PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HENRI MICHELLE PIETTE, a/k/a Henri Michel Piette, a/k/a Henri Billy, a/k/a Dan Reed, a/k/a Billy Ira Sloop, Jr., a/k/a Michael Wayne Mansfield, a/k/a Christopher Allen McAnear, Defendant - Appellant. No. 20-7008

________________ _________________ Appeal from the United States District Court for the Eastern District of Oklahoma

(D.C. No. 6:17-CR-00079-RAW-1)

________________ _________________ Alan S. Mouritsen, Parsons Behle & Latim er, Salt Lake City, Utah, for DefendantAppellant. Linda A. Epperley, Assistant United States Attorney (Christopher J. Wilson, Acting United States Attorney, and Sarah McAmis, Assistant United States Attorney, with her on the brief), Office of the United States A ttorney, Muskogee, Oklahoma, for PlaintiffAppellee.

________________ _________________ Before McHUGH , EBEL , and EID , Circuit Judges.

________________ _________________ EID , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### August 18, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 12 A jury in the Eastern District of Oklahoma convicted Henri Piette of kidnapping and traveling with intent to enga ge in sexual relations with a juvenile. The district court sentenced Piette to li fe imprisonment on the former conviction and 360 months’ imprisonment on the latter. He seeks to have his convictions overturned or his sentence reversed. We hold that the district court did not err by admitting evidence of Piette’s uncharged acts of mole station, and that statutes extending the unexpired charging period for the traveli ng-with-intent charge did not have an impermissible retroactive effect. However, we conclude that the di strict court plainly erred by misallocating the burden of proof once Piette disputed the timing of the kidnapping by arguing that the victim, Rosa lynn McGinnis, consented. If she had consented, the kidnapping would have been over, and the statute of limitations would have begun to run, poten tially rendering the indictmentuntimely. We reverse Piette’s kidnapping conviction because ther e is a difference be tween what happened here—Piette failing to prove by a preponder ance of the evidence that McGinnis ever consented—and what the Constitution requi res: the government proving beyond a reasonable doubt that she ne ver consented at a time that would cause a statute of limitations problem. Finally, we reject Piette’s argument th at he was denied his Sixth Amendment right to self-repr esentation at sentencing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, a nd remand for further proceedings. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 23 I.

a. The following account is based on trial testimony. Rosa lynn McGinnis was born in 1984. In the early 1990s, McGinnis lived in Springfield, Missouri, with her parents, Gayla and Michael, a nd several siblings. One day, while playing at the park, the McGinnis children met Henri Piette’s ch ildren. The kids became close, bonding over sleepovers, movies, meals, and time spent on Piette’s trampoline. Piette first molested McGinnis at one of these sleepovers. She was nine. At first, she thought it was a “bad dream,” but soon she re alized that it was far too detailed to have been a dr eam. R. Vol. II at 188. Ga yla had not believed McGinnis when she was previously molested by he r half-brother, so McGinnis did not tell anyone about what Piette did. McGinnis was not Piette’s only victim in Springfield. One of Piette’s sons, Tobias Piette, testified that he saw Piette molest seve ral other children while they lived there. One day, he walked in on Pi ette giving an eight-year -old girl a shower and touching her vagina. Another time, he saw Piette giving a different young girl a driving lesson; he groped her butt while she sat on his lap. As the McGinnis and Piette children got to know each other better, so did Gayla McGinnis and Henri Piette. They di scussed Gayla’s interest in religion and the Church of Jesus Christ of Latter-day Saints. Piette gradua lly drove Gayla away from her husband Michael, who did not share her interest in th ese topics and was often away from home. Soon, Michael left Gayla and the children entirely. “Almost Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 34 immediately,” McGinnis’s brother testified, it was as if Piette “had stepped into [Michael’s] shoes.” Id. at 489. But Piette ran a very diffe rent kind of home. He re ad Bible passages to the children constantly. He encouraged Gayla to physically discipline the children. He started separating the children and impose d something “almost like a hierarchy system.” Id. He beat Gayla “countless” times. Id. at 634. He also b eat the children. After one of Piette’s beati ngs drew the attention of au thorities, Piette convinced Gayla that she would be blamed for it, and they took the family on the road. They moved on an almost daily ba sis, passing through Arizona , Oregon, Utah, California, Montana, Missouri, Texas, Ok lahoma, and Guatemala. Piet te forced the others to beg for money. They lived in a tent. Pi ette gave McGinnis beer and molested her daily. Piette, Gayla, and the children settled in Wagoner, Oklahoma. There, Piette escalated his physical, sexual, and psychologi cal abuse. He hit the children with twoby-fours when they said “h anged” instead of “hung.” Id. at 212. He punched Gayla in the face. He raped McGinnis. She wa s eleven. Finally, Gayla escaped to her mother’s home in Independence, Missouri, a nd took her children with her. A few weeks later, Piette went to I ndependence and took them back. When they returned to Wagoner, Piet te addressed his “s in” with McGinnis by marrying her in a secret ceremony o fficiated by Piette ’s son Tobias. Id. at 219. Piette also married Gayla around this time . The sexual abuse of McGinnis continued unabated. Piette performed oral sex on McGinnis and penetrated her vagina daily Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 45 with his penis and fingers. She was twelve . After a run-in with Child Protective Services, McGinnis and her family landed in a domestic violence shelter in Poteau, Oklahoma, away from Piette. McGinnis br iefly attended middle school in Poteau. On January 31, 1997, McGinnis went to school in Poteau and did not come home. Piette visited her on the playground th at day. He told Mc Ginnis that he loved her and that he would reunite their family . He told her to look for “signs.” Id. at 234. Later that day, McGinnis noticed a sombrero and a poncho inside a school building; she recognized them from a trip to Mexico with Piette. She ran outside the school and saw Tobias Piette in a truck; he took her to Tulsa, wh ere they met up with Piette and Piette’s other children. When McGinnis asked about the rest of her family, Piette told her there was not enough time to get her brothers and that Gayla “wasn’t coming back.” Id. at 240. He introduced McGinnis to his children as “their new mother.” Id. McGinnis was horrified. McGinnis did not attend school after the si xth grade. Piette moved McGinnis and his children around the country severa l times, taking advantage of benefits provided by the Church of Jesus Christ of Latter-day Saints, a nd avoiding detection by using false names and cha nging McGinnis’s appearance. 1 Everyone was drilled on what to say if people st arted asking questions. Piette forced McGinnis to write letters to relatives, the media, and law enforcement, saying th at she ran away from

1 Eventually, McGinnis le gally changed her name to Stephanie Reed, one of the aliases Piette fo rced her to adopt. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 56 her “crazy” mother and “no good” family. Id. at 263. If she mi sspelled a word she was hit. In reality, Gayla d iligently searched for McGinnis. Piette continued subjecting McGinnis to c onstant physical and sexual violence. He raped her “[t]hree times a day, maybe more.” Id. at 249. Shortly before McGinnis turned thirteen, while living in Oklahoma City, she became pregnant for the first time. She had a miscarriage and Pi ette told her to flus h it down the toilet. Piette started giving McGinnis crack cocaine and beat her more frequently. Then, while living in Idaho, McGinnis became pregnant again. This time, she was fourteen. Piette moved the family to Mexico to avoi d questions about her pregnancy, but when Piette brought McGinnis to th e hospital the doctors said it was too soon to deliver the baby. Piette disagreed. He used a pocke tknife to deliver the baby on the floor of a van. At the time, they were “living in an abandoned trailer that was on a piece of land that had no electricity, no water, had hol es in the floors and was infested with bed bugs.” Id. at 276. Over the next sixteen years, Piette moved the family around Mexico and Guatemala, rarely spending more than a few months in any one location, though they would take occasional trips back to the United States . McGinnis delivered eight more of Piette’s children. These children did not go to school, socialize, or even learn how to read. They were isolated from others. Piette tried to prevent them from learning where they were living. The childre n were also neglected. One of the boys had a single pair of shorts that he kept on his body with a rope. One of the girls almost drowned in a bucket of water. Pi ette hung her upside down to shake the water Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 67 out and she recovered. The family’s lifest yle consisted of “begging on the streets and living from place to place.” Id. at 340. Sometimes, McGinnis sold ice cream and other foods. Other times, Piette would ma ke racist comments to provoke the locals into fighting McGinnis for money. Whatever the source, all money went to Piette. He spent it on drugs and alcohol, which he also abused. Years passed, and Piette’s brutality con tinued. McGinnis testified that there was never a time that Piette was not beating her. He would sometimes tie McGinnis to a bed or chain her to a pole for days. She testified that she has scars all over her face, has had both her arms br oken, has been stabbed and shot, suffers chronic pain, and needed throat surgery to be able to speak. Piette would also terrorize their children, hitting them with two-by-fours, ba ts, rocks, pans, pick axes, glass bottles, fruit, and “[a]nything th at was in reach.” Id. at 119. He would beat the children to the point of unconsciousness and then tell them that he loved them. “[I]t just surprised me how close I can get to dyi ng without dying,” McGinnis’s firstborn testified. Id. at 127. Piette also started molest ing the children McGinnis de livered. Ma.P., Piette’s first daughter with McGinnis, testified at trial that when she was around five years old, Piette asked her to stand against the wall, pull down her underwear, and show him her vagina. Although McGinnis did not know exactly what was happening with her daughter, she was suspicious. Piette complimented and touched Ma.P.’s vagina more frequently as she got older. He ma de Ma.P. dance naked and gave her alcohol and drugs while he molested her. He put his mouth on her chest and her vagina. He Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 78 made her touch and put her mouth on his pe nis, and he ejaculated in her mouth. When she was seven or eight years old, Piette started putting objects in Ma.P.’s vagina, such as frozen hot dogs and drum sticks. He would punish her by cutting up chilis and rubbing chili juice on his fingers, then placing them in her vagina. Piette also started putting his penis in her vagina. When she re sisted, Piette told her he would either molest her or one of her sist ers. One time, Ma.P. saw Piette molesting her younger sister, A.P., who was crying; Ma.P. was forced to put her mouth on Piette’s penis so he would leave A.P. alone. A.P. also testified about Piette’s sexual abuse. According to A.P., Piette started touching her vagina when she wa s around seven years old and continued to molest her every few days. She often woke up to Piette touching her vagina. Piette forced A.P. to masturbate his penis and ejac ulated in her mouth. One time, A.P. and her younger brother saw Piette performing oral sex on Ma .P. A.P. and Ma.P. never talked about their shared experien ce of sexual trauma and abuse. Sometimes, McGinnis would travel back in to the United States by herself to beg for money. Other times, Piette was in carcerated, and McGinn is helped him get out of jail. McGinnis also purchased se veral guns and carried a gun at times, although she testified it belonged to Piette. But Piette told McGinnis that he would kill the children, and then her, if she ever left him. He al so told her that, if she got the police involved, nobo dy would ever believe her. That he would kill her. That her family did not want her back . That “he was the only one that would ever care for” her. Id. at 298. And that she “was to do exactly what he told [he r] to do or else.” Id. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 89 On direct examination, McGinnis defined “or else” as Piette killing her and her children. Id. McGinnis further testified that she did not take advantage of any potential opportunity to harm Piette because she “knew that if [she] didn’t kill him with the first shot or knife stab, if there was any way that he would survive, he would kill [her] and every one of [her] children.” Id. at 435–36. Even had she managed to kill him, she testified that she believed she would be imprisoned for life and her children all sold into slavery. On the other hand, Piette introduced testimony from his father that he and McGinnis appear ed to have a “very happy family.” Id. at 985. Notwithstanding the fear th at Piette’s threats insti lled in her, McGinnis made several attempts to escape. Once, alone w ith her children in an Arizona motel room, she called a women’s crisis shel ter, but Piette returned befo re the shelter could assist her. Another time, McGinnis took her childre n to Piette’s son Mikey’s house. Piette quickly arrived, dragged McGi nnis out by her hair, and beat her. One of Piette’s children with McGinnis managed to escape a nd, although a knife fight ensued, Piette did not kill him. In 2016, McGinnis saved up $150 over th e course of several months—hiding it by a hill to avoid Piette’s detection—and wa ited until Piette, who had been in and out of rehab, was passed out drun k. Then she took her childre n, found a taxi, and hid in a nearby town. McGinnis and eight of her children—one of her sons had already escaped—made their way to an American Consulate. Th ey returned to the United States and settled in Kansas City, Missouri. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 910 b. In 2017, Piette was indicted in the Ea stern District of Ok lahoma and charged with kidnapping under 18 U.S.C. §§ 1201( a)(1) and 1201(g), and traveling with intent to engage in sexual relations with a juvenile under 18 U.S.C. § 2423(b). A jury found Piette guilty of both counts. Four lega l issues relevant to this appeal emerged in the proceedings before the district court. First, the government s ought to admit evidence th at Piette molested his daughters with McGinnis as well as an unr elated girl in Spri ngfield some years before meeting McGinnis (“the molestation evidence”). The government argued that the molestation evidence could be admitte d as res gestae—meaning inextricably intertwined with the charged conduct—and, alternatively, under either Federal Rule of Evidence 404(b), covering other acts evidence, or Rule 414, covering child molestation evidence. Piette opposed. At a pretrial conference, the district court ruled that the molestation ev idence came in (1) as res ge stae “because it goes to the issue of consent, and it is inextricably intertwined with the charged crimes”; (2) under Rule 404(b) because it went “to the issues of both motive and plan”; and (3) under Rule 414 as permis sible propensity evidence. Id. at 41–42. The district court then turned to whethe r the evidence was more prejudi cial than probative, saying only: “I still have to do a balancing test under [Federal Rule of Evidence] 403. And I believe that the probative value of the evidence is certainly not substantially outweighed by the prejudicial effect.” Id. at 42. The district court memorialized these evidentiary rulings in a brief order. In that or der, the court reiterated that the Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1011 molestation evidence could come in under Ru le 404(b) “at least [to] show motive and plan.” R. Vol. I at 321 (parentheses omitted). 2 The order did not elaborate upon the court’s Rule 403 analysis. Halfway through trial, facing repeated objections, the district court restated its conclusory Rule 403 finding. Second, Piette argued in pretrial briefi ng that the traveling-with-intent charge was untimely because any enactments purporti ng to extend the statute of limitations had an impermissible retroac tive effect. The district c ourt ruled that because the original statute of limita tions had not already expire d when Congre ss acted, the legislature validly extended a live ch arging period, rendering Piette’s 2017 indictment timely. The distri ct court thus endorsed “the th eory that such amendments may be applied retroactivel y to extend a filing period fo r charges that were still viable at the time of the amendment.” Id. at 151; cf. Hughes Aircra ft Co. v. United States ex rel. Schumer , 520 U.S. 939, 950 (1997) (“[E]xtending a statute of limitations after the pre-existing period of limitations has e xpired impermissibly revives a moribund cause of ac tion.”). Piette renewed hi s retroactivity argument in an oral motion for acquittal at the conclu sion of the government’s case-in-chief, which the district court denied.

2 At trial, the court gave a limiting inst ruction several times when it felt that Rule 404(b) evidence was being presented. Usually, the court told the jurors that they should consider the evid ence not just for motive and pl an, but also for intent and knowledge. Subsequently, preparation repl aced knowledge. Later, all five purposes were in play. By the end of the tria l, the court was communicating the limiting instruction only by alluding to its existence, leaving it unclear which Rule 404(b) purposes were being invoked. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1112 Third, the district court noted before trial that the government would likely try to prove that McGinnis’s “kidnapping c ontinued uninterrupted ” from 1997 through her 2016 escape. R. Vol. I at 147. That was because any “break” within that twentyyear span would start the kidnapping count ’s five-year statute of limitations. Id. If the statute of limitations e xpired before Piette’s 2017 i ndictment, the charge would not be timely. As a result, the court antic ipated sending a special interrogatory to the jury. At trial, the court did just that, denying a motion for acquittal on this basis and providing the jury the following instructions.
DURATION OF KIDNAPPING The government contends that th e kidnapping alleged in Count 1 extended from January 1 997 until July 28, 2016. Under the law, if the victim of a kidnapping is no longer held against her will, the kidnapping is over. As one of the defenses, [Piette] contends Rosalyn McGinnis was (if at all), at a date earlier than July 28 , 2016, no longer heldagainst her will. [Piette] must prove this conten tion by a preponderance of the evidence, which is defined as “more likely than not.” On the verdict form, only if you have found the defenda nt guilty as to Count 1, you will be asked to determ ine if Rosalyn McGinnis was no longer held against her will at an earlier date, and what that date was. This will aid the court in making a separate legal de termination in regard to this case. In determining if Rosalyn McGui nness [sic] was continually held against her will (physically and/or psychologically), yo u should consider all the testimony you ha ve heard in the case. Id. at 372. The verdict form refl ected these instruc tions. It told th e jury that, should it find Piette guilty of kidnapping, it must answer an additional yes/no question: “Do you find, by a preponderance of the eviden ce, that Rosalyn McGuinness [sic] was no longer held against her will on a da te earlier than July 28, 2016?” Id. at 388. If the answer was yes, jurors were asked to speci fy the date and/or the year. The jury Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1213 ultimately found Piette guilty of kidnapping and did not find, pursuant to the district court’s instructions, that Pi ette demonstrated by a prepo nderance of the evidence that McGinnis was no longer held against her will prior to July 28, 20 16. Piette did not argue below that these jury instructions created a statute of limitations problem. Finally, Piette claims that he sought to represent hi mself in a letter to the district court in November 2019, and then ag ain at the start of se ntencing in February 2020. In his letter, Piette asked the cour t to “terminate the services” of attorney Warren Gotcher and investigator Eric Cu llen because of “Absolute ‘In[e]ffective Assist[a]nce of Counsel.’” Id. at 399 (emphasis omitted). On February 20, 2020, before proceeding to sentencing, the distri ct court addressed Piette’s pending motion to withdraw his trial counsel . Gotcher stated that he had no objection to Piette’s motion. Gotcher next double-checked with Pi ette that Piette stil l wanted Gotcher to withdraw. Piette said “Yes.” R. Vol. II at 1107. Gotcher indi cated that he had an “obligation to stay through sentencing” and assist Piette in fili ng a notice of appeal; he asked the district court to delay granting the motion until those tasks were complete. Id. Agreeing, the district court gr anted the motion “to be in effect subsequent to this sentencing hearing.” Id. at 1108. This exchange followed: The Court: I think it is important that trial counsel, who has been with the case since—well, not day one because this is Mr. Piette’s second appointed attorney, . . . be here through the senten cing hearing itself. So the Court directs that a nother attorney will be appointed by the Federal Public Defender’s office to see Mr. Piette’s case th rough appeal and that—and that is, unless, Mr. Piette wa nts to hire an attorney on his own. The Defendant: Are you saying— Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1314 The Court: No, no, you tell Mr. Gotcher. (OFF THE RECORD DISCUSSION BETWEEN MR. GOTCHER AND THE DEFENDANT) Mr. Gotcher: We are ready to go on, Your Honor. The Court: All right. Is th at acceptable, Mr. Piette? The Defendant: Yes, sir, yes. Id. at 1108–09. The district court entered hundreds of pa ges of Piette’s ha ndwritten letters as an exhibit, noting that they contextualized Piette’s request to withdraw Gotcher. As the court put it: “At some points in time Mr. Piette expressed vast disagreement with counsel and at other times Mr . Piette thought Mr. Gotche r was the best thing since sliced bread.” Id. at 1109. The distri ct court decided to “er r on the side of giving Mr. Piette new counsel for appeal purposes.” Id. Sentencing ensued. The district court ruled on Gotcher’s obj ections to the Presentence Report and Gotcher argued in support of his written motion for a downward variance, which the court denied. After hearing from the governme nt, the court invited Piette to speak. He did so for “nearly thirty tran script pages.” Aple. Br. at 46; see also R. Vol. II at 1119–46. He maintained his innocence, tout ed a work ethic so strong that employers have called him a “human backhoe,” explai ned that badgers are “meaner than hell,” and bragged about how popular his family’s dairy products were in Mexico. R. Vol. II at 1141, 1144. The court sentenced Piet te to life imprisonment on the kidnapping Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1415 conviction and 360 months’ im prisonment on the traveling-with-intent conviction. Piette appealed.
II. We begin with whether the molestati on evidence was properly admitted under any of the three theories acc epted by the district court: res gestae, Rule 404(b), and Rule 414. The term “molestation evidence,” as used in Piette’s appeal, encompasses testimony that Piette sexually abused two of the daughters he had with McGinnis and an unrelated girl in Springfie ld before he met McGinnis. See Aplt. Br. at 14. Piette’s daughters, known as Ma.P. and A.P. at trial, testified at length about their own abuse, while Piette’s son To bias testified briefly about the Springfield girl. On appeal, Piette argues that both his c onvictions should be reversed because the district court improperly admitted this highly prejudicial evidence. We disagr ee. The intrinsic molestation evidence about Piette’s daughter s was admissible as re s gestae, while the extrinsic molestation eviden ce concerning the Springfield girl, even if admitted in error, likely had no effect on the verdict. We do not reach Rule 404(b) or Rule 414. Although the district court’s conclusory , one-sentence Rule 403 prejudice inquiry was deficient, our review of the case suggests that it was not an abuse of discretion to admit the molestation ev idence under Rule 403. See United States v. LazcanoVillalobos , 175 F.3d 838, 846 (10th Cir. 1999) (“We have consistently upheld implicit Rule 403 determinations when th e determinations are supported by the record.”). Piette’s convictions withstand his evidentiary arguments. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1516 a. Piette appeals the molestation eviden ce’s admission on all th ree grounds relied upon by the district court, contending that his “trial was infect ed by repulsive otheract molestation evidence that created an unacceptabl e risk that the jury would convict based on emotion instead of di spassionate decision-making.” Aplt. Br. at 25. Piette stresses that he mounted a “targeted” and “technical buteffective” de fense to each charge at trial, only disputing the consen t element of the kidnapping charge and the intent element of the trave ling-with-intent charge. Repl y Br. at 14. Because this significantly reduced the number of disputed facts at trial, Pi ette suggests the molestation evidence “added no probative va lue to the government ’s case,” Aplt. Br. at 4, and merely inflamed the jury. On res gestae, Piette argues that the molestation evidence was irrelevant to proving his intent or McGinnis’s lack of consent, thus falling short of the “inextricably intertwined” standard. Id. at 31. The governme nt responds that the evidence was “part and parcel of his scheme to maintain control of his family and enforce his rules of begging, se rvice and secrecy.” Aple. Br . at 22. On Rule 404(b), Piette argues that the molest ation evidence fails to show “motive” because the notion that Piette’s motive in kidnapping McGinnis was to molest their future children is simply the “forbidden characte r-based propensity inference repackaged.” Aplt. Br. at 33. Likewise, Piette argues that the molestation evidence fails to show any “plan” because it is unrelated to the charged offenses, leaving “no non-propensity purpose.” Id. at 35. The government co unters that Piette was “m otivated to produce children Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1617 who he could control to meet his sexual desires,” and that ki dnapping McGinnis “was preparation for his plan to create his ow n home where he could meet his perverse sexual needs” without drawing attention. Aple. Br. at 23–24. Finally, turning to Rule 414, Piette argues that the district court failed to conduct a non-conclusory prejudicial balancing analysis and that th e molestation evidence was barely probative but highly prejudicial. The government rep lies that its admission was a reasonable application of Rule 414. We review a district court’s evidentia ry rulings for abuse of discretion. United
States v. Sturm , 673 F.3d 1274, 1285 (10th Cir. 2012) . We may uphold them “on any ground supported by the record.” Id. at 1286. Reversal requi res “a distinct showing that [the ruling] was based on a clearly e rroneous finding of fact , or an erroneous conclusion of law or manifests a clear error in judgment.” United States v. Lozado , 776 F.3d 1119, 1124 (10t h Cir. 2015) (quoting United States v. Smalls , 605 F.3d 765, 773 (10th Cir. 2010)). “Whe n a district court has impr operly admitted or excluded evidence, we reverse ‘only if the error affe cts a substantial right of the party.’” Burke v. Regalado , 935 F.3d 960, 1011 (10th Cir. 2019) (quoting Fed. R. Evid. 103(a)). The question is whet her the error was harmless. See id. Harmless error analysis looks at “the record as a whole.” Id. (quoting Hill v. J.B. Hunt Transp., Inc. , 815 F.3d 651, 659 (10th Cir. 2016)). It asks whether the “verdict more probably than not was unaffected by the error.” Id. (quoting Abraham v. BP Am. Prod. Co. , 685 F.3d 1196, 1202 (10th Cir. 2012)). Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1718 b. Evidence of other bad acts may be extr insic or intrinsic depending on its relationship to the charged offense. In trinsic other acts evidence encompasses conduct “inextricably intertwined with th e charged crime such that a witness’s testimony would have been c onfusing and incomplete wit hout mention of the prior
act.” United States v. Ford , 613 F.3d 1263, 1267 (10t h Cir. 2010) (quoting United States v. Johnson , 42 F.3d 1312, 1316 (10th Cir. 1994)). This is known as res gestae, which the district court invoked to admit much of the molestation evidence. We have also described this kind of ev idence as “part and parcel of the proof of the offense . . . charged in the indictment.” United States v. Kimball , 73 F.3d 269, 27 2 (10th Cir. 1995) (quoting United States v. Gano , 560 F.2d 990, 994 ( 10th Cir. 1977)). Res gestae evidence is not subj ect to Rule 404(b), but it remains subject to Rule 403 balancing and “will be inadmissible . . . if it has no proper probative value.” United States v. Irving , 665 F.3d 1184, 1215 (10th Cir. 2011) (Hartz, J., concu rring). In this case, a res gestae theory can apply, at most, to the subset of the molestation evidence concerning Piette’s daughters. The Sp ringfield girl incide nt took place before McGinnis entered the pictur e and cannot come in as “part and parcel” of her kidnapping. See Kimball , 73 F.3d at 272.
In United States v. Ford , the incarcerated defenda nt and another inmate escaped from a Kansas prison with the aid of the defendant’s roma ntic partner. 613 F.3d at 1266. The partner, a former co rrections officer, st ole several guns, cut through several prison fences, and rented a getaway car. Id. The trio drove the car to Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1819 New Mexico, where they sought a ne w vehicle to avoid detection. Id. They were arrested while scoping out a local apartmen t complex for a car to steal, and the defendant was charged as a felon in posse ssion, a fugitive in possession, and for possession of stolen firearms. Id. at 1265–66. On appeal, the defendant challenged the trial judge’s admission of evidence con cerning his prison escape as res gestae. Id. at 1267. We rejected th e defendant’s arguments, conc luding that the “Kansas escape could not be separated from the charged crimes.” Id. at 1268. We reasoned that his “flight began with the escape, wh ich explained his need for weapons and the circumstances of his arrest just two and a half days later.” Id. The evidence was “undoubtedly res gestae —intrinsic evidence inextricab ly connected to the charged crimes.” Id. Here, the district court pr operly invoked res gestae to permit the government to paint a complete picture of Piette’s other simultaneous domestic mo lestation conduct. Like in Ford , it is difficult to separate Piette ’s treatment of his daughters from his treatment of McGinnis, especi ally when McGinnis’s consent was disputed at trial. The government used the molestation evid ence to reveal the na ture of Piette’s household and convince the jury that McGinnis never consente d to Piette’s treatment. See Johnson , 42 F.3d at 1316 (“An uncharged act ma y not be extrinsic if . . . it was part of the scheme for which a defendant is being prosecuted.”). The evidence was properly admitted as res gestae , and it is relevant to the finding of fact required to rebut Piette’s statute of limitatio ns argument on the kidnapping charge. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1920 In his briefing, Piette deletes the refere nces to the abuse of his daughters from the government’s account of his behavior, suggesting that such a redlined version “would not have left analytical or temporal gaps in the government’s case or left the jury confused,” so the res gestae finding was improper. Reply Br. at 5. Notwithstanding the logical consistency of Piette’s redacted su mmary, res gestae was still a valid ground for admission because the resulting testim ony would have been “incomplete” without the evidence of Piette’s abuse of his daughters. See Ford , 613 F.3d at 1267. It was crucial for the jury to hear from Piette’s daughters about the extent of his molestation so it could fu lly understand their living situation, his conduct, his intentions, and McGinnis’s pers pective, which they were required to evaluate. Finding that the intrinsic molestation evid ence could come in as res gestae still leaves Rule 403 balancing. Under Rule 403, a court “may exclude relevant evidence if its probative value is subs tantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the i ssues, misleading the jury, undue delay, wasting time, or needlessly presenting cu mulative evidence.” Fed. R. Evid. 403. Piette focuses his challenge on the “unfair prejudice” aspect of Rule 403. Typically, we review a district court’s Rule 403 analys is to assess whethe r it constituted an abuse of discretion wa rranting reversal. See, e.g. , United States v. Merritt , 961 F.3d 1105, 1115–16 (10th Cir. 2020). Here, however, th e district court’s Rule 403 analysis was wholly conclusory. Ruli ng on the molestation evidence orally, the district court stated just: “I believe that the probativ e value of the evidence is Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2021 certainly not substantially outweighed by the prejudicial effect.” R. Vol. II at 42. The district court’s written or der had nothing more to say on the matter. That leaves little to review. However, we may s upplement the district court’s Rule 403 determination on appeal to as sess whether its conclusion was an abuse of discretion. See United States v. Magnan , 756 F. App’x 807, 821 (10t h Cir. 2018) (unpublished); see also Lazcano-Villalobos , 175 F.3d at 846–47. 3 Considering Piette’s arguments about minimal probative value due to limited areas of dispute at trial, and maximal prejudice because of the depravity of the molestation evidence, we conclude that Piette understates the eviden ce’s probative value and oversta tes its prejudicial effect. First, jurors could reasona bly find that the molestati on evidence made a fact of consequence—either McGinnis’ s consent, for the kidnappi ng charge, or Piette’s intent, for the traveling-with-intent charge—s ignificantly more or less likely than it was without that evidence. See Fed. R. Evid. 401 (relevant evidence has “any tendency” to make a “fact . . . of consequence in determ ining the action” “more or less probable”); see also United States v. Jordan , 485 F.3d 1214, 1218 (10th Cir. 2007) (the relevancy requireme nt sets a “very low” bar). For example, by raising McGinnis’s consent as a defense, Piette was asking the jury to understand her perspective. The molestati on evidence helped the jury do so. Piette’s argument that McGinnis was unaware of her daughters’ molestation is i rrelevant to whether the evidence, if believed, made th e proposition that she consented le ss likely. It did, so it

3 Unpublished cases are not binding preceden t, but we consider them for their persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2122 was relevant. The same is tr ue with respect to Piette’s defense to the traveling-withintent charge. Jurors may have viewed Piette’s later abuse of McGinnis’s daughters as making it more likely he ha d the requisite intent when he traveled with McGinnis. Second, while graphic testimony that Piette molested the daughters he had with McGinnis may have affected the ju ry, we do not think that any resulting prejudice was particularly unfair or that it substantially outweighed the evidence’s probative value with respect to Piette’s principal defenses—o r, at least, not so much as to render the district c ourt’s decision an abuse of di scretion. Piette’s argument that jurors may be unfairly inflamed by child sexual predators is somewhat selfdefeating. Even before hearing from Ma.P . and A.P., the jurors were already dealing with an individual charged with kidnapping his preteen stepdaught er-wife, raping her three times a day for y ears, and forcing her to bear nine of his children. The district court could have reasonably concluded that any prejudic ial effect probably would have already happened. Even defense couns el started his opening statement at trial by saying: “Ladies and gentlemen of the jury , [the government’s] opening statement, it sounds real bad, it soun ds awful.” R. Vol. II at 98. In light of this, the district court could have also rec ognized, as a countervailing c onsideration, that it was important for the jury to hear the molestation evidence. As we have explained, the evidence served a critical purpose: it he lped the jury contextualize McGinnis’s situation and assess whether Pi ette’s defenses were merito rious. Because the district court could have reasonably concluded that the danger of unfair prejudice did not outweigh the molestation evidence’s proba tive value, it was not an abuse of Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2223 discretion to admit the subset of the molestation evidence concerning Piette’s daughters, notwithstanding Rule 403.

c. The government recognized at trial th at Tobias’s testimony about Piette molesting the Springfield girl was inadmiss ible as res gestae be cause it preceded Piette’s time with McGinnis. In other wo rds, it was extrinsi c bad acts evidence. However, the government argued that Rule s 404(b) and 414 were alternative bases for admission. We hold that even if the district court erred by admitting this subset of the molestation evidence under e ither rule, any error was harmless. Evidence law generally abhors the prope nsity inference—the notion that a person did something just because he ha s a corresponding char acter or has done similar things before. See Fed. R. Evid. 404(b)(1) (“Ev idence of any other crime, wrong, or act is not admissibl e to prove a person’s characte r in order to show that on a particular occasion the person acted in accordance with the character.”); see also Michelson v. United States , 335 U.S. 469, 475– 76 (1948). Howeve r, Rule 404(b) carves a purpose-based exception that allo ws evidence of other bad acts to be admitted for non-propensity purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “We ‘consider four factors in weighing the admissibility of evidence under Rule 404(b): (1) whether the evidence is offered for a proper purpose, (2) its relevancy, (3) that the probative va lue of the evidence is not substantially outweighed by its prejudi cial effect, and (4) [that] a limiting instruction is given if Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2324 the defendant so requests.’” United States v. Burgess , 576 F.3d 1078, 10 98 (10th Cir. 2009) (quoting United States v. Mares , 441 F.3d 1152, 1157 (10th Cir. 2006)). This inquiry incorporates the Rule 401 relevanc y and Rule 403 balancing inquiries at steps two and three, respectively. See United States v. Tan , 254 F.3d 1204, 1207 (10th Cir. 2001). Another exception to the general inclin ation against propensity evidence is Rule 414, which embraces the propensity infere nce in a limited class of cases. It states that, “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that th e defendant committed any other child molestation . . . on any matter to which it is relevant.” Fed. R. Evid. 414(a). There are three “threshold requirements” for ad mitting evidence pursuant to Rule 414: “(1) the defendant is accused of a crime involving sexual as sault or child molestation, (2) the evidence proffered is evidence of the defendant ’s commission of another offense or offenses involvi ng sexual assault or child molestation, and (3) the evidence is relevant.” United States v. Benally , 500 F.3d 1085, 1090 (10th Cir. 2007). But that is not the end of the road. We subject Ru le 414 evidence to a particular breed of Rule 403 balancing and insist that “t he district court has an obligation ‘to fully evaluate th e proffered . . . evidence and make a clear record of the reasoning behind its findings.’” Id. at 1091 (omission in original) (quoting United States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998)). 4

4 This specialized Rule 403 inquiry has tw o stages. First, the district court must consider the four Enjady factors: “(1) how clearly th e prior act has been proved; Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2425 Even if the district court erred by ad mitting the subset of the molestation evidence concerning the Springfie ld girl under Rules 404(b) or 414, we think that any such error was harmless. Reviewing the record in its entiret y makes clear that testimony about the Springfield incident o ccupied only a few moments in a weeklong trial packed with graphic, disturbing eviden ce of Piette’s behavior, often in the form of lengthy firsthand accounts from survivors li ke McGinnis, Ma.P., and A.P. Tobias Piette’s testimony about encountering Piette and the Springfield girl in the shower before meeting McGinnis pales in comparison to the breadth, depth, and detail of the remaining sexual molestation evid ence the jury heard in this case. It is also notable that the jury received evid ence of inappropriate conduct with minors unrelated to McGinnis, her children, or the Springfield girl, which Piette does not challenge on appeal, such as the driving lesson Tobias te stified about. Based on our review of the questions the jury was asked to decide, an d the evidence the government presented to help it decide them, we think it is more likely than not the case, see Burke , 935 F.3d at 1011, that the subset of the molestati on evidence involving the Springfield girl, even if admitted in error, had no effect on th e jury’s verdict on eith er count. Because

(2) how probative the evidence is of the material fact it is admitted to prove; (3) how seriously disputed the mate rial fact is; and (4) whet her the government can avail itself of any less prejudicial evidence.” United States v. Perrault , 995 F.3d 748, 765– 66 (10th Cir. 2021) (footnotes omitted); see also United States v. Enjady , 134 F.3d 1427, 1433 (10th Ci r. 1998). The district c ourt must next weigh the Enjady factors against three additional factors: “(1) how likely [it is that ] such evidence will contribute to an improperly-based jury verd ict; (2) the extent to which such evidence will distract the jury from th e central issues of the tria l; and (3) how time consuming it will be to prove the prior conduct.” Perrault , 995 F.3d at 766. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2526 Piette fails to demonstrate that the admi ssion of this subset of the molestation evidence affected the case, we need not consider whet her the evidence was properly admitted under Rules 404(b) or 414.
* * * The molestation evidence concerning Pie tte’s daughters was properly admitted as res gestae, and any error in admitti ng the remaining molestation evidence involving the Springfield girl was harmless. The district court’ s conclusory Rule 403 assessment does not require reversal because , on this record, it was not an abuse of discretion to find that the evidence’s pr obative value was not outweighed by its prejudicial effect. See Lazcano-Villalobos , 175 F.3d at 846–47.
III. Next, we consider Piette’s argument that the traveling-with-intent charge was brought outside the statute of limitations because the enactments purporting to extend the then-unexpired charging period had an impermissible retroactive effect. We review the district court’s “i nterpretation and application” of statutes of limitations de novo. Barnes v. United States , 776 F.3d 1134, 1139 (10th Cir. 2015). We likewise review the retroactiv ity of a statute de novo. See Valdez-Sanchez v. Gonzales , 485 F.3d 1084, 1088 (10t h Cir. 2007). For the following reasons, we reject Piette’s argument and affirm his traveling-with-intent conviction. The general federal statute of limitations for noncapital of fenses is five years.
See 18 U.S.C. § 3282(a). But Congress has made several modifications to that charging period for sexual offenses against minors. As a result , the statutes of Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2627 limitations that apply to Piet te’s traveling-with-intent charge have gone through a series of changes in the past few decades, as summarized below.

Act Year Code Charging Period Victims of Child Abuse Act 1990 § 35 09(k) Until the childturned twentyfive. Violent Crime Control and Law Enforcement Act 1994 § 3283 Until the ch ild turned twentyfive (recodification). Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act 2003 § 3283 The life of the child.

Violence Against Women and Department of Justice Reauthorization Act 2006 § 3283 The life of the child or ten years after the offense (whichever is longer). Adam Walsh Child Protection and Safety Act 2006 § 3299 Any time.

Today, both §§ 3283 and 3299 cover Pie tte’s traveling-with-intent charge. Piette argues that the statute of limitations on that charge began to run, at the latest, on May 14, 2000, when McGinnis turned sixteen. See id. § 2243(a) (criminalizing sexual acts with minors between twelve and sixteen by persons at least four years older). At that point, the statute of limitations in effect—§ 3283 (1994)—would expire on McGinnis’s twenty-fifth birthday, which was May 14, 2009. Piette was ultimately charged in December 2017. Be fore the limitations period expired, however, Congress made the 2003 and 2006 changes outlined above, which would render Piette’s indictment timely if applied to him. The issue is whether the new statutes of limitations va lidly extended the charging period for Piette’s pre-enactment conduct—that is, whether they apply Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2728 retroactively. Piette ar gues that the test outlined by the Supreme Court in Landgraf v. USI Film Products , 511 U.S. 244, 280 (1994), and Fernandez-Vargas v. Gonzales , 548 U.S. 30, 37 (2006), for assessing a stat ute’s retroactivity requires reversal and renders his indictment untimely. Piette is not the first defendant to encounter this problem or make this argument. Several courts have discusse d this exact question either on the merits or in the context of an ineffective assistance of counsel claim. See Weingarten v. United States , 865 F.3d 48, 54–58 (2d Cir. 2017) (ineffective assistance); United States v. Miller , 911 F.3d 638, 642–46 (1st Cir. 2018) (ineffective assistance); United States v. Nader , 425 F. Supp. 3d 619, 62 4–32 (E.D. Va. 2019) (merits); United States v. Maxwell , 534 F. Supp. 3d 299, 314–16 (S.D.N.Y. 2021) (merits). These case s inform our determination whet her the relevant statutes of limitations apply retroactively, which appears to be a ques tion of first impression in this circuit. At the outset, it is im portant to clarify the Landgraf framework that guides our review. Different circuits divide on the proper number of steps and their contents, but we tend to view Landgraf as a two-step process. See Dobbs v. Anthem Blue Cross & Blue Shield , 600 F.3d 1275, 1282–83 (10th Cir. 2010). First, we ask “whether Congress has expressly prescrib ed the proper reach” of the statute. Id. at 1282. If so, we follow Congress’s lead. If not, we proceed to the second step, asking “whether applying the statute to the events at issue would have re troactive effects.” Id. The Supreme Court instructs that “[s]ta tutes are disfavored as retroactive when their application ‘would impa ir rights a party possessed wh en he acted, increase a Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2829 party’s liability for past conduct, or impose new duties with respect to transactions already completed.’” Fernandez-Vargas , 548 U.S. at 37 (quoting Landgraf , 511 U.S. at 280). If we find a retroa ctive effect, “our traditional presumption teaches that it does not govern absent clear congressi onal intent favoring such a result.” Landgraf , 511 U.S. at 280. Before proceeding, we note that Piette is not making an Ex Post Facto Clause argument. See U.S. Const. art. I, § 3, cl. 9. Several circuits have analyzed this exact issue under that rubric, as opposed to Landgraf retroactivity, and declined to find a violation of the Ex Post Facto Clause where the amended statute of limitations merely extended, as opposed to revived, a charging period. See United States v. Chief , 438 F.3d 920, 924–25 (9th Cir. 2006); United States v. Jeffries , 405 F.3d 682, 685 (8th Cir. 2005).
At Landgraf ’s first step, we look for an e xpress indication of the statutes’ temporal reach. The argumen t on the government’s side is that the statutes’ introductory clauses—“[n]o statute of limita tions that would othe rwise preclude,” for § 3283, and “[n]otwithstandi ng any other law,” for § 3299— supply a “clea r statement
as to . . . retro active effect.” Weingarten , 865 F.3d at 55. A district court accepting this argument with respect to § 3283 reasone d that “[t]he statute’s plain language unambiguously requires that it apply to pr osecutions for offenses committed before the date of enactment . . . [because] it preven ts the application of any statute of limitations that would otherwis e apply to past conduct.” Maxwell , 534 F. Supp. 3d at Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2930 315. The same reasoning wo uld apply to § 3299’s “[n]ot withstanding any other law” language, which casts an even wider net. The counterargument is that this introductory language refers not to retrospective application, but only to 18 U. S.C. § 3282(a), the ge neral federal statute of limitations. On this read ing, the statutes are merely supplanting the typical fiveyear charging period. The First Circuit has observed that when this introductory language was first deployed in § 3283 in 1990, “the only exis ting limitations period to which the language could have referred was the default limit set forth in section
3282.” Miller , 911 F.3d at 644. Moreover, other statutes with the same kind of introductory language contain explicit retr oactivity provisions, so the government’s interpretation would render them redundant. Piette’s position points to th e “express” requirement in Landgraf ’s first step and argues that it creates a high ba r §§ 3283 and 3299 cannot meet. See Nader , 425 F. Supp. 3d at 626 (referencing “the demanding standard for express prescription” in the Fourth Circuit, which requires “la nguage unequivocally de lineating the time period to which [statutes] appl y”). It is indisputable th at these statutes say nothing express about retroactive application, so Piette has the stronge r argument on this point. Although the introductory words of bot h statutes are not inconsistent with the government’s reading, they hardly c onstitute Congress expr essly announcing a retroactive effect. A provisi on literally stating that a stat ute applies retroactively is more so the kind of provision that Landgraf contemplates. Congress can enact, and Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3031 has enacted, such provisions in the past. But it did not do so in either § 3283 or § 3299. We proceed to Landgraf ’s second step. At this step, we look for an impermissi ble retroactive effect, defined as an effect that “would impair ri ghts a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf , 511 U.S. at 280. If we find su ch an effect, we presume the statute does not apply retroactively unle ss there is “clear congressional intent favoring such a result.” Id. On Piette’s side, the Second Circuit has acknowledged “colorable arguments” that extending a live charging period would in crease a defendant’s liability for past conduct under Landgraf

. See Weingarten , 865 F.3d at 57. But the court also acknowledged that the “vast weight of retr oactivity decisions” su pport a distinction “between revoking a vested statute of limitations defense and extending a filing period for live claims.” Id. The former would be a problem. The latter would not. The First Circuit notes that the question’s difficulty is compounded by the criminal

context. See Miller , 911 F.3d at 645. After all, th e Supreme Court has held that statutes of limitations should be “libera lly interpreted in favor of repose.” Toussie v. United States , 397 U.S. 112, 115 (1970). Accordingly, Piette relies heavily on United States v. Gentile , which held that a different st atute of limitations extension was impermissibly retroactive under Landgraf because of that very principle. 235 F. Supp. 3d 649, 654 (D.N.J. 2017). But other courts have distinguished Gentile , concluding that “the case la w strongly supports the prop osition that the distinction Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3132 between applying a statute that extends or e liminates a statute of limitations period to claims that were expired at the time of its enactment, and applying it to claims that were unexpired at the time of its enactment, is applicable to bot h civil and criminal statutes of limitations.” Nader , 425 F. Supp. 3d at 630. We agree. In 2003 and 2006 , when these statutes of limitations were enacted, the original statute of limitations had not ye t expired and Piette remained subject to prosecution for his past conduct insofar as he was susceptible to being charged for it. By extending the unexpired statute of limita tions, Congress did not increase Piette’s exposure to prosecution retroactively. It did not raise the penalty for the charged offense. It did not redefine the offense to make it easier to establish. It did not expose Piette to criminal prosecution anew . It merely altere d the ongoing charging period for the conduct that had already exposed him to criminal prosecution. Piette was subject to indictment in 2002, before the statutes of limitations were extended, and he remained subject to indictment in 2007, once the changes were made. A dead charge was not resurrected, and the underlyi ng nature of Piette’s potential criminal liability remained the same. Ex Post F acto Clause cases echo both this conclusion and the import of this distinction in the broader retroactivity context. See, e.g. , Jeffries , 405 F.3d at 685. Piette’s argument that he had the “statutory right,” Aplt. Br. at 51 (quoting Gentile , 235 F. Supp. 3d at 654), to be free from prosecution after the original statute of limitations would ha ve expired is misgui ded. Rather, it is Congress that had the right to modify a pend ing statute of limitations. Doing so does not violate retroactivity principles with respect to unexpired charging periods. We Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3233 conclude that neither statute of limitations had an impermissibl e retroactive effect because the relevant charging period had not yet expired. Extending an unexpired statute of limitations does not increase a defendant’s ex posure to prosecution. As a result, we need not consid er Congressional intent. Landgraf is no basis for finding Piette’s traveling-with-intent charge un timely, so we affirm the conviction.
IV. Finally, we consider Piette’s argumen t that his kidnapping conviction should be reversed. We agree and reverse Pi ette’s kidnapping conviction because the district court plainly erre d by misallocating the burde n of proof in its jury instructions and verdict form. We review the kidnapping jury instruction for plain error because Piette failed to object to it below. See United States v. Antonio , 936 F.3d 1117, 1126 (10th Cir. 2019). To preva il on plain error review, Piette must show that “(1) the district cour t erred, (2) the error was pl ain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judici al proceedings.” United States v. Muñoz , 812 F.3d 809, 813 (10th Cir. 2016). Our precedent clarifies how plain error an alysis should be approached when a jury instruction is under review. First, an instruction amount s to error where, “considering the instructions as a w hole, the jury has been misled.” United States v.
Duran , 133 F.3d 1324, 1330 (10th Cir. 1998). S econd, an error is plain where it is “clear or obvious.” Muñoz , 812 F.3d at 813 (quoting Morales-Fernandez v. INS , 418 F.3d 1116, 1124 (10th Cir. 2005)). Third, an instruction affects s ubstantial rights if it Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3334 “concerns a principal element of the de fense or an element of the crime.” Duran , 133 F.3d at 1330. Finally, “the fairness or integrity of a de fendant’s trial is seriously affected when the defendant has presente d substantial evidence in support of an affirmative defense which has been underm ined by an erroneous instruction.” Id. (internal quotation marks omitted). A criminal defendant generally bear s the burden of proof on affirmative defenses, but Piette relies upon Supreme Court authority suggesting a consensus around the proposition that when a defenda nt contests whether the statute of limitations has run, the burden of proof on that issue shifts to th e government. Piette argues that the district court plainly erre d by instructing the jury that he bore the burden to prove that McGinnis was no longer held against her will at a certain date, an argument that would have started th e statute of limita tions on the kidnapping charge. To surmount the “extremely high hurdle” set by plain error review, United States v. Walser , 275 F.3d 981, 988 (10th Cir. 2001), Piette cites to United States v.
Duran , a case involving the entrapment defense, which is subject to a similar burdenshifting treatment. In Duran , we found reversible plain error under nearly identical procedural circumstances . 133 F.3d at 1329–34. Starting with Supreme Court precedent, in Musacchio v. United States the Court held that the general federal crim inal statute of limitations, 18 U.S.C. § 3282(a), cannot be raised on appeal unles s it was argued below. 577 U.S. 237, 248 (2016). The Court explained: Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3435 [A] statute-of-limitations defense b ecomes part of a case only if the defendant puts the defense in issu e. When a defendant presses a limitations defense, the Government th en bears the burden of establishing compliance with the statut e of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. Id. (emphasis added) (citing United States v. Cook , 17 Wall. 168, 179 (1872)). We have previously relied upon this aspect of Musacchio

. See United States v. DeLia , 906 F.3d 1212, 1217 (10th Ci r. 2018) (when defendant “affirmatively and timely” raises statute-of-limitations defense, bur den shifts to govern ment to establish compliance). Other circuits agree. See United States v. Wilson , 118 F.3d 228, 236 (4th Cir. 1997); United States v. Ferris , 807 F.2d 269, 272 (1st Cir. 1986). The government relies upon Smith v. United States , 568 U.S. 106 (2013), which held that assigning the burden of pr oving withdrawal from a conspiracy to a defendant does not violate the Due Process Clause, to argue that it does not need to prove the nonexistence of affirmative defe nses. The district court also cited Smith in a pretrial order on this issue. See R. Vol. I at 152 (“Commi ssion of a federal crime within the statute-of-limitations period is not an element of the offense, and it is up to the defendant to raise the limitations defense. ”). But, as Piette points out, the Court
in Smith expressly stated “that the Government must prove the time of the conspiracy offense if a statute-of-limitations defe nse is raised.” 568 U.S. at 113. Smith is consistent with both Musacchio and Piette’s theory of plain error. It is therefore settled that if a defendant invokes th e statute of limitations as a defense, the burden shifts to the government to establis h the timing of the offense Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3536 beyond a reasonable doubt. Here , by instructing the jury to the contrary, the district court misled the jury and committed plain error. Significant daylight divides the jury’s finding that Piette failed to show , by a preponderance of the evidence, that McGinnis was no longer held against her will at any point be tween 1997 and 2016, from the hypothetical finding Piette request s, and which we hold the Constitution requires: that the government proved, beyo nd a reasonable doubt, that McGinnis was continuously held against her will long e nough to avoid any stat ute of limitations problem. Turning to the remaining elements of plain error review, we observed in Duran that a jury instruction aff ects a defendant’s substantia l rights where it involves a “principal element[]” of a defense. 133 F.3d at 1333. Here, Piette predicated his entire defense to the kidna pping charge upon McGinnis’s consent. Shifting the burden of proof to the govern ment was a crucial aspect of the defens e’s efficacy. Also, the district court seemed to un derstand that whethe r McGinnis consented affected the viability of the kidnapping charge on the ve ry statute of limitations grounds urged by Pi ette on appeal. See R. Vol. I at 372 (“This will aid the court in making a separate legal determin ation in regard to this cas e.”). The district court’s plain error regarding the burden of proof affected Piette’s substantial rights because it involved a principal element of Piette’s principal defense. See Duran , 133 F.3d at
1333. Finally, we held in Duran that “[i]n light of the re vered status of the beyond-areasonable-doubt standard in our criminal jurisprudence, a jury instruction that Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3637 allows a conviction where one important el ement may not have been found against the defendant by such a standa rd cannot be overlooked.” Id. at 1334. That is exactly what happened here. The timing issue crea ted by Piette’s defens e was not resolved beyond a reasonable doubt, as the Constitution requires. Th e district court plainly erred, so Piette’s kidnapping conviction must be reversed. 5
V. Last, because we affirm the traveling- with-intent conviction, we reach and reject Piette’s constitutional challenge to his sentence fo r that conviction. Piette argues that, even if any of his convictions are not overturned, hi s sentence should be reversed because he was denied his Sixth Amendment right to represent himself at sentencing. A defendant seeking to re present himself must (1) “clearly and unequivocally” inform the court; (2) do so “timely and not for the purpose of delay”; (3) assure the court that he is waiving the right to counsel “knowingly and intelligently”; and (4) be “able and w illing to abide by rules of procedure and courtroom protocol.” United States v. Simpson , 845 F.3d 1039, 1046 (10th Cir. 2017) (quoting United States v. Tucker , 451 F.3d 1176, 1180 (10th Cir. 2006)). We

5 In the closing moments of his rebutta l at oral argument, Piette’s counsel suggested that “the fundame ntal nature of the burden of proof” requires reversing Piette’s traveling-with-intent conviction b ecause of the error that requires overturning his kidnapping conviction. Oral Arg. at 32:28–32:37. We do not consider issues that are first presented at oral argument. See Denver Homeless Out Loud v. Denver , 32 F.4th 1259, 1269 n.9 (10th Cir. 2022). Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3738 review the district court’s fa ilure to allow Piette to repr esent himself at sentencing for abuse of discretion. 6 Piette argues that the district court should ha ve conducted a Faretta hearing and allowed him to represen t himself at sentencing. See Faretta v. California , 422 U.S. 806, 834–36 (1975); see also United States v. Hansen , 929 F.3d 1238, 1249 (10th Cir. 2019) (district c ourts often assess whether wa ivers of counsel are made knowingly and intelli gently by conducting Faretta hearings). The government responds that Piette failed to make a clear and unequivocal request to proceed pro se because of his “prolific and varied corre spondence with the district court,” which alternated between praising and lambasting his attorney, Warren Gotcher. Aple. Br. at 46. The government also observes that, at sentencing, Piette agreed to Gotcher representing him through fili ng an appeal, and that Pie tte spoke extensively on his own behalf. We agree with the government. Piette’s theory fails on the clear-andunequivocal prong for two principal reasons, and therefore the district court did not abuse its discretion.

6 Both parties misstate the standard of review as de novo, which ignores the distinction we draw between requests for self-representation made before trial, reviewed de novo, and requests made after trial, reviewed for abuse of discretion. See United States v. Beers , 189 F.3d 1297, 1303 (10th Cir. 1999); see also United States v. Estrada , 25 F. App’x 814, 819– 20 (10th Cir. 2002) (u npublished). Piette focuses on demands for counsel’s withdraw al made in Novemb er 2019 and renewed at sentencing in February 2020. The jury reached its verdict on June 6, 2019, ending the trial months before Piette ’s first supposed request to proceed pro se. Because any invocation of the right to self-represent ation would have occu rred post-trial, we review for abuse of discretion. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3839 First, it is neither clea r nor unequivocal that Piette ever sought to represent himself—as opposed to merely requesting to withdraw Gotche r and receive new appointed counsel. Only the former endea vor would implicate Piette’s constitutional right to self-representation. On appeal, Piette argues that hi s November 2019 letter did not request a replacement attorney, so we should view it as a request for selfrepresentation. But, by the same reasoni ng, the letter said nothing about selfrepresentation or proceeding pro se. Although it was preceded by a handwritten pleading, Piette submitted num erous such documents while represented by counsel. Similarly, Piette’s request fo r case materials could have been an attempt to recover personal documents for his own records or for use by his next attorney, and not an implicit request for self-representation. Moreover, Piette based his request on Gotcher’s ineffective assi stance and not on any cons titutional right to selfrepresentation. In his response to Piette’s motion, Gotcher reques ted that Piette “be appointed new counsel for appeal unless the defendant employs his own counsel, which Counsel advised the defendant is his ri ght.” R. Vol. I at 407. Gotcher, who had contemporaneous personal access to Piet te, did not even addr ess the possibility that Piette contemplated pro ceeding pro se at sentencing. Second, even if Piette was attempting to invoke his right to self-representation for purposes of sentencing, he verbally assented to the district court’s contrary determination. Specifically , the district court asked Piette whether withdrawing counsel post-sentencing was “ac ceptable.” R. Vol. II at 1108. Piette’s “[y]es, sir, yes” response is as notable for what it says as what it does not say. Id. at 1109. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 3940 Between hundreds of pages of letters to the district cour t and a lengthy statement at sentencing, Piette did not hesitate to sh are his perspective w ith the court. The absence of any statement by Piette about self-representation undercuts his claim to clarity on appeal. If Piette wa nted to represent himself, he probably would have said something to that effect, especi ally when given the opportunity. The district court granted Piette’s motion without a Faretta hearing not because the court thought it was allowing Pie tte to proceed pro se, but because it did not view the circumst ances as implicating Faretta . It reasonably thought Piette wanted new counsel, not self-representati on, and Piette said nothing to suggest otherwise. We do not know th e contents of the off-the -record conversation between Piette and Gotcher alluded to in the hearing transcript, but if Piette wanted to proceed pro se—a different request from just wi thdrawing Gotcher—it likely would have come before the court. Pi ette may be correct that no magic words are required to invoke the right to self-repr esentation, but courts cannot read minds. The clear-andunequivocal requirement exists in part to “p rotect . . . the trial court” from a reversal “dilemma” where a defendant granted counsel can assert a violation of the right to proceed pro se, while a defendant granted se lf-representation can assert a violation of the right to counsel. Simpson , 845 F.3d at 1046–47. Here, Piette clearly and unequivocally requested only that his counsel be withdrawn, and the district court granted that request. Because there wa s no clear and unequi vocal request that Gotcher withdraw so that Piette could re present himself at se ntencing, and because Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 4041 Piette assented to th e district court’s contrary ruli ng, the court did not abuse its discretion.
VI. We AFFIRM Piette’s traveling-with-i ntent conviction, REVERSE Piette’s kidnapping conviction, reject Piette’s constitutional a ttack on his sentencing, and REMAND for further proceedings c onsistent with this opinion. Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 41