PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ALEXANDER NICHOLAUS SWEET, 

a/k/a Alexander Nicholas Sweet, 

 Defendant - Appellant.

No. 23-5049

_________________________________

Appeal from the United States District Court 

for the Northern District of Oklahoma

(D.C. No. 4:21-CR-00340-JFH-1)

_________________________________

Leah D. Yaffe, Assistant Federal Public Defender (Virginia L. Grady, Federal 

Public Defender, with her on the briefs), Denver, Colorado, for DefendantAppellant.

Thomas E. Duncombe, Assistant United States Attorney (Clinton J. Johnson, 

United States Attorney, with him on the brief), Tulsa, Oklahoma, for PlaintiffAppellee.

_________________________________

Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges.

_________________________________

FEDERICO, Circuit Judge.

_________________________________

FILED

United States Court of 

Appeals

Tenth Circuit

July 9, 2024

Christopher M. Wolpert

Clerk of Court

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In September 2019, when he was 26 years old, Alexander Sweet initiated 

online communications with M.L.C., a 15-year-old girl. Following months of 

online chatting, M.L.C. shared sexually explicit photos with Sweet. They also 

discussed sexually explicit topics over the phone and engaged in sexual 

activities together over a video chatting platform, during which Sweet took 

screenshots. Eventually, they met in person in their shared hometown of Tulsa, 

Oklahoma, and began an intimate relationship. During their relationship, 

when M.L.C. was 16, they recorded several videos of themselves engaging in 

sexual intercourse. M.L.C. also ran away from home to be with Sweet. On her 

second runaway attempt, they tried to get married. While they were on the 

run, Sweet was found with M.L.C. and arrested by the FBI, with “Just 

Married” painted on the rear of his car.

Sweet was charged, tried, and convicted by a jury on seven counts: 

coercion and enticement of a minor (Count One), production of child 

pornography (Counts Two, Five, Six, and Seven), receipt and distribution of 

child pornography (Count Three), and possession of child pornography (Count 

Four). The district court sentenced him (with all sentences to run concurrently) 

to:

• Count One: life imprisonment;

• Counts Two, Five, Six, and Seven: 30 years for each;

• Count Three: 20 years; and

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• Count Four: 10 years.

Following the entry of judgment, Sweet directly and timely appeals. He 

raises four errors on appeal. First, he argues that the enticement1 charge in 

the superseding indictment was insufficient because it did not provide 

adequate notice of the facts underlying the charged crime. Second, he argues 

the district court violated Federal Rule of Evidence 605 by defining the term 

“grooming” in a jury instruction.2 Third, he claims the prosecution committed 

misconduct by making plainly improper comments during closing arguments

that prejudiced him. Finally, Sweet argues the cumulative error doctrine 

should be applied to grant him a new trial.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

M.L.C. had a tumultuous early childhood as both of her biological 

parents were absent from her life. In November 2006, when she was two years 

old, M.L.C. and her two siblings were discovered abandoned at a drug dealer’s 

1 We use “entice” as shorthand for the four verbs, i.e., persuade, induce, 

entice, and coerce, listed in 18 U.S.C. § 2422(b).

2 This argument has since been foreclosed by our opinion in United States 

v. Flechs, 98 F.4th 1235, 1250–54 (10th Cir. 2024). Sweet conceded this point 

in his response to the Government’s Federal Rule of Appellate Procedure 28(j) 

letter, which highlighted Flechs’ relevance to this appeal, and at oral 

argument, thus removing this issue from the appeal.

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house, where their biological mother had left them for a week. M.L.C.’s aunt

and her husband were approached by another family member and agreed to 

take the children in to prevent them from entering the foster care system. They 

adopted M.L.C. and her siblings, and, from then on, M.L.C. viewed them as her 

parents. 

In September 2019, when M.L.C. was 15 and Sweet was 26, Sweet 

initiated contact with M.L.C. by direct messaging her on Instagram to inform 

her that an ex-boyfriend had posted a nude image of her on the ex-boyfriend’s

Instagram. Sweet included a pixelated screenshot of the nude image with his 

initial message. Before this, M.L.C. and Sweet had never interacted. At the 

time, her Instagram biography indicated she was in the tenth grade. About a 

week or two later, M.L.C. became aware that Sweet was 26 years old.

In early 2020, when M.L.C. was 15 going on 16, she experienced the 

deaths of two close family members. First, her grandfather, who had been 

battling pancreatic cancer for several years, passed away in January 2020. And 

only a few weeks later, her adoptive father took his own life. Around December 

2019, Sweet reached out to M.L.C. with an uplifting message after coming 

across a public post on her Instagram about her ailing grandfather before his 

passing. From there, their online friendship quickly progressed, and they 

frequently discussed “animals, church, [and] family.” R.I at 721–22.

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A few months after they started communicating, M.L.C., now 16, began 

sending Sweet sexually explicit photos of herself after having developed a

romantic interest in him. Sweet indicated that he enjoyed receiving the images. 

The two also engaged in sexually explicit conversations over the phone and on 

Google Hangouts, a video chatting platform, where they masturbated 

simultaneously on camera. Sweet took screen captures of their video chats and 

informed M.L.C. that he had sent them to a friend of his. 

In September 2020, following a six-to-eight-month period of little to no 

contact, M.L.C. messaged Sweet to ask if he wanted to have a baby with her. 

This rekindled their relationship, leading to their first in-person meeting in 

mid-September 2020 in Tulsa, after which they began dating. 

In November 2020, M.L.C. ran away, causing her adoptive mother to 

notify the police and initiate a search. M.L.C. had been picked up by one of her 

cousins and joined a convoy that included her cousin’s vehicle and Sweet’s 

vehicle, meeting up with Sweet as they all traveled to Arkansas. Ultimately, 

M.L.C.’s adoptive mother retrieved her from Arkansas in December 2020. This 

is when the FBI received a tip that Sweet was in an intimate relationship with 

a 16-year-old female and that he was in possession of graphic sexual material

of her. 

Upon learning of M.L.C. and Sweet’s relationship, which she had 

previously been unaware of, M.L.C.’s adoptive mother grounded M.L.C., 

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confiscated her phone, and forbade her from contacting Sweet. Her adoptive 

mother also took steps to keep Sweet away from M.L.C., including warning 

Sweet to stay away from her and, in December 2020, attempting to obtain a 

protective order against him. Although some form of the protective order was 

pending, in place, or periodically extended until June 2021, it was not 

continuously enforceable because Sweet was never formally served. 

In March 2021, after a period of no contact, M.L.C., now 17, resumed her 

relationship with Sweet. In June 2021, M.L.C. ran away with Sweet again and 

was missing for over a month. On July 22, 2021, the FBI located M.L.C. and 

Sweet in Tulsa, Oklahoma, and took Sweet into custody. Notably, the car in 

which they were found had “Just Married” painted on the back window. Id. at 

654, 683. Inside the car, investigators found luggage, an Arkansas marriage 

license, a Polish citizen application, passport applications for both Sweet and 

M.L.C., over $1,000 in cash, photographs of the two of them, multiple USB 

drives, an external hard drive, and two books: “Open Source Intelligence 

Techniques” and “Extreme Privacy: How to Disappear.” Id. at 689. M.L.C.’s 

adoptive mother picked her up after being notified the FBI had arrested Sweet.

During their time on the lam, M.L.C. and Sweet attempted to get 

married. They first applied for a marriage license in Oklahoma, but M.L.C.’s 

adoptive mother, as her guardian, had it annulled because she had not given 

her consent, which was necessary because M.L.C. was a minor. After learning 

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that their Oklahoma marriage license application had been denied, M.L.C. and 

Sweet traveled to Arkansas and applied for another marriage license on July 

14, 2021. However, M.L.C.’s adoptive mother had not provided her legally 

required consent for this marriage either. 

M.L.C. testified at trial about the nature of her relationship with Sweet

throughout its duration, including the sexual activities they engaged in. She 

disclosed that Sweet occasionally supplied her with drugs and alcohol. 

Sometimes when she would mix drugs and alcohol, they would engage in 

sexual intercourse. On one occasion, M.L.C. passed out and woke up naked, 

wet, and with vomit in her hair. Sweet informed her that they had engaged in 

sexual activity while she was intoxicated. On a separate occasion, Sweet 

penetrated M.L.C.’s vagina with a firearm. Additionally, there was one 

instance when M.L.C. was babysitting a deaf and mute child from her church

who was under nine years old. While M.L.C. babysat this child, Sweet directed 

M.L.C. to inappropriately touch the child, which she did while Sweet 

masturbated. They also recorded videos of themselves having sexual 

intercourse at Sweet’s house using M.L.C.’s iPhone. M.L.C. set up the camera 

as directed by Sweet, who told her where to place it, instructed her to press 

record, and specified what acts to perform. 

During the FBI’s investigation into Sweet, they recovered on a Google 

Drive account belonging to Sweet a screenshot of a Google Hangout

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conversation, created on November 8, 2020, depicting M.L.C. nude and Sweet’s 

penis, along with a video, created in September 2020, depicting M.L.C.’s 

breasts, pubic area, and vagina. From an Apple iCloud account belonging to 

M.L.C., they also recovered three videos of M.L.C. and Sweet engaging in 

sexual intercourse that were created on June 22, 2021. 

While Sweet was in custody, M.L.C. continued communicating with him 

to maintain their romantic relationship. However, she ended the relationship 

and ceased communication with him in September 2021. Her adoptive mother

filed for the annulment of the Arkansas marriage in October 2021. 

II

On November 1, 2021, a grand jury in the Northern District of Oklahoma 

returned a superseding indictment charging Sweet with seven counts: coercion 

and enticement of a minor, under 18 U.S.C. § 2422(b) (Count One); production 

of child pornography, under 18 U.S.C. §§ 2251(a), (e) (Counts Two, Five, Six, 

And Seven); receipt and distribution of child pornography, under 18 U.S.C. 

§§ 2252(a)(2), (b)(1) (Count Three); and possession of child pornography, under 

18 U.S.C. §§ 2252(a)(4), (b)(2) (Count Four). Sweet entered a plea of not guilty.

One week before trial was to commence, the district court granted 

Sweet’s request to represent himself, with his appointed counsel available to 

assist in a hybrid capacity. The case then proceeded to a jury trial in April 

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2022. The Government presented testimony from six witnesses before resting: 

(1) M.L.C.’s adoptive mother, (2) FBI Agent Evan Held, (3) FBI Information 

Technology Specialist Robert Harden, (4) FBI Special Agent Thomas 

Oelschlager, (5) M.L.C., and (6) FBI Agent Brian Dean. The defense then 

presented testimony from two witnesses: (1) Sweet’s grandmother and (2) 

M.L.C. The jury found Sweet guilty on all seven counts.

Sweet received concurrent sentences of life for Count One; 30 years each 

on Counts Two, Five, Six, and Seven; 20 years on Count Three; and 10 years 

on Count Four. Sweet timely appeals.

III

We now address the merits of the issues remaining on appeal, namely

Sweet’s (1) challenge to the sufficiency of the indictment with respect to the 

enticement charge, (2) allegations of prosecutorial misconduct related to 

inappropriate closing arguments, and (3) request for a new trial based on 

cumulative error.

A

First, Sweet argues that his enticement conviction under 18 U.S.C. 

§ 2422(b) (Count One) should be vacated because the indictment lacked 

sufficient factual detail to put him on notice of the Government’s lewd 

molestation theory of guilt. Specifically, Sweet asserts he was not put on notice 

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that the Government would present evidence and argue one of the unlawful 

sexual activities he allegedly enticed M.L.C. to engage in involved the 

molestation of a child with disabilities.3 As a result of the surprise testimony, 

he maintains he was prejudiced in his ability to present a defense against this 

allegation.

1 

We begin with the statute at issue. Count One of the superseding 

indictment charged Sweet with violating or attempting to violate 18 U.S.C.

§ 2422(b), which holds liable any individual who,

using the mail or any facility or means of interstate or foreign 

commerce, . . . knowingly persuades, induces, entices, or coerces 

any individual who has not attained the age of 18 years, to engage 

in prostitution or any sexual activity for which any person can be 

charged with a criminal offense, or attempts to do so . . . .

18 U.S.C. § 2422(b). 

The relevant portion of the superseding indictment is as follows:

COUNT ONE

[18 U.S.C. § 2242(b)] 

From September 2019, to on or about July 26, 2021, in the 

Northern District of Oklahoma, the defendant, ALEXANDER 

NICHOLAUS SWEET, did use any facility of interstate and 

foreign commerce to knowingly persuade, induce, entice, and 

coerce, and attempt to persuade, induce, entice, and coerce, 

M.L.C., a minor who had not attained the age of 18 years and 

3 Such conduct may constitute lewd molestation under Oklahoma law. 

See 21 Okla. Stat. Ann. § 1123(5)(f). 

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whose identity is known to the Grand Jury, to engage in any sexual 

activity for which any person could be charged with an offense.

All in violation of Title 18, United States Code, Section 2422(b).

R.I at 72. Count One generally tracked the language of 18 U.S.C. § 2422(b). 

The only additional details it included were (1) an approximate two-year date 

range, (2) the federal district where the crime was committed, and (3) the 

identity of the victim. Notably, it did not include any facts about the underlying 

“sexual activity” that Sweet allegedly enticed or attempted to entice M.L.C. to 

engage in. The remaining counts pertained to the production, receipt, 

distribution, and possession of child pornography depicting M.L.C., as 

prohibited by 18 U.S.C. § 2251.

Prior to trial, the Government filed a trial brief and proposed jury 

instructions. The brief indicated that the criminal sexual activities supporting 

the enticement charge included the production of child pornography, the 

receipt and distribution of child pornography, and first-degree rape but did not 

mention lewd molestation. Additionally, the Government’s proposed jury 

instruction that defined criminal sexual activity for purposes of Section 2422(b) 

listed several offenses that could constitute unlawful sexual activity with their 

elements: (1) producing or attempting to produce child pornography under 

federal law, (2) receipt or distribution of child pornography under federal law, 

(3) procuring minors for child pornography under Oklahoma law, (4) soliciting 

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sexual contact with minors via technology under Oklahoma law, and (5) rape 

in the first degree under Oklahoma law. The instructions did not include lewd 

molestation as an offense that could constitute unlawful sexual activity.

Lastly, they also included an instruction on what constitutes an attempt and 

an instruction on the definition of grooming, providing that grooming can 

constitute a substantial step for purposes of attempt.

At trial, the topic of lewd molestation was first introduced during the 

Government’s direct examination of M.L.C. The questioning focused on an 

incident where M.L.C. was babysitting a deaf and mute child from her church 

while Sweet was present:

GOVERNMENT: What happened with that deaf child, M.L.C.?

M.L.C.: I touched him.

GOVERNMENT: Who told you to touch that child?

Id. at 748.

Sweet objected to the last question, prompting the district court to 

instruct the parties (including Sweet, acting as his own counsel) to approach 

the bench for a sidebar, during which the following colloquy took place:

COURT: [Government Counsel], where are you going with this?

GOVERNMENT: Your Honor, part and parcel is that he used the 

internet to entice her to engage in sexual behavior for which any 

person can be prosecuted. As such, he’s having her to perform a 

lewd molestation on a child. That is, in fact, something that 

someone could be prosecuted for.

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COURT: Is he charged with that?

GOVERNMENT: No, sir, he’s charged with everything within the 

boundaries of any sexual activity for which someone could be 

charged with a criminal offense.

COURT: Is there a notice of that?

GOVERNMENT: There is no notice of it, Your Honor. The way that 

it is pled is any sexual activity for which someone could be 

prosecuted. There’s no notice that’s required.

COURT: Is there any video of that?

GOVERNMENT: There’s no video of that, Your Honor.

SWEET: Was persuaded or enticed through the means of 

interstate commerce to affect this.

GOVERNMENT: Again, Your Honor, it’s part of the overall 

coercion and she doesn’t have to be the victim. It’s to entice any 

minor to engage in any sexual behavior for which any individual 

can be prosecuted. And what she’s described is him and her can 

both be prosecuted for that. He, in essence, directed a lewd 

molestation of a minor child.

Id. at 748–49. The district court overruled the objection and allowed M.L.C. to 

continue to testify, where she stated that Sweet directed her to touch the child 

while he masturbated. She complied because he commanded, “You do it, or I 

do it,” and she believed “it was better [her] than him.” Id. at 749–50.

In closing, the Government referenced the lewd molestation to describe 

how Count One had been established:

Finally, he groomed her to engage in sexual activity for which 

anyone can be charged with a crime. The judge gave you a list of 

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crimes. That’s at jury instruction pages 14 through 16. Remember 

this can involve crimes both under federal law and Oklahoma law.

The government only has to prove that the defendant groomed her 

to engage in one of those crimes. At least one. So the defendant got 

this kid to start his homemade child porn. That’s two. He got her 

to send her child porn of herself, which she told you he sent to his 

creepy, middle-aged friend. He groomed her to send him this child 

porn using social media. 

When words weren’t enough to get her to have sex with him, he 

uses violence by raping her with a gun. And, he even forces her to 

molest a 6- to 8-year-old little kid, a little deaf kid who can’t speak 

up because of his disability, while he gets to look on. That’s lewd 

molestation. That’s six different crimes.

Id. at 956.

The final jury instructions provided the definitions and elements of the 

same five federal and state offenses constituting unlawful sexual activity listed 

in the Government’s original proposed jury instructions. However, the 

instructions now included a definition of lewd molestation under Oklahoma 

law, previously absent from the Government’s proposed jury instructions. 

Finally, the instructions included an instruction on attempted enticement, 

explaining that the statute criminalizes the sexual grooming of minors 

regardless of any intent to consummate the illegal sexual activity and provided 

a definition of grooming. Ultimately, Sweet was found guilty of Count One.

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2

Before we proceed to the merits, we must address preservation and 

establish our standard of review. The parties vehemently dispute whether 

Sweet preserved his challenge to the specificity of the indictment.

Sweet contends that the issue is preserved for appeal because he objected 

to the testimony about the molestation during the trial. He points out that his 

objection led the district court to question the Government about the purpose 

of the testimony and whether he had received notice of their theory of 

enticement. Sweet maintains that once a district court rules on the merits of 

an issue, it is preserved for purposes of appeal, irrespective of whether the 

defendant adequately articulated the issue in the first instance.

The Government, in response, argues Sweet did not preserve this claim 

because he failed to file a motion pursuant to Federal Rule of Criminal 

Procedure 12(b)(3)(B)(iii) before trial to challenge the specificity of the 

indictment. The Federal Rules of Criminal Procedure stipulate that challenges 

to an indictment’s sufficiency “must be raised by pretrial motion if the basis for 

the motion is then reasonably available and the motion can be determined 

without a trial on the merits . . . .” Fed. R. Crim. P. 12(b)(3). However, a court 

may still consider an untimely motion if the defendant establishes “good cause”

for the late submission. Fed. R. Crim. P. 12(c)(3). By failing to either raise a 

timely Rule 12(b)(3) claim or show good cause to excuse the failure, the 

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Government asserts that Sweet has not preserved the issue. Additionally, the 

Government contends that Sweet did not file a motion for a bill of particulars 

under Federal Rule of Criminal Procedure 7(f), which they argue could have 

clarified their case theory and potentially mitigated any surprise at trial.

Sweet maintains his objection was timely under Rule 12(b)(3) because it was 

not until the Government elicited testimony on its lewd molestation theory of 

enticement that “the basis for the motion” became “reasonably available.” See

Fed. R. Crim. P. 12(b)(3).

We agree that Sweet did not raise the issue before trial in a pretrial 

motion nor explicitly object to the line of questioning on the grounds of 

indictment sufficiency. However, we conclude that the district court sua sponte 

raised lack of notice and addressed the issue of sufficiency such that we can 

review it de novo. “[W]hen the district court sua sponte raises and explicitly 

resolves an issue of law on the merits, the appellant may challenge that ruling 

on appeal on the ground addressed by the district court even if he failed to raise 

the issue in district court.” United States v. Hernandez-Rodriguez, 352 F.3d 

1325, 1328 (10th Cir. 2003). “In such a case, review on appeal is not for ‘plain 

error,’ but is subject to the same standard of appellate review that would be 

applicable if the appellant had properly raised the issue.” Id.

Moreover, we conclude that Sweet’s failure to file a bill of particulars 

does not indicate a waiver of his claim. Indeed, “it is a settled rule that a bill of 

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particulars cannot save an invalid indictment.” Russell v. United States, 369 

U.S. 749, 770 (1962).

Accordingly, “[w]e review the sufficiency of [the] indictment de novo.”

United States v. Edwards, 782 F.3d 554, 562 (10th Cir. 2015) (quoting United 

States v. Gama–Bastidas, 222 F.3d 779, 785 (10th Cir. 2000)). “[I]nadequacy of 

an indictment requires reversal only if it prejudiced the defendant.” United 

States v. Mobley, 971 F.3d 1187, 1197 (10th Cir. 2020) (quoting United States 

v. Harrold, 796 F.2d 1275, 1278 (10th Cir. 1986)); accord Fed. R. Crim. P. 52(a).

3

The obligation to provide notice in an indictment originates from a 

defendant’s Sixth Amendment right to be informed of the nature and cause of 

the charge against them. U.S. Const. amend. VI (“In all criminal prosecutions, 

the accused shall enjoy the right . . . to be informed of the nature and cause of 

the accusation . . . .”); United States v. Prentiss, 206 F.3d 960, 964 (10th Cir. 

2000). And the inclusion of all elements in an indictment is mandated by the 

Fifth Amendment, which ensures that the grand jury has considered and found 

all elements to be present. U.S. Const. amend. V (“No person shall be held to 

answer for a capital, or otherwise infamous crime, unless on a presentment or 

indictment of a Grand Jury . . . .”); Prentiss, 206 F.3d at 964. While the 

Constitution necessitates certain fundamental requirements for indictments, 

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the specific pleading standards and procedural requirements for indictments 

are outlined in the Federal Rules of Criminal Procedure.

To understand today’s criminal pleading standards, one must examine 

their historical origins. Prior to the implementation of the Federal Rules of 

Criminal Procedure in 1946, criminal pleading standards were dictated by 

common law. 1 Barbara E. Bergman et al., Wharton’s Criminal Procedure § 5:1

(14th ed.). At common law, criminal pleading standards were notably intricate 

and demanding, requiring a detailed statement of both the facts and the legal 

theories underlying a charge. 5 Wayne R. LaFave et al., Criminal Procedure

§ 19.1(a) (4th ed.). This meant indictments were typically long, filled with 

technical jargon, and could be invalidated for minor errors in form.4 Id.

4 Take, for example, an indictment for first-degree murder committed on 

a federal reservation issued by a grand jury in federal court several years 

before the enactment of the Federal Rules of Criminal Procedure: 

In the District Court of the United States within and for the 

_______ Division of the District of ______ sitting at the City of 

______, State of _______, at the _______, 19____ term of said court.

The grand jurors of the United States in and for the District and 

Division aforesaid, duly empaneled, sworn, and charged, at the 

term aforesaid, by the court aforesaid, on their oaths, find, charge, 

and present that on or about the _______ day of _______, 19____, at 

and in the City of _______, in _______ County, State of ______, and 

upon land purchased and acquired by the United States of America 

for a United States Post Office and a United States Courthouse 

building, the real estate on which such building rests, being 

otherwise described as lots numbered ______, on _______ Street, all 

as disclosed by the recorded plat of the original town site of the 

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Moreover, defects in an indictment were not automatically waived if the 

defendant failed to object before trial. Id. In fact, many defects could still be 

contested post-conviction through a motion in arrest of judgment. Id.

City of _______, _______ County, State of _______, and the said real 

estate and building thereon being under the exclusive jurisdiction 

of the United States of America, the same having been purchased 

and acquired by the United States for such Post Office and 

Courthouse purposes by the consent of the Legislature of, and the 

laws of the State of _______ for the erection of such needful 

buildings of the United States, and such buildings and real estate 

being in the _______ Division of the District of _______, and within 

the jurisdiction of this court, one A.B. and one C.D. did then and 

there knowingly, willfully, unlawfully, purposely, deliberately, 

premeditatedly, feloniously, of their malice aforethought, and with 

the intent so to do, kill and murder X.Y., a human being, the said 

murder being perpetrated in the manner and form herein set forth 

by the said A.B. and C.D., then and there holding in their 

respective hands certain respective pistols, revolvers and small 

firearms, loaded with powder and leaden steel and metallic bullets, 

a more exact description of which firearms and bullets being to the 

grand jury unknown, and which said firearms so held respectively 

by the said defendants, A.B. and C.D., they, and each of them, 

fired, shot and discharged at, towards, against and into the body, 

abdomen, chest, and limbs of the said X.Y., thereby mortally 

wounding him, the said X.Y.; all of which the said A.B. and C.D. 

did with the willful, unlawful, deliberate, premeditated and 

felonious intent aforesaid, and with malice aforethought, as 

aforesaid, to kill and murder and take the life of him the said X.Y.; 

and that the said X.Y. from the effect of said bullets and the mortal 

wounds inflicted thereby did languish, and languishing did die on 

or about the ______ day of April, 19__; all contrary to the form of 

the statute in such case made and provided and against the peace 

and dignity of the United States of America.

Alexander Holtzoff, Reform of Federal Criminal Procedure, 3 F.R.D. 445, 448–

49 (1944) (internal quotation marks omitted).

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Consequently, courts reversed convictions otherwise substantiated by evidence 

“simply because indictments were inartfully drawn, awkwardly worded, or 

failed to include evidentiary detail.” Id. Indeed, in our circuit, we declared: “If 

it may be said that there are two schools of judicial thought in regard to the 

indefiniteness of indictments, we of the Tenth circuit are committed to the 

more stringent rule . . . .” White v. United States, 67 F.2d 71, 78 (10th Cir. 

1933); id. at 72, 78–79 (collecting cases and dismissing indictment charging 

the defendant with concealing property of a bankrupt corporation of which he 

was president due to the lack of specificity regarding the exact property alleged 

to have been concealed). Such a stringent pleading standard was motivated by 

several considerations, including as a check on the severity of penalties in early 

American history, when most crimes were capital offenses. Wharton’s Criminal 

Procedure § 5:1.

The introduction of Rule 7(c) marked a significant shift towards 

simplifying criminal indictments. By requiring “a plain, concise, and definite 

written statement of the essential facts constituting the offense charged,” Rule 

7(c) moved away from the lengthy and technical common law pleading 

standard. Fed. R. Crim. P. 7(c) (1946) (using the same language as the current 

rule). This more relaxed approach is exemplified by the form indictments5

5 These forms have since been abrogated. Fed. R. Crim. P. 7(c) 1944

advisory committee’s note.

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accompanied by the Federal Rules of Criminal Procedure when adopted, 

designed to illustrate the requirements of Rule 7(c). See Fed. R. Crim. P. 7(c) 

1944 advisory committee’s note (noting that “[t]his rule introduces a simple 

form of indictment”); Fed. R. Crim. P. 58 (1946). For example, the form 

indictment for first-degree murder under 18 U.S.C. § 1111 read as follows: “On 

or about the ______ day of ______, 19___, in the _______ District of _______, and 

on lands acquired for the use of the United States and under the exclusive 

jurisdiction of the United States, John Doe with premeditation shot and 

murdered John Roe.” Fed. R. Crim. P. 58, Appendix of Forms, Form 2 (1946).

The Supreme Court has only reaffirmed the more lenient criminal 

pleading standard. “[A]n indictment is sufficient if it, first, contains the 

elements of the offense charged and fairly informs a defendant of the charge 

against which he must defend, and, second, enables him to plead an acquittal 

or conviction in bar of future prosecutions for the same offense.” Hamling v. 

United States, 418 U.S. 87, 117 (1974). “It is generally sufficient that an 

indictment set forth the offense in the words of the statute itself . . . .” Id. 

Following the Supreme Court, our court has also recognized the more 

lenient pleading standard that followed the enactment of Rule 7: “Therefore, 

where the indictment quotes the language of a statute and includes the date, 

place, and nature of illegal activity, it need not go further and allege in detail 

the factual proof that will be relied upon to support the charges.” United States 

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v. Powell, 767 F.3d 1026, 1030 (10th Cir. 2014) (quoting United States v. 

Redcorn, 528 F.3d 727, 733 (10th Cir. 2008)).

More specificity is required, however, when a statute’s text does not itself 

“fully, directly, and expressly, without any uncertainty or ambiguity, set forth 

all the elements necessary to constitute the offence intended to be punished.”

Hamling, 418 U.S. at 117 (quoting United States v. Carll, 105 U.S. 611, 612

(1882)). In those circumstances, the language of the statute “must be 

accompanied with such a statement of the facts and circumstances as will 

inform the accused of the specific offence, coming under the general description 

[of the statute], with which [the defendant] is charged.” Id. at 117–18 (quoting 

United States v. Hess, 124 U.S. 483, 487 (1888)).

“Most [circuits courts] that have addressed [the issue of factual 

sufficiency] appear to approve the practice of tracking the statute as long as 

the words used expressly set out all of the elements necessary to constitute the 

offense.” United States v. Kay, 359 F.3d 738, 756 (5th Cir. 2004) (collecting 

cases). “The cases in which an indictment that parrots the statute is held to be 

insufficient turn on a determination that the factual information that is not

alleged in the indictment goes to the very core of criminality under the statute.”

Id. at 756–57.

“The Supreme Court took this approach in Russell v. United States, in 

which it found indictments defective because the allegations under 2 U.S.C. 

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§ 192, which prohibits witnesses before congressional committees from 

‘refus[ing] to answer any question pertinent to the question under inquiry,’

failed to identify the ‘question under inquiry.’” Id. at 757 (quoting Russell, 369 

U.S. at 752 n.2). “The Court ruled that the ‘core of criminality’ under the 

statute was the pertinency to the subject under inquiry of the question a 

witness refused to answer.” Id. (quoting Russell, 369 U.S. at 764). “The Court 

stated: ‘Where guilt depends so crucially upon such a specific identification of 

fact, our cases have uniformly held that an indictment must do more than 

simply repeat the language of the criminal statute.’” Id. (quoting Russell, 369 

U.S. at 771). “The Court concluded that the indictments failed this test 

because, even though they did list the questions that the defendants had 

refused to answer, they failed totally to specify the topic under inquiry, which 

was the key to the legality or illegality of the defendants’ acts.” Id. (quoting 

Russell, 369 U.S. at 765–68). “In short, the defendants faced trial with the 

‘chief issue undefined.’” Id. (quoting Russell, 369 U.S. at 766).

Lastly, for the defendant to be prejudiced, they must establish that they 

lacked “notice of the crime of which [they] stood accused . . . .” Edwards, 782 

F.3d at 562 (quoting Gama–Bastidas, 222 F.3d at 786).

4

We next examine whether the mere repetition of the unlawful “sexual 

activity” element was constitutionally sufficient to provide Sweet with 

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adequate factual notice of the Government’s lewd molestation theory of 

liability. Compare 18 U.S.C. § 2422(b) (“to engage in . . . any sexual activity for 

which any person can be charged with a criminal offense”) with Superseding 

Indictment, R.I at 72 (“to engage in any sexual activity for which any person 

could be charged with an offense”). This issue is one of first impression for our 

circuit, and we observe that no circuit court has held that an indictment under 

18 U.S.C. § 2422(b) is required to outline the specific unlawful sexual activity

at issue or reference the statute that criminalizes such behavior.

To start, the parties identify only two instances where our court has 

deemed an indictment insufficient on its face. The first, decided in 1946, did 

not refer to the newly enacted Rule 7 and found the charge against a defendant 

who failed to perform his duties under a selective service statute insufficiently 

specific because it did not provide any detail as to what duties (or how many of 

them) the defendant failed to perform. Lowenburg v. United States, 156 F.2d 

22, 22–24 (10th Cir. 1946). The second case, from 1973, did analyze Rule 7 and 

reversed convictions for mail fraud because the indictment set forth “little more 

than the statutory language,” with only bald references to a “scheme and 

artifice to defraud” that did not provide “any fair indication of the nature or 

character” of the fraudulent scheme. United States v. Curtis, 506 F.2d 985, 

989–92 (10th Cir. 1974). However, neither of these cases convinces us that our 

precedent requires reversal here.

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Considering the more relaxed criminal pleading requirements of modern 

criminal procedure, we hold the Government was not required to list in the 

indictment every unlawful “sexual activity” to be proven at trial when charging 

a violation of 18 U.S.C. § 2422(b). The core of criminality for an 18 U.S.C. 

§ 2422(b) offense is “not the performance of the sexual acts themselves” but 

rather “persuasion and the attempt to persuade.” United States v. Isabella, 918 

F.3d 816, 831 (10th Cir. 2019) (quoting United States v. Faust, 795 F.3d 1243, 

1249 (10th Cir. 2015)). This is further evidenced by the fact that Sweet was 

also charged with attempted enticement, which does not require any unlawful 

sexual activity to actually occur. When, as here, there are many instances of 

unlawful sexual activity that a defendant is on notice of, see United States v. 

Lopez, 4 F.4th 706, 721 (9th Cir. 2021) (“The breadth of Section 2422(b)’s 

language is intentional . . . .”), some of which were also included as separate 

counts in the superseding indictment, it suffices to merely cite “the language 

of a statute and . . . the date, place, and nature of illegal activity,” Powell, 767 

F.3d at 1030. To require more would return us to the stringent common law 

pleading standards of another era, which were decisively abandoned with the 

enactment of the Federal Rules of Criminal Procedure.

In addition, Sweet fails to establish prejudice. Despite Sweet’s surprise 

when M.L.C. testified about the lewd molestation and the Government’s 

concession at trial that no notice of this accusation had been provided to 

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Sweet,6 the jury was not required to unanimously agree on a specific theory of 

unlawful sexual activity. United States v. Powell, 226 F.3d 1181, 1196 (10th 

Cir. 2000) (“Elements . . . must be found unanimously by the jury. On the other 

hand, the jury need not agree unanimously on the means by which an element 

is proven.” (citation omitted)). Rather, they simply needed to agree that the 

element of unlawful sexual activity had been satisfied. See, e.g., United States 

v. Jockisch, 857 F.3d 1122, 1126–33 (11th Cir. 2017) (holding that the jury need 

not unanimously agree on the specific unlawful sexual activity the defendant 

was attempting to entice a minor to engage in under 18 U.S.C § 2422(b), 

provided there is unanimous agreement that the activity would violate at least 

one applicable statute).

Sufficient evidence was presented at trial to sustain this element based 

on the Government’s multiple theories of liability. This includes the other six 

counts of the superseding indictment relating to the production, receipt, 

distribution, and possession of child pornography that depicted M.L.C., as 

prohibited by 18 U.S.C. § 2251. The Government detailed these additional 

counts in its pretrial brief and proposed jury instructions, and they were 

supported by digital evidence presented at trial, culminating in Sweet’s 

conviction beyond a reasonable doubt. Further, the Government’s theory of 

6 Also, neither the record nor the parties mention whether this 

accusation was presented to the grand jury.

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unlawful sexual activity based on a forcible rape involving a firearm was

corroborated by M.L.C.’s testimony. Contrary to Sweet’s assertions, lewd 

molestation was not the only means that could satisfy the unlawful sexual 

activity element. The plain language of 18 U.S.C. § 2422(b), as clarified by 18 

U.S.C. § 2427, includes the production of child pornography. 18 U.S.C. § 2427

(“In this chapter, the term ‘sexual activity for which any person can be charged 

with a criminal offense’ does not require interpersonal physical contact, and 

includes the production of child pornography, as defined in section 2256(8).”).

Lastly, defense counsel argued in closing that the lewd molestation 

theory of enticement was the weakest means asserted by the Government. 

Indeed, the alleged act of lewd molestation lacked the use of any facility of 

interstate commerce, as M.L.C. testified this conduct occurred in person 

without the use of interstate communications or items. Therefore, Sweet 

cannot meet his burden to show prejudice because it is almost certain the jury 

did not rely solely on the lewd molestation theory as the means to satisfy this 

element of the crime. 

In conclusion, Sweet fails to establish the superseding indictment was 

facially insufficient as to Count One.

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B

Next, Sweet contends we should order a new trial on all counts because 

the Government committed misconduct by making improper comments during 

closing arguments. He classifies the Government’s remarks into two 

categories: (1) those condemning him for exercising his Sixth Amendment 

rights under the United States Constitution and (2) those that misrepresent 

the evidence and attack his character. We address each category of comments

in turn.

1

“Prosecutorial misconduct violates a defendant’s due process rights if it 

infects a trial with unfairness and denies the defendant the right to a fair trial.”

United States v. Currie, 911 F.3d 1047, 1055 (10th Cir. 2018). “Prosecutorial 

misconduct can cause constitutional error in two ways.” Id. at 1055 n.6. “First, 

it can prejudice a specific constitutional right, amounting to a denial of the 

right.” Id. “Second, ‘absent infringement of a specific constitutional right, a 

prosecutor’s misconduct may in some instances render a . . . trial so 

fundamentally unfair as to deny [a defendant] due process.’” Id. (quoting 

Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018)). Sweet asserts both 

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types of errors occurred here: the former with the first category of comments, 

and the latter with the second category.

Improper comments made during closing arguments may constitute such 

misconduct. United States v. Kepler, 74 F.4th 1292, 1315 (10th Cir. 2023).

Although “the [g]overnment is entitled to a reasonable amount of latitude in 

drawing inferences from the evidence during closing arguments,” this latitude 

is not limitless.7 Id. at 1316 (quoting United States v. Hammers, 942 F.3d 1001, 

1016 (10th Cir. 2019)).

Neither Sweet himself nor his counsel lodged objections to the 

Government’s comments at trial, so “we review for plain error.” United States 

v. Anaya, 727 F.3d 1043, 1053 (10th Cir. 2013). “Under plain error review, 

reversal is warranted only when [1] the prosecutor’s statement is plainly 

improper and [2] the defendant demonstrates that the improper statement 

affected his or her substantial rights.” United States v. Shamo, 36 F.4th 1067, 

1082 (10th Cir. 2022) (quoting United States v. Christy, 916 F.3d 814, 826–27 

7 The government cannot, for example, (1) comment on a defendant’s 

failure to take the stand, (2) refer to matters not in evidence, (3) encourage the 

jury to let sympathy for the victim influence its decision, (4) vouch for the 

credibility of a government witness, (5) give its personal views on the case, (6) 

distort the record by misstating evidence, (7) misstate the law, (8) make 

derisive comments about opposing counsel in front of the jury, (9) appeal to the 

jury’s passion and prejudice, (10) imply a jury has a civic duty to convict, or 

(11) otherwise invite the jury to base its decision on irrelevant considerations. 

United States v. Christy, 916 F.3d 814, 824–26 (10th Cir. 2019) (collecting 

cases); United States v. Kepler, 74 F.4th 1292, 1316 (10th Cir. 2023).

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(10th Cir. 2019)). If these conditions are satisfied, we may exercise our 

discretion to correct the error, provided it “seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” United States v. Dazey, 

403 F.3d 1147, 1174 (10th Cir. 2005).

“To be plain, an error must be ‘clear’ or ‘obvious,’ meaning it is contrary 

to well-settled law.” Currie, 911 F.3d at 1057 (quoting United States v. Taylor, 

514 F.3d 1092, 1100 (10th Cir. 2008)). “We ordinarily consider an error ‘clear 

or obvious’ ‘only when the Supreme Court or our court has addressed the 

issue.’” United States v. Herrera, 51 F.4th 1226, 1248 (10th Cir. 2022) (quoting 

United States v. Leal, 32 F.4th 888, 897–98 (10th Cir. 2022)). An error affects 

substantial rights if “there is a reasonable probability that, but for the error 

claimed, the result of the proceeding would have been different.” United States 

v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) 

(quoting United States v. Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 

2008)).

2

Sweet contends that the first category of remarks included accusations 

from the Government during its rebuttal argument that he victimized M.L.C. 

by cross-examining her. These remarks, he argues, unjustly criticized him for

exercising his Sixth Amendment rights to represent himself and confront the 

witnesses against him. Recall that during trial, Sweet’s defense was conducted 

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in a hybrid capacity with both his appointed counsel and Sweet himself 

defending the case. Sweet personally conducted the cross-examination of 

M.L.C. when she appeared as a government witness and her direct 

examination when she was called as a defense witness. M.L.C. was the only 

witness who Sweet personally examined. Appointed counsel first chaired the 

defense during both sides’ closing arguments; he made objections to the 

Government’s closing and delivered Sweet’s closing argument.

We now turn to the relevant comments made in closing arguments. For 

context, Sweet’s appointed counsel in closing stated:

The testimony from M.L.C. was that she has an addiction to

pornography. Isn’t it possible that she just wanted to create some 

pornography? Okay.

And I’m sure the United States is going to get up here and say, oh, 

[Defense Counsel] is a terrible person, he’s victim blaming. Well, 

you should never be afraid to speak the truth. The truth is, she 

said she has an addiction to pornography. When Mr. Sweet met 

her, she was already broadcasting pornography into the ether. It 

happened while he was dating her. She continued to broadcast the 

images.

R.I at 970–71.

In rebuttal, the Government remarked:

[The defense] chose to cross-examine the victim in this case and 

further victimize her. [Defense Counsel] says that, now, I’m sure 

the government is going to say that I’m victim blaming. No, 

[Defense Counsel], you didn’t have to do that. Your client during 

his cross-examination did an ample job of blaming a 15-year-old 

girl at the time, 16 and 17, still troubled with absolutely zero 

chance other than her own wits, which she seems to be performing 

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marvelously under, you did just a perfect good job of blaming her 

for everything.

Id. at 977 (emphasis added).

To understand the potential impropriety of the Government’s comments, 

it is essential to consider a criminal defendant’s rights. Two bedrock 

constitutional guarantees enshrined by the Sixth Amendment include a

criminal defendant’s right to (1) represent themselves, Faretta v. California, 

422 U.S. 806, 818, 836 (1975), and (2) face and cross-examine all witnesses 

testifying against them, Coy v. Iowa, 487 U.S. 1012, 1016–17 (1988). Although 

Sweet does not cite binding precedent specifically addressing similar 

comments, he references the general principle that “[w]hen a defendant 

exercises constitutional . . . rights in the course of criminal proceedings, the 

government may not punish [them] for such exercise without violating due 

process guaranteed by the federal Constitution.” United States v. Raymer, 941 

F.2d 1031, 1040 (10th Cir. 1991). This principle makes clear that just as the 

government cannot “comment[] on a defendant’s failure to take the stand,” as 

is their right under the Fifth Amendment, Christy, 916 F.3d at 824 (citing 

Griffin v. California, 380 U.S. 609, 611–12 (1965)), it is likewise inappropriate 

to suggest that a defendant exercising their Sixth Amendment right to crossexamine a government witness is somehow nefarious, see Whittenburg v. 

Werner Enters. Inc., 561 F.3d 1122, 1130 (10th Cir. 2009) (“To imply or argue 

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that the mere act of defending oneself . . . is reprehensible serves no proper 

purpose, and for time out of mind it has been the basis for appellate courts 

ordering new trials.”). Generally, such comments lack any rational connection 

to assisting the jury in evaluating the merits of the case. And they put the 

defendant in a precarious position of either pursuing their rights and facing 

government criticism or relinquishing their rights to avoid it.

“When read in isolation, the prosecutor’s statement could potentially 

support [Sweet’s] position.” United States v. Fleming, 667 F.3d 1098, 1105 

(10th Cir. 2011). This is because to state or suggest that a criminal defendant 

is re-victimizing a witness by personally cross-examining that witness 

improperly suggests to the jury that they should penalize the defendant for 

exercising such rights. However, “when evaluating whether a statement is 

improper, we must view the statement in context.” Id. In context, the 

Government’s statement was in response to defense counsel’s suggestion that 

the Government would accuse Sweet of victim blaming. “We have repeatedly 

recognized that considerable latitude is given [to] the prosecutor in closing 

argument in replying to an argument raised by defense counsel’s closing 

statement.” Id. (quoting United States v. Janus Indus., 48 F.3d 1548, 1558 

(10th Cir. 1995)). By raising the topic of victim blaming and her potential 

culpability in the charged offenses, defense counsel invited the prosecutor to 

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fairly comment about it during rebuttal argument. Thus, the Government’s 

comments here were not plainly improper.

3

The next group of comments at issue are those Sweet describes as

attacking his character, painting him out to be someone with a propensity for, 

and previous history of, abusing children. Specifically, the Government relayed 

to the jury that:

The defendant knowingly received and distributed that child porn 

of the victim. Whenever the defendant doesn’t have physical access 

to kids, he keeps digital trophies of his crimes. It’s not enough for 

him to rape a kid, he has to personalize it. He even sends them to 

his friends – his friend like they’re a Hallmark greeting card.

R.I at 959. Sweet asserts that this was no stray remark and that the 

Government advanced the idea that Sweet was a predator who behaved in the 

way that predators as a class behave, using information about M.L.C.’s 

background to make that point. The Government further said to the jury 

during closing:

Predators choose the weakest of the herd. Predators choose people 

whose parents are drug addicts, whose parents abandon them, 

whose parents are, to the very day they get involved with someone 

like this, more than happy to sign off and say, hey, go get married, 

we understand, we’ve got meth addictions, we’re in prison.

Predators choose people that are alienated. Predators choose 

people who don’t have a lot of friends. Predators choose people who 

are very confined. Predators choose people who are unhappy in 

their home. And then they pounce, which is exactly what happened 

here.

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Id. at 975–76. Sweet takes issue with these comments because he proclaims

there was no evidence presented at trial to indicate that he had previously 

committed any crimes against or possessed photos of other minors other than 

M.L.C. The Government disputes this position.

To be sure, a prosecutor’s statement that distorts the record by 

misstating the evidence or referring to matters not in evidence is improper. 

Christy, 916 F.3d at 824–25. However, Sweet fails to point us to a Supreme 

Court or Tenth Circuit case that has “found a due process violation in similar 

circumstances.” Herrera, 51 F.4th at 1248. As such, these comments were not 

plainly improper.

4

Not only does Sweet fail to establish any error or that any arguments 

were plainly improper, he also cannot establish that the prosecutor’s comments 

affected his substantial rights. An error affects a defendant’s substantial rights 

if “there is a reasonable probability that, but for the error claimed, the result 

of the proceeding would have been different.” Bustamante-Conchas, 850 F.3d 

at 1138 (quoting Algarate-Valencia, 550 F.3d at 1242). We “must weigh any 

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improper comments against the strength of the evidence against the 

defendant.” Christy, 916 F.3d at 824, 830. 

It is unlikely that the Government’s closing arguments influenced the 

trial’s outcome because it presented overwhelming evidence to prove Sweet’s 

guilt. M.L.C. testified at length as to her relationship with Sweet, including 

the various sexual activities they engaged in, and the Government presented 

digital evidence of the child pornography to corroborate M.L.C.’s testimony. As 

such, reversal is not warranted because of prosecutorial misconduct.

C

Lastly, Sweet argues the cumulative prejudice from the above-alleged 

errors requires reversal on at least Count One. “A cumulative-error analysis 

merely aggregates all the errors that individually have been found to be 

harmless, and therefore not reversible, and it analyzes whether their 

cumulative effect on the outcome of the trial is such that collectively they can 

no longer be determined to be harmless.” United States v. Lopez-Medina, 596 

F.3d 716, 740–41 (10th Cir. 2010) (quoting Hooper v. Mullin, 314 F.3d 1162, 

1178 (10th Cir. 2002)). “Where, as here, a defendant ‘has failed to establish the 

existence of multiple non-reversible errors (i.e., harmless errors and plain 

errors failing to necessitate reversal)[,] . . . [the defendant] cannot benefit from 

the cumulative error doctrine.’” Id. at 741 (quoting United States v. Barrett, 

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496 F.3d 1079, 1121 (10th Cir. 2007)). Consequently, because Sweet fails to 

establish any error, there is no need to aggregate or apply the cumulative error

doctrine. 

AFFIRMED. 

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