15-209-cr
United States v. Schluter

                             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 TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of May, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                  v.                                               15-209-cr

MICHAEL DAVID SCHLUTER,

                  Defendant-Appellant.
_____________________________________

For Appellee:                              FRANK T. PIMENTEL, Assistant United States Attorney,
                                           for James P. Kennedy, Jr., Acting United States
                                           Attorney, Buffalo, NY

For Defendant-Appellant:                   JILLIAN S. HARRINGTON, Monroe Township, NJ

         Appeal from a judgment of the United States District Court for the Western District of

New York (Geraci, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Michael David Schluter (“Schluter”) appeals from the judgment of

the United States District Court for the Western District of New York convicting him, following

a jury trial, of one count each of production of child pornography in violation of 18 U.S.C.

§§ 2251(a) and (e); possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B)

and (b)(2); and transportation of a minor with intent to engage in criminal sexual activity in

violation of 18 U.S.C. § 2423(a).       Specifically, Schluter contends that the district court

improperly admitted evidence and should have granted a mistrial because of comments made

during the prosecutor’s summation, and that his trial counsel was constitutionally ineffective.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

       A. Admission of State Court Plea Colloquy

       A district court’s decision to admit evidence is reviewed for abuse of discretion. Old

Chief v. United States, 

, 174 n.1 (1997); United States v. Grinage, 

,

749 (2d Cir. 2004).   We reverse only where there is “manifest error,” United States v. Miller,

, 688 (2d Cir. 2010) (quoting Cameron v. City of New York, 

, 61 (2d

Cir. 2010)), i.e., where a decision to admit evidence is arbitrary and irrational, United States v.

Garcia, 

, 136 (2d Cir. 2002).    We accord such deference because the district court

is in a “superior position to assess both the probative value and the prejudicial potential of

evidence presented at trial.” United States v. Royer, 

, 901 (2d Cir. 2008).

       Schluter contends that the district court improperly admitted a portion of his state court

plea colloquy during which he admitted to sexual involvement with the victim in this case.


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Schluter argues that the plea colloquy was both irrelevant and unduly prejudicial under Federal

Rule of Evidence 403. Both contentions are meritless.

       First, the plea colloquy was clearly relevant. “Possession of child pornography by itself

shares a connection or similarity with pedophilia.”    United States v. Brand, 

, 198

(2d Cir. 2006).    Thus, Schluter’s admission that he was sexually involved with the victim

during the relevant time period made it more probable that he produced and possessed

pornographic photos of the victim (and was the male depicted in those photos), and that he

intended to engage in criminal sexual activity when he transported the victim across state lines.

       Second, the plea colloquy was not unduly prejudicial.        Schluter claims that the jury

likely confused the state charges at issue in the plea colloquy with the federal charges here, yet

the portion of the plea colloquy the district court admitted contains no discussion of the state

charges or their elements, but rather only concerns conduct, namely Schluter’s sexual

involvement with the victim.     The district court also instructed the jury that Schluter’s plea

colloquy would not “on its own [be] sufficient to prove the defendant guilty of the crimes

charged in this indictment . . . [and] that the defendant is not on trial for any act, conduct or

offense not charged in this indictment,” Trial Tr. at 365, and “we presume that a jury follows the

instructions of the court,” United States v. Batista, 

, 342 (2d Cir. 2012). Further,

all parties referred to the plea colloquy as a “proceeding,” App’x at 31, so it is unlikely that the

jury was prejudiced by the fact that the admissions were made in the context of a guilty plea.

Accordingly, the district court did not abuse its discretion in determining that any prejudice

Schluter suffered was not unfair, and that it was, in any event, outweighed by the probative value

of the plea colloquy.




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       B. Denial of Motion for Mistrial

       Schluter also challenges the district court’s refusal to grant a mistrial after the prosecutor

allegedly misrepresented the evidence by exaggerating Schluter’s plea colloquy admissions in

his summation.    To warrant a reversal of a conviction, a summation comment must not only be

improper, but also its impropriety must be “so severe and significant [so] as to have substantially

prejudiced” the defendant when “viewed against the entire argument to the jury, and in the

context of the entire trial.” United States v. Williams, 

, 75 (2d Cir. 2012) (quoting

United States v. Farhane, 

, 167 (2d Cir. 2011)).       Indeed, it must “so infect[] the

trial with unfairness as to make the resulting conviction a denial of due process.”       Darden v.

Wainwright, 

, 181 (1986) (quoting Donnelly v. DeChristoforo, 

, 643

(1974)); accord 

.     We review the denial of a motion for a mistrial for

abuse of discretion. United States v. Deandrade, 

, 118 (2d Cir. 2010).

       Here, Schluter has not demonstrated that the prosecutor’s exaggeration so severely

prejudiced him that the district court abused its discretion in not granting a mistrial. Assuming

the comment at issue misstated the evidence, the jury had already heard Schluter’s state court

admission for itself, and it heard that admission again—at its request—prior to rendering a

verdict.   Further, the district court promptly issued a curative instruction, reminding the jury

that “statements of counsel are not evidence,” and, following a sidebar, it directed the jury to

“disregard” the comment and “give it no consideration whatsoever.” App’x at 32, 33. See

United States v. Batista, 

, 342 (2d Cir. 2012) (explaining that the burden of proving

prosecutorial misconduct warranting a new trial is “even higher” when the district court

“promptly provide[s] the jury with curative instructions”); United States v. Newton, 

, 680 (2d Cir. 2004) (“In assessing whether a defendant has sustained substantial prejudice,


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we consider the severity of the alleged misconduct, any curative measures taken by the trial

court, and the likelihood of conviction absent the challenged conduct.”). It was therefore not an

abuse of discretion for the district court to determine that the prosecutor’s comment did not

sufficiently prejudice Schluter to warrant a mistrial.

          C. Ineffective Assistance of Counsel

          The Sixth Amendment guarantees “the right to the effective assistance of counsel.”

Strickland v. Washington, 

, 686 (1984) (quoting McMann v. Richardson, 

, 771 n.14 (1970)).       When an ineffective assistance of counsel claim is raised on direct

appeal, the Court can (1) decline to hear the claim and permit it to be raised later pursuant to 28

U.S.C. § 2255; (2) remand the claim for fact-finding; or (3) decide the claim on the existing

record.     United States v. Morris, 

, 39 (2d Cir. 2003). The “narrow category of

cases” that warrant adjudication of such a claim on direct appeal involve a defendant who (a) has

new counsel on appeal, and (b) argues no ground of ineffectiveness not fully developed in the

trial record. United States v. Williams, 

, 35 (2d Cir. 2000).

          Schluter contends that his trial counsel was ineffective for failing to ensure that the court

issued a limiting instruction cabining the jury’s consideration of the plea colloquy to counts one

and two (production and possession of child pornography). Assuming, arguendo, that such an

instruction would have been otherwise appropriate if requested, adjudication of this claim is

premature because the record is insufficiently developed. Among other issues, Schluter’s trial

counsel has not had an opportunity to explain why he approved of the plea colloquy instruction

despite it not directing the jury not to consider the evidence in the context of count three

(transportation of a minor).     This testimony may be outcome–determinative given that matters

of trial tactics and strategy are “‘virtually unchallengeable’ absent exceptional grounds for doing


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so.”   United States v. Cohen, 

, 170 (2d Cir. 2005) (quoting United States v.

Gaskin, 

, 468 (2d Cir. 2004)); see also Bell v. Cone, 

, 698 (2002).

We accordingly decline to hear Schluter’s ineffective assistance claim, without prejudice to his

raising it as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255.

                                         *       *       *

       We have considered Schluter’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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