United States v. Paycer

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 16, 2025
• Docket: 23-5120
• Status: Published

Opinion

Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 16, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5120

DAVID BERT PAYCER,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00215-GKF-1) _________________________________

Daniel L. Kaplan, Assistant Federal Public Defender (Jon M. Sands, Federal Public Defender, with him on the briefs), District of Arizona, Phoenix, Arizona, for Defendant – Appellant.

Steven J. Briden, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with him on the brief), Northern District of Oklahoma, Tulsa, Oklahoma, for Plaintiff – Appellee. _________________________________

Before ROSSMAN, KELLY, and MURPHY, Circuit Judges. _________________________________

MURPHY, Circuit Judge. _________________________________

I. INTRODUCTION

A jury found David Paycer guilty of Aggravated Sexual Abuse of a Minor

Under Twelve Years of Age in Indian Country. See 18 U.S.C. §§ 1151, 1152, Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 2

2241(c). Paycer challenges his conviction on appeal, contending the district court

erred when it (1) instructed the jury regarding the competency and credibility of child

witnesses; (2) refused to instruct the jury to consider Federal Rule of Evidence 414

“other crimes” evidence only if it unanimously found, by a preponderance, he

committed the other crimes; (3) denied a motion to suppress statements he made

while subject to custodial interrogation; and (4) admitted at trial an alleged hearsay

statement. He further claims that even if the district court’s errors are individually

harmless, he was prejudiced by their cumulative effect. We conclude Paycer is not

entitled to appellate relief. In so ruling, we specifically hold a jury need not

unanimously find by a preponderance that a defendant committed Rule 414 crimes

before individual jurors can consider the other crimes evidence in deciding whether

the defendant committed the charged crime of child-sexual molestation. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court’s

judgment of conviction.

II. BACKGROUND1

The child sex abuse at issue here arose out of the brief marriage—from

January to May of 2021—between Paycer and Melissa Parsons. During the marriage,

Paycer received disability payments and did not work. Parsons worked random, albeit

1 Because the issues on appeal are largely legal in nature and because the case involves child sex abuse, background facts are limited to those necessary to understand the relevant legal issues. The exception is Paycer’s challenge to the denial of his motion to suppress. Additional facts relating this issue are set out infra.

2 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 3

mostly night, shifts at a restaurant. After the marriage, Paycer moved in with Parsons

and her seven-year-old daughter SL. Because Parsons frequently worked nights and

Paycer did not work, SL often ended up in Paycer’s sole care. According to SL,

Paycer used those opportunities to touch her in sexually inappropriate ways.

During the summer of 2021, SL and her sister visited Texas for a family

reunion. While there, SL disclosed to her cousin that Paycer molested her. SL

repeated the allegation while her sister filmed it with a phone. When SL and her

sister returned home, they played the recording for Parsons. Parsons took SL to the

hospital and contacted the police. Thereafter, one of SL’s family members reached

out to Paycer’s Facebook contacts to investigate the possibility Paycer molested other

children. The contacts’ responses were forwarded to FBI Special Agent Daniel

Berardicurti, who used the information as part of a criminal investigation.

In July 2022, the government obtained an indictment charging Paycer with

sexual abuse of SL. On August 1, 2022, local police took Paycer into custody. The

next day, Berardicurti and FBI Special Agent Nathan Ma interrogated Paycer.

Although Paycer denied having touched SL sexually, agents elicited statements that

were later used against him at trial. Paycer ultimately pleaded not guilty and filed a

pretrial motion to suppress his statements to the FBI agents. After conducting an

evidentiary hearing, the district court denied Paycer’s motion to suppress. The case

then proceeded to trial.

In its opening statement, the government told the jury it would hear from SL as

well as three additional young girls Paycer allegedly molested: IW, CM, and KM.

3 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 4

During the government’s case, IW, CM, and KM each testified that when she was

either six (KM) or seven (IW and CM), Paycer touched her genitals in a sexually

inappropriate way, which was similar to the way Paycer allegedly touched SL. The

government then presented the testimony of SL. SL described how she came to

disclose Paycer’s alleged acts of molestation and asserted Paycer touched her “pee

spot” under her clothes with his hand on multiple occasions. In addition to the

testimony of IW, CM, KM, and SL, the government presented the testimony of

additional fact and expert witnesses.

Paycer testified in his own defense and denied molesting SL or any other

young girl. He described his personal history, medical issues, and relationship with

Parsons. He asserted SL was neglected before he moved in with Parsons and detailed

how he took care of her. He introduced SL’s affectionate text messages and described

how she asked him to call her after he moved out. In addition to his own testimony,

Paycer adduced evidence of his good character; testimony from the police officer

who investigated CM’s allegations against Paycer, who confirmed no charges were

filed; and expert witnesses who described the effects Paycer’s medical conditions at

the time of his interrogation could have had on his cognitive state and described

factors and circumstances that may affect the suggestibility of children.

At the conclusion of the presentation of evidence, the jury returned a guilty

verdict. The district court sentenced Paycer to imprisonment for life.

4 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 5

III. DISCUSSION

Paycer asserts errors on the part of the district court undermine his conviction

for aggravated sexual abuse of SL. He identifies alleged instructional and evidentiary

errors; claims the district court wrongfully denied his motion to suppress; and asserts

both the individual and cumulative prejudicial effects of the alleged errors entitle him

to a new trial. This court is unconvinced. The district court did not err or plainly err

in any manner identified by Paycer.

A. Evidentiary Issue

The government called Parsons as a trial witness and asked her this question:

“Before you married the defendant, did he ever talk to you about any allegations

against him?” After Parsons responded in the affirmative, the prosecutor asked her to

recount Paycer’s statement. After the district court sustained Paycer’s simple hearsay

objection, the government asserted it was seeking to elicit a statement of a party

opponent. Paycer responded: “[t]he time frame and before charges.” The district

court asked the government to rephrase its question to address the timeline. The

government established the timeline of the statement and again asked Parsons

whether Paycer ever told her about sexual abuse allegations against him. Paycer did

not renew his objection. Parsons responded to the government’s questions as follows:

Q. All right. During that month before you married him, did [Paycer] ever tell you about allegations against him?

A. Yes.

Q. What did he say?

5 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 6

A. That it was an ex and he was out of state during the time period and it couldn’t have happened.

Q. Did he say what the allegations were?

A. He said there was a girl, a daughter of an ex.

Q. That had accused him of what?

A. Touching him—or her. Excuse me.

Q. And he told you this before you married him?

A. Correct.

Q. But you still married him?

Paycer asserts we should review the district court’s decision to admit Parsons’s

testimony for abuse of discretion. He claims the district court abused its discretion

because the testimony amounts to double hearsay. See Fed. R. Evid. 805 (holding that

when testimony relates an out-of-court statement embedded within another out-of-

court statement, it is admissible over a hearsay objection only if the rules of evidence

provide exclusions or exceptions covering “each part of the combined statements”).

Paycer acknowledges the party-opponent exclusion set out in Fed. R. Evid. 801(d)(2)

covers his own statement, but claims no rule allows admission of the “‘daughter of an

[ex’s’] statement.”

In response, the government contends Paycer failed to preserve his double-

hearsay objection and, thus, this court’s review is limited to plain error. It notes

Paycer initially objected to Parsons’s testimony on hearsay grounds, but after

6 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 7

learning the government intended to present the statement of a party opponent, he

shifted to a foundation-based objection: “the time frame and before charges.” Paycer

never presented a response to the party-opponent exception or argued hearsay-within-

hearsay. Accordingly, the government contends the alleged evidentiary error Paycer

raises on appeal is unpreserved. Furthermore, the government notes Paycer did not

argue for relief under the plain error standard in his opening brief. The result,

according to the government, is that Paycer’s claimed double-hearsay error is waived.

See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he

failure to argue for plain error and its application on appeal [] surely marks the end of

the road for an argument for reversal not first presented to the district court.”).

Finally, and in any event, the government argues the district court did not abuse its

discretion because, inter alia, the testimony at issue did not contain an embedded

hearsay statement.

In his reply brief, Paycer asserts his original hearsay objection was sufficient

to preserve the hearsay-within-hearsay objection he is raising on appeal. He claims a

double-hearsay issue is not distinct from an ordinary hearsay issue—it is simply a

hearsay issue with two levels. Paycer contends that even if he did not preserve the

issue, he is entitled to prevail under plain error review. In that vein, he summarily

claims the embedded accusation of abuse “is self-evidently a ‘statement.’”

Appellant’s Reply Br. at 30.

7 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 8

1. Preservation

On the issue of preservation, the government has the far better argument. To

preserve an objection to the admission of Parsons’s testimony, Paycer was required to

“timely object[]” and “state[] the specific ground, unless it was apparent from the

context.” Fed. R. Evid. 103(a)(1). That is, his objection had to be “sufficiently

specific to provide the district court an opportunity to correct its action in the first

instance.” United States v. Holloway, 826 F.3d 1237, 1251 (10th Cir. 2016); see also

United States v. Hubbard, 603 F.2d 137, 142 (10th Cir. 1979) (“[A]n aggrieved party

must present his objection with clarity and specificity to the trial court in order to

avoid unnecessary error from occurring.”). Paycer’s objection failed to specifically

and clearly apprise the district court that Parsons’s testimony allegedly contained

double hearsay. Instead, in response to the government’s assertion there was no

hearsay problem at all because it sought to elicit a Fed. R. Evid. 801(d)(2) statement

of a party opponent, Paycer pivoted to a foundational objection, i.e., “[t]he time

frame and before charges.” Nor is it clear from the context Paycer was advancing a

hearsay-within-hearsay objection. Because Paycer’s objection did not afford the

district court the required “opportunity to correct its action in the first instance,” his

double-hearsay claim is unpreserved. Holloway, 826 F.3d at 1251.

2. Standard of Review

Normally, this court would review the district court’s evidentiary decisions for

abuse of discretion. United States v. Smith, 606 F.3d 1270, 1279 (10th Cir. 2010).

Even under that standard, “[g]iven the fact- and case-specific nature of hearsay

8 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 9

determinations, our review of those decisions is especially deferential.” United States

v. Blechman, 657 F.3d 1052, 1063 (10th Cir. 2011) (quotation omitted); see also

United States v. Lopez, 131 F.4th 1114, 1121 (10th Cir. 2025) (“Because hearsay

determinations are highly fact-dependent, they trigger heightened deference to the

district court’s ruling.”). Because Paycer’s double-hearsay claim was not preserved,

however, this court’s review is limited to plain error. “Plain error occurs when there

is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Frost, 684 F.3d 963, 971 (10th Cir. 2012), overruled

on other grounds by, United States v. Bustamante-Conchas, 850 F.3d 1130, 1144

(10th Cir. 2017) (en banc). The plain-error standard is intentionally difficult to

satisfy. Id. at 971-72 (“The purpose of plain error review is to instill in litigators the

importance of preparing adequately before appearing in the trial court and, as

necessary, clarifying issues to that court. Timely, adequate objections allow the trial

court to rule in the first instance and, if necessary, correct itself without spawning an

appeal.” (quotation omitted)).

Paycer did not argue entitlement to plain error relief until his reply brief. This

court “generally do[es] not consider arguments made for the first time on appeal in an

appellant’s reply brief,” but instead “deem[s] those arguments waived.” United States

v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). Relying on United States v. Yurek,

925 F.3d 423, 445 (10th Cir. 2019), Paycer asserts this general rule does not apply in

9 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 10

the context of plain-error review.2 He argues Yurek stands for the following

proposition: arguing for plain-error relief in a reply brief is invariably sufficient to

preserve plain-error review when an appellant argues an error is preserved in an

opening brief. Yurek does not stand for any such grand proposition. Instead, it stands

for the modest proposition this court has discretion to conduct plain-error review

“notwithstanding briefing deficiencies.” Leffler, 942 F.3d at 1198 (quotation

omitted); see also id. (specifically describing Yurek as one of a series of cases in

which this court has “exercised [its] discretion to review claims for plain error when

argued for the first time in a reply brief”). It is certainly true that a meaningful

assertion in an opening brief that an issue is preserved advances an argument that this

court should exercise its discretion to take up a plain-error argument raised for the

first time in a reply brief. Id. Ultimately, however, this court will exercise its

discretion to do so only if such an approach “permits the appellee to be heard and the

adversarial process to be served.” Id. (alteration and quotation omitted). Because the

adversarial process will be served by proceeding to the merits, Paycer’s claim is

reviewed for plain error.

2 Appellant’s Reply Br. at 10 (“[If] the appellant argues abuse of discretion in his opening brief, the appellee in [answer] argues that the issue was not preserved and thus plain error review applies, and in his reply brief the appellant argues in the alternative that the plain-error standard is satisfied . . . , this Court—even if it agrees that the error was not preserved—reviews the claim for plain error.”).

10 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 11

3. Application

Paycer has not demonstrated the district court clearly or obviously erred in

admitting Parson’s challenged testimony. See Lopez, 131 F.4th at 1122 (skipping

over issue of error and resolving analogous hearsay issue at the plainness stage of

plain-error review). Paycer concedes portions of the statement he made to Parsons

about the abuse allegation are not hearsay. Nevertheless, he asserts the embedded

accusation of child sex abuse is hearsay. As the government notes, Parsons testified

that before she married him, Paycer told her “about [the] allegations against him.”

Specifically, she testified Paycer said, “it was an ex and he was out of state during

the time period and it couldn’t have happened.” When asked if Paycer relayed “what

the allegations were,” Parsons replied, “He said there was a girl, a daughter of an ex.”

She clarified the child accused Paycer of “Touching . . . her.” In Parson’s recounting

of the conversation, the government argues, Paycer did not quote a statement of any

other person. Instead, Paycer spoke generically about something that happened to

him in the past, not relaying any person’s specific oral, written, or non-verbal

assertion. In reply, Paycer simply asserts, with no citation to any authority, that the

girl’s accusation he recounted to Parsons “is self-evidently a ‘statement.’”

Appellant’s Reply Br. at 30.3

“An error is plain if it is so clear or obvious that it could not be subject to any

reasonable dispute.” Lopez, 131 F.4th at 1122 (quotation omitted). Paycer has not

3 The entirety of Paycer’s reply-brief argument is the following: “[T]he government asserts that Mr. Paycer’s out-of-court statement ‘did not recount a 11 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 12

established it is beyond reasonable dispute that the girl’s embedded accusation is a

statement. Greer v. United States, 593 U.S. 503, 508 (2021) (“The defendant has the

burden of establishing entitlement to relief for plain error.” (quotation omitted)). This

court addressed the issue of implied statements in Lopez. 131 F.4th at 1122-27. The

appellant in Lopez asserted the testimony of police officers implied a witness

confirmed the officers’ suspicions the appellant committed the crime. Id. at 1122.

Lopez noted this court “often addressed the applicability of the hearsay rule . . . when

someone testifies explicitly about what another individual” stated. Id. There was not,

however, meaningful Tenth Circuit precedent addressing “implied statements,” i.e.,

statements by an out-of-court declarant a jury could infer from a witness’s testimony.

Id. at 1122-24. Lopez clarified such implied statements could implicate hearsay

concerns, but that “our case law doesn’t necessarily treat implied and express

statements as interchangeable.” Id. at 1124. Lopez held a hearsay issue arises “only

when the testimony involves an ‘identifiable’ out-of-court statement.” Id. The

resolution of that question—whether the testimony involves an identifiable

statement—is context specific. Id. at 1124-27.

Lopez makes clear why this court must conclude Paycer failed to carry his

burden of demonstrating the existence of a plain error. Rather than engage with the

context and trial record, he simply asserts the embedded abuse accusation is “self-

statement of any other person.’ This is incorrect: Mr. Paycer’s statement indicated that a ‘daughter of an ex’ had ‘accused him’ of ‘[t]ouching’ her. This is self-evidently a ‘statement.’” Appellant’s Reply Br. 30 (record citations omitted).

12 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 13

evidently a statement.” There is no analysis of whether the record further identifies

the girl who made the accusation, to whom the accusation was made, when it was

made, for what purpose it was leveled, or how evidence about the embedded

accusation fits within the panoply of other evidence of guilt presented by the

government. See id. (setting out contextual factors courts must consider in deciding

whether testimony implies an identifiable out-of-court statement). Lopez requires an

identifiable implied statement as a predicate to any hearsay issue. Id. at 1124. It is not

clear or obvious the embedded accusation at issue satisfies that standard. Indeed,

Paycer has not even addressed that issue at anything more than a cursory level. Thus,

Paycer is not entitled to plain-error relief.

B. Custodial Statements

Agents Berardicurti and Ma conducted a custodial interrogation of Paycer on

August 2, 2022. Paycer filed a motion to suppress the statements he made during that

interview, asserting he did not validly waive his Miranda rights and his statements

were involuntary. After holding an evidentiary hearing, the district court denied

Paycer’s suppression motion. It concluded the agents did not use coercive practices

to obtain Paycer’s Miranda waiver or statements and the waiver and statements

themselves were the product of Paycer’s free and unconstrained choice. On appeal,

Paycer challenges those rulings.

13 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 14

1. Background

a. Factual Background

The facts, viewed in the light most favorable to the government, are as

follows. See United States v. Salazar, 609 F.3d 1059, 1063 (10th Cir. 2010) (“We

review the district court’s findings of fact on a motion to suppress for clear error,

examining the evidence in the light most favorable to the prevailing party.”). Paycer

is not in good health. He has lost most of his hearing and relies on cochlear implants.

He has poor eyesight and difficulty seeing without glasses. He has chronic Stage 4

kidney failure and takes various medications to treat his condition. He has dialysis

three days each week.

Paycer was arrested by local officers on Monday, August 1, 2022. When

arrested, he did not have his glasses. He was missing one cochlear implant and the

other had a low charge. On the morning of August 2, 2022, Paycer was questioned by

Berardicurti and Ma for roughly 45 minutes. Paycer was in custody overnight

between his arrest and the interview. He testified he was unable to eat the food

provided due to his health and dietary restrictions and was kept awake all night by

the behavior of his cellmate.

At the beginning of the interview, Berardicurti informed Paycer he was in

custody, read Paycer his Miranda rights, and asked Paycer to read the waiver of his

rights. When Paycer indicated he could not see because he did not have his glasses,

Berardicurti read Paycer the waiver and asked, “Are you wanting to talk to us?”

Paycer replied he did want to talk to the agents because he “want[ed] to know what

14 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 15

this is about.” Berardicurti asked Paycer to sign the waiver and Paycer did so. At

times, Paycer did not hear the question being asked by the agents. The agents

repeated the question and Paycer responded appropriately. At the end of the

interview, when agents told Paycer he would be taken to Tulsa for his initial

appearance, Paycer said, “I missed my dialysis today.” Ma responded, “you’ll get

treatment, but you have to see the Judge first.” Berardicurti added, “[s]o they’re

already aware of your medical conditions, which is why we got here a little bit late

because we had to plan everything out so that we can get you to where you needed to

go.” At no point during the interview did Paycer tell the agents he did not feel well

or, aside from his inability to hear well or read without his glasses, that his medical

conditions were impacting him.

b. Procedural Background

Paycer’s suppression motion asserted a combination of factors, together,

rendered his Miranda wavier unknowing, unintelligent, and involuntary. He

identified his lack of glasses and hearing aids; inability to eat while in custody

because of the lack of food consistent with his renal condition; inability to sleep the

night before the interview because of the conduct of his cellmate; and his feeling of

being “woozy and fuzzy” because he did not have dialysis for seventy-two hours. He

asserted those factors, together with his lack of counsel during the interrogation and

the failure of the agents to tell him the nature of the charges against him until late in

the interrogation, rendered his statements involuntary. In response, the government

noted Paycer did not assert any coercive activity on the part of the agents, but instead

15 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 16

simply relied on the existence of his own physical limitations. Cf. Colorado v.

Connelly, 479 U.S. 157, 167 (1986) (holding that “coercive police activity is a

necessary predicate to the finding that a confession is not ‘voluntary’”). The

government also noted that during the interrogation, Paycer was alert and responded

appropriately to the agents’ questions. Furthermore, except for his visual and hearing

impairments, which the agents accommodated during the interrogation, Paycer did

not inform Berardicurti or Ma he was suffering any disability from his hunger, lack

of sleep, or need for dialysis. Finally, the government argued that no aspect of the

recorded interrogation cast doubt on the knowing and intelligent nature of Paycer’s

waiver of Miranda rights.

The district court held an evidentiary hearing at which Paycer, Berardicurti,

and Dr. Connie Wang testified. Wang, a nephrologist specializing in treating chronic

kidney disease and dialysis patients, testified she reviewed Paycer’s medical records.

She indicated some patients that go too long without dialysis suffer cognitive

impairment and such impairment could be exacerbated by lack of food and sleep. On

cross-examination, Wang conceded symptoms are “very individualized” and she did

not know Paycer’s symptoms, if any, at the time of the interrogation. Berardicurti

testified he and Ma conducted Paycer’s interview in plain clothes without weapons

visibly present. Paycer was able to speak “clearly” during the entirety of the

interrogation, without “stumbling or fumbling of his words.” Paycer sat throughout

the interrogation without indicating any discomfort. Other than Paycer’s diabetes,

Berardicurti was not aware of any of Paycer’s health problems and did not notice

16 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 17

anything that caused him to be concerned about Paycer’s health. The agents

accommodated Paycer’s hearing and visual difficulties by reading to him the

Miranda waiver before Paycer signed it and by repeating any questions when Paycer

indicated he did not understand. Paycer testified about his many health conditions

and asserted those conditions affected his ability to think. He noted that when he was

arrested, officers caused him extreme pain by placing the handcuffs on his fistula.4

Paycer did not sleep that night and did not eat that night or the next morning. When

Berardicurti and Ma arrived to interview him, Paycer told them he did not get his

dialysis that morning. The agents told him “they will take care of that later.” Paycer

testified he did not hear the Miranda warnings when Berardicurti read them to him

and only signed the waiver form because he was told to do so. On cross-examination,

however, Paycer conceded he “heard all of those [Miranda] rights,” “understood

those rights,” “agreed to speak” to the agents, and “voluntarily answered all of their

question that they posed” to him.

The district court issued a written order denying Paycer’s motion to suppress.

It concluded no aspect of the record cast doubt on the knowing, intelligent, and

voluntary nature of Paycer’s Miranda waiver or the voluntariness of his statements.

The district court noted Paycer was an adult man with a GED who stated he could

read, write, and understand the agents’ questions. Although Berardicurti had to read

4 Paycer testified a “fistula” is “the device they put in [your wrist]—it’s a tube—going from your artery to your vein to make your vein bigger so they can do dialysis through your vein.” R. Vol. 1 at 182.

17 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 18

the Miranda waiver form to him, Paycer acknowledged he understood his rights and

signed the waiver. While signing the waiver, Paycer affirmatively indicated he

wanted to speak to the agents. Paycer was held over a single evening before the

interview and did not complain that he was suffering any ill effects from lack of food

or sleep. The interview lasted forty-five minutes. The agents were polite,

noncoercive, and accommodated Paycer’s hearing difficulties. Although Paycer was

not aware of the nature of the charges against him at the beginning of the interview,

he was so notified during the interview. And, although he did not have counsel

present, he was advised of that right and chose to waive it. He was also advised that

any statement he made could be used against him. Finally, the district court found

Paycer did not establish he was suffering from any cognitive issues during the

interview and, even if he was, there was no evidence the agents took advantage of the

assumed impairments.

2. Analysis

a. Standard of Review

This court reviews de novo whether (1) Paycer’s statements under custodial

interrogation were voluntary and (2) Paycer voluntarily, knowingly, and intelligently

waived his Miranda rights. United States v. Minjares-Alvarez, 264 F.3d 980, 984

(10th Cir. 2001); United States v. Burson, 531 F.3d 1254, 1256 (10th Cir. 2008). We

review the district court’s underlying factual findings for clear error. Minjares-

Alvarez, 264 F.3d at 983-84; Burson, 531 F.3d at 1256. “Factual findings are clearly

erroneous when they are without support in the record or when, after reviewing all

18 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 19

the evidence, [this court is] left with the definite and firm conviction a mistake has

been made.” United States v. Phillips, 71 F.4th 817, 821-22 (10th Cir. 2023)

(quotation omitted).

b. Discussion

Paycer’s arguments as to the voluntariness of his statements and voluntariness

of his Miranda waiver overlap. Thus, those issues will be dealt with in tandem. See

United States v. Perez, 127 F.4th 146, 171 (10th Cir. 2025) (holding that this court’s

analysis of the totality of the circumstances for a voluntary Miranda waiver “applies

with equal force to our voluntary-confession analysis”). Likewise, Paycer’s

arguments as to the knowing and intelligent nature of his Miranda waiver overlap

and are considered together. See Burson, 531 F.3d at 1256-57 (“In determining

whether a waiver of rights was knowing and intelligent, we employ a totality of the

circumstances approach. We examine the entire record to determine whether the

defendant evidenced sufficient awareness and understanding for us to conclude his

waiver of rights was knowingly and intelligently made.” (citations omitted)).

i. Voluntariness

To be admissible at trial, statements “must be made freely and voluntarily;

[they] must not be extracted by threats in violation of due process or obtained by

compulsion or inducement of any sort.” Griffin v. Strong, 983 F.2d 1540, 1542 (10th

Cir. 1993). To determine whether a defendant’s statements are voluntary, this court

considers “the totality of the circumstances, and no single factor is determinative.”

United States v. Young, 964 F.3d 938, 942 (10th Cir. 2020). Relevant factors include

19 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 20

“(1) the age, intelligence, and education of the defendant; (2) the length of detention;

(3) the length and nature of the questioning; (4) whether the defendant was advised of

his constitutional rights; and (5) whether the defendant was subject to physical

punishment.” United States v. Lopez, 437 F.3d 1059, 1063-64 (10th Cir. 2006). “The

central consideration in determining whether a [statement] has been coerced always

involves this question: did the governmental conduct complained of bring about a

confession not freely self-determined?” Griffin, 983 F.2d at 1543 (quotations

omitted). This court focuses on whether the decision to speak is “the product of an

essentially free and unconstrained choice by its maker.” Young, 964 F.3d at 943

(quotation omitted). “[C]oercive police activity is a necessary predicate to the finding

that a confession is not ‘voluntary.’” Connelly, 479 U.S. at 167.

Paycer’s challenge to the voluntariness of his statements to Berardicurti and

Ma fails because of the lack of coercive police conduct. See id. Paycer asserts that at

the time he made the relevant statements, “he was tired, hungry, thirsty, and in pain.

He was experiencing the cognitive effects of 72 hours without dialysis, high blood

pressure, deprivation of sleep, food and water . . . .” Appellant’s Opening Br. at 44.

These considerations are only relevant to the issue of voluntariness if Paycer shows

the existence of coercive conduct on the part of Berardicurti or Ma. See United States

v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998) (holding that a defendant’s “age,

mental capacity, and personal idiosyncrasies are relevant only if this court first

concludes that the officers’ conduct was coercive”). To satisfy the requirement of

coercion, Paycer asserts the agents leveraged his imminent need for dialysis to force

20 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 21

him to engage in the interrogation. This argument suffers from two equally important

flaws. First, the district court concluded the officers did not know about Paycer’s

need for dialysis until the end of the interview. That finding, despite Paycer’s

arguments to the contrary, is not clearly erroneous. The agents could not threaten to

withhold from Paycer something they did not know he needed. Second, even if the

agents were aware of Paycer’s need for dialysis during the interview, there is no hint

in the record of the kind of quid pro quo alleged by Paycer on appeal.

The district court did not clearly err in concluding the agents were not aware

of Paycer’s imminent need for dialysis during the interview. Paycer testified he told

the agents before the interview he did not get his scheduled dialysis that morning. On

the other hand, Berardicurti testified that, other than Paycer’s diabetes, he was not

aware before the interview that Paycer had any health problems. The district court

weighed the competing testimony and implicitly found Berardicurti more credible.

See United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir. 2015) (“We defer to a

district court’s credibility determinations when reviewing a district court’s findings

of fact under a clearly erroneous standard. A credibility determination commands

even greater deference to the trial court’s findings than do other findings of fact.”

(quotations and alteration omitted)).

Paycer asserts, however, that statements made by the agents at the end of the

interview demonstrate the agents did know Paycer missed his dialysis treatment that

morning. When, at the end of the interview, Paycer told the agents he missed his

dialysis treatment that morning, Ma responded as follows: “You’ll get treatment, but

21 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 22

you have to see the Judge first.” Berardicurti followed up with the following: “Yeah.

So they’re already aware of your medical conditions, which is why we got here a

little bit late because we had to plan everything out so that we can get you to where

you needed to go.” Paycer asserts these statements are nonsensical unless the agents

knew Paycer needed dialysis. His assertion, however, is not convincing. Berardicurti

made clear he learned during the interview that Paycer had diabetes. He also testified

to the following: (1) Paycer was arrested by local officers and held at a local facility

because the “marshal’s office” would not take custody of individuals past a certain

time in the day; (2) it was not his duty as case agent to arrange for Paycer’s medical

treatment and, instead, he would only send in relevant paperwork to the marshal’s

office; (3) he told the marshal’s office the morning of the interview that Paycer had

diabetes; and (4) the marshal’s office would arrange for any medical care Paycer

needed when it took custody of Paycer. Given this contextual backdrop, the district

court did not clearly err in declining to interpret the agents’ statements late in the

interview as demonstrating the agents knew Paycer imminently needed dialysis

during the interview.

Even if this court were to assume the agents knew Paycer had missed a dialysis

treatment the morning of his interrogation, the record would still not support the

conclusion agents conveyed to Paycer his treatment was contingent on his consent to

being interrogated. Assuming the truth of Paycer’s testimony, when he told the

agents pre-interview that he missed his dialysis treatment that morning, the agents

told him they would “take care of that later.” They did not equivocate or make the

22 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 23

provision of care contingent on anything. And Paycer did not demand that he be

immediately transported for treatment. Instead, at the beginning of the interview,

after Berardicurti read him his Miranda rights from the waiver form, Paycer stated he

wanted to talk to the agents because he wanted “to know what this is about.”

Likewise, Paycer testified at the evidentiary hearing on the suppression motion that

he “voluntarily answered all of [the agents’] questions.” Finally, Paycer’s own

testimony during the evidentiary hearing demonstrates that although he was anxious

about getting his dialysis, he did not attribute to the agents any implied threat to hold

his dialysis contingent on answering their questions. Paycer testified as follows:

Paycer: I was very anxious. I was worried. Because I’ve seen it happen up there people come in that needed it—didn’t do their dialysis on time and they died in the chair while they were getting dialysis.

Counsel: Why didn’t you refuse to speak until you got dialysis?

Paycer: They said they were going to take care of me. I was in their custody so I believed them. They were the cops. They were the good guys.

The record, thus, does not support the view that the agents made dialysis contingent

on answering their questions or that Paycer perceived that the agents had done so.

Thus, there is nothing in the record to support the notion agents coerced Paycer’s

statement. That lack of coercion is the end of the road for Paycer’s arguments his

statements and Miranda waiver were not voluntary. Connelly, 479 U.S. at 167.

ii. Knowing and Intelligent Waiver

To determine whether a Miranda waiver was knowing and intelligent, this

court employs a totality-of-the-circumstances approach. Burson, 531 F.3d at 1256-57.

23 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 24

This court “examine[s] the entire record to determine whether the defendant

evidenced sufficient awareness and understanding for us to conclude his waiver of

rights was knowingly and intelligently made.” Id. at 1257. A waiver is knowing and

intelligent when the defendant acts “with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Id.

(quotation omitted). Burson explains that “a defendant must be impaired to a

substantial degree to overcome his ability to knowingly and intelligently waive his

privilege against self-incrimination.” Id. at 1258. When the government adduces

“evidence showing the defendant was sufficiently in touch with reality so that he

knew his rights and the consequences of abandoning them, the defendant must point

to facts sufficient to overcome that showing.” Id. The mere fact the defendant was

mentally impaired does not suffice to make this showing. Id. “The defendant must

produce evidence showing his condition was such that it rose to the level of

substantial impairment. Only then could we conclude the government has failed to

prove the defendant possessed full awareness of both the nature of his rights and the

consequences of waiving them.” Id. (footnote omitted).

The government adduced plentiful evidence showing Paycer was “sufficiently

in touch with reality so that he knew his rights and the consequences of abandoning

them.” Id. In response, Paycer failed to point to facts sufficient to overcome the

government’s showing. See id. Paycer contends the combined effects of his pain; lack

of sleep, food, and dialysis; and the absence of his glasses and fully effective hearing

aids rendered his Miranda waiver unknowing and unintelligent. The record belies this

24 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 25

assertion. During the interview, Paycer indicated he was fifty-one years old; had a

GED; and could read, write, and understand the agents. After Berardicurti read

Paycer his Miranda rights and asked Paycer to sign the waiver if he wanted to speak

with the agents, Paycer signed the waiver. During the hearing on the suppression

motion, Paycer admitted he heard all the rights Berardicurti read to him and

understood those rights. Paycer also conceded he willingly agreed to speak with the

agents and voluntarily answered their questions. The recording of the interview,

along with the transcript thereof, demonstrates Paycer responded appropriately to the

questions asked during the interview and that when he did not hear or understand a

question, he so indicated to the agents. For these reasons, and for those additional

reasons set out above in concluding Paycer’s statements during the interrogation were

not involuntarily given, this court concludes Paycer was sufficiently aware of the

nature of the rights he gave up, and the consequences thereof, in waiving his Miranda

rights.

C. Jury Instructions

Prior to trial, the government gave notice of its intent, pursuant to Federal Rule

of Evidence 414, to introduce the testimony of IW, CM, and KM. Rule 414(a)

provides as follows: “In 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. The evidence may be considered on any matter to which it is

relevant.” The government asserted the evidence was admissible to prove Paycer’s

propensity to sexually abuse children. See United States v. Sturm, 673 F.3d 1274,

25 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 26

1287 (10th Cir. 2012) (“Rule 414 evidence may be considered for its bearing on any

matter to which it is relevant, including the defendant’s propensity to commit . . .

child molestation offenses, and assessment of the probability or improbability that the

defendant ha[s] been falsely or mistakenly accused of such an offense.” (quotation

omitted)). Over Paycer’s objection, the district court concluded the government’s

Rule 414 evidence was admissible.

Paycer submitted proposed jury instructions. As to the Rule 414 evidence

involving IW, CM, and KM, Paycer asked the district court to instruct the jury as

follows: “You are about to hear evidence that the defendant may have previously

committed another offense of child molestation. The defendant is not charged with

this other offense. You may consider this evidence only if you unanimously find it is

more likely true than not true that the defendant committed this uncharged offense.”

(the “Proposed Rule 414 Unanimity Instruction”). As support for the giving of this

instruction, Paycer pointed to Eighth Circuit Criminal Pattern Jury Instruction 2.08A.

The district court’s preliminary proposed instructions did not include the Proposed

Rule 414 Unanimity Instruction. At the formal instruction conference, Paycer again

asked the district court to give the jury his Proposed Rule 414 Unanimity Instruction.

The district court denied Paycer’s request, noting “the Tenth Circuit simply has not

adopted that approach.” Instead, the district court gave the jury the following

instruction:

You have heard evidence that the defendant may have committed other offenses of child sexual abuse.

26 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 27

You may consider this evidence for its bearing on any matter to which it is relevant, including the defendant’s disposition or propensity to commit the offense that is charged in . . . the Indictment. You may not convict the defendant of the crime charged in the Indictment in this case simply because he may have committed other unlawful acts. You may give this evidence such weight, if any, as you think it should receive.

As you consider this evidence, bear in mind that, at all times, the government has the burden of proving that the defendant committed each of the elements of the offense charged in the Indictment. Remember that the defendant is not on trial for any act, conduct, or offense not charged in the Indictment.

The government likewise submitted proposed jury instructions. Among those

the government requested was the following instruction regarding child witnesses:

“Under federal law, a child is presumed to be a competent witness. You should judge

a child’s testimony using the same standards and in the same way you would any

other witness.” (the “Child Competency Instruction”). As support for its proposed

instruction, it identified 18 U.S.C. § 3509(c)(2), which states that “A child [witness]

is presumed to be competent.” Paycer objected at the formal Instruction conference

when the district court indicated it would give the Child Competency instruction. He

asserted there had been “no challenge to competency” and “the jury may confuse

competency with credibility.” The district court noted Paycer’s objection, but

concluded the Child Competency Instruction was an accurate statement of the law.

Paycer claims the district court erred when it gave the jury the Child

Competency Instruction. As he did below, Paycer asserts the instruction likely caused

the jury to confuse competency with credibility, causing it to presume SL, IW, CM,

and KM were credible. Furthermore, for the first time on appeal, he contends the

27 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 28

second sentence of the instruction effectively directed the jurors to ignore his

defense. In so arguing, Paycer notes his defense highlighted reasons for the jurors to

view the testimony of child witnesses differently from the testimony of adult

witnesses. In addition to challenging the district court’s decision to give the Child

Competency Instruction, Paycer asserts the district court erred as a matter of law

when it refused to instruct the jury it must disregard IW’s, CM’s, and KM’s

testimony unless it unanimously found, by a preponderance of the evidence, that

Paycer molested each child. For those reasons set out below, Paycer’s assertions of

error are not persuasive.

1. Standard of Review

This court ordinarily reviews “jury instructions de novo and view[s] them in

the context of the entire trial to determine if they accurately state the governing law

and provide the jury with an accurate understanding of the relevant legal standards

and factual issues in the case.” United States v. Woodmore, 127 F.4th 193, 209 (10th

Cir. 2025) (quotation omitted). “In doing so, we consider whether the district court

abused its discretion in shaping or phrasing a particular jury instruction and deciding

to give or refuse a particular instruction.” Id. (quotations and alteration omitted). This

standard focuses on “whether the jury, considering the instructions as a whole, was

misled.” Id. at 209-10 (quotation omitted). In that regard, the district court “is given

substantial latitude and discretion in tailoring and formulating the instructions so

long as they are correct statements of law and fairly and adequately cover the issues

presented.” Id. at 210 (quotation omitted). “The instructions as a whole need not be

28 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 29

flawless, but we must be satisfied that, upon hearing the instructions, the jury

understood the issues to be resolved and its duty to resolve them.” Id. (quotation

omitted). Importantly, however, this standard only applies when the challenge to the

jury instructions raised on appeal was preserved in the district court. Unpreserved

challenges to jury instructions are reviewed under the plain error standard. See

United States v. Visinaiz, 428 F.3d 1300, 1308 (10th Cir. 2005).

2. Child Competency Instruction

a. Competency/Credibility

Paycer asserts the district court erred in giving the Child Competency

Instruction because jurors likely understood it as requiring them to presume his

accusers were credible. In support of this assertion, he claims the key word in the

instruction’s first sentence, “competent,” has a legal meaning entirely different from

its ordinary understanding by laypeople. Paycer notes that, as applied to a child

witness, “competent” means to be able to “understand and answer simple questions,”

18 U.S.C. § 3509(c)(8), and to be able to understand the difference between truth and

falsehood, the consequences of falsehood, and what is required by the oath, United

States v. Allen J., 127 F.3d 1292, 1294-95 (10th Cir. 1997). Paycer contends,

however, that when a juror is told a person is presumed to be a competent witness, by

contrast, the juror likely applies the following asserted lay definition of the term:

“‘able to do something well.’” Appellant’s Opening Br. at 22 (citing Competent,

Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english

/competent (last visited Aug. 18, 2025)). To round out his syllogism, Paycer asserts

29 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 30

that because the purpose of a witness’s testimony is to guide the jury toward an

accurate result, a witness is not “competent” in the lay sense unless that witness tells

the truth. See id. (citing Fed. R. Evid. 603 (“Before testifying, a witness must give an

oath or affirmation to testify truthfully.”)).

The district court did not abuse its discretion in instructing the jury that

children are presumed to be competent witnesses. The instruction is consistent with

the law. 18 U.S.C. § 3509(c)(2); Fed. R. Evid. 601; see Woodmore, 127 F.4th at 210

(holding district courts have broad latitude in formulating instructions as long as they

are correct statements of the law). Thus, the issue presented by Paycer on appeal

boils down to the following: Did the instructions as a whole mislead the jury into

thinking all child witnesses are credible? They did not.

As common dictionary definitions demonstrate, the terms credible and

competent are understood as conveying very different meanings. No definition of

“competent” in the Oxford English Dictionary (“OED”) entails an aspect of

credibility. Competent, Oxford English Dictionary (2d ed. 1989). Instead, each

definition, specifically including the legal definition set out at entry six, emphasizes

the term relates to having suitable, adequate, or sufficient qualifications for a

particular purpose. Id.; see also Competent, Webster’s Third New International

Dictionary of the English Language, Unabridged (1993). Likewise, the OED

definitions of “credible” all focus on aspects of honesty, trustworthiness, and

accuracy.” Credible, Oxford English Dictionary (2d ed. 1989); see also Credible,

Webster’s Third New International Dictionary of the English Language, Unabridged

30 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 31

(1993). Nor do thesauruses treat the terms as having overlapping meanings. Compare

J.I Rodale, Competent, The Synonym Finder (1987) and Competent, Thesaurus.com,

www.thesaurus.com/browse/competent (last visited Aug. 18, 2025) with J.I Rodale,

Credible, The Synonym Finder (setting out synonyms of “credible”) and Credible,

Thesaurus.com, www.thesaurus.com/browse/credible (last visited Aug. 18, 2025).

Paycer has identified no reason to think the jury deviated from these well-understood

distinct meanings of the terms and, instead, decided to use them interchangeably.

This conclusion is verified when the sentence Paycer asks this court to view in

isolation—the first sentence of the Child Competency Instruction—is read in the

context of the jury instructions as a whole. See Woodmore, 127 F.4th at 209-10

(holding instructions “need not be flawless” as long as they, “as a whole,” do not

mislead the jury). Jury Instruction No. 6, the instruction immediately preceding the

Child Competency Instruction, discusses the issue of “credibility” or “believability”

at length.5 Furthermore, the second sentence of the Child Competency Instruction

5 The instruction, which is identical to Tenth Circuit Pattern Criminal Jury Instruction 1.08 (2025), reads as follows: I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or “believability” of each witness and the weight to be given to the witness’s testimony. An important part of your job will be making judgments about the testimony of the witnesses, including the defendant, who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I 31 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 32

specifically indicates the jurors “should judge a child’s testimony using the same

standards and in the same way you would any other witness.” This sentence makes

clear to the jury that the mere fact children have the ability to testify does not mean

those children are necessarily telling the truth. Thus, there is no likelihood the jury

interpreted the first sentence of the Child Competency Instruction as directing it to

credit the testimony of the child witnesses. Paycer’s challenge to the instruction on

that ground fails.

b. Alleged Direction to Ignore Evidence

Paycer asserts the second sentence of the Child Competency Instruction—

indicating jurors should judge a child’s testimony using the same standards and in the

same way they would any other witness—effectively directed jurors to ignore his

suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he or she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon. The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness. In reaching a conclusion on a particular point, or ultimately in reaching a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other.

32 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 33

defense. According to Paycer, this is so because his defense highlighted reasons to

view a child witness’s testimony differently from an adult witness’s testimony. In

response, the government claims Paycer did not preserve this challenge below. It

further asserts that because he did not argue for plain-error relief in his opening brief,

Paycer has waived the issue. See United States v. Roach, 896 F.3d 1185, 1192 (10th

Cir. 2018). In any event, the government contends any error is not plain because this

court approved a functionally indistinguishable instruction in United States v.

Pacheco, 154 F.3d 1236, 1239 (10th Cir. 1998). In reply, Paycer argues he preserved

this challenge to the Child Credibility Instruction because he objected to the entire

instruction. Furthermore, as he did regarding the evidentiary objection discussed

above, Paycer asserts this court must undertake plain error review even if we

conclude the issue is not preserved. See supra III.A.2 (discussing Paycer’s faulty

reliance on this court’s decision in Yurek). Finally, Paycer claims, assuming the issue

is unpreserved, the district court plainly erred in instructing the jury to utilize the

same considerations in judging the credibility of child and adult witnesses.

This challenge to the Child Credibility Instruction is unpreserved. It matters

not that Paycer objected to the entirety of the instruction in the district court. What

matters is whether Paycer’s objection was “sufficiently specific to provide the district

court an opportunity to correct its action in the first instance.” Holloway, 826 F.3d at

1251; Hubbard, 603 F.2d at 142. The only bases stated in Paycer’s district court

objection to the Child Credibility Instruction was that there had been “no challenge to

competency” and “the jury may confuse competency with credibility.” That issue is

33 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 34

resolved above. At no point did he provide the district court even a hint the

instruction was at odds with the defense theory that jurors should use different

standards to judge the credibility of the child and adult witnesses in sex abuse cases

generally or this case in particular. Nor is Paycer correct in asserting any sort of

district court challenge to a jury instruction preserves for appeal all possible

challenges to that same instruction. Such an approach is anathema to the purposes

undergirding preservation requirements and plain error review. See Frost, 684 F.3d at

971-72 (“The purpose of plain error review is to instill in litigators the importance of

preparing adequately before appearing in the trial court and, as necessary, clarifying

issues to that court. Timely, adequate objections allow the trial court to rule in the

first instance and, if necessary, correct itself without spawning an appeal.” (quotation

omitted)).

The question then becomes whether this court should undertake plain error

review given Paycer’s failure to seek relief under that standard in his opening brief.

See supra III.A.2 (noting, pursuant to Leffler, 942 F.3d at 1198, this court’s

discretion to conduct plain error review despite an appellant’s failure to argue for an

entitlement to such relief in an opening brief). This court would be well within its

discretion in deeming the issue waived. Paycer’s opening-brief assertion that he

preserved his challenge to the second sentence of the Child Credibility Instruction by

objecting to the whole instruction is not colorable given this court’s binding

precedents. This renders his corollary assertion that he is entitled to abuse-of-

discretion review equally lacking in weight. Nevertheless, because it is patent that the

34 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 35

district court did not commit a plain error in instructing the jury as to how it should

assess the credibility of child witnesses, this court resolves this issue by undertaking

plain error review.

Paycer has not demonstrated the district court clearly or obviously abused its

discretion in including the second sentence in the Child Competency Instruction. See

Pacheco, 154 F.3d at 1239 (“[A] district court has the discretion to determine in a

particular case whether the jury should be specially instructed regarding the

credibility of a child witness and, if so, the nature of that instruction.”); Lopez, 131

F.4th at 1122 (“An error is plain if it is so clear or obvious that it could not be subject

to any reasonable dispute.” (quotation omitted)). To begin, Paycer has not lodged any

objection to Jury Instruction No. 6. See supra n.5 (quoting the entirety of Jury

Instruction No. 6). That is not surprising since Jury Instruction No. 6 is consistent

with this court’s Circuit Pattern Criminal Jury Instruction 1.08 and functionally

indistinguishable from the instruction this court approved in Pacheco, 154 F.3d at

1239. Indeed, the instruction approved in Pacheco, also a case involving allegations

of child sex abuse, applied to “all of the witnesses who testified . . ., including the

child witness.” Pacheco, 154 F.3d at 1239. Paycer has not identified any aspect of

Jury Instruction No. 6 limiting the jurors’ responsibility to consider any evidence of

dishonesty of his child accusers developed at trial. This is important because when

the jury instructions are considered as a whole, it is neither clear nor obvious the

second sentence of the Child Competency Instruction did anything other than direct

35 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 36

the jury to apply the standard in Jury Instruction No. 6 to both child and adult

witnesses.

In sum, (1) Paycer did not object to Jury Instruction No. 6 and did not identify

any aspect of the instruction that could reasonably be read as requiring the jury to

disregard his evidence the child witnesses’ allegations of abuse were not credible;

(2) the second sentence of the Child Competency Instruction, when considered in the

context of the entirety of the jury instructions, does no more than direct the jury to

apply Jury Instruction No 6 to both child and adult witness; and (3) Jury Instruction

No. 6 is functionally equivalent to the instruction this court approved in Pacheco, a

case arising in an analogous fact situation. Thus, Paycer has not demonstrated the

district court plainly erred when it instructed the jury to “judge a child’s testimony

using the same standards and in the same way you would any other witness.”

c. Rule 414 Evidence Unanimity Instruction

Paycer asserts the district court erred when it refused to instruct the jury that,

unless it unanimously found, by a preponderance, he molested IW, CM, and KM,

individual jurors were obligated to disregard that evidence in deciding whether he

molested SL. He argues such an instruction is compelled by the Supreme Court’s

decision in Huddleston v. United States, 485 U.S. 681 (1988), this court’s decision in

United States v. Platero, 72 F.3d 806 (10th Cir. 1995), and by Fed. R. Evid. 104(b).6

6 Relevant portions of Rule 104 provide as follows: (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is 36 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 37

Although Paycer’s arguments are not without weight, this court is ultimately not

convinced. We do not read Huddleston or Platero as offering guidance on the

asserted need for jury unanimity in the context of Rule 104(b) conditional relevance.

Despite the fact Rule 104(b) has existed in its current form for more than fifty years,

Paycer has not identified a single case that has examined this issue in any detail and

held Rule 104(b) requires jury unanimity. Furthermore, the text of Rule 104(b) does

not speak to the role of the jury, let alone require such unanimous findings. Instead,

the jury’s involvement is discussed exclusively in the Advisory Committee Notes,

and, even then, only in the most limited fashion. Finally, the rule Paycer advocates

would have an undeniably broad impact and would likely create significant

complexity. This counsels strongly against the adoption of the requested unanimity

rule.

Neither Huddleston nor Platero compels the giving of unanimity instructions

in the Rule 104(b) context. Huddleston considered this question: Must a trial court

“make a preliminary finding before ‘similar act’ and other Rule 404(b) evidence is

submitted to the jury[?]” 485 U.S. at 685. Rule 404(b) protects against introduction

admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. Fed. R. Evid. 104(a)-(b).

37 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 38

of certain kinds of “extrinsic act evidence when that evidence is offered solely to

prove character.” Id. at 687.7 The defendant in Huddleston argued that because

“evidence of similar acts has a grave potential for causing improper prejudice,” “the

jury ought not to be exposed to similar act evidence until the trial court has heard the

evidence and made a determination under [Rule 104(a)] that [a] defendant committed

the similar act.” Id. at 686, 686-87. The Court rejected this position as “inconsistent

with the structure of the Rules of Evidence and with the plain language of Rule

404(b).” Id. at 687. It noted relevant evidence was broadly admissible unless the

Rules of Evidence provide otherwise. Id. The Court made clear this rule applied with

equal force to Rule 404(b). Id. at 688-89. Indeed, Huddleston emphasized that

Congress, in adopting its own version of Rule 404(b), “was not nearly so concerned

with the potential prejudicial effect of Rule 404(b) evidence as it was with ensuring

that restrictions would not be placed on the admission of such evidence.”8 Id. Thus,

7 Rule 404(b) provides as follows: (b) Other Crimes, Wrongs, or Acts. (1) Prohibited Uses. 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. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b). It is worth reiterating that Rule 414, unlike Rule 404, allows for the admission of prior acts of child molestation to show a defendant acted in accordance with his character. United States v. Sturm, 673 F.3d 1274, 1287 (10th Cir. 2012). 8 The same is true as to Rule 414. See David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 Chi.-Kent L. Rev. 15, 18- 38 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 39

the Court concluded “a preliminary finding by the court that the Government has

proved the act by a preponderance of the evidence is not called for under Rule

104(a).” Id. at 689.

Instead, Huddleston concluded questions of relevancy implicated by Rules like

Rule 404(b)—i.e., evidence of prior bad acts bearing on a charged crime are only

relevant if the defendant committed the prior bad acts—are addressed under Rule

104(b). Id. The Court then described the part a district court plays in the process

mandated by Rule 104(b):

In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence. The trial court has traditionally exercised the broadest sort of discretion in controlling the order of proof at trial, and we see nothing in the Rules of Evidence that would change this practice. Often the trial court may decide to allow the proponent to introduce evidence concerning a similar act, and at a later point in the trial assess whether sufficient evidence has been offered to permit the jury to make the requisite finding. If the proponent has failed to meet this minimal standard of proof, the trial court must instruct the jury to disregard the evidence.

We emphasize that in assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all evidence presented to the jury. Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts.

19 (1994); Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 153-54 (3d Cir. 2002) (discussing Karp’s role in drafting Rule 414 and noting the principal Congressional sponsors of the Rule declared Karp’s Propensity and Probability “was to serve as an ‘authoritative’ part of the Rules’ legislative history”).

39 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 40

Huddleston, 485 U.S. at 690-91 (citations, alteration, footnote, and quotation

omitted). Huddleston does nothing more than hold that, in the exercise of its Rule

104(b) screening function, a district court must submit to the jury conditionally

relevant evidence if the jury could reasonably find, by a preponderance, the existence

of the necessary condition. See id. Huddleston does not mandate that the district court

instruct the jurors to disregard the evidence if any one juror does not make such a

finding.

Nor does Platero mandate the giving of Rule 104(b) unanimity instructions.

Platero involved a conviction for sexual assault in violation of 18 U.S.C. § 2241(a).

72 F.3d at 808. At trial, Platero sought to introduce Fed. R. Evid. 412(b)(1) evidence

of the victim’s past sexual behavior.9 Id. The district court unilaterally determined

Platero’s evidence was not credible and, therefore, refused to let it go to the jury. Id.

at 809-10. Platero held that preventing the defendant from presenting such evidence

in his defense would violate his Sixth Amendment right to confront his accuser for

those reasons set out by the Supreme Court in Olden v. Kentucky, 488 U.S. 227, 232

(1988). 72 F.3d at 814-15; see also id. at 814 (holding that when a district court

“proceeds to decide the preliminary relevancy-conditioned-on-fact issue against the

proponent where the jury could reasonably find the fact to exist, the judge has

violated the proponent’s right to a jury trial”). Platero did note that judicial

9 Rule 412 is “the federal version of a ‘rape shield law.’” Richmond v. Embry, 122 F.3d 866, 875 (10th Cir. 1997).

40 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 41

factfinding as to the existence of a condition implicated the Supreme Court’s decision

in Huddleston, which assigned to the district court only a narrow screening function,

obligating the court to submit the relevant evidence to the jury if there existed any

legitimate fact dispute as to the satisfaction of a condition precedent. Id.at 813-15.

Ultimately, Platero concluded that because a reasonable jury could find by a

preponderance the victim engaged in the relevant prior sexual behavior, the district

court denied the defendant a fair trial when it took the issue away from the jury. Id. at

815-16. Given that conclusion, Platero ordered as follows:

At the new trial, which we direct on remand, cross-examination of [the victim] must be permitted on her relationship with [the other individual], if a showing . . . is made that [the victim] had a romantic or sexual relationship with [the other individual]. And if a showing is made so that the jury could reasonably find such a relationship existed between [the victim] and [the other individual] at the time of the alleged assault, the jury should be instructed that it should first determine whether there was a romantic or sexual relationship between [the victim] and [the other individual] at the time of the alleged assault; that if it finds no such relationship, it should disregard the cross-examination of [the victim] on that subject; otherwise the jury may consider that cross-examination and other evidence of the relationship between [the other individual] and [the victim] in determining Platero’s innocence or guilt.

Id. at 815-16.

Paycer’s uncritical assertion Platero establishes a rule of unanimity in all cases

implicating Rule 104(b) cannot be squared with the reasoning and result of Platero.

Unanimity is nowhere mentioned, let alone discussed, in the opinion. But even

assuming Platero could support a requirement of jury unanimity under Rule 412, that

result flows from the nature of the error at issue, i.e., a violation of Paycer’s Sixth

Amendment rights to a jury trial and to confront his accuser. Id. at 815-16. Rule 412,

41 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 42

at issue in Platero, is wildly different from other federal evidentiary rules that

implicate conditional relevance. Rule 412 precludes a defendant from adducing

certain kinds of evidence as to an alleged victim’s sexual history, but specifically

makes that limitation contingent on consistency with the defendant’s constitutional

rights. Fed. R. Evid. 412(b)(1)(c). Rules 404(b)(2), 413, 414, and 415 are rules of

admissibility. David J. Karp, Evidence of Propensity and Probability in Sex Offense

Cases and Other Cases, 70 Chi.-Kent L. Rev. 15, 19 (1994) (“[T]he effect of [Rules

413-15] is to put evidence of uncharged offenses in sexual assault and child

molestation cases on the same footing as other types of evidence that are not subject

to a special exclusionary rule. The presumption is in favor of admission.”). Paycer

has not argued the constitutional implications of Rule 412 at issue in Platero apply in

any way to Rule 414. To be clear, Platero did not identify and rectify a simple Rule

104(b) error. It identified and rectified a violation of Platero’s constitutional rights.

Thus, Platero does not hold that a jury must be instructed to find unanimously the

existence of a Rule 104(b) condition precedent before the jury can consider Rule 414

other-crimes evidence.

Paycer also relies on Eighth Circuit Pattern Criminal Jury Instruction No.

2.08A, which requires a unanimity instruction in the Rule 414 context. There is,

however, no attempt in the “Notes on Use” to that pattern instruction to explain the

basis for the Eight Circuit’s unanimity requirement.10 And, importantly, it appears to

10 In a Fed. R. App. P. 28(j) letter to this court, Paycer noted that in a recent decision issued by this court, both the defendant and government asked the district 42 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 43

be the only circuit with such a pattern instruction. See 21 Wright & Miller’s Federal

Practice and Procedure § 5054.2 (2d ed. 2025) (“But if the purveyors of pattern jury

instructions know [what] they are doing, we might infer that federal courts follow the

advice not to instruct the jury on redetermining 104(b) preliminary facts; none that

we have inspected offer any instruction for this purpose.”); see also Ninth Circuit

Pattern Criminal Jury Instruction 2.11 (“You are about to hear evidence that the

defendant [may have committed] [was convicted of] a similar offense of [sexual

assault] [child molestation]. You may use this evidence to decide whether the

defendant committed the act charged in the indictment. You may not convict the

defendant simply because he [may have committed] [was convicted of] other

unlawful acts. You may give this evidence such weight as you think it should receive

or no weight.” (bracketed material in original)). Nor has the issue been widely

addressed in the federal courts. See 1 Mark Brodin et al., Weinstein’s Federal

Evidence § 104.30[1] (2d ed. 2020).

Because the caselaw presented by Paycer is not helpful in resolving the

question of jury unanimity, this court is left with the text of Rule 104(b). The

relevant portion of the rule simply provides that “[w]hen the relevance of evidence

depends on whether a fact exists, proof must be introduced sufficient to support a

court to instruct the jury consistently with the Eighth Circuit’s pattern instruction 2.08. See United States v. Harjo, 122 F.4th 1240, 1245 (10th Cir. 2024). Yet, as Paycer recognizes, neither the propriety nor necessity of giving such an instruction was at issue in Harjo because it was “jointly” requested by the parties. Id. Thus, Harjo has no bearing on the outcome of this appeal.

43 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 44

finding that the fact does exist.” Fed. R. Evid. 104(b). There is no indication in this

text that the jury plays any part in this screening process, let alone a highly

formalized role. 11 Instead, in asserting the jury must ultimately make a unanimous

finding as to the existence of the condition, Paycer relies on the Advisory Committee

Notes. In particular, the Note to §104(b) provides as follows:

If preliminary questions of conditional relevancy were determined solely by the judge, . . . the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not [sic] established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration.

Paycer appears to imply that because all federal jury findings must be unanimous and

because the Advisory Committee Notes indicate the existence of a Rule 104(b)

condition precedent is for the jury, federal jurors must unanimously find the

existence of a Rule 104(b) condition precedent before they can consider Rule 104(b)

evidence. In this fashion, Paycer asks this court to utilize something akin to

legislative history to read into the text of Rule 104(b) a rigid jury-unanimity

11 Paycer erroneously relies on § 403 of the of the California Evidence Code. The text of § 403(c) specifically requires submission of certain conditional relevancy questions to the jury. There is no such textual direction in Rule 104(b). Notably a pre-adoption version of Rule 104(b) contained such a textual mandate, but it was eliminated from the final version of the rule. See 1 John Wigmore, Wigmore on Evidence §14.1 n.13 (1983).

44 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 45

requirement that exists nowhere in the text of the rule. See Stinson v. United States,

508 U.S. 36, 43 (1993) (describing the “advisory committee notes to the various

federal rules of procedure and evidence” as something akin to legislative history).

The actual text of Rule 104(b), however, is directed to the district court’s

gatekeeping functions before allowing a party to present to the jury evidence which is

only relevant upon proof of a condition precedent. Huddleston, 485 U.S. 687-92.

Paycer has offered this court no textual hook for adopting a jury unanimity rule.

The unanimity rule Paycer asks this court to adopt would seriously complicate

district court proceedings. A rule that a jury must unanimously find the existence of a

condition before individual jurors can consider conditionally relevant evidence would

extend well beyond Rule 104(b) itself. It would apply to Rule 602, governing the

need for all witnesses to testify from personal knowledge, see Fed. R. Evid. 602

advisory committee’s notes (“It will be observed that the rule is in fact a specialized

application of the provisions of Rule 104(b) on conditional relevancy.”); Rule 901,

governing authentication or identification of evidence, see Fed. R. Evid. 901(a)

advisory committee’s notes to 1972 proposed rules (“This requirement of showing

authenticity or identity falls in the category of relevancy dependent upon fulfillment

of a condition of fact and is governed by the procedure set forth in Rule 104(b).”);

and Rule 1008, governing admission of “other evidence of the content of a writing,

recording, or photograph, see Fed. R. Evid. 1008 advisory committee’s notes (“The

decision is not one for uncontrolled discretion of the jury but is subject to the control

exercised generally by the judge over jury determinations. See Rule 104(b).”).

45 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 46

Furthermore, commentators have noted the very blurry nature of the line between

evidence relevant under Rule 401 and evidence relevant under 104(b) only upon the

finding of a condition precedent. See, e.g., George Fisher, Evidence 36-37 (2d ed.

2008) (“In erecting a distinct standard to govern questions of conditional relevance,

the rule-writers almost surely made a logical error. Every chain of inferences has

potential missing links.”). A savvy lawyer can potentially turn any question of Rule

401 relevance into a Rule 104(b) conditional question. See id.

Given the potential breadth of its application, it is not difficult to imagine the

confusion Paycer’s unanimity rule could spawn. If the jury were required to begin its

deliberations by unanimously working though a list of what evidence jurors can

consider in deciding whether the government has proven the elements of the charged

crime, deliberations will become interminably complex and protracted. Attorneys

would be incentivized to make every evidentiary issue a conditional one and always

request a slew of unanimity instructions in the hope they can preclude all jurors from

considering evidence of guilt by convincing a single juror a condition precedent is

absent. Such an approach is most surely at odds with the Supreme Court’s holding in

Richardson v. United States, 526 U.S. 813, 817 (1999) (holding “a federal jury need

not always decide unanimously which of several possible sets of underlying brute

facts make up a particular element”).

None of the authorities identified by Paycer meaningfully support his proposed

rule of jury unanimity. Nor does such a rule find support in the text of Rule 104(b).

Furthermore, the potential consequences of adopting such a rule are dramatic. As a

46 Appellate Case: 23-5120 Document: 54-1 Date Filed: 09/16/2025 Page: 47

consequence, it is not difficult for this court to conclude the district court did not err

in denying Paycer’s request for a jury unanimity instruction in the instant Rule 414

other-crimes context.

D. Cumulative Error

Paycer contends that even if he is not entitled to relief on his individual claims

of error, the cumulative effect of those errors entitles him to a new trial. Because

Paycer did not demonstrate the existence of any error, preserved or plain, we need

not consider the issue of cumulative error. A special process applies “[w]hen an

appellant presents a mix of preserved and unpreserved errors on appeal.” United

States v. Kepler, 74 F.4th 1292, 1320 (10th Cir. 2023). For that process to apply,

however, Paycer must identify at least two individually harmless errors or plain

errors. Id. at 1320-21; see also id. (“First, the preserved errors should be considered

as a group under harmless-error review.” (quotation omitted)); id. (“If we dispose of

an unpreserved error on the second prong of plain error review—that is, we decide

the error was not ‘plain’—then it does not factor into the cumulative error analysis.”).

As set out above, Paycer has not identified any preserved errors or unpreserved plain

errors. Thus, there are no errors to cumulate.

IV. CONCLUSION

The judgment of conviction entered by the United States District Court for the

Northern District of Oklahoma is hereby AFFIRMED.