United States v. Sheltra

• Court: Court of Appeals for the Second Circuit
• Decided: March 24, 2023
• Docket: 21-2960
• Status: Unpublished

Opinion

21-2960-cr United States v. Sheltra UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 24th day of March, two thousand twenty-three. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 DENNY CHIN, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. No. 21-2960-cr 17 18 Randy Sheltra, 19 20 Defendant-Appellant. 21 ______________________________________ 22 23 24 FOR DEFENDANT-APPELLANT: Jamesa J. Drake, Drake Law, LLC, Auburn, ME, 25 Randy Sheltra, pro se, Fort Dix, NJ. 26 27 28 FOR APPELLEE: Barbara A. Masterson, Andrew C. Gilman, Gregory 29 L. Waples, Assistant United States Attorneys, for 30 Nikolas P. Kerest, United States Attorney for the 31 District of Vermont, Burlington, VT. 32 1 Appeal from a judgment of the United States District Court for the District of Vermont (Reiss,

2 J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the November 23, 2021 judgment of the district court is AFFIRMED.

5 Randy Sheltra (“Sheltra”), proceeding in part pro se, appeals from a judgment of conviction

6 and sentence entered on November 23, 2021 in the United States District Court for the District of

7 Vermont (Reiss, J.) following a trial at which a jury returned a verdict finding Sheltra guilty of all

8 charges in his three-count indictment—two counts of attempted enticement of a minor to engage

9 in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of attempted receipt of child

10 pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court sentenced Sheltra

11 principally to 180-month terms of imprisonment on each count, to be served concurrently,

12 followed by a 30-year term of supervised release.

13 Sheltra challenges his conviction on two bases. First, represented by counsel, he argues that

14 the district court abused its discretion by admitting two images of child pornography at trial.

15 Second, proceeding pro se, he argues that his indictment should be dismissed due to outrageous

16 government misconduct. We assume the parties’ familiarity with the underlying facts, the

17 procedural history, and the issues on appeal, which we discuss only as necessary to explain our

18 decision to affirm.

19 I. Factual and Procedural Background 20 21 A. Factual Background 22 23 In August 2017, Sheltra posted an advertisement on Craigslist seeking to reconnect with

24 “Alisha,” the mother of a young child, with whom he shared “a very specific kind of taboo kink.”

25 Gov’t App’x at 25, 93. A member of local law enforcement responded, posing as “Meg,” a single

2 1 mother to a ten-year-old girl. Over the next four days, Sheltra exchanged emails with “Meg,” in

2 which he described various sexual acts he intended to perform on her daughter, “Maddie.” Sheltra

3 made plans to meet “Meg” and “Maddie.” When Sheltra arrived at the agreed-upon meeting

4 location, he was arrested.

5 Incident to the arrest, law enforcement officers searched Sheltra and seized his cellphone.

6 After obtaining a search warrant to examine the contents of the cellphone, the government

7 discovered two images of child pornography. It also discovered that Sheltra had communicated

8 with and met a fifteen-year-old girl, E.R. During their communications, Sheltra discussed various

9 sexual acts and solicited sexually explicit photographs of E.R., despite knowing she was only

10 fifteen years old. Sheltra then met E.R. near her home, later telling an associate that they had

11 “made out and did some heavy petting.” Id. at 106. After the meeting, Sheltra continued to solicit

12 sexually explicit photographs of E.R. until she cut off communication.

13 B. Procedural Background 14 15 Prior to trial, the government filed a motion in limine seeking to admit the two images of child

16 pornography it recovered from Sheltra’s cellphone. The district court initially excluded the images

17 under Federal Rule of Evidence 403, concluding their probative value was substantially

18 outweighed by a danger of unfair prejudice, but cautioned that it might later admit the images if

19 Sheltra “‘open[ed] the door’ at trial.” Id. at 15.

20 At trial, Sheltra testified on direct examination that he had no sexual interest in children. He

21 testified that he had only expressed interest in “Maddie” because he believed that “Meg” would

22 stop communicating with him if he did not. With respect to E.R., he testified that he communicated

23 with her not because he wanted to engage in a sexual relationship, but because she appeared

3 1 distraught, and he intuited that she wanted “to feel desired” and he “react[ed] to the situation.” Id.

2 at 125. Sheltra also denied that any physical contact had taken place when he met with E.R.

3 During cross-examination, the government asked Sheltra if he had two images of child

4 pornography on his cellphone. Sheltra’s counsel objected. Ultimately, the district court ruled that

5 it would admit the images under Federal Rule of Evidence 404(b), reasoning that Sheltra had put

6 the issue of intent “directly in evidence” when he testified that he had no sexual interest in children.

7 Id. at 207; see also id. at 150. According to the district court, the images were “substantially

8 probative of the defendant’s intent” and it “[could not] say that there is any unfair prejudice that

9 substantially outweighs the probative value.” Id. at 207. But it required the government to lay a

10 better foundation connecting Sheltra to the images. After doing so, the government published the

11 images, and the district court provided a limiting instruction to the jury. The district court

12 instructed:

13 [T]he[] photographs that you just saw are not the subject of charges pending in this 14 case at this time. . . . Accordingly, you may not consider evidence of other acts as 15 a substitute for evidence that the defendant committed the crimes charged. Nor 16 may you consider evidence of other acts as evidence that the defendant has a 17 criminal personality, criminal propensity, or a bad character. . . . You may consider 18 it in assessing motive, opportunity, intent, preparation, plan, absence of mistake, or 19 lack of accident.

20 Id. at 153.

21 The jury returned a verdict finding Sheltra guilty of all charges in the three-count indictment.

22 Sheltra timely appealed.

23 II. Counseled Claim 24 25 Under Federal Rule of Evidence 404(b)(1), proof of uncharged crimes or bad acts “is not

26 admissible to prove a person’s character in order to show that on a particular occasion the person

27 acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Such evidence is admissible,

28 however, for other purposes, “such as proving motive, opportunity, intent, preparation, plan, 4 1 knowledge, identity, absence of mistake, or lack of accident.” Id. 404(b)(2). The Court “has long

2 adopted an ‘inclusionary’ approach to the admission of uncharged crime evidence, under which

3 evidence of prior crimes, wrongs, or acts ‘is admissible for any purpose other than to show a

4 defendant’s criminal propensity.’” United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006)

5 (quoting United States v. Pitre, 960 F.2d 1112, 1118–19 (2d Cir. 1992)).

6 Additionally, the Court “accord[s] considerable deference to a district court’s decision to

7 admit such evidence, and . . . will reverse only for abuse of discretion.” Paulino, 445 3d. at 221.

8 “An abuse of discretion under Rule 404(b) requires a determination that ‘the district court acted

9 arbitrarily and irrationally.’” United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006) (quoting

10 Pitre, 960 F.2d at 1119), abrogated on other grounds by United States v. Cabrera, 13 F.4th 140,

11 147 (2d Cir. 2021). To determine whether the district court properly admitted prior act evidence

12 pursuant to Rule 404(b), we consider:

13 (1) the prior acts evidence was offered for a proper purpose; (2) the evidence 14 was relevant to a disputed issue; (3) the probative value of the prior act evidence 15 substantially outweighed the danger of its unfair prejudice; and (4) the court 16 administered an appropriate limiting instruction. 17 18 Id. (quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)).

19 Here, only the third consideration—whether the probative value of the prior act evidence

20 substantially outweighed the danger of its unfair prejudice—is at issue. We conclude that the

21 district court did not abuse its discretion in deciding that the probative value of the images

22 substantially outweighed the danger of their unfair prejudice.

23 Sheltra argues that the images had minimal probative value because the government could not

24 definitively establish when the images were downloaded or if Sheltra had downloaded or viewed

25 them. This argument confuses admissibility with weight of the evidence. As the district court

26 correctly noted, the images were “substantially probative” of Sheltra’s intent to engage in sexual

5 1 acts with children. Gov’t App’x at 207. And Sheltra himself put his intent at issue by disavowing

2 any sexual interest in children on direct examination. See Brand, 467 F.3d at 197 (concluding that

3 defendant’s possession of child pornography was probative of defendant’s intent to engage in illicit

4 sexual activity with a minor). That the government could not exactly date the images or

5 conclusively show that Sheltra downloaded them does not negate their probative value. See United

6 States v. Schultz, 333 F.3d 393, 416 (2d Cir. 2003) (“Evidence need not be conclusive in order to

7 be relevant. . . . [F]actors which make evidence less than conclusive affect only weight, not

8 admissibility.” (internal quotation marks and citations omitted)). Accordingly, the district court

9 did not abuse its discretion in finding that the images were probative of Sheltra’s sexual interest in

10 and intent to engage in sexual activity with “Maddie” and E.R.

11 Sheltra also argues that the images were of such an “inflammatory, salacious nature . . . [that]

12 the . . . reaction that any juror would have to such [] image[s] almost certainly undermines the

13 efficacy of any curative instruction.” Appellant Br. at 22. This argument is also unavailing.

14 Though the images were disturbing, they were not “worse” or more “shocking” than the charged

15 conduct, which involved sexually explicit communication with a child, solicitation and receipt of

16 images of that child partially unclothed, and detailed accounts of sexual acts to be performed on

17 another child in concert with the child’s mother. See United States v. Mercado, 573 F.3d 138, 142

18 (2d Cir. 2009) (other act evidence not unduly prejudicial in part because it did not involve conduct

19 more serious than the charged crimes).

20 In addition, the district court issued a careful limiting instruction regarding the images. See id.

21 (other act evidence not unduly prejudicial in part because the district court also “gave several

22 careful instructions to the jury regarding what inferences it could draw from the admitted

23 evidence”); United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000); United States v. Guang, 511

6 1 F.3d 110, 121 (2d Cir. 2007). Because the two images had substantive probative value that

2 outweighed the danger of their unfair prejudice, the district court did not abuse its discretion by

3 admitting them.

4 III. Pro Se Claims 5 6 “A motion to dismiss an indictment alleging outrageous governmental conduct is a question of

7 law directed to the trial judge and review of rulings thereon is de novo.” 1 United States v.

8 Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991). “To meet the ‘very heavy’ burden of establishing a

9 due process violation to dismiss an indictment for outrageous governmental misconduct, a

10 defendant must show that the Government’s conduct was ‘so outrageous that common notions of

11 fairness and decency would be offended were judicial process invoked to obtain a conviction.’”

12 United States v. Walters, 910 F.3d 11, 27 (2d Cir. 2018) (quoting United States v. Al Kassar, 660

13 F.3d 108, 121 (2d Cir. 2011)). The government’s conduct must be “so offensive that it ‘shocks

14 the conscience.’” United States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (quoting Rochin v.

15 California, 342 U.S. 165, 172 (1952)).

16 Sheltra contends that his indictment should be dismissed because of six separate incidents of

17 outrageous governmental misconduct. They are: (1) the undercover agent’s denial that she was an

18 undercover agent and the police’s failure to ask Sheltra about his motive in going to meet “Meg”

19 before arresting him; (2) the government’s failure to prosecute a twenty-five-year-old man who

20 Sheltra alleges was in a sexual relationship with E.R.; (3) the government’s repeated statements

21 that it had proven all elements of the charges during closing argument; (4) improper questions at

22 arraignment that sought to elicit information about the use of his purported securities, trust, and

1 The government argues that we should review four of the six incidents for plain error because Sheltra failed to raise them in district court. We need not reach the issue because all of Sheltra’s claims of outrageous governmental misconduct fail on de novo review. 7 1 estate; (5) the failure of the district court, acting as a trustee, to settle the “trust,” i.e., the lawsuit,

2 against him; and (6) Sheltra’s lack of opportunity to “face [his] accuser (the United States

3 Government).” Pro Se Appellant Br. at 3–5. Assuming arguendo that these instances constitute

4 misconduct, which they do not, Sheltra still does not prevail because none are “so outrageous that

5 common notions of fairness and decency would be offended were judicial process invoked to

6 obtain a conviction.” Al Kassar, 660 F.3d at 121 (quotation marks omitted). At bottom, none of

7 Sheltra’s examples of alleged governmental misconduct are so offensive as to shock the

8 conscience. See Walters, 910 F.3d at 28.

9 We have considered all of Sheltra’s remaining arguments and conclude they are without merit.

10 For the foregoing reasons, we AFFIRM the judgment of the district court.

11 FOR THE COURT: 12 Catherine O=Hagan Wolfe, Clerk of Court