the self-defense claim was gutted by overwhelming contrary proof:

Twenty-nine expended rounds from Redfoot’s gun at the scene and matching impact holes in the residence and a truck;
Only one “old, spent” round from a different firearm, inconsistent with a contemporaneous second shooter;
Eyewitness accounts that Redfoot alone fired; and
Redfoot’s post-arrest inculpatory statements (“it is all on me,” “I am the one that said go”).

Given this record, even if the jury inferred a violent propensity from Gardner’s brief statement, there was no reasonable probability of a different outcome. In a footnote, the panel underscored a broader institutional point already embedded in Tenth Circuit caselaw: it is “difficult to properly analyze any Rule 403 claim for plain error,” because Rule 403 balancing is highly discretionary and appellate courts have been reluctant to find plain error even when they would have weighed the factors differently.

3) Cumulative error

Cumulative error analysis aggregates assumed non-reversible errors and asks whether, in combination, they undermine confidence in the verdict. Here, neither alleged error bore on the central issue—who shot first and whether Redfoot acted in self-defense. Because the alleged errors were peripheral and the proof of guilt was overwhelming, aggregation did not move the needle: there was no reasonable probability of a different result.

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

Finally, Redfoot preserved a Bruen-based challenge to § 922(g)(1). The panel held that argument foreclosed by the Tenth Circuit’s intervening decision in Vincent v. Bondi, which reaffirmed the felon‑in‑possession statute’s constitutionality post-Bruen. The conviction on Count Three therefore stood.

Impact and Forward-Looking Significance

Plain-error practice—prong three as a decisive gatekeeper: Redfoot exemplifies the Tenth Circuit’s frequent use of the substantial-rights prong to resolve unpreserved evidentiary issues. Where the alleged error is tangential to the case’s fulcrum (here, self-defense) and the government’s proof is strong, appellants face a steep climb.
Rule 403 in plain-error posture is a long shot: Consistent with Herrera and Ibarra-Diaz, the panel reiterates the difficulty of securing plain-error reversal for Rule 403 decisions, given deferential balancing and the requirement to show a reasonable probability of a different outcome.
Preservation matters—choose the right rule at trial: The defense’s trial reliance on Rule 106 (rather than the state-of-mind exception they later pressed) forced plain-error review. Litigants should preserve the specific evidentiary theory they intend to pursue on appeal.
Prior-acts evidence and the risk of propensity inferences: Although the panel did not rule on Rule 404(b), the episode underscores the need to object contemporaneously and to consider motions in limine where testimony about prior misconduct may arise through seemingly benign questions (e.g., “Have you seen him with a gun?”).
Post‑Bruen § 922(g)(1) in the Tenth Circuit: Vincent v. Bondi controls. For the foreseeable future, Bruen-based attacks on § 922(g)(1) will not succeed in this circuit absent en banc or Supreme Court intervention.
Indian Country prosecutions and self-defense claims: The opinion illustrates the weight juries and courts place on ballistic and forensic corroboration. Where physical evidence overwhelmingly indicates a single shooter and voluminous discharge, self-defense is unlikely to carry without independent corroboration.

Complex Concepts Simplified

Plain error (four-prong test):
- Error: Something the court did was wrong.
- Plainness: The error was clear or obvious under current law.
- Affecting substantial rights: There is a reasonable probability the outcome would have been different without the error.
- Seriously affects the proceedings’ fairness/integrity: Even if the first three are met, reversal is discretionary and reserved for miscarriages of justice.
Rule 803(3) (state-of-mind hearsay exception): Allows admission of out-of-court statements about a declarant’s then‑existing mental, emotional, or physical condition (e.g., intent, motive), but not statements of memory or belief offered to prove the past fact remembered.
Rule 403 (unfair prejudice vs. probative value): Courts may exclude relevant evidence if its probative value is substantially outweighed by risks like unfair prejudice (e.g., inviting a decision based on emotion or character, rather than facts), confusion, or waste of time.
Propensity evidence and Rule 404(b): Evidence of other crimes, wrongs, or acts is generally not admissible to show a person’s character and that they acted in accordance with it on a particular occasion. It may be admissible for other purposes (motive, intent, identity, absence of mistake), subject to Rule 403. Although 404(b) was not litigated here, the concern animated the defense’s 403 argument.
Cumulative error: Even if single missteps don’t warrant reversal, their combined effect might. Courts aggregate non-reversible errors and assess whether, together, they undermine confidence in the outcome.
§ 922(g)(1) and Bruen: Bruen directs courts to assess firearms regulations by reference to historical tradition. In the Tenth Circuit, however, Vincent v. Bondi holds that § 922(g)(1) remains constitutional under that framework.
Major Crimes Act and “Indian Country” (18 U.S.C. § 1153): Federal jurisdiction extends to certain serious offenses committed by Indians in “Indian Country.” Murder and assault with a dangerous weapon are among those enumerated offenses.

Practical Takeaways for Litigants

Preserve precisely. Articulate the correct evidentiary basis at trial (e.g., Rule 803(3) rather than Rule 106) or risk forfeiting de novo review.
Build prejudice in the record. On appeal, the substantial-rights inquiry turns on whether the error could have changed the verdict. Develop and emphasize how the excluded or admitted evidence bears on the case’s linchpin issue.
Anticipate prior-acts spillover. Where a witness might reference prior misconduct, consider motions in limine, targeted objections (Rules 403 and 404(b)), and curative instructions.
Self-defense needs corroboration. Where physical and forensic evidence points decisively in one direction, testimonial self‑defense assertions rarely suffice.
Second Amendment challenges to § 922(g)(1) are foreclosed in the Tenth Circuit. Preserve the issue if desired, but district courts and panels are bound by Vincent.

Conclusion

United States v. Redfoot reinforces two durable themes in Tenth Circuit appellate practice. First, under plain-error review, the substantial-rights prong is often dispositive: peripheral evidentiary disputes that do not bear on the trial’s pivotal issue—especially against overwhelming proof—will rarely justify reversal. Second, post-Bruen challenges to § 922(g)(1) are a dead end in this circuit after Vincent v. Bondi. Although non-precedential, Redfoot offers persuasive guidance for trial and appellate lawyers about preservation strategy, the limits of plain-error relief (particularly under Rule 403), and the importance of tying evidentiary rulings to the case’s central theory. As such, it is a useful roadmap for understanding how the Tenth Circuit evaluates alleged evidentiary missteps and for calibrating litigation strategies accordingly.