Preserving Rule 106 “Completeness” Claims: A Proponent Must Identify the Ground for Admission, Not Merely Proffer the Recording

1. Introduction

United States v. Velazquez Hernandez arose from a December 2023 traffic stop on I-40 in Oklahoma City that led to the discovery of nearly 17 kilograms of methamphetamine concealed in a vehicle console. Simon Velazquez Hernandez (referred to as “Mr. Hernandez”) was tried for possessing methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1). His defense was duress: he claimed a person in Mexico (“Primo”) compelled him to transport drugs by threatening to harm his mother.

The appeal presented a tightly focused evidentiary issue: whether the district court erred under Federal Rule of Evidence 106 (the rule of completeness) by excluding (1) a recorded post-arrest interview (“Post-Arrest Interview Video”) and (2) a rear-facing dash-camera segment recorded during transport to the station (“Dash Camera Segment”). Mr. Hernandez argued these recordings would have shown his emotional state and supported his duress narrative.

The Tenth Circuit affirmed, holding that Mr. Hernandez forfeited his Rule 106 claim by failing to present that ground in the district court and, on plain-error review, failed to show any Rule 106 error because the government’s admitted evidence was not misleading and did not require completion.

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited

The opinion’s reasoning is built from three interlocking bodies of authority: (i) preservation/forfeiture under Rules 103 and 51, (ii) plain-error review, and (iii) Rule 106 completeness doctrine (including the 2023 amendments).

A. Preservation and offers of proof

• United States v. Ramirez: The court relied on the rule that the appellate “specific ground” must match what was raised at trial; because Mr. Hernandez never invoked Rule 106 below, he could not obtain abuse-of-discretion review on that theory.
• United States v. Adams: Provided the governing standard for an “adequate offer of proof”—the proponent must describe what the evidence shows and “identify the grounds for admitting the evidence.” The court used Adams to conclude Mr. Hernandez did only the first, not the second.
• Polys v. Trans-Colo. Airlines, Inc. (quoting Gates v. United States): Supported the proposition that “merely telling the court the content” of proposed evidence is not enough; without a legal ground, preservation fails.
• Holguin-Hernandez v. United States: Clarified that “particular language” is not required to preserve an issue, but the litigant must still “alert” the court to the argument in substance. The panel used this to show that flexibility in wording does not excuse total silence about Rule 106’s completion rationale.
• United States v. Cates (quoting GeoMetWatch Corp. v. Behunin): Reinforced the “alert the district court” requirement; the panel invoked this to emphasize that neither citation nor substance of Rule 106 was presented.
• United States v. Wiseman: Cited in the preservation discussion for general waiver/forfeiture principles; it functioned as a reminder that unraised issues are typically lost, setting the stage for the panel’s strict preservation analysis.
• United States v. Willie: The panel used it to reject the notion that the district court must “imagine some admissible purpose” for proffered evidence—placing the burden squarely on the proponent to articulate the admissibility theory.

B. Plain error doctrine

• United States v. Paycer: Supplied both the preserved standard (abuse of discretion) and the plain-error framework (the four prongs). The court repeatedly anchored its standard-of-review analysis in Paycer.
• United States v. Leffler: Did two jobs: (1) confirmed that forfeiture yields plain-error review; (2) allowed the defendant to raise plain error in a reply brief after the government argues waiver/forfeiture, which is what happened here.
• United States v. McGehee and United States v. Berryhill: Emphasized how demanding plain-error review is and that the defendant must satisfy all prongs; this heightened threshold mattered because the court ultimately ended the analysis at prong one (no error).

C. Rule 106 completeness doctrine

• United States v. Lopez-Medina (quoting United States v. Moussaoui): Provided the foundational purpose of Rule 106: to prevent a party from misleading the jury. The panel used this purpose to distinguish “completion” from “affirmative proof.”
• United States v. Williston: The central doctrinal source. The panel applied Williston’s four factors and its warning that Rule 106 is not a “general right” to introduce selected counter-statements.
• Echo Acceptance Corp. v. Household Retail Servs., Inc.: Reinforced Rule 106 as a “defensive shield” rather than an “offensive sword.” This framed Mr. Hernandez’s problem: he sought to use the recordings primarily to strengthen his duress narrative.
• United States v. Harry: Recognized that Rule 106’s fairness principle can override hearsay objections—important because Mr. Hernandez argued the district court violated the 2023 Rule 106 amendment. The panel cited Harry to show that even before the amendment, the Tenth Circuit allowed hearsay override in proper completeness situations.
• United States v. Lemon (unpublished) (with citations to United States v. Engles and United States v. Woodmore regarding persuasive use): Used to illustrate that when the admitted evidence is not misleading, “no further context” is required and Rule 106 does not compel additional material.
• United States v. Phillips: Used to underline that Rule 106 does not require “completeness for its own sake”; an incomplete presentation is not automatically improper.
• United States v. Wireman: Cited for the principle that when prong one of plain error fails, the court need not address prongs two through four.
• United States v. Clay: Used to reject an undeveloped argument about playing “equivalent” amounts of video, stressing that perfunctory assertions without developed legal reasoning are waived.
• United States v. Dermen: Cited for the appellate posture of viewing trial evidence “in the light most favorable to the verdict,” supplying the lens through which the panel summarized facts.

3.2. Legal Reasoning

A. The preservation holding: why the Rule 106 claim was forfeited

The panel treated preservation as dispositive to the standard of review. While Mr. Hernandez did make attempts to admit the recordings at trial, his proffers did not articulate the legal ground for admission—particularly that admission was required to correct a misleading partial presentation by the government. The court emphasized two connected points:

• Rule 103(a)(2) requires more than identifying the evidence. Under United States v. Adams, an adequate offer of proof must describe what the evidence tends to show and identify the grounds for admitting it. Mr. Hernandez focused on importance (“most powerful piece of evidence,” “first time he tells the story”) rather than a recognized evidentiary theory.
• “Apparent from the context” did not apply. The court found nothing in defense counsel’s argument that would have made a Rule 106 completeness theory apparent, especially because counsel did not tie requested segments to specific portions of government-introduced statements alleged to be misleading.

The result was forfeiture and plain-error review.

B. The Rule 106 merits holding: why there was no “completeness” error

Applying Rule 106’s text (including that completion may occur “over a hearsay objection”) and Williston’s four-factor framework, the panel found the recordings were not required “in fairness” to be considered at the same time as the government’s evidence.

• No need to “explain” the admitted evidence. The government’s witnesses (Sergeant Seale and Detective Snyder) already testified that Mr. Hernandez was emotional and feared for his mother. Mr. Hernandez himself then testified at length to the threats. The recordings would have been cumulative in the specific Rule 106 sense—i.e., not necessary to make the admitted portions intelligible.
• No contextual misimpression requiring correction. The court rejected the premise that Detective Snyder’s testimony created a misleading picture that needed correction by playing the full interview; it highlighted that the jury heard that Mr. Hernandez cried throughout and that the interview covered threats to his mother.
• Rule 106 is not a “best evidence” vehicle for the defense narrative. The panel repeatedly returned to the central limitation: Rule 106 prevents misleading partial presentation; it does not empower a party to introduce otherwise-inadmissible evidence simply because it is persuasive or emotionally compelling.
• “Over a hearsay objection” did not help Mr. Hernandez on these facts. The panel distinguished between (i) a proper Rule 106 completion request that may overcome hearsay and (ii) a request unsupported by a completion rationale. The district court, in the panel’s view, excluded the recordings because the defense offered no admissibility basis—so the 2023 amendment’s explicit hearsay override did not change the outcome.

C. The interpreter-mistranslation argument

Mr. Hernandez suggested the video was needed because a language-line interpreter mistranslated a key statement. The panel rejected this as a Rule 106 basis both procedurally (it did not require sua sponte admission) and practically (the record showed the defense corrected the mistranslation through Mr. Hernandez’s testimony and cross-examination of Detective Snyder about translation issues).

3.3. Impact

Although designated as nonprecedential, the decision is a detailed, practice-shaping application of the 2023 Rule 106 amendment and preservation doctrine in criminal trials. Its likely influence is threefold:

• Completeness objections must be framed as completeness objections. Litigants in the Tenth Circuit should expressly invoke Rule 106 or, at minimum, articulate its substance: identify the specific portion introduced by the opponent, the specific completing portion sought, and why the admitted portion is misleading without completion.
• “Importance” and “demeanor” are not admissibility theories. The opinion warns defense counsel that arguing evidence is “powerful,” “important,” or the “best evidence” does not preserve a legal claim or justify admission under Rule 106.
• The 2023 Rule 106 amendment is not a blanket hearsay bypass. The decision reinforces the advisory note’s narrow scope: completeness over hearsay is allowed only when needed to correct a misimpression created by a partial presentation, not to admit additional favorable statements.

4. Complex Concepts Simplified

• Hearsay: An out-of-court statement offered to prove the truth of what it asserts. A defendant generally cannot introduce his own out-of-court statements for their truth unless an exception applies.
• Opposing party’s statement (Rule 801(d)(2)(A)): A party’s own statement is admissible when offered against that party. That is why the government can often introduce a defendant’s statements, but the defendant cannot automatically introduce them himself.
• Rule 106 (rule of completeness): If one side introduces part of a statement, the other side can require additional parts to be introduced at the same time—but only if needed “in fairness” to prevent the jury from being misled by the partial excerpt.
• Offer of proof (Rule 103(a)(2)): When evidence is excluded, the proponent must tell the judge what the evidence is and why it is admissible. Without the “why,” the issue may not be preserved for appeal.
• Forfeiture vs. waiver: Forfeiture is a failure to raise an argument; waiver is an intentional relinquishment. Forfeiture generally leads to plain-error review.
• Plain error: A demanding appellate standard requiring (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
• Duress defense: An affirmative defense asserting the defendant committed the crime because of a threat of serious harm, leaving no reasonable legal alternative.

5. Conclusion

United States v. Velazquez Hernandez underscores two practical rules for trial lawyers: (1) to preserve evidentiary issues, you must state the legal ground for admission—not merely proffer the evidence and argue its importance; and (2) Rule 106 is narrowly corrective, aimed at preventing a misleading partial presentation, not at admitting the most persuasive version of a party’s narrative. The Tenth Circuit’s application of Williston and the 2023 Rule 106 amendment clarifies that “completeness” remains tethered to fairness-as-anti-misleading, even when the completing material would otherwise be hearsay.