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 & Latimer, 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 Attorney, 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

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A jury in the Eastern District of Oklahoma convicted Henri Piette of 

kidnapping and traveling with intent to engage in sexual relations with a juvenile. 

The district court sentenced Piette to life 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 molestation, and that statutes extending the 

unexpired charging period for the traveling-with-intent charge did not have an 

impermissible retroactive effect. However, we conclude that the district court plainly 

erred by misallocating the burden of proof once Piette disputed the timing of the 

kidnapping by arguing that the victim, Rosalynn McGinnis, consented. If she had 

consented, the kidnapping would have been over, and the statute of limitations would 

have begun to run, potentially rendering the indictment untimely. We reverse 

Piette’s kidnapping conviction because there is a difference between what happened 

here—Piette failing to prove by a preponderance of the evidence that McGinnis ever 

consented—and what the Constitution requires: the government proving beyond a 

reasonable doubt that she never consented at a time that would cause a statute of 

limitations problem. Finally, we reject Piette’s argument that he was denied his Sixth 

Amendment right to self-representation at sentencing. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further 

proceedings. 

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I. 

a. 

The following account is based on trial testimony. Rosalynn McGinnis was 

born in 1984. In the early 1990s, McGinnis lived in Springfield, Missouri, with her 

parents, Gayla and Michael, and several siblings. One day, while playing at the park, 

the McGinnis children met Henri Piette’s children. 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 realized that it was far too 

detailed to have been a dream. R. Vol. II at 188. Gayla had not believed McGinnis 

when she was previously molested by her 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 several other children while they 

lived there. One day, he walked in on Piette 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 discussed Gayla’s interest in religion and 

the Church of Jesus Christ of Latter-day Saints. Piette gradually drove Gayla away 

from her husband Michael, who did not share her interest in these topics and was 

often away from home. Soon, Michael left Gayla and the children entirely. “Almost 

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immediately,” McGinnis’s brother testified, it was as if Piette “had stepped into 

[Michael’s] shoes.” Id. at 489. 

But Piette ran a very different kind of home. He read Bible passages to the 

children constantly. He encouraged Gayla to physically discipline the children. He 

started separating the children and imposed something “almost like a hierarchy 

system.” Id. He beat Gayla “countless” times. Id. at 634. He also beat the children. 

After one of Piette’s beatings drew the attention of authorities, Piette convinced 

Gayla that she would be blamed for it, and they took the family on the road. They 

moved on an almost daily basis, passing through Arizona, Oregon, Utah, California, 

Montana, Missouri, Texas, Oklahoma, and Guatemala. Piette forced the others to 

beg for money. They lived in a tent. Piette gave McGinnis beer and molested her 

daily. 

Piette, Gayla, and the children settled in Wagoner, Oklahoma. There, Piette 

escalated his physical, sexual, and psychological abuse. He hit the children with twoby-fours when they said “hanged” instead of “hung.” Id. at 212. He punched Gayla 

in the face. He raped McGinnis. She was eleven. Finally, Gayla escaped to her 

mother’s home in Independence, Missouri, and took her children with her. A few 

weeks later, Piette went to Independence and took them back.

When they returned to Wagoner, Piette addressed his “sin” with McGinnis by 

marrying her in a secret ceremony officiated 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 

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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 briefly 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 that day. He told McGinnis 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, where 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 sixth grade. Piette moved McGinnis 

and his children around the country several times, taking advantage of benefits 

provided by the Church of Jesus Christ of Latter-day Saints, and avoiding detection 

by using false names and changing McGinnis’s appearance.1

 Everyone was drilled 

on what to say if people started asking questions. Piette forced McGinnis to write 

letters to relatives, the media, and law enforcement, saying that she ran away from 

1

 Eventually, McGinnis legally changed her name to Stephanie Reed, one of 

the aliases Piette forced her to adopt.

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her “crazy” mother and “no good” family. Id. at 263. If she misspelled a word she 

was hit. In reality, Gayla diligently searched for McGinnis. 

Piette continued subjecting McGinnis to constant 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 Piette told her to flush 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 avoid questions about her pregnancy, but when 

Piette brought McGinnis to the hospital the doctors said it was too soon to deliver the 

baby. Piette disagreed. He used a pocketknife 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 holes 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 children 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. Piette hung her upside down to shake the water 

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out and she recovered. The family’s lifestyle 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 make 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 continued. 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 broken, 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, bats, rocks, pans, pickaxes, glass bottles, 

fruit, and “[a]nything that 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 dying without dying,” McGinnis’s firstborn 

testified. Id. at 127. 

Piette also started molesting the children McGinnis delivered. 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 made 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 

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made her touch and put her mouth on his penis, 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 drumsticks. 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 resisted, Piette told her he 

would either molest her or one of her sisters. 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 was 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 ejaculated 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 experience of sexual trauma and abuse. 

Sometimes, McGinnis would travel back into the United States by herself to 

beg for money. Other times, Piette was incarcerated, and McGinnis helped him get 

out of jail. McGinnis also purchased several 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 also told her that, if she got 

the police involved, nobody 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 [her] to do or else.” Id. 

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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 appeared to have a “very happy family.” Id. at 985.

Notwithstanding the fear that Piette’s threats instilled in her, McGinnis made 

several attempts to escape. Once, alone with her children in an Arizona motel room, 

she called a women’s crisis shelter, but Piette returned before the shelter could assist 

her. Another time, McGinnis took her children to Piette’s son Mikey’s house. Piette 

quickly arrived, dragged McGinnis out by her hair, and beat her. One of Piette’s 

children with McGinnis managed to escape and, although a knife fight ensued, Piette 

did not kill him.

In 2016, McGinnis saved up $150 over the course of several months—hiding it 

by a hill to avoid Piette’s detection—and waited until Piette, who had been in and out 

of rehab, was passed out drunk. Then she took her children, 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. They returned to the United 

States and settled in Kansas City, Missouri.

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b.

In 2017, Piette was indicted in the Eastern District of Oklahoma 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 legal issues relevant to this appeal emerged 

in the proceedings before the district court. 

First, the government sought to admit evidence that Piette molested his 

daughters with McGinnis as well as an unrelated girl in Springfield some years 

before meeting McGinnis (“the molestation evidence”). The government argued that 

the molestation evidence could be admitted 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 evidence came in (1) as res gestae “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 permissible propensity evidence. Id. at 41–42. The district 

court then turned to whether the evidence was more prejudicial 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 order, the court reiterated that the 

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molestation evidence could come in under Rule 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 briefing that the traveling-with-intent charge 

was untimely because any enactments purporting to extend the statute of limitations 

had an impermissible retroactive effect. The district court ruled that because the 

original statute of limitations had not already expired when Congress acted, the 

legislature validly extended a live charging period, rendering Piette’s 2017 

indictment timely. The district court thus endorsed “the theory that such amendments 

may be applied retroactively to extend a filing period for charges that were still 

viable at the time of the amendment.” Id. at 151; cf. Hughes Aircraft 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 expired impermissibly 

revives a moribund cause of action.”). Piette renewed his retroactivity argument in 

an oral motion for acquittal at the conclusion of the government’s case-in-chief, 

which the district court denied. 

2

 At trial, the court gave a limiting instruction several times when it felt that 

Rule 404(b) evidence was being presented. Usually, the court told the jurors that 

they should consider the evidence not just for motive and plan, but also for intent and 

knowledge. Subsequently, preparation replaced knowledge. Later, all five purposes 

were in play. By the end of the trial, the court was communicating the limiting 

instruction only by alluding to its existence, leaving it unclear which Rule 404(b) 

purposes were being invoked. 

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Third, the district court noted before trial that the government would likely try 

to prove that McGinnis’s “kidnapping continued 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 expired before Piette’s 2017 indictment, the charge would 

not be timely. As a result, the court anticipated 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 the kidnapping alleged in Count 1 

extended from January 1997 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 held against her will. 

[Piette] must prove this contention by a preponderance of the 

evidence, which is defined as “more likely than not.” 

On the verdict form, only if you have found the defendant guilty as to 

Count 1, you will be asked to determine 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 determination in regard to this case. 

In determining if Rosalyn McGuinness [sic] was continually held 

against her will (physically and/or psychologically), you should consider 

all the testimony you have heard in the case. 

Id. at 372. The verdict form reflected these instructions. It told the 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 evidence, that Rosalyn McGuinness [sic] was no 

longer held against her will on a date earlier than July 28, 2016?” Id. at 388. If the 

answer was yes, jurors were asked to specify the date and/or the year. The jury 

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ultimately found Piette guilty of kidnapping and did not find, pursuant to the district 

court’s instructions, that Piette demonstrated by a preponderance of the evidence that 

McGinnis was no longer held against her will prior to July 28, 2016. Piette did not 

argue below that these jury instructions created a statute of limitations problem. 

Finally, Piette claims that he sought to represent himself in a letter to the 

district court in November 2019, and then again at the start of sentencing in February 

2020. In his letter, Piette asked the court to “terminate the services” of attorney 

Warren Gotcher and investigator Eric Cullen 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 district 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 Piette that Piette still wanted Gotcher to 

withdraw. Piette said “Yes.” R. Vol. II at 1107. Gotcher indicated that he had an 

“obligation to stay through sentencing” and assist Piette in filing a notice of appeal; 

he asked the district court to delay granting the motion until those tasks were 

complete. Id. Agreeing, the district court granted 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 sentencing hearing itself. So 

the Court directs that another attorney will be appointed by the Federal 

Public Defender’s office to see Mr. Piette’s case through appeal and 

that—and that is, unless, Mr. Piette wants to hire an attorney on his own. 

The Defendant: Are you saying— 

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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 that acceptable, Mr. Piette? 

The Defendant: Yes, sir, yes. 

Id. at 1108–09. 

The district court entered hundreds of pages of Piette’s handwritten 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. Gotcher was the best thing since 

sliced bread.” Id. at 1109. The district court decided to “err on the side of giving 

Mr. Piette new counsel for appeal purposes.” Id. Sentencing ensued. 

The district court ruled on Gotcher’s objections 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 government, the court invited Piette to speak. 

He did so for “nearly thirty transcript pages.” Aple. Br. at 46; see also R. Vol. II at 

1119–46. He maintained his innocence, touted a work ethic so strong that employers 

have called him a “human backhoe,” explained 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 Piette to life imprisonment on the kidnapping 

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conviction and 360 months’ imprisonment on the traveling-with-intent conviction. 

Piette appealed. 

II. 

We begin with whether the molestation evidence was properly admitted under 

any of the three theories accepted 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 Springfield 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 Tobias testified briefly about the Springfield girl. On appeal, 

Piette argues that both his convictions should be reversed because the district court 

improperly admitted this highly prejudicial evidence. We disagree. The intrinsic 

molestation evidence about Piette’s daughters was admissible as res gestae, while the 

extrinsic molestation evidence 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 evidence 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 the determinations are supported by the 

record.”). Piette’s convictions withstand his evidentiary arguments. 

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a.

Piette appeals the molestation evidence’s admission on all three grounds relied 

upon by the district court, contending that his “trial was infected by repulsive otheract molestation evidence that created an unacceptable risk that the jury would convict 

based on emotion instead of dispassionate decision-making.” Aplt. Br. at 25. Piette 

stresses that he mounted a “targeted” and “technical but effective” defense to each 

charge at trial, only disputing the consent element of the kidnapping charge and the 

intent element of the traveling-with-intent charge. Reply Br. at 14. Because this 

significantly reduced the number of disputed facts at trial, Piette suggests the 

molestation evidence “added no probative value 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 government responds that the 

evidence was “part and parcel of his scheme to maintain control of his family and 

enforce his rules of begging, service and secrecy.” Aple. Br. at 22. On Rule 404(b), 

Piette argues that the molestation 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 character-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 counters that Piette was “motivated to produce children 

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who he could control to meet his sexual desires,” and that kidnapping McGinnis “was 

preparation for his plan to create his own 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 the molestation evidence was barely probative 

but highly prejudicial. The government replies that its admission was a reasonable 

application of Rule 414.

We review a district court’s evidentiary 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 requires “a distinct showing 

that [the ruling] was based on a clearly erroneous 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 (10th Cir. 2015) (quoting United States v. Smalls, 605 F.3d 765, 

773 (10th Cir. 2010)). “When a district court has improperly admitted or excluded 

evidence, we reverse ‘only if the error affects 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 whether 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)). 

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b. 

Evidence of other bad acts may be extrinsic or intrinsic depending on its 

relationship to the charged offense. Intrinsic other acts evidence encompasses 

conduct “inextricably intertwined with the charged crime such that a witness’s 

testimony would have been confusing and incomplete without mention of the prior 

act.” United States v. Ford, 613 F.3d 1263, 1267 (10th 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 evidence as “part and parcel of the proof of the offense . . . 

charged in the indictment.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir. 

1995) (quoting United States v. Gano, 560 F.2d 990, 994 (10th Cir. 1977)). Res 

gestae evidence is not subject 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., concurring). In this 

case, a res gestae theory can apply, at most, to the subset of the molestation evidence 

concerning Piette’s daughters. The Springfield girl incident took place before 

McGinnis entered the picture 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 defendant and another inmate 

escaped from a Kansas prison with the aid of the defendant’s romantic partner. 613 

F.3d at 1266. The partner, a former corrections officer, stole several guns, cut 

through several prison fences, and rented a getaway car. Id. The trio drove the car to 

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New Mexico, where they sought a new vehicle to avoid detection. Id. They were 

arrested while scoping out a local apartment complex for a car to steal, and the 

defendant was charged as a felon in possession, 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 concerning his prison escape as res gestae. 

Id. at 1267. We rejected the defendant’s arguments, concluding that the “Kansas 

escape could not be separated from the charged crimes.” Id. at 1268. We reasoned 

that his “flight began with the escape, which 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 inextricably connected to the charged 

crimes.” Id.

Here, the district court properly invoked res gestae to permit the government to 

paint a complete picture of Piette’s other simultaneous domestic molestation conduct. 

Like in Ford, it is difficult to separate Piette’s treatment of his daughters from his 

treatment of McGinnis, especially when McGinnis’s consent was disputed at trial. 

The government used the molestation evidence to reveal the nature of Piette’s 

household and convince the jury that McGinnis never consented to Piette’s treatment. 

See Johnson, 42 F.3d at 1316 (“An uncharged act may 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 limitations argument on the kidnapping charge. 

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In his briefing, Piette deletes the references 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 summary, res gestae was 

still a valid ground for admission because the resulting testimony 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 fully understand their living situation, his 

conduct, his intentions, and McGinnis’s perspective, which they were required to 

evaluate. 

Finding that the intrinsic molestation evidence 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 substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative 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 analysis to assess whether it constituted an 

abuse of discretion warranting reversal. See, e.g., United States v. Merritt, 961 F.3d 

1105, 1115–16 (10th Cir. 2020). Here, however, the district court’s Rule 403 

analysis was wholly conclusory. Ruling on the molestation evidence orally, the 

district court stated just: “I believe that the probative value of the evidence is 

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certainly not substantially outweighed by the prejudicial effect.” R. Vol. II at 42. 

The district court’s written order had nothing more to say on the matter. That leaves 

little to review. However, we may supplement the district court’s Rule 403 

determination on appeal to assess whether its conclusion was an abuse of discretion. 

See United States v. Magnan, 756 F. App’x 807, 821 (10th 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 evidence’s probative value and overstates its prejudicial effect. 

First, jurors could reasonably find that the molestation evidence made a fact of 

consequence—either McGinnis’s consent, for the kidnapping charge, or Piette’s 

intent, for the traveling-with-intent charge—significantly 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 determining the action” “more or 

less probable”); see also United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir. 

2007) (the relevancy requirement 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 molestation evidence helped the jury do so. Piette’s argument that 

McGinnis was unaware of her daughters’ molestation is irrelevant to whether the 

evidence, if believed, made the proposition that she consented less likely. It did, so it 

3

 Unpublished cases are not binding precedent, but we consider them for their 

persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

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was relevant. The same is true 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 had 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 jury, 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—or, at least, not so much 

as to render the district court’s decision an abuse of discretion. 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 stepdaughter-wife, raping her 

three times a day for years, and forcing her to bear nine of his children. The district 

court could have reasonably concluded that any prejudicial effect probably would 

have already happened. Even defense counsel started his opening statement at trial 

by saying: “Ladies and gentlemen of the jury, [the government’s] opening statement, 

it sounds real bad, it sounds awful.” R. Vol. II at 98. In light of this, the district 

court could have also recognized, as a countervailing consideration, that it was 

important for the jury to hear the molestation evidence. As we have explained, the 

evidence served a critical purpose: it helped the jury contextualize McGinnis’s 

situation and assess whether Piette’s defenses were meritorious. Because the district 

court could have reasonably concluded that the danger of unfair prejudice did not 

outweigh the molestation evidence’s probative value, it was not an abuse of 

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discretion to admit the subset of the molestation evidence concerning Piette’s 

daughters, notwithstanding Rule 403. 

c. 

The government recognized at trial that Tobias’s testimony about Piette 

molesting the Springfield girl was inadmissible as res gestae because it preceded 

Piette’s time with McGinnis. In other words, it was extrinsic bad acts evidence. 

However, the government argued that Rules 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 either rule, any error was harmless. 

Evidence law generally abhors the propensity inference—the notion that a 

person did something just because he has a corresponding character or has done 

similar things before. See Fed. R. Evid. 404(b)(1) (“Evidence of any other crime, 

wrong, or act is not admissible to prove a person’s character 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). However, Rule 404(b) 

carves a purpose-based exception that allows 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 value of the evidence is not substantially 

outweighed by its prejudicial effect, and (4) [that] a limiting instruction is given if 

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the defendant so requests.’” United States v. Burgess, 576 F.3d 1078, 1098 (10th Cir. 

2009) (quoting United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006)). This 

inquiry incorporates the Rule 401 relevancy 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 inclination against propensity evidence is 

Rule 414, which embraces the propensity inference 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 the 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 admitting evidence pursuant to Rule 414: 

“(1) the defendant is accused of a crime involving sexual assault or child molestation, 

(2) the evidence proffered is evidence of the defendant’s commission of another 

offense or offenses involving 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 Rule 414 evidence to a 

particular breed of Rule 403 balancing and insist that “the district court has an 

obligation ‘to fully evaluate the 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 two stages. First, the district court 

must consider the four Enjady factors: “(1) how clearly the prior act has been proved; 

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Even if the district court erred by admitting the subset of the molestation 

evidence concerning the Springfield girl under Rules 404(b) or 414, we think that any 

such error was harmless. Reviewing the record in its entirety makes clear that 

testimony about the Springfield incident occupied only a few moments in a weeklong 

trial packed with graphic, disturbing evidence of Piette’s behavior, often in the form 

of lengthy firsthand accounts from survivors like 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 evidence the jury heard in this case. It is also notable 

that the jury received evidence 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 testified about. Based on our review of the 

questions the jury was asked to decide, and 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 molestation evidence involving the Springfield girl, 

even if admitted in error, had no effect on the jury’s verdict on either count. Because 

(2) how probative the evidence is of the material fact it is admitted to prove; (3) how 

seriously disputed the material fact is; and (4) whether 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 Cir. 1998). The district court 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 verdict; (2) the extent to which such evidence 

will distract the jury from the central issues of the trial; and (3) how time consuming 

it will be to prove the prior conduct.” Perrault, 995 F.3d at 766. 

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Piette fails to demonstrate that the admission of this subset of the molestation 

evidence affected the case, we need not consider whether the evidence was properly 

admitted under Rules 404(b) or 414. 

* * * 

The molestation evidence concerning Piette’s daughters was properly admitted 

as res gestae, and any error in admitting 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 probative 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 “interpretation and application” of statutes of limitations 

de novo. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). We 

likewise review the retroactivity of a statute de novo. See Valdez-Sanchez v. 

Gonzales, 485 F.3d 1084, 1088 (10th 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 offenses 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 

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limitations that apply to Piette’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 § 3509(k) Until the child turned twentyfive. 

Violent Crime Control and Law 

Enforcement Act 

1994 § 3283 Until the child 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 Piette’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. Before 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 validly extended the 

charging period for Piette’s pre-enactment conduct—that is, whether they apply 

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retroactively. Piette argues 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 statute’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 discussed 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, 624–32 (E.D. Va. 2019) 

(merits); United States v. Maxwell, 534 F. Supp. 3d 299, 314–16 (S.D.N.Y. 2021) 

(merits). These cases inform our determination whether the relevant statutes of 

limitations apply retroactively, which appears to be a question of first impression in 

this circuit. 

At the outset, it is important 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 prescribed 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 retroactive effects.” 

Id. The Supreme Court instructs that “[s]tatutes are disfavored as retroactive when 

their application ‘would impair rights a party possessed when he acted, increase a 

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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 retroactive effect, “our traditional presumption teaches that it 

does not govern absent clear congressional 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 express indication of the statutes’ 

temporal reach. The argument on the government’s side is that the statutes’ 

introductory clauses—“[n]o statute of limitations that would otherwise preclude,” for 

§ 3283, and “[n]otwithstanding any other law,” for § 3299—supply a “clear statement 

as to . . . retroactive effect.” Weingarten, 865 F.3d at 55. A district court accepting 

this argument with respect to § 3283 reasoned that “[t]he statute’s plain language 

unambiguously requires that it apply to prosecutions for offenses committed before 

the date of enactment . . . [because] it prevents the application of any statute of 

limitations that would otherwise apply to past conduct.” Maxwell, 534 F. Supp. 3d at 

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315. The same reasoning would apply to § 3299’s “[n]otwithstanding 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 general federal statute 

of limitations. On this reading, 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 existing 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 retroactivity provisions, so the government’s 

interpretation would render them redundant. 

Piette’s position points to the “express” requirement in Landgraf’s first step 

and argues that it creates a high bar §§ 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 “language unequivocally delineating the time 

period to which [statutes] apply”). It is indisputable that these statutes say nothing 

express about retroactive application, so Piette has the stronger argument on this 

point. Although the introductory words of both statutes are not inconsistent with the 

government’s reading, they hardly constitute Congress expressly announcing a 

retroactive effect. A provision literally stating that a statute applies retroactively is 

more so the kind of provision that Landgraf contemplates. Congress can enact, and 

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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 impermissible retroactive effect, defined as an 

effect that “would impair rights 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 such an effect, we presume the 

statute does not apply retroactively unless 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 increase 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 retroactivity decisions” support 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, the Supreme Court has held that 

statutes of limitations should be “liberally 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 statute 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 law strongly supports the proposition that the distinction 

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between applying a statute that extends or eliminates 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 both 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 yet 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 limitations, 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 altered 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 underlying nature of Piette’s potential criminal 

liability remained the same. Ex Post Facto 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 have expired is misguided. Rather, it is 

Congress that had the right to modify a pending statute of limitations. Doing so does 

not violate retroactivity principles with respect to unexpired charging periods. We 

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conclude that neither statute of limitations had an impermissible retroactive effect 

because the relevant charging period had not yet expired. Extending an unexpired 

statute of limitations does not increase a defendant’s exposure to prosecution. As a 

result, we need not consider Congressional intent. Landgraf is no basis for finding 

Piette’s traveling-with-intent charge untimely, so we affirm the conviction. 

IV. 

Finally, we consider Piette’s argument that his kidnapping conviction should 

be reversed. We agree and reverse Piette’s kidnapping conviction because the 

district court plainly erred by misallocating the burden 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 prevail on plain error review, Piette must show 

that “(1) the district court erred, (2) the error was plain, (3) the error affected 

substantial rights, and (4) the error seriously affected the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Muñoz, 812 F.3d 809, 813 (10th 

Cir. 2016). 

Our precedent clarifies how plain error analysis should be approached when a 

jury instruction is under review. First, an instruction amounts to error where, 

“considering the instructions as a whole, the jury has been misled.” United States v. 

Duran, 133 F.3d 1324, 1330 (10th Cir. 1998). Second, 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 substantial rights if it 

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“concerns a principal element of the defense or an element of the crime.” Duran, 133 

F.3d at 1330. Finally, “the fairness or integrity of a defendant’s trial is seriously 

affected when the defendant has presented substantial evidence in support of an 

affirmative defense which has been undermined by an erroneous instruction.” Id.

(internal quotation marks omitted). 

A criminal defendant generally bears the burden of proof on affirmative 

defenses, but Piette relies upon Supreme Court authority suggesting a consensus 

around the proposition that when a defendant contests whether the statute of 

limitations has run, the burden of proof on that issue shifts to the government. Piette 

argues that the district court plainly erred 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 the statute of limitations 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 criminal statute of limitations, 18 U.S.C. 

§ 3282(a), cannot be raised on appeal unless it was argued below. 577 U.S. 237, 248 

(2016). The Court explained: 

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[A] statute-of-limitations defense becomes part of a case only if the 

defendant puts the defense in issue. When a defendant presses a 

limitations defense, the Government then bears the burden of establishing 

compliance with the statute 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 Cir. 2018) (when defendant “affirmatively and timely” 

raises statute-of-limitations defense, burden shifts to government 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 proving 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 defenses. The district court also cited Smith in 

a pretrial order on this issue. See R. Vol. I at 152 (“Commission 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 defense 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 the statute of limitations as a 

defense, the burden shifts to the government to establish the timing of the offense 

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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 between 1997 and 2016, 

from the hypothetical finding Piette requests, and which we hold the Constitution 

requires: that the government proved, beyond a reasonable doubt, that McGinnis was 

continuously held against her will long enough to avoid any statute of limitations 

problem. 

Turning to the remaining elements of plain error review, we observed in Duran

that a jury instruction affects a defendant’s substantial rights where it involves a 

“principal element[]” of a defense. 133 F.3d at 1333. Here, Piette predicated his 

entire defense to the kidnapping charge upon McGinnis’s consent. Shifting the 

burden of proof to the government was a crucial aspect of the defense’s efficacy. 

Also, the district court seemed to understand that whether McGinnis consented 

affected the viability of the kidnapping charge on the very statute of limitations 

grounds urged by Piette on appeal. See R. Vol. I at 372 (“This will aid the court in 

making a separate legal determination in regard to this case.”). 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 revered status of the beyond-areasonable-doubt standard in our criminal jurisprudence, a jury instruction that 

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allows a conviction where one important element may not have been found against 

the defendant by such a standard cannot be overlooked.” Id. at 1334. That is exactly 

what happened here. The timing issue created by Piette’s defense was not resolved 

beyond a reasonable doubt, as the Constitution requires. The 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 for that conviction. Piette 

argues that, even if any of his convictions are not overturned, his sentence should be 

reversed because he was denied his Sixth Amendment right to represent himself at 

sentencing. A defendant seeking to represent 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 willing 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 rebuttal at oral argument, Piette’s counsel 

suggested that “the fundamental nature of the burden of proof” requires reversing 

Piette’s traveling-with-intent conviction because 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). 

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review the district court’s failure to allow Piette to represent himself at sentencing for 

abuse of discretion.6

Piette argues that the district court should have conducted a Faretta hearing 

and allowed him to represent 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 courts often assess whether waivers of counsel are made 

knowingly and intelligently 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 correspondence 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 filing an appeal, and that Piette 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) (unpublished). Piette 

focuses on demands for counsel’s withdrawal made in November 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-representation would have occurred post-trial, we 

review for abuse of discretion. 

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First, it is neither clear nor unequivocal that Piette ever sought to represent 

himself—as opposed to merely requesting to withdraw Gotcher and receive new 

appointed counsel. Only the former endeavor would implicate Piette’s constitutional 

right to self-representation. On appeal, Piette argues that his November 2019 letter 

did not request a replacement attorney, so we should view it as a request for selfrepresentation. But, by the same reasoning, the letter said nothing about selfrepresentation or proceeding pro se. Although it was preceded by a handwritten 

pleading, Piette submitted numerous such documents while represented by counsel. 

Similarly, Piette’s request for 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 assistance and not on any constitutional right to selfrepresentation. In his response to Piette’s motion, Gotcher requested that Piette “be 

appointed new counsel for appeal unless the defendant employs his own counsel, 

which Counsel advised the defendant is his right.” R. Vol. I at 407. Gotcher, who 

had contemporaneous personal access to Piette, did not even address the possibility 

that Piette contemplated proceeding 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 “acceptable.” 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. 

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Between hundreds of pages of letters to the district court and a lengthy statement at 

sentencing, Piette did not hesitate to share his perspective with the court. The 

absence of any statement by Piette about self-representation undercuts his claim to 

clarity on appeal. If Piette wanted to represent himself, he probably would have said 

something to that effect, especially when given the opportunity. 

The district court granted Piette’s motion without a Faretta hearing not 

because the court thought it was allowing Piette to proceed pro se, but because it did 

not view the circumstances as implicating Faretta. It reasonably thought Piette 

wanted new counsel, not self-representation, and Piette said nothing to suggest 

otherwise. We do not know the 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 withdrawing Gotcher—it likely would have 

come before the court. Piette may be correct that no magic words are required to 

invoke the right to self-representation, but courts cannot read minds. The clear-andunequivocal requirement exists in part to “protect . . . 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 self-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 was no clear and unequivocal request that 

Gotcher withdraw so that Piette could represent himself at sentencing, and because 

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Piette assented to the district court’s contrary ruling, the court did not abuse its 

discretion. 

VI. 

We AFFIRM Piette’s traveling-with-intent conviction, REVERSE Piette’s 

kidnapping conviction, reject Piette’s constitutional attack on his sentencing, and 

REMAND for further proceedings consistent with this opinion. 

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