U.S. v. Kelly

• Decision Date: 12 December 2007
• Docket Number: No. 06-5173.,06-5173.
• Citation: 510 F.3d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

510 F.3d 433

UNITED STATES of America, Plaintiff-Appellee, v. Randy KELLY, Defendant-Appellant.

No. 06-5173.

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2007.

Decided: December 12, 2007.

ARGUED: Jonathan David Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Karen L. Bleattler, Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Before NIEMEYER and DUNCAN, Circuit Judges, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge ELLIS wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

ELLIS, Senior District Judge:

A jury convicted Randy Kelly of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Kelly appeals his conviction and sentence, challenging certain evidentiary rulings, the sufficiency of the evidence to support his conviction, the denial of his motion to dismiss, and the sentence imposed by the district court. We affirm.

I.¹

Kelly, a long-haul trucker, owned and operated a Peterbilt truck and refrigerated trailer, which he used to haul goods from his home in North Carolina to various points in the Midwest. On his trips, Kelly often stopped at the Go-Mart truck stop near Charleston, West Virginia for rest and refueling. While at the Go-Mart in September 2005, Kelly met Cathy Carder a prostitute, and became Carder's regular client, visiting her about every other week. In time, Kelly asked Carder to provide him with both pornography and child pornography. He also asked Carder how old she had been when she first had sex and requested that she alter her appearance so she would appear more child-like when she was with him.

Eventually, Kelly told Carder that he wanted to have sex with a 12-year-old virgin and asked Carder if she could find one for him. When Carder realized Kelly was serious about his request, she contacted Eric Johnson, a Charleston police officer, and told him that one of her clients had expressed a desire to have sex with a child. Because Carder only knew Kelly by his nickname, "Grandpa," she described Kelly and his truck to Officer Johnson. Thereafter, every time Carder saw Kelly he asked whether she had found his "birthday present," namely a 12-year-old virgin with whom he could have sex. Kelly told Carder that he would find a child himself if she did not do so for him.

On April 23, 2006, Kelly arrived unexpectedly at the Go-Mart and asked Carder for his "birthday present." Carder told Kelly she "may have found somebody" and then, out of Kelly's presence, attempted unsuccessfully to contact Officer Johnson. She spoke instead with another officer, who instructed Carder to tell Kelly to come back three days later, on April 26, 2006. Following this instruction, Carder told Kelly she would have the child ready for him on April 26 and that the price tag for sex with the child was $200. Kelly agreed to return on April 26, and asked Carder to provide him with two Viagra pills when he arrived.

Kelly returned as promised on April 26, 2006 and immediately asked Carder for his "birthday present." When Carder said she would go and retrieve the child, Kelly gave her money to buy drugs and alcohol to relax the child. Carder then contacted Officer Johnson, who gave her a recording device and two Viagra pills. Carder then returned to Kelly's truck and recorded a conversation with Kelly in which he detailed his plans for having sex with the child. In the course of this conversation, she gave Kelly the Viagra pills and told him she would bring him the child. Police then arrested Kelly and found $310 cash in his truck. When questioned at the police station, Kelly admitted that he had agreed to return to the Go-Mart that day so that he could have sex with a 12 year-old.

On May 23, 2006, the grand jury indicted Kelly on the charge of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a person under 18 years of age, in violation of 18 U.S.C. § 2423(b). After a two-day trial, the jury convicted Kelly and he was thereafter sentenced to 63 months incarceration, to be followed by 10 years of supervised release subject to various conditions, including the special condition that he register as a sex offender under all applicable laws.

II.

A.

Kelly first challenges the district court's admission of his 1984 conviction for the attempted rape of a 12 year-old, claiming that the conviction's prejudicial effect far outweighed its probative value and should have been excluded under Rule 403, Fed.R.Evid. We review a district court's evidentiary rulings for abuse of discretion. United States v. Young, 248 F.3d 260, 266 (4th Cir.2001).

Analysis properly begins with Rule 414, Fed.R.Evid., which permits the introduction of past child molestation offenses in child molestation prosecutions. This rule is an exception to the general rule that evidence of past crimes may not be used "to prove the character of a person in order to show action in conformity therewith." See Rule 404(b), Fed.R.Evid. Unlike Rule 404(b), Rule 414 allows the admission of evidence for the purpose of establishing propensity to commit other sexual offenses. In allowing this evidence, Rule 414 reflects Congress's view² that this propensity evidence "is typically relevant and probative." 140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of Sen. Dole); see also United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) (noting the "strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible").

Yet, the analysis does not end here, for as is true of all admissible evidence, evidence admitted under Rule 414 is subject to Rule 403's balancing test. See United States v. Castillo, 140 F.3d 874, 884 (10th Cir.1998). Thus, even if a prior conviction qualifies for admission under Rule 414, evidence of that conviction may nonetheless "be excluded if its probative value is substantially outweighed by the danger of unfair prejudice" to the defendant. Rule 403, Fed.R.Evid. In applying the Rule 403 balancing test to prior offenses admissible under Rule 414, a district court should consider a number of factors, including (i) the similarity between the previous offense and the charged crime, (ii) the temporal proximity between the two crimes, (iii) the frequency of the prior acts, (iv) the presence or absence of any intervening acts, and (v) the reliability of the evidence of the past offense. See United States v. Hawpetoss, 478 F.3d 820, 825-26 (7th Cir.2007) (citing United States v. LeMay, 260 F.3d 1018, 1027-29 (9th Cir. 2001)).³ Importantly, we defer to the district court's Rule 403 balancing using these or other factors "unless it is an arbitrary or irrational exercise of discretion." United States v. Heater, 63 F.3d 311, 321 (4th Cir.1995) (quoting Garraghty v. Jordan, 830 F.2d 1295, 1298 (4th Cir.1987)).

Given these principles, we have no difficulty concluding that the district court did not abuse its discretion in admitting Kelly's prior conviction for the attempted rape of a child. The similarity between the two offenses was striking. Kelly's past conviction was for attempting to rape a 12 year-old, and he was charged here with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a 12 year-old. And while Kelly's prior conviction was 22 years prior to the crimes charged, this fact alone, given the factual similarities in the offenses, does not render the conviction inadmissible.⁴

Nor was the admission of Kelly's prior conviction unfairly prejudicial. While the prior conviction was undoubtedly prejudicial to Kelly's defense, it was not unfairly prejudicial. Rather, it was prejudicial "for the same reason it is probative—it tends to prove [the defendant's] propensity to molest young children." See Gabe, 237 F.3d at 960. Also worth noting is that the government appropriately did not seek to elicit inflammatory testimony about Kelly's prior conviction, but instead presented only the official conviction record. This presentation method served to minimize the risk of unfair prejudice to Kelly. In sum, then, the district court did not abuse its discretion in admitting Kelly's prior conviction for attempting to rape a 12 year-old.

B.

Kelly next challenges the district court's exclusion of Carder's prior conviction for making or issuing a worthless check, which was offered for impeachment purposes. Under Rule 609, Fed.R.Evid.:

[E]vidence that [the] witness has been convicted of a crime shall be admitted . . . if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Rule 609(a)(2) (emphasis added). A trial judge has no discretion to exclude evidence that qualifies under this rule. See United States v. Cunningham, 638 F.2d 696, 698 (4th Cir.1981). Because the admission of such evidence is mandatory, however, Rule 609(a)(2) covers only "a narrow class of crimes which by their nature bear directly upon the witness' propensity to testify truthfully." Id.

In Cunningham, we upheld the district court's exclusion of a worthless check conviction, noting that "[t]he shotgun term `worthless checks' could conceivably involve forgery, false pretenses or some other circumstance which would fall within the rubric of `dishonesty or false statement,'" but that "the phrase could connote something as innocuous as a check returned for `insufficient...