Monday, September 19, 2022

Reversal of kidnapping conviction because of erroneous instructions; other claims rejected

United States v. Piette, 45 F.4th ---, 2022 WL 3452464 (10th Cir. August 18, 2022) (evidence; statute of limitations; jury instructions; and pro se/Faretta hearing) Apologies, I am unable to make a short version - too many issues that are fact dependent. Warning, this will not be amusing at all. We start in Springfield, Missouri in the early 1990s. Rosalynn McGinnis was eight years old, she lived with her parents and siblings. While at the playground the McGinnis children met the Piette children. They became friends; there were slumber parties and movie nights. And Mr. Piette molested Rosalynn. She did not tell anyone about it. One of Mr. Piette’s sons testifies about two specific instances he witnessed his father molest other girls and generally suggests he molested several children. Mr. Piette became close to Rosalynn’s mother, Gayla, and he told her about his religion, the Fundamentalist Church of Jesus Christ of the Latter-Day Saints. (Okay, it doesn’t say that it is his religion and it doesn’t specify that it was the disavowed weird fundamentalist sect of Warren Jeffs but it does say they talked about Mormonism.) Eventually, Mr. McGinnis and Gayla split and Mr. Piette becomes the patriarch. Under his rule, the family became very hierarchical with constant bible readings. (Again it sounded like Jeffs cult.) Mr. Piette used physical violence against the children and Gayla. At some point, someone noticed and the authorities got involved. But Mr. Piette convinced Gayla that she would be blamed so they ran and ran and ran – to Montana, Arizona, Utah, California, Texas, Oklahoma and Guatemala. The physical abuse accelerates and Mr. Piette rapes Rosalynn. Gayla escapes to her parents but Mr. Piette finds them and drags them back. Mr. Piette then “spiritually marries” Rosalynn who is 11 or 12. (Ahem, Warren Jeffs.) Gayla manages to escape with the kids again and Rosalynn attended a middle school. Mr. Piette tracks them down but only approaches Rosalynn; he tells her he is going to reunite their family. She leaves with one of Mr. Piette’s sons who drives her to Tulsa. The rest of Gayla’s family is not taken. Mr. Piette introduces her as his children’s new mother. (She’s still just 12.) They move about the country, and Mr. Piette changes her appearance. Relatively shortly, they decamp to Mexico because Rosalynn is pregnant (and Mr. Piette delivers the first one via C-section – I assume, the opinion just says “He used a pocketknife to deliver the baby on the floor of a van.”) She had eight (more) children over the next 16 years. The children and Rosalynn were beaten often and severely; he began sexually abusing his daughters from Rosalynn. Rosalynn suspected the sexual abuse. Mr. Piette threatens them all with death if they leave. Rosalynn (and her children) believed this was a credible threat. But just to make sure they stayed put, it was not infrequent that he chains Rosalynn to the bed or a pole. By 2016, Rosalynn saved $150 over years, buried in a hill, and when Mr. Piette is passed out managed to flee. She and the children made it to the embassy. So, the Government charges Mr. Piette with kidnapping and traveling with intent to engage in sexual relations with a juvenile for actions he took in the late 1990s. Evidence Issues The Government said the kidnapping went from January 1997 to July, 28 2016. Mr. Piette’s defense at trial was that at some point, Rosalynn was no longer being held against her will (which would mean the charge was untimely). The district court admitted the evidence of molestation of the daughters as res gestae evidence. Res gestae 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’.” (No pinpoint cite available yet. I do not understand how they can say the case starts on x page but not have pinpoint cites to pages later in the opinion but they don’t.) Defense counsel argued that leaving out that evidence would not leave “analytical or temporal gaps in the government's case or left the jury confused” so it was not properly res gestae. The Tenth Circuit countered with even if the account sans molestation evidence made sense, “res gestae was still a valid ground for admission because the resulting testimony would have been ‘incomplete’ without [it].” Because Mr. Piette argued she stayed voluntarily and that evidence showed why/how she did not, it was relevant. But it still had to pass the 403 balancing test. Which the district court did not actually do…it just announced its conclusion the evidence was more prejudicial than probative. But this gets the defendant nothing. (Bad facts make bad law.) The Tenth Circuit declares “we may supplement the district court’s Rule 403 determination on appeal to assess whether its conclusion was an abuse of discretion.” Sigh. It then says the evidence was probative because it went to whether she consented to staying with him. The Court also stretches and says that “Jurors may have viewed Piette's later abuse of [Rosalynn’s] daughters as making it more likely he had the requisite intent when he traveled with [Rosalynn].” I think her testimony about he raped her three-times a day made the intent clear and that the Court’s reasoning sounds like propensity. But the first point the Court made was valid. The defense argued that the graphic testimony about the daughter’s molestation (which I spared you, you are welcome) was too prejudicial; the Court countered with yeah, the jury already heard about what he did to his “preteen stepdaughter-wife” (their words) so learning that he also molested his daughters probably wasn’t going to change their opinion much. Even though the jury heard about two specific instances of molestation of other girls before leaving Springfield, the defense only challenges one. The Court says it could be 404b or 414 evidence. The Court doesn’t actually apply these rules, instead skipping straight to harmless error. (Which suggests that maybe they do think it wasn’t admissible but…) In general, I think harmless error is an oxymoron but here I have to agree with the Court’s analysis. Essentially, they say given how much evidence the jury heard from actual victims, the jury probably didn’t even remember this one incident relayed by his son. Statute of Limitations So when Piette ran off with his preteen-stepdaughter-spiritual-wife in 1997, the statute of limitations for the traveling charge ran when the child turned 25. Rosalynn would have turned 25 in 2009. But Congress amended the statute in 2003 so that the statute of limitations was the life of the child. In 2006, they amend it again so that there is no statute of limitation. Mr. Piette maintains that the statute of limitations ran in 2005. According to Mr. Piette, these enactments had an impermissible retroactive effect. A retroactive statute is one that takes away or impairs vested rights acquired under the existing law, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006). It is “a rule of general application that a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.” Id. The key in Mr. Piette’s case is that the statute of limitations never actually ran for his actions; i.e. the amended statute of limitations merely extended, as opposed to revived, a charging period. The Tenth Circuit acknowledges it would be different if the child had turned 25 before the 2003 amendment. Jury Instructions – Kidnapping (a rare win on plain error). Recall that Mr. Piette contended that Rosalynn was, at some point, not held against her will. Unlike most affirmative defenses, the burden of proof on a statute of limitations defense (as this is) reverts to the government. The jury instructions said that Mr. Piette had to prove that she was not held against her will by a preponderance of the evidence. This is error and it is plain. Because the error went to a principal element of the defense it affected his substantial rights. Finally, “[i]n light of the revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence, a jury instruction that allows a conviction where one important element may not have been found against the defendant by such a standard cannot be overlooked.” United States v. Duran, 133 F.3d 1324, 1334 (10th Cir. 1998). So, the kidnapping conviction is vacated. Pro-Se & Faretta hearing at sentencing Mr. Piette contends he wanted to represent himself at sentencing. Mr. Piette wrote the district court a lot of letters and pleadings. The Tenth Circuit agreed with the government that there was not “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.” Also, according to the Tenth Circuit it was also not clear that he wanted to proceed pro se or have his poor attorney withdraw and have new counsel appointed. Lastly, in a colloquy with the court, Mr. Piette agreed that his attorney would withdraw post-sentencing. Therefore, no Faretta hearing was necessary because it wasn’t clear Mr. Piette wanted to represent himself, rather than have new counsel.