Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2132 (D.C. No. 2:22-CR-01360-MIS-DLM-1) OSCAR ORRANTIA, (D.N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, McHUGH, Circuit Judges, and VRATIL, District Judge. ** _________________________________
Oscar Orrantia, a Customs and Border Protection officer, was on duty at
an inspection point in Southern New Mexico when he pulled a man out of his
truck and threw him to the ground. He then wrote in his incident report that the
man had threatened him and was not cooperative. But that information was
false. So the government charged him with depriving the man of his rights and
This order and judgment is not binding precedent except under the *
doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
The Honorable Kathryn H. Vratil, U.S. District Judge, United States **
District Court for the District of Kansas, sitting by designation. Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 2
falsifying records. See generally 18 U.S.C. §§ 242, 1519. A jury convicted
Orrantia on both counts.
On appeal, Orrantia raises six alleged errors from his trial. We address
only one of them because he has withdrawn or waived the other five. Orrantia’s
only live issue is whether the government violated Orrantia’s due process rights
under California v. Trombetta, 467 U.S. 479 (1984), and Arizona v.
Youngblood, 488 U.S. 51 (1988), by deleting under its retention policy a video
of a separate incident involving Orrantia.
We reject Orrantia’s due process argument. He does not show that the
government acted in bad faith by deleting the video. So the government didn’t
violate his due process rights. Thus, seeing no error, we exercise our
jurisdiction under 28 U.S.C. § 1291 and affirm.
BACKGROUND
I. Factual Background
On a hot June day in southern New Mexico in 2019, sixty-three-year-old
Anastacio Granillo and his cousin’s husband, Jose Nevarez, were returning
home to Deming, New Mexico, after having a truck repaired in Mexico. They
carried some allergy pills they had purchased in Palomas, Mexico.
Granillo and Nevarez returned to the United States through the Columbus
Port of Entry (POE) in Columbus, New Mexico. Granillo was driving. The two
waited in the truck for half an hour before reaching the inspection point. The
truck’s air conditioning had stopped working. 2 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 3
Orrantia was the CBP officer on duty. Orrantia greeted Granillo in
Spanish: “Hello. What are you going to tell me?” 1 “That you have us roasting
with the heat out there,” Granillo said, handing Orrantia his passport. Orrantia
responded, “Excuse me?” Granillo said, “It’s very hot outside. Well, what can
we do?” “Do not cross,” Orrantia instructed.
Orrantia then asked Granillo whether he was bringing any items back
from Mexico. “Pills,” Granillo said, handing the allergy pills to Orrantia.
Orrantia said, “Pills? Calm down, okay?” Granillo demurred, “No, no, well it’s
just that—People get upset because you have us out there with this heat.”
Granillo then glanced at Orrantia’s name tag, and Orrantia became angry.
Switching to English, Orrantia asked, “Do you want to know my name?”
Sticking with Spanish, Granillo confirmed that he only wanted to see Orrantia’s
name. “Are you threatening me?” Orrantia asked. Once again, Granillo
demurred, “I want to see your name.” So Orrantia asked again, “Are you
threatening me?” Still in Spanish, Granillo repeated, “I want to see what your
name is.”
After more back and forth, Orrantia told Granillo to open the door and
once again asked, “Are you threatening me?” Granillo assured Orrantia that he
1 Orrantia and Granillo spoke Spanish for part of their interaction. We rely on the English translation read at trial. Neither party disputes the translation’s accuracy. 3 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 4
was not. Orrantia opened the car door, then, a few moments later, demanded in
Spanish: “You know what? Take off your belt; get off.”
Granillo thought Orrantia was referring to his pants belt, though Orrantia
probably meant to ask Granillo to remove his seat belt. So believing that he was
instructed to take off his pants belt, Granillo began to undo it. But before
giving Granillo time to comply, Orrantia grabbed him and tried to pull him out
of the truck.
While grabbing Granillo, Orrantia said, “Get off.” Apparently confused,
Granillo said, “Well, you told me to take off . . . ” “Get off,” Orrantia
interjected. “. . . [t]he belt,” Granillo said, finishing his sentence. “Get off,”
Orrantia said again. Granillo said, “But don’t—don’t grab me like that, don’t
grab me like that.”
Orrantia was not deterred. By this point, Granillo stood outside the truck
as Orrantia held onto his arm and chest. “Turn around,” Orrantia instructed,
still in Spanish. Granillo responded, “Ah, tell me to turn around; don’t—don’t
grab me like that, don’t grab me like that.” “Let’s see,” Orrantia said.
Orrantia turned Granillo around to face the cab. “Let’s see what? What
are you going to do to me or what?” Granillo asked. Orrantia said, “I’m going
to knock you down; do you understand me?” Granillo responded, “All right.
Just—oh, damn. Shit,” as Orrantia knocked him to the ground. Orrantia told
Granillo, “Get down. Get down on the floor. Get down on the floor, sir.”
4 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 5
At this point, Granillo was bent over, and Orrantia stood over him,
holding him. Granillo wanted time to comply, so he asked Orrantia several
times to “wait.” “Get down on the floor,” Orrantia said again. “Damn, you just
knocked me down,” Granillo told him. “I’m getting down. Wait,” he said again.
Orrantia again pushed Granillo to the ground.
During the altercation, Granillo hit his head on a brick barrier. He was in
“a lot of pain” and “was seeing little stars.” App. vol. III at 446.
Granillo lay on the ground as Orrantia kneeled over him. Meanwhile,
Victor Endlich, another CBP officer, came to assist. As Orrantia placed
Granillo in handcuffs, Endlich asked Orrantia, “What do you got, bro?”
Orrantia responded, “Naw, man, this guy was fucking being a dick. He started
resisting when I told him to get off.” Granillo chimed in, “But I didn’t tell you
that I didn’t want to get off.” A third officer approached, and Endlich said, “I
don’t know what happened.” Endlich asked Orrantia, “Is it a hit, bro?” 2 “No,”
Orrantia said.
Leticia Ballesteros was the CBP supervisor on duty that day. When
Orrantia came to her office soon after the incident, he told her that there had
been an incident in which a subject had “become upset” at him, so “he had to
take him out,” and that the subject “had struck his head.” Id. at 393.
2 A “hit” is when a records search returns an alert that the traveler has an outstanding warrant, has a protection order issued against them, or is known to be armed and dangerous. 5 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 6
Ballesteros went to see Granillo. She immediately noticed that he had a
large bump on his head, the skin was broken, and there was blood. So she
called an ambulance.
Ballesteros then asked Orrantia to fill out an incident report, known as an
IOIL. In it, he described the incident, but he misstated several important facts.
For example, he reported that Granillo had continued to complain about how
long he waited in line rather than answer Orrantia’s questions. He stated that
Granillo “threw/forced” the allergy pills into his hand. Supp. App. vol. I at 53.
And he said that Granillo took an aggressive posture: “he pulled his shoulders
back and stuck out his chest towards me. I asked the subject if he was
threatening me. The subject stated that he just wanted my name. I clearly
showed the subject my name tag. The subject continued to stick out his
chest . . . .” Id. at 53.
Orrantia also characterized Granillo as uncooperative, stating twice that
Granillo had refused to get out of his vehicle. He reported that Granillo pulled
away and repeatedly tensed his muscles to prevent Orrantia from handcuffing
him. And he stated that he “did not push” Granillo to the ground but “guide[d]”
him to the ground when Granillo was off balance. Id. at 54.
II. Procedural History
On November 15, 2023, a grand jury charged Orrantia with two counts:
(1) depriving Granillo of his Fourth Amendment rights while acting under color
6 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 7
of law, in violation of 18 U.S.C. § 242, and (2) knowingly making a false entry
in a record, in violation of 18 U.S.C. § 1519. 3
A. Proposed Rule 404(b) Evidence
Before trial, the government asked the district court for permission to
introduce, under Federal Rule of Evidence 404(b), evidence of four other
incidents involving Orrantia. See generally Fed. R. Evid. 404(b). The
government argued that these incidents showed his “intent, knowledge, and
absence of mistake or accident in this case.” App. vol. I at 89.
The first incident, the “checkpoint incident,” happened in 2018 when
Orrantia was off duty. While traveling through a CBP checkpoint near Las
Cruces, New Mexico, Orrantia was uncooperative and eventually flashed his
CBP badge to avoid getting screened. The incident ended with another CBP
officer drawing his handgun and with Orrantia in restraints. Upon Orrantia’s
return to Albuquerque, his supervisor confiscated his service weapon “as a
precautionary measure.” App. vol. I at 95.
3 The original indictment charged only the deprivation-of-rights count. The first superseding indictment added a false-entry-of-records count and two theories in support of the deprivation-of-rights charge: unlawful force and unlawful detention or arrest. The second superseding indictment—the operative indictment—omitted the unlawful arrest or detention theory for the deprivation- of-rights charge.
7 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 8
The second incident, the “Montoya” incident, 4 occurred in August 2019
when Orrantia was manning the inspection booth at the Columbus POE. This
incident involved Roberto Montoya, a fifty-year-old ambulance driver who
lived in Columbus. He crossed the border to Mexico almost daily to visit his
sick father in Palomas, Mexico. When Montoya was traveling through the
Columbus POE one day in August 2019, Orrantia yelled at him to get out of his
vehicle. In response, Montoya told Orrantia that he did not speak English.
Orrantia opened Montoya’s car door and pulled him from the vehicle, injuring
Montoya’s arm. Orrantia told Montoya to “shut up” but never explained why he
had handcuffed him. Other CBP agents recognized Montoya and removed his
handcuffs. Montoya later filed an official complaint against Orrantia.
Like the second incident, the third incident—the “girlfriend” incident—
happened when Orrantia was on duty at the Columbus POE. In May 2020,
Orrantia was working in a CBP rover vehicle with another CBP officer.
Orrantia told her that he was expecting his girlfriend to visit him at work that
day. But CBP officers are not allowed to have friends or significant others visit
them while they’re working. The other officer told Orrantia that, then left
because she felt uncomfortable. When she returned, she saw Orrantia with his
girlfriend inside the rover. Orrantia was later disciplined.
4 The parties refer to this incident as the “W1” incident. We relabel it to help the unfamiliar reader. 8 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 9
The fourth incident, the “Barron” incident, 5 happened in June 2020, also
at the Columbus POE. As they often did, Amanda Barron and her family were
traveling back through the Columbus POE after visiting family in Palomas,
Mexico. Though she told Orrantia that she was opening her car door to retrieve
a dropped document, Orrantia accused her of “trying to smash his fingers and
hit his face.” Id. at 98. Orrantia then removed Barron from her car, turned her
around, and twisted her left arm while handcuffing her, hurting her. Barron’s
husband was handcuffed, too. Barron was escorted inside and separated from
her children. A CBP supervisor released Barron. She later filed a complaint
against Orrantia.
In response to the government’s motion to introduce these four incidents,
Orrantia argued that none of the incidents fit into any of Rule 404(b)’s
permitted purposes and, in any event, that the evidence’s probative value was
substantially outweighed by a danger of unfair prejudice. See generally Fed. R.
Evid. 403, 404(b).
After a hearing, the district court partially granted the government’s
request. It permitted the government to introduce evidence of the Montoya and
Barron incidents under Rules 403 and 404(b), reasoning that they both were
relevant and showed Orrantia’s motive and intent. But the court agreed to give
the jury limiting instructions for both the Montoya and Barron incidents. The
5 The parties refer to this incident as the “W2” incident. We relabel it to help the unfamiliar reader. 9 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 10
court deferred ruling on the government’s request to admit the checkpoint
incident, because it hadn’t yet “heard the defendant’s theory of the case” and it
was “hard to rule on these things in a vacuum.” App. vol. II at 168. To that end,
it instructed the government to approach the bench before seeking to introduce
the checkpoint incident at trial. Finally, the court denied the government’s
request to admit evidence of the girlfriend incident.
B. Suppression Motion
At the same hearing, the government told the district court that the
Columbus POE’s director had seen a video of the Barron incident, but that the
video had been deleted under the agency’s retention policy before the
government filed its charges against Orrantia. Orrantia and his counsel then
claimed not to have known before the hearing that a video had ever existed.
Orrantia moved to suppress the Montoya and Barron incidents based on
spoliation. He argued that, by deleting the videos, the government had violated
his due process rights under Trombetta, 467 U.S. 479, and Youngblood, 488
U.S. 51.
The district court denied Orrantia’s request. It found no apparent
exculpatory value in the videos. It also concluded that Orrantia had not shown
that the government deleted the videos in bad faith, stating that “it appears the
video evidence was deleted as part of [CBP]’s policy of routinely deleting
videos after 90 days.” App. vol. II at 155.
10 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 11
C. Trial
The evidentiary disputes continued at trial. On direct examination,
Orrantia testified about the Montoya, Barron, and Granillo incidents. The
government argued that Orrantia had “put his character for truthfulness at
issue” by testifying. App. vol. V at 831. So, following the court’s earlier
direction, the government asked the court to permit it to introduce evidence of
the checkpoint incident. After some discussion, the court ruled that Rule 608
permitted the government to “inquire into specific instances of conduct that are
probative for truthfulness or untruthfulness.” Id. at 833. Here, that included
asking Orrantia about “his truthfulness when reporting the [checkpoint]
incident—whether he was extracted from the car or not; whether he said he
wasn’t extracted, and it turned out, later, he said he was extracted.” Id. The
court also assured the government that it could “cross-exam[ine] [Orrantia] on
anything that he talks about in direct.” Id. at 834.
During his direct examination, Orrantia said that he did not “intentionally
falsify anything” in his IOIL report on the Granillo incident. Id. at 876. Though
we’re unsure how it mattered, he testified that he had been “instructed to leave
[his] feelings out of the memorandum.” Id. Orrantia also testified that
“[g]overnment officials” had accused him of not telling the truth at the
checkpoint incident. Id. at 838.
From that, the government argued during a jury recess that Orrantia had
opened the door to more questioning about the checkpoint incident. It argued
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that Orrantia’s “using his badge inappropriately on a prior incident goes
directly toward the lack of mistake” for both charges, so it was admissible
under Rule 404(b). See id. at 882. Orrantia objected under Rules 403 and
404(b), asserting that the evidence proves only “that he used his badge
wrongly” and “doesn’t prove that he knew he was doing something wrong when
he pulled Mr. Granillo out.” Id. at 883. After a discussion, the court permitted
Orrantia to testify about whether he was disciplined for misusing his CBP
badge during the checkpoint incident but barred the government from eliciting
more details. The court permitted this evidence to impeach Orrantia’s testimony
that he was accused but not convicted of being dishonest, as well as under Rule
608 to examine his truthfulness.
Hearing this, the government also brought up another incident when
Orrantia’s employer had investigated him for lying: the girlfriend incident. The
government proposed introducing the incident’s disciplinary report and calling
Columbus Port of Entry Director Tony Hall to further impeach Orrantia’s
testimony that he had “been accused of dishonesty but that it was not
sustained.” Id. at 896. Though excluding the written incident report, the court—
both for impeachment and under Rule 608—permitted the government to call
Director Hall and to ask him about his “report that Mr. Orrantia was dishonest”
about this incident. Id. at 896. Director Hall testified that Orrantia had been
dishonest about the girlfriend incident because he claimed to have had
permission to have visitors, but he did not.
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The jury convicted Orrantia on both counts. The court sentenced him to
twenty months’ imprisonment. Orrantia timely appealed.
DISCUSSION
By our count, Orrantia makes six arguments on appeal. We consider just
one of them because Orrantia has either waived or withdrawn the rest. We
address, and reject, his suppression argument before turning to his other five
arguments.
I. Suppression Issues
A. Standard of Review
We review for clear error “a district court’s determination that the
government did not destroy potentially exculpatory evidence.” United States v.
Smith, 534 F.3d 1211, 1223–24 (10th Cir. 2008). Likewise, we review for clear
error a district court’s ruling “on whether the evidence bore apparent
exculpatory value.” Johnson v. City of Cheyenne, 99 F.4th 1206, 1228 (10th
Cir. 2024).
B. Analysis
Orrantia argues that the government violated his due process rights by
depriving him of exculpatory evidence when it destroyed a video of the Barron
incident. 6 He claims that, without an opportunity to watch the video, he could
6 Before oral argument, Orrantia moved for a partial remand so the district court could decide whether to admit an interview summary from Director Hall about his review of the Barron video. But Orrantia never (footnote continued) 13 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 14
not fairly counter the government’s evidence about the incident. 7 The
government responds that Orrantia has not shown that the video had apparent
exculpatory value and that, in any event, it deleted the videos not in bad faith,
but rather under its 90-day retention policy.
When the government no longer possesses disputed evidence, Trombetta
and Youngblood govern a defendant’s due process claim. Coones v. Bd. of Cnty.
Comm’rs, 166 F.4th 1, 17–18 (10th Cir. 2026). Under Trombetta, the
government violates a defendant’s due process rights when “(1) it loses or
destroys evidence whose exculpatory significance is apparent before the loss or
destruction; and (2) the defendant remains unable to obtain comparable
evidence by other reasonably available means.” Id. at 18 (citation modified);
accord Trombetta, 467 U.S. at 489. But if the evidence’s exculpatory value is
“indeterminate” so that the evidence is only “potentially useful,” then
Youngblood controls, meaning the defendant must show that the government
adequately explains what the document is, what it says, or why it wasn’t offered at trial. He also never explains how admitting this evidence would affect his appeal. So we deny his motion. 7 In the district court, Orrantia moved to suppress all the Rule 404(b) evidence because the government had destroyed videos of both the Montoya and Barron incidents. Though the record does not show that the Montoya incident was recorded, the government agreed that it was “logical to assume” that a video had existed but had been deleted. App. vol. I at 142 n.1. On appeal, Orrantia argues about only the Barron incident video, but our reasoning applies equally to both incidents. 14 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 15
acted in bad faith in destroying the evidence. Coones, 166 F.4th at 18; accord
Youngblood, 488 U.S. at 57–58.
The district court determined that the deleted videos lacked any apparent
exculpatory value because they depicted the Montoya and Barron incidents, not
the charged Granillo incident. The court also found that the government did not
act in bad faith by deleting the videos under CBP policies that allow the
deletion of videos after ninety days. Further, the video of the Barron incident
had been deleted for about five months by the time the government opened its
criminal investigation, showing that the government had not acted in bad faith.
We agree with the district court. To start, we conclude that Youngblood,
not Trombetta, governs Orrantia’s claims. Trombetta applies only when the
evidence’s exculpatory significance was “apparent before” destruction. 467
U.S. at 489; see also United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994).
Here, the Barron video’s exculpatory value is not apparent at all. We do not
know what the video shows. At best, it might help Orrantia attack or undermine
the inferences the jury could draw from the Barron incident. But the district
court admitted evidence of the Barron incident under Rule 404(b) to show only
Orrantia’s motive and intent for the Granillo incident. See generally Fed.
R. Evid. 404(b)(2). And the Barron incident was not the only evidence of
15 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 16
Orrantia’s motive and intent. So the exculpatory value for Orrantia’s
deprivation-of-rights charge is not apparent.
In fact, the Barron video’s exculpatory value falls short of the
exculpatory value of the evidence at issue in Youngblood itself. The evidence in
that case “could have been subjected to tests, the results of which might have
exonerated the defendant.” 488 U.S. at 57. But the video here is “potentially
useful evidence” only because Orrantia might have used it merely to attack a
piece of the Rule 404(b) evidence, not the Granillo incident itself. Id. at 58.
Thus, though the video “might conceivably have contributed to” Orrantia’s
defense, the “chances are extremely low” that it would have been exculpatory.
Trombetta, 467 U.S. at 489.
So under Youngblood, Orrantia must show that the government acted in
bad faith by destroying the Barron video. 488 U.S. at 58. This inquiry turns on
the government’s knowledge of the evidence’s exculpatory value at the time it
was lost or destroyed. Bohl, 25 F.3d at 911.
Orrantia argues that the government deleted the video even though it
knew or should have known “that the videos of the subsequent incidents were
important to [the government’s] investigation and also as exculpatory
evidence.” Op. Br. at 38. But he never explains why. After all, according to the
government, CBP did not begin to investigate Orrantia for the Granillo incident
until February 18, 2021, more than a year after the incident. And the
government did not consider prosecution until ten months after that. Orrantia
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gives no reason to doubt the district court’s finding that CBP deleted the videos
in accordance with its retention policy. And we’ve held that “the government
does not necessarily engage in bad faith conduct when the destruction of
evidence results from a standard procedure employed by the governmental
department or agency regarding the disposal of like evidence, at least when
there is adequate documentation of the destroyed evidence.” Bohl, 25 F.3d at
912–13. And Orrantia gives neither a reason why CBP should have kept this
video despite its policies, nor a reason to think CBP needed to keep
documentation of the destroyed video. Thus, we conclude that no due process
violation occurred under Trombetta or Youngblood.
II. Orrantia’s Other Arguments
Normally, we review decisions to admit or exclude evidence for abuse of
discretion. United States v. Harper, 118 F.4th 1288, 1295 (10th Cir. 2024). But
when an appellant fails to preserve an issue in district court and then fails to
make a plain-error argument on appeal, we deem the issue waived. United
States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).
In his briefs, Orrantia makes five other arguments. He withdrew one at
oral argument and waived the other four. We briefly address each.
A. Mens Rea Argument
First, Orrantia waived his argument that the evidence was insufficient to
show that he knowingly falsified records. See generally 18 U.S.C. § 1519.
Orrantia never made that argument in the district court. There, he argued that 17 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 18
“nothing in the evidence so far has shown that he wrote anything false in that
report.” App. vol. IV at 686. Thus, his argument was that the information
wasn’t false, not that it wasn’t knowingly false. See id. But “[w]hen a defendant
challenges in district court the sufficiency of the evidence on specific grounds,
all grounds not specified in the motion are waived.” United States v. Murphy,
100 F.4th 1184, 1193 (10th Cir. 2024) (citation modified). Orrantia has also
failed to argue plain error on appeal. And when “an appellant fails to preserve
an issue and also fails to make a plain-error argument on appeal, we ordinarily
deem the issue waived (rather than merely forfeited) and decline to review the
issue at all—for plain error or otherwise.” Leffler, 942 F.3d at 1196. So
Orrantia waived this argument.
B. As-Applied Constitutionality
Second, Orrantia waived his argument that 18 U.S.C. § 1519 is
unconstitutional as applied to him. He did not make this argument to the district
court. Nor has he argued plain error on appeal. So Orrantia has waived this
argument. See Leffler, 942 F.3d 1196 (“[W]hen a party raises a forfeited
argument on appeal, we will reverse only if the appellant can satisfy our
rigorous plain-error test.”).
C. Jury Unanimity
Third, Orrantia argues in his reply brief that the district court erred by
instructing the jury that it did not need to decide unanimously which statement
18 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 19
was false. But Orrantia withdrew this argument at oral argument so we don’t
consider it.
D. Rule 404(b) Evidence
Fourth, Orrantia argues that the district court abused its discretion by
admitting evidence of the four “other bad acts” incidents under Rule 404(b)
because, under Rule 403, the evidence was “more prejudicial tha[n]
probative.” 8 Op. Br. at 41; see generally Fed. R. Evid. 403. He argues that the
probative value of the four incidents together was substantially outweighed by
the danger of prejudice. The government counters that Orrantia waived his
argument by not objecting on this basis at trial and by not arguing for plain-
error review on appeal.
For one, Orrantia misstates the record. The district court did not admit
evidence of the four prior incidents—the checkpoint incident, the girlfriend
incident, and the Montoya and Barron incidents—under Rule 404(b). Though
the government initially sought to admit all four under Rule 404(b), the district
court admitted only the Montoya and Barron incidents and read a limiting
instruction for each to the jury. Before trial, the court prohibited the
8 Orrantia also argues that the district court allowed the government to use his encounter with Granillo as a fifth “bad act[]” incident under Rule 404(b). We see no record support for this. In fact, Orrantia later argues that only four events were admitted under Rule 404(b). So we consider only the four discussed at trial. 19 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 20
government from introducing evidence of the checkpoint incident or the
girlfriend incident.
But as the trial developed, the district court permitted the government to
admit limited evidence about the checkpoint incident, including that Orrantia
had flashed his badge and had been reported to his superiors. As for the
girlfriend incident, as the trial developed, the district court permitted the
government to ask Director Hall about the girlfriend incident under Rule 608
and “as impeachment because [Orrantia testified on direct examination that] he
had been investigated for dishonesty and that . . . he was not convicted of
anything.” App. vol. V at 1003. The court explained that Director Hall could
impeach Orrantia’s testimony by suggesting that it was not true that Orrantia
had not been “convicted of dishonesty.” App. vol. V at 1003.
Thus, Orrantia has waived this argument. Because the district court
permitted only a few questions about the checkpoint and girlfriend incidents as
impeachment and under Rule 608, the district court was never presented with
an argument that all four incidents together violated Rule 403. During Hall’s
testimony, Orrantia raised only a hearsay objection. Simply put, the district
court never considered the argument because the alleged errors Orrantia raises
on appeal never happened.
Still, Orrantia contends that the district court did not “conduct a [Rule]
403 analysis” when it admitted the checkpoint and girlfriend incidents. Op. Br.
at 41.
20 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 21
But that’s wrong. The court did analyze the girlfriend and checkpoint
incidents under Rule 403. Before closing arguments, Orrantia objected under
Rule 403 to Director Hall’s testimony about the checkpoint and girlfriend
incidents, arguing “that, under [Rule] 403, that it outweighs [Rule] 608,” which
we take to mean that the danger of unfair prejudice outweighed any relevance
the evidence had for Orrantia’s character for truthfulness. App. vol. V at 1004.
The court responded: “I find that the evidence concerning truthfulness and
impeachment is relevant given the defendant testified and he made a statement
that he had been investigated for dishonesty but was not ‘convicted.’” Id. The
court invoked Rule 403 and held that the evidence was “probative and that [its]
probative value is not substantially outweighed by any unfair prejudice,
especially since we’re giving a limiting instruction, and that it won’t . . .
mislead the jury or confuse any of the issues.” Id. at 1005. And on appeal,
Orrantia does not argue that the court’s Rule 403 ruling about Director Hall’s
testimony was incorrect.
Even if we were to construe Orrantia’s argument on appeal to concern
only the evidence the district court did admit under Rule 404(b)—rather than
all evidence the government tried to introduce under Rule 404(b), some of
which was eventually admitted under Rule 608 or to impeach Orrantia—his
argument would fail. He does not explain how admitting limited testimony
about the Montoya and Barron incidents created a risk of unfair prejudice, let
alone how it substantially outweighed their probative value. After all, “all
21 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 22
evidence poses a risk of prejudicing the defendant; Rule 403 focuses only on
unfair prejudice.” United States v. Johnson, 157 F.4th 1309, 1320 (10th Cir.
2025). So because “[i]t is well-settled that arguments inadequately briefed in
the opening brief are waived,” Orrantia has waived this argument too. United
States v. Duque-Ramirez, 161 F.4th 1237, 1252 (10th Cir. 2025) (citation
omitted).
Ordinarily, we would consider under a plain-error standard Orrantia’s
argument that all the evidence the district court admitted to impeach Orrantia,
under Rule 404(b) and under Rule 608, collectively violated Rule 403. But he
never makes a plain-error argument. So Orrantia waived this argument, too. See
Leffler, 942 F.3d at 1196.
E. Disciplinary Letter and Rule 608
Finally, Orrantia argues that the district court erred under Rule 608 by
admitting into evidence a disciplinary letter from Director Hall to Orrantia.
Rule 608 bars using extrinsic evidence to prove specific instances of a
witness’s conduct “to attack or support the witness’s character for
untruthfulness.” See Fed. R. Evid. 608(b). In response, the government argues
that Orrantia waived this argument by not objecting at trial and by not arguing
for plain-error review on appeal.
Again, Orrantia’s argument fails.
As before, he misstates the record. The district court did not admit the
disciplinary letter into evidence. 22 Appellate Case: 24-2132 Document: 71-1 Date Filed: 05/04/2026 Page: 23
That said, we understand Orrantia also to challenge the government’s
questioning Director Hall about the girlfriend incident, about which Director
Hall had sent Orrantia the (unadmitted) disciplinary letter. The district court
permitted the questioning both under Rule 608 and to impeach Orrantia.
Orrantia contends that putting Director Hall on the stand to impeach him was
“harmful” and violated Rule 608. See Op. Br. at 44–46.
But other than his earlier Rule 403 objection, Orrantia’s only objection to
Director Hall’s testimony at trial was on hearsay grounds. He did not object
that Rule 608 barred Director Hall’s testimony. Quite the contrary. Orrantia
stressed that his “objection is [Rule] 403; that, under 403, that it outweighs
[Rule] 608.” App. vol. V at 1004. And on appeal, he does not make a plain-
error argument about Rule 608. Nor does he explain how the district court
otherwise erred in admitting Director Hall’s testimony to impeach him. Thus,
he waived the argument, and we need not consider it further. See Leffler, 942
F.3d at 1196; Duque-Ramirez, 161 F.4th at 1252.
CONCLUSION
We deny Orrantia’s motion for a limited remand and affirm his
conviction.
Entered for the Court
Gregory A. Phillips Circuit Judge