United States v. Redfoot

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 31, 2025
• Docket: 23-4148
• Status: Unpublished

Opinion

Appellate Case: 23-4148 Document: 101-1 Date Filed: 03/31/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 31, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-4148 (D.C. No. 2:18-CR-00527-CW-1) BRANDON REDFOOT, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________

In 2018, Defendant Brandon Redfoot fatally shot Julio Rodriguez. On

August 18, 2023, a jury found Redfoot guilty of the following counts: Count

One murder in the second degree while within Indian Country, in violation

of 18 U.S.C. §§ 1111(a) and 1153(a); Count Two assault with a dangerous

weapon while within Indian Country, in violation of 18 U.S.C. §§ 113(a)(3)

and 1153(a); Count Three being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1); and Counts Four and Five discharge of a

* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 23-4148 Document: 101-1 Date Filed: 03/31/2025 Page: 2

firearm during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A). He was sentenced to forty-five years of imprisonment.

On appeal, Redfoot argues that the district court made two plainly

erroneous evidentiary rulings, which both individually and cumulatively

require us to reverse his convictions on all counts except for Count Three.

For Count Three, Redfoot argues that his felon in possession of a firearm

conviction under 18 U.S.C. § 922(g)(1) violates the Second Amendment to

the United States Constitution.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

we affirm.

I. BACKGROUND

A. Facts and Evidence

On June 7, 2018, Redfoot, Rachel Cornpeach, and three of their

friends drove a white pickup truck to “the Merc,” a grocery store in Randlett,

Utah. At the same time, Tesha Gardner (Redfoot’s ex-girlfriend and the

mother of his son) was at the Merc with four friends of hers, one of whom

was Rodriguez. Gardner’s friends spotted Redfoot and his group and struck

up a conversation. At some point, Rodriguez spoke to Redfoot and insulted

Redfoot’s son. After that, the two men got into a fistfight. The fight was

broken up soon after it started, and both parties left in their respective

trucks heading in opposite directions.

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At this point, there are important discrepancies depending on who is

telling the story. According to Cornpeach, she was driving the white truck,

with Redfoot and three others inside. While she was driving, Redfoot pulled

out his gun (a KelTec Sub2000 semi-automatic carbine with a folding stock)

and told her to drive to Gardner’s house. This gun had been purchased by

Cornpeach, but it was used regularly by Redfoot. After Cornpeach refused

to drive to Gardner’s house, Redfoot threatened to shoot her and then fired

a round from the gun into the truck’s floor, which made her relent.

Cornpeach then made a U-turn and began heading east towards Gardner’s

house. An impact hole was later found in the floor of the white truck, along

with a bullet fragment.

In contrast, according to Redfoot and one of the other passengers, he

never fired his gun inside the truck. Redfoot testified at trial that he was

the one driving, and that he turned the truck around because he wanted to

check on his son, who was in the custody of Gardner’s mother but sometimes

visited Gardner’s house.

Cornpeach, Redfoot, and the three other passengers soon pulled up in

front of Gardner’s house. Rodriguez and another passenger who had been

at the Merc were in Gardner’s driveway in a red truck. Redfoot testified

that he stepped out of the white truck, yelled at the people in the red truck,

and then was suddenly fired upon. He then retrieved his gun from the white

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truck and returned fire. Redfoot stated that he could feel multiple bullets

going by him, so he emptied all the rounds of ammunition in the gun’s

magazine, before fleeing in the white truck.

But several witnesses testified that they saw Redfoot, and only

Redfoot, fire at both Gardner’s house and the red truck parked in the

driveway, before he then fled the scene. Rodriguez was hit in the back of his

head by a ricocheting bullet from Redfoot’s gun. He was later pronounced

dead at the hospital. Law enforcement found twenty-nine expended rounds

from Redfoot’s gun at the scene, with bullet impact holes in both Gardner’s

house and the red truck parked in the driveway. Only one round from

another gun was found, an old, spent round that would have been fired well

before this incident occurred.

Shortly after the shooting, Redfoot was arrested at a friend’s house.

After being arrested, he repeatedly made inculpatory statements, such as

“it is all on me” and “I am the one that said go.” R. III at 1118, 1212.

B. Procedural History

Redfoot was charged by indictment with the five counts described

above. Cornpeach was also charged with two counts of accessory after the

fact in violation of 18 U.S.C. § 3, but she entered into a cooperation

agreement with the Government.

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A jury trial was held in August 2023. At trial, the Government sought

to prove that Redfoot had intentionally fired upon Rodriguez and killed him

with malice aforethought. Redfoot argued that he had acted in self-defense

during the shooting. Redfoot admitted to possessing the gun at issue in

violation of 18 U.S.C. § 922(g)(1), even as he contested all the other charges.

Two evidentiary rulings made at trial are relevant to this appeal. The

first occurred during defense counsel’s cross-examination of Cornpeach.

Defense counsel asked, “[w]hen you had said that he had told you to turn

around and go in that direction following the red truck, he told you he was

concerned about his son Freddie, didn’t he?” Id. at 389–90. The Government

objected that this question called for hearsay. Defense counsel then argued

that the question should come in under the rule of completeness, Federal

Rule of Evidence 106, but the Government responded that this rule pertains

only to documents. The district court sustained the objection, and defense

counsel moved on to another question. Redfoot later testified that he had

wanted to go to Gardner’s house out of concern for his son, but that he did

not say so aloud while in the truck.

The second evidentiary ruling, or more accurately the absence of a

ruling, was the district court’s decision to allow testimony about a previous

incident involving Redfoot and his gun. On direct examination, the

Government asked Gardner whether she had ever seen Redfoot with a gun,

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and she said yes. When the Government asked her when she had seen

Redfoot with a gun, she responded, “[w]hen he had pointed the gun at me.”

Id. at 414. She then described a gun identical to the one used in the

shooting. When cross-examining Redfoot as to the ownership of the gun, the

Government asked him: “[w]hat did you tell [Gardner] when you put [the

gun] to her head?” Id. at 937. Redfoot responded, “I didn’t tell her nothing.

Nothing like that transpired.” Id. At no point did defense counsel raise any

objection to these questions.

Ultimately, the jury convicted Redfoot on all counts. The district court

then imposed a forty-five-year term of imprisonment, followed by a five-year

term of supervised release. This timely appeal followed.

II. DISCUSSION

A. Cornpeach’s Testimony: Hearsay Objection

Redfoot argues that the district court erred when it prevented

Cornpeach from testifying on cross-examination that Redfoot said he was

concerned about his son. On appeal, Redfoot says that his statement as a

declarant fell under Federal Rule of Evidence 803(3), which creates a

hearsay exception for “[a] statement of the declarant’s then-existing state

of mind (such as motive, intent, or plan) or emotional, sensory, or physical

condition (such as mental feeling, pain, or bodily health), but not including

a statement of memory or belief to prove the fact remembered or believed[.]”

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Where “a timely and proper objection” was not made before the

district court, or where “the specific ground for reversal on an evidentiary

ruling” on appeal does not match that argued at trial, plain error review

applies. United States v. Mendoza-Salgado, 964 F.2d 993, 1008 (10th Cir.

1992) (citations omitted). Because defense counsel attempted to bring this

question in under Federal Rule of Evidence 106 at trial, we review the

district court’s ruling for plain error.

We grant relief under plain error review “only when four

requirements are met: (1) an error occurred; (2) the error is plain or obvious;

(3) the error affects substantial rights; and (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Lacy, 904 F.3d 889, 893 (10th Cir. 2018) (citation omitted). “[T]he

plain-error exception to the contemporaneous-objection rule is to be used

sparingly, solely in those circumstances in which a miscarriage of justice

would otherwise result.” Id. (quoting United States v. Young, 470 U.S. 1, 15

(1985)).

We decide this appeal at the third prong of plain error review.

Redfoot’s plain error challenge fails because even assuming, without

deciding, that Redfoot could demonstrate a plain error, any alleged error

did not affect his substantial rights. “An error affects substantial rights only

when it is prejudicial, meaning that there is a reasonable probability that,

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but for the error claimed, the result of the proceeding would have been

different.” United States v. Harry, 816 F.3d 1268, 1283 (10th Cir. 2016)

(internal citation and quotation marks omitted). And Redfoot “bears the

burden to convince this [c]ourt, based on the record on appeal, that the error

affected his substantial rights.” United States v. Gonzalez-Huerta, 403 F.3d

727, 733 (10th Cir. 2005).

Redfoot has not met this burden. Any potential benefit to Redfoot from

Cornpeach’s hearsay testimony was sharply undermined by other evidence.

Later in the trial, Redfoot testified that he wanted to go to Gardner’s house

out of concern for his son. But Redfoot stated on direct examination that he

did not say this out loud. As such, under Redfoot’s telling of events,

Cornpeach necessarily would have stated that she did not hear Redfoot say

he was concerned about his son. Alternatively, Cornpeach might have

simply stated that she did not remember or was unaware of what Redfoot

said, as she did in response to several other questions on cross examination.

In any event, the alleged error concerns only a minor point about

Redfoot’s motive for going to Gardner’s house. The crux of the case was

whether Redfoot fired his gun in self-defense once at the house, not why he

went there. As such, the alleged error, if any, had a negligible impact on the

outcome of Redfoot’s trial, and Redfoot has not met his burden to show that

the district court’s decision affected his substantial rights.

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B. Gardner’s Testimony

Redfoot also argues that the district court erred by not preventing the

Government from eliciting testimony that Redfoot had pointed his gun at

Gardner a week before the shooting. No objection to this evidence was raised

at trial, so we are again reviewing for plain error. See Mendoza-Salgado,

964 F.2d at 1008.

Redfoot argues on appeal that Gardner’s testimony should have been

excluded under Federal Rule of Evidence 403, which states that a district

court “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of” unfair prejudice. To assess whether evidence

was “properly admitted under Rule 403, we consider (1) whether the

evidence was relevant, (2) whether it had the potential to unfairly prejudice

the defendant, and (3) whether its probative value was substantially

outweighed by the danger of unfair prejudice.” United States v. Cerno, 529

F.3d 926, 933 (10th Cir. 2008). Redfoot argues that evidence of him pointing

a gun at Gardner was unfairly prejudicial because its probative value in

proving that he possessed the gun is outweighed by the fact that jurors

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would construe it as improper character evidence of a propensity for

violence.

We need not balance Redfoot’s Rule 403 claim because, again, we can

resolve this appeal at the third prong of plain error analysis.1 Gardner’s

testimony that Redfoot had previously pointed his gun at her did not

meaningfully undermine Redfoot’s self-defense argument. That argument

was based on Redfoot’s claim that he was fired on first when he arrived at

Gardner’s house. But there was no evidence of another shooter. Redfoot

fired twenty-nine rounds, and all the rounds found at the scene came from

his gun, except for one that was too old to have been fired recently. Witness

testimony, forensic evidence, and Redfoot’s own inculpatory statements

provided overwhelming evidence that he did not act in self-defense. In

comparison with that evidence, Gardner’s brief statement that Redfoot had

previously pointed a gun at her was beside the point even if the jury used it

1 Indeed, it is difficult to properly analyze any Rule 403 claim for plain

error. On appellate review, we grant trial courts “considerable discretion” in making Rule 403 decisions since they conduct the trial and can better balance the evidence at 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)). “We have declined to find plain error in the admission of evidence under Rule 403 even when we disagree with the court’s balancing.” 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)). This case does not present an occasion to make the extraordinary finding of plain error on Rule 403 grounds. 10 Appellate Case: 23-4148 Document: 101-1 Date Filed: 03/31/2025 Page: 11

to infer that Redfoot had a violent character. Given the weight of the

evidence, the alleged error did not affect Redfoot’s substantial rights.

C. Cumulative Error

Redfoot further argues that, even if each of these alleged errors does

not warrant reversal on its own, their cumulative impact affected his

substantial rights. In a cumulative error analysis, we aggregate all the

errors that individually have been found to not warrant reversal, and then

analyze whether their cumulative effect on the outcome of the trial is such

that they collectively warrant reversal. See United States v. Starks, 34 F.4th

1142, 1169 (10th Cir. 2022).

Here, the alleged errors are cumulatively harmless for much the same

reason that they are individually harmless. The key question for the jury

was whether Redfoot was acting in self-defense when he shot Rodriguez.

Neither of the alleged errors relate to the core issue of self-defense, so their

cumulative impact is no greater than their individual impact.

Ultimately, aside from his own testimony, there is little evidence that

Redfoot was acting in self-defense. In contrast, the Government presented

extensive evidence demonstrating that Redfoot was the first and only

shooter. Even if the jury had heard from Cornpeach that Redfoot was

concerned about his son and had not heard from Gardner that he had

previously pointed a gun at her, there is not “a reasonable probability that

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. . . the result of the proceeding would have been different.” Harry, 816 F.3d

at 1283 (citation omitted). Under these circumstances, we do not reverse for

cumulative error.

D. Second Amendment Claim

Finally, Redfoot argues for preservation purposes that his conviction

under 18 U.S.C. § 922(g)(1) must be vacated because it violates the Second

Amendment, citing New York State Rifle & Pistol Ass’n v. Bruen. 597 U.S.

1 (2022). This argument is now foreclosed by Tenth Circuit precedent, as we

recently reaffirmed that § 922(g)(1) remains good law. See Vincent v. Bondi,

127 F.4th 1263, 1265 (10th Cir. 2025). As such, we do not reverse his

conviction under Count Three.

III. CONCLUSION

Accordingly, we AFFIRM Redfoot’s convictions and sentence.

Entered for the Court

Richard E.N. Federico Circuit Judge